WORKPLACE RELATIONS AMENDMENT (WORK CHOICES) BILL 2005

Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 ii

Contents

1 Short

title ...........................................................................................1

2 Commencement.................................................................................1

3 Schedule(s) ........................................................................................3

Schedule 1--Main amendments

Workplace Relations Act 1996

Schedule 2--Transitional arrangements for State organisations

659

Workplace Relations Act 1996

659

Schedule 3--School-based apprentices and trainees

666

Workplace Relations Act 1996

666

Schedule 4--Transitional and other provisions

674

Part 1--Regulations for transitional etc. provisions and

consequential amendments

674

Part 2--Transitional, application and saving provisions

675

Division 1--Definitions used in this Part

675

Division 2--Awards

675

Division 3--Termination of employment

676

Division 4--Miscellaneous

679

Schedule 5--Renumbering the Workplace Relations Act 1996

685

Workplace Relations Act 1996

685

Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 1

A Bill for an Act to amend the law relating to

workplace relations, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Workplace Relations Amendment

(Work Choices) Act 2005.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

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. Schedule 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

3. Schedule 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

4. Schedule 3

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

5. Schedule 4,

Part 1

The day on which this Act receives the

Royal Assent.

6. Schedule 4,

Part 2

At the same time as the provision(s) covered

by table item 2.

7. Schedule 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

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.

Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 3

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

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.

Schedule 1 Main amendments

4 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Schedule 1--Main amendments

Workplace Relations Act 1996

1 Section 3

Repeal the section, substitute:

3 Principal object

The principal object of this Act is to provide a framework for

cooperative workplace relations which promotes the economic

prosperity and welfare of the people of Australia by:

(a) encouraging the pursuit of high employment, improved living

standards, low inflation and international competitiveness

through higher productivity and a flexible and fair labour

market; and

(b) establishing and maintaining a simplified national system of

workplace relations; and

minimum wages and conditions for those whose employment

is regulated by this Act; and

(d) providing a foundation of key minimum standards for

agreement-making while ensuring that the primary

responsibility for determining matters affecting the

employment relationship rests with the employer and

employees at the workplace or enterprise level; and

(e) enabling employers and employees to choose the most

appropriate form of agreement for their particular

circumstances; and

(f) ensuring compliance with minimum standards, industrial

instruments and bargaining processes by providing effective

means for the investigation and enforcement of:

(i) employee entitlements; and

(ii) the rights and obligations of employers and employees,

and their organisations; and

(g) ensuring that awards provide minimum safety net

entitlements for award-reliant employees which are

consistent with Australian Fair Pay Commission decisions

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 5

and which avoid creating disincentives to bargain at the

workplace level; and

(h) supporting harmonious and productive workplace relations

by providing flexible mechanisms for the voluntary

settlement of disputes; and

(i) balancing the right to take industrial action for the purposes

of collective bargaining at the workplace level with the need

to protect the public interest and appropriately deal with

illegitimate and unprotected industrial action; and

(j) ensuring freedom of association, including the rights of

employees and employers to join an organisation or

association of their choice, or not to join an organisation or

association; and

(k) protecting the competitive position of young people in the

labour market, promoting youth employment, youth skills

and community standards and assisting in reducing youth

unemployment; and

(l) assisting employees to balance their work and family

responsibilities effectively through the development of

mutually beneficial work practices with employers; and

(m) respecting and valuing the diversity of the work force by

helping to prevent and eliminate discrimination on the basis

of race, colour, sex, sexual preference, age, physical or

mental disability, marital status, family responsibilities,

pregnancy, religion, political opinion, national extraction or

social origin; and

(n) assisting in giving effect to Australia's international

obligations in relation to labour standards.

2 Section 4

Repeal the section, substitute:

4 Definitions

(1) In this Act, unless the contrary intention appears:

A.C.T. Consequential Provisions Act means the A.C.T.

Self-Government (Consequential Provisions) Act 1988.

AFPC has the meaning given by section 7F.

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6 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

allowable award matters means the matters referred to in

subsection 116(1).

Note:

The matters referred to in subsection 116(1) have a meaning that is

affected by section 116B.

alternative dispute resolution process has the meaning given by

section 176A.

Anti-Discrimination Conventions means:

(a) the Equal Remuneration Convention; and

(b) the Convention on the Elimination of all Forms of

Discrimination against Women, a copy of the English text of

which is set out in the Schedule to the Sex Discrimination Act

1984; and

Employment and Occupation, a copy of the English text of

which is set out in Schedule 1 to the Human Rights and

Equal Opportunity Commission Act 1986; and

(d) Articles 3 and 7 of the International Covenant on Economic,

Social and Cultural Rights.

APCS has the meaning given by section 90B.

applies to employment generally: a law of a State or Territory

applies to employment generally if it applies (subject to

constitutional limitations) to:

(a) all employers and employees in the State or Territory; or

(b) all employers and employees in the State or Territory except

those identified (by reference to a class or otherwise) by a

law of the State or Territory.

For this purpose, it does not matter whether or not the law also

applies to other persons, or whether or not an exercise of a power

under the law affects all the persons to whom the law applies.

arbitration powers means the powers of the Commission in

relation to arbitration.

Australian-based employee means:

(a) an employee whose primary place of work is in Australia, in

Australia's exclusive economic zone or in, on, or over

Australia's continental shelf; or

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 7

(b) an employee who is employed by the Commonwealth or a

Commonwealth authority, except an employee engaged

outside Australia and the external Territories to perform

duties outside Australia and the external Territories; or

purposes of this definition.

Note:

Subsection 4AA(1) defines employee.

Australian Capital Territory Government Service means the

service established by the Public Sector Management Act 1994 of

the Australian Capital Territory.

Australian employer means:

(a) an employer that is a trading corporation formed within the

limits of the Commonwealth (within the meaning of

paragraph 51(xx) of the Constitution); or

(b) an employer that is a financial corporation formed within the

limits of the Commonwealth (within the meaning of

paragraph 51(xx) of the Constitution); or

(d) an employer that is a Commonwealth authority; or

(e) an employer that is a body corporate incorporated in a

Territory; or

(f) an employer that carries on in Australia, in Australia's

exclusive economic zone or in, on, or over Australia's

continental shelf activities (whether of a commercial,

governmental or other nature) whose central management

and control is in Australia; or

(g) an employer that is prescribed by the regulations for the

purposes of this definition.

Note:

Subsection 4AB(1) defines employer.

Australian Fair Pay and Conditions Standard has the meaning

given by subsection 89(3).

Australian workplace agreement or AWA has the meaning given

by section 96.

Australia's continental shelf means the continental shelf (as

defined in the Seas and Submerged Lands Act 1973) of Australia.

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8 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Australia's exclusive economic zone means the exclusive

economic zone (as defined in the Seas and Submerged Lands Act

1973) of Australia.

AWA: see Australian workplace agreement.

award means:

(a) an award made by the Commission under section 118E; or

(b)

pre-reform

award.

award rationalisation process means a process of award

rationalisation conducted as a result of an award rationalisation

request.

award rationalisation request has the meaning given by

section 118.

award-related order means an order varying, revoking or

suspending an award.

award simplification process means a process of reviewing and

simplifying awards under section 118M.

bargaining agent means:

(a) in relation to an AWA--a person who has been duly

appointed as a bargaining agent in relation to the AWA in

accordance with section 97A; or

(b) in relation to an employee collective agreement--a person

who has been requested to be a bargaining agent in relation

to the agreement in accordance with section 97B.

BCII Act means the Building and Construction Industry

Improvement Act 2005.

breach includes non-observance.

Chief Justice means the Chief Justice of the Court.

civil remedy provision has the meaning given by section 188.

collective agreement means:

(a) an employee collective agreement; or

(b) a union collective agreement; or

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 9

(d) a union greenfields agreement; or

(e)

multiple-business

agreement.

Commission means the Australian Industrial Relations

Commission.

Commissioner means a Commissioner of the Commission.

committee of management, in relation to an organisation,

association or branch of an organisation or association, means the

group or body of persons (however described) that manages the

affairs of the organisation, association or branch.

Commonwealth authority means:

(a) a body corporate established for a public purpose by or under

a law of the Commonwealth; or

(b) a body corporate:

(i) incorporated under a law of the Commonwealth or a

State or Territory; and

(ii) in which the Commonwealth has a controlling interest.

conciliation powers means the powers of the Commission in

relation to conciliation.

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

(a) between Australia and a place outside Australia; or

(b) among the States; or

(d) between 2 Territories; or

(e) within a Territory.

contingency fee agreement means an agreement between a legal

practitioner and a person under which:

(a) the legal practitioner agrees to provide legal services; and

(b) the payment of all, or a substantial proportion, of the legal

practitioner's costs is contingent on the outcome of the

matter in which the practitioner provides the legal services

for the person.

Court means the Federal Court of Australia.

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10 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Note:

For the purposes of various provisions of this Act, Court means the

Federal Court of Australia or the Federal Magistrates Court. This is

indicated by definitions that apply for the purposes of those

provisions.

demarcation dispute includes:

(a) a dispute arising between 2 or more organisations, or within

an organisation, as to the rights, status or functions of

members of the organisations or organisation in relation to

the employment of those members; or

(b) a dispute arising between employers and employees, or

between members of different organisations, as to the

demarcation of functions of employees or classes of

employees; or

Registration and Accountability of Organisations Schedule,

of the industrial interests of employees by an organisation of

employees.

Deputy President means a Deputy President of the Commission.

employee has a meaning affected by section 4AA.

employee collective agreement has the meaning given by

section 96A.

employer has a meaning affected by section 4AB.

employer greenfields agreement has the meaning given by

section 96D.

employing authority, in relation to a class of employees, means the

person or body, or each of the persons or bodies, prescribed as the

employing authority in relation to the class of employees.

employment has a meaning affected by section 4AC.

Employment Advocate means the Employment Advocate referred

to in Part IVA.

Equal Remuneration Convention means the Equal Remuneration

Convention, 1951.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 11

Family Responsibilities Convention means the Workers with

Family Responsibilities Convention, 1981, a copy of the English

text of which is set out in Schedule 12.

flight crew officer has the meaning given by clause 1 of

Schedule 1.

Full Bench means a Full Bench of the Commission.

Full Court means a Full Court of the Court.

greenfields agreement means a union greenfields agreement or an

employer greenfields agreement.

industrial action has the meaning given by section 106A.

Industrial Registrar means the Industrial Registrar appointed

under section 67.

Industrial Registry means the Australian Industrial Registry.

industry includes:

(a) any business, trade, manufacture, undertaking or calling of

employers; and

(b) any calling, service, employment, handicraft, industrial

occupation or vocation of employees; and

inspector means a workplace inspector.

Judge means:

(a) in the case of a reference to the Court or a Judge--a Judge

(including the Chief Justice) sitting in Chambers; or

(b) otherwise--a Judge of the Court (including the Chief

Justice).

judgment means a judgment, decree or order, whether final or

interlocutory, or a sentence.

legal practitioner means a legal practitioner (however described)

of the High Court or of a Supreme Court of a State or Territory.

magistrate's court means:

(a) a court constituted by a police, stipendiary or special

magistrate; or

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12 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) a court constituted by an industrial magistrate who is also a

police, stipendiary or special magistrate.

maritime employee has the meaning given by clause 1 of

Schedule 1.

model dispute resolution process means the process set out in

Division 2 of Part VIIA.

multiple-business agreement has the meaning given by

section 96E.

new APCS has the meaning given by subsection 90ZJ(1).

nominal expiry date of a workplace agreement has the meaning

given by section 101.

Northern Territory authority means:

(a) a body corporate established for a public purpose by or under

a law of the Northern Territory; or

(b) a body corporate:

(i) incorporated under a law of the Northern Territory; and

(ii) in which the Northern Territory has a controlling

interest;

other than a prescribed body.

notional agreement preserving State awards has the meaning

given by clause 1 of Schedule 15.

occupier, in relation to premises, includes a person in charge of the

premises.

office, in relation to an organisation or a branch of an organisation,

has the same meaning as in the Registration and Accountability of

Organisations Schedule.

officer, in relation to an organisation or a branch of an

organisation, means a person who holds an office in the

organisation or branch.

organisation means an organisation registered under the

Registration and Accountability of Organisations Schedule.

Note:

An organisation that was registered under the Workplace Relations

Act 1996 immediately before the commencement of item 1 of

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 13

Schedule 2 to the Workplace Relations Legislation Amendment

(Registration and Accountability of Organisations) (Consequential

Provisions) Act 2002 (the Consequential Provisions Act) is taken to

have been registered under the Registration and Accountability of

Organisations Schedule (see item 15 of Schedule 1 to the

Consequential Provisions Act).

panel means a panel to which an industry has been assigned under

section 37.

peak council means a national or State council or federation that is

effectively representative of a significant number of organisations

representing employers or employees in a range of industries.

penalty unit has the meaning given by section 4AA of the Crimes

Act 1914.

person includes an organisation.

pilot has the meaning given by clause 1 of Schedule 1.

premises includes any land, building, structure, mine, mine

working, ship, aircraft, vessel, vehicle or place.

pre-reform AWA has the meaning given by clause 1 of

Schedule 14.

pre-reform award means an instrument that has effect after the

reform commencement under item 4 of Schedule 4 to the

Workplace Relations Amendment (Work Choices) Act 2005.

prescribed includes prescribed by Rules of the Commission made

under section 48.

preserved APCS has the meaning given by subsection 90ZD(1).

preserved award entitlement, in relation to an employee, has the

meaning given by section 117B.

preserved award term has the meaning given by section 117.

preserved State agreement has the meaning given by clause 1 of

Schedule 15.

President means the President of the Commission.

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14 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Presidential Member means the President, a Vice President, a

Senior Deputy President or a Deputy President.

previous Act means the Conciliation and Arbitration Act 1904, and

includes any other Act so far as the other Act affects the operation

of that Act.

proceeding includes a proceeding relating to the following:

(a) an award rationalisation process;

(b) an award simplification process.

protected action has the meaning given by section 108.

protected action ballot means a ballot under Division 4 of Part VC.

public sector employment means employment of, or service by, a

person in any capacity (whether permanently or temporarily and

whether full-time or part-time):

(a)

under

the

Public Service Act 1999 or the Parliamentary

Service Act 1999; or

(b) by or in the service of a Commonwealth authority; or

employment by that Territory, including a law relating to the

Australian Capital Territory Government Service; or

(d) by or in the service of:

(i) an enactment authority as defined by section 3 of the

A.C.T. Consequential Provisions Act; or

(ii) a body corporate incorporated under a law of the

Australian Capital Territory and in which the Australian

Capital Territory has a controlling interest;

other than a prescribed authority or body; or

(e) under a law of the Northern Territory relating to the Public

Service of the Northern Territory; or

(f) by or in the service of a Northern Territory authority; or

(g) by or in the service of a prescribed person or under a

prescribed law;

but, other than in section 44N, does not include:

(h) employment of, or service by, a person included in a

prescribed class of persons; or

(i) employment or service under a prescribed law.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 15

reform commencement means the commencement of Schedule 1

to the Workplace Relations Amendment (Work Choices) Act 2005.

Registrar means the Industrial Registrar or a Deputy Industrial

Registrar.

Registration and Accountability of Organisations Schedule

means Schedule 1B.

registry means the Principal Registry or another registry

established under section 64.

regular part-time employee means an employee who:

(a) works less than full-time ordinary hours; and

(b) has reasonably predictable hours of work; and

those specified in an award or awards for full-time

employees who do the same kind of work.

secondary office, in relation to a person who holds an office of

member of the Commission and an office of member of a

prescribed State industrial authority, means the office to which the

person was most recently appointed.

Senior Deputy President means a Senior Deputy President of the

Commission.

ship has the meaning given by clause 1 of Schedule 1.

single business has the meaning given by section 95A.

special magistrate means a magistrate appointed as a special

magistrate under a law of a State or Territory.

State award means an award, order, decision or determination of a

State industrial authority.

State employment agreement means an agreement:

(a) between an employer and one or more of the following:

(i) an employee of the employer;

(ii) a trade union; and

(b) that regulates wages and conditions of employment of one or

more of the employees; and

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16 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(d) that prevails over an inconsistent State award.

State industrial authority means:

(a) a board or court of conciliation or arbitration, or tribunal,

body or persons, having authority under a State Act to

exercise any power of conciliation or arbitration in relation to

industrial disputes within the limits of the State; or

(b) a special board constituted under a State Act relating to

factories; or

prescribed for the purposes of this definition.

State or Territory industrial law means:

(a) any of the following State Acts:

(i)

the

Industrial Relations Act 1996 of New South Wales;

(ii)

the

Industrial Relations Act 1999 of Queensland;

(iii)

the

Industrial Relations Act 1979 of Western Australia;

(iv)

the

Fair Work Act 1994 of South Australia;

(v)

the

Industrial Relations Act 1984 of Tasmania; or

(b) an Act of a State or Territory that applies to employment

generally and has one or more of the following as its main

purpose or one or more of its main purposes:

(i) regulating workplace relations (including industrial

matters, industrial disputes and industrial action, within

the ordinary meaning of those expressions);

(ii) providing for the determination of terms and conditions

of employment;

(iii) providing for the making and enforcement of

agreements determining terms and conditions of

employment;

(iv) providing for rights and remedies connected with the

termination of employment;

(v) prohibiting conduct that relates to the fact that a person

either is, or is not, a member of an industrial association

(as defined in section 240); or

or (b), so far as the instrument is of a legislative character; or

(d) a law that:

(i) is a law of a State or Territory; and

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 17

(ii) is prescribed by regulations for the purposes of this

paragraph.

State or Territory training authority means a body authorised by a

law or award of a State or Territory for the purpose of overseeing

arrangements for the training of employees.

stevedoring operations has the meaning given by clause 1 of

Schedule 1.

Termination of Employment Convention means the Termination

of Employment Convention, 1982, a copy of the English text of

which is set out in Schedule 10.

this Act includes the regulations but does not include Schedule 1B

or regulations made under that Schedule.

trade union means:

(a) an organisation of employees; or

(b) an association of employees that is registered or recognised

as a trade union (however described) under the law of a State

or Territory; or

the protection and promotion of the employees' interests in

matters concerning their employment.

training arrangement means a combination of work and training

that is subject to a training agreement or a training contract

between the employee and employer that is registered:

(a) with the relevant State or Territory training authority; or

(b) under a law of a State or Territory relating to the training of

employees.

union collective agreement has the meaning given by section 96B.

union greenfields agreement has the meaning given by

section 96C.

Vice President means a Vice President of the Commission.

vocational placement means a placement that is:

(a) undertaken with an employer for which a person is not

entitled to be paid any remuneration; and

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18 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) undertaken as a requirement of an education or training

course; and

the Commonwealth, a State or a Territory.

waterside worker has the meaning given by clause 1 of Schedule 1.

wharf has the meaning given by clause 1 of Schedule 1.

working day means a day that is not a Saturday, a Sunday or a

public holiday.

workplace agreement means:

(a) an AWA; or

(b) a collective agreement.

Note:

Section 95D affects the meaning of workplace agreement.

workplace determination means a determination under Division 8

of Part VC.

workplace inspector means a person appointed as a workplace

inspector under section 84.

(2) To avoid doubt, it is declared that a reference in this Act (except in

Part XA) to an independent contractor is confined to a natural

person.

(3) In this Act, a reference to:

(a) a person who is eligible to become a member of an

organisation; or

(b) a person who is eligible for membership of an organisation;

includes a reference to a person who is eligible merely because of

an agreement made under rules of the organisation made under

subsection 151(1) of the Registration and Accountability of

Organisations Schedule.

(4) In this Act, a reference to a person making a statement that is to the

person's knowledge false or misleading in a material particular

includes a reference to a person making a statement where the

person is reckless as to whether the statement is false or misleading

in a material particular.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 19

(5) In this Act, a reference to engaging in conduct includes a reference

to being, whether directly or indirectly, a party to or concerned in

the conduct.

(6) A reference in this Act to a term of an award includes a reference

to a provision of an award.

Note:

Section 69B of the Australian Federal Police Act 1979 provides that

this Act does not apply to certain matters relating to AFP employees.

3 After section 4

Insert:

4AA Employee

Basic definition

(1) In this Act, unless the contrary intention appears:

employee means an individual so far as he or she is employed, or

usually employed, as described in the definition of employer in

subsection 4AB(1), by an employer, except on a vocational

placement.

Note:

See also Part XV (employees and employers in Victoria).

References to employee with ordinary meaning

(2) However, a reference to employee has its ordinary meaning

(subject to subsections (3) and (4)) if the reference is listed in

clause 2 of Schedule 1. This does not limit the circumstances in

which a contrary intention may appear for the purposes of

subsection (1).

Note:

The regulations may amend clause 2 of Schedule 1. See clause 5 of

Schedule 1.

(3) In this Act, unless the contrary intention appears, a reference to

employee with its ordinary meaning includes a reference to an

individual who is usually an employee with that meaning.

(4) In this Act, unless the contrary intention appears, a reference to

employee with its ordinary meaning does not include a reference to

an individual on a vocational placement.

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20 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

4AB Employer

Basic definition

(1) In this Act, unless the contrary intention appears:

employer means:

(a) a constitutional corporation, so far as it employs, or usually

employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs,

an individual; or

employs, an individual; or

(d) a person or entity (which may be an unincorporated club) so

far as the person or entity, in connection with constitutional

trade or commerce, employs, or usually employs, an

individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the

body employs, or usually employs, an individual; or

(f) a person or entity (which may be an unincorporated club) that

carries on an activity (whether of a commercial,

governmental or other nature) in a Territory in Australia, so

far as the person or entity employs, or usually employs, an

individual in connection with the activity carried on in the

Territory.

Note 1:

In this context, Australia includes the Territory of Christmas Island

and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of

the Acts Interpretation Act 1901.

Note 2:

See also Part XV (employees and employers in Victoria).

References to employer with ordinary meaning

(2) However, a reference to employer has its ordinary meaning

(subject to subsection (3)) if the reference is listed in clause 3 of

Schedule 1. This does not limit the circumstances in which a

contrary intention may appear for the purposes of subsection (1).

Note:

The regulations may amend clause 3 of Schedule 1. See clause 5 of

Schedule 1.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 21

(3) In this Act, unless the contrary intention appears, a reference to

employer with its ordinary meaning includes a reference to a

person or entity that is usually an employer with that meaning.

4AC Employment

(1) In this Act, unless the contrary intention appears:

employment means the employment of an employee by an

employer.

Note:

Subsections 4AA(1) and 4AB(1) define employee and employer.

References to employment with ordinary meaning

(2) However, a reference to employment has its ordinary meaning if

the reference is listed in clause 4 of Schedule 1. This does not limit

the circumstances in which a contrary intention may appear for the

purposes of subsection (1).

Note:

The regulations may amend clause 4 of Schedule 1. See clause 5 of

Schedule 1.

4 Section 4A

Repeal the section, substitute:

4A Schedules 1B, 13, 14, 15 and 16 have effect

Schedules 1B, 13, 14, 15 and 16 have effect.

Note 1:

Schedule 1B is about registration and accountability of organisations.

Note 2:

Schedule 13 is about transitional arrangements for parties bound by

federal awards.

Note 3:

Schedule 14 is about transitional arrangements for existing pre-reform

certified agreements.

Note 4:

Schedule 15 is about transitional treatment of State employment

agreements and State awards.

Note 5:

Schedule 16 is about transitional instruments and transmission of

business.

5 Sections 5 and 5AA

Repeal the sections.

6 Section 7

Schedule 1 Main amendments

22 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Repeal the section, substitute:

7 Modifications for Christmas Island and Cocos (Keeling) Islands

(1) If the regulations prescribe modifications of this Act for its

application in relation to the Territory of Christmas Island, this Act

has effect as modified in relation to the Territory.

(2) If the regulations prescribe modifications of this Act for its

application in relation to the Territory of Cocos (Keeling) Islands,

this Act has effect as modified in relation to the Territory.

(3) In this section:

modifications includes additions, omissions and substitutions.

7AA Extraterritorial application

(1) Each Part or Division listed in the table, and the rest of this Act so

far as it relates to the Part or Division, extends to persons, acts,

omissions, matters and things outside Australia as described in the

relevant section listed in the table.

Extraterritorial application

Item This

Part

or Division:

Which is about this topic: Extends to persons, acts,

omissions, matters and things

outside Australia as

described in this section:

Part VA

The Australian Fair Pay

and Conditions Standard

Section 89D

Part VB

Workplace agreements

Section 95E

Part VI

Awards

Section 115C

4 Division

of Part VIA

Meal breaks

Section 170AD

5 Division

of Part VIA

Equal remuneration for

work of equal value

Section 170BGD

6 Division

of Part VIA

Termination of

employment

Section 170CCB

Part IX

Right of entry

Section 200

Part XA

Freedom of association

Section 249

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 23

Note 1:

In this context, Australia includes the Territory of Christmas Island,

the Territory of Cocos (Keeling) Islands and the coastal sea. See

section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

Note 2:

Provisions of section 86 giving inspectors power to enter certain

premises and places and do certain things there also extend to some

premises and places outside Australia, subject to Australia's

international obligations relating to foreign-flagged ships and

foreign-registered aircraft.

Modified application in Australia's exclusive economic zone

(2) If the regulations prescribe modifications of this Act for its

operation in relation to all or part of Australia's exclusive

economic zone, then, so far as this Act extends to the zone or part

apart from this subsection, it has effect as modified in relation to

the zone or part.

(3) For the purposes of subsection (2), the regulations may prescribe

different modifications in relation to different parts of Australia's

exclusive economic zone.

Modified application in relation to Australia's continental shelf

(4) If the regulations prescribe modifications of this Act for its

operation in relation to all or part of Australia's continental shelf,

then, so far as this Act extends in relation to the continental shelf or

part apart from this subsection, it has effect as modified in relation

to the continental shelf or part.

(5) For the purposes of subsection (4), the regulations may prescribe

different modifications in relation to different parts of Australia's

continental shelf.

Definitions

(6) In this section:

modifications includes additions, omissions and substitutions.

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

7 Section 7B

Before "Chapter", insert "(1)".

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24 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

8 At the end of section 7B

Add:

(2) However, so far as Part 2.7 of the Criminal Code is relevant to this

Act, it has effect subject to the following sections of this Act:

(a)

section

7AA;

(b) the sections mentioned in section 7AA;

(c)

section

86.

Note:

Part 2.7 of the Criminal Code is about geographical jurisdiction in

connection with offences. Section 7AA, the sections mentioned there

and section 86 deal with extraterritorial operation of this Act.

9 At the end of Part I

Add:

7C Act excludes some State and Territory laws

(1) This Act is intended to apply to the exclusion of all the following

laws of a State or Territory so far as they would otherwise apply in

relation to an employee or employer:

(a) a State or Territory industrial law;

(b) a law that applies to employment generally and deals with

leave other than long service leave;

the State or Territory to make an order in relation to equal

remuneration for work of equal value (as defined in

section 170BB);

(d) a law providing for the variation or setting aside of rights and

obligations arising under a contract of employment, or

another arrangement for employment, that a court or tribunal

finds is unfair;

(e) a law that entitles a representative of a trade union to enter

premises for a purpose other than a purpose connected with

occupational health and safety.

Note: Subsection

4(1)

defines

applies to employment generally.

State and Territory laws that are not excluded

(2) However, subsection (1) does not apply to a law of a State or

Territory so far as:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 25

(a) the law deals with the prevention of discrimination, the

promotion of EEO or both, and is neither a State or Territory

industrial law nor contained in such a law; or

(b) the law is prescribed by the regulations as a law to which

subsection (1) does not apply; or

matters) described in subsection (3).

(3) The non-excluded matters are as follows:

(a)

superannuation;

(b)

workers

compensation;

(d)

child

labour;

(e) long service leave;

(f) the observance of a public holiday, except the rate of

payment of an employee for the public holiday;

(g) the method of payment of wages or salaries;

(h) the frequency of payment of wages or salaries;

(i) deductions from wages or salaries;

(j) matters relating to training or apprenticeships, except the rate

of payment of trainees and apprentices;

(k) industrial action (within the ordinary meaning of the

expression) affecting essential services;

(l) attendance for service on a jury;

(m) regulation of any of the following:

(i) associations of employees;

(ii) associations of employers;

(iii) members of associations of employees or of

associations of employers.

Note:

Part IX (Right of entry) sets prerequisites for a trade union

representative to enter certain premises under a right given by a

prescribed law of a State or Territory. The prerequisites apply even

though the law deals with occupational health and safety and

paragraph (2)(c) says this Act is not to apply to the exclusion of a law

dealing with that.

Schedule 1 Main amendments

26 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

This Act excludes prescribed State and Territory laws

(4) This Act is intended to apply to the exclusion of a law of a State or

Territory that is prescribed by the regulations for the purposes of

this subsection.

Definition

(5) In this section:

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

7D Awards, agreements and Commission orders prevail over State

and Territory law etc.

(1) An award or workplace agreement prevails over a law of a State or

Territory, a State award or a State employment agreement, to the

extent of any inconsistency.

(2) However, a term of an award or workplace agreement dealing with

any of the following matters has effect subject to a law of a State or

Territory dealing with the matter:

(a) occupational health and safety;

(b)

workers

compensation;

(c)

apprenticeship;

(d) a matter prescribed by the regulations for the purposes of this

paragraph.

(3) An order of the Commission under Part VIA prevails over a law of

a State or Territory, a State award or a State employment

agreement, to the extent of any inconsistency.

Note:

Part VIA is about minimum entitlements of employees.

7E Act may exclude State and Territory laws in other cases

(1) Sections 7C and 7D are not a complete statement of the

circumstances in which this Act and instruments made under it are

intended to apply to the exclusion of, or prevail over, laws of the

States and Territories or instruments made under those laws.

Note:

Other provisions of this Act deal with its relationship with laws of the

States and Territories. For example, see clause 87 of Schedule 13,

Main amendments Schedule 1

Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 27

which is about not excluding or limiting Victorian law that can

operate concurrently with certain provisions of that Schedule.

(2) In this section:

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

10 After Part I

Insert:

Part IA--Australian Fair Pay Commission

Division 1--Preliminary

7F Definitions

In this Part:

AFPC Chair means the AFPC Chair appointed under section 7P.

AFPC Commissioner means an AFPC Commissioner appointed

under section 7Y.

AFPC Secretariat means the AFPC Secretariat established under

section 7ZG.

Director of the Secretariat means the Director of the Secretariat

appointed under section 7ZK.

wage review means a review conducted by the AFPC to determine

whether it should exercise any of its wage-setting powers.

wage-setting decision means a decision made by the AFPC in the

exercise of its wage-setting powers.

wage-setting function has the meaning given by section 7I.

wage-setting powers means the powers of the AFPC under

Division 2 of Part VA.

Schedule 1 Main amendments

28 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Division 2--Australian Fair Pay Commission

Subdivision A--Establishment and functions

7G Establishment

(1) The Australian Fair Pay Commission is established by this section.

(2) The AFPC is to consist of:

(a) the AFPC Chair; and

(b) 4 AFPC Commissioners.

7H Functions of the AFPC

The functions of the AFPC are as follows:

(a) its wage-setting function as set out in section 7I;

(b) any other functions conferred on the AFPC under this Act or

any other Act;

made under this Act or any other Act;

(d) to undertake activities to promote public understanding of

matters relevant to its wage-setting and other functions.

Subdivision B--AFPC's wage-setting function

7I AFPC's wage-setting function

The

AFPC's

wage-setting function is to:

(a) conduct wage reviews; and

(b) exercise its wage-setting powers as necessary depending on

the outcomes of wage reviews.

Note:

The main wage-setting powers of the AFPC cover the following

matters (within the meaning of Division 2 of Part VA):

(a)

adjusting the standard FMW (short for Federal Minimum Wage);

(b)

determining or adjusting special FMWs for junior employees,

employees with disabilities or employees to whom training

arrangements apply;

(c)

determining or adjusting basic periodic rates of pay and basic

piece rates of pay payable to employees or employees of

particular classifications;

(d)

determining or adjusting casual loadings.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 29

7J AFPC's wage-setting parameters

The objective of the AFPC in performing its wage-setting function

is to promote the economic prosperity of the people of Australia

having regard to the following:

(a) the capacity for the unemployed and low paid to obtain and

remain in employment;

(b) employment and competitiveness across the economy;

(d) providing minimum wages for junior employees, employees

to whom training arrangements apply and employees with

disabilities that ensure those employees are competitive in

the labour market.

7K Wage reviews and wage-setting decisions

(1) The AFPC may determine the following:

(a) the timing and frequency of wage reviews;

(b) the scope of particular wage reviews;

(d) when wage-setting decisions are to come into effect.

(2) For the purposes of performing its wage-setting function, the

AFPC may inform itself in any way it thinks appropriate, including

by:

(a) undertaking or commissioning research; or

(b) consulting with any other person, body or organisation; or

decisions.

(3) Subsections (1) and (2) have effect subject to this Act and any

regulations made under this Act.

(4) The AFPC's wage-setting decisions must:

(a) be in writing; and

(b) be expressed as decisions of the AFPC as a body; and

AFPC as a body.

A wage-setting decision is not a legislative instrument.

Schedule 1 Main amendments

30 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

7L Constitution of the AFPC for wage reviews

(1) For the purposes of exercising its wage-setting powers, the AFPC

must be constituted by:

(a) the AFPC Chair; and

(b) the 4 AFPC Commissioners.

(2) However, if the AFPC Chair considers it necessary in

circumstances where AFPC Commissioners are unavailable, the

AFPC Chair may determine that, for the purposes of exercising its

wage-setting powers in those circumstances, the AFPC is to be

constituted by:

(a) the AFPC Chair; and

(b) no fewer than 2 AFPC Commissioners.

7M Publishing wage-setting decisions etc.

(1) The AFPC must publish its wage-setting decisions.

(2) The AFPC may, as it thinks appropriate, publish other information

about wages or its wage-setting function.

(3) Publishing under subsection (1) or (2) may be done in any way the

AFPC thinks appropriate.

Subdivision C--Operation of the AFPC

7N AFPC to determine its own procedures

(1) The AFPC may determine the procedures it will use in performing

its functions.

(2) Subsection (1) has effect subject to Subdivision B and any

regulations made under subsection (3).

(3) The regulations may prescribe procedures to be used by the AFPC

for all or for specified purposes.

7O Annual report

The AFPC must, as soon as practicable after the end of each

financial year, give to the Minister a report on the operation of the

AFPC for presentation to the Parliament.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 31

Subdivision D--AFPC Chair

7P Appointment

(1) The AFPC Chair is to be appointed by the Governor-General by

written instrument.

(2) The AFPC Chair may be appointed on a full-time or part-time

basis and holds office for the period specified in his or her

instrument of appointment. The period must not exceed 5 years.

(3) To be appointed as AFPC Chair, a person must have a high level of

skills and experience in business or economics.

7Q Remuneration

(1) The AFPC Chair is to be paid the remuneration that is determined

by the Remuneration Tribunal. If no determination of that

remuneration by the Tribunal is in operation, the AFPC Chair is to

be paid the remuneration that is prescribed.

(2) The AFPC Chair is to be paid the allowances that are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

7R Leave of absence

(1) If the AFPC Chair is appointed on a full-time basis:

(a) the AFPC Chair has the recreation leave entitlements that are

determined by the Remuneration Tribunal; and

(b) the Minister may grant the AFPC Chair leave of absence,

other than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Minister determines.

(2) If the AFPC Chair is appointed on a part-time basis, the Minister

may grant leave of absence to the AFPC Chair on the terms and

conditions that the Minister determines.

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32 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

7S Engaging in other paid employment

If the AFPC Chair is appointed on a full-time basis, the AFPC

Chair must not engage in paid employment outside the duties of his

or her office without the Minister's approval.

7T Disclosure of interests

The AFPC Chair must give written notice to the Minister of all

interests (financial or otherwise) that the AFPC Chair has or

acquires and that could conflict with the proper performance of his

or her duties.

7U Resignation

(1) The AFPC Chair may resign his or her appointment by giving the

Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

7V Termination of appointment

(1) The Governor-General may terminate the appointment of the

AFPC Chair if:

(a) the AFPC Chair:

(i)

becomes

bankrupt;

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the AFPC Chair fails, without reasonable excuse, to comply

with section 7T; or

an employer or employee) that the Minister considers conflict

unacceptably with the proper performance of the AFPC

Chair's duties; or

(d) if the AFPC Chair is appointed on a full-time basis:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 33

(i) the AFPC Chair engages, except with the Minister's

approval, in paid employment outside the duties of his

or her office; or

(ii) the AFPC Chair is absent, except on leave of absence,

for 14 consecutive days or for 28 days in any 12

months; or

(e) if the AFPC Chair is appointed on a part-time basis--the

AFPC Chair is absent, except on leave of absence, to an

extent that the Minister considers excessive.

(2) Subject to subsections (3) and (4), the Governor-General may

terminate the appointment of the AFPC Chair for misbehaviour or

physical or mental incapacity.

(3) If the AFPC Chair:

(a) is an eligible employee for the purposes of the

Superannuation Act 1976; and

(b) has not reached his or her maximum retiring age within the

meaning of that Act;

his or her appointment cannot be terminated for physical or mental

incapacity unless the CSS Board has given a certificate under

section 54C of that Act.

(4) If the AFPC Chair:

(a) is a member of the superannuation scheme established by

deed under the Superannuation Act 1990; and

(b) is under 60 years of age;

his or her appointment cannot be terminated for physical or mental

incapacity unless the PSS Board has given a certificate under

section 13 of that Act.

7W Other terms and conditions

The AFPC Chair holds office on the terms and conditions (if any)

in relation to matters not covered by this Act that are determined

by the Minister.

7X Acting AFPC Chair

(1) The Minister may appoint a person who meets the requirements set

out in subsection 7P(3) to act as the AFPC Chair:

Schedule 1 Main amendments

34 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(a) during a vacancy in the office of the AFPC Chair (whether or

not an appointment has previously been made to the office);

(b) during any period, or during all periods, when the AFPC

Chair is absent from duty or from Australia, or is, for any

reason, unable to perform the duties of the office.

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

(d) the occasion to act had not arisen or had ceased.

Subdivision E--AFPC Commissioners

7Y Appointment

(1) An AFPC Commissioner is to be appointed by the

Governor-General by written instrument.

(2) An AFPC Commissioner holds office on a part-time basis for the

period specified in his or her instrument of appointment. The

period must not exceed 4 years.

(3) To be appointed as an AFPC Commissioner, a person must have

experience in one or more of the following areas:

(a)

business;

(b)

economics;

(c)

community

organisations;

(d)

workplace

relations.

7Z Remuneration

(1) An AFPC Commissioner is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, an AFPC

Commissioner is to be paid the remuneration that is prescribed.

(2) An AFPC Commissioner is to be paid the allowances that are

prescribed.

Main amendments Schedule 1

Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 35

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

7ZA Leave of absence

The AFPC Chair may grant leave of absence to an AFPC

Commissioner on the terms and conditions that the AFPC Chair

determines.

7ZB Disclosure of interests

An AFPC Commissioner must give written notice to the Minister

of all interests (financial or otherwise) that the AFPC

Commissioner has or acquires and that could conflict with the

proper performance of his or her duties.

7ZC Resignation

(1) An AFPC Commissioner may resign his or her appointment by

giving the Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

7ZD Termination of appointment

(1) The Governor-General may terminate the appointment of an AFPC

Commissioner if:

(a) the AFPC Commissioner:

(i)

becomes

bankrupt;

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the AFPC Commissioner fails, without reasonable excuse, to

comply with section 7ZB; or

by being an employer or employee) that the Minister

Schedule 1 Main amendments

36 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

considers conflict unacceptably with the proper performance

of the AFPC Commissioner's duties; or

(d) the AFPC Commissioner is absent, except on leave of

absence, to an extent that the Minister considers excessive.

(2) Subject to subsections (3) and (4), the Governor-General may

terminate the appointment of an AFPC Commissioner for

misbehaviour or physical or mental incapacity.

(3) If an AFPC Commissioner:

(a) is an eligible employee for the purposes of the

Superannuation Act 1976; and

(b) has not reached his or her maximum retiring age within the

meaning of that Act;

his or her appointment cannot be terminated for physical or mental

incapacity unless the CSS Board has given a certificate under

section 54C of that Act.

(4) If an AFPC Commissioner:

(a) is a member of the superannuation scheme established by

deed under the Superannuation Act 1990; and

(b) is under 60 years of age;

his or her appointment cannot be terminated for physical or mental

incapacity unless the PSS Board has given a certificate under

section 13 of that Act.

7ZE Other terms and conditions

An AFPC Commissioner holds office on the terms and conditions

(if any) in relation to matters not covered by this Act that are

determined by the Minister.

7ZF Acting AFPC Commissioners

(1) The Minister may appoint a person who meets the requirement set

out in subsection 7Y(3) to act as an AFPC Commissioner:

(a) during a vacancy in the office of an AFPC Commissioner

(whether or not an appointment has previously been made to

the office); or

(b) during any period, or during all periods, when an AFPC

Commissioner is acting as AFPC chair, is absent from duty

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 37

or from Australia, or is, for any reason, unable to perform the

duties of the office.

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

(d) the occasion to act had not arisen or had ceased.

Division 3--AFPC Secretariat

Subdivision A--Establishment and function

7ZG Establishment

(1) The AFPC Secretariat is established by this section.

(2) The AFPC Secretariat is to consist of:

(a) the Director of the Secretariat; and

(b) the staff of the Secretariat.

7ZH Function

The function of the AFPC Secretariat is to assist the AFPC in the

performance of the AFPC's functions.

Subdivision B--Operation of the AFPC Secretariat

7ZI AFPC Chair may give directions

(1) The AFPC Chair may give directions to the Director of the

Secretariat about the performance of the function of the AFPC

Secretariat.

(2) The Director of the Secretariat must ensure that a direction given

under subsection (1) is complied with.

(3) To avoid doubt, the AFPC Chair must not give directions under

subsection (1) in relation to the performance of functions, or

Schedule 1 Main amendments

38 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

exercise of powers, under the Financial Management and

Accountability Act 1997 or the Public Service Act 1999.

7ZJ Annual report

The Director of the Secretariat must, as soon as practicable after

the end of each financial year, give to the Minister a report on the

operation of the AFPC Secretariat for presentation to the

Parliament.

Subdivision C--The Director of the Secretariat

7ZK Appointment

(1) The Director of the Secretariat is to be appointed by the Minister

by written instrument.

(2) The Director of the Secretariat holds office on a full-time basis for

the period specified in his or her instrument of appointment. The

period must not exceed 5 years.

7ZL Remuneration

(1) The Director of the Secretariat is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the Director of

the Secretariat is to be paid the remuneration that is prescribed.

(2) The Director of the Secretariat is to be paid the allowances that are

prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

7ZM Leave of absence

(1) The Director of the Secretariat has the recreation leave entitlements

that are determined by the Remuneration Tribunal.

(2) The Minister may grant the Director of the Secretariat leave of

absence, other than recreation leave, on the terms and conditions as

to remuneration or otherwise that the Minister determines.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 39

7ZN Engaging in other paid employment

The Director of the Secretariat must not engage in paid

employment outside the duties of his or her office without the

Minister's approval.

7ZO Disclosure of interests

The Director of the Secretariat must give written notice to the

Minister of all interests (financial or otherwise) that the Director of

the Secretariat has or acquires and that could conflict with the

proper performance of his or her duties.

7ZP Resignation

(1) The Director of the Secretariat may resign his or her appointment

by giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the

Minister or, if a later day is specified in the resignation, on that

later day.

7ZQ Termination of appointment

(1) The Minister may terminate the appointment of the Director of the

Secretariat if:

(a) the Director of the Secretariat:

(i)

becomes

bankrupt;

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the Director of the Secretariat fails, without reasonable

excuse, to comply with section 7ZO; or

the Minister considers conflict unacceptably with the proper

performance of the Director of the Secretariat's duties; or

(d) the Director of the Secretariat engages, except with the

Minister's approval, in paid employment outside the duties of

his or her office; or

Schedule 1 Main amendments

40 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(e) the Director of the Secretariat is absent, except on leave of

absence, for 14 consecutive days or for 28 days in any 12

months.

(2) The Minister must terminate the appointment of the Director of the

Secretariat if the Minister is of the opinion that the performance of

the Director of the Secretariat has been unsatisfactory for a

significant period of time.

(3) Subject to subsections (4) and (5), the Minister may terminate the

appointment of the Director of the Secretariat for misbehaviour or

physical or mental incapacity.

(4) If the Director of the Secretariat:

(a) is an eligible employee for the purposes of the

Superannuation Act 1976; and

(b) has not reached his or her maximum retiring age within the

meaning of that Act;

his or her appointment cannot be terminated for physical or mental

incapacity unless the CSS Board has given a certificate under

section 54C of that Act.

(5) If the Director of the Secretariat:

(a) is a member of the superannuation scheme established by

deed under the Superannuation Act 1990; and

(b) is under 60 years of age;

his or her appointment cannot be terminated for physical or mental

incapacity unless the PSS Board has given a certificate under

section 13 of that Act.

7ZR Other terms and conditions

The Director of the Secretariat holds office on the terms and

conditions (if any) in relation to matters not covered by this Act

that are determined by the Minister.

7ZS Acting Director of the Secretariat

(1) The Minister may appoint a person to act as the Director of the

Secretariat:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 41

(a) during a vacancy in the office of the Director of the

Secretariat (whether or not an appointment has previously

been made to the office); or

(b) during any period, or during all periods, when the Director of

the Secretariat is absent from duty or from Australia, or is,

for any reason, unable to perform the duties of the office.

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

(d) the occasion to act had not arisen or had ceased.

Subdivision D--Staff and consultants

7ZT Staff

(1) The staff of the AFPC Secretariat are to be persons engaged under

the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the Director of the Secretariat and the staff of the AFPC

Secretariat together constitute a Statutory Agency; and

(b) the Director of the Secretariat is the Head of that Statutory

Agency.

7ZU Consultants

The Director of the Secretariat may, on behalf of the

Commonwealth, engage persons having suitable qualifications and

experience as consultants to the AFPC or the AFPC Secretariat.

The terms and conditions of the engagement of a person are those

determined by the Director of the Secretariat in writing.

11 Section 33

Repeal the section, substitute:

Schedule 1 Main amendments

42 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

33 Exercise of Commission powers

(1) The Commission may perform a function or exercise a power on

its own initiative.

(2) Despite subsection (1), the Commission must not perform a

function or exercise a power under a provision of this Act on its

own initiative if:

(a) the function is to be performed, or the power exercised, on

application by a specified person or class of persons; and

(b) the function is not also expressed to be able to be performed,

or the power exercised, on the Commission's own initiative.

12 Subsection 36(3)

Repeal the subsection.

13 Section 39

Repeal the section.

14 At the end of Division 2 of Part II

Add:

41A Co-operation with the States by President

The President may invite the heads of State industrial authorities to

meet with the President to exchange information and discuss

matters of mutual interest in relation to workplace relations.

41B Co-operation with the States by Registrar

The Industrial Registrar may invite the principal registrars of State

industrial authorities to meet with the Industrial Registrar to

exchange information and discuss matters of mutual interest in

relation to workplace relations.

15 Subsection 42(3)

Repeal the subsection, substitute:

(3) A party (including an employing authority) may be represented by

counsel, solicitor or agent if:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 43

(a) all parties have given express consent to that representation;

and

(b) the Commission grants leave for the party to be so

represented.

(3A) A party (including an employing authority) may be represented by

counsel, solicitor or agent if:

(a) the party applies to the Commission to be so represented; and

(b) the Commission grants leave for the party to be so

represented.

(3B) In deciding whether or not to grant leave under subsection (3), the

Commission must have regard to the following matters:

(a) whether being represented by counsel, solicitor or agent

would assist the party concerned to bring the best case

possible;

(b) the capacity of the particular counsel, solicitor or agent to

represent the party concerned;

assist the Commission in performing the Commission's

functions under this Act.

(3C) In deciding whether or not to grant leave under subsection (3A),

the Commission must have regard to the following matters:

(a) the matters referred to in paragraphs (3B)(a), (b) and (c);

(b) the complexity of the factual and legal issues relating to the

proceeding;

that the party concerned be represented by counsel, solicitor

or agent.

(3D) An appeal to a Full Bench under section 45 may not be made in

relation to a decision under subsection (3) or (3A) to grant leave or

not to grant leave.

16 At the end of paragraphs 42(7)(a) and (b)

Add "or".

17 At the end of subsection 42(7)

Add:

; or (e) a bargaining agent.

Schedule 1 Main amendments

44 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

18 Subsection 43(1)

Omit "(1)".

19 Subsection 43(2)

Repeal the subsection.

20 After Division 3 of Part II

Insert:

Division 3A--General matters relating to the powers and

procedures of the Commission

Subdivision A--General matters Commission to take into

account

44A Commission to take into account the public interest

(1) In the performance of its functions, the Commission must take into

account the public interest, and for that purpose must have regard

to:

(a) the objects of this Act; and

(b) the state of the national economy and the likely effects on the

national economy of any order that the Commission is

considering, or is proposing to make, with special reference

to likely effects on the level of employment and on inflation.

(2) To the extent that the Commission is performing its functions in

relation to matters arising under the Registration and

Accountability of Organisations Schedule, the Commission must

take into account the public interest, and for that purpose must

have regard to:

(a) Parliament's intention in enacting that Schedule; and

(b) the state of the national economy and the likely effects on the

national economy of any order that the Commission is

considering, or is proposing to make, with special reference

to likely effects on the level of employment and on inflation.

(3) This section does not apply to the performance of a function under

Part VC or Part VI.

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44B Commission to take into account discrimination issues

In the performance of its functions, the Commission must take into

account the following:

(a) the need to apply the principle of equal pay for work of equal

value without discrimination based on sex;

(b) the need to prevent and eliminate discrimination because of,

or for reasons including, race, colour, sex, sexual preference,

age, physical or mental disability, marital status, family

responsibilities, pregnancy, religion, political opinion,

national extraction or social origin.

44C Commission to take account of Racial Discrimination Act, Sex

Discrimination Act, Disability Discrimination Act and

Age Discrimination Act

In the performance of its functions, the Commission must take

account of the principles embodied in the Racial Discrimination

Act 1975, the Sex Discrimination Act 1984, the Disability

Discrimination Act 1992 and the Age Discrimination Act 2004

relating to discrimination in relation to employment.

44D Commission to take account of Family Responsibilities

Convention

(1) In performing its functions, the Commission must take account of

the principles embodied in the Family Responsibilities Convention,

in particular those relating to:

(a) preventing discrimination against workers who have family

responsibilities; and

(b) helping workers to reconcile their employment and family

responsibilities.

(2) This section does not apply to the performance of a function under

Part VC.

44E Safety, health and welfare of employees

(1) In performing its functions, the Commission must take into account

the provisions of any law of a State or Territory relating to the

safety, health and welfare of employees in relation to their

employment.

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46 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(2) This section does not apply to the performance of a function under

Division 2 of Part VIA.

44F Commission to act quickly

The Commission must perform its functions as quickly as

practicable.

44G Commission to avoid technicalities and facilitate fair conduct of

proceedings

The Commission must perform its functions in a way that avoids

unnecessary technicalities and facilitates the fair and practical

conduct of any proceedings under this Act or the Registration and

Accountability of Organisations Schedule.

Subdivision B--Particular powers and procedures of the

Commission

44H Procedure of Commission

(1) In a proceeding under this Act or the Registration and

Accountability of Organisations Schedule:

(a) the procedure of the Commission is, subject to this Act, the

Registration and Accountability of Organisations Schedule

and the Rules of the Commission, within the discretion of the

Commission; and

(b) the Commission is not bound to act in a formal manner and is

not bound by any rules of evidence, but may inform itself on

any matter in such manner as it considers just; and

conscience and the substantial merits of the case, without

regard to technicalities and legal forms.

(2) The Commission may determine the periods that are reasonably

necessary for the fair and adequate presentation of the respective

cases of the parties to the proceeding and require that the cases be

presented within the respective periods.

(3) The Commission may require evidence or argument to be

presented in writing, and may decide the matters on which it will

hear oral evidence or argument.

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44I Particular powers of Commission

(1) The Commission may do any of the following in relation to a

proceeding under this Act or the Registration and Accountability of

Organisations Schedule:

(a) inform itself in any manner that it thinks appropriate;

(b) take evidence on oath or affirmation;

purposes of, procedural matters relating to the proceeding;

(d) vary or revoke an order, direction or decision of the

Commission;

(e) dismiss a matter or part of a matter on the ground:

(i) that the matter, or the part of the matter, is trivial; or

(ii) that further proceedings in relation to the matter are not

necessary or desirable in the public interest;

(f) determine the proceeding in the absence of a person who has

been summoned or served with a notice to appear;

(g) sit at any place;

(h) conduct the proceeding, or any part of the proceeding, in

private;

(i) adjourn the proceeding to any time and place;

(j) refer any matter to an expert and accept the expert's report as

evidence;

(k) direct a member of the Commission to consider a particular

matter that is before the Full Bench and prepare a report for

the Full Bench on that matter;

(l) allow the amendment, on any terms that it thinks appropriate,

of any application or other document relating to the

proceeding;

(m) correct, amend or waive any error, defect or irregularity

whether in substance or form;

(n) summon before it any persons whose presence the

Commission considers would assist in relation to the

proceeding;

(o) compel the production before it of documents and other

things for the purpose of reference to such entries or matters

as relate to the proceeding;

(p)

make

interim

decisions;

Schedule 1 Main amendments

48 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(q)

make a final decision in respect of the matter to which the

proceeding relates.

(2) The Commission may, in writing, authorise a person (including a

member of the Commission) to take evidence on its behalf, with

any limitations as the Commission directs, in relation to the

proceeding, and the person has all the powers of the Commission

to secure:

(a) the attendance of witnesses; and

(b) the production of documents and things; and

(3) The following provisions do not apply to the performance of a

function under Part VC:

(a)

paragraph

(1)(e);

(b)

paragraph

(1)(j);

(c)

paragraph

(1)(k).

(4) The following provisions do not apply to the performance of a

function under Division 2, 3 or 4 of Part VIA:

(a)

paragraph

(1)(a);

(b)

paragraph

(1)(e);

(c)

paragraph

(1)(k);

(d)

paragraph

(1)(p);

(e)

paragraph

(1)(q);

(f)

subsection

(2).

(5) Paragraph (1)(j) does not apply to the performance of a function

under Division 3 of Part VIA.

(6) If a provision of this Act specifies a time or a period in respect of

any matter or thing, the Commission must not extend the time or

the period specified unless this Act expressly permits the

Commission to do so.

(7) If a provision of the Registration and Accountability of

Organisations Schedule specifies a time or a period in respect of

any matter or thing, the Commission must not extend the time or

the period specified unless the Registration and Accountability of

Organisations Schedule expressly permits the Commission to do

so.

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(8) For the purposes of paragraph (1)(d), order does not include an

award or an award-related order.

44J Reference of proceedings to Full Bench

(1) If a proceeding is before a member of the Commission, a party to

the proceeding or the Minister may apply to the member to have

the proceeding dealt with by a Full Bench because the subject

matter of the proceeding is of such importance that, in the public

interest, the proceeding should be dealt with by a Full Bench.

(2) If an application is made under subsection (1) to a member of the

Commission other than the President:

(a) the member must refer the application to the President to be

dealt with; and

(b) the President must confer with the member about whether the

application should be granted.

(3) If the President is of the opinion that the subject matter of the

proceeding is of such importance that, in the public interest, the

proceeding should be dealt with by a Full Bench, the President

must grant the application.

(4) If the President grants an application under subsection (1), the Full

Bench must (subject to subsection (5)) hear and determine the

proceeding to which the application relates.

(5) If the President grants an application under subsection (1), the Full

Bench may do either or both of the following:

(a) have regard to any evidence given, and any arguments

adduced, in the proceeding before the Full Bench began to

deal with it;

(b) refer a part of the proceeding to a member of the

Commission to hear and determine.

(6) The President may, before a Full Bench has been established for

the purpose of dealing with a proceeding under this section,

authorise a member of the Commission to take evidence for the

purposes of the proceeding, and the Full Bench must have regard to

the evidence.

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50 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(7) The President or a Full Bench may, in relation to the exercise of

powers under this section, direct a member of the Commission to

provide a report in relation to a specified matter.

(8) The member must, after making such investigation (if any) as is

necessary, provide a report to the President or the Full Bench, as

required.

(9) In this section:

proceeding includes a part of a proceeding.

44K President may deal with certain proceedings

(1) The President may, whether or not another member of the

Commission has begun to deal with a particular proceeding, decide

to deal with the proceeding.

(2) If the President decides to deal with the proceeding, the President

must:

(a) hear and determine the proceeding; or

(b) refer the proceeding to a Full Bench.

(3) If the President refers an application to a Full Bench, the Full

Bench must (subject to subsection (4)) hear and determine the

proceeding.

(4) If the President refers the proceeding to a Full Bench, the Full

Bench may refer a part of the proceeding to a member of the

Commission to hear and determine.

(5) The President or the Full Bench may, in dealing with the

proceeding, have regard to any evidence given, and any arguments

adduced, in the proceeding before the President or the Full Bench,

as the case may be, began to deal with it.

(6) The President or a Full Bench may, in relation to the exercise of

powers under this section, direct a member of the Commission to

provide a report in relation to a specified matter.

(7) The member must, after making such investigation (if any) as is

necessary, provide a report to the President or a Full Bench, as the

case may be.

(8) In this section:

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proceeding includes a part of a proceeding.

44L Review on application by Minister

(1) The Minister may apply to the President for a review by a Full

Bench of an award or order, or a decision relating to the making of

an award or order, made by a member of the Commission (whether

under this Act, the Registration and Accountability of

Organisations Schedule or otherwise) if it appears to the Minister

that the award, order or decision is contrary to the public interest.

(2) If an application is made to the President under subsection (1), the

President must establish a Full Bench to hear and determine the

application.

(3) The Full Bench must, if in its opinion the matter is of such

importance that, in the public interest, the award, order or decision

should be reviewed, make such review of the award, order or

decision as appears to it to be desirable having regard to the

matters referred to in the application.

(4) Subject to subsection (5) of this section, subsections 45(4) to (8)

apply in relation to a review under this section in the same manner

as they apply in relation to an appeal under section 45.

(5) Subsections 45A(4) to (8) apply in relation to a review under this

section in relation to a matter arising under the Registration and

Accountability of Organisations Schedule in the same manner as

they apply in relation to an appeal under section 45A.

(6) In a review under this section:

(a) the Commission must take such steps as it thinks appropriate

to ensure that each person and organisation bound by the

award or otherwise with an interest in the review is made

aware of the review; and

(b) the Minister may intervene in the proceeding.

(7) Each provision of this Act relating to the performance of the

Commission's functions in relation to awards extends to a review

under this section.

(8) Nothing in this section affects any right of appeal or any power of

a Full Bench under section 45, and an appeal under that section and

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52 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

a review under this section may, if the Full Bench thinks

appropriate, be dealt with together.

(9) Nothing in this section affects any right of appeal or any power of

a Full Bench under section 45A, and an appeal under that section

and a review under this section may, if the Full Bench thinks

appropriate, be dealt with together.

44M Compulsory conferences

(1) For the purpose of the performance of a function, or the exercise of

a power, of the Commission under this Act or the Registration and

Accountability of Organisations Schedule, a member of the

Commission may, on the initiative of the member or on application

made by a party to, or intervener in, the proceeding, direct a person

to attend, at a specified time and place, a conference to be presided

over by a member of the Commission or another person nominated

by the President.

Note: Contravening

direction may be an offence under section 300.

(2) A direction may be given to anyone whose presence at the

conference the member considers would help in the performance of

a function under this Act or the Registration and Accountability of

Organisations Schedule.

(3) The conference must be held in private except to the extent that the

person presiding over the conference directs that it be held in

public.

(4) This section does not apply to the performance of a function under

Part VC.

44N Power to override certain laws affecting public sector

employment

(1) In so far as the performance of its functions under this Act or the

Registration and Accountability of Organisations Schedule

involves public sector employment, the Commission may, where it

considers it proper to do so, make an award or order that is not, or

in its opinion may not be, consistent with a relevant law of the

Commonwealth or of an internal Territory.

(2) In this section:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 53

enactment means an ordinance made under the Northern Territory

(Administration) Act 1910 and continued in force by the Northern

Territory (Self-Government) Act 1978.

relevant law means a law of the Commonwealth or an internal

Territory relating to matters pertaining to the relationship between

employers and employees in public sector employment, other than:

(a)

the

Safety, Rehabilitation and Compensation Act 1988, the

Long Service Leave (Commonwealth Employees) Act 1976,

the Superannuation Act 1976 or the Superannuation Act

1990; or

(b) a prescribed Act or enactment, or prescribed provisions of an

Act or enactment.

(3) This section does not apply to the performance of a function under

Part VIA.

44O State authorities may be restrained from dealing with matter

that is before the Commission

(1) If it appears to a Full Bench that a State industrial authority is

dealing or is about to deal with a matter that is the subject of a

proceeding before the Commission under this Act or the

Registration and Accountability of Organisations Schedule, the

Full Bench may make an order restraining the State industrial

authority from dealing with the matter.

(2) The State industrial authority must, in accordance with the order,

cease dealing or not deal, as the case may be, with the matter.

(3) An order, award, decision or determination of a State industrial

authority made in contravention of the order of a Full Bench under

this section is, to the extent of the contravention, void.

44P Joint sessions of Commission

If:

(a) the President considers that a question is common to 2 or

more proceedings before the Commission; and

(b) the Commission is not constituted by the same person or

persons for the purposes of each proceeding;

Schedule 1 Main amendments

54 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

the President may direct that the Commission constituted by all the

persons who constitute the Commission for the purposes of the

proceedings may take evidence or hear argument, or take evidence

and hear argument, as to the question for the purposes of both or all

of the proceedings.

44Q Revocation and suspension of awards and orders

(1) An organisation, a person interested or the Minister may apply to

the President, and a member of the Commission or a Registrar may

refer a matter to the President, for action by a Full Bench under this

section.

(2) If an application is made to the President under subsection (1), the

President must establish a Full Bench to hear and determine the

application.

(3) If a matter is referred to the President under subsection (1), the

President may establish a Full Bench to hear and determine the

matter.

(4) If it appears to the Full Bench:

(a) that an organisation has contravened this Act, the

Registration and Accountability of Organisations Schedule or

an award or order of the Commission; or

(b) that a substantial number of the members of an organisation

refuse to accept employment either at all or in accordance

with existing awards or orders; or

suspended or revoked in whole or part;

the Full Bench may, subject to such conditions as it thinks

appropriate, make an order revoking, or suspending for such period

as it thinks appropriate, the award or order or any of the terms of

the award or an order.

(5) The Full Bench may also make such other orders as it thinks

appropriate in relation to the operation of:

(a) if the Full Bench revokes or suspends an award or order on a

ground referred to in paragraph (4)(a) or (b)--any other

award or order that binds the organisation; or

(b) in any other case--any other award or order that applies in

relation to the employment of:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 55

(i) members of an organisation that is bound by the

revoked or suspended award or order; or

(ii) persons eligible to be members of such an organisation.

(6) The revocation or suspension of all or any of the terms of an award

or order may be expressed to apply only in relation to:

(a) a particular organisation or person bound by the award or

order; or

(b) a particular branch of an organisation; or

(d) a particular locality.

21 Paragraph 45(1)(a)

Repeal the paragraph.

22 Paragraph 45(1)(b)

Omit all the words from and including "Commission, ", substitute

"Commission; and".

23 Paragraph 45(1)(d)

Omit "111(1)(g)", substitute "44I(1)(e)".

24 Paragraph 45(1)(da)

Repeal the paragraph.

25 Paragraphs 45(1)(e) and (eaa)

Repeal the paragraphs.

26 Paragraph 45(1)(eba)

Omit "or certified agreement under section 298Z", substitute "under

section 273".

27 Paragraphs 45(1)(ea) and (eb)

Repeal the paragraphs.

28 Paragraph 45(1)(ed)

Omit "certified agreement", substitute "workplace agreement".

29 Paragraphs 45(3)(ab) and (ac)

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56 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Repeal the paragraphs, substitute:

(ab) in the case of an appeal under paragraph (1)(b) against an

order that was made under subsection 125E(1) or subclause

14(1) or 23(1) of Schedule 16--by the person who applied

for the order or any person who made submissions to the

Commission on whether the order should be made; and

(ac) in the case of an appeal under paragraph (1)(c) against a

decision not to make an order under subsection 125E(1) or

subclause 14(1) or 23(1) of Schedule 16--by the person who

applied for the order;

30 Paragraphs 45(3)(ad), (b) and (ba)

Repeal the paragraphs.

31 Subparagraphs 45(3)(baa)(i) and (ii)

Repeal the subparagraphs, substitute:

(i) an employer, employee or organisation bound by the

award; or

32 Paragraph 45(3)(bab)

Repeal the paragraph.

33 Paragraph 45(3)(bb)

Omit "under section 111A", substitute "or workplace agreement".

34 Subsection 45(3) (note)

Repeal the note.

35 Subsection 45(3A)

Repeal the subsection.

36 Subsection 45(3B)

Repeal the subsection.

37 Paragraph 45(7)(d)

Omit "111(1)(g)", substitute "44I(1)(e)".

38 Subsection 45(9)

Repeal the subsection.

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39 Paragraph 45A(1)(b)

Omit all the words after "Commission", substitute "in proceedings

under that Schedule, other than an order made by consent of the parties

to the proceeding; and".

40 Paragraph 45A(1)(d)

Omit "111(1)(g)", substitute "44I(1)(e)".

41 Paragraph 45A(7)(d)

Omit "111(1)(g)", substitute "44I(1)(e)".

42 Subsections 48(1A) and (1B)

Repeal the subsections.

43 Sections 83BB and 83BC

Repeal the sections, substitute:

83BB Functions of the Employment Advocate

(1) The functions of the Employment Advocate are:

(a) to promote the making of workplace agreements; and

(b) to provide assistance and advice to employees and employers

(especially employers in small business) in relation to

workplace agreements; and

employers in relation to workplace agreements; and

(d) to promote better work and management practices through

workplace agreements; and

(e) to accept lodgment of:

(i) workplace agreements; and

(ii) notices about transmission of instruments; and

(f) to provide advice to employees and employers about awards

and the Australian Fair Pay and Conditions Standard; and

(g) to provide aggregated statistical information to the Minister;

and

(h)

authorise

multiple-business agreements in accordance with

the regulations; and

(i) to give to the Minister, in accordance with the regulations,

information and copies of documents; and

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58 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(j) to disclose information that relates to the functions of

workplace inspectors to workplace inspectors in response to

requests from workplace inspectors; and

(k) to disclose information to workplace inspectors that the

Employment Advocate considers on reasonable grounds is

likely to assist the inspectors in performing their functions;

and

(l) to analyse workplace agreements; and

(m) to perform any other function conferred on the Employment

Advocate by this Act, another Act, the regulations or the

Registration and Accountability of Organisations Schedule.

(2) In performing his or her functions relating to workplace

agreements, the Employment Advocate must encourage parties to

agreement-making to take account of the needs of workers in

disadvantaged bargaining positions (for example: women, people

from a non-English speaking background, young people,

apprentices, trainees and outworkers).

(3) In performing his or her functions, the Employment Advocate must

have particular regard to:

(a) assisting workers to balance work and family responsibilities;

and

(b) the need to prevent and eliminate discrimination on the

grounds of race, colour, sex, sexual preference, age, physical

or mental disability, marital status, family responsibilities,

pregnancy, religion, political opinion, national extraction or

social origin.

(4) Regulations made for the purposes of paragraph (1)(i) may require

that documents given to the Minister are given with such deletions

as are necessary to prevent the identification of individuals to

whom the documents refer.

83BC Minister's directions to Employment Advocate

(1) The Minister may, by legislative instrument, give directions

specifying the manner in which the Employment Advocate must

exercise or perform the powers or functions of the Employment

Advocate.

(2) The directions must not be about a particular workplace agreement.

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(3) The Employment Advocate must comply with the directions.

44 Subsection 83BE(2)

Omit "under Part VID relating to the approval of AWAs and ancillary

documents", substitute "relating to the authorisation of

multiple-business agreements".

45 Subsection 83BE(3)

Repeal the subsection.

46 Division 2 of Part IVA

Repeal the Division.

47 Section 83BS

Repeal the section, substitute:

83BS Identity of parties to AWAs not to be disclosed

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information is protected information; and

information will identify another person as being, or having

been, a party to an AWA; and

(d) the disclosure is not made by the discloser in the course of

performing functions or duties as a workplace agreement

official; and

(e) the disclosure is not required or permitted by this Act, by

another Act, by regulations made for the purposes of another

provision of this Act or by regulations made for the purposes

of another Act; and

(f) the person whose identity is disclosed has not, in writing,

authorised the disclosure.

Penalty: Imprisonment for 6 months.

(2) In this section:

protected information, in relation to a person, means information

that the person acquired:

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60 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(a) in the course of performing functions or duties, or exercising

powers, as a workplace agreement official; or

(b) from a workplace agreement official who acquired the

information as mentioned in paragraph (a).

workplace agreement official means:

(a) the Employment Advocate; or

(b) a delegate of the Employment Advocate; or

under section 83BD.

48 Section 83BT

Omit "AWAs or ancillary documents", substitute "workplace

agreements".

49 Part V (heading)

Repeal the heading, substitute:

Part V--Workplace inspectors

50 Subsection 84(1)

Before "inspectors", insert "workplace".

51 Subsection 84(2)

Repeal the subsection, substitute:

(2) The Minister may, by instrument, appoint as a workplace

inspector:

(a) a person who has been appointed, or who is employed, by the

Commonwealth; or

(b) a person, other than a person mentioned in paragraph (a).

52 Subsection 84(3)

Repeal the subsection, substitute:

(3) A person appointed under paragraph (2)(a) is appointed for the

period specified in regulations made for the purposes of this

subsection.

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(3A) A person appointed under paragraph (2)(b) is appointed for the

period specified in the person's instrument of appointment, which

must not be longer than the period specified in regulations made

for the purposes of this subsection.

53 Subsection 84(4)

Omit "an inspector has such powers and functions in relation to the

observance of this Act, awards and certified agreements as are

conferred by this Act", substitute "a workplace inspector has the powers

and functions conferred on a workplace inspector by this Act or by the

regulations or by another Act".

54 Subsection 84(4A)

Omit "an inspector has such powers and functions in relation to the

observance of this Act, awards and certified agreements as are

conferred on an inspector by this Act and", substitute "a workplace

inspector has only such of the powers and functions mentioned in

subsection (4) as are".

55 Subsection 84(5)

Omit "by notice published in the Gazette", substitute "by legislative

instrument".

56 Subsection 84(6)

Omit "An inspector shall", substitute "A workplace inspector must".

57 Subsection 85(2)

Omit "shall", substitute "must".

58 At the end of section 85

Add:

(3) A person commits an offence if:

(a) the person ceases to be a workplace inspector; and

(b) the person does not return the person's identity card to the

Secretary of the Department within 14 days of so ceasing.

Penalty: 1 penalty unit.

(4) Subsection (3) is an offence of strict liability.

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62 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Note: For

strict liability, see section 6.1 of the Criminal Code.

59 Subsection 86(1)

Repeal the subsection, substitute:

Purpose for which powers of inspectors can be exercised

(1) The powers of a workplace inspector under this section may be

exercised:

(a) for the purpose of determining whether any of the following

are being, or have been, observed:

(i)

workplace

agreements;

(ii)

awards;

(iii) the Australian Fair Pay and Conditions Standard;

(iv) minimum entitlements and orders under Part VIA;

(v) the requirements of this Act (other than section 541) and

the regulations; or

(b) for the purposes of a provision of the regulations that confers

powers or functions on inspectors.

Note:

Workplace determinations are treated for the purposes of the Act as if

they were collective agreements (see section 113F). Undertakings are

treated the same way (see section 103M). This means that inspectors

also have powers in relation to those instruments.

60 Subparagraph 86(1A)(a)(i)

Omit "an award or certified agreement", substitute "an instrument or

entitlement mentioned in subparagraphs (1)(a)(i) to (iv)".

61 Subparagraph 86(1A)(b)(iii)

Omit "any employee", substitute "any person".

62 At the end of paragraph 86(1A)(b)

Add:

(vi) to require a person to tell the inspector who has custody

of a document; and

63 Paragraph 86(1A)(c)

Omit "to the inspector a document relevant to the purpose set out in

subsection (1)", substitute "a document to the inspector".

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64 At the end of subsection 86(1A)

Add:

Note:

Contravening a requirement under subparagraph (b)(iv) or

paragraph (c) may be an offence under section 305.

65 Subsection 86(4B)

Omit "paragraph (1A)(c)", substitute "this section".

66 Subsection 86(4C)

Omit "paragraph (1A)(c)", substitute "this section".

67 Subsections 86(6) and (7)

Repeal the subsections, substitute:

In Australia's exclusive economic zone

(6) Subsection (1A) extends to premises, and places of business, that:

(a) are in Australia's exclusive economic zone; and

(b) are owned or occupied by an Australian employer.

This subsection has effect subject to Australia's obligations under

international law concerning jurisdiction over ships that fly the flag

of a foreign country and aircraft registered under the law of a

foreign country.

On Australia's continental shelf outside exclusive economic zone

(7) Subsection (1A) also extends to premises, and places of business,

that:

(a) are outside the outer limits of Australia's exclusive economic

zone, but in, on or over a part of Australia's continental shelf

that is prescribed by the regulations for the purposes of this

subsection; and

(b) are connected with the exploration of the continental shelf or

the exploitation of its natural resources; and

for that part.

Note:

The regulations may prescribe different requirements relating to

different parts of Australia's continental shelf. The regulations may

need to do so to give effect to Australia's international obligations.

68 After section 86

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64 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Insert:

86A Disclosure of information by inspectors

(1) A workplace inspector may disclose information acquired by the

inspector in the course of exercising powers, or performing

functions, as a workplace inspector, if the inspector considers on

reasonable grounds that it is necessary or appropriate to do so in

the course of exercising his or her powers, or performing his or her

functions, as an inspector.

(2) A workplace inspector may disclose information to an officer of

the Department administered by the Minister who administers the

Migration Act 1958 if the inspector considers on reasonable

grounds that the disclosure of the information is likely to assist the

officer in the administration of that Act.

(3) The regulations may authorise workplace inspectors to disclose

information of the prescribed kind, to officers of the

Commonwealth of the prescribed kind, for prescribed purposes.

(4) A workplace inspector may disclose information to an officer of a

State who has powers, duties or functions that relate to the

administration of a workplace relations or other system relating to

terms and conditions, or incidents, of employment, if the inspector

considers on reasonable grounds that the disclosure of the

information is likely to assist the officer in the administration of

that system.

69 Section 87

Repeal the section.

70 Section 88

Repeal the section.

71 Parts VA and VI

Repeal the Parts, substitute:

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Part VA--The Australian Fair Pay and Conditions

Standard

Division 1--Preliminary

89 Purpose of Part

(1) The purpose of this Part is to set out key minimum entitlements of

employment.

(2) The key minimum entitlements relate to the following matters:

(a) basic rates of pay and casual loadings (see Division 2);

(b) maximum ordinary hours of work (see Division 3);

(d) personal leave (see Division 5);

(e) parental leave and related entitlements (see Division 6).

(3) The provisions of Divisions 2 to 6 constitute the Australian Fair

Pay and Conditions Standard.

89A Operation of the Australian Fair Pay and Conditions Standard

(1) The Australian Fair Pay and Conditions Standard provides key

minimum entitlements of employment for the employees to whom

it applies.

(2) The Australian Fair Pay and Conditions Standard prevails over a

workplace agreement or a contract of employment that operates in

relation to an employee to the extent to which, in a particular

respect, the Australian Fair Pay and Conditions Standard provides

a more favourable outcome for the employee.

(3) The regulations may prescribe:

(a) what a particular respect is or is not for the purposes of

subsection (2); or

(b) the circumstances in which the Australian Fair Pay and

Conditions Standard provides or does not provide a more

favourable outcome in a particular respect.

Example 1: The way in which particular amounts of annual leave are accrued

could be prescribed as a particular respect under paragraph (3)(a).

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66 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Example 2: Both the Standard and a workplace agreement require an employee to

attest to certain matters in a statutory declaration made for the

purposes of maternity leave. The matters required by the agreement

are different in some respects from those set out in the Standard.

Regulations made for the purposes of paragraph (3)(b) could prescribe

the matters to be attested in a statutory declaration as a circumstance

in which the Standard is not taken to provide a more favourable

outcome.

89B Australian Fair Pay and Conditions Standard cannot be

excluded

A term of a workplace agreement or a contract has no effect to the

extent to which it purports to exclude the Australian Fair Pay and

Conditions Standard or any part of it.

89C This Part does not apply in relation to prescribed employees in

Australia

(1) This Part does not apply in relation to:

(a) an employee in Australia who is prescribed by the

regulations as an employee in relation to whom this Part does

not apply; or

(b) the employee's employer.

Note 1:

In this context, Australia includes the Territory of Christmas Island,

the Territory of Cocos (Keeling) Islands and the coastal sea. See

section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

Note 2:

The regulations may prescribe the employee by reference to a class.

See subsection 13(3) of the Legislative Instruments Act 2003.

(2) Before the Governor-General makes regulations prescribing an

employee as an employee in relation to whom this Part does not

apply, the Minister must be satisfied that this Part should not apply

to the employee because there is not a sufficient connection

between the employee's employment and Australia.

89D Extraterritorial extension

(1) This Part, and the rest of this Act so far as it relates to this Part,

extend:

(a) to an employee outside Australia who meets any of the

conditions in this section; and

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(b) to the employee's employer (whether the employer is in or

outside Australia); and

employee (whether they are in or outside Australia).

Note: In

this

context,

Australia includes the Territory of Christmas Island,

the Territory of Cocos (Keeling) Islands and the coastal sea. See

section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

In Australia's exclusive economic zone

(2) One condition is that the employee is in Australia's exclusive

economic zone and either:

(a) is an employee of an Australian employer and is not

prescribed by the regulations as an employee to whom this

subsection does not apply; or

(b) is an employee prescribed by the regulations as an employee

to whom this subsection applies.

Note:

The regulations may prescribe the employee by reference to a class.

See subsection 13(3) of the Legislative Instruments Act 2003.

On Australia's continental shelf outside exclusive economic zone

(3) Another condition is that the employee:

(a) is outside the outer limits of Australia's exclusive economic

zone, but is in, on or over a part of Australia's continental

shelf that is prescribed by the regulations for the purposes of

this subsection, in connection with the exploration of the

continental shelf or the exploitation of its natural resources;

and

(b) meets the requirements that are prescribed by the regulations

for that part.

Note:

The regulations may prescribe different requirements relating to

different parts of Australia's continental shelf. The regulations may

need to do so to give effect to Australia's international obligations.

Outside Australia's exclusive economic zone and continental shelf

(4) Another condition is that the employee:

(a) is neither in Australia's exclusive economic zone nor in, on

or over a part of Australia's continental shelf described in

paragraph (3)(a); and

(b) is an employee of an Australian employer; and

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68 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

agreement that binds the employer too; and

(d) is not prescribed by the regulations as an employee to whom

this subsection does not apply.

(5) Another condition is that the employee:

(a) is neither in Australia's exclusive economic zone nor in, on

or over a part of Australia's continental shelf described in

paragraph (3)(a); and

(b) is an Australian-based employee of an employer that is not an

Australian employer; and

too; and

(d) is not prescribed by the regulations as an employee to whom

this subsection does not apply.

Definition

(6) In this section:

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

89E Model dispute resolution process

The model dispute resolution process applies to a dispute about

entitlements under Divisions 3 to 6.

Note:

The model dispute resolution process is set out in Part VIIA.

Division 2--Wages

Subdivision A--Preliminary

90 AFPC's wage-setting parameters etc.

In exercising any of its powers under this Division, the AFPC must

act in accordance with section 7J (AFPC's wage-setting

parameters).

Note 1:

Any additional considerations or limitations on the exercise of the

AFPC's powers are set out in the various sections of this Division

(including sections 90A and 90ZR).

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Note 2:

The AFPC must ensure that APCSs do not (after 3 years) continue to

contain coverage rules that are described by reference to State or

Territory boundaries--see section 90ZB.

90A AFPC to have regard to recommendations of Award Review

Taskforce

In exercising any of its powers under this Division, the AFPC is to

have regard to any relevant recommendations made by the Award

Review Taskforce.

90B Definitions

In this Division:

APCS means a preserved APCS or a new APCS.

Note:

APCS is short for Australian Pay and Classification Scale.

APCS piece rate employee means an employee in relation to whom

the following paragraphs are satisfied:

(a) the employee's employment is covered by an APCS;

(b) the rate provisions of the APCS determine one or more basic

piece rates of pay that apply to the employment of the

employee.

basic periodic rate of pay means a rate of pay for a period worked

(however the rate is described) that does not include

incentive-based payments and bonuses, loadings, monetary

allowances, penalty rates or any other similar separately

identifiable entitlements. The meaning of basic periodic rate of

pay is also affected by section 90ZF.

Note:

Most of the kinds of entitlement excluded from this definition are

allowable award matters (see section 116).

basic piece rate of pay means a piece rate of pay, other than a

piece rate of pay that is payable, as an incentive-based payment or

bonus, in addition to a basic periodic rate of pay.

Note:

Incentive-based payments and bonuses are allowable award matters.

casual loading: the meaning of casual loading is affected by

section 90ZF.

casual loading provisions has the meaning given by section 90C.

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70 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

classification has the meaning given by section 90D.

coverage provisions means:

(a) for a pre-reform wage instrument--all provisions (whether of

that instrument or of another instrument or law), as in force

on the reform comparison day, that would have affected the

determination of whether the employment of any particular

employee was covered by the instrument on that day; or

(b) for an APCS--provisions of the APCS that determine

whether the employment of a particular employee is covered

by the APCS.

Note:

For a preserved APCS, the coverage provisions will (at least initially)

be the coverage provisions for the pre-reform wage instrument from

which the APCS is derived (see paragraph 90ZD(1)(f)).

covered: for when the employment of a particular employee is

covered by a particular APCS, see sections 90Z and 90ZA.

current circumstances of employment, in relation to an employee,

includes any current circumstance of or relating to the employee's

employment.

default casual loading percentage has the meaning given by

subsection 90I(1).

derived from: for when a preserved APCS is derived from a

particular pre-reform wage instrument, see subsection 90ZD(2).

employee with a disability means an employee who is qualified for

a disability support pension as set out in section 94 or 95 of the

Social Security Act 1991, or who would be so qualified but for

paragraph 94(1)(e) or 95(1)(c) of that Act.

FMW for an employee: for when there is an FMW for an

employee, see section 90P.

Note:

FMW is short for Federal Minimum Wage.

junior employee means an employee who is under the age of 21.

new APCS has the meaning given by subsection 90ZJ(1).

piece rate of pay means a rate of pay that is expressed as a rate for

a quantifiable output or task (as opposed to being expressed as a

rate for a period worked).

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Note:

The following are examples of piece rates of pay:

(a)

a rate of pay calculated by reference to number of articles

produced;

(b)

a rate of pay calculated by reference to number of kilometres

travelled;

(c)

a rate of pay calculated by reference to number of articles

delivered;

(d)

a rate of pay calculated by reference to number of articles sold;

(e)

a rate of pay calculated by reference to number of tasks

performed.

pre-reform federal wage instrument means:

(a) an award (as defined in subsection 4(1) of this Act as in force

immediately before the reform commencement) as in force

immediately before the reform commencement, but not

including:

(i) an order under section 120A of this Act as then in force;

(ii) an award under section 170MX of this Act as then in

force; or

(b) sections 552 and 555 of this Act as in force immediately

before the reform commencement; or

law or provision:

(i) as in force immediately before the reform

commencement; and

(ii) that is specified, or is of a kind specified, in regulations

made for the purposes of this paragraph; or

(d) an instrument made under a law, or a provision of a law, of

the Commonwealth, being an instrument:

(i) as in force immediately before the reform

commencement; and

(ii) that is specified, or is of a kind specified, in regulations

made for the purposes of this paragraph.

Note:

For when regulations made for the purpose of paragraph (c) or (d)

may be expressed to take effect, see section 90ZI.

pre-reform non-federal wage instrument means a pre-reform State

wage instrument or a pre-reform Territory wage instrument.

pre-reform State wage instrument means:

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72 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(a) a State award (as defined in subsection 4(1) of this Act as in

force immediately before the reform commencement) as in

force immediately before the reform commencement; or

(b) a law, or a provision of a law, of a State, being a law or

provision:

(i) as in force immediately before the reform

commencement; and

(ii) that entitled employees, or a particular class of

employees, to payment of a particular rate of pay; or

provision:

(i) as in force immediately before the reform

commencement; and

(ii) that is specified, or is of a kind specified, in regulations

made for the purposes of this paragraph; or

(d) an instrument made under a law, or a provision of a law, of a

State, being an instrument:

(i) as in force immediately before the reform

commencement; and

(ii) that is specified, or is of a kind specified, in regulations

made for the purposes of this paragraph.

Note:

For when regulations made for the purpose of paragraph (c) or (d)

may be expressed to take effect, see section 90ZI.

pre-reform Territory wage instrument means:

(a) a law, or a provision of a law, of a Territory, being a law or

provision:

(i) as in force immediately before the reform

commencement; and

(ii) that entitled employees, or a particular class of

employees, to payment of a particular rate of pay; or

(b) a law, or a provision of a law, of a Territory, being a law or

provision:

(i) as in force immediately before the reform

commencement; and

(ii) that is specified, or is of a kind specified, in regulations

made for the purposes of this paragraph; or

Territory, being an instrument:

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(i) as in force immediately before the reform

commencement; and

(ii) that is specified, or is of a kind specified, in regulations

made for the purposes of this paragraph.

Note:

For when regulations made for the purpose of paragraph (b) or (c)

may be expressed to take effect, see section 90ZI.

pre-reform wage instrument means a pre-reform federal wage

instrument or a pre-reform non-federal wage instrument.

preserved APCS has the meaning given by subsection 90ZD(1).

pro-rata disability pay method means a method for determining a

rate of pay for employees with a disability, being a method that

determines the rate by reference to the relative capacities of those

employees.

rate provisions has the meaning given by section 90E.

reform comparison day means the day before the day on which the

reform commencement occurs.

special FMW has the meaning given by section 90S.

standard FMW has the meaning given by section 90Q.

90C Meaning of casual loading provisions

(1) For the purposes of this Division, casual loading provisions, of a

pre-reform wage instrument or an APCS, are provisions of the

instrument or APCS that determine a casual loading payable to an

employee, or an employee of a particular classification, in addition

to a basic periodic rate of pay.

(2) The means by which such provisions may determine a casual

loading include the following, or any combination of any of the

following:

(a) direct specification of the loading;

(b) identification of the loading by reference to other provisions

(whether or not of the same instrument or APCS);

provisions (whether or not of the same instrument or APCS),

of a method for calculating the loading.

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74 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(3) Subject to the regulations, a method referred to in subsection (2)

may provide for a person or body to determine a loading in a

particular way. For the purposes of this Division, a loading

determined by the person or body in that way is taken to be a

loading determined by the provisions that specify or identify the

method.

90D Meaning of classification

(1) For the purposes of this Division, a classification of employees is a

classification or category of employees, however described in the

pre-reform wage instrument or APCS concerned.

(2) A classification or category of employees may be described by

reference to matters including (but not limited to) any of the

following, or any combination of any of the following:

(a) the nature of work performed by employees;

(b) the skills or qualifications or employees;

(d) whether employees are junior employees, or a particular class

of junior employees;

(e) whether employees are employees with a disability, or are a

particular class of employees with a disability;

(f) whether employees are employees to whom training

arrangements, or are a particular class of employees to whom

training arrangements, apply.

90E Meaning of rate provisions

(1) For the purposes of this Division, rate provisions, of a pre-reform

wage instrument or an APCS, are provisions of the instrument or

APCS that determine a basic periodic rate of pay, or basic piece

rates of pay, payable to an employee, or an employee of a

particular classification.

(2) The means by which such provisions may determine a basic

periodic rate of pay, or a basic piece rate of pay, include the

following, or any combination of any of the following:

(a) direct specification of a rate;

(b) identification of a rate by reference to other provisions

(whether or not of the same instrument or APCS);

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provisions (whether or not of the same instrument or APCS),

of a method for calculating a rate.

(3) Subject to the regulations, a method referred to in subsection (2)

may provide for a person or body to determine a rate in a particular

way. For the purposes of this Division, a rate determined by the

person or body in that way is taken to be a rate determined by the

provisions that specify or identify the method.

Subdivision B--Guarantee of basic rates of pay

90F The guarantee

Guarantee of APCS basic periodic rates of pay

(1)

If:

(a) the employment of an employee is covered by an APCS; and

(b) the employee is not an APCS piece rate employee;

the employee must be paid a basic periodic rate of pay for each

hour worked (pro-rated for parts of hours worked) that is at least

equal to the basic periodic rate of pay (the guaranteed basic

periodic rate of pay) that is payable to the employee under the

APCS.

Note:

For provisions affecting what hours count as hours worked for this

subsection, see section 90G.

Guarantee of APCS piece rates of pay

(2)

If:

(a) the employment of an employee is covered by an APCS; and

(b) the employee is an APCS piece rate employee;

the employee must be paid basic piece rates of pay for his or her

work that are at least equal to the basic piece rates of pay (the

guaranteed basic piece rates of pay) that are payable to the

employee under the APCS.

Guarantee of standard FMW

(3)

If:

(a) the employment of an employee is not covered by an APCS;

and

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76 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) the employee is not a junior employee, an employee with a

disability, or an employee to whom a training arrangement

applies;

the employee must be paid a basic periodic rate of pay for each

hour worked (pro-rated for parts of hours worked) that is at least

equal to the standard FMW (the guaranteed basic periodic rate of

pay).

Note:

For provisions affecting what hours count as hours worked for this

subsection, see section 90G.

Guarantee of special FMW

(4)

If:

(a) the employment of an employee is not covered by an APCS;

and

(b) the employee is a junior employee, an employee with a

disability, or an employee to whom a training arrangement

applies; and

the employee must be paid a basic periodic rate of pay for each

hour worked (pro-rated for parts of hours worked) that is at least

equal to that special FMW (the guaranteed basic periodic rate of

pay).

Note:

For provisions affecting what hours count as hours worked for this

subsection, see section 90G.

90G Provisions affecting what hours count as hours worked

Hours worked generally means hours required to be worked

(1) Subject to subsection (2), for the purpose of subsections 90F(1), (3)

and (4), a reference to an hour (or part of an hour) worked by an

employee is a reference to an hour (or part of an hour) that the

employee worked and that he or she was required to work.

Hours worked includes hours that would have been worked on

public holidays (but not for casual employees)

(2) For the purpose of the application of subsection 90F(1), (3) or (4)

in relation to an employee who is not a causal employee, a

reference to an hour (or part of an hour) worked includes a

reference to an hour (or part of an hour) that would have been

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worked by the employee on a particular day, had it not been a

public holiday.

(3) For the purpose of subsection (2), a public holiday is a day

declared by or under a law of a State or Territory to be observed

generally within the State or Territory, or a region of that State or

Territory, as a public holiday by people who work in that State,

Territory or region, other than:

(a) a union picnic day; or

(b) a day, or kind of day, that is excluded by regulations made

for the purposes of this paragraph from counting as a public

holiday.

An APCS may determine that hours attending off-the-job training

count as hours worked

(4) If an APCS includes provisions that determine, in relation to

employees to whom training arrangements apply, whether hours

attending off-the-job training (including hours attending an

educational institution) count as hours for which a basic periodic

rate of pay is payable, those provisions have effect for the purposes

of subsection 90F(1).

Hours worked do not include periods of industrial action during

which section 114 prohibits payment

(5) For the purpose of subsections 90F(1), (3) and (4), a reference to

an hour (or part of an hour) worked by an employee does not

include a reference to any period in relation to which the employer

is prohibited by section 114 from making a payment to the

employee.

Subdivision C--Guarantee of casual loadings

90H The guarantee

(1) This section applies to a casual employee for whom, under

section 90F, there is a guaranteed basic periodic rate of pay, other

than a casual employee in relation to whom the following

paragraphs are satisfied:

(a) subsection 90F(1) applies to the employee;

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78 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) the APCS that covers the employment of the employee does

not contain casual loading provisions under which a casual

loading is payable to the employee;

agreement or an AWA.

(2) The casual employee must be paid, in addition to his or her actual

basic periodic rate of pay, a casual loading that is at least equal to

the guaranteed casual loading percentage of that actual basic

periodic rate of pay.

Note:

The employee's actual basic periodic rate of pay should at least equal

the guaranteed basic periodic rate of pay under section 90F.

(3)

The

guaranteed casual loading percentage is:

(a) if the guaranteed basic periodic rate of pay for the employee

under section 90F is a basic periodic rate of pay payable

under an APCS, and the employee's employment is not

covered by a collective agreement or an AWA--the

percentage that is the casual loading payable to the employee

under casual loading provisions of the APCS; or

(b) if the guaranteed basic periodic rate of pay for the employee

under section 90F is a basic periodic rate of pay payable

under an APCS, and the employee's employment is covered

by a collective agreement or an AWA--the default casual

loading percentage (regardless of what casual loading, if any,

might otherwise be payable under casual loading provisions

of the APCS); or

the employee--the default casual loading percentage.

90I Default casual loading percentage

(1)

The

default casual loading percentage is 20%, subject to the

power of the AFPC to adjust the percentage.

(2) Any adjustment of the default casual loading percentage must be

such that the adjusted rate is still expressed as a percentage.

90J Adjustment of default casual loading percentage

(1) The AFPC may adjust the default casual loading percentage.

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(2) The power to adjust the default casual loading percentage is subject

to:

(a) sections 90 and 90A; and

(b) subsection 90I(2); and

(d) section 90N; and

(e)

section

90ZR.

90K Only one default casual loading percentage

The AFPC must ensure that there is only ever one default casual

loading percentage at any one time.

Subdivision D--Guarantee against reductions below

pre-reform commencement rates

90L The guarantee where only basic periodic rates of pay are

involved

(1) This section applies if:

(a) the AFPC proposes to exercise any of the following powers

(subject to subsection (4)):

(i) adjusting the standard FMW;

(ii) adjusting a preserved APCS;

(iii) determining or adjusting a new APCS;

(iv) revoking a preserved or new APCS; and

(b)

immediately after the exercise of the power takes effect, there

will, under section 90F, be a guaranteed basic periodic rate of

pay (the resulting guaranteed basic periodic rate) for a

particular employee affected by the exercise of the power;

and

relevant adjustments mentioned in sections 90ZE to 90ZH

took effect), there would, under section 90F, have been a

guaranteed basic periodic rate of pay (the commencement

guaranteed basic periodic rate) for the employee if the

employee had at that time been in his or her current

circumstances of employment.

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80 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(2) The AFPC must ensure that the result of the exercise of the power,

so far as it affects the employee, is such that the resulting

guaranteed basic periodic rate of pay for the employee will not be

less than the commencement guaranteed basic periodic rate of pay

for the employee.

(3) In applying this section in relation to a particular exercise of a

power by the AFPC, the effect of any other exercise of a power by

the AFPC that takes effect at the same time must also be taken into

account.

(4) This section does not limit the AFPC's power to make APCSs for

the purpose of section 90ZP or 90ZQ, or to adjust APCSs made for

the purpose of either of those sections.

90M The guarantee where basic piece rates of pay are involved

(1) This section applies if:

(a) the AFPC proposes to exercise any of the following powers

(subject to subsection (4)):

(i) adjusting the standard FMW;

(ii) adjusting a preserved APCS;

(iii) determining or adjusting a new APCS;

(iv) revoking a preserved or new APCS; and

(b) either or both of the following subparagraphs apply in

relation to a particular employee who will be affected by the

exercise of the power:

(i)

immediately after the exercise of the power takes effect,

there will, under section 90F, be guaranteed basic piece

rates of pay for the employee;

(ii) immediately after the reform commencement (and after

any relevant adjustments mentioned in sections 90ZE to

90ZH took effect), there would, under section 90F, have

been guaranteed basic piece rates of pay for the

employee if the employee had at that time been in his or

her current circumstances of employment.

(2) The AFPC must exercise the power in a way that it considers will

not result in an employee of average capacity, after the exercise of

the power takes effect, being entitled to less basic pay per week

than he or she would have been entitled to because of this Division

immediately after the reform commencement if the employee had

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at that time been in his or her current circumstances of

employment.

(3) In applying this section in relation to a particular exercise of a

power by the AFPC, the effect of any other exercise of a power by

the AFPC that takes effect at the same time must also be taken into

account.

(4) This section does not limit the AFPC's power to make APCSs for

the purpose of section 90ZP or 90ZQ, or to adjust APCSs made for

the purpose of either of those sections.

90N The guarantee for casual loadings that apply to basic periodic

rates of pay

(1) This section applies in relation to the exercise by the AFPC of any

of the following powers:

(a) adjusting a preserved APCS;

(b) determining or adjusting a new APCS;

(d) adjusting the default casual loading percentage.

(2) The AFPC must ensure that the result of the exercise of the power,

so far as it affects any particular employee to whom this Division

applies (other than an employee who will, after the exercise of the

power, be an APCS piece rate employee), is such that the resulting

guaranteed casual loading percentage for the employee will not be

less than the commencement guaranteed casual loading percentage

for the employee.

(3) For the purposes of subsection (2):

(a)

the

resulting guaranteed casual loading percentage for the

employee is the guaranteed casual loading percentage

referred to in section 90H for the employee, as it will be

immediately after the exercise of the power takes effect; and

(b) subject to subsection (4), the commencement guaranteed

casual loading percentage for the employee is the

percentage that, immediately after the reform commencement

(and after any relevant adjustments mentioned in

sections 90ZE to 90ZH took effect), would have been the

guaranteed casual loading percentage referred to in

section 90H for the employee if the employee had, at that

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82 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

time, been in his or her current circumstances of

employment.

(4)

If:

(a) the employee is a casual employee; and

(b) the resulting guaranteed casual loading percentage is the

default casual loading percentage because of subsection

90H(3);

the commencement guaranteed casual loading percentage for the

employee is taken to be the default casual loading percentage, as it

was immediately after the reform commencement.

(5) In applying this section in relation to a particular exercise of a

power by the AFPC, the effect of any other exercise of a power by

the AFPC that takes effect at the same time must also be taken into

account.

Subdivision E--The guarantee against reductions below

Federal Minimum Wages (FMWs)

90O The guarantee

(1) Subject to subsection (3), when exercising its power to make an

APCS, or to adjust an APCS, the AFPC must ensure that the rate

provisions in the APCS are such that the resulting APCS basic

periodic rate of pay for each employee:

(a) whose employment will be covered by the APCS

immediately after the exercise of the power; and

(b) for whom there will be an FMW immediately after the

exercise of the power; and

after the exercise of the power;

is not less than that FMW.

Note 1:

This section does not apply to rates determined by rate provisions as

initially included in a preserved APCS from a pre-reform wage

instrument as mentioned paragraph 90ZD(1)(a). However, this section

does apply to any subsequent adjustment of those rate provisions, or to

any new APCS that replaces the preserved APCS.

Note 2:

See also section 90ZC (deeming APCS rates to at least equal FMW

rates after first exercise of powers under this Division by the AFPC).

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(2) For the purposes of subsection (1), the resulting APCS basic

periodic rate of pay for an employee is the basic periodic rate of

pay that will be payable to the employee under the APCS

immediately after the exercise of the power by the AFPC takes

effect.

(3) The requirement in subsection (1) does not apply in relation to a

special FMW unless the determination of the special FMW

includes a statement to the effect that the special FMW is a

minimum standard for all APCSs, for a class of APCSs that

includes the APCS or for the particular APCS (see section 90T).

(4) In applying this section in relation to a particular exercise of a

power by the AFPC, the effect of any other exercise of a power by

the AFPC that takes effect at the same time must also be taken into

account.

Subdivision F--Federal Minimum Wages (FMWs)

90P When is there an FMW for an employee?

(1) There is an FMW for an employee if the employee is not:

(a) a junior employee; or

(b) an employee with a disability; or

(d) an APCS piece rate employee.

The FMW for the employee is the standard FMW.

(2) There is an FMW for a junior employee (other than an APCS piece

rate employee) if the AFPC has determined a special FMW that

applies to all junior employees, or to a class of junior employees

that includes the employee. The FMW for the employee is that

special FMW.

(3) There is an FMW for an employee with a disability (other than an

APCS piece rate employee) if the AFPC has determined a special

FMW that applies to all employees with a disability, or to a class of

employees with a disability that includes the employee. The FMW

for the employee is that special FMW.

(4) There is an FMW for an employee to whom a training arrangement

applies (other than an APCS piece rate employee) if the AFPC has

determined a special FMW that applies to all employees to whom

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84 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

training arrangements apply, or to a class of employees to whom

training arrangements apply that includes the employee. The FMW

for the employee is that special FMW.

90Q Standard FMW

(1)

The

standard FMW is $12.75 per hour, subject to the power of the

AFPC to adjust the standard FMW.

(2) Any adjustment of the standard FMW must be such that the

adjusted rate is still expressed as a monetary amount per hour.

90R Adjustment of standard FMW

(1) The AFPC may adjust the standard FMW.

(2) The power to adjust the standard FMW is subject to:

(a) sections 90 and 90A; and

(b)

section

90L;

and

(c)

section

90M;

and

(d) subsection 90Q(2); and

(e)

section

90ZR.

90S Determination of special FMWs

The AFPC may determine a special FMW for any of the

following:

(a) all junior employees, or a class of junior employees;

(b) all employees with a disability, or a class of employees with

a disability;

class of employees to whom training arrangements apply.

90T AFPC to state whether special FMW is a minimum standard

for APCSs

(1) When determining a special FMW, the AFPC must consider

whether the FMW is to operate as a minimum standard for all, or

one or more, APCSs.

(2) If the AFPC considers that the special FMW should operate as a

minimum standard for all APCSs, the AFPC must, in the

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instrument determining the special FMW, include a statement to

that effect.

(3) If the AFPC considers that the special FMW should operate as a

minimum standard for one or more (but not all) APCSs, the AFPC

must, in the instrument determining the special FMW, include a

statement to that effect that identifies those APCSs, whether by

description of a class or identification of the particular APCS or

APCSs.

(4) If the AFPC considers that the special FMW should not operate as

a minimum standard for any APCS, the AFPC must, in the

instrument determining the special FMW, include a statement to

that effect.

90U How a special FMW is to be expressed

(1) A special FMW is to be expressed in a way that produces a

monetary amount per hour.

(2) The means by which a special FMW may be expressed to produce

a monetary amount per hour include:

(a) specification of a monetary amount per hour; or

(b) specification of a method for calculating a monetary amount

per hour.

(3) Any adjustment of a special FMW must be such that the adjusted

special FMW still complies with this section.

90V Adjustment of a special FMW

(1) The AFPC may adjust a special FMW.

(2) The power to adjust a special FMW is subject to:

(a) sections 90 and 90A; and

(b) section 90U; and

(c)

section

90ZR.

(3) The AFPC may adjust statements of a kind mentioned in

section 90T that are included in the instrument determining the

special FMW.

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Subdivision G--Australian Pay and Classification Scales

(APCSs): general provisions

90W What is an APCS?

(1) An APCS is a set of provisions relating to pay and loadings for

particular employees that complies with this Subdivision.

(2) An APCS is either:

(a) a preserved APCS (see section 90ZD); or

(b) a new APCS (see section 90ZJ).

90X What must or may be in an APCS?

(1) An APCS must contain:

(a) either or both of the following:

(i) rate provisions determining basic periodic rates of pay

for employees whose employment is covered by the

APCS;

(ii) rate provisions determining basic piece rates of pay for

employees whose employment is covered by the APCS;

and

(b) if the rate provisions determine different rates of pay for

employees of different classifications--provisions describing

those classifications; and

(c)

coverage

provisions.

(2) An APCS may also contain:

(a) casual loading provisions determining casual loadings for

employees whose employment is covered by the APCS and

for whom there are not basic piece rates of pay; and

(b) if the casual loading provisions determine different casual

loadings for employees of different classifications--

provisions describing those classifications; and

training arrangements apply, whether hours attending

off-the-job training (including hours attending an educational

institution) count as hours for which a basic periodic rate of

pay is payable; and

(d) other incidental provisions.

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(3) Rate provisions or casual loading provisions in an APCS must not

include provisions under which a rate or casual loading provided

for by the APCS will or may be increased by operation of the

provisions and without anyone having to take any other action.

Note:

This does not prevent an APCS, or an adjustment of an APCS, from

being expressed to take effect at a future date. However, it does

prevent an APCS from containing provisions under which (for

example):

(a)

there will be one or more specified increases of a rate or loading

at a specified future time or times; or

(b)

rates of pay or loading are indexed periodically.

(4) The AFPC must not include in a new APCS, or adjust a preserved

or new APCS so that it includes, provisions that:

(a) determine whether an employer who acquires a business

(whether by transfer or in some other way) is covered by the

APCS; or

(b) give a person or body a power to make a decision that affects

whether a person is covered by the APCS; or

rate of pay or loading.

Note:

A preserved APCS may contain provisions referred to in

subsection (4) that were contained in the pre-reform wage instrument

from which the APCS is derived, but the effect of those provisions is

limited by sections 90Z and 90ZE.

(5) An APCS must not contain any provisions that purport to limit the

duration of the APCS.

(6) Subject to the regulations, an APCS must not contain any other

provisions.

90Y How pay rates and loadings are to be expressed in an APCS

(1) Rate provisions in an APCS must be such that basic periodic rates

of pay determined by the provisions are expressed as a monetary

amount per hour.

(2) Rate provisions in an APCS must be such that basic piece rates of

pay determined by the provisions are expressed as a monetary

amount.

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88 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(3) Casual loading provisions in an APCS must be such that casual

loadings determined by the provisions are expressed as percentages

to be applied to basic periodic rates of pay.

(4) The AFPC must ensure these rules are complied with in exercising

its powers to adjust a preserved APCS or make or adjust a new

APCS.

90Z When is employment covered by an APCS?

(1) The question whether the employment of a particular employee is

covered by a particular APCS is to be determined by reference to

the coverage provisions of the APCS.

(2) If coverage provisions of a preserved APCS include provisions that

determine whether an employer who acquires a business (whether

by transfer or in some other way) is covered by the APCS, those

provisions only have effect, for the purpose of determining whether

the employment of a particular employee is covered by the APCS,

in relation to acquisitions of businesses that occurred before the

reform commencement.

(3) If coverage provisions of a preserved APCS include provisions that

give a person or body a power to make a decision that affects

whether a person is covered by the APCS, those provisions only

have effect, for the purpose of determining whether the

employment of a particular employee is covered by the APCS, in

relation to decisions made by the person or body before the reform

commencement.

90ZA What if 2 or more APCSs would otherwise cover an

employee?

(1) If, but for this section, 2 or more APCSs would cover the

employment of the same employee, the employment of the

employee is taken to be covered only by the APCS that prevails.

(2) Apply the following rules to work out which APCS prevails:

(a) the preserved APCS derived from the pre-reform federal

wage instrument referred to in paragraph (b) of the definition

of pre-reform federal wage instrument in section 90B (as

that preserved APCS is adjusted from time to time) prevails

over any other APCS;

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(b) subject to paragraph (a), an APCS made in accordance with

Subdivision L (as that APCS is adjusted from time to time)

prevails over any other APCS;

(i) a new APCS prevails over a preserved APCS; and

(ii) a preserved APCS that is derived from a pre-reform

federal wage instrument prevails over a preserved

APCS that is derived from a pre-reform non-federal

wage instrument;

(d) subject to paragraphs (a), (b) and (c):

(i) as between 2 or more APCSs that are made or adjusted

on different days, the APCS that is made or adjusted on

the more recent day prevails; and

(ii) as between 2 or more APCSs that are made or adjusted

on the same day, the APCS that is more generous to the

employee prevails.

(3) For the purpose of this section, all preserved APCSs are taken to

have been made on the day on which the reform commencement

occurs.

90ZB AFPC to remove coverage rules described by reference to

State or Territory boundaries

(1) The AFPC must (through exercise of its powers to adjust, revoke

and make APCSs) ensure that, by the end of the period of 3 years

starting on the reform commencement, all APCSs comply with the

following rules:

(a) the question whether the employment of a particular

employee is covered by an APCS must not be determined by

reference to State or Territory boundaries;

(b) the question whether a particular employee is entitled to a

particular basic periodic rate of pay, basic piece rate of pay,

or casual loading provided for by an APCS must not be

determined by reference to State or Territory boundaries.

(2) In complying with this obligation, the AFPC must do so in a way

that also complies with the rest of this Division, including (in

particular) sections 90L, 90M, 90N and 90O.

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90 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

90ZC Deeming APCS rates to at least equal FMW rates after first

exercise of AFPC's powers takes effect

(1) This section applies at all times after the first exercise of powers by

the AFPC under this Division takes effect. If the first exercise of

powers involves the exercise of powers taking effect at different

times, this section applies at all times after the earliest of those

times.

(2) Subject to subsection (3), if:

(a) there is an FMW for an employee at a particular time when

this section applies; and

(b) an APCS that covers the employment of the employee

determines a basic periodic rate of pay for the employee at

that time that is less than that FMW;

the basic periodic rate of pay determined by the APCS for the

employee at that time is taken to be equal to the rate that is the

FMW for the employee at that time.

Note:

This subsection ensures that the employee will, under subsection

90F(1), be guaranteed a rate that equals the FMW rate, rather than the

lower APCS rate.

(3) Subsection (2) does not apply in relation to a special FMW and a

particular APCS unless the determination of the special FMW

includes a statement to the effect that the special FMW is a

minimum standard for all APCSs, for a class of APCSs that

includes the APCS or for the particular APCS (see section 90T).

Subdivision H--Australian Pay and Classification Scales:

preserved APCSs

90ZD Deriving preserved APCSs from pre-reform wage instruments

(1) If a pre-reform wage instrument contains rate provisions

determining one or more basic periodic rates of pay, or basic piece

rates of pay, payable to employees, then, from the reform

commencement, there is taken to be a preserved APCS that

includes (subject to this Subdivision):

(a) those rate provisions; and

(b) if those rate provisions determine different basic periodic

rates of pay, or different basic piece rates of pay, for

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employees of different classifications--the provisions of the

instrument that describe those classifications; and

determine casual loadings payable to employees, other than

employees for whom the instrument provides basic piece

rates of pay; and

(d) if the casual loading provisions determine different casual

loadings for employees of different classifications--the

provisions of the instrument that describe those

classifications; and

(e) any provisions of the instrument that determine, in relation to

employees to whom training arrangements apply, whether

hours attending off-the-job training (including hours

attending an educational institution) count as hours for which

a basic periodic rate of pay is payable; and

(f) the coverage provisions for the instrument.

(2) The preserved APCS is derived from the pre-reform wage

instrument.

(3) Subject to the regulations, the preserved APCS is taken not to

include any provision of the pre-reform wage instrument which,

after the adjustments referred to in sections 90ZE to 90ZH take

effect, will not comply with the requirements of sections 90X and

90Y.

Note:

For when regulations made for the purpose of subsection (3) may be

expressed to take effect, see section 90ZI.

(4) The adjustments referred to in sections 90ZE to 90ZH are, subject

to the regulations, to be made in the following order:

(a) adjustments referred to in section 90ZE;

(b) adjustments referred to in section 90ZF;

(d) adjustments referred to in subsection 90ZH(1).

Note:

For when regulations made for the purpose of subsection (4) may be

expressed to take effect, see section 90ZI.

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90ZE Notional adjustment: rates and loadings determined as for

reform comparison day

Rate provisions

(1) Subject to subsections (2) and (3), if rate provisions included in a

preserved APCS as mentioned in section 90ZD would, apart from

this subsection, determine a basic periodic rate of pay otherwise

than by direct specification of the monetary amount of the rate,

then the APCS is taken to be adjusted as necessary immediately

after the reform commencement so that those rate provisions

instead directly specify, as that rate of pay, the rate as determined

by the provisions for the reform comparison day.

(2) Subsection (1) does not apply to the rate provisions included in the

preserved APCS derived from the pre-reform federal wage

instrument referred to in paragraph (b) of the definition of

pre-reform federal wage instrument in section 90B.

(3) If the rate provisions included in a preserved APCS as mentioned

in section 90ZD determine a basic periodic rate of pay by (or by

referring to) a pro-rata disability pay method, subsection (1)

applies to any other rate of pay that the method refers to, but does

not otherwise apply to the method.

(4) If the rate provisions included in a preserved APCS as mentioned

in section 90ZD determine a basic piece rate of pay by (or by

referring to) a method, subsection (1) does not apply to the rate

provisions that determine that rate.

(5) The regulations may provide for other situations in which

subsection (1) is not to apply to rate provisions, or is to apply with

specified modifications.

Note:

For when regulations made for the purpose of subsection (5) may be

expressed to take effect, see section 90ZI.

Casual loading provisions

(6) If casual loading provisions included in a preserved APCS as

mentioned in section 90ZD would, apart from this subsection,

determine a loading otherwise than by direct specification of the

loading, then the APCS is taken to be adjusted as necessary

immediately after the reform commencement so that those loading

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provisions instead directly specify, as that loading, the loading as

determined by the provisions for the reform comparison day.

90ZF Notional adjustment: deducing basic periodic rate of pay and

casual loading from composite rate

If:

(a) a particular rate of pay determined by rate provisions

included in a preserved APCS as mentioned in section 90ZD

would, apart from this subsection, be a basic periodic rate of

pay for a casual employee; and

(b) the rate of pay is, by an amount (the inbuilt casual loading

amount), higher than it would have been if the employee had

not been a casual employee; and

contain casual loading provisions that determine a casual

loading for the employee;

the APCS is taken to be adjusted as necessary immediately after

the reform commencement so that:

(d) the rate provisions instead determine a basic periodic rate of

pay for the employee that equals the rate referred to in

paragraph (a), reduced by the inbuilt casual loading amount;

and

(e) the preserved APCS contains casual loading provisions that

determine a casual loading for the employee that equals the

inbuilt casual loading amount.

90ZG Notional adjustment: how basic periodic rates and loadings

are expressed

(1) If a particular basic periodic rate of pay determined by rate

provisions included in a preserved APCS as mentioned in

section 90ZD would, apart from this subsection, be expressed as a

monetary amount for a period other than an hour (for example, it

would be expressed as a rate for a week), the rate provisions are

taken to be adjusted as necessary immediately after the reform

commencement so that they produce the result that the rate is

expressed as the equivalent monetary hourly rate.

(2) If a particular casual loading determined by casual loading

provisions included in a preserved APCS as mentioned in

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94 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

section 90ZD would, apart from this subsection, be expressed as an

amount of money that is to be added to a basic periodic rate of pay,

the loading provisions are taken to be adjusted as necessary

immediately after the reform commencement so that they produce

the result that the loading is expressed as the equivalent percentage

of the basic periodic rate of pay.

90ZH Regulations dealing with notional adjustments

(1) The regulations may provide for other adjustments (including by

determining methods for working out adjustments) that are to be

taken to be made to a preserved APCS.

(2) The regulations may determine methods for working out the

adjustments mentioned in any of sections 90ZE to 90ZG, or may

otherwise clarify the operation of any aspect of those sections.

Those sections have effect accordingly.

Note:

For when regulations made for the purpose of this section may be

expressed to take effect, see section 90ZI.

90ZI Certain regulations relating to preserved APCSs may take

effect before registration

(1) This section applies to regulations made for the purpose of any of

the following provisions:

(a) paragraph (c) or (d) of the definition of pre-reform federal

wage instrument in section 90B;

(b) paragraph (c) or (d) of the definition of pre-reform State

wage instrument in section 90B;

(d) subsection 90ZD(3) or (4);

(e)

subsection

90ZE(5);

(f)

section

90ZH.

(2) Despite subsection 12(2) of the Legislative Instruments Act 2003,

regulations to which this section applies may be expressed to take

effect from a date before the regulations are registered under that

Act.

(3) If regulations to which this section applies take effect before their

registration under the Legislative Instruments Act 2003, those

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regulations are not to be taken into account in determining the

effect of sections 90F, 90H, 90L, 90M and 90N in relation to

periods of employment before the registration of those regulations.

Subdivision I--Australian Pay and Classification Scales: new

APCSs

90ZJ AFPC may determine new APCSs

(1) The AFPC may determine an APCS (a new APCS).

(2) The power to determine a new APCS is subject to:

(a) sections 90 and 90A; and

(b)

section

90L;

and

(c)

section

90M;

and

(d) section 90N; and

(e) section 90O; and

(f) section 90X; and

(g) section 90Y; and

(h)

Subdivision

and

(i)

section

90ZR.

Subdivision J--Australian Pay and Classification Scales:

duration, adjustment and revocation of APCSs

(preserved or new)

90ZK Duration of APCSs

An APCS continues to have effect indefinitely (subject to

revocation or adjustment by the AFPC under this Subdivision, and

to the rules in section 90ZA about when one APCS prevails over

another).

90ZL Adjustment of APCSs

(1) The AFPC may adjust an APCS.

(2) The power to adjust an APCS is subject to:

(a) sections 90 and 90A; and

(b)

section

90L;

and

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96 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(c)

section

90M;

and

(d) section 90N; and

(e) section 90O; and

(f) section 90X; and

(g) section 90Y; and

(h)

Subdivision

and

(i)

section

90ZR.

90ZM Revocation of APCSs

(1) The AFPC may revoke an APCS.

(2) The power to revoke an APCS is subject to:

(a) sections 90 and 90A; and

(b)

section

90L;

and

(c)

section

90M;

and

(d) section 90N; and

(e)

section

90ZR.

Subdivision K--Adjustments to incorporate 2005 Safety Net

Review etc.

90ZN Adjustments to incorporate 2005 Safety Net Review

(1) This section applies in relation to a preserved APCS if:

(a) the APCS is derived from a pre-reform federal wage

instrument referred to in paragraph (a) of the definition of

pre-reform federal wage instrument in section 90B; and

(b)

either:

(i) in accordance with the Commission's wage fixing

principles that applied at that time, the Commission

(before the reform commencement) adjusted the

instrument in accordance with the Commission's 2004

Safety Net Review decision; or

(ii) the instrument took effect after the Commission's 2004

Safety Net Review decision; and

adjust the instrument in accordance with the Commission's

2005 Safety Net Review decision.

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(2) The AFPC must adjust the rate provisions of the preserved APCS

to increase rates in accordance with the Commission's 2005 Safety

Net Review decision (if applicable).

(3) The adjustment must be made as part of the first exercise of the

powers of the AFPC under this Division.

(4) After the adjustment has been made, section 90L has effect in

relation to an employee as if the adjustment had been made to the

pre-reform federal wage instrument immediately before the reform

commencement.

Note:

This subsection ensures that the post-adjustment rate is the rate against

which compliance with the guarantee in section 90L is measured.

90ZO Regulations may require adjustments to incorporate other

decisions

(1) The regulations may require the AFPC to adjust rate provisions in

a class of preserved APCSs that are derived from non-federal

pre-reform wage instruments to increase rates to take account of

decisions that were made before the reform commencement but

that were not given effect to in those instruments before the reform

commencement.

(2) Regulations made for the purposes of subsection (1) may also

modify how section 90L applies in relation to any APCSs that are

so adjusted.

Subdivision L--Special provisions relating to APCSs for

employees with disabilities and employees to whom

training arrangements apply

90ZP Employees with disabilities

(1) If the AFPC considers that there should be an APCS that applies to

all, or a class of, employees with a disability that determines basic

periodic rates of pay for those employees, the AFPC must

determine an APCS containing rate provisions that determine basic

periodic rates of pay for those employees, and that so determines

those rates as rates specific to employees with disabilities.

Note:

The usual provisions relating to the content of an APCS apply (see

Subdivision G).

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(2) The determination of the APCS must include a statement to the

effect that it is determined for the purpose of this section.

Note:

APCSs determined for the purpose of this section generally prevail

over all other APCSs--see section 90ZA.

(3) The APCS (the special APCS) is taken not to cover the

employment of a particular employee if:

(a) there is another APCS that covers the employment of the

employee (disregarding the effect that paragraph 90ZA(2)(b)

would otherwise have because of the special APCS); and

(b) that other APCS determines a basic periodic rate of pay

specifically for a particular class of employees with

disabilities; and

because the employee is a member of that class; and

(d) that class is the same as, or is a subclass of, the employees

whose employment would otherwise be covered by the

special APCS.

(4) This section does not limit the powers of the AFPC to determine

APCSs, or to revoke or adjust APCSs (including APCSs

determined for the purpose of this section).

90ZQ Employees to whom training arrangements apply

(1) If the AFPC considers that there should be an APCS that applies to

all, or a class of, employees to whom training arrangements apply

that determines basic periodic rates of pay that are payable to those

employees, the AFPC must determine an APCS containing rate

provisions that determine basic periodic rates of pay to be payable

to those employees, and that so determines those rates as rates

specific to employees to whom training arrangements apply.

Note:

The usual provisions relating to the content of an APCS apply (see

Subdivision G).

(2) The determination of the APCS must include a statement to the

effect that it is determined for the purpose of this section.

Note:

APCSs determined for the purpose of this section generally prevail

over all other APCSs--see section 90ZA.

(3) The APCS (the special APCS) is taken not to cover the

employment of a particular employee if:

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(a) there is another APCS that covers the employment of the

employee (disregarding the effect that paragraph 90ZA(2)(b)

would otherwise have because of the special APCS); and

(b) that other APCS determines a basic periodic rate of pay

specifically for a particular class of employees to whom

training arrangements apply; and

because the employee is a member of that class; and

(d) that class is the same as, or is a subclass of, the employees

whose employment would otherwise be covered by the

special APCS.

(4) The AFPC must, as part of the first exercise of the powers of the

AFPC under this Division, consider whether it should determine

APCSs for the purpose of this section. This does not limit the

AFPC's power to consider whether it should determine APCSs for

the purpose of this section at other times.

(5) This section does not limit the powers of the AFPC to determine

APCSs, or to revoke or adjust APCSs (including APCSs

determined for the purpose of this section).

Subdivision M--Miscellaneous

90ZR Anti-discrimination considerations

(1) Without limiting sections 90 and 90A, in exercising any of its

powers under this Division, the AFPC is to:

(a) apply the principle that men and women should receive equal

remuneration for work of equal value; and

(b) have regard to the need to provide pro-rata disability pay

methods for employees with disabilities; and

Discrimination Act 1975, the Sex Discrimination Act 1984,

the Disability Discrimination Act 1992 and the Age

Discrimination Act 2004 relating to discrimination in relation

to employment; and

(d) take account of the principles embodied in the Family

Responsibilities Convention, in particular those relating to:

(i) preventing discrimination against workers who have

family responsibilities; or

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(ii) helping workers to reconcile their employment and

family responsibilities; and

(e) ensure that its decisions do not contain provisions that

discriminate on the grounds of race, colour, sex, sexual

preference, age, physical or mental disability, marital status,

family responsibilities, pregnancy, religion, political opinion,

national extraction or social origin.

(2) For the purposes of the Acts referred to in paragraph (1)(c), and of

paragraph (1)(e), the AFPC does not discriminate against an

employee or employees by (in accordance with this Division)

determining or adjusting rate provisions in an APCS that determine

a basic periodic rate of pay, or by (in accordance with this

Division) determining or adjusting a special FMW, for:

(a) all junior employees, or a class of junior employees; or

(b) all employees with a disability, or a class of employees with

a disability; or

class of employees to whom training arrangements apply.

Division 3--Maximum ordinary hours of work

Subdivision A--Preliminary

91 Employees to whom Division applies

This Division applies to all employees.

91A Definitions

In this Division:

authorised leave means leave, or an absence, whether paid or

unpaid, that is authorised:

(a) by an employee's employer; or

(b) by or under a term or condition of an employee's

employment; or

the Commonwealth, a State or a Territory.

employee means an employee to whom this Division applies under

section 91.

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91B Agreement between employees and employers

Via a workplace agreement

(1) For the purposes of this Division, an employee and an employer

are taken to agree about a particular matter in a particular way if a

provision of a workplace agreement binding the employee and the

employer specifies that the matter is to be dealt with in that way.

Via an award

(2) For the purposes of this Division, an employee and an employer

are taken to agree about a particular matter in a particular way if a

term of an award that binds the employee and the employer

specifies that the matter is to be dealt with in that way.

Via other means

(3) To avoid doubt, nothing in this section prevents employees and

employers agreeing about matters by other means.

Subdivision B--Guarantee of maximum ordinary hours of

work

91C The guarantee

(1) An employee must not be required by an employer to work more

than:

(a) an average of 38 hours per week over the employee's

applicable averaging period; and

(b) reasonable additional hours.

Note 1:

An employee and an employer may agree that the employee is to work

less than an average of 38 hours per week over the employee's

applicable averaging period.

Note 2:

The requirement for an employee to work a particular number of

hours may come, for example, from an award or a workplace

agreement.

Average hours per week worked

(2) For the purposes of this section, if, for a continuous period (the

employment period) of less than 12 months immediately before a

particular time, an employee has been an employee of a particular

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employer, the employee's applicable averaging period at the time

is:

(a) a period that the employee and the employer have agreed to

in writing that is shorter than the employment period and

finishes at the end of the employment period; or

(b) if the employee and the employer have not agreed to a period

in accordance with paragraph (a)--the employment period.

(3) For the purposes of this section, if, for a continuous period (the

employment period) of at least 12 months immediately before a

particular time, an employee has been an employee of a particular

employer, the employee's applicable averaging period at the time

is:

(a) a period that the employee and the employer have agreed to

in writing that is shorter than 12 months and finishes at the

end of the employment period; or

(b) if the employee and the employer have not agreed to a period

in accordance with paragraph (a)--the last 12 months of the

employment period.

(4) For the purposes of calculating the average number of hours that an

employee has worked per week over the employee's applicable

averaging period, the hours worked by the employee are taken to

include any hours of authorised leave taken by the employee

during that period.

Reasonable additional hours

(5) For the purposes of paragraph (1)(b), in determining whether

additional hours that an employee is required by an employer to

work are reasonable additional hours, all relevant factors must be

taken into account. Those factors may include, but are not limited

to, the following:

(a) any risk to the employee's health and safety that might

reasonably be expected to arise if the employee worked the

additional hours;

(b) the employee's personal circumstances (including family

responsibilities);

in relation to which the employee is required to work the

additional hours;

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(d) any notice given by the employer of the requirement that the

employee work the additional hours;

(e) any notice given by the employee of the employee's intention

to refuse to work the additional hours.

Division 4--Annual leave

Subdivision A--Preliminary

92 Employees to whom Division applies

This Division applies to all employees other than casual

employees.

92A Definitions

In this Division:

annual leave has the meaning given by subsection 92D(1).

authorised leave means leave, or an absence, whether paid or

unpaid, that is authorised:

(a) by an employee's employer; or

(b) by or under a term or condition of an employee's

employment; or

the Commonwealth, a State or a Territory.

basic periodic rate of pay has the meaning given by section 90B.

Note:

See also section 93C.

permissible occasion, for unpaid carer's leave, has the meaning

given by subsection 93J(1).

personal/carer's leave has the meaning given by section 93D.

piece rate employee means an employee who is paid a piece rate of

pay within the meaning of section 90B.

sick leave has the meaning given by paragraph 93D(a).

spouse includes the following:

(a) a former spouse;

(b) a de facto spouse;

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93B Agreement between employees and employers

Via a workplace agreement

(1) For the purposes of this Division, an employee and an employer

are taken to agree about a particular matter in a particular way if a

provision of a workplace agreement binding the employee and the

employer specifies that the matter is to be dealt with in that way.

Via other means

(2) To avoid doubt, nothing in this section prevents employees and

employers agreeing about matters by other means.

93C Regulations may prescribe different definitions for piece rate

employees

The regulations may prescribe a different definition of nominal

hours worked for the purpose of the application of this Division in

relation to piece rate employees.

93D Meaning of personal/carer's leave

For the purposes of this Division, personal/carer's leave is:

(a) paid leave (sick leave) taken by an employee because of a

personal illness, or injury, of the employee; or

(b) paid or unpaid leave (carer's leave) taken by an employee to

provide care or support to a member of the employee's

immediate family, or a member of the employee's household,

who requires care or support because of:

(i) a personal illness, or injury, of the member; or

(ii) an unexpected emergency affecting the member.

Subdivision B--Guarantee of paid personal/carer's leave

93E The guarantee

(1) Subject to this Subdivision, an employee is entitled to paid

personal/carer's leave if the employee complies with the notice and

documentation requirements under Subdivision D, to the extent to

which they apply to the employee.

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Note:

The entitlement is subject to the restrictions in sections 93F, 93H and

93I.

(2) An employee is taken not to have been entitled to a period of paid

personal/carer's leave at any time after the start of the period if:

(a)

Subdivision

(i) required the employee to give notice or a document (the

required notice or document) to his or her employer;

and

(ii) allowed the employee to give the required notice or

document to his or her employer after the start of the

leave; and

(b) when the employee started the leave, the employee had not

given his or her employer the required notice or document;

and

document to his or her employer within the period required

under Subdivision D.

Note:

Under Subdivision D, an employee may be required to give his or her

employer notice, a medical certificate or a statutory declaration

(depending on the circumstances).

93F Paid personal/carer's leave--accrual, crediting and

accumulation rules

Entitlement to take credited leave

(1) Subject to this Subdivision, an employee is entitled to take an

amount of paid personal/carer's leave if, under this section, that

amount of leave is credited to the employee.

Accrual

(2) An employee is entitled to accrue an amount of paid

personal/carer's leave, for each completed 4 week period of

continuous service with an employer, of

of the number of

nominal hours worked by the employee for the employer during

that 4 week period.

Example: An employee whose nominal hours worked for an employer each

week over a 12 month period are 38 hours would be entitled to accrue

76 hours paid personal/carer's leave (which would amount to 2 weeks

of paid personal/carer's leave for that employee) over the period.

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(3) Paid personal/carer's leave accrues on a pro-rata basis.

Crediting

(4) Each month, an employer must credit to an employee of the

employer the amount (if any) of paid personal/carer's leave

accrued by the employee since the employer last credited to the

employee an amount of paid personal/carer's leave accrued under

this section.

Accumulation

(5) Paid personal/carer's leave is cumulative.

93G Paid personal/carer's leave--payment rule

If an employee takes paid personal/carer's leave during a period,

the employer must pay the employee for that period the amount the

employee would reasonably have expected to be paid by the

employer if the employee had worked during that period.

93H Paid sick leave--no entitlement if workers' compensation

received

An employee is not entitled to take paid sick leave for a period

during which the employee is absent from work because of a

personal illness, or injury, for which the employee is receiving

compensation payable under a law of the Commonwealth, a State

or a Territory relating to workers' compensation.

93I Paid carer's leave--annual limit

(1) This section applies to an employee if, at a particular time, the

employee:

(a) is employed by an employer; and

(b) for a continuous period of at least 12 months immediately

before the time, has been in continuous service with the

employer.

(2) The employee is not entitled to take paid carer's leave from his or

her employment with the employer at the time if, during the period

of 12 months ending at the time, the employee has already taken a

total amount of paid carer's leave from that employment of

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the nominal hours worked by the employee for the employer

during that period.

Example: An employee whose nominal hours worked for an employer each

week were 38 hours during a 12 month period of continuous service

with the employer would not be entitled to take any paid carer's leave

from his or her employment with the employer if the employee had,

during the period, already taken 76 hours paid carer's leave (which

amounted to 2 weeks paid carer's leave for that employee) from that

employment.

Subdivision C--Guarantee of unpaid carer's leave

93J The guarantee

(1) Subject to this Subdivision, an employee is entitled to a period of

up to 2 days unpaid carer's leave for each occasion (a permissible

occasion) when a member of the employee's immediate family, or

a member of the employee's household, requires care or support

during such a period because of:

(a) a personal illness, or injury, of the member; or

(b) an unexpected emergency affecting the member.

Note 1:

This entitlement extends to casual employees (see section 93).

Note 2:

The entitlement is subject to the restrictions in sections 93K and 93L.

(2) An employee is entitled to unpaid carer's leave only if the

employee complies with the notice and documentation

requirements under Subdivision D, to the extent to which they

apply to the employee.

(3) An employee is taken not to have been entitled to a period of

unpaid carer's leave at any time after the start of the period if:

(a)

Subdivision

(i) required the employee to give notice or a document (the

required notice or document) to his or her employer;

and

(ii) allowed the employee to give the required notice or

document to his or her employer after the start of the

leave; and

(b) when the employee started the leave, the employee had not

given his or her employer the required notice or document;

and

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document to his or her employer within the period required

under Subdivision D.

Note:

Under Subdivision D, an employee may be required to give his or her

employer notice, a medical certificate or a statutory declaration

(depending on the circumstances).

93K Unpaid carer's leave--how taken

An employee who is entitled to a period of unpaid carer's leave

under section 93J for a particular permissible occasion is entitled to

take the unpaid carer's leave as:

(a) a single, unbroken, period of up to 2 days; or

(b) any separate periods to which the employee and his or her

employer agree.

93L Unpaid carer's leave--paid personal leave exhausted

An employee is entitled to unpaid carer's leave for a particular

permissible occasion during a particular period only if the

employee cannot take an amount of any of the following types of

paid leave during the period:

(a) paid personal/carer's leave;

(b) any other authorised leave of the same type as

personal/carer's leave.

Subdivision D--Notice and evidence requirements:

personal/carer's leave

93M Sick leave--notice

(1) To be entitled to sick leave during a period, an employee must give

his or her employer notice in accordance with this section that the

employee is (or will be) absent from his or her employment during

the period because of a personal illness, or injury, of the employee.

(2) The notice must be given to the employer as soon as reasonably

practicable (which may be at a time before or after the sick leave

has started).

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(3) The notice must be to the effect that the employee requires (or

required) leave during the period because of a personal illness, or

injury, of the employee.

(4) This section does not apply to an employee who could not comply

with it because of circumstances beyond the employee's control.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

93N Sick leave--medical certificate

(1) This section applies if an employer requires his or her employee to

give the employer a medical certificate in relation to a period of

sick leave taken (or to be taken) by the employee.

(2) To be entitled to sick leave during the period, the employee must

give the employer a medical certificate from a medical practitioner

in accordance with this section.

(3) The medical certificate must be given to the employer as soon as

reasonably practicable (which may be at a time before or after the

sick leave has started).

(4) The medical certificate must include a statement to the effect that,

in the medical practitioner's opinion, the employee was, is, or will

be unfit for work during the period because of a personal illness or

injury.

(5) This section does not apply to an employee who could not comply

with it because of circumstances beyond the employee's control.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

93O Carer's leave--notice

(1) To be entitled to carer's leave during a period, an employee must

give his or her employer notice in accordance with this section.

(2) The notice must be given to the employer as soon as reasonably

practicable (which may be at a time before or after the carer's leave

has started).

(3) The notice must be to the effect that the employee requires (or

required) leave during the period to provide care or support to a

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member of the employee's immediate family, or a member of the

employee's household, who requires (or required) care or support

because of:

(a) a personal illness, or injury, of the member; or

(b) an unexpected emergency affecting the member.

(4) This section does not apply to an employee who could not comply

with it because of circumstances beyond the employee's control.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

93P Carer's leave--documentary evidence

(1) This section applies if, in relation to carer's leave taken (or to be

taken) by an employee during a period (the relevant period) to

provide care or support to a member of the employee's immediate

family or a member of the employee's household, the employee's

employer requires the employee to give the employer a document

(the required document) of whichever of the following types

applies:

(a) if the care or support is required because of a personal illness,

or injury, of the member--a medical certificate from a

medical practitioner;

(b) if the care or support is required because of an unexpected

emergency affecting the member--a statutory declaration

made by the employee.

(2) To be entitled to carer's leave during the relevant period, the

employee must give the employer the required document in

accordance with this section.

(3) The required document must be given to the employer as soon as

reasonably practicable (which may be at a time before or after the

carer's leave has started).

(4) If the required document is a medical certificate, it must include a

statement to the effect that, in the opinion of the medical

practitioner, the member of the employee's immediate family, or of

the employee's household, who requires (or required) care or

support has, had, or will have a personal illness or injury during the

relevant period.

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(5) If the required document is a statutory declaration, it must include

a statement to the effect that the employee requires (or required)

leave during the period to provide care or support to a member of

the employee's immediate family, or a member of the employee's

household, who requires (or required) care or support, during the

relevant period, because of an unexpected emergency affecting the

member.

(6) This section does not apply to an employee who could not comply

with it because of circumstances beyond the employee's control.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

Subdivision E--Guarantee of compassionate leave

93Q The guarantee

(1) For the purposes of this Division, compassionate leave is paid

leave taken by an employee:

(a) for the purposes of spending time with a person who:

(i) is a member of the employee's immediate family or a

member of the employee's household; and

(ii) has a personal illness, or injury, that poses a serious

threat to his or her life; or

(b) after the death of a member of the employee's immediate

family or a member of the employee's household.

(2) An employee is entitled to a period of 2 days of compassionate

leave if:

(a) a member of the employee's immediate family or a member

of the employee's household:

(i) contracts a personal illness that poses a serious threat to

his or her life; or

(ii) sustains a personal injury that poses a serious threat to

his or her life; or

(iii)

dies;

and

(b) the employee gives his or her employer any evidence that the

employer reasonably requires of the illness, injury or death.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

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93R Taking compassionate leave

An employee who is entitled to a period of compassionate leave

under section 93Q is entitled to take the compassionate leave as:

(a) a single, unbroken period of 2 days; or

(b) 2 separate periods of 1 day each; or

employer agree.

93S Compassionate leave--payment rule

If an employee takes compassionate leave during a period, the

employer must pay the employee for that period the amount the

employee would reasonably have expected to be paid by the

employer if the employee had worked during that period.

Subdivision F--Personal leave: service

93T Paid personal leave--service

(1) A period of paid personal leave does not break an employee's

continuity of service.

(2) Paid personal leave counts as service for all purposes except as

prescribed by the regulations.

(3) In this section:

paid personal leave means paid personal/carer's leave or

compassionate leave.

93U Unpaid carer's leave--service

(1) A period of unpaid carer's leave does not break an employee's

continuity of service.

(2) However, a period of unpaid carer's leave does not otherwise count

as service except:

(a) as expressly provided by or under:

(i) a term or condition of the employee's employment; or

(ii) a law, or an instrument in force under a law, of the

Commonwealth, a State or a Territory; or

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(b) as prescribed by the regulations.

Division 6--Parental leave

Subdivision A--Preliminary

94 Employees to whom Division applies

This Division applies to all employees, other than casual

employees who are not eligible casual employees.

94A Definitions

In this Division:

adoption agency means an agency, office, court or other entity that

is authorised under a law of the Commonwealth, a State, a

Territory or a foreign country to perform functions in relation to

adoption.

adoption leave has the meaning given by subsection 94ZL(1).

authorised leave means leave, or an absence, whether paid or

unpaid, that is authorised:

(a) by an employee's employer; or

(b) by or under a term or condition of an employee's

employment; or

the Commonwealth, a State or a Territory.

continuous service, in relation to a period of an employee's service

with an employer, means service with the employer as an

employee during the whole of the period, including (as a part of the

period) any of the following periods:

(a) a period of authorised leave;

(b) a period (the casual period) during which the employee was

a casual employee, if:

(i) during the casual period, the employee was engaged on

a regular and systematic basis by the employer; and

(ii) during the casual period, the employee had a reasonable

expectation of continuing employment by the employer.

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day of placement: the day of placement of a child with an

employee for an adoption is:

(a) subject to paragraph (b), the earlier of the following days:

(i) the day on which the employee first takes custody of the

child for the adoption;

(ii) the day on which the employee starts any travel that is

reasonably necessary to take custody of the child for the

adoption; or

(b) if the child's adoption by an employee is authorised by an

adoption agency after the child has started living with the

employee (unless the employee has travelled overseas to take

custody of the child for an adoption intended to occur in

Australia)--the day on which the adoption is authorised by

the agency.

de facto spouse, of an employee, means a person of the opposite

sex to the employee who lives with the employee as the

employee's husband or wife on a genuine domestic basis although

not legally married to the employee.

eligible casual employee has the meaning given by section 94B.

eligible child has the meaning given by section 94ZJ.

employee means an employee to whom this Division applies under

section 94.

expected date of birth, of a child of an employee who is or was

pregnant, means:

(a) if, to comply with a requirement under Subdivision C, the

employee has given her employer a medical certificate

stating the expected date of birth of the child or a date that

would be, or would have been, the expected date of birth of

the child--the stated date; or

(b) if the employee could not comply with a requirement

mentioned in paragraph (a) because of circumstances beyond

her control--the date of birth of the child that could

reasonably be expected if the pregnancy were to go to full

term.

long adoption leave has the meaning given by paragraph

94ZL(1)(b).

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long paternity leave has the meaning given by paragraph

94T(1)(b).

maternity leave has the meaning given by subsection 94C(1).

medical certificate means a certificate signed by a medical

practitioner.

medical practitioner means a person registered, or licensed, as a

medical practitioner under a law of a State or Territory that

provides for the registration or licensing of medical practitioners.

ordinary maternity leave has the meaning given by paragraph

94C(1)(b).

paternity leave has the meaning given by subsection 94T(1).

placement, of a child, means:

(a) subject to paragraph (b)--the placement, by an adoption

agency, of the child into the custody of an employee for

adoption; or

(b) if the child's adoption by an employee is authorised by an

adoption agency after the child has started living with the

employee--the authorisation of the adoption by the adoption

agency.

Note:

Day of placement is also defined in this section.

pre-adoption leave has the meaning given by subsection 94ZK(2).

pregnancy-related illness means an illness related to pregnancy.

primary care-giver, of a child, means a person who assumes the

principal role of providing care and attention to the child.

short adoption leave has the meaning given by paragraph

94ZL(1)(a).

short paternity leave has the meaning given by paragraph

94T(1)(a).

special maternity leave has the meaning given by paragraph

94C(1)(a).

spouse includes the following:

(a) a former spouse;

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124 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) a de facto spouse;

94B Meaning of eligible casual employee

(1) For the purposes of this Division, an eligible casual employee is a

casual employee:

(a) who has been engaged by a particular employer on a regular

and systematic basis for a sequence of periods of

employment during a period of at least 12 months; and

(b) who, but for an expected birth or an expected placement of a

child, would have a reasonable expectation of continuing

engagement by the employer on a regular and systematic

basis.

(2) Without limiting subsection (1), for the purposes of this Division, a

casual employee is also an eligible casual employee if:

(a) the employee was engaged by a particular employer on a

regular and systematic basis for a sequence of periods during

a period (the first period of employment) of less than 12

months; and

(b) at the end of the first period of employment, the employee

ceased, on the employer's initiative, to be so engaged by the

employer; and

and systematic basis for a further sequence of periods during

a period (the second period of employment) that started not

more than 3 months after the end of the first period of

employment; and

(d) the combined length of the first period of employment and

the second period of employment is at least 12 months; and

(e) the employee, but for an expected birth or an expected

placement of a child, would have a reasonable expectation of

continuing engagement by the employer on a regular and

systematic basis.

Subdivision B--Guarantee of maternity leave

94C The guarantee

(1) For the purposes of this Division, maternity leave is:

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(a)

unpaid

leave

(special maternity leave) taken by an employee

because:

(i) she is pregnant, and has a pregnancy-related illness; or

(ii) she has been pregnant, and the pregnancy has ended

within 28 weeks before the expected date of birth of the

child otherwise than by the birth of a living child; or

(b) a single, unbroken period of unpaid leave (ordinary

maternity leave) taken in respect of the birth, or the expected

birth, of a child of an employee (other than leave taken as

special maternity leave).

(2) Subject to this Subdivision and Subdivision D, an employee is

entitled to maternity leave if:

(a) she complies with the documentation requirements under

Subdivision C, to the extent to which they apply to her; and

(b) immediately before the expected date of birth of the child:

(i) she has, or will have, completed at least 12 months

continuous service with her employer; or

(ii) she is, or will be, an eligible casual employee.

Note:

Entitlement to maternity leave is subject to the restrictions in

sections 94D and 94E and Subdivision D.

(3) An employee is taken not to have been entitled to a period of

maternity leave at any time after the start of the period if:

(a)

Subdivision

(i) required the employee to give a document (the required

document) to her employer; and

(ii) allowed the employee to give the required document to

her employer after the start of the leave; and

(b) when the employee started the leave, the employee had not

given her employer the required document; and

employer within the period required under Subdivision C.

Note:

Under Subdivision C, an employee may be required to give her

employer a medical certificate, an application or a statutory

declaration (depending on the circumstances).

(4) Subject to this Division, an employee may take special maternity

leave, ordinary maternity leave, or both.

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94D Period of maternity leave

(1) In this section:

related authorised leave, in relation to maternity leave taken (or to

be taken) by an employee, means any of the following types of

authorised leave other than the maternity leave:

(a) authorised leave (other than paid leave under subparagraph

94F(2)(b)(i) or (ii)) taken by the employee because of any of

the following:

(i)

her

pregnancy;

(ii) the birth of the child;

(iii) the end of her pregnancy otherwise than by the birth of

a living child;

(iv) the death of the child;

(b) paternity leave, or any other authorised leave of the same

type as paternity leave, taken by the employee's spouse

because of the birth of the child.

(2) An employee may take a period of maternity leave as part of a

continuous period including any other authorised leave.

(3) The maximum total amount of maternity leave (including special

maternity leave and ordinary maternity leave) to which an

employee is entitled in relation to the birth of a child is 52 weeks,

less an amount equal to the total amount of related authorised leave

taken:

(a) by the employee before or after the maternity leave; and

(b) by the employee's spouse before, during or after the

maternity leave.

Example: Rosa is a pregnant employee entitled to maternity leave. She has taken

2 weeks of special maternity leave, but no other authorised leave.

Rosa intends to take authorised leave because of the birth consisting

of 4 weeks of annual leave and 12 weeks of long service leave, and a

period of ordinary maternity leave.

Rosa's spouse Jim intends to take 1 week of short paternity leave.

The maximum amount of ordinary maternity leave to which Rosa is

entitled is 33 weeks, worked out as follows:

(a)

the maximum entitlement of any employee to maternity leave is

52 weeks;

(b)

the maximum amount of ordinary maternity leave available to

Rosa must be reduced by 2 weeks for her special maternity leave;

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(c)

the maximum amount must also be reduced by 16 weeks for

Rosa's annual leave and long service leave;

(d)

the maximum amount must be further reduced by 1 week for

Jim's short paternity leave.

94E Period of special maternity leave

(1) An employee is not entitled to a period of special maternity leave

longer than the period stated in a medical certificate given to the

employer for the purposes of section 94G.

Note:

Section 94G requires an employee to give her employer a medical

certificate (and other documents) in order to be entitled to special

maternity leave. However, the section does not apply to an employee

who could not comply with the section because of circumstances

beyond her control (see subsection 94G(5)).

(2) In addition, a period of special maternity leave must end before the

employee starts any continuous period of leave including (or

constituted by) ordinary maternity leave.

94F Transfer to a safe job

(1) This section applies to an employee if:

(a) she is entitled to ordinary maternity leave; and

(b) she has already complied with the documentation

requirements under sections 94H and 94I; and

medical practitioner containing a statement to the effect that,

in the medical practitioner's opinion, the employee is fit to

work, but that it is inadvisable for her to continue in her

present position for a stated period because of:

(i) illness, or risks, arising out of her pregnancy; or

(ii) hazards connected with that position.

(2) If this section applies to an employee:

(a) if the employee's employer thinks it to be reasonably

practicable to transfer the employee to a safe job--the

employer must transfer the employee to the safe job, with no

other change to the employee's terms and conditions of

employment; or

(b) if the employee's employer does not think it to be reasonably

practicable to transfer the employee to a safe job:

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128 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(i) the employee may take paid leave immediately for a

period ending at the time mentioned in paragraph (4)(b);

(ii) the employer may require the employee to take paid

leave immediately for a period ending at the time

mentioned in paragraph (4)(b).

(3) If the employee takes paid leave under subparagraph (2)(b)(i) or

(ii) during a period, the employer must pay the employee for that

period the amount the employee would reasonably have expected

to be paid by the employer if the employee had worked during that

period.

(4) If the employee takes paid leave under subparagraph (2)(b)(i) or

(ii):

(a) the entitlement to leave is in addition to any other leave

entitlement she has; and

(b) the period of leave ends at the earliest of whichever of the

following times is applicable:

(i) the end of the period stated in the medical certificate;

(ii) if the employee's pregnancy results in the birth of a

living child--the end of the day before the date of birth;

(iii) if the employee's pregnancy ends otherwise than with

the birth of a living child--the end of the day before the

end of the pregnancy.

(5) To avoid doubt, this section applies whether the employee gives

the medical certificate to the employer because of a request under

subsection 94L(2) or otherwise.

Subdivision C--Maternity leave: documentation

94G Special maternity leave--documentation

Requirement for application

(1) To be entitled to special maternity leave during a period, an

employee must give her employer a written application for special

maternity leave, in accordance with this section, stating the first

and last days of the period.

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Pregnancy-related illness--medical certificate

(2) An application for special maternity leave required because of a

pregnancy-related illness must be accompanied by a medical

certificate from a medical practitioner containing the following

statements of the medical practitioner's opinion:

(a) a statement that the employee is pregnant;

(b) a statement of the expected date of birth;

work for a stated period because of a pregnancy-related

illness.

End of pregnancy--medical certificate and statutory declaration

(3) An application for special maternity leave required because of the

end of the employee's pregnancy otherwise than by the birth of a

living child must be accompanied by:

(a) a medical certificate from a medical practitioner containing

the following statements of the medical practitioner's

opinion:

(i) a statement that the employee was pregnant, but that the

pregnancy has ended otherwise than by the birth of a

living child;

(ii) a statement of what the expected date of birth would

have been if the pregnancy had gone to full term;

(iii) a statement that the pregnancy ended on a stated day

within 28 weeks before the expected date of birth;

(iv) a statement to the effect that the employee is (or was)

unfit for work during a stated period; and

(b) a statutory declaration made by the employee stating the

following:

(i) the first and last days of the period (or periods) of any

other authorised leave taken by the employee because of

a pregnancy-related illness or the end of the pregnancy;

(ii) that the employee will not engage in any conduct

inconsistent with her contract of employment while on

maternity leave.

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130 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Time for giving application to employer

(4) The application, medical certificate and statutory declaration (if

required) must be given to the employer before, or as soon as

reasonably practicable after, starting a continuous period of leave

including (or constituted by) the special maternity leave.

Section does not apply if could not be complied with

(5) This section does not apply to an employee who could not comply

with the section because of circumstances beyond her control.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

94H Ordinary maternity leave--medical certificate

Requirement for medical certificate

(1) To be entitled to ordinary maternity leave, an employee must give

her employer a medical certificate from a medical practitioner in

accordance with this section.

General rules

(2) The medical certificate must contain the following statements of

the medical practitioner's opinion:

(a) a statement that the employee is pregnant;

(b) a statement of the expected date of birth.

(3) The medical certificate mentioned in subsection (2) must be given

to the employer no later than 10 weeks before the expected date of

birth (as stated in the certificate).

Premature birth or other compelling reason

(4) However, subsections (2) and (3) do not apply if it was not

reasonably practicable for a medical certificate mentioned in

subsection (2) to be given to the employer by the time required by

subsection (3) because of:

(a) the premature birth of the employee's child; or

(b) any other compelling reason.

(5) If subsections (2) and (3) do not apply:

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(a) subject to paragraph (b), as soon as reasonably practicable

before the birth of the child (which may be at a time before or

after the maternity leave has started) the employee must give

the employer a medical certificate from a medical

practitioner containing the following statements of the

medical practitioner's opinion:

(i) a statement that the employee is pregnant;

(ii) a statement of the expected date of birth if the

pregnancy were to go to full term; or

(b) if it was not reasonably practicable for the employee to

comply with paragraph (a) before the birth of the child--as

soon as reasonably practicable after the birth of the child

(which may be at a time before or after the maternity leave

has started) the employee must give the employer a medical

certificate from a medical practitioner containing the

following statements of the medical practitioner's opinion (or

knowledge):

(i) a statement of the actual date of birth;

(ii) a statement of the expected date of birth as at the 70th

day before the actual date of birth.

Section does not apply if could not be complied with

(6) This section does not apply to an employee who could not comply

with the section because of circumstances beyond her control.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

94I Ordinary maternity leave--application

Requirement for application

(1) To be entitled to ordinary maternity leave during a period, an

employee must give her employer a written application for

ordinary maternity leave in accordance with this section stating the

first and last days of the period.

General rule

(2) The application must be given to the employer no later than 4

weeks before the first day of the intended continuous period of

leave including (or constituted by) ordinary maternity leave.

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132 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Premature birth or other compelling reason

(3) However, subsection (2) does not apply if it was not reasonably

practicable for the employee to comply with it because of:

(a) the premature birth of the employee's child; or

(b) any other compelling reason.

(4) If subsection (2) does not apply, the application must be made as

soon as reasonably practicable (which may be at a time before or

after the maternity leave has started).

Statutory declaration with application

(5) The application must be accompanied by a statutory declaration

made by the employee stating the following:

(a) the first and last days of the period (or periods) of any other

authorised leave (other than paid leave under subparagraph

94F(2)(b)(i) or (ii)) intended to be taken (or already taken) by

the employee because of her pregnancy or the expected birth;

(b) the first and last days of the period (or periods) of any

paternity leave, or any other authorised leave of the same

type as paternity leave, intended to be taken (or already

taken) by the employee's spouse because of the expected

birth;

at all times while on maternity leave;

(d) that the employee will not engage in any conduct inconsistent

with her contract of employment while on maternity leave.

Section does not apply if could not be complied with

(6) This section does not apply to an employee who could not comply

with the section because of circumstances beyond her control.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

Subdivision D--Maternity leave: from start to finish

94J Maternity leave--start of leave

Subject to section 94L, an employee may start a continuous period

of leave including (or constituted by) ordinary maternity leave to

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which she is entitled at any time within 6 weeks before the

expected date of birth of the child.

94K Requirement to take leave--for 6 weeks after birth

A continuous period of leave including (or constituted by) ordinary

maternity leave must include a period of leave of at least 6 weeks

starting from the date of birth of the child.

94L Requirement to take leave--within 6 weeks before birth

(1) This section applies to an employee if:

(a) she is entitled to ordinary maternity leave; and

(b) she has already complied with the documentation

requirements under sections 94H and 94I.

(2) If the employee continues to work, during the period of 6 weeks

before the expected date of birth, the employer may ask the

employee to give the employer a medical certificate from a medical

practitioner containing the following statement or statements of the

medical practitioner's opinion:

(a) a statement of whether the employee is fit to work;

(b) if, in the opinion of the medical practitioner, the employee is

fit to work--a statement of whether it is inadvisable for the

employee to continue in her present position for a stated

period because of:

(i) illness, or risks, arising out of the pregnancy; or

(ii) hazards connected with the position.

Note:

Under section 94F, the employee is entitled to be transferred to a safe

job or to paid leave (depending on the circumstances) if the employee

gives the employer a medical certificate stating that the employee is fit

to work, but that illness or risks arising out of the employee's

pregnancy or hazards connected with the work assigned to the

employee make it inadvisable for the employee to continue in her

present position.

(3) The employer may require the employee to start a continuous

period of leave including (or constituted by) maternity leave as

soon as reasonably practicable, if the employee:

(a) does not give the employer the requested certificate within 7

days after the request; or

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134 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) within 7 days after the request for the certificate, gives the

employer a medical certificate stating that the employee is

unfit to work.

94M End of pregnancy--effect on ordinary maternity leave

entitlement

(1) This section applies if the pregnancy of an employee ends

otherwise than by the birth of a living child.

(2) If, when the pregnancy ended, the employee had not yet started a

period of ordinary maternity leave, the employee is not, or is no

longer, entitled to ordinary maternity leave in relation to the

previously expected birth.

Note:

However, the employee may be entitled to take special maternity

leave because of the end of the pregnancy. An application for special

maternity leave may be made after the leave has started (see

section 94G).

(3) If, when the pregnancy ended, the employee had started a period of

ordinary maternity leave, the employee's entitlement to ordinary

maternity leave in relation to the previously expected birth is not

affected by the end of the pregnancy.

Note:

The employee may shorten the period of ordinary maternity leave by

agreement with the employer under section 94P. However, to take

advantage of the return to work guarantee under section 94R, the

employee must also give the employer at least 4 weeks written notice

of the proposed day of her return to work.

94N Death of child--effect on ordinary maternity leave entitlement

(1) This section applies if:

(a) an employee gives birth to a living child, but the child later

dies; and

(b) when the child died, the employee had started a period of

ordinary maternity leave in relation to the child's birth.

(2) Subject to subsections (3) and (4), the employee's entitlement to

the ordinary maternity leave is not affected by the death of the

child.

Note:

The employee may shorten the period of ordinary maternity leave by

agreement with the employer under section 94P. However, to take

advantage of the return to work guarantee under section 94R, the

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employee must also give the employer at least 4 weeks written notice

of the proposed day of her return to work.

(3) The employee's employer may give the employee written notice

that, from a stated day, any untaken ordinary maternity leave that

the employee remains entitled to at the stated day is cancelled with

effect from that day.

(4) The day stated in the notice must be no earlier than the later of the

following days:

(a) the day that is 4 weeks after the day the notice was given;

(b) the day that is 6 weeks after the date of birth.

(5) The employee's entitlement to any untaken ordinary maternity

leave in relation to the birth ends with effect from the day stated in

the notice.

94O End of ordinary maternity leave if employee stops being

primary care-giver

(1) This section applies if:

(a) during a substantial period while an employee is on ordinary

maternity leave after the birth of a living child, the employee

is not the child's primary care-giver; and

(b) having regard to the length of that period and to any other

relevant circumstances, it is reasonable to expect that the

employee will not again become the child's primary

care-giver within a reasonable period.

(2) The employee's employer may give the employee written notice

that, from a stated day no earlier than 4 weeks after the day the

notice is given, any untaken ordinary maternity leave that the

employee remains entitled to at the stated day is cancelled with

effect from that day.

(3) The employee's entitlement to any untaken ordinary maternity

leave in relation to the birth ends with effect from the day stated in

the notice.

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136 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

94P Variation of period of ordinary maternity leave

(1) This section applies after an employee has started a continuous

period of leave including (or constituted by) ordinary maternity

leave.

(2) Subject to Subdivision B and sections 94N and 94O:

(a) the employee may extend the period of maternity leave once

by giving her employer 14 days written notice before the end

of the period stating the period by which the leave is

extended; and

(b) the period of maternity leave may be further extended by

agreement between the employee and her employer.

(3) Subject to section 94K, the period of maternity leave may be

shortened by written agreement between the employee and her

employer.

Note:

However, to take advantage of the return to work guarantee under

section 94R, the employee must also give her employer at least 4

weeks written notice of the proposed day for her return to work.

94Q Employee's right to terminate employment during maternity

leave

(1) An employee may terminate her employment at any time during a

period of maternity leave or leave under subparagraph 94F(2)(b)(i)

or (ii).

(2) The employee's right to terminate her employment is subject to

any notice required to be given by the employee by or under:

(a) a term or condition of her employment; or

(b) a law, or an instrument in force under a law, of the

Commonwealth, a State or a Territory.

94R Return to work guarantee--maternity leave

(1) This section applies to an employee who returns to work after a

period of leave including (or constituted by) maternity leave (the

maternity-related leave period) if:

(a) the employee gives her employer written notice of the

proposed day of her return to work no later than 4 weeks

before that day; or

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(b) the period of leave includes (or is constituted by) special

maternity leave, and does not include any ordinary maternity

leave; or

under section 94N or 94O.

(2) This section also applies if an employee returns to work after a

period of leave under subparagraph 94F(2)(b)(i) or (ii).

(3) Subject to subsections (4) and (5), the employee is entitled to

return:

(a) unless paragraph (b) or (c) applies--to the position she held

immediately before the start of the maternity-related leave

period; or

(b) if she was promoted or voluntarily transferred to a new

position (other than to a safe job under paragraph 94F(2)(a))

during the maternity-related leave period--to the new

position; or

part-time because of her pregnancy--to the position she held

immediately before starting to work part-time.

(4) If subsection (3) would, apart from this subsection, entitle the

employee to return to a position that the employee had been

transferred to under paragraph 94F(2)(a), the employee is instead

entitled to return to the position she held immediately before the

transfer.

(5) If the position (the former position) no longer exists, and the

employee is qualified and able to work for her employer in another

position, the employee is entitled to return to:

(a)

that

position;

(b) if there are 2 or more such positions--whichever position is

nearest in status and remuneration to the former position.

94S Replacement employees--maternity leave

(1) Before an employer engages an employee (a primary replacement)

to do the work of another employee because the other employee is

taking a continuous period of leave including (or constituted by)

maternity leave, the employer must tell the primary replacement:

(a) that the engagement to do that work is temporary; and

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(b) what the rights of the employee taking maternity leave are

under section 94R when she returns to work after the period

of leave.

(2) Before an employer engages an employee (a secondary

replacement) to do the work of another employee (the primary

replacement) because the primary replacement has been

temporarily promoted or transferred to do the work of a third

employee while the third employee is taking a continuous period of

leave including (or constituted by) maternity leave, the employer

must tell the secondary replacement:

(a) that the engagement to do that work is temporary; and

(b) what the rights of the employee taking maternity leave are

under section 94R when she returns to work after the period

of leave.

(3) In this section:

employee has the meaning given by subsection 4AA(1).

Subdivision E--Guarantee of paternity leave

94T The guarantee

(1) For the purposes of this Division, paternity leave is:

(a) a single, unbroken period of unpaid leave (short paternity

leave) of up to one week taken by a male employee within

the week starting on the day his spouse begins to give birth;

(b) a single, unbroken period of unpaid leave (long paternity

leave), other than short paternity leave, taken by a male

employee after his spouse gives birth to a living child so that

the employee can be the child's primary care-giver.

(2) Subject to this Subdivision and Subdivision G, an employee is

entitled to paternity leave if:

(a) he complies with the documentation requirements under

Subdivision F, to the extent to which they apply to him; and

(b) immediately before the first day on which the paternity leave

is, or is to be, taken:

(i) he has, or will have, completed at least 12 months

continuous service with his employer; or

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(ii) he is, or will be, an eligible casual employee.

Note:

Entitlement to paternity leave is subject to the restrictions in

sections 94U and 94W and Subdivision G.

(3) An employee is taken not to have been entitled to a period of

paternity leave at any time after the start of the period if:

(a)

Subdivision

(i) required the employee to give a document (the required

document) to his employer; and

(ii) allowed the employee to give the required document to

his employer after the start of the leave; and

(b) when the employee started the leave, the employee had not

given his employer the required document; and

employer within the period required under Subdivision F.

Note:

Under Subdivision F, an employee may be required to give his

employer a medical certificate, an application or a statutory

declaration (depending on the circumstances).

(4) Subject to this Division, an employee may take short paternity

leave, long paternity leave, or both.

94U Period of paternity leave

(1) In this section:

related authorised leave, in relation to paternity leave taken (or to

be taken) by an employee because his spouse has given birth to a

living child, means any of the following types of authorised leave

other than the paternity leave:

(a) authorised leave taken by the employee because of any of the

following:

(i) the birth of the child;

(ii) the death of the child;

(b) maternity leave, or any other authorised leave of the same

type as maternity leave, taken by the employee's spouse

because of the birth of the child or the pregnancy.

(2) An employee may take a period of paternity leave as part of a

continuous period including any other authorised leave.

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(3) The maximum total amount of paternity leave (including short

paternity leave and long paternity leave) to which an employee is

entitled in relation to the birth of a child by his spouse is 52 weeks,

less an amount equal to the total amount of related authorised leave

taken:

(a) by the employee before or after the paternity leave; and

(b) by the spouse before, during or after the paternity leave.

Example: Max's spouse Rachel is pregnant, and Max is an employee entitled to

paternity leave. He intends to take 2 periods of authorised leave

because of the birth of the child. The first is to consist of 5 weeks: 1

week of short paternity leave and 4 weeks of annual leave. The second

is to consist of a later period of long paternity leave starting 20 weeks

after the birth, when Max is to be the primary care-giver for the child

after Rachel returns to work.

Rachel has not taken any special maternity leave or other authorised

leave during her pregnancy. She intends to take 20 weeks of maternity

leave because of the birth of the child.

The maximum amount of long paternity leave to which Max is

entitled is 27 weeks, worked out as follows:

(a)

the maximum entitlement of any employee to paternity leave is

52 weeks;

(b)

the maximum amount of long paternity leave available to Max

must be reduced by 1 week for his short paternity leave;

(c)

the maximum amount must also be reduced by 4 weeks for

Max's annual leave;

(d)

the maximum amount must be further reduced by 20 weeks for

Rachel's maternity leave.

Note:

A period of long paternity leave must end within 12 months after the

date of birth of the child (see section 94ZB).

94V Short paternity leave--concurrent leave taken by spouse

An employee may take short paternity leave in relation to the birth

of a child by his spouse while the spouse is taking any authorised

leave, including maternity leave (if any), in relation to the birth.

94W Long paternity leave--not to be concurrent with maternity

leave taken by spouse

A period of long paternity leave taken by an employee in relation

to the birth of a child by his spouse must not include any period

during which the spouse is taking maternity leave, or any other

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authorised leave of the same type as maternity leave, because of

the birth.

Subdivision F--Paternity leave: documentation

94X Paternity leave--medical certificate

Requirement for medical certificate

(1) To be entitled to paternity leave, an employee must give his

employer a medical certificate from a medical practitioner in

accordance with this section.

(2) The medical certificate must contain the following statements of

the medical practitioner's opinion (or knowledge):

(a) if the child has not yet been born:

(i) the name of the employee's spouse; and

(ii) that the employee's spouse is pregnant; and

(iii) the date on which the birth is expected;

(b) if the child has been born:

(i) the name of the employee's spouse; and

(ii) the actual date of birth of the child.

General rule

(3) The medical certificate must be given to the employer no later than

10 weeks before the date stated in the certificate.

Premature birth or other compelling reason

(4) However, the medical certificate must be given to the employer as

soon as reasonably practicable (which may be at a time before or

after the paternity leave has started) if it was not reasonably

practicable for the employee to comply with subsection (3) because

of:

(a) the premature birth of the child; or

(b) any other compelling reason.

Section does not apply if could not be complied with

(5) This section does not apply to an employee who could not comply

with the section because of circumstances beyond his control.

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Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

94Y Short paternity leave--application

(1) To be entitled to short paternity leave during a period, an employee

must give his employer a written application for short paternity

leave, in accordance with this section, stating the first and last days

of the period.

(2) The application must be given to the employer as soon as

reasonably practicable on or after the first day of the period of

leave.

(3) This section does not apply to an employee who could not comply

with the section because of circumstances beyond his control.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

94Z Long paternity leave--documentation

Requirement for application

(1) To be entitled to long paternity leave during a period, an employee

must give his employer a written application for long paternity

leave in accordance with this section stating the first and last days

of the period.

General rule

(2) The application must be given to the employer no later than 10

weeks before the first day of the intended continuous period of

leave including (or constituted by) the long paternity leave.

Premature birth or other compelling reason

(3) However, the application must be made as soon as reasonably

practicable (which may be at a time before or after the long

paternity leave has started) if it was not reasonably practicable for

the employee to comply with subsection (2) because of:

(a) the premature birth of the child; or

(b) any other compelling reason.

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Statutory declaration with application

(4) The application must be accompanied by a statutory declaration

made by the employee stating the following:

(a) the first and last days of the period (or periods) of any other

authorised leave intended to be taken (or already taken) by

the employee because of the birth or the expected birth;

(b) the first and last days of the period (or periods) of any

maternity leave, or any other authorised leave of the same

type as maternity leave, intended to be taken (or already

taken) by the employee's spouse because of the pregnancy,

the birth or the expected birth;

at all times while on long paternity leave;

(d) that the employee will not engage in any conduct inconsistent

with his contract of employment while on long paternity

leave.

Section does not apply if could not be complied with

(5) This section does not apply to an employee who could not comply

with the section because of circumstances beyond his control.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

Subdivision G--Paternity leave: from start to finish

94ZA Short paternity leave--when taken

An employee may take short paternity leave to which he is entitled

at any time within the week starting on the day his spouse begins to

give birth.

Note:

Short paternity leave must be taken in a single, unbroken period (see

section 94T). The combined total of paternity leave and related

authorised leave taken by the employee and his spouse must be no

more than 52 weeks (see section 94U). Short paternity leave may be

taken concurrently with any authorised leave taken by the employee's

spouse in relation to the birth of the child (see section 94V).

94ZB Long paternity leave--when taken

An employee may take long paternity leave to which he is entitled

at any time within 12 months after the date of birth of the child.

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Note:

Long paternity leave must be taken in a single, unbroken period (see

section 94T). The combined total of paternity leave and related

authorised leave taken by the employee and his spouse must be no

more than 52 weeks (see section 94U). Long paternity leave must not

be taken concurrently with any maternity leave, or any other

authorised leave of the same type as maternity leave, taken by the

employee's spouse because of the birth of the child (see section 94W).

94ZC End of pregnancy--effect on paternity leave

(1) This section applies if the pregnancy of an employee's spouse ends

otherwise than by the birth of a living child.

(2) The employee is not, or is no longer, entitled to paternity leave in

relation to the pregnancy.

(3) To avoid doubt, this section does not affect any entitlement of an

employee to short paternity leave that was taken by the employee

in expectation of the birth.

94ZD Death of child--effect on paternity leave

(1) This section applies if an employee's spouse gives birth to a living

child, but the child later dies.

(2) If, when the child died, the employee had not yet started a period

of paternity leave in relation to the birth, the employee is not, or is

no longer, entitled to that leave.

(3) Subject to subsections (4) and (5), if, when the child died, the

employee had started a period of paternity leave in relation to the

birth, the employee's entitlement to the leave is not affected by the

death of the child.

Note:

The employee may shorten a period of long paternity leave by

agreement with the employer under section 94ZF. However, if the

period of leave including (or constituted by) long paternity leave is

longer than 4 weeks, to take advantage of the return to work guarantee

under section 94ZH, the employee must also give the employer at

least 4 weeks written notice of the proposed day of his return to work.

(4) The employee's employer may give the employee written notice

that, from a stated day no earlier than 4 weeks after the day the

notice is given, any untaken long paternity leave that the employee

remains entitled to at the stated day is cancelled with effect from

that day.

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(5) The employee's entitlement to any untaken long paternity leave in

relation to the birth ends with effect from the day stated in the

notice.

94ZE End of long paternity leave if employee stops being primary

care-giver

(1) This section applies if:

(a) during a substantial period while an employee is on long

paternity leave after the birth of a living child, the employee

is not the child's primary care-giver; and

(b) having regard to the length of that period and to any other

relevant circumstances, it is reasonable to expect that the

employee will not again become the child's primary

care-giver within a reasonable period.

(2) The employee's employer may give the employee written notice

that, from a stated day no earlier than 4 weeks after the day the

notice is given, any untaken long paternity leave that the employee

remains entitled to at the stated day is cancelled with effect from

that day.

(3) The employee's entitlement to any untaken long paternity leave in

relation to the birth ends with effect from the day stated in the

notice.

94ZF Variation of period of long paternity leave

(1) This section applies after an employee has started a continuous

period of leave including (or constituted by) long paternity leave.

(2) Subject to Subdivision E and sections 94ZB, 94ZD and 94ZE:

(a) the employee may extend the period of long paternity leave

once by giving his employer 14 days written notice before

the end of the period stating the period by which the leave is

extended; and

(b) the period of long paternity leave may be further extended by

agreement between the employee and his employer.

(3) The period of long paternity leave may be shortened by written

agreement between the employee and his employer.

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Note:

However, if the period of leave including (or constituted by) long

paternity leave is longer than 4 weeks, to take advantage of the return

to work guarantee under section 94ZH, the employee must also give

his employer at least 4 weeks written notice of the proposed day of his

return to work.

94ZG Employee's right to terminate employment during paternity

leave

(1) An employee may terminate his employment at any time during a

period of paternity leave.

(2) The employee's right to terminate his employment is subject to any

notice required to be given by the employee by or under:

(a) a term or condition of his employment; or

(b) a law, or an instrument in force under a law, of the

Commonwealth, a State or a Territory.

94ZH Return to work guarantee--paternity leave

(1) This section applies to an employee who returns to work after a

period of leave including (or constituted by) paternity leave (the

paternity-related leave period) if:

(a) the paternity-related leave period is 4 weeks or less; or

(b) if the paternity-related leave period is longer than 4 weeks--

the employee has given his employer written notice of the

proposed day of his return to work no later than 4 weeks

before that day; or

section 94ZD or 94ZE.

(2) The employee is entitled to return:

(a) unless paragraph (b) or (c) applies--to the position he held

immediately before the start of the paternity-related leave

period; or

(b) if he was promoted or voluntarily transferred to a new

position during the paternity-related leave period--to the

new position; or

part-time because of his spouse's pregnancy--to the position

he held immediately before starting to work part-time.

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(3) However, if the position (the former position) no longer exists, and

the employee is qualified and able to work for his employer in

another position, the employee is entitled to return to:

(a)

that

position;

(b) if there are 2 or more such positions--whichever position is

nearest in status and remuneration to the former position.

94ZI Replacement employees--long paternity leave

(1) Before an employer engages an employee (a primary replacement)

to do the work of another employee because the other employee is

taking a continuous period of leave including (or constituted by)

paternity leave, the employer must tell the primary replacement:

(a) that the engagement to do that work is temporary; and

(b) what the rights of the employee taking paternity leave are

under section 94ZH when he returns to work after the period

of leave.

(2) Before an employer engages an employee (a secondary

replacement) to do the work of another employee (the primary

replacement) because the primary replacement has been

temporarily promoted or transferred to do the work of a third

employee while the third employee is taking a continuous period of

leave including (or constituted by) paternity leave, the employer

must tell the secondary replacement:

(a) that the engagement to do that work is temporary; and

(b) what the rights of the employee taking paternity leave are

under section 94ZH when he returns to work after the period

of leave.

(3) In this section:

employee has the meaning given by subsection 4AA(1).

Subdivision H--Guarantee of adoption leave

94ZJ Meaning of eligible child

For the purposes of this Division, a child is an eligible child in

relation to an employee with whom the child is, or is to be, placed

for adoption, if the child:

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(a) is (or will be) under the age of 5 years as at the day of

placement or the proposed day of placement; and

(b) has not (or will have not) previously lived continuously with

the employee for a period of 6 months or more as at the day

of placement or the proposed day of placement; and

spouse.

94ZK The guarantee--pre-adoption leave

(1) This section applies if an employee is seeking to obtain approval to

adopt an eligible child.

Entitlement to leave

(2) The employee is entitled to a period of up to 2 days unpaid leave

(pre-adoption leave) to attend any interviews or examinations

required to obtain the approval.

(3) However, the employee is not entitled to take a period of

pre-adoption leave if:

(a) the employee could take other authorised leave instead for

the same period for the purpose mentioned in subsection (2);

and

(b) the employee's employer directs the employee to take such

leave for the period.

(4) An employee who is entitled to a period of pre-adoption leave is

entitled to take the leave as:

(a) a single, unbroken, period of up to 2 days; or

(b) any separate periods to which the employee and his or her

employer agree.

Agreement between employees and employers

(5) For the purposes of paragraph (4)(b), an employee and an

employer are taken to agree about a particular matter in a particular

way if a provision of a workplace agreement binding the employee

and the employer specifies that the matter is to be dealt with in that

way.

(6) To avoid doubt, subsection (5) does not prevent employees and

employers agreeing about matters by other means.

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94ZL The guarantee--adoption leave

(1) For the purposes of this Division, adoption leave is:

(a) a single, unbroken period of unpaid leave (short adoption

leave) of up to 3 weeks taken by an employee within the 3

weeks starting on the day of placement of an eligible child

with the employee for adoption; or

(b) a single, unbroken period of unpaid leave (long adoption

leave), other than short adoption leave, taken by an employee

after the day of placement of an eligible child with the

employee for adoption so that the employee can be the

child's primary care-giver.

(2) Subject to this Subdivision and Subdivision J, an employee is

entitled to adoption leave if:

(a) the employee complies with the applicable documentation

requirements under Subdivision I; and

(b) immediately before the first day on which the adoption leave

is, or is to be, taken:

(i) the employee has, or will have, completed at least 12

months continuous service with his or her employer; or

(ii) the employee is, or will be, an eligible casual employee.

Note:

Entitlement to adoption leave is subject to the restrictions in

sections 94ZM and 94ZO and Subdivision J.

(3) Subject to this Division, an employee may take short adoption

leave, long adoption leave, or both.

94ZM Period of adoption leave

(1) In this section:

related authorised leave, in relation to adoption leave taken (or to

be taken) by an employee because of the placement of a child with

the employee and the employee's spouse, means any of the

following types of authorised leave other than pre-adoption leave:

(a) authorised leave, other than adoption leave, taken by the

employee because of the placement of the child with the

employee;

(b) adoption leave, or any other authorised leave of the same

type as adoption leave, taken by the spouse because of the

placement of the child with the employee.

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(2) An employee may take a period of adoption leave as part of a

continuous period including any other authorised leave.

(3) The maximum total amount of adoption leave (including short

adoption leave and long adoption leave) that an employee is

entitled to in relation to a placement is 52 weeks, less an amount

equal to the total amount of related authorised leave taken:

(a) by the employee before or after the adoption leave; and

(b) by the employee's spouse before or after the adoption leave.

Example: Susan and her spouse Ali propose to adopt a child, and both are

employees entitled to adoption leave. Because of the placement of the

child, Susan intends to take authorised leave consisting of 3 weeks of

short adoption leave, 4 weeks of annual leave, 12 weeks of long

service leave and a period of long adoption leave.

Because of the placement of the child, Ali intends to take 3 weeks of

short adoption leave.

The maximum amount of long adoption leave to which Susan is

entitled is 30 weeks, worked out as follows:

(a)

the maximum entitlement of any employee to adoption leave is

52 weeks;

(b)

the maximum amount of long adoption leave available to Susan

must be reduced by 3 weeks for her short adoption leave;

(c)

the maximum amount must also be reduced by 16 weeks for

Susan's annual leave and long service leave;

(d)

the maximum amount must also be further reduced by 3 weeks

for Ali's short adoption leave.

Note:

A period of long adoption leave must end within 12 months after the

day of placement of the child (see section 94ZU).

94ZN Short adoption leave--concurrent leave taken by spouse

An employee may take short adoption leave in relation to the

placement of a child while his or her spouse is taking any

authorised leave, including adoption leave (if any), in relation to

the placement.

94ZO Long adoption leave--not to be concurrent with adoption

leave taken by spouse

A period of long adoption leave taken by an employee in relation

to the placement of a child with the employee and the employee's

spouse must not include any period during which the spouse is

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taking adoption leave, or any other authorised leave of the same

type as adoption leave, because of the placement.

Subdivision I--Adoption leave: documentation

94ZP Adoption leave--notice

Requirement for notice

(1) To be entitled to adoption leave, an employee must give his or her

employer notice in accordance with this section.

Note:

After an employee has given his or her employer notice in accordance

with this section, the employee will have satisfied the notice

requirement in relation to the employee's entitlement to both short

adoption leave and long adoption leave.

Notices to be given to the employer

(2) An employee must give written notice to his or her employer of the

employee's intention to apply for adoption leave as soon as

reasonably practicable after receiving notice (a placement

approval notice) of the approval of the placement of an eligible

child with the employee.

(3) An employee must give written notice to his or her employer of the

day when the placement of an eligible child with the employee is

expected to start as soon as reasonably practicable after receiving

notice (a placement notice) of the expected day.

(4) An employee must give written notice to his or her employer of the

first and last days of the periods of short and long adoption leave

(or of either type of leave) the employee intends to apply for

because of the placement:

(a) if the employee receives a placement notice about the

placement within the period of 8 weeks after receiving the

placement approval notice--before the end of that 8 week

period; or

(b) if the employee receives a placement notice about the

placement after the end of the period of 8 weeks after

receiving the placement approval notice--as soon as

reasonably practicable after receiving the placement notice.

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Adoption of a relative of the employee

(5) If an eligible child who is to be adopted by an employee is a

relative of the employee, and the employee decides to take the

child into custody pending the authorisation of the placement of the

child with the employee, the employee must:

(a) give notice to his or her employer of the employee's decision

as soon as reasonably practicable after the decision is made;

and

(b) give the notices required by subsections (2), (3) and (4) in

accordance with those subsections.

Note:

The employee's entitlement to adoption leave after taking the child

into custody starts when the adoption is authorised (this is the day of

placement of the child--see definition of day of placement in

section 94A).

Adoption process started before engagement with the employer

(6) If, before starting an employee's current period of engagement

with his or her employer, the employee had already received a

placement approval notice or a placement notice, or had made a

decision to take a child into custody as mentioned in

subsection (5), the employee must give the notices required by this

section to the employer as soon as reasonable practicable after

starting the period of engagement.

Note:

However, the employee is only entitled to take either short or long

adoption leave if the employee will have completed 12 months

continuous service with the employer immediately before the first day

on which the leave is to be taken, or if the employee is an eligible

casual employee (see section 94ZL).

If employee cannot comply

(7) A notice under this section must be given to the employee's

employer as soon as reasonably practicable before the first day of

adoption leave taken by the employee, if the employee cannot

comply with subsection (2), (3), (4), (5) or (6) because of:

(a) the day when the placement is expected to start; or

(b) any other compelling reason.

(8) In this section:

relative, of an employee, means:

(a) a grandchild, nephew, niece or sibling of the employee; or

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(b) a grandchild, nephew, niece or sibling of the employee's

spouse.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

94ZQ Short adoption leave--application

Requirement for application

(1) To be entitled to short adoption leave during a period, an employee

must give his or her employer a written application for short

adoption leave, in accordance with this section, stating the first and

last days of the period.

General rule

(2) The application must be given to the employer no later than 14

days before the proposed day of placement of the child.

If employee cannot comply with general rule

(3) The application must be given to the employer as soon as

reasonably practicable before the first day of the short adoption

leave applied for if the employee cannot comply with

subsection (2) because of:

(a) the day when the placement is expected to start; or

(b) any other compelling reason.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

94ZR Long adoption leave--application

Requirement for application

(1) To be entitled to long adoption leave during a period, an employee

must give his or her employer a written application for long

adoption leave, in accordance with this section, stating the first and

last days of the period.

General rule

(2) The application must be given to the employer no later than 10

weeks before the first day of the proposed continuous period of

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leave including (or constituted by) the long adoption leave applied

for.

If employee cannot comply with general rule

(3) The application must be given to the employer as soon as

reasonably practicable before the first day of the long adoption

leave applied for if the employee cannot comply with

subsection (2) because of:

(a) the day when the placement is expected to start; or

(b) any other compelling reason.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

94ZS Adoption leave--additional documents

(1) To be entitled to adoption leave, an employee must give his or her

employer documents as required by this section.

(2) The documents required by this section must be given to the

employer:

(a) before the employee begins the period of adoption leave; or

(b) if the employee is taking both short and long adoption

leave--before the employee begins the period of short

adoption leave.

(3) The employee must give his or her employer the following

documents:

(a) a statement from an adoption agency of the day when the

placement is expected to start;

(b) a statutory declaration in accordance with subsection (4)

made by the employee.

(4) The statutory declaration must state the following:

(a) whether the employee is taking short adoption leave, long

adoption leave, or both;

(b) the first and last days of the period (or periods) of any other

authorised leave taken, or intended to be taken, by the

employee because of the placement of the child;

leave, or any other authorised leave of the same type as

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adoption leave, taken, or intended to be taken, by the

employee's spouse because of the placement of the child;

(d) that the child is an eligible child;

(e) for any period of long adoption leave to be taken by the

employee--that the employee intends to be the child's

primary care-giver at all times while on the long adoption

leave;

(f) that the employee will not engage in any conduct inconsistent

with his or her contract of employment while on adoption

leave.

Note:

The use of personal information given to an employer under this

section may be regulated under the Privacy Act 1988.

Subdivision J--Adoption leave: from start to finish

94ZT Short adoption leave--when taken

An employee may take short adoption leave to which he or she is

entitled at any time within the period of 3 weeks starting on the day

of placement of the child.

Note:

Short adoption leave must be taken in a single, unbroken period (see

section 94ZL). The combined total of adoption leave and related

authorised leave taken by the employee and his or her spouse must be

no more than 52 weeks (see section 94ZM). Short adoption leave may

be taken concurrently with any authorised leave taken by the

employee's spouse (see section 94ZN).

94ZU Long adoption leave--when taken

An employee may take long adoption leave to which he or she is

entitled at any time within 12 months after the day of placement of

the child.

Note:

Long adoption leave must be taken in a single, unbroken period (see

section 94ZL). The combined total of adoption and authorised leave

taken by the employee and his or her spouse must be no more than 52

weeks (see section 94ZM). Long adoption leave must not be taken

concurrently with any adoption leave, or any other authorised leave of

the same type as adoption leave, taken by the employee's spouse

because of the placement (see section 94ZO).

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94ZV Placement does not proceed--effect on adoption leave

(1) This section applies if a proposed placement of a child with an

employee:

(a) is cancelled before it starts, whether at the initiative of an

adoption agency, another body, or the employee; or

(b) starts but is later discontinued for any reason (including the

death of the child).

(2) If, when this section first applies, the employee had not yet started

a period of adoption leave in relation to the placement, the

employee is not, or is no longer, entitled to the leave.

(3) Subject to subsections (4) and (5), if, when this section applies, the

employee had started a period of adoption leave in relation to the

placement, the employee's entitlement to the adoption leave is not

affected by the cancellation or discontinuation of the placement.

Note:

The employee may shorten a period of long adoption leave by

agreement with the employer under section 94ZX. However, if the

period of leave including (or constituted by) long adoption leave is

longer than 4 weeks, to take advantage of the return to work guarantee

under section 94ZZ, the employee must also give the employer at least

4 weeks written notice of the proposed day of his or her return to

work.

(4) The employee's employer may give the employee written notice

that, from a stated day no earlier than 4 weeks after the day the

notice is given, any untaken long adoption leave that the employee

remains entitled to at the stated day is cancelled with effect from

that day.

(5) The employee's entitlement to any untaken long adoption leave in

relation to the placement ends with effect from the day stated in the

notice.

94ZW End of long adoption leave if employee stops being primary

care-giver

(1) This section applies if:

(a) during a substantial period while an employee is on long

adoption leave after the placement of a child with the

employee, the employee is not the child's primary care-giver;

and

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(b) having regard to the length of that period and to any other

relevant circumstances, it is reasonable to expect that the

employee will not again become the child's primary

care-giver within a reasonable period.

(2) The employee's employer may give the employee written notice

that, from a stated day no earlier than 4 weeks after the day the

notice is given, any untaken long adoption leave that the employee

remains entitled to at the stated day is cancelled with effect from

that day.

(3) The employee's entitlement to any untaken long adoption leave in

relation to the placement ends with effect from the day stated in the

notice.

94ZX Variation of period of long adoption leave

(1) This section applies after an employee has started a continuous

period of leave including (or constituted by) long adoption leave.

(2) Subject to Subdivision H and sections 94ZU, 94ZV and 94ZW:

(a) the employee may extend the period of long adoption leave

once by giving his or her employer 14 days written notice

before the end of the period stating the period by which the

leave is extended; and

(b) the period of long adoption leave may be further extended by

agreement between the employee and his or her employer.

(3) The period of long adoption leave may be shortened by written

agreement between the employee and his or her employer.

Note:

However, if the period of leave including (or constituted by) long

adoption leave is longer than 4 weeks, to take advantage of the return

to work guarantee under section 94ZZ, the employee must also give

his or her employer at least 4 weeks written notice of the proposed day

for his or her return to work.

94ZY Employee's right to terminate employment during adoption

leave

(1) An employee may terminate his or her employment at any time

during a period of adoption leave.

(2) The employee's right to terminate his or her employment is subject

to any notice required to be given by the employee by or under:

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(a) a term or condition of his or her employment; or

(b) a law, or an instrument in force under a law, of the

Commonwealth, a State or a Territory.

94ZZ Return to work guarantee--adoption leave

(1) This section applies to an employee who returns to work after a

period of leave including (or constituted by) adoption leave (the

adoption-related leave period) if:

(a) the adoption-related leave period is 4 weeks or less; or

(b) if the adoption-related leave period is longer than 4 weeks--

the employee has given his or her employer written notice of

the proposed day of his or her return to work no later than 4

weeks before that day; or

section 94ZV or 94ZW.

(2) The employee is entitled to return:

(a) unless paragraph (b) applies--to the position he or she held

immediately before the start of the adoption-related leave

period; or

(b) if he or she was promoted or voluntarily transferred to a new

position during the adoption-related leave period--to the new

position.

(3) However, if the position (the former position) no longer exists, and

the employee is qualified and able to work for his or her employer

in another position, the employer must employ the employee in:

(a)

that

position;

(b) if there are 2 or more such positions--whichever position is

nearest in status and remuneration to the former position.

94ZZA Replacement employees--long adoption leave

(1) Before an employer engages an employee (a primary replacement)

to do the work of another employee because the other employee is

taking a continuous period of leave including (or constituted by)

adoption leave, the employer must tell the primary replacement:

(a) that the engagement to do that work is temporary; and

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(b) what the rights of the employee taking adoption leave are

under section 94ZZ when he or she returns to work after the

period of leave.

(2) Before an employer engages an employee (a secondary

replacement) to do the work of another employee (the primary

replacement) because the primary replacement has been

temporarily promoted or transferred to do the work of a third

employee while the third employee is taking a continuous period of

leave including (or constituted by) adoption leave, the employer

must tell the secondary replacement:

(a) that the engagement to do that work is temporary; and

(b) what the rights of the employee taking adoption leave are

under section 94ZZ when he or she returns to work after the

period of leave.

(3) In this section:

employee has the meaning given by subsection 4AA(1).

Subdivision K--Parental leave: service

94ZZB Parental leave and service

(1) A period of parental leave does not break an employee's continuity

of service.

(2) However, a period of parental leave does not otherwise count as

service except:

(a) for the purpose of determining the employee's entitlement to

a later period of leave under this Division; or

(b) as expressly provided by or under:

(i) a term or condition of the employee's employment; or

(ii) a law, or an instrument in force under a law, of the

Commonwealth, a State or a Territory; or

(3) In this section:

parental leave means any of the following:

(a)

maternity

leave;

(b) paid leave under subparagraph 94F(2)(b)(i) or (ii);

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(c)

paternity

leave;

(d)

pre-adoption

leave;

(e)

adoption

leave.

Part VB--Workplace agreements

Division 1--Preliminary

95 Definitions

In this Part:

Court means the Federal Court of Australia or the Federal

Magistrates Court.

new business has the meaning given by section 95B.

prohibited content has the meaning given by section 101D.

undertakings means undertakings mentioned in section 103M.

95A Single business and single employer

(1) For the purposes of this Part, a single business is:

(a) a business, project or undertaking that is carried on by an

employer; or

(b) the activities carried on by:

(i) the Commonwealth, a State or a Territory; or

(ii) a body, association, office or other entity established for

a public purpose by or under a law of the

Commonwealth, a State or a Territory; or

(iii) any other body in which the Commonwealth, a State or

a Territory has a controlling interest.

(2) For the purposes of this Part:

(a) if 2 or more employers carry on a business, project or

undertaking as a joint venture or common enterprise, the

employers are taken to be one employer; and

(b) if 2 or more corporations that are related to each other for the

purposes of the Corporations Act 2001 each carry on a single

business:

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(i) the corporations may be treated as one employer; and

(ii) the single businesses may be treated as one single

business.

(3) For the purposes of this Part, a part of a single business includes,

for example:

(a) a geographically distinct part of the single business; or

(b) a distinct operational or organisational unit within the single

business.

95B New business

For the purposes of sections 96C and 96D, an agreement relates to

a new business if:

(a) the agreement relates to:

(i) a new business, new project or new undertaking that the

employer in relation to the agreement is proposing to

establish; or

(ii) if the employer in relation to the agreement is an entity

mentioned in paragraph 95A(1)(b)--new activities

proposed to be carried on by the employer; and

(b) the business, project or undertaking is, or the activities are, a

single business (or a part of a single business).

95C AWAs with Commonwealth employees

(1) An Agency Head (within the meaning of the Public Service Act

1999) may act on behalf of the Commonwealth in relation to

AWAs with persons in the Agency who are engaged under the

Public Service Act 1999.

(2) A Secretary of a Department (within the meaning of the

Parliamentary Service Act 1999) may act on behalf of the

Commonwealth in relation to AWAs with persons in the

Department who are engaged under the Parliamentary Service Act

1999.

95D Extended operation of Part in relation to proposed workplace

agreements

So far as the context permits:

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(a) a reference in this Part to a workplace agreement includes a

reference to a proposed workplace agreement; and

(b) a reference in this Part to an employer, in relation to a

workplace agreement, includes a reference to a person who

will be an employer in relation to a proposed agreement

when it comes into operation; and

workplace agreement, includes a reference to a person who

will be an employee in relation to a proposed agreement

when it comes into operation.

95E Extraterritorial extension

(1) This Part, and the rest of this Act so far as it relates to this Part,

extends to persons, acts, omissions, matters and things outside

Australia that are connected with a workplace agreement relating

to an Australian-based employee or an Australian employer.

Note: In

this

context,

Australia includes the Territory of Christmas Island,

the Territory of Cocos (Keeling) Islands and the coastal sea. See

section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

(2) In this section:

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

Division 2--Types of workplace agreements

96 Australian workplace agreements (AWAs)

(1) An employer may make an agreement (an Australian workplace

agreement or AWA) in writing with a person whose employment

will be subject to the agreement.

(2) An AWA may be made before commencement of the employment.

96A Employee collective agreements

An employer may make an agreement (an employee collective

agreement) in writing with persons employed at the time in a

single business (or part of a single business) of the employer whose

employment will be subject to the agreement.

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96B Union collective agreements

An employer may make an agreement (a union collective

agreement) in writing with one or more organisations of

employees if, when the agreement is made, each organisation:

(a) has at least one member whose employment in a single

business (or part of a single business) of the employer will be

subject to the agreement; and

(b) is entitled to represent the industrial interests of the member

in relation to work that will be subject to the agreement.

96C Union greenfields agreements

(1) An employer may make an agreement (a union greenfields

agreement) in writing with one or more organisations of

employees if:

(a) the agreement relates to a new business that the employer

proposes to establish, or is establishing, when the agreement

is made; and

(b) the agreement is made before the employment of any of the

persons:

(i) who will be necessary for the normal operation of the

business; and

(ii) whose employment will be subject to the agreement;

and

(2) When the agreement is made, each organisation must be entitled to

represent the industrial interests of one or more of the persons,

whose employment is likely to be subject to the agreement, in

relation to work that will be subject to the agreement.

96D Employer greenfields agreements

An employer may make an agreement (an employer greenfields

agreement) in writing if:

(a) the agreement relates to a new business that the employer

proposes to establish, or is establishing, when the agreement

is made; and

(b) the agreement is made before the employment of any of the

persons:

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(i) who will be necessary for the normal operation of the

business; and

(ii) whose employment will be subject to the agreement.

96E Multiple-business agreements

(1)

multiple-business agreement is an agreement that:

(a) relates to any combination or combinations of the following:

(i) one or more single businesses;

(ii) one or more parts of single businesses;

carried on by one or more employers; and

(b) would be a collective agreement of a type mentioned in

section 96A, 96B, 96C or 96D but for the matter in

paragraph (a).

Note:

For civil remedy provisions dealing with the making or variation of a

multiple-business agreement, see sections 99A and 102I.

(2) So far as the context permits, this Part (apart from this Division)

has effect in relation to a multiple-business agreement of a

particular type as if the agreement were a collective agreement

(other than a multiple-business agreement) of that type.

(3) So far as the context permits, this Part (apart from this Division)

has effect in relation to a multiple-business agreement with more

than one employer as if a reference to the employer in relation to

an agreement were a reference to an employer in relation to the

agreement.

96F Authorisation of multiple-business agreements

(1) An employer may apply to the Employment Advocate for an

authorisation to make or vary a multiple-business agreement.

(2) The regulations may set out a procedure for applying to the

Employment Advocate for the authorisation. The Employment

Advocate need not consider an application if it is not made in

accordance with the procedure.

(3) The Employment Advocate must not grant the authorisation unless

he or she is satisfied that it is in the public interest to do so, having

regard to:

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(a) whether the matters dealt with by the agreement (or the

agreement as varied) could be more appropriately dealt with

by a collective agreement other than a multiple-business

agreement; and

(b) any other matter specified in regulations made for the

purposes of this subsection.

96G When a workplace agreement is made

For the purposes of this Act, a workplace agreement is made at

whichever of the following times is applicable:

(a) for an AWA--the time when the AWA is approved in

accordance with section 98C;

(b) for an employee collective agreement--the time when the

agreement is approved in accordance with section 98C;

employer and the organisation or organisations agree to the

terms of the agreement;

(d) for a union greenfields agreement--the time when the

employer and the organisation or organisations agree to the

terms of the agreement;

(e) for an employer greenfields agreement--the time when the

employer lodges the agreement (see section 99B).

Division 3--Bargaining agents

97 Bargaining agents--qualifications

(1) For the purposes of sections 97A and 97B, a person can be a

bargaining agent in relation to a workplace agreement at a

particular time only if the person meets the requirements in this

section at that time.

(2) The person must meet the requirements (if any) specified in the

regulations.

(3) If the person is an organisation of employees:

(a) at least one person whose employment is or will be subject to

the agreement must be a member of the organisation; and

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(b) the organisation must be entitled to represent the person's

industrial interests in relation to work that is or will be

subject to the agreement.

97A Bargaining agents--AWAs

(1) An employer or employee may appoint a person to be his or her

bargaining agent in relation to the making, variation or termination

of an AWA. The appointment must be made in writing.

Note:

Subsection 104(3) provides a civil remedy for coercion in relation to

appointments under this subsection.

(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).

(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) Subsection (2) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

97B Bargaining agents--employee collective agreements

(1) An employee whose employment is or will be subject to an

employee collective agreement may request another person (the

bargaining agent) to represent the employee in meeting and

conferring with the employer about the making or variation of the

agreement.

Note:

Subsection 104(4) provides a civil remedy for coercion in relation to

requests under this subsection.

(2) An employee whose employment is or will be subject to an

employer greenfields agreement may request another person (the

bargaining agent) to represent the employee in meeting and

conferring with the employer about the variation of the agreement.

Note:

Subsection 104(4) provides a civil remedy for coercion in relation to

requests under this subsection.

(3) The employer must give the bargaining agent a reasonable

opportunity to meet and confer with the employer about the

agreement during the period:

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(a) beginning 7 days before the agreement or variation is

approved in accordance with section 98C or section 102F;

and

(b) ending when the agreement or variation is approved.

(4) Subsection (3) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

(5) The requirement in subsection (3) ceases to apply to the employer

if at any time after the request is made the employee withdraws the

request.

(6) The Employment Advocate may issue a certificate that he or she is

satisfied of one of the following matters if he or she is so satisfied:

(a) on application by a bargaining agent--that the employee has

made a request in accordance with subsection (1) or (2) for

the bargaining agent to represent the employee in meeting

and conferring with the employer;

(b) on application by the employer--that, after the making of the

request, the requirement in subsection (3) for the employer to

give a reasonable opportunity to the bargaining agent to meet

and confer, has, because of subsection (5) or section 97,

ceased to apply to the employer.

(7) The certificate must not identify any of the employees concerned.

However, it must identify the bargaining agent, the employer and

the agreement.

(8) The certificate is, for all purposes of this Act, prima facie evidence

that the employee or employees made the request or that the

requirement has ceased to apply.

Division 4--Pre-lodgment procedure

97C Eligible employee

For the purposes of this Division, an eligible employee in relation

to a workplace agreement is:

(a) in the case of an AWA--the person whose employment will

be subject to the AWA; or

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(b) in the case of a collective agreement--a person employed by

the employer whose employment will be subject to the

agreement.

98 Providing employees with ready access and information

statement

(1) If an employer intends to have a workplace agreement (other than a

greenfields agreement) approved under section 98C, the employer

must take reasonable steps to ensure that all eligible employees in

relation to the agreement either have, or have ready access to, the

agreement in writing during the period:

(a) beginning 7 days before the agreement is approved; and

(b) ending when the agreement is approved.

(2) The employer must take reasonable steps to ensure that all eligible

employees in relation to the agreement are given an information

statement at least 7 days before the agreement is approved.

(3) Despite subsections (1) and (2), if the agreement is a collective

agreement and a person becomes an eligible employee at a time

during the period mentioned in subsection (1), the employer must

take reasonable steps to ensure that:

(a) the person is given an information statement at or before that

time; and

(b) the person either has, or has ready access to, the agreement in

writing during the period:

(i) beginning at that time; and

(ii) ending when the agreement is approved under

section 98C.

(4) The information statement mentioned in subsection (2) and

paragraph (3)(a) must contain:

(a) information about the time at which and the manner in which

the approval will be sought under section 98C; and

(b) if the agreement is an AWA--information about the effect of

sections 97 and 97A (which deal with bargaining agents);

and

information about the effect of sections 97 and 97B (which

deal with bargaining agents); and

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(d) any other information that the Employment Advocate

requires by notice published in the Gazette.

(5) If a waiver has been made under section 98A in relation to the

workplace agreement, subsection (1) and paragraph (3)(b) do not

apply in relation to a time after the waiver takes effect.

(6) For the purposes of this section, if the workplace agreement

incorporates terms from an industrial instrument mentioned in

subsection 101C(2), the eligible employees have ready access to

the workplace agreement only if they have ready access to that

instrument in writing.

(7) To avoid doubt, if the content of the workplace agreement is

changed during the period mentioned in subsection (1), the change

results in a separate workplace agreement for the purposes of this

section.

Note:

If the content of an agreement for which the employer intends

to seek approval is changed, the procedural steps set out in

subsections (1), (2) and (3) must be repeated for the resulting

separate agreement.

Contravention--ready access

(8) An employer contravenes this subsection if:

(a) the employer lodges a workplace agreement; and

(b) the employer failed to comply with subsection (1) or (if

applicable) paragraph (3)(b) in relation to the agreement.

Contravention--information statement

(9) An employer contravenes this subsection if:

(a) the employer lodges a workplace agreement; and

(b) the employer failed to comply with subsection (2) or (if

applicable) paragraph (3)(a) in relation to the agreement.

(10) Subsections (8) and (9) are civil remedy provisions.

Note:

See Division 11 for provisions on enforcement.

(11) An employer cannot contravene subsection (8) or (9) more than

once in relation to the lodgment of a particular workplace

agreement.

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98A Employees may waive ready access

(1) The persons mentioned in subsection (2) may make a waiver under

this section in relation to a workplace agreement.

(2) The persons are all the eligible employees at the time the waiver is

made.

(3) The waiver must be in writing and dated.

(4) The waiver is made when all the persons mentioned in

subsection (2) sign the waiver.

(5) The waiver takes effect when it is made.

98B Prohibition on withdrawal from union collective agreement

(1) An employer that has made a union collective agreement must take

reasonable steps to seek approval for the agreement under

section 98C, within a reasonable period after the agreement was

made.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

98C Approval of a workplace agreement

(1) An AWA is approved if:

(a) the AWA is signed and dated by the employee and the

employer; and

(b) those signatures are witnessed; and

(i) the AWA is signed and dated by an appropriate person

(such as a parent or guardian of the employee, but not

the employer) on behalf of the employee, for the

purpose of indicating that person's consent to the

employee making the AWA; and

(ii) that person is aged at least 18 years; and

(iii) that person's signature is witnessed.

(2) An employee collective agreement or union collective agreement is

approved if:

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(a) the employer has given all of the persons employed at the

time whose employment will be subject to the agreement a

reasonable opportunity to decide whether they want to

approve the agreement; and

(b)

either:

(i) if the decision is made by a vote--a majority of those

persons who cast a valid vote decide that they want to

approve the agreement; or

(ii) otherwise--a majority of those persons decide that they

want to approve the agreement.

98D Employer must not lodge unapproved agreement

(1) An employer contravenes this subsection if:

(a) the employer lodges a workplace agreement (other than a

greenfields agreement); and

(b) the agreement has not been approved in accordance with

section 98C.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

Division 5--Lodgment

99 Employer must lodge certain workplace agreements with the

Employment Advocate

(1) If an AWA, an employee collective agreement or a union

collective agreement has been approved in accordance with

section 98C, the employer must lodge the agreement, in

accordance with section 99B, within 14 days after the approval.

(2) If a union greenfields agreement has been made, the employer

must lodge the agreement, in accordance with section 99B, within

14 days after the agreement was made.

(3) Subsections (1) and (2) are civil remedy provisions.

Note:

See Division 11 for provisions on enforcement.

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99A Lodging multiple-business agreement without authorisation

(1) An employer contravenes this section if:

(a) the employer lodges a multiple-business agreement; and

(b) the agreement has not been authorised under section 96F.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

99B Lodging of workplace agreement documents with the

Employment Advocate

(1) The employer in relation to a workplace agreement lodges the

workplace agreement with the Employment Advocate if:

(a) the employer lodges a declaration under subsection (2); and

(b) a copy of the workplace agreement is annexed to the

declaration.

(2)

employer

lodges a declaration with the Employment Advocate

if:

(a) the employer gives it to the Employment Advocate; and

(b) it meets the form requirements mentioned in subsection (3).

Note:

Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

(3) The Employment Advocate may, by notice published in the

Gazette, set out requirements for the form of a declaration for the

purposes of paragraph (2)(b).

(4) A declaration is given to the Employment Advocate for the

purposes of subsection (2) only if the declaration is actually

received by the Employment Advocate.

Note:

This means that section 29 of the Acts Interpretation Act 1901 (to the

extent that it deals with the time of service of documents) and

section 160 of the Evidence Act 1995 do not apply to lodgment of a

declaration.

(5) The Employment Advocate is not required to consider or

determine whether any of the requirements of this Part have been

met in relation to the making or content of anything annexed to a

declaration lodged in accordance with subsection (2).

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99C Employment Advocate must issue receipt for lodgment of

declaration for workplace agreement

(1) If a declaration is lodged under subsection 99B(2), the

Employment Advocate must issue a receipt for the lodgment.

(2) The Employment Advocate must give a copy of the receipt to:

(a) the employer in relation to the workplace agreement; and

(b) if the workplace agreement is an AWA--the employee; and

greenfields agreement--the organisation or organisations

bound by the agreement.

99D Employer must notify employees after lodging workplace

agreement

(1) An employer that has received a receipt under section 99C in

relation to a collective agreement must take reasonable steps to

ensure that all persons whose employment is subject to the

agreement when the employer receives the receipt are given a copy

of the receipt within 21 days.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

(3) This section does not apply in relation to a greenfields agreement.

Division 6--Operation of workplace agreements and

persons bound

100 When a workplace agreement is in operation

(1) A workplace agreement comes into operation on the day the

agreement is lodged.

(2) A workplace agreement comes into operation even if the

requirements in Divisions 3 and 4 have not been met in relation to

the agreement.

(3) A multiple-business agreement comes into operation only if it has

been authorised under section 96F.

(4) A workplace agreement ceases to be in operation if:

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(a) it is terminated in accordance with Division 9; or

(b) in the case of an AWA--it is replaced by another AWA; or

(5) A collective agreement ceases to be in operation in relation to an

employee if it has:

(a) passed its nominal expiry date; and

(b) been replaced by another collective agreement in relation to

that employee.

Note:

Part VIAA sets out the circumstances in which a workplace agreement

binding an employer because of transmission of business will cease to

operate.

(6) A multiple-business agreement ceases to operate in relation to a

single business (or a part of a single business) if:

(a) the multiple-business agreement came into operation on a

particular day; and

(b) a collective agreement (other than a multiple-business

agreement) was lodged on a later day; and

apply in relation to the same single business (or the same part

of the single business).

Example: Employers A, B and C lodge a multiple-business agreement which has

a nominal expiry date 5 years after it is lodged. Six months later

employer B lodges a collective agreement that applies in relation to its

single business. This means that the multiple-business agreement

ceases to operate in relation to that single business.

(7) If a workplace agreement has ceased operating under

subsection (4), it can never operate again.

(8) If a workplace agreement has ceased operating in relation to an

employee because of subsection (5), the agreement can never

operate again in relation to that employee.

(9) If a multiple-business agreement has ceased operating in relation to

a single business (or a part of a single business), the agreement can

never operate again in relation to that single business (or part of a

business).

(10)

If:

(a) a person or entity is the employer bound by a workplace

agreement; and

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(b) the person or entity ceases to be an employer within the

meaning of subsection 4AB(1);

the agreement ceases to be in operation.

(11) Despite subsection (10), if the agreement mentioned in that

subsection is a multiple-business agreement, it ceases to be in

operation only in relation to a single business or part of a single

business carried on by the person or entity.

100A Relationship between overlapping workplace agreements

(1) Only one workplace agreement can have effect at a particular time

in relation to a particular employee.

(2) A collective agreement has no effect in relation to an employee

while an AWA operates in relation to the employee.

(3)

If:

(a) a collective agreement (the first agreement) binding an

employee is in operation; and

(b) another collective agreement (the later agreement) binding

the employee is lodged before the nominal expiry date of the

first agreement;

the later agreement has no effect in relation to the employee until

the nominal expiry date of the first agreement.

Note:

After that date, the first agreement ceases operating in relation to the

employee (see subsection 100(5)), and the later agreement takes effect

in relation to the employee.

100B Effect of awards while workplace agreement is in operation

An award has no effect in relation to an employee while a

workplace agreement operates in relation to the employee.

100C Workplace agreement displaces certain Commonwealth laws

(1) To the extent of any inconsistency, a workplace agreement

displaces prescribed conditions of employment specified in a

Commonwealth law that is prescribed by the regulations.

(2) In this section:

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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.

100D Persons bound by workplace agreements

A workplace agreement that is in operation binds:

(a) the employer in relation to the agreement; and

(b) all persons whose employment is, at any time when the

agreement is in operation, subject to the agreement; and

greenfields agreement--the organisation or organisations of

employees with which the employer made the agreement.

Note:

A person can be bound by a workplace agreement because of

Part VIAA (which deals with transmission of business).

Division 7--Content of workplace agreements

Subdivision A--Required content

Note:

For the operation of the Australian Fair Pay and Conditions Standard, see Part VA.

101 Nominal expiry date

(1)

The

nominal expiry date of a workplace agreement is:

(a) in the case of a greenfields agreement:

(i) if a date is specified in the agreement as its nominal

expiry date, and that date is no later than the first

anniversary of the date on which the agreement was

lodged--that specified date; or

(ii) otherwise--the first anniversary of the date on which

the agreement was lodged; or

(b)

otherwise:

(i) if a date is specified in the agreement as its nominal

expiry date, and that date is no later than the fifth

anniversary of the date on which the agreement was

lodged--that specified date; or

(ii) otherwise--the fifth anniversary of the date on which

the agreement was lodged.

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(2) However, if the agreement has been varied to extend its nominal

expiry date, the nominal expiry date of the agreement is:

(a) in the case of a greenfields agreement--the earlier of the

following dates:

(i) the date specified in the agreement as varied as its

nominal expiry date;

(ii) the first anniversary of the date on which the agreement

was lodged; or

(b) otherwise--the earlier of the following dates:

(i) the date specified in the agreement as varied as its

nominal expiry date;

(ii) the fifth anniversary of the date on which the agreement

was lodged.

101A Workplace agreement to include dispute settlement

procedures

(1) A workplace agreement must include procedures for settling

disputes (dispute settlement procedures) about matters arising

under the agreement between:

(a) the employer; and

(b) the employees whose employment will be subject to the

agreement.

(2) If a workplace agreement does not include dispute settlement

procedures, the agreement is taken to include the model dispute

resolution process mentioned in Part VIIA.

101B Protected award conditions

(1) This section applies if:

(a) a person's employment is subject to a workplace agreement;

and

(b) protected award conditions would have effect (but for the

agreement) in relation to the employment of the person.

(2) Those protected award conditions:

(a) are taken to be included in the workplace agreement; and

(b) have effect in relation to the employment of that person; and

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agreement that expressly exclude or modify all or part of

them.

(3) In this section:

outworker means an employee who, for the purposes of the

business of the employer, performs work at private residential

premises or at other premises that are not business or commercial

premises of the employer.

outworker conditions means conditions (other than pay) for

outworkers, but only to the extent necessary to ensure that their

overall conditions of employment are fair and reasonable in

comparison with the conditions of employment specified in a

relevant award or awards for employees who perform the same

kind of work at an employer's business or commercial premises.

protected allowable award matters means the following matters:

(a)

rest

breaks;

(b) incentive-based payments and bonuses;

(d) observance of days declared by or under a law of a State or

Territory to be observed generally within that State or

Territory, or a region of that State or Territory, as public

holidays by employees who work in that State, Territory or

region, and entitlements of employees to payment in respect

of those days;

(e) monetary allowances for:

(i) expenses incurred in the course of employment; or

(ii) responsibilities or skills that are not taken into account

in rates of pay for employees; or

(iii) disabilities associated with the performance of particular

tasks or work in particular conditions or locations;

(f) loadings for working overtime or for shift work;

(g)

penalty

rates;

(h)

outworker

conditions;

(i) any other matter specified in the regulations.

Note:

These matters are the same as certain allowable award matters

mentioned in section 116.

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protected award conditions means the terms of an award, as in

force from time to time, to the extent that those terms:

(a) are about protected allowable award matters; and

(b) are not about:

(i) matters mentioned in section 116B; or

(ii) any other matters specified in the regulations.

101C Calling up content of other documents

(1) A workplace agreement may incorporate by reference terms from

an industrial instrument mentioned in subsection (2) only if the

requirements in subsection (3) are satisfied.

(2) The industrial instruments are as follows:

(a) a workplace agreement;

(b)

award.

Note:

For pre-reform certified agreements, see clause 9 in Schedule 14.

(3) The requirements are as follows:

(a) if the industrial instrument is an award:

(i) just before the agreement is made the award regulates

any term or condition of employment of persons

engaged in a particular kind of work; and

(ii) the employment of a person engaged in that kind of

work will be subject to the agreement when the

agreement comes into operation; and

(iii) the award is binding on the employer in relation to the

agreement just before the agreement is made;

(b) if the industrial instrument is a workplace agreement--it

regulates, just before the agreement mentioned in

subsection (1) is made, the employment of at least one person

whose employment will be subject to the agreement

mentioned in subsection (1) when that agreement comes into

operation.

(4) If those requirements are satisfied, the workplace agreement may

incorporate terms by reference from the industrial instrument:

(a) as in operation just before the agreement is made; or

(b) as varied from time to time.

(5) A term of a workplace agreement is void to the extent that:

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(a) it incorporates by reference terms from an industrial

instrument mentioned in subsection (2); and

(b) the requirements in subsection (3) are not satisfied.

(6) A term of a workplace agreement is void to the extent that it

incorporates by reference terms from any of the following

instruments (other than an instrument mentioned in subsection (2)):

(a) an award or agreement regulating terms and conditions of

employment that is in force under a law of a State (other than

a contract of employment);

(b) an agreement, arrangement, deed or memorandum of

understanding, that:

(i) regulates terms and conditions of employment; and

(ii) was created by a process of collective negotiation;

(7) A term of a workplace agreement is void to the extent that it

applies or adopts terms from an instrument mentioned in

subsection (2) or (6), without incorporating those terms by

reference in accordance with this section.

Subdivision B--Prohibited content

101D Prohibited content

The regulations may specify matters that are prohibited content for

the purposes of this Act.

101E Employer must not lodge agreement containing prohibited

content

(1) An employer contravenes this subsection if:

(a) the employer lodges a workplace agreement (or a variation to

a workplace agreement); and

(b) the agreement (or the agreement as varied) contains

prohibited content; and

the agreement as varied) contains prohibited content.

(2) Subsection (1) does not apply if:

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(a) before the agreement (or variation) was lodged, the

Employment Advocate advised the employer that the

agreement (or the agreement as varied) did not contain

prohibited content; and

(b) that advice was in the form specified in regulations made for

the purposes of this subsection.

(3) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

101F Prohibited content in workplace agreement is void

A term of a workplace agreement is void to the extent that it

contains prohibited content.

Note 1:

The Employment Advocate can vary the workplace agreement to

remove prohibited content (see section 101K).

Note 2:

For civil remedy provisions relating to including prohibited content in

a workplace agreement, see sections 101E, 101M and 101N.

101G Initiating consideration of removal of prohibited content

(1) The Employment Advocate may exercise his or her power under

section 101K to vary a workplace agreement to remove prohibited

content:

(a) on his or her own initiative; or

(b) on application by any person.

(2) This section and sections 101H, 101I and 101K are taken to be an

exhaustive statement of the requirements of the natural justice

hearing rule in relation to the Employment Advocate's decision

whether to make a variation under section 101K.

101H Employment Advocate must give notice that he or she is

considering variation

(1) If the Employment Advocate is considering making a variation to a

workplace agreement under section 101K, the Employment

Advocate must give the persons mentioned in subsection (2) a

written notice meeting the requirements in subsection 101I(1).

(2) The persons are:

(a) the employer in relation to the workplace agreement; and

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(b) if the workplace agreement is an AWA--the employee; and

greenfields agreement--the organisation or organisations

bound by the agreement.

101I Matters to be contained in notice

(1) The requirements mentioned in subsection 101H(1) are that the

notice must:

(a) be dated; and

(b) state that the Employment Advocate is considering making

the variation; and

considering making the variation; and

(d) set out the terms of the variation; and

(e) invite each person mentioned in subsection (2) to make a

written submission to the Employment Advocate about

whether the Employment Advocate should make the

variation; and

(f) state that any submission must be made within the period (the

objection period) of 28 days after the date of the notice.

(2) The persons are:

(a) the employer in relation to the workplace agreement; and

(b) each person whose employment is subject to the agreement at

the date of the notice; and

greenfields agreement--the organisation or organisations

bound by the agreement.

101J Employer must ensure employees have ready access to notice

(1) An employer that has received a notice under section 101H in

relation to a collective agreement must take reasonable steps to

ensure that all persons whose employment is subject to the

agreement at a time during the objection period are given a copy of

the notice as soon as practicable.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

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101K Employment Advocate must remove prohibited content from

agreement

(1) If the Employment Advocate is satisfied that a term of the

workplace agreement contains prohibited content, the Employment

Advocate must vary the agreement so as to remove that content.

(2) In making a decision under subsection (1), the Employment

Advocate must consider all written submissions (if any) received

within the objection period from persons mentioned in subsection

101I(2).

(3) The Employment Advocate must not make the variation before the

end of the objection period.

(4) If the Employment Advocate decides to make the variation, he or

she must:

(a) give the persons mentioned in subsection 101H(2) written

notice of the decision, including the terms of the variation;

and

(b) if the workplace agreement is a collective agreement--

publish a notice in the Gazette stating that the variation has

been made and setting out particulars of the variation.

101L Employer must give employees notice of removal of prohibited

content

(1) An employer that has received a notice under subsection 101K(4)

in relation to a collective agreement must take reasonable steps to

ensure that all persons whose employment is subject to the

agreement when the employer receives the notice are given a copy

of the notice within 21 days.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

101M Seeking to include prohibited content in an agreement

(1) A person contravenes this subsection if:

(a) the person seeks to include a term:

(i) in a workplace agreement in the course of negotiations

for the agreement; or

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(ii) in a variation to a workplace agreement in the course of

negotiations for the variation; and

(b) that term contains prohibited content; and

prohibited content.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

101N Misrepresentations about prohibited content

(1) A person contravenes this subsection if:

(a)

the

person makes a misrepresentation in relation to a

workplace agreement (or a variation to a workplace

agreement) that a particular term does not contain prohibited

content; and

(b) the person is reckless as to whether the term contains

prohibited content.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

Division 8--Varying a workplace agreement

Subdivision A--General

102 Varying a workplace agreement

(1) The following persons may make a variation, in writing, to a

workplace agreement that is in operation:

(a) in the case of an AWA--the employer and the employee;

(b) in the case of an employee collective agreement or an

employer greenfields agreement--the employer and the

persons whose employment will be subject to the agreement

as varied;

greenfields agreement--the employer and the one or more

organisations of employees that are bound by the agreement.

Example: A workplace agreement may be varied to provide additional pay.

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(2) A workplace agreement cannot be varied except in accordance

with:

(a) this Division; or

(b) section 101K (which deals with prohibited content); or

(d) an order of the Court under section 105G.

Note:

Subsection (2) would not apply where the obligations under the

agreement can change because of the terms of the agreement itself.

102A When a variation to a workplace agreement is made

For the purposes of this Act, a variation to a workplace agreement

is made at whichever of the following times is applicable:

(a) for an AWA--the time when the variation is approved in

accordance with section 102F;

(b) for an employee collective agreement--the time when the

variation is approved in accordance with section 102F;

employer and the organisation or organisations agree to the

terms of the variation;

(d) for a union greenfields agreement--the time when the

employer and the organisation or organisations agree to the

terms of the variation;

(e) for an employer greenfields agreement--the time when the

employer lodges the variation (see section 102J).

Subdivision B--Pre-lodgment procedure for variations

102B Eligible employee in relation to variation of workplace

agreement

For the purposes of this Subdivision, an eligible employee in

relation to a variation to a workplace agreement is:

(a) in the case of an AWA--the employee; or

(b) in the case of a collective agreement:

(i) a person whose employment is subject to the agreement;

(ii) a person employed by the employer whose employment

will be subject to the agreement as varied.

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102C Providing employees with ready access and information

statement

(1) If an employer intends to have a variation to a workplace

agreement approved under section 102F, the employer must take

reasonable steps to ensure that all eligible employees in relation to

the variation either have, or have ready access to, the variation in

writing during the period:

(a) beginning 7 days before the variation is approved; and

(b) ending when the variation is approved.

(2) The employer must take reasonable steps to ensure that all eligible

employees in relation to the variation are given an information

statement at least 7 days before the variation is approved.

(3) Despite subsections (1) and (2), if the variation is to a collective

agreement and a person becomes an eligible employee at a time

during the period mentioned in subsection (1), the employer must

take reasonable steps to ensure that:

(a) the person is given an information statement at or before that

time; and

(b) the person either has, or has ready access to, the variation in

writing during the period:

(i) beginning at that time; and

(ii) ending when the variation is approved under

section 102F.

(4) The information statement mentioned in subsection (2) and

paragraph (3)(a) must contain:

(a) information about the time at which and the manner in which

the approval will be sought under section 102F; and

(b) if the relevant workplace agreement is an AWA--

information about the effect of sections 97 and 97A (which

deal with bargaining agents); and

collective agreement or employer greenfields agreement--

information about the effect of sections 97 and 97B (which

deal with bargaining agents); and

(d) any other information that the Employment Advocate

requires by notice published in the Gazette.

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(5) If a waiver has been made under section 102D in relation to the

variation, subsection (1) and paragraph (3)(b) do not apply in

relation to a time after the waiver takes effect.

(6) For the purposes of this section, if because of the variation, the

agreement as varied would incorporate terms from an industrial

instrument mentioned in subsection 101C(2), the eligible

employees have ready access to the variation only if they have

ready access to that instrument in writing.

(7) To avoid doubt, if the content of the variation is changed during

the period mentioned in subsection (1), the change results in a

separate variation for the purposes of this section.

Note:

If the content of a variation for which the employer intends to

seek approval is changed, the procedural steps set out in

subsections (1), (2) and (3) must be repeated for the resulting

separate variation.

Contravention--ready access

(8) An employer contravenes this subsection if:

(a) the employer lodges a variation to a workplace agreement;

and

(b) the employer failed to comply with subsection (1) or (if

applicable) paragraph (3)(b) in relation to the variation.

Contravention--information statement

(9) An employer contravenes this subsection if:

(a) the employer lodges a variation to a workplace agreement;

and

(b) the employer failed to comply with subsection (2) or (if

applicable) paragraph (3)(a) in relation to the variation.

(10) Subsections (8) and (9) are civil remedy provisions.

Note:

See Division 11 for provisions on enforcement.

(11) An employer cannot contravene subsection (8) or (9) more than

once in relation to the lodgment of a particular variation.

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102D Employees may waive ready access

(1) The persons mentioned in subsection (2) may make a waiver under

this section in relation to a variation to a workplace agreement.

(2) The persons are all the eligible employees at the time the waiver is

made.

(3) The waiver must be in writing and dated.

(4) The waiver is made when all the persons mentioned in

subsection (2) sign the waiver.

(5) The waiver takes effect when it is made.

102E Prohibition on withdrawal from variation to union collective

agreement

(1) An employer that has made a variation to a union collective

agreement or a union greenfields agreement must take reasonable

steps to seek approval for the variation under section 102F, within

a reasonable period after the variation was made.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

102F Approval of a variation to a workplace agreement

(1) A variation to an AWA is approved if:

(a) the variation is signed and dated by the employee and the

employer; and

(b) those signatures are witnessed; and

(i) the variation is signed and dated by an appropriate

person (such as a parent or guardian of the employee,

but not the employer) on behalf of the employee, for the

purpose of indicating that person's consent to the

employee making the variation; and

(ii) that person is aged at least 18 years; and

(iii) that person's signature is witnessed.

(2) A variation to a collective agreement is approved if:

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(a) the employer has given all of the persons employed at the

time whose employment:

(i) is subject to the agreement; or

(ii) will be subject to the agreement as varied;

a reasonable opportunity to decide whether they want to

approve the variation; and

(b)

either:

(i) if the decision is made by a vote--a majority of those

persons who cast a valid vote decide that they want to

approve the variation; or

(ii) otherwise--a majority of those persons decide that they

want to approve the variation.

102G Employer must not lodge unapproved variation

(1) An employer contravenes this section if:

(a) the employer lodges a variation to a workplace agreement;

and

(b) the variation has not been approved in accordance with

section 102F.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

Subdivision C--Lodgment of variations

102H Employer must lodge variations with the Employment

Advocate

(1) If a variation has been approved in accordance with section 102F,

the employer must lodge the variation, in accordance with

section 102J, within 14 days after the variation was approved.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

102I Lodging variation to multiple-business agreement without

authorisation

(1) An employer contravenes this subsection if:

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(a) the employer lodges a variation to a multiple-business

agreement; and

(b) the variation has not been authorised under section 96F.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

102J Lodging of variation documents with the Employment

Advocate

(1) The employer in relation to a variation to a workplace agreement

lodges the variation with the Employment Advocate if:

(a) the employer lodges a declaration under subsection (2); and

(b) a copy of the variation is annexed to the declaration.

(2)

employer

lodges a declaration with the Employment Advocate

if:

(a) the employer gives it to the Employment Advocate; and

(b) it meets the form requirements mentioned in subsection (3).

Note:

Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

(3) The Employment Advocate may, by notice published in the

Gazette, set out requirements for the form of a declaration for the

purposes of paragraph (2)(b).

(4) A declaration is given to the Employment Advocate for the

purposes of subsection (2) only if the declaration is actually

received by the Employment Advocate.

Note:

This means that section 29 of the Acts Interpretation Act 1901 (to the

extent that it deals with the time of service of documents) and

section 160 of the Evidence Act 1995 do not apply to lodgment of a

declaration.

(5) The Employment Advocate is not required to consider or

determine whether any of the requirements of this Part have been

met in relation to the making or content of anything annexed to a

declaration lodged in accordance with subsection (2).

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102K Employment Advocate must issue receipt for lodgment of

declaration for variation

(1) If a declaration is lodged under subsection 102J(2), the

Employment Advocate must issue a receipt for the lodgment.

(2) The Employment Advocate must give a copy of the receipt to:

(a) the employer in relation to the relevant workplace agreement;

and

(b) if the relevant workplace agreement is an AWA--the

employee; and

agreement or a union greenfields agreement--the

organisation or organisations bound by the agreement.

102L Employer must notify employees after lodging variation

(1) An employer that has received a receipt under section 102K in

relation to a collective agreement must take reasonable steps to

ensure that all persons whose employment is subject to the

agreement when the employer receives the receipt are given a copy

of the receipt within 21 days.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

Subdivision D--When a variation comes into operation

102M When a variation comes into operation

(1) A variation to a workplace agreement comes into operation when

the variation is lodged with the Employment Advocate in

accordance with section 102J.

(2) The variation comes into operation even if the requirements in

Division 3 and Subdivision B of this Division have not been met in

relation to the variation.

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Division 9--Terminating a workplace agreement

Subdivision A--General

103 Types of termination

(1) A workplace agreement may be terminated:

(a) by approval (see Subdivisions B and C); or

(b) unilaterally (see Subdivision D).

(2) A workplace agreement is terminated when:

(a) a termination of the agreement is lodged with the

Employment Advocate in accordance with section 103H; or

(b) a declaration to terminate the agreement in accordance with

subsection 103K(2) is lodged with the Employment

Advocate in accordance with section 103N; or

subsection 103L(2) is lodged with the Employment Advocate

in accordance with section 103N.

Subdivision B--Termination by approval (pre-lodgment

procedure)

103A Terminating a workplace agreement by approval

A workplace agreement may be terminated in accordance with this

Subdivision by the following:

(a) in the case of an AWA--the employer and the employee;

(b) in the case of an employee collective agreement or an

employer greenfields agreement--the employer and the

employees whose employment is subject to the agreement;

greenfields agreement--the employer and the one or more

organisations of employees that are bound by the agreement.

103B Eligible employee in relation to termination of workplace

agreement

For the purposes of this Subdivision, an eligible employee in

relation to a termination of a workplace agreement in accordance

with this Subdivision is:

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(a) in the case of an AWA--the employee; or

(b) in the case of a collective agreement--a person employed at

the time whose employment is subject to the agreement.

103C Providing employees with information statement

(1) If an employer intends to have the termination of a workplace

agreement approved under section 103E, the employer must take

reasonable steps to ensure that all eligible employees in relation to

the termination are given an information statement at or before the

start of the period of 7 days ending when the termination is

approved.

(2) Despite subsection (1), if the relevant workplace agreement is a

collective agreement and a person becomes an eligible employee at

a time during the period mentioned in subsection (1), the employer

must take reasonable steps to ensure that the person is given an

information statement at or before that time.

(3) The information statement mentioned in subsections (1) and (2)

must contain:

(a) information about the time at which and the manner in which

the approval will be sought under section 103E; and

(b) if the relevant workplace agreement is an AWA--

information about the effect of sections 97 and 97A (which

deal with bargaining agents); and

requires by notice published in the Gazette.

Contravention--information statement

(4) An employer contravenes this subsection if:

(a) the employer lodges a declaration to terminate a workplace

agreement; and

(b) the employer failed to comply with subsection (1) or (if

applicable) subsection (2) in relation to the termination.

(5) Subsection (4) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

(6) An employer cannot contravene subsection (4) more than once in

relation to the lodgment of a particular termination.

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103D Prohibition on withdrawal from variation to union collective

agreement

(1) An employer that has agreed to terminate a union collective

agreement or a union greenfields agreement with the organisation

or organisations bound by the agreement must take reasonable

steps to seek approval for the termination under section 103E,

within a reasonable period after agreeing to do so.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

103E Approval of a termination

(1) A termination of an AWA is approved if:

(a) the employer and employee make a written termination

agreement to terminate the AWA; and

(b) the termination agreement is signed and dated by the

employee and the employer; and

(d) if the employee is under the age of 18 years:

(i) the termination agreement is signed and dated by an

appropriate person (such as a parent or guardian of the

employee, but not the employer) on behalf of the

employee, for the purpose of indicating that person's

consent to the employee terminating the AWA; and

(ii) that person is aged at least 18 years; and

(iii) that person's signature is witnessed.

(2) A termination of a collective agreement is approved if:

(a) the employer has given all of the persons employed at the

time whose employment is subject to the agreement a

reasonable opportunity to decide whether they want to

approve the termination; and

(b)

either:

(i) if the decision is made by a vote--a majority of those

persons who cast a valid vote decide that they want to

approve the termination; or

(ii) otherwise--a majority of those persons decide that they

want to approve the termination.

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103F Employer must not lodge unapproved termination

(1) An employer contravenes this subsection if:

(a) the employer lodges a termination of a workplace agreement;

and

(b) the termination has not been approved in accordance with

section 103E.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

Subdivision C--Termination by approval (lodgment)

103G Employer must lodge termination with the Employment

Advocate

(1) If a termination has been approved in accordance with

section 103E, the employer must lodge the termination, in

accordance with section 103H, within 14 days after the termination

was approved.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

103H Lodging termination documents with the Employment

Advocate

(1) The employer in relation to a workplace agreement to be

terminated lodges the termination with the Employment Advocate

if:

(a) the employer lodges a declaration under subsection (2) for

the termination of the workplace agreement; and

(b) if the workplace agreement is an AWA--a copy of the

termination agreement is annexed to the declaration.

(2)

employer

lodges a declaration with the Employment Advocate

if:

(a) the employer gives it to the Employment Advocate; and

(b) it meets the form requirements mentioned in subsection (3).

Note:

Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

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(3) The Employment Advocate may, by notice published in the

Gazette, set out requirements for the form of a declaration for the

purposes of paragraph (2)(b).

(4) A declaration is given to the Employment Advocate for the

purposes of subsection (2) only if the declaration is actually

received by the Employment Advocate.

Note:

This means that section 29 of the Acts Interpretation Act 1901 (to the

extent that it deals with the time of service of documents) and

section 160 of the Evidence Act 1995 do not apply to lodgment of a

declaration.

(5) The Employment Advocate is not required to consider or

determine whether any of the requirements of this Division (other

than this section) have been met in relation to the termination.

103I Employment Advocate must issue receipt for lodgment of

declaration for termination

(1) If a declaration is lodged under subsection 103H(2), the

Employment Advocate must issue a receipt for the lodgment.

(2) The Employment Advocate must give a copy of the receipt to:

(a) the employer in relation to the relevant workplace agreement;

and

(b) if the relevant workplace agreement is an AWA--the

employee; and

agreement or a union greenfields agreement--the

organisation or organisations bound by the agreement.

103J Employer must notify employees after lodging termination

(1) An employer that has received a receipt under section 103I in

relation to a collective agreement must take reasonable steps to

ensure that all persons whose employment was subject to the

agreement just before the declaration was lodged are given a copy

of the receipt within 21 days.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

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Subdivision D--Unilateral termination after nominal expiry

date

103K Unilateral termination in a manner provided for in workplace

agreement

(1) This section applies if a workplace agreement provides for a

manner of terminating the agreement after its nominal expiry date.

(2) Any of the following persons may terminate the agreement by

lodging a declaration in accordance with section 103N:

(a) the employer in relation to the agreement;

(b) a majority of the employees whose employment is subject to

the agreement when the notice mentioned in subsection (4) is

given;

the employer or the employee;

(d) an organisation of employees that is bound by the agreement.

Note:

Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

(3) However, this may be done only if:

(a) the nominal expiry date of the workplace agreement has

passed; and

(b) all the requirements in the agreement for terminating the

agreement are met.

(4) At least 14 days before the lodgment, the person or persons

intending to lodge the declaration must take reasonable steps to

ensure that the following are given written notice of the

termination:

(a) the employer in relation to the agreement;

(b) each employee whose employment is subject to the

agreement when the notice is given;

(5) The notice must:

(a) state that the workplace agreement is to be terminated in the

manner provided for by the agreement; and

(b) be in the form (if any) that the Employment Advocate

requires by notice published in the Gazette; and

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Advocate requires by notice published in the Gazette.

(6) A person contravenes this subsection if:

(a) the person lodges a declaration to terminate a workplace

agreement under subsection (2); and

(b) the person failed to comply with subsection (4) or (5).

(7) Subsection (6) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

(8) This section does not apply in relation to a multiple-business

agreement.

103L Unilateral termination with 90 days written notice

(1) This section applies whether or not a workplace agreement

provides for a manner of terminating the agreement after its

nominal expiry date.

(2) Any of the following persons may terminate the agreement by

lodging a declaration in accordance with section 103N:

(a) the employer in relation to the agreement;

(b) a majority of the employees whose employment is subject to

the agreement when the notice mentioned in subsection (4) is

given;

the employer or the employee;

(d) an organisation of employees that is bound by the agreement.

Note:

Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

(3) However, this may be done only if the nominal expiry date of the

workplace agreement has passed.

(4) At least 90 days before the lodgment, the person or persons

intending to lodge the declaration must take reasonable steps to

ensure that:

(a) the following are given written notice of the termination:

(i) the employer in relation to the agreement;

(ii) each employee whose employment is subject to the

agreement when the notice is given;

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(iii) an organisation of employees that is bound by the

agreement; and

(b) if the person giving the notice is the employer bound by the

agreement--a written copy of the undertakings (if any) made

by the employer under section 103M.

(5) The notice must:

(a) state that the workplace agreement is to be terminated; and

(b) specify the day on which the person or persons propose to

lodge the notice; and

requires by notice published in the Gazette; and

(d) contain the information (if any) that the Employment

Advocate requires by notice published in the Gazette.

(6) A person contravenes this subsection if:

(a) the person lodges a declaration to terminate a workplace

agreement under subsection (2); and

(b) the person failed to comply with subsection (4) or (5).

Note:

See Division 11 for provisions on enforcement.

(7) Subsection (6) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

(8) This section does not apply in relation to a multiple-business

agreement.

103M Undertakings about post-termination conditions

(1) An employer intending to terminate a workplace agreement under

subsection 103L(2) may make undertakings as to the terms and

conditions of employment of employees who were bound by the

workplace agreement just before it was terminated.

(2) The undertakings come into operation on the day that the

workplace agreement is terminated.

(3) The undertakings cease to operate in relation to an employee when

the employee's employment becomes subject to a later workplace

agreement.

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(4) Subject to this section, the following provisions apply to the

undertakings as if they were a workplace agreement in operation:

(a)

Part

VIII;

(b)

Part

(5) An employer contravenes this subsection if:

(a) the employer lodges a declaration to terminate a workplace

agreement under subsection (2); and

(b) the employer has made undertakings in relation to that

termination; and

declaration.

(6) Subsection (5) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

(7) If undertakings have ceased operating in relation to an employee

because of subsection (3), they can never operate again in relation

to that employee.

103N Lodging unilateral termination documents with the

Employment Advocate

(1)

person

lodges a declaration to terminate a workplace agreement

under section 103K or 103L with the Employment Advocate if:

(a) the person gives it to the Employment Advocate; and

(b) it meets the form requirements mentioned in subsection (3).

Note:

Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

(2) If the person is the employer in relation to the agreement, the

employer lodges undertakings in relation to the termination if:

(a) the employer lodges a declaration under subsection (1); and

(b) a copy of the undertakings is annexed to the declaration.

(3) The Employment Advocate may, by notice published in the

Gazette, set out requirements for the form of a declaration for the

purposes of paragraph (1)(b).

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(4) A declaration is given to the Employment Advocate for the

purposes of subsection (1) only if the declaration is actually

received by the Employment Advocate.

Note:

This means that section 29 of the Acts Interpretation Act 1901 (to the

extent that it deals with the time of service of documents) and

section 160 of the Evidence Act 1995 do not apply to lodgment of a

declaration.

(5) The Employment Advocate is not required to consider or

determine whether any of the requirements of this Subdivision

(apart from this section) have been met in relation to the

termination.

103O Employment Advocate must issue receipt for lodgment of

declaration for notice of termination

(1) If a declaration is lodged under subsection 103N(1) the

Employment Advocate must issue a receipt for the lodgment.

(2) The Employment Advocate must give a copy of the receipt to:

(a) the person that lodged the declaration; and

(b) the employer in relation to the relevant workplace agreement;

and

employee; and

(d) if the relevant workplace agreement is a union collective

agreement or a union greenfields agreement--the

organisation or organisations bound by the agreement.

103P Employer must notify employees after lodging notice of

termination

(1) An employer that has received a receipt under section 103O in

relation to a collective agreement must take reasonable steps to

ensure that all persons whose employment was subject to the

agreement just before the declaration was lodged are given a copy

of the receipt within 21 days.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

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Subdivision E--Effect of termination

103Q When a termination takes effect

A termination takes effect even if:

(a) the requirements in Division 3 have not been met in relation

to the termination; or

(b) in the case of a termination mentioned in paragraph

103(2)(a)--the requirements in Subdivision B have not been

met in relation to the termination; or

or (c)--the requirements in subsections 103K(4) and (5) and

103L(4) and (5) have not been met in relation to the

termination.

103R Consequence of termination of agreement--application of

other industrial instruments

(1) An industrial instrument mentioned in subsection (3) has no effect

in relation to an employee if:

(a) a workplace agreement operated in relation to the employee;

and

(b) the workplace agreement was terminated.

Note 1:

See Part VA for the operation of the Australian Fair Pay and

Conditions Standard in these circumstances.

Note 2:

See subsections 103M(2), (3) and (4) for the operation of undertakings

(if any) in these circumstances.

(2) Subsection (1) operates in relation to the period:

(a) starting when the agreement is terminated; and

(b) ending when another workplace agreement comes into

operation in relation to the employee.

(3) The industrial instruments are as follows:

(a) a workplace agreement;

(b)

award.

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Division 10--Prohibited conduct

104 Coercion and duress

(1) A person must not:

(a) engage in or organise, or threaten to engage in or organise,

any industrial action; or

(b) take, or threaten to take, other action; or

with intent to coerce another person to agree, or not to agree, to

make, approve, lodge, vary or terminate a collective agreement.

(2) Subsection (1) does not apply to protected action (within the

meaning of 108).

(3) A person must not coerce, or attempt to coerce, an employer or

employee in relation to an AWA:

(a) to appoint, or not to appoint, a particular person as a

bargaining agent under subsection 97A(1); or

(b) to terminate the appointment of a bargaining agent appointed

under subsection 97A(1).

(4) A person must not coerce, or attempt to coerce, an employee of an

employer:

(a) not to make a request mentioned in subsection 97B(1) or (2)

in relation to a collective agreement; or

(b) to withdraw such a request.

(5) A person must not apply duress to an employer or employee in

connection with an AWA.

(6) To avoid doubt, an employer does not apply duress to an employee

for the purposes of subsection (5) merely because the employer

requires the employee to make an AWA with the employer as a

condition of employment.

(7) Subsections (1), (3), (4) and (5) are civil remedy provisions.

Note:

See Division 11 for provisions on enforcement.

104A False or misleading statements

(1) A person contravenes this section if:

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(a) the person makes a false or misleading statement to another

person; and

(b) the person is reckless as to whether the statement is false or

misleading; and

(i) to make, approve, lodge, vary or terminate a workplace

agreement; or

(ii) not to make, approve, lodge, vary or terminate a

workplace agreement.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

104B Employers not to discriminate between unionist and

non-unionist

(1) An employer must not, in negotiating a collective agreement, or a

variation to a collective agreement, discriminate between

employees of the employer:

(a) because some of those employees are members of an

organisation of employees while others are not members of

such an organisation; or

(b) because some of those employees are members of a particular

organisation of employees, while others are not members of

that organisation or are members of a different organisation

of employees.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 11 for provisions on enforcement.

Division 11--Contravention of civil remedy provisions

Note:

For other rules about civil remedy provisions, see Division 4 of Part VIII.

Subdivision A--General

105 General powers of Court not affected by this Division

This Division does not affect the following:

(a) the powers of the Court under Part XIV;

(b) any other powers of the Court.

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105A Workplace inspector may take over proceeding

(1) A workplace inspector may take over a proceeding that was

instituted or is being carried on by another person for an order

under this Division.

(2) If a workplace inspector takes over such a proceeding, he or she

may:

(a) carry it on further; or

(b) decline to carry it on further (whether immediately or at a

later stage of the proceeding).

105B Standing for civil remedies

(1) Any of the following persons may apply to the Court for an order

under this Division in relation to a workplace agreement:

(a) an employee who is or will be bound by the agreement;

(b) if the person who contravened the civil remedy provision was

not the employer in relation to the agreement, and the

provision is mentioned in subsection (2)--the employer;

agreement;

(d) an organisation of employees that represents an employee

who is or will be bound by the agreement (subject to

subsection (3));

(e) if the agreement is an AWA--a bargaining agent of the

employee or of the employer;

(f) a workplace inspector;

(g) a person specified in regulations made for the purposes of

this paragraph.

(2) The provisions are as follows:

(a)

subsection

97A(2);

(b)

subsection

101M(1);

(c)

subsection

101N(1);

(d)

subsection

103K(6);

(e)

subsection

103L(6);

(f)

subsection

104(1);

(g)

subsection

104(3);

(h)

subsection

104(5);

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(i)

subsection

104A(1).

(3) An organisation of employees that represents an employee (as

mentioned in paragraph (1)(d)) must not apply on behalf of an

employee for a penalty or other remedy under this Division in

relation to a contravention of a civil remedy provision unless:

(a) the employee has requested the organisation to apply on the

employee's behalf; and

(b) a member of the organisation is employed by the employee's

employer; and

represent the industrial interests of the employee.

Subdivision B--Pecuniary penalty for contravention of civil

remedy provisions

105C Application of Subdivision

This Subdivision applies to a contravention by a person of a civil

remedy provision in this Part.

105D Court may order pecuniary penalty

(1) The Court may order the person who contravened the civil remedy

provision to pay a pecuniary penalty of up to:

(a) if the person is an individual--the maximum number of

penalty units specified in subsection (2); or

(b) if the person is a body corporate--5 times the maximum

number of penalty units specified in subsection (2).

(2) The maximum number of penalty units is as follows:

(a) for subsection 97A(2)--30 penalty units;

(b) for subsection 97B(3)--30 penalty units;

(d) for subsection 98(9)--30 penalty units;

(e) for subsection 98B(1)--30 penalty units;

(f) for subsection 98D(1)--60 penalty units;

(g) for subsection 99(1)--30 penalty units;

(h) for subsection 99(2)--30 penalty units;

(i) for subsection 99A(1)--60 penalty units;

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(j) for subsection 99D(1)--30 penalty units;

(k) for subsection 101E(1)--60 penalty units;

(l) for subsection 101J(1)--30 penalty units;

(m) for subsection 101L(1)--30 penalty units;

(n) for subsection 101M(1)--60 penalty units;

(o) for subsection 101N(1)--60 penalty units;

(p) for subsection 102C(8)--30 penalty units;

(q) for subsection 102C(9)--30 penalty units;

(r) for subsection 102E(1)--30 penalty units;

(s) for subsection 102G(1)--60 penalty units;

(t) for subsection 102H(1)--30 penalty units;

(u) for subsection 102I(1)--60 penalty units;

(v) for subsection 102L(1)--30 penalty units;

(w) for subsection 103C(4)--30 penalty units;

(x) for subsection 103D(1)--30 penalty units;

(y) for subsection 103F(1)--60 penalty units;

(z) for subsection 103G(1)--30 penalty units;

(za) for subsection 103J(1)--30 penalty units;

(zb) for subsection 103K(6)--60 penalty units;

(zc) for subsection 103L(6)--60 penalty units;

(zd) for subsection 103M(5)--30 penalty units;

(ze) for subsection 103P(1)--30 penalty units;

(zf) for subsection 104(1)--60 penalty units;

(zg) for subsection 104(3)--60 penalty units;

(zh) for subsection 104(4)--60 penalty units;

(zi) for subsection 104(5)--60 penalty units;

(zj) for subsection 104A(1)--60 penalty units;

(zk) for subsection 104B(1)--60 penalty units.

Subdivision C--Other remedies for contravention of certain

civil remedy provisions

105E Application of Subdivision

This Subdivision applies to a contravention by a person of any of

the following civil remedy provisions in relation to a workplace

agreement:

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(a)

subsection

98D(1);

(b)

subsection

102G(1);

(c)

subsection

103F(1);

(d)

subsection

103K(6);

(e)

subsection

103L(6);

(f)

subsection

104(1);

(g)

subsection

104(5);

(h)

subsection

104A(1).

105F Court may declare workplace agreement or part of workplace

agreement void

The Court may make an order:

(a) declaring that the workplace agreement is void; or

(b) declaring that specified terms of the workplace agreement are

void.

105G Court may vary terms of workplace agreement

The Court may make an order varying the terms of the workplace

agreement.

105H Court may order that workplace agreement continues to

operate despite termination

(1) This section applies if the workplace agreement has been

terminated as a result of the contravention mentioned in

section 105E.

(2) The Court may make an order declaring that the workplace

agreement continues to operate despite the termination.

105I Date of effect and preconditions for orders under

sections 105F, 105G and 105H

(1) An order under section 105F, 105G or 105H takes effect from the

date of the order or a later date specified in the order.

(2) The Court may make an order under section 105F, 105G or 105H

only to the extent that the Court considers appropriate to remedy

the following:

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(a) all or part of any loss or damage resulting from the

contravention mentioned in section 105E;

(b) prevention or reduction of all or part of that loss or damage.

105J Court may order compensation

The Court may make an order that the person mentioned in

section 105E pay compensation of such amount as the Court

considers appropriate for any loss or damage resulting from the

contravention suffered by an employee whose employment is

subject to the agreement.

105K Court may order injunction

(1) The Court may grant an injunction requiring the person mentioned

in section 105E to cease contravening (or not to contravene) the

civil remedy provision.

(2) Subsection (1) also applies in relation to a contravention of

subsection 104B(1).

Part VC--Industrial action

Division 1--Preliminary

106 Definitions

(1) In this Part:

authorised ballot agent means an authorised ballot agent as

defined in section 109A for the purpose of Division 4.

bargaining period has the meaning given by section 107.

Court means the Federal Court of Australia or the Federal

Magistrates Court.

industrial action has the meaning given by section 106A.

initiating notice has the meaning given by section 107.

initiating party has the meaning given by section 107.

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negotiating party has the meaning given by section 107.

pattern bargaining has the meaning given by section 106B.

proposed collective agreement has the meaning given by

section 107.

protected action has the meaning given by section 108.

protected action ballot means a ballot under Division 4.

(2) Expressions used in this Part that are also used in Part VB have the

same meanings in this Part as they have in that Part.

106A Meaning of industrial action

(1) For the purposes of this Act, industrial action means any action of

the following kinds:

(a) the performance of work by an employee in a manner

different from that in which it is customarily performed, or

the adoption of a practice in relation to work by an employee,

the result of which is a restriction or limitation on, or a delay

in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by

an employee or on the acceptance of or offering for work by

an employee;

failure or refusal to perform any work at all by employees

who attend for work;

(d) the lockout of employees from their employment by the

employer of the employees;

but does not include the following:

(e) action by employees that is authorised or agreed to by the

employer of the employees;

(f) action by an employer that is authorised or agreed to by or on

behalf of employees of the employer;

(g) action by an employee if:

(i) the action was based on a reasonable concern by the

employee about an imminent risk to his or her health or

safety; and

(ii) the employee did not unreasonably fail to comply with a

direction of his or her employer to perform other

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available work, whether at the same or another

workplace, that was safe and appropriate for the

employee to perform.

Note 1:

See also subsection (4), which deals with the burden of proof of the

exception in subparagraph (g)(i) of this definition.

Note 2:

The issue of whether action that is not industrial in character is

industrial action was considered by the Commission in Automotive,

Food, Metals, Engineering, Printing and Kindred Industries Union v

The Age Company Limited, PR946290. In that case, the Full Bench of

the Commission drew a distinction between an employee who does

not attend for work in support of a collective demand that the

employer agree to alteration of the conditions of employment as being

clearly engaged in industrial action and an employee who does not

attend for work on account of illness.

(2) For the purposes of this Act:

(a) conduct is capable of constituting industrial action even if the

conduct relates to part only of the duties that employees are

required to perform in the course of their employment; and

(b) a reference to industrial action includes a reference to a

course of conduct consisting of a series of industrial actions.

Meaning of lockout

(3) For the purposes of this section, an employer locks out employees

from their employment if the employer prevents the employees

from performing work under their contracts of employment

without terminating those contracts.

Burden of proof

(4) Whenever a person seeks to rely on subparagraph (g)(i) of the

definition of industrial action in subsection (1), that person has the

burden of proving that subparagraph (g)(i) applies.

106B Meaning of pattern bargaining

What is pattern bargaining?

(1) For the purposes of this Part, a course of conduct by a person is

pattern bargaining if:

(a) the person is a negotiating party to 2 or more proposed

collective agreements; and

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(b) the course of conduct involves seeking common wages or

conditions of employment for 2 or more of those proposed

collective agreements; and

Exception: terms or conditions determined as national standards

(2) The course of conduct is not pattern bargaining to the extent that

the negotiating party is seeking, for 2 or more of the proposed

collective agreements, terms or conditions of employment

determined by the Full Bench in a decision establishing national

standards.

Exception: genuinely trying to reach an agreement for a single

business or part of a single business

(3) The course of conduct, to the extent that it relates to a particular

single business or part of a single business, is not pattern

bargaining if the negotiating party is genuinely trying to reach an

agreement for the business or part.

(4) For the purposes of subsection (3), factors relevant to working out

whether the negotiating party is genuinely trying to reach an

agreement for a single business or part of a single business include

(but are not limited to) the following:

(a) demonstrating a preparedness to negotiate an agreement

which takes into account the individual circumstances of the

business or part;

(b) demonstrating a preparedness to negotiate a workplace

agreement with a nominal expiry date which takes into

account the individual circumstances of the business or part;

of employment being determined as far as possible by

agreement between the employer and its employees at the

level of the single business or part;

(d) agreeing to meet face-to-face at reasonable times proposed

by another negotiating party;

(e) considering and responding to proposals made by another

negotiating party within a reasonable time;

(f) not capriciously adding or withdrawing items for bargaining.

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(5) Whenever a person seeks to rely on subsection (3), the person has

the burden of proving that subsection (3) applies.

(6) This section does not affect, and is not affected by, the meaning of

the term "genuinely trying to reach an agreement", or any variant

of the term, as used elsewhere in this Act.

Division 2--Bargaining periods

107 Initiation of bargaining period

(1) This section applies in relation to a collective agreement that a

person referred to in subsection (2) wants to try to make if the

agreement, if made:

(a) will be made under section 96A or 96B; and

(b) will not be:

(i) a multiple-business agreement; or

(ii) an agreement with 2 or more corporations that are

treated as one employer because of paragraph

95A(2)(b).

(2)

If:

(a)

employer;

(b) an organisation of employees; or

other employees;

wants to try to make a collective agreement to which this section

applies in relation to employees who are employed in a single

business or a part of a single business, the employer, organisation

or employee (the initiating party) may initiate a period (the

bargaining period) for negotiating the agreement.

Note:

This subsection has effect subject to subsections 107F(2), 107G(12)

and (13), 107H(6) and (7) and 112(6).

(3) The bargaining period is initiated by the initiating party giving

written notice (the initiating notice) to each other negotiating party

and to the Commission stating that the initiating party intends to

try to make a collective agreement to which this section applies

(the proposed collective agreement) with the other negotiating

parties under section 96A or 96B.

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214 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(4) Each of the following is a negotiating party in relation to the

proposed collective agreement:

(a)

the

initiating

party;

(b) if the initiating party is an employer who intends to try to

make the proposed collective agreement under section 96A--

the employees at the time whose employment will be subject

to the proposed collective agreement;

make the proposed collective agreement under section 96B--

the organisation or organisations who are proposed to be

bound by the proposed collective agreement;

(d) if the initiating party is an organisation of employees--the

employer who is proposed to be bound by the proposed

collective agreement;

(e) if the initiating party is an employee acting on his or her own

behalf and on behalf of other employees--the employer who

is proposed to be bound by the proposed collective

agreement and the employees whose employment will be

subject to the proposed collective agreement.

107A Employee may appoint agent to initiate bargaining period

(1) A person referred to in paragraph 107(2)(c) who wishes to initiate

a bargaining period under section 107, without disclosing the

person's identity to the person's employer, may appoint an agent to

initiate the bargaining period on the person's behalf.

(2) If a person has appointed an agent under subsection (1), the notice

to the Commission under subsection 107(3) must be accompanied

by a document containing the person's name.

(3) The regulations may make provision in relation to the

qualifications and appointment of agents appointed under this

section.

107B Identity of person who has appointed agent not to be disclosed

Disclosure by Commission prohibited

(1) The Commission must not disclose information that the

Commission has reasonable grounds to believe will identify a

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person who has appointed an agent under section 107A as a person

who has initiated a bargaining period under section 107.

(2) Each of the following is an exception to subsection (1):

(a) the disclosure is required or authorised by this Act or by

another Act, by regulations made for the purposes of another

provision of this Act, or by regulations made for the purposes

of another Act;

(b) the person whose identity is disclosed has, in writing,

authorised the disclosure.

Disclosure by person prohibited

(3) A person commits an offence if:

(a) the person discloses information; and

(b) the information is protected information; and

information will identify another person as a person referred

to in subsection (1); and

(d) the disclosure is not made by the person in the course of

performing functions or duties:

(i) as a Registry official; or

(ii) as, or on behalf of, an authorised ballot agent; and

(e) the disclosure is not required or authorised by this Act or by

another Act, by regulations made for the purposes of another

provision of this Act, or by regulations made for the purposes

of another Act; and

(f) the person whose identity is disclosed has not, in writing,

authorised the disclosure.

Penalty: Imprisonment for 6 months.

(4) In this section:

protected information, in relation to a person, means information

that the person acquired:

(a) in the course of performing functions or duties as a Registry

official; or

(b) in the course of performing functions or duties as, or on

behalf of, an authorised ballot agent; or

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216 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

acquired the information as mentioned in paragraph (a) or

(b).

Registry official means:

(a) the Industrial Registrar; or

(b) a member of the staff of the Industrial Registry (including a

Deputy Industrial Registrar).

107C Particulars to accompany notice

An initiating notice is to be accompanied by particulars of:

(a) the single business or part of the single business to be

covered by the proposed collective agreement; and

(b) the types of employees whose employment will be subject to

the proposed collective agreement and the other persons who

will be bound by the proposed collective agreement; and

with by the proposed collective agreement; and

(d) the proposed nominal expiry date of the proposed collective

agreement; and

(e) any other matters prescribed by the regulations.

107D When bargaining period begins

A bargaining period begins at the end of 7 days after:

(a) the day on which the initiating notice was given; or

(b) if the notice was given to different persons on different

days--the later or latest of those days.

107E When bargaining period ends

A bargaining period ends if any of the following events occurs:

(a) a collective agreement under section Agt60 or 96B is made

by the employer and any one or more of the other negotiating

parties;

(b) the initiating party tells the other negotiating party or each of

the other negotiating parties in writing that the initiating

party no longer wants to reach a collective agreement under

section 96A or 96B with that other party or those other

parties;

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107H or 112.

107F Power of Commission to restrict initiation of new bargaining

periods

(1) This section applies if a bargaining period (the former bargaining

period) in relation to a proposed collective agreement has ended

because a negotiating party (the former negotiating party) has

given a notice under paragraph 107E(b).

(2) Subject to this section, the Commission may, by order, declare that,

during a specified period, a specified former negotiating party, or a

specified employee of the employer:

(a) is not allowed to initiate a new bargaining period in relation

to specified matters that were dealt with by the proposed

collective agreement; or

(b) may initiate a bargaining period only on conditions specified

in the order.

(3) The Commission must not make an order under subsection (2)

unless:

(a) the Commission has given the former negotiating parties an

opportunity to be heard; and

(b) the Commission considers that it is in the public interest to

make the order; and

(4) The Commission may make an order under subsection (2):

(a) on application by a former negotiating party; and

(b) if, assuming the former bargaining period had not ended, the

Commission could make an order under subsection 107G(1)

because a circumstance set out in subsection 107G(2), (7) or

(8) exists or existed.

(5) The Commission may make an order under subsection (2):

(a) on its own initiative, or on application by a former

negotiating party; and

(b) if, assuming the former bargaining period had not ended, the

Commission could make an order under subsection 107G(1)

because a circumstance set out in subsection 107G(3) exists

or existed.

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218 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

107G Suspension and termination of bargaining periods--general

powers of Commission

Suspension or termination required if certain circumstances exist

(1) Subject to subsection (9), the Commission must, by order, suspend

or terminate a bargaining period if, after giving the negotiating

parties an opportunity to be heard, it is satisfied that any of the

circumstances set out in subsections (2), (3) (7) and (8) exists or

existed.

Circumstance--failing to genuinely try to reach agreement etc.

(2) A circumstance for the purposes of subsection (1) is that a

negotiating party that, before or during the bargaining period, has

organised or taken, or is organising or taking, industrial action to

support or advance claims in respect of the proposed collective

agreement:

(a) did not genuinely try to reach an agreement with the other

negotiating parties before organising or taking the industrial

action; or

(b) is not genuinely trying to reach an agreement with the other

negotiating parties; or

Commission made during the bargaining period that relate to,

or that relate to industrial action relating to, the making of the

proposed collective agreement or to a matter that has arisen

in the negotiations for the proposed collective agreement.

Note:

The issue of whether or not a negotiating party is genuinely trying to

reach agreement with the other negotiating parties was considered by

Justice Munro in Australian Industry Group v Automotive, Food,

Metals, Engineering, Printing and Kindred Industries Union, Print

T1982.

Circumstance--industrial action endangering life etc.

(3) A circumstance for the purposes of subsection (1) is that:

(a) industrial action to support or advance claims in respect of

the proposed collective agreement is being taken, or is

threatened, impending or probable; and

(b) that industrial action is adversely affecting, or would

adversely affect, the employer or employees of the employer;

and

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(i) to endanger the life, the personal safety or health, or the

welfare, of the population or of part of it; or

(ii) to cause significant damage to the Australian economy

or an important part of it.

Note:

See also Division 8 (about workplace determinations once a

bargaining period has been terminated).

(4) If an application is made to the Commission for an order under

subsection (1) on the grounds of or including a circumstance set

out in subsection (3), the Commission must, as far as practicable,

hear and determine the application within 5 days after the

application is made.

(5) If subsection (4) applies to an application and the Commission is

unable to determine the application within the period referred to in

that subsection, the Commission must, within that period, make an

interim order suspending the bargaining period until the application

is determined.

(6) If the Commission makes an order under subsection (1)

terminating a bargaining period in a circumstance set out in

subsection (3), the Commission must send each of the negotiating

parties a notice:

(a) setting out the effect of Division 8; and

(b) informing the negotiating parties that they may agree to

submit the matters at issue to an alternative dispute resolution

process conducted by the Commission or another provider

(see Divisions 4 and 6 of Part VIIA).

Circumstance--organisations and employees who are not members

(7) A circumstance for the purposes of subsection (1) is that industrial

action is being organised or taken by:

(a) an organisation that is a negotiating party; or

(b) a member of such an organisation who is employed by the

employer; or

capacity;

against an employer to support or advance claims in respect of

employees:

(d) whose employment will be subject to the agreement; and

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220 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(e) who are neither members, nor eligible to become members,

of the organisation.

Circumstance--demarcation disputes

(8) A circumstance for the purposes of subsection (1) is that industrial

action that is being organised or taken by an organisation that is a

negotiating party:

(a) relates, to a significant extent, to a demarcation dispute; or

(b) contravenes an order of the Commission that relates, to a

significant extent, to a demarcation dispute.

Orders on application or Commission's initiative

(9)

The

Commission:

(a) may not make an order under subsection (1), in a

circumstance set out in subsection (2), (7) or (8), except on

application by a negotiating party; but

(b) may make an order under subsection (1), in a circumstance

set out in subsection (3):

(i) on its own initiative; or

(ii) on application by a negotiating party or the Minister.

Application does not have to identify bargaining periods

(10) An application may be made to the Commission for an order under

subsection (1) for the suspension or termination of whatever

bargaining periods apply to:

(a) a specified business, or any part of that business; or

(b) a specified part of a specified business;

without specifically identifying the bargaining periods. The

application has effect as if it were an application for the suspension

or termination of the bargaining period, or each of the bargaining

periods, that applies to the specified business (or any part of it), or

to the specified part of the business, as the case requires.

Note:

The other requirements of this section must still be complied with in

relation to the application.

(11) If subsection (10) applies to an application, the Commission must

satisfy itself as to which bargaining periods the application has

effect in relation to.

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Restrictions on initiating new bargaining periods

(12) An order under subsection (1) suspending a bargaining period may,

if the Commission considers it to be appropriate, contain a

declaration that, during some or all of the period while the

suspension has effect, a specified negotiating party or employee of

the employer:

(a) is not allowed to initiate a new bargaining period in relation

to specified matters that are dealt with by the proposed

collective agreement; or

(b) may initiate such a bargaining period only on conditions

specified in the declaration.

(13) An order under subsection (1) terminating a bargaining period

may, if the Commission considers it to be appropriate, contain a

declaration that, during a specified period beginning at the time of

the termination, a specified negotiating party or employee of the

employer:

(a) is not allowed to initiate a new bargaining period in relation

to specified matters that are dealt with by the proposed

collective agreement; or

(b) may initiate such a bargaining period only on conditions

specified in the declaration.

Extension of notice period required by subsection 107K(3)

(14) In an order under subsection (1), the Commission may, if it is

satisfied, in relation to any industrial action that might be taken (by

virtue of section 107K) after the end of the period of suspension,

that there are exceptional circumstances justifying the period of

written notice required by subsection 107K(3) being longer than 3

days, specify a longer period, of up to 7 days.

107H Suspension and termination of bargaining periods--pattern

bargaining

Suspension or termination required for pattern bargaining

(1) The Commission must, by order, suspend a bargaining period for a

period specified in the order, or terminate the bargaining period, if:

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222 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(a) a negotiating party, or a person prescribed by the regulations,

applies to the Commission for an order under this section;

and

(b) another negotiating party is engaged in pattern bargaining in

relation to the proposed collective agreement.

Note:

For other provisions relating to pattern bargaining, see:

(a) section

108D;

and

(b)

section 109L; and

111A.

Negotiating parties must be given the opportunity to be heard

(2) The Commission must not make an order under subsection (1)

unless it has given the negotiating parties the opportunity to be

heard.

Commission may suspend or terminate as it considers appropriate

(3) If the Commission is required by subsection (1) to make an order

under that subsection, then regardless of the order applied for:

(a) the order may be for the suspension or termination of the

bargaining period, as the Commission considers appropriate;

and

(b) any period of suspension specified in the order must be such

a period as the Commission considers appropriate.

Application does not have to identify bargaining periods

(4) An application may be made to the Commission for an order under

subsection (1) for the suspension or termination of whatever

bargaining periods apply to:

(a) a specified business, or any part of that business; or

(b) a specified part of a specified business;

without specifically identifying the bargaining periods. The

application has effect as if it were an application for the suspension

or termination of the bargaining period, or each of the bargaining

periods, that applies to the specified business (or any part of it), or

to the specified part of the business, as the case requires.

Note:

The other requirements of this section must still be complied with in

relation to the application.

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(5) If subsection (4) applies to an application, the Commission must

satisfy itself as to which bargaining periods the application has

effect in relation to.

Restrictions on initiating new bargaining periods

(6) An order under subsection (1) suspending a bargaining period may,

if the Commission considers it to be appropriate, contain a

declaration that, during some or all of the period while the

suspension has effect, a specified negotiating party or employee of

the employer:

(a) is not allowed to initiate a new bargaining period in relation

to specified matters that are dealt with by the proposed

collective agreement; or

(b) may initiate such a bargaining period only on conditions

specified in the declaration.

(7) An order under subsection (1) terminating a bargaining period

may, if the Commission considers it to be appropriate, contain a

declaration that, during a specified period beginning at the time of

the termination, a specified negotiating party or employee of the

employer:

(a) is not allowed to initiate a new bargaining period in relation

to specified matters that are dealt with by the proposed

collective agreement; or

(b) may initiate such a bargaining period only on conditions

specified in the declaration.

Extension of notice period required by subsection 107K(3)

(8) In an order under subsection (1) suspending a bargaining period,

the Commission may, if it is satisfied, in relation to any industrial

action that might be taken (by virtue of section 107K) after the end

of the period of suspension, that there are exceptional

circumstances justifying the period of written notice required by

subsection 107K(3) being longer than 3 days, specify a longer

period, of up to 7 days.

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224 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

107I Suspension of bargaining periods--cooling off

Suspension if would assist in resolving matters at issue

(1) The Commission must, by order, suspend a bargaining period for a

period specified in the order if:

(a) a negotiating party applies to the Commission for the

bargaining period to be suspended under this section; and

(b) protected action is being taken in respect of the proposed

collective agreement; and

having regard to:

(i) whether suspending the bargaining period would be

beneficial to the negotiating parties because it would

assist in resolving the matters at issue; and

(ii) the duration of the action; and

(iii) whether suspending the bargaining period would be

contrary to the public interest or inconsistent with the

objects of this Act; and

(iv) any other matters that the Commission considers

relevant.

Period of suspension

(2) The period of suspension specified in the order must be a period

that the Commission considers appropriate.

Extension of suspension

(3) The Commission must, by order, extend the period of suspension

by a specified period that the Commission considers appropriate if:

(a) a negotiating party applies to the Commission for the period

of suspension to be extended; and

(b) the Commission considers that the extension is appropriate,

having regard to:

(i) the matters referred to in paragraph (1)(c); and

(ii) whether the negotiating parties, during the period of

suspension, genuinely tried to reach an agreement.

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(4) The Commission must not make an order under subsection (3)

extending the period of suspension if that period has previously

been extended.

Negotiating parties must be given opportunity to be heard

(5) The Commission must not make an order under subsection (1) or

(3) unless it has given the negotiating parties the opportunity to be

heard.

Commission to inform negotiating parties that they may submit

matters at issue for alternative dispute resolution

(6) If the Commission makes an order under subsection (1) or (3), the

Commission must send each of the negotiating parties a notice

informing the negotiating parties that they may agree to submit the

matters at issue to an alternative dispute resolution process

conducted by the Commission or another provider (see Part VIIA).

Extension of notice period required by subsection 107K(3)

(7) In an order under subsection (1) or (3), the Commission may, if it

is satisfied, in relation to any industrial action that might be taken

(by virtue of section 107K) after the end of the period of

suspension, that there are exceptional circumstances justifying the

period of written notice required by subsection 107K(3) being

longer than 3 days, specify a longer period, of up to 7 days.

107J Suspension of bargaining periods--significant harm to third

party

Suspension if industrial action threatens significant harm to a

person

(1) The Commission must, by order, suspend a bargaining period for a

period specified in the order if:

(a) industrial action is being taken in respect of the proposed

collective agreement; and

(b) an application for the bargaining period to be suspended

under this section is made to the Commission by or on behalf

of:

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226 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(i) an organisation, person or body directly affected by the

action (other than a negotiating party); or

(ii) the Minister; and

affecting the employer or employees of the employer; and

(d) the Commission considers that the action is threatening to

cause significant harm to any person (other than a negotiating

party); and

(e) the Commission considers that the suspension is appropriate,

having regard to:

(i) whether suspending the bargaining period would be

contrary to the public interest or inconsistent with the

objects of this Act; and

(ii) any other matters that the Commission considers

relevant.

(2) For the purposes of paragraph (1)(d), in considering whether the

action is threatening to cause significant harm to a person, the

Commission may have regard to the following:

(a) if the person is an employee--the extent to which the action

affects the interests of the person as an employee;

(b) the extent to which the person is particularly vulnerable to

the effects of the action;

(i) damage the ongoing viability of a business carried on by

the person; or

(ii) disrupt the supply of goods or services to a business

carried on by the person; or

(iii) reduce the person's capacity to fulfil a contractual

obligation; or

(iv) cause other economic loss to the person;

(d) any other matters that the Commission considers relevant.

Period of suspension

(3) The period of suspension specified in the order must be a period

that the Commission considers appropriate. The period of

suspension (as extended under subsection (4), if applicable) must

not exceed 3 months.

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Extension of suspension

(4) The Commission must, by order, extend the period of suspension

by a specified period that the Commission considers appropriate if:

(a) an application for the period of suspension to be extended is

made to the Commission by or on behalf of:

(i) an organisation, person or body directly affected by the

action (other than a negotiating party); or

(ii) the Minister; and

(b) the Commission considers that the extension is appropriate,

having regard to the matters referred to in paragraphs (1)(c),

(d) and (e).

(5) The Commission must not make an order under subsection (4)

extending the period of suspension if that period has previously

been extended.

Negotiating parties must be given opportunity to be heard

(6) The Commission must not make an order under subsection (1) or

(4) unless it has given the negotiating parties the opportunity to be

heard.

Commission to inform negotiating parties that they may submit

matters at issue for alternative dispute resolution

(7) If the Commission makes an order under subsection (1) or (4), the

Commission must send each of the negotiating parties a notice

informing the negotiating parties that they may agree to submit the

matters at issue to an alternative dispute resolution process

conducted by the Commission or another provider (see Part VIIA).

Extension of notice period required by subsection 107K(3)

(8) In an order under subsection (1) or (4), the Commission may, if it

is satisfied, in relation to any industrial action that might be taken

(by virtue of section 107K) after the end of the period of

suspension, that there are exceptional circumstances justifying the

period of written notice required by subsection 107K(3) being

longer than 3 days, specify a longer period, of up to 7 days.

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228 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

107K Industrial action without further protected action ballot after

end of suspension of bargaining period

(1) This section applies if:

(a) before a bargaining period was suspended under subsection

107G(1), 107H(1), 107I(1) or 107J(1), industrial action was

authorised by a protected action ballot; and

(b) the ballot authorised industrial action:

(i) some or all of which had not been taken before the

period of suspension began; or

(ii) that had not ended before the period of suspension

began; or

(iii) beyond the period of suspension.

(2) After the period of suspension, as extended under subsection

107I(3) or 107J(4) (if applicable), has ceased (whether because the

period ended or was revoked):

(a) a relevant employee (within the meaning of Division 4) may

organise, or engage in, that industrial action without another

protected action ballot; and

(b) a negotiating party that is an organisation of employees may

organise, or engage in, that industrial action without another

protected action ballot.

For the purposes of working out when that industrial action may be

organised, or engaged in, the period of suspension (including any

dates authorised by a protected action ballot as dates on which

action is to be taken) is to be ignored.

(3) However, that industrial action is not protected action unless, after

the period of suspension, the organisation, or the employee, gives

the employer at least the required written notice of the intention to

take the action. The notice must state the nature of the intended

action and the day when it will begin.

(4) For the purposes of subsection (3), the required written notice is:

(a) 3 working days' written notice; or

(b) if the Commission, in the order under subsection 107G(1),

107H(1), 107I(1) or 107J(1) suspending the bargaining

period, or an order under subsection 107I(3) or 107J(4)

extending the period of suspension, specifies a higher

number of days--that number of days' written notice.

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Note:

For the maximum number of days the suspension order can specify,

see subsection 107G(14), 107H(8), 107I(7) or 107J(8).

(5) Nothing in this section authorises industrial action after the end of

the period of suspension that is different in type or duration from

the industrial action that was authorised by the protected action

ballot.

Example 1: A protected action ballot authorised strike action for 20 consecutive

working days from a specified date. Fourteen working days into the

strike, the bargaining period was suspended for one month.

Under this section, once the period of suspension ends, the initiating

party could give the required written notice, without another protected

action ballot, of 6 further consecutive working days of strike action

(the balance of the strike action authorised).

Example 2: A protected action ballot authorised the imposition of certain work

bans every Monday, for a period of 8 consecutive weeks starting from

a specified date. After 3 weeks, the bargaining period was suspended

for a period of 2 weeks.

Under this section, once the period of suspension ends, the initiating

party could give the required written notice, without another protected

action ballot, that the work bans authorised by the ballot will be

imposed for 5 further consecutive Mondays (the balance of the

industrial action authorised).

Division 3--Protected action

Subdivision A--What is protected action?

108 Protected action

General

(1) Action by a person is protected action if:

(a) the action is protected action under subsection (2) or (3); and

(b) no provision of Subdivision B excludes the action from being

protected action; and

protected action.

Employee and employee organisation actions

(2) During a bargaining period:

(a) an organisation of employees that is a negotiating party; or

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230 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) a member of such an organisation who is employed by the

employer; or

capacity; or

(d) an employee who is a negotiating party;

is entitled, for the purpose of:

(e) supporting or advancing claims made in respect of the

proposed collective agreement; or

(f) responding to industrial action by the employer against

employees whose employment will be subject to the

proposed collective agreement;

to organise or engage in industrial action against the employer and,

if the organisation, member, officer or employee does so, the

organising of, or engaging in, that industrial action is protected

action.

Employer actions

(3) Subject to subsection (5), during a bargaining period, the employer

is entitled, for the purpose of:

(a) supporting or advancing claims made by the employer in

respect of the proposed collective agreement; or

(b) responding to industrial action by any of the employees

whose employment will be subject to the proposed collective

agreement;

to engage in industrial action against all or any of the employees

whose employment will be subject to the agreement and, if the

employer does so, the organising of, or engaging in, that industrial

action is protected action.

Note 1:

The existence of this entitlement does not affect any right of the

employer to refuse to pay the employee where, under the common

law, the employer is permitted to do so because the employee has not

performed work as directed.

Note 2:

The existence of this entitlement also does not affect any authorisation

of the employer to stand-down the employee under an award.

(4) If the employer engages in industrial action against employees in

accordance with subsection (3), the employer is entitled to refuse

to pay any remuneration to the employees in respect of the period

of the industrial action.

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(5) The employer is not entitled to engage in industrial action against

employees under subsection (3) (and so the industrial action will

not be protected action) unless the continuity of the employees'

employment, for such purposes as are prescribed by the

regulations, is not affected by the industrial action.

Subdivision B--Exclusions from protected action

108A Exclusion--claims in support of inclusion of prohibited

content

Engaging in industrial action in relation to a proposed collective

agreement is not protected action if it is to support or advance

claims to include prohibited content in the agreement.

108B Exclusion--industrial action while bargaining period is

suspended

Engaging in industrial action in relation to a proposed collective

agreement is not protected action if it is engaged in while the

bargaining period is suspended.

108C Exclusion--industrial action must not involve persons who are

not protected for that industrial action

(1) Engaging in industrial action in relation to a proposed collective

agreement is not protected action if:

(a) it is engaged in in concert with one or more persons who are

not protected persons for the industrial action; or

(b) it is organised other than solely by one or more protected

persons for the industrial action.

(2) Organising industrial action in relation to a proposed collective

agreement is not protected action if:

(a) it is organised in concert with one or more persons who are

not protected persons for the industrial action; or

(b) it is intended to be engaged in other than solely by one or

more protected persons for the industrial action.

(3) In this section:

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protected person, for industrial action in relation to a proposed

collective agreement, means:

(a) an organisation of employees that is a negotiating party to the

proposed collective agreement; or

(b) a member of such an organisation who is employed by the

employer and whose employment will be subject to the

proposed collective agreement; or

capacity; or

(d) an employee who is a negotiating party to the proposed

collective agreement; or

(e) an employer who is a negotiating party to the proposed

collective agreement.

108D Exclusion--industrial action must not be in support of pattern

bargaining claims

Engaging in or organising industrial action is not protected action

if:

(a) the industrial action is for the purpose of supporting or

advancing claims made by a negotiating party to a proposed

collective agreement; and

(b) the party is engaged in pattern bargaining in relation to the

proposed collective agreement.

Note:

For other provisions relating to pattern bargaining, see:

(a) section

107H;

and

(b)

section 109L; and

111A.

108E Exclusion--industrial action must not be taken until after

nominal expiry date of workplace agreements or

workplace determinations

Engaging in industrial action in contravention of section 110 or

110A is not protected action.

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108F Exclusion--notice of action to be given

Notice of employee and employee organisation actions

(1) Any action taken as mentioned in subsection 108(2) by:

(a) an organisation of employees; or

(b) a member of such an organisation; or

capacity; or

(d) an employee who is a negotiating party;

is not protected action unless the requirements set out in

subsection (2) are met.

(2) The requirements are that:

(a) if the action is in response to, and is taken after the start of,

industrial action against employees by the employer in

respect of the proposed collective agreement--the

organisation, or the employee who is a negotiating party, has

given the employer written notice of the intention to take the

action; or

(b) in any other case--the organisation, or the employee who is a

negotiating party, has given the employer at least the required

written notice of the intention to take the action.

(3) For the purposes of paragraph (2)(b), the required written notice

is:

(a) 3 working days' written notice; or

(b) if a ballot order made under section 109M in respect of the

action specifies a higher number of days--that number of

days' written notice.

Note:

For the maximum number of days the ballot order can specify, see

subsection 109N(5).

Notice of employer actions

(4) If one or more of the negotiating parties is an organisation of

employees, any action taken as mentioned in subsection 108(3) by

the employer:

(a) is not protected action unless the employer has given the

other negotiating party or each of the other negotiating

parties:

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(i) if the industrial action is in response to, and takes place

after the start of, industrial action organised or engaged

in by an organisation that is a negotiating party in

respect of the proposed collective agreement--written

notice of the intended industrial action; or

(ii) in any other case--at least 3 working days' written

notice of the intended industrial action; and

(b) is not protected action in so far as it relates to a particular

employee unless:

(i) if subparagraph (a)(i) applies--before the industrial

action begins; or

(ii) in any other case--at least 3 working days before the

industrial action begins;

the employer has given written notice to the particular

employee, or has taken other reasonable steps to notify the

particular employee, of the intended industrial action.

(5) If one or more of the negotiating parties is an employee whose

employment will be subject to the proposed collective agreement,

any action taken as mentioned in subsection 108(3) by the

employer is not protected action in so far as it relates to a particular

employee unless:

(a) if the industrial action is in response to, and takes place after

the start of, industrial action organised or engaged in by any

of the employees who are negotiating parties in respect of the

proposed collective agreement--before the industrial action

begins; or

(b) in any other case--at least 3 working days before the

industrial action begins;

the employer has given written notice to the particular employee,

or has taken other reasonable steps to notify the particular

employee, of the intended industrial action.

Notice to state nature of intended action and start day

(6) A written notice or other notification under this section must state

the nature of the intended action and the day when it will begin.

Limitations on when notice may be given

(7) A written notice or other notification under this section cannot be

given:

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(a) if the notification relates to action that must, in order to be

protected action, be authorised by a protected action ballot--

before the declaration of the results of the ballot (see

section 109ZA); or

(b) if the notification relates to industrial action by an employer

(whether the notification is to be given by the employer, an

organisation of employees or an employee)--before the start

of the bargaining period.

108G Employee may appoint agent to give notice under section 108F

If:

(a) a person referred to in paragraph 108F(1)(d) has appointed an

agent under section 107A to initiate a bargaining period in

relation to a proposed collective agreement; and

(b) the person wishes to give notice to an employer under

section 108F of intention to take industrial action relating to

the proposed collective agreement without disclosing the

person's identity to the person's employer;

the notice may be given by the agent on the person's behalf.

108H Exclusion--requirement that employee organisation or

employee comply with Commission orders and directions

(1)

If:

(a) an organisation of employees is a negotiating party to a

proposed collective agreement; and

(b) the Commission has, during the bargaining period, made or

given orders or directions that relate to, or that relate to

industrial action relating to, the making of the proposed

collective agreement or to a matter that has arisen in the

negotiations for the proposed collective agreement;

industrial action engaged in by a person who is a member of the

organisation is not protected action unless, before the person

begins to engage in the industrial action, the organisation has

complied with the order or direction so far as it applies to the

organisation.

(2)

If:

(a) an employee is a negotiating party to a proposed collective

agreement; and

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(b) the Commission has, during the bargaining period, made or

given orders or directions that relate to, or that relate to

industrial action relating to, the making of the proposed

collective agreement or to a matter that has arisen in the

negotiations for the proposed collective agreement;

industrial action engaged in by the employee is not protected action

unless, before the employee begins to engage in the industrial

action, the employee has complied with the order or direction so

far as it applies to the employee.

108I Exclusion--requirement that employer genuinely try to reach

agreement etc.

Industrial action engaged in by an employer against employees is

not protected action unless the employer has, before the employer

begins to engage in the industrial action:

(a) if the employees are members of an organisation or

organisations that are negotiating parties--genuinely tried to

reach agreement with the organisation or organisations; and

(b) if the employees are negotiating parties--genuinely tried to

reach agreement with the employees; and

Commission during the bargaining period that relate to, or

that relate to industrial action relating to, the making of the

proposed collective agreement or to a matter that has arisen

in the negotiations for the proposed collective agreement, so

far as the orders or directions apply to the employer.

108J Exclusion--employee and employee organisation action to be

authorised by secret ballot or be in response to employer

action

Any action taken as mentioned in subsection 108(2) by:

(a) an organisation of employees; or

(b) a member of such an organisation; or

capacity; or

(d) an employee who is a negotiating party;

is not protected action unless:

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(e) the action is in response to industrial action by the employer

against employees whose employment will be subject to the

proposed collective agreement; or

(f) the action has been authorised by a protected action ballot

(see section 109ZC).

Note:

The question whether industrial action is authorised by a protected

action ballot is also affected by section 107K.

108K Exclusion--employee organisation action must be duly

authorised

(1) Engaging in industrial action by members of an organisation of

employees that is a negotiating party is not protected action unless,

before the industrial action begins:

(a) the industrial action is duly authorised by a committee of

management of the organisation or by someone authorised by

such a committee to authorise the industrial action; and

(b) if the rules of the organisation provide for the way in which

the industrial action is to be authorised--the industrial action

is duly authorised under those rules; and

Registrar.

(2) Industrial action is taken, for the purposes of this section, to be

duly authorised under the rules of an organisation of employees

even though a technical breach has occurred in authorising the

industrial action, so long as the person or persons who committed

the breach acted in good faith.

(3) Examples of a technical breach in authorising industrial action are

as follows:

(a) a contravention of the rules of the organisation;

(b) an error or omission in complying with the requirements of

this Act;

of a decision by a committee of management, or by members,

of the organisation.

(4) Industrial action is taken, for the purposes of this section, to have

been duly authorised under the rules of an organisation of

employees, and to have been so authorised before the industrial

action began, unless:

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(a) the Court declares in a proceeding that the industrial action

was not duly authorised under those rules; and

(b) the proceeding was brought in the Court within 6 months

after the notification in relation to the industrial action was

given to a Registrar under paragraph (1)(c).

(5) In so far as the rules of an organisation of employees provide for

the way in which industrial action that section 108 entitles the

organisation to organise or engage in is to be authorised, the rules

do not contravene section 159 of the Registration and

Accountability of Organisations Schedule unless the manner

provided for contravenes that section.

Subdivision C--Significance of action being protected action

108L Immunity provisions

(1) Subject to subsection (2), no action lies under any law (whether

written or unwritten) in force in a State or Territory in respect of

any industrial action that is protected action unless the industrial

action has involved or is likely to involve:

(a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

(2) Subsection (1) does not prevent an action for defamation being

brought in respect of anything that occurred in the course of

industrial action.

Note:

Subsection 111(13) provides that an order under subsection 111(1) or

(6) directing that industrial action stop or not occur does not apply to

protected action.

108M Employer not to dismiss employee etc. for engaging in

protected action

(1) An employer must not:

(a) dismiss an employee, injure an employee in his or her

employment or alter the position of an employee to the

employee's prejudice; or

(b) threaten to dismiss an employee, injure an employee in his or

her employment or alter the position of an employee to the

employee's prejudice;

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wholly or partly because the employee is proposing to engage, is

engaging, or has engaged, in protected action.

(2) Subsection (1) does not apply to any of the following actions taken

by the employer:

(a) standing-down the employee;

(b) refusing to pay the employee, if:

(i) the refusal is in accordance with section 114; or

(ii) under the common law, the employer is permitted to do

so because the employee has not performed work as

directed;

Civil remedy provisions

(3) Subsection (1) is a civil remedy provision.

(4) The Court may make one or more of the following orders in

relation to a person who has contravened subsection (1):

(a) an order imposing a pecuniary penalty on the person;

(b) injunctions, and any other orders, that the Court considers

necessary to stop the contravention or remedy its effects.

(5) The pecuniary penalty under paragraph (4)(a) cannot be more than

300 penalty units for a body corporate or 60 penalty units in any

other case.

(6) Other orders the Court may make under paragraph (4)(b) include

(but are not limited to):

(a) if the contravention was constituted by dismissing an

employee--an order to reinstate the person dismissed to the

position that the person occupied immediately before the

dismissal or to a position no less favourable than that

position; and

(b) in any case--to pay, to the person dismissed, injured or

prejudiced, compensation for loss suffered as a result of the

dismissal, injury or prejudice.

(7) An application for an order under subsection (4) may be made by:

(a) the employee concerned; or

(b) an organisation of employees of which that employee is a

member; or

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240 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(d) any other person prescribed by the regulations.

(8) In proceedings for an order under subsection (4), it is to be

presumed, unless the employer proves otherwise, that the alleged

conduct of the employer was carried out wholly or partly because

the employee was proposing to engage, was engaging, or had

engaged, in protected action.

Note:

For other provisions about civil remedy provisions, see Division 4 of

Part VIII.

Division 4--Secret ballots on proposed protected action

Subdivision A--General

109 Object of Division and overview of Division

Object

(1) The object of this Division is to establish a transparent process

which allows employees directly concerned to choose, by means of

a fair and democratic secret ballot, whether to authorise industrial

action supporting or advancing claims by organisations of

employees, or by employees.

Overview of Division

(2) Under Division 3, industrial action by employees is not protected

action unless it has been authorised in advance by a secret ballot

held under this Division (a protected action ballot). This Division

establishes the steps that organisations of employees, or

employees, who wish to organise or engage in protected action

must take in order to:

(a) obtain an order from the Commission that will authorise a

protected action ballot to be held; and

(b) hold a protected action ballot that may authorise the

industrial action.

(3) The rule that industrial action by employees is not protected action

unless it has been authorised by a protected action ballot does not

apply to action in response to an employer engaging in industrial

action against the employees (see section 108J).

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109A Definitions

In this Division:

applicant means an applicant for a ballot order.

applicant's agent means an agent appointed by an employee, or by

a group of employees, under subsection 109B(5).

authorised ballot agent, in relation to a protected action ballot,

means the person authorised by the Commission in the ballot order

to conduct the ballot.

authorised independent adviser, in relation to a protected action

ballot, means the person authorised by the Commission in the

ballot order to be the independent adviser for the ballot.

ballot order means an order made under section 109M requiring a

protected action ballot to be held.

declaration envelope means an envelope in the form prescribed by

the regulations on which a voter is required to make a declaration

containing the information prescribed by the regulations.

joint applicant means a person who is participating, or has

participated, in making a joint application under section 109F.

party, in relation to an application for a ballot order, means either

of the following:

(a)

the

applicant;

(b) the employer of the relevant employees.

prescribed number, in relation to relevant employees, means:

(a) if there are fewer than 80 relevant employees--4; or

(b) if there are at least 80, but not more than 5,000, relevant

employees--5% of the number of such employees; or

protected action ballot means a ballot under this Division.

relevant employee, in relation to proposed industrial action against

an employer in respect of a proposed collective agreement, means:

(a) if an organisation of employees is a negotiating party to the

agreement--any member of the organisation who is

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employed by the employer and whose employment will be

subject to the agreement; and

(b) if an employee is a negotiating party to the agreement--any

employee who is a negotiating party to the agreement;

but does not include an employee who is bound by an AWA whose

nominal expiry date has not passed.

roll of voters means a list compiled:

(a) by the Commission under section 109Q; or

(b) by an authorised ballot agent in compliance with an order of

the Commission under section 109Q.

Subdivision B--Application for order for protected action

ballot to be held

109B Who may apply for a ballot order etc.

When application can be made

(1) A person referred to in subsection (3) may, during a bargaining

period, apply to the Commission for an order for a ballot to be held

to determine whether proposed industrial action has the support of

relevant employees.

Note:

For the duration of a bargaining period, see sections 107D (when it

begins) and 107E (when it ends).

(2) However, if there are one or more existing collective agreements

binding on relevant employees, the application must not be made

before:

(a) if there is only one existing collective agreement--the

nominal expiry date of the existing collective agreement; or

(b) if there are 2 or more existing collective agreements--

whichever is the last occurring of the nominal expiry dates of

those existing collective agreements.

Who can apply

(3) The following people may apply:

(a) if the bargaining period was initiated by an organisation of

employees--that organisation;

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(b) if the bargaining period was initiated by an employee or

employees--any employee who is a negotiating party to the

proposed collective agreement, or a group of such employees

acting jointly.

Note:

For joint applications, see section 109F.

Employee applications need support of prescribed number of

employees

(4) An employee, or a group of such employees acting jointly, cannot

make an application unless the application has the support of at

least the prescribed number of relevant employees.

Note:

Prescribed number is defined in section 109A.

Employee applicants can appoint agent

(5) A person or persons referred to in paragraph (3)(b) who wish to

make an application under this section without disclosing their

identities to their employer may appoint an agent to represent them

for all purposes connected with the application.

109C Contents of application

(1) The application must include the following:

(a) the question or questions to be put to the relevant employees

in the ballot, including the nature of the proposed industrial

action;

(b) details of the types of employees who are to be balloted;

subsection (3)).

(2) The application may include the name of a person nominated by

the applicant to conduct the ballot.

Note:

The question of who conducts the ballot is ultimately decided by the

Commission--see paragraph 109N(1)(e) and section 109ZE.

(3) Without limiting the generality of section 48, Rules of the

Commission made under that section may deal with:

(a) the matters to be included in an application for a ballot order;

and

(b) the form in which the application is to be made.

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109D Material to accompany application

(1) The application must be accompanied by:

(a) a copy of the notice given under subsection 107(3) to initiate

the relevant bargaining period; and

(b) a copy of the particulars that accompanied that notice as

required by section 107C; and

section.

(2) If the applicant is an organisation of employees, the application

must be accompanied by a written notice showing that the

application has been duly authorised by a committee of

management of the organisation or by someone authorised by such

a committee to authorise the application.

(3) If the applicant is an employee, or a group of employees,

represented by an applicant's agent, the application must be

accompanied by a document containing the name of the employee,

or each of those employees.

(4) The applicant's declaration must state that the industrial action to

which the application relates is not for the purpose of supporting or

advancing claims to include in the proposed collective agreement

any prohibited content.

(5) The declaration must be in the form prescribed by the regulations.

(6) A person commits an offence if:

(a) the person makes, or joins in making, a declaration under

subsection (4); and

(b) the declaration contains a statement that is false or

misleading in a material particular.

Penalty for contravention of this subsection: 30 penalty units.

109E Notice of application

The applicant must give a copy of the application (but not the

material referred to in section 109D) to:

(a) the other party; and

(b) any person nominated in the application to conduct the

ballot;

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within 24 hours after lodging the application with the Commission.

109F Joint applications

(1) If the bargaining period for the proposed collective agreement was

initiated by an employee, 2 or more employees who are negotiating

parties may make a joint application for a ballot order.

(2) An employee who has participated in making a joint application

may withdraw his or her name from the application before the

application is determined but cannot do so after the application is

determined by the Commission.

(3) If employees have made a joint application, the name of another

employee who is a negotiating party may, before the application is

determined, be joined to the application if the other applicants

consent.

(4) Without limiting the generality of section 48, Rules of the

Commission made under that section may deal with:

(a) in the case of a provision of this Act permitting an applicant

for a ballot order to do any thing--how the provision is to

apply to joint applicants; and

(b) in the case of a provision of this Act requiring an applicant

for a ballot order to be given notice, or otherwise informed,

of any thing--how the requirement is to be fulfilled in

relation to joint applicants.

Subdivision C--Determination of application and order for

ballot to be held

109G Commission may notify parties etc. of procedure

If:

(a) an application for a ballot order is lodged with the

Commission; and

(b) the Commission considers that notifying the parties, or a

person who may become the authorised ballot agent, of the

procedure to be followed by the Commission in dealing with

that application will not delay, and may expedite, the

determination of the application;

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the Commission may notify the parties or person concerned

accordingly.

109H Commission to act quickly in relation to application etc.

(1) In exercising its powers under this Division, the Commission:

(a) must act as quickly as is practicable; and

(b) must, as far as is reasonably possible, determine all

applications made under this Division within 2 working days

after the application is made.

Note:

In exercising its powers, the Commission is also required to act

according to equity, good conscience and the substantial merits of the

case, without regard to technicalities and legal forms (see paragraph

44H(1)(c)). It is not bound by the rules of evidence, and may inform

itself in any manner it considers just (see paragraph 44H(1)(b)).

(2) However, the Commission must not determine an application for a

ballot order until it is satisfied that:

(a) the applicant has complied with section 109E; and

(b) the persons referred to in subsections 109I(1) and (2) have

had a reasonable opportunity to make submissions in relation

to the application.

109I Parties and relevant employees may make submissions and

apply for directions

(1) A party or a relevant employee may make submissions, and may

apply for directions, relating to:

(a) an application for a ballot order; or

(b) any aspect of the conduct of a protected action ballot.

(2) A person nominated in an application to conduct a ballot may

make submissions, and apply for directions, relating to the

application.

(3) An authorised ballot agent may make submissions, and apply for

directions, relating to any aspect of a protected action ballot.

(4) The Commission may decline to consider a person's submission if

the Commission is satisfied that the submission is vexatious,

frivolous, misconceived or lacking in substance.

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109J Commission may make orders or give directions

(1) The Commission may make orders, or give directions, in

connection with:

(a) an application for a ballot order; or

(b) any aspect of the conduct of a protected action ballot.

(2) Without limiting subsection (1), the Commission may make orders,

or give directions, aimed at ensuring that a protected action ballot

is conducted expeditiously.

(3) In deciding whether to make an order, or give a direction, under

this section, and in deciding the content of any such order or

direction, the Commission must have regard to the desirability of

the ballot results being available to the parties within 10 days after

the ballot order is made.

109K Commission procedure regarding multiple applications

(1)

If:

(a) more than one application for a ballot order is before the

Commission for determination; and

(b) the applications relate to industrial action by employees of

the same employer or by employees at the same place of

work; and

at the same time will not unreasonably delay the

determination of any of the applications;

the Commission may determine the applications at the same time.

(2)

If:

(a) the Commission has made an order requiring a ballot to be

held in relation to industrial action by employees of an

employer, or by employees at a place of work; and

(b) the Commission proposes to make another order requiring a

ballot to be held in relation to industrial action against that

employer, or at the same place of work; and

employer's business, or at the place of work (as the case

requires), could be reduced if the ballots were held at the

same time; and

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(d) the Commission considers that requiring the ballots to be

held at the same time will not unreasonably delay the conduct

of either ballot;

the Commission may make, or vary, the relevant orders so as to

require the ballots to be held at the same time.

109L Application not to be granted unless certain conditions are met

Commission must be satisfied of various matters

(1) The Commission must grant an application for a ballot order if, and

must not grant the application unless, it is satisfied that:

(a) during the bargaining period, the applicant genuinely tried to

reach agreement with the employer of the relevant

employees; and

(b) the applicant is genuinely trying to reach agreement with the

employer; and

Note 1:

An application for a ballot order must comply with the requirements

set out in Subdivision B.

Note 2:

To work out when a bargaining period began, see section 107D.

Note 3:

For other provisions relating to pattern bargaining, see:

(a) section

107H;

and

(b) section

108D;

and

111A.

When Commission has discretion to refuse application

(2) Despite subsection (1), the Commission may refuse the application

if it is satisfied:

(a) that granting the application would be inconsistent with the

object of this Division (see section 109); or

(b) that the applicant, or a relevant employee, has at any time

contravened a provision of this Division or an order made, or

direction given, under this Division.

109M Grant of application--order for ballot to be held

If the Commission grants the application, the Commission must

order the applicant to hold a protected action ballot.

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109N Matters to be included in order

(1) An order for a protected action ballot to be held must specify the

following:

(a) the name of:

(i) if the applicant is an organisation of employees--the

organisation; or

(ii) if the applicant is an employee, or a group of

employees, represented by an applicant's agent--the

applicant's agent; or

(iii) if the applicant is an employee, or a group of

employees, not represented by an applicant's agent--the

employee or employees;

(b) the types of employees who are to be balloted;

(d) the timetable for the ballot, including:

(i) the day on which the roll of voters is to close, which

must be a day at least 2 working days before the day on

which the ballot is to be held, or is to start to be held;

and

(ii) the day on which the ballot is to close;

(e) the name of the person authorised by the Commission to

conduct the ballot;

(f) the name of the person (if any) authorised by the

Commission to be the independent adviser for the ballot;

(g) the question or questions to be put to the relevant employees

in the ballot, including the nature of the proposed industrial

action.

Note 1:

Section 109ZE specifies who may be authorised by the Commission to

conduct protected action ballots.

Note 2:

Section 109ZF specifies who may be authorised by the Commission to

be the independent adviser for a protected action ballot.

(2) The order must specify a postal ballot as the voting method unless:

(a) the order specifies another voting method; and

(b) the Commission is satisfied that the other voting method is

more efficient and expeditious than a postal ballot.

(3) If the order specifies a postal ballot as the voting method, it must

specify that the voting must take place by way of declaration

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voting. For this purpose, a person votes by way of declaration

voting if the person:

(a) marks his or her vote on a ballot paper; and

(b) places the ballot paper in a declaration envelope; and

provided on the back flap of that envelope; and

(d) places that envelope in an outer envelope that is addressed to

the authorised ballot agent; and

(e) posts the outer envelope so that it reaches the authorised

ballot agent before the day on which the ballot is to close.

(4) If the order specifies an attendance ballot as the voting method, it

must specify that the voting must take place during the voters'

meal-time or other breaks, or outside their hours of employment.

(5) If the Commission is satisfied, in relation to the proposed industrial

action that is the subject of the order, that there are exceptional

circumstances justifying the period of written notice referred to in

paragraph 108F(2)(b) being longer than 3 days, the order may

specify a longer period, of up to 7 days.

109O Guidelines for ballot timetables

(1) The President may develop guidelines in relation to appropriate

timetables for the conduct of protected action ballots. The

President may consult the Australian Electoral Commission, and

any other person, in developing guidelines.

(2) Guidelines developed under this section are not legislative

instruments.

109P Power of Commission to require information relevant to roll of

voters

(1) The Commission may order the employer of the relevant

employees, or the applicant, or both, to provide:

(a) a list of employees of the type described in the application;

and

(b) any other information that it is reasonable for the

Commission to require in order to assist in the compilation of

a roll of voters for the proposed ballot.

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(2) The order may require the list, or other information, to be provided

to the Commission or to the authorised ballot agent.

(3) The order may require the list, or other information, to be provided

in whatever form the Commission considers appropriate.

109Q Roll to be compiled by Commission or ballot agent

If the Commission makes a ballot order, it must:

(a) compile a list of the names of the persons who are eligible to

be included on the roll of voters for the ballot and provide

that list, as the roll of voters, to the authorised ballot agent; or

(b) order, by separate order, the authorised ballot agent to

compile the roll of voters for the ballot.

109R Eligibility to be included on the roll

(1) A person is eligible to be included on the roll of voters for the

ballot if, and only if:

(a) if the applicant is an organisation of employees--the person:

(i) was a member of the organisation on the day the ballot

order was made; and

(ii) was employed by the employer on the day the ballot

order was made; and

(iii) will be subject to the proposed collective agreement; or

(b) if the applicant is an employee, or a group of employees--the

person:

(i) was employed by the employer on the day the ballot

order was made; and

(ii) will be subject to the proposed collective agreement.

(2) A person is not eligible to be included on the roll of voters for the

ballot if, on the day the ballot order was made, the person was

bound by an AWA whose nominal expiry date had not passed.

109S Adding or removing names from the roll

(1)

If:

(a) a person requests the authorised ballot agent to include the

person's name on the roll of voters for a protected action

ballot; and

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(b) the ballot agent is satisfied that the person is eligible to be

included on the roll; and

is to close;

the ballot agent must add the person's name to the roll.

(2)

If:

(a) a person applies to the Commission for a declaration that the

person is eligible to be included on the roll of voters for the

ballot; and

(b) the Commission is satisfied that the person is eligible to be

included on the roll; and

voters is to close;

the Commission must make the declaration and direct the

authorised ballot agent to include the person's name on the roll.

(3)

If:

(a) a party, the authorised ballot agent, or a person whose name

is on the roll of voters for a protected action ballot, applies to

the Commission for a declaration that a person whose name

has been included on the roll of voters for the ballot is not

eligible to be so included; and

(b) the application is made before the day on which the roll of

voters is to close; and

be so included;

the Commission must make the declaration and direct the

authorised ballot agent to remove the person's name from the roll.

(4) A person's name cannot be added to, or removed from, the roll of

voters for a protected action ballot after the day on which the roll

of voters is to close.

109T Variation of order

Variation sought by applicant

(1) An applicant for a ballot order may apply to the Commission, at

any time before the order expires, to vary the ballot order.

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Variation sought by ballot agent

(2) The authorised ballot agent for a particular ballot may apply to the

Commission, at any time before the ballot has closed, to vary:

(a) the voting method specified in the ballot order; or

(b) the timetable for the ballot specified in the ballot order.

109U Expiry and revocation of order

(1) If a ballot has not been held within the period specified in the

ballot order, the order expires at the end of that period.

(2) An applicant for a ballot order may apply to the Commission, at

any time before the order expires, to revoke the ballot order.

(3) If the applicant makes an application under subsection (2), the

Commission must revoke the order.

109V Compliance with orders and directions

(1) A person to whom an order or a direction under this Division is

expressed to apply must comply with the order or direction.

Civil remedy provisions

(2) Subsection (1) is a civil remedy provision.

(3) The Court may order a person who has contravened subsection (1)

to pay a pecuniary penalty.

(4) The pecuniary penalty cannot be more than 300 penalty units for a

body corporate or 60 penalty units in any other case.

(5) An application for an order under subsection (3) may be made by:

(a) an employee who is eligible to be included on the roll of

voters for the protected action ballot concerned; or

(b) an employer of employees referred to in paragraph (a); or

concerned to be held; or

(d) a workplace inspector; or

(e) any other person prescribed by the regulations.

Note:

For other provisions about civil remedy provisions, see Division 4 of

Part VIII.

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109W Commission to notify parties and authorised ballot agent

(1) As soon as practicable after making a ballot order, the Commission

must ensure that a copy of the order is given to each party and to

the authorised ballot agent.

(2) As soon as practicable after varying a ballot order, the Commission

must ensure that a copy of the variation is given to each party and

to the authorised ballot agent.

(3) As soon as practicable after revoking a ballot order, the

Commission must ensure that a copy of the revocation is given to

each party and to the authorised ballot agent.

Subdivision D--Conduct and results of protected action ballot

109X Conduct of ballot

A ballot is not a protected action ballot unless it is conducted by

the authorised ballot agent for the ballot.

109Y Form of ballot paper

The ballot paper must be in the prescribed form and must include

the following:

(a) the name of the applicant or the applicant's agent (as the case

requires);

(b) the types of employees who are to be balloted;

(d) the question or questions to be put to the relevant employees

in the ballot, including the nature of the proposed industrial

action;

(e) a statement that the voter's vote is secret and that the voter is

free to choose whether or not to support the proposed

industrial action;

(f) instructions to the voter on how to complete the ballot paper;

(g) the day on which the ballot is to close.

109Z Who can vote

A person cannot vote in a protected action ballot unless the

person's name is on the roll of voters for the ballot.

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109ZA Declaration of ballot results

As soon as practicable after the day on which the ballot closes, the

authorised ballot agent must, in writing:

(a) make a declaration of the results of the ballot; and

(b) inform the parties and the Industrial Registrar of the result.

109ZB Ballot reports

Report by authorised ballot agent

(1) As soon as practicable after the day on which the ballot closes, the

authorised ballot agent must give the Industrial Registrar a written

report about the conduct of the ballot.

Note:

This subsection is a civil remedy provision: see subsection (7).

(2) A report under subsection (1) must set out details of:

(a) any complaints made to the authorised ballot agent about the

conduct of the ballot; and

(b) any irregularities in relation to the conduct of the ballot that

have come to the attention of the authorised ballot agent.

(3) Subsection (2) does not limit subsection (1).

Report by authorised independent adviser

(4) As soon as practicable after the end of the voting, the authorised

independent adviser (if any) must give the Industrial Registrar a

written report about the conduct of the ballot.

Note:

This subsection is a civil remedy provision: see subsection (7).

(5) A report under subsection (4) must set out details of:

(a) any complaints made to the authorised independent adviser

about the conduct of the ballot; and

(b) any irregularities in relation to the conduct of the ballot that

have come to the attention of the authorised independent

adviser.

(6) Subsection (5) does not limit subsection (4).

Civil remedy provisions

(7) Subsections (1) and (4) are civil remedy provisions.

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(8) The Court may order a person who has contravened subsection (1)

or (4) to pay a pecuniary penalty.

(9) The pecuniary penalty cannot be more than 300 penalty units for a

body corporate or 60 penalty units in any other case.

(10) An application for an order under subsection (8) may be made by:

(a) an employee who is eligible to be included on the roll of

voters for the protected action ballot concerned; or

(b) an employer of employees referred to in paragraph (a); or

concerned to be held; or

(d) a workplace inspector; or

(e) any other person prescribed by the regulations.

Note:

For other provisions about civil remedy provisions, see Division 4 of

Part VIII.

Definitions

(11) In this section:

conduct, in relation to a protected action ballot, includes, but is not

limited to, the compilation of the roll of voters for the ballot.

irregularity, in relation to the conduct of a protected action ballot,

includes, but is not limited to, an act or omission by means of

which the full and free recording of votes by all persons entitled to

record votes and by no other persons is, or is attempted to be,

prevented or hindered.

109ZC Effect of ballot

(1) Industrial action is authorised by a protected action ballot if:

(a) the action was the subject of a protected action ballot; and

(b) at least 50% of persons on the roll of voters for the ballot

voted in the ballot; and

the action; and

(d) the action commences during the 30-day period beginning on

the date of the declaration of the results of the ballot.

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Note:

Industrial action must be authorised under this Division if it is to be

protected action under Division 3 (unless the action is in response to

industrial action by the employer)--see section 108J.

(2) However, the action is not authorised to the extent that it occurs

after the end of the bargaining period referred to in section 109B.

Note:

If another bargaining period is initiated later, and industrial action is

proposed for that later period, it can only be authorised if a fresh

application for a ballot order is granted, and the other steps required

by this Division are completed, during that later period.

(3) The Commission may, by order, extend the 30-day period

mentioned in paragraph (1)(d) by up to 30 days if the employer and

the applicant for the ballot order jointly apply to the Commission

for the period to be extended.

(4) The Commission must not make an order under subsection (3)

extending the 30-day period if that period has previously been

extended.

109ZD Registrar to record questions put in ballot, and to publish

results of ballot

(1) The Industrial Registrar must, in relation to each protected action

ballot that has been held, keep a record of:

(a) the questions put to voters in the ballot; and

(b) the results of the ballot declared by the authorised ballot

agent under section 109ZA.

(2) The Industrial Registrar must, as soon as practicable after being

informed of the results of a ballot by the authorised ballot agent

under section 109ZA, publish the results.

Subdivision E--Authorised ballot agents and authorised

independent advisers

109ZE Who may be an authorised ballot agent?

(1) In a ballot order, the Commission may name as the authorised

ballot agent:

(a) the Australian Electoral Commission; or

(b)

another

person.

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(2) The Commission must not name a person other than the Australian

Electoral Commission as the authorised ballot agent for the ballot

unless the Commission is satisfied that the person:

(a) is capable of ensuring the secrecy and security of votes cast

in the ballot; and

(b) is capable of ensuring that the ballot will be fair and

democratic; and

(d) is otherwise a fit and proper person to conduct the ballot.

(3) The Commission must not name the applicant as the authorised

ballot agent for the ballot unless:

(a) the applicant nominates another person to be the authorised

independent adviser for the ballot; and

(b) the Commission names the other person as the authorised

independent adviser for the ballot.

Note:

Section 109ZF specifies who may be authorised by the Commission to

be the independent adviser for a protected action ballot.

(4) If the Commission is satisfied that a person is not sufficiently

independent of the applicant, the Commission must not name the

person as the authorised ballot agent for the ballot unless:

(a) the applicant nominates a third person as the authorised

independent adviser for the ballot; and

(b) the Commission names the third person as the authorised

independent adviser for the ballot.

Note:

Section 109ZF specifies who may be authorised by the Commission to

be the independent adviser for a protected action ballot.

(5) The regulations may prescribe:

(a) conditions that a person must meet in order to satisfy the

Commission that the person is a fit and proper person to

conduct a ballot; and

(b) factors to be taken into account by the Commission in

determining whether a person is a fit and proper person to

conduct a ballot.

109ZF Who may be an authorised independent adviser?

(1) In a ballot order, the Commission may name a person nominated

by the applicant as the authorised independent adviser.

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(2) The Commission must not name a person as the authorised

independent adviser for the ballot unless the Commission is

satisfied that the person:

(a) is sufficiently independent of the applicant; and

(b) is capable of giving the authorised ballot agent:

(i) advice that is; and

(ii) recommendations that are;

directed towards ensuring that the ballot will be fair and

democratic; and

(3) The regulations may prescribe factors to be taken into account by

the Commission in determining whether a person is capable of

giving an authorised ballot agent:

(a) advice that is; and

(b) recommendations that are;

directed towards ensuring that a protected action ballot will be fair

and democratic.

Subdivision F--Funding of ballots

109ZG Liability for cost of ballot

(1) The applicant for a ballot order is liable for the cost of holding the

ballot.

(2) If the application for the ballot order was made by joint applicants,

each applicant is jointly and severally liable for the cost of holding

the ballot.

(3) Subsections (1) and (2) have effect subject to subsections

109ZH(3) and (6).

(4) In this section:

cost of holding the ballot means:

(a) if the applicant, or one of the applicants, is the authorised

ballot agent--the costs incurred by the authorised ballot

agent in relation to the holding of the ballot; or

(b) otherwise--the amount the authorised ballot agent charges to

the applicant or applicants in relation to the holding of the

ballot.

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109ZH Commonwealth has partial liability for cost of ballot

Authorised ballot agent someone other than the Australian

Electoral Commission

(1)

If:

(a) the authorised ballot agent for the ballot is not the Australian

Electoral Commission; and

(b) the applicant notifies the Industrial Registrar of the cost of

holding the ballot; and

on which the ballot closed;

the Industrial Registrar must determine how much (if any) of that

cost was reasonably and genuinely incurred in relation to the

holding of the ballot.

(2) If subsection (1) applies, the Commonwealth is liable to pay to the

authorised ballot agent 80% of the amount determined under that

subsection.

(3) The applicant is, to the extent of the Commonwealth's liability

under subsection (2), discharged from liability under

section 109ZG for the cost of holding the ballot.

(4) The regulations may prescribe matters to be taken into account by

the Industrial Registrar in determining whether costs are

reasonably and genuinely incurred in relation to the holding of the

ballot.

Authorised ballot agent the Australian Electoral Commission

(5) If the authorised ballot agent for the ballot is the Australian

Electoral Commission, the Australian Electoral Commission must

certify, within a reasonable time after the completion of the ballot,

the amount of the reasonable costs charged by the Australian

Electoral Commission to the applicant in relation to holding the

ballot.

(6) The applicant is, to the extent of 80% of the amount certified under

subsection (5), discharged from liability under section 109ZG for

the cost of holding the ballot.

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Definition

(7) In this section:

cost of holding the ballot has the same meaning as in

section 109ZG.

109ZI Liability for cost of legal challenges

(1) The regulations may make provision for who is liable for costs

incurred in relation to legal challenges to matters connected with

protected action ballots.

(2) The regulations may also make provision for a person who is liable

for costs referred to in subsection (1) to be indemnified by another

person for some or all of those costs.

(3) For the purposes of sections 109ZG and 109ZH, costs of holding

the ballot do not include costs referred to in subsection (1) of this

section.

Subdivision G--Miscellaneous

109ZJ Identity of certain persons not to be disclosed by Commission

(1) The Commission must not disclose information that the

Commission has reasonable grounds to believe will identify a

person as:

(a) an applicant who is represented by an applicant's agent; or

(b) a relevant employee who was one of the prescribed number

of employees supporting an application for a ballot order (as

required by subsection 109B(4)); or

protected action ballot; or

(d) a person who is a party to an AWA.

(2) Each of the following is an exception to subsection (1):

(a) the disclosure is required or authorised by this Act or by

another Act, by regulations made for the purposes of another

provision of this Act, or by regulations made for the purposes

of another Act;

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(b) the person whose identity is disclosed has, in writing,

authorised the disclosure.

109ZK Persons not to disclose identity of certain persons

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information is protected information; and

information will identify another person as a person referred

to in paragraph 109ZJ(1)(a), (b), (c) or (d); and

(d) the disclosure is not made by the person in the course of

performing functions or duties:

(i) as a Registry official; or

(ii) as, or on behalf of, an authorised ballot agent; or

(iii) as an authorised independent adviser; and

(e) the disclosure is not required or authorised by this Act or by

another Act, by regulations made for the purposes of another

provision of this Act, or by regulations made for the purposes

of another Act; and

(f) the person whose identity is disclosed has not, in writing,

authorised the disclosure.

Penalty: Imprisonment for 6 months.

(2) In this section:

protected information, in relation to a person, means information

that the person acquired:

(a) in the course of performing functions or duties as a Registry

official; or

(b) in the course of performing functions or duties as, or on

behalf of, an authorised ballot agent; or

acquired the information as mentioned in paragraph (a) or

(b).

Registry official means:

(a) the Industrial Registrar; or

(b) a member of the staff of the Industrial Registry (including a

Deputy Industrial Registrar).

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109ZL Immunity if person acted in good faith on ballot results

(1)

If:

(a) the results of a protected action ballot, as declared by the

authorised ballot agent, purported to authorise particular

industrial action; and

(b) an organisation or person, acting in good faith on the

declared ballot results, organised or engaged in that industrial

action; and

authorised by the ballot;

no action lies against the organisation or person under any law

(whether written or unwritten) in force in a State or Territory in

respect of the action unless the action involved:

(d) personal injury; or

(e) wilful or reckless destruction of, or damage to, property; or

(f) the unlawful taking, keeping or use of property.

(2) Subsection (1) does not prevent an action for defamation being

brought in respect of anything that occurred in the course of

industrial action.

109ZM Limits on challenges etc. to ballot orders etc.

(1) An order of the Commission that a person hold a protected action

ballot, and any order, direction or decision of the Commission in

connection with the order:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed,

set aside or called in question in any court on any ground;

and

injunction, or the making of a declaratory or other order, in

any court on any ground;

unless subsection (2) applies to the order or decision.

(2) This subsection applies to an order for a protected action ballot, or

to an order, direction or decision of the Commission in connection

with the order, if:

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(a) in proceedings relating to the order, direction or decision, as

the case requires, a person claims that another person or

persons:

(i) contravened this Division, or an order or direction of the

Commission under this Division, if the contravention is

not merely a technical breach; or

(ii) misled the Commission (whether by a false statement or

by an omission) in such a way as to affect the order,

direction or decision; and

(b) the court is satisfied that there are reasonable grounds for the

claim.

109ZN Limits on challenges etc. to ballots

(1) If a protected action ballot has been conducted, or has purportedly

been conducted:

(a) the declaration of the results of the ballot is final and

conclusive; and

(b) the declaration of the results of the ballot must not be

quashed or set aside by any court on any ground; and

the ballot, must not be challenged, appealed against,

reviewed or called in question, as applicable, in any court on

any ground; and

(d) the conduct of the ballot, and the declaration of the results of

the ballot, are not subject to mandamus, prohibition,

certiorari or injunction, or the making of a declaratory or

other order, as applicable, in any court on any ground;

unless subsection (2) applies to the conduct or declaration.

(2) This subsection applies to the conduct of a protected action ballot,

and to the declaration of the results of a ballot, if:

(a) in proceedings relating to the conduct or declaration, as the

case requires, a person claims that another person or persons:

(i) contravened this Division, or an order or direction of the

Commission under this Division, if the contravention is

not merely a technical breach; or

(ii) acted fraudulently in relation to the conduct or

declaration; or

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(iii) acted in such a way as to cause an irregularity in

relation to the conduct or declaration, being an

irregularity that affected the outcome of the ballot; and

(b) the court is satisfied that there are reasonable grounds for the

claim.

(3) In this section:

conduct, in relation to a protected action ballot, includes, but is not

limited to, the compilation of the roll of voters for the ballot.

irregularity, in relation to the conduct or declaration of a protected

action ballot, includes, but is not limited to, an act or omission by

means of which:

(a) the full and free recording of votes by all persons entitled to

record votes and by no other persons; or

(b) a correct ascertainment or declaration of the results of the

voting;

is, or is attempted to be, prevented or hindered.

109ZO Penalties not affected

Nothing in section 109ZM or 109ZN is to be taken to prevent a

penalty being imposed upon a person for a contravention of this

Act.

109ZP Preservation of roll of voters, ballot papers etc.

A person commits an offence if:

(a) the person has conducted a protected action ballot; and

(b) the person was the authorised ballot agent for the ballot; and

after the day on which the ballot closed:

(i) the roll of voters;

(ii) all the ballot papers, envelopes and other documents and

records relevant to the ballot.

Penalty: Imprisonment for 6 months.

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109ZQ Conferral of function on Australian Electoral Commission

(1) If the Australian Electoral Commission is the authorised ballot

agent for a protected action ballot, it is a function of the Australian

Electoral Commission to conduct the ballot.

(2) If the Australian Electoral Commission is:

(a) the ballot agent nominated in an application for a ballot

order; or

(b) the authorised ballot agent for such a ballot;

the Australian Electoral Commission cannot make a submission or

an application to the Commission seeking to cease having that

status in relation to the ballot.

109ZR Regulations

The regulations may make provision in relation to the following

matters:

(a) the qualifications and appointment of applicants' agents;

(b) procedures to be followed in relation to the conduct of a

ballot, or class of ballot, under this Division;

scrutineers;

(d) the powers and duties of authorised independent advisers;

(e) the manner in which ballot results are to be published under

section 109ZD.

Division 5--Industrial action not to be engaged in before

nominal expiry date of workplace agreement or

workplace determination

110 Industrial action etc. must not be taken before nominal expiry

date of collective agreement or workplace determinations

(1) From the day when:

(a) a collective agreement; or

(b)

workplace

determination;

comes into operation until its nominal expiry date has passed, an

employee, organisation or officer covered by subsection (2) must

not organise or engage in industrial action affecting the employer

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(whether or not that action relates to a matter dealt with in the

agreement or determination).

Note 1:

This subsection is a civil remedy provision: see subsection (4).

Note 2:

Action that contravenes this subsection is not protected action (see

section 108E).

(2) For the purposes of subsection (1), the following are covered by

this subsection:

(a) an employee who is bound by the agreement or

determination;

(b) an organisation of employees that is bound by the agreement

or determination;

capacity.

(3) From the time when:

(a) a collective agreement; or

(b)

workplace

determination;

is made until its nominal expiry date has passed, the employer must

not engage in industrial action against an employee whose

employment is subject to the agreement or determination (whether

or not that industrial action relates to a matter dealt with in the

agreement or determination).

Note 1:

This subsection is a civil remedy provision: see subsection (4).

Note 2:

Action that contravenes this subsection is not protected action (see

section 108E).

Civil remedy provisions

(4) Subsections (1) and (3) are civil remedy provisions.

(5) The Court may make one or more of the following orders in

relation to a person who has contravened subsection (1) or (3):

(a) an order imposing a pecuniary penalty on the person;

(b) injunctions, and any other orders, that the Court considers

necessary to stop the contravention or remedy its effects.

(6) The pecuniary penalty under paragraph (5)(a) cannot be more than

300 penalty units for a body corporate or 60 penalty units in any

other case.

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(7) An application for an order under subsection (5), in relation to a

contravention of subsection (1), may be made by:

(a) the employer concerned; or

(b) a workplace inspector; or

(8) An application for an order under subsection (5), in relation to a

contravention of subsection (3), may be made by:

(a) the employee concerned; or

(b) an organisation of employees if:

(i) a member of the organisation is employed by the

employer concerned; and

(ii) the contravention relates to, or affects, the member of

the organisation or work carried on by the member for

that employer; or

(d) any other person prescribed by the regulations.

Note:

For other provisions about civil remedy provisions, see Division 4 of

Part VIII.

110A Industrial action must not be taken before nominal expiry date

of AWA

(1) From the day when an AWA comes into operation until its nominal

expiry date, the employee must not engage in industrial action in

relation to the employment to which the AWA relates.

Note 1:

This subsection is a civil remedy provision: see subsection (3).

Note 2:

Action that contravenes this subsection is not protected action: see

section 108E.

(2)

From

the day when an AWA comes into operation until its nominal

expiry date, the employer must not engage in industrial action

against the employee.

Note 1:

This subsection is a civil remedy provision: see subsection (3).

Note 2:

Action that contravenes this subsection is not protected action (see

section 108E).

Civil remedy provisions

(3) Subsections (1) and (2) are civil remedy provisions.

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(4) The Court may make one or more of the following orders in

relation to a person who has contravened subsection (1) or (2):

(a) an order imposing a pecuniary penalty on the person;

(b) injunctions, and any other orders, that the Court considers

necessary to stop the contravention or remedy its effects.

(5) The pecuniary penalty under paragraph (4)(a) cannot be more than

300 penalty units for a body corporate or 60 penalty units in any

other case.

(6) An application for an order under subsection (4), in relation to a

contravention of subsection (1), may be made by:

(a) the employer concerned; or

(b) a workplace inspector; or

(7) An application for an order under subsection (4), in relation to a

contravention of subsection (2), may be made by:

(a) the employee concerned; or

(b) an organisation of employees that represents that employee

if:

(i) that employee has requested the organisation to apply

on that employee's behalf; and

(ii) a member of the organisation is employed by that

employee's employer; and

(iii) the organisation is entitled, under its eligibility rules, to

represent the industrial interests of that employee in

relation to work carried on by that employee for the

employer; or

(d) any other person prescribed by the regulations.

Note:

For other provisions about civil remedy provisions, see Division 4 of

Part VIII.

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Division 6--Orders and injunctions against industrial

action

111 Orders and injunctions against industrial action--general

Orders relating to action by federal-system employees and

employers

(1) If it appears to the Commission that industrial action by an

employee or employees, or by an employer, that is not, or would

not be, protected action:

(a) is happening; or

(b) is threatened, impending or probable; or

the Commission must make an order that the industrial action stop,

not occur and not be organised.

Orders relating to action by non-federal system employees and

employers

(2) If it appears to the Commission that industrial action by a

non-federal system employee or non-federal system employees, or

by a non-federal system employer:

(a)

is:

(i)

happening;

(ii) threatened, impending or probable; or

(iii) being organised; and

(b) will, or would, be likely to have the effect of causing

substantial loss or damage to the business of a constitutional

corporation;

the Commission must make an order that the relevant industrial

action stop, not occur and not be organised.

(3) For the purposes of subsection (2), and other provisions of this Act

as they relate to orders under that subsection:

(a)

non-federal system employee means a person who is an

employee, within the ordinary meaning of that word, but who

is not covered by the definition of employee in subsection

4AA(1); and

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(b)

non-federal system employer means a person who is an

employer, within the ordinary meaning of that word, but who

is not covered by the definition of employer in subsection

4AB(1); and

references in that section to employees and employers were

instead references to non-federal system employees and

non-federal system employers.

Order may be made on application or on Commission's own

initiative

(4) The Commission may make an order under subsection (1) or (2) on

its own initiative, or on the application of:

(a) a person who is affected (whether directly or indirectly), or

who is likely to be affected (whether directly or indirectly),

by the industrial action; or

(b) an organisation of which a person referred to in paragraph (a)

is a member.

Applications generally to be heard and determined within 48 hours

(5) As far as practicable, the Commission must hear and determine an

application for an order under subsection (1) or (2) within 48 hours

after the application is made.

Interim orders if applications cannot be heard and determined

within 48 hours

(6) If the Commission is unable to determine an application for an

order under subsection (1) or (2) within the period referred to in

subsection (5), the Commission must (within that period) make an

interim order to stop and prevent engagement in, and organisation

of, the industrial action referred to in subsection (1) or (2).

(7) However, the Commission must not make such an interim order if

the Commission is satisfied that it would be contrary to the public

interest to do so.

(8) An interim order is to have effect until the application is

determined.

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Commission does not have to specify the industrial action

(9) In ordering under subsection (1), (2) or (6) that industrial action

stop, not occur and not be organised, the Commission does not

have to specify the particular industrial action.

Obligation to comply with orders

(10) A person to whom an order under subsection (1), (2) or (6) is

expressed to apply must comply with the order.

(11) Subsection (10) is a civil remedy provision.

(12) The Court may, on application by a person affected by an order of

the Commission under subsection (1), (2) or (6), grant an

injunction on such terms as the Court considers appropriate if it is

satisfied that another person:

(a) has engaged in conduct that constitutes a contravention of

subsection (10); or

(b) is proposing to engage in conduct that would constitute such

a contravention.

Note:

For other provisions about civil remedy provisions, see Division 4 of

Part VIII.

Orders do not apply to protected action

(13) An order under subsection (1), or under subsection (6) that relates

to an application for an order under subsection (1), does not apply

to protected action.

111A Injunction against industrial action if pattern bargaining

engaged in in relation to proposed collective agreement

The Court may grant an injunction in such terms as the Court

considers appropriate if, on application by any person, the Court is

satisfied that:

(a) industrial action in relation to a proposed collective

agreement is being engaged in, or is threatened, impending or

probable; and

(b) the industrial action is or would be for the purpose of

supporting or advancing claims made by a negotiating party

to the proposed collective agreement; and

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proposed collective agreement.

Note:

For other provisions relating to pattern bargaining, see:

(a) section

107H;

and

(b) section

108D;

and

109L.

Division 7--Ministerial declarations terminating

bargaining periods

112 Minister's declaration

Making of declaration

(1) The Minister may make a written declaration terminating a

specified bargaining period, or specified bargaining periods, if the

Minister is satisfied that:

(a) industrial action is being taken, or is threatened, impending

or probable; and

(b) the industrial action is adversely affecting, or would

adversely affect, the employer or employers who are

negotiating parties, or employees of the employer or

employers; and

(i) to endanger the life, the personal safety or health, or the

welfare, of the population or of part of it; or

(ii) to cause significant damage to the Australian economy

or an important part of it.

Note:

See also Division 8 (about workplace determinations once a

bargaining period has been terminated).

(2) The declaration takes effect on the day that it is made.

Making persons aware of the declaration

(3) The Minister must publish the declaration in the Gazette.

(4) The Minister must inform the Commission of the making of the

declaration.

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(5) The Minister must, as soon as reasonably practicable, take all

reasonable steps to make the negotiating parties to the proposed

collective agreement or agreements concerned aware:

(a) of the making of the declaration; and

(b) of the effect of Division 8 (about workplace determinations

once a bargaining period has been terminated); and

issue to an alternative dispute resolution process conducted

by the Commission or another provider (see Divisions 4 and

6 of Part VIIA).

Restriction on initiating new bargaining period

(6) The Minister may specify in the declaration that, during a specified

period beginning on the day that the declaration is made, a

specified person:

(a) is not allowed to initiate a new bargaining period in relation

to specified matters that are dealt with by the proposed

collective agreement or agreements concerned; or

(b) may initiate such a bargaining period only on specified

conditions.

Declaration not a legislative instrument

(7) A declaration made under subsection (1) is not a legislative

instrument.

112A Minister's directions to remove or reduce the threat

(1) If the Minister makes a declaration under 112, the Minister may

make the following kinds of written directions if the Minister is

satisfied that they are reasonably directed to removing or reducing

the threat referred to in paragraph 112(1)(c):

(a) directions requiring specified negotiating parties, or specified

employees of an employer who is a negotiating party, to take

specified actions;

(b) directions requiring specified negotiating parties, or specified

employees of an employer who is a negotiating party, to

refrain from taking specified actions.

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Making persons aware of the directions

(2) The Minister must, as soon as reasonably practicable, take all

reasonable steps to make the specified persons concerned aware of

the directions.

Directions not legislative instruments

(3) Directions made under subsection (1) are not legislative

instruments.

Compliance with directions

(4) A person must comply with a direction under this section.

Civil remedy provisions

(5) Subsection (4) is a civil remedy provision.

(6) The Court may order a person who has contravened subsection (4)

to pay a pecuniary penalty.

(7) The pecuniary penalty cannot be more than 300 penalty units for a

body corporate or 60 penalty units in any other case.

(8) An application for an order under subsection (6) may be made by a

workplace inspector.

Note:

For other provisions about civil remedy provisions, see Division 4 of

Part VIII.

Division 8--Workplace determinations

113 Application of Division

This Division applies if a bargaining period has been terminated:

(a) on the ground set out in subsection 107G(3); or

(b) because a declaration has been made under Division 7.

113A Definitions

In this Division:

matters at issue means the matters that were at issue during the

bargaining period.

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negotiating period has the meaning given by section 113B.

113B Negotiating period

(1)

The

negotiating period is the period that:

(a) starts on the day on which the bargaining period was

terminated; and

(b)

ends:

(i) if the Commission has not extended the period under

subsection (2)--21 days after that day; or

(ii) if the Commission has so extended the period--42 days

after that day.

(2) The Commission must extend the period if:

(a) all of the negotiating parties apply to the Commission for an

extension under this subsection within 21 days after the day

on which the bargaining period was terminated; and

(b) the negotiating parties have not settled the matters at issue

(whether or not by making a workplace agreement).

113C When Full Bench must make workplace determination

(1) The Commission must make a determination (a workplace

determination) under this section if:

(a) the negotiating period has ended; and

(b) the negotiating parties have not settled the matters at issue

(whether or not by making a workplace agreement).

(2) The workplace determination can be made only by a Full Bench.

(3) The Full Bench must make the workplace determination as quickly

as practicable after the end of the negotiating period.

(4) For the purposes of paragraph (1)(b), the negotiating parties are

taken not to have settled the matters at issue if:

(a) the negotiating parties make a workplace agreement

purporting to settle the matters at issue; and

(b) the workplace agreement is not approved in accordance with

section 98C.

(5) Workplace determinations are not legislative instruments.

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113D Content of workplace determination

(1) The workplace determination must contain terms that, in the

opinion of the Full Bench, deal with the matters at issue.

(2) The workplace determination comes into operation on the day on

which it is made.

(3) The workplace determination must contain a term specifying a

nominal expiry date for the determination that is no later than 5

years after the date on which the determination commences

operating.

(4) The workplace determination must not contain prohibited content.

(5) In deciding which terms to include in the workplace determination,

the Full Bench must have regard to the following factors only:

(a) the matters at issue;

(b) the merits of the case;

(d) how productivity might be improved in the business or part

of the business concerned;

(e) the extent to which the conduct of the negotiating parties

during the bargaining period was reasonable;

(f) incentives to encourage parties to pursue negotiated

outcomes at a later stage;

(g) the employer's capacity to pay;

(h) decisions of the AFPC;

(i) any other factors specified in the regulations.

(6) The workplace determination must require disputes about matters

arising under the determination to be dealt with in accordance with

the model dispute resolution process (see Part VIIA).

(7) The workplace determination must not contain any terms other

than those required by this section.

113E Who is bound by a workplace determination?

A workplace determination binds:

(a) the negotiating parties referred to in subsection 113C(1)(b);

and

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(b) all employees whose employment is subject to the

determination.

113F Act applies to workplace determination as if it were a

collective agreement

(1) Subject to this section, this Act applies to the workplace

determination as if it were a collective agreement in operation.

(2) The following provisions do not apply to the workplace

determination:

(a) section 100D (persons bound by workplace agreements);

(b)

Subdivision

A of Division 7 of Part VB (content of

workplace agreements);

(3) Subdivision B of Division 9 of Part VB (termination by approval

(pre-lodgment procedures)) applies in relation to the workplace

determination, but only after the determination has passed its

nominal expiry date.

(4) Despite sections 100(5), the workplace determination ceases to be

in operation in relation to an employee if a collective agreement

that binds the employee is lodged, even if this happens before the

nominal expiry date of the determination.

Division 9--Payments in relation to periods of industrial

action

114 Payments not to be made or accepted in relation to periods of

industrial action

(1) This section applies if an employee engaged, or engages, in

industrial action (whether or not protected action) in relation to an

employer on a day.

(2) The employer must not make a payment to an employee in relation

to:

(a) if the total duration of the industrial action on that day is less

than 4 hours--4 hours of that day; or

(b) otherwise--the total duration of the industrial action on that

day.

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Note:

This subsection is a civil remedy provision: see subsection (6).

(3)

If:

(a) the industrial action is during a shift (or other period of

work); and

(b) the shift (or other period of work) occurs partly on 1 day and

partly on the next day;

then, for the purposes of this section, the shift is taken to be a day

and the remaining parts of the days are taken not to be part of that

day.

Example: An employee, who is working a shift from 10 pm on Tuesday until 7

am on Wednesday, engages in industrial action from 11 pm on

Tuesday until 1 am on Wednesday. That industrial action would

prevent the employer making a payment to the employee in relation to

4 hours of the shift, but would not prevent the employer from making

a payment in relation to the remaining 5 hours of the shift.

(4) For the purposes of subsection (3), overtime is taken not to be a

separate shift.

(5) An employee must not accept a payment from an employer if the

employer would contravene subsection (2) by making the payment.

Note:

This subsection is a civil remedy provision: see subsection (6).

Civil remedy provisions

(6) Subsections (2) and (5) are civil remedy provisions.

(7) The Court may make one or more of the following orders in

relation to a person who has contravened subsection (2) or (5):

(a) an order imposing a pecuniary penalty on the person;

(b) injunctions, and any other orders, that the Court considers

necessary to stop the contravention or remedy its effects;

(8) The pecuniary penalty under paragraph (7)(a) cannot be more than

300 penalty units for a body corporate or 60 penalty units in any

other case.

(9) An application for an order under subsection (7) may be made by:

(a) a workplace inspector; or

(b) a person who has an interest in the matter; or

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Note:

For other provisions about civil remedy provisions, see Division 4 of

Part VIII.

(10) A regulation prescribing persons for the purposes of

paragraph (9)(c) may limit its application to specified

circumstances.

114A Organisations not to take action for payments in relation to

periods of industrial action

(1) An organisation, or an officer, member or employee of an

organisation, must not:

(a) make a claim for an employer to make a payment to an

employee in relation to a day during which the employee

engaged, or engages, in industrial action; or

(b) organise or engage in, or threaten to organise or engage in,

industrial action against an employer with intent to coerce the

employer to make such a payment.

Note:

This subsection is a civil remedy provision: see subsection (4).

(2) For the purposes of subsection (1), action done by one of the

following bodies or persons is taken to have been done by an

organisation:

(a) the committee of management of the organisation;

(b) an officer, employee or agent of the organisation acting in

that capacity;

under the rules of the organisation;

(d) a member of the organisation, who performs the function of

dealing with an employer on behalf of the member and other

members of the organisation, acting in that capacity.

(3) Paragraphs (2)(c) and (d) do not apply if:

(a) a committee of management of the organisation; or

(b) a person authorised by the committee; or

has taken reasonable steps to prevent the action.

Civil remedy provisions

(4) Subsection (1) is a civil remedy provision.

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(5) The Court may make one or more of the following orders in

relation to a person who has contravened subsection (1):

(a) an order imposing a pecuniary penalty on the person;

(b) an order requiring the person to pay to the employer

concerned compensation of such amount as the Court thinks

appropriate;

necessary to stop the contravention or remedy its effects;

(d) any other consequential orders.

(6) The pecuniary penalty under paragraph (5)(a) cannot be more than

300 penalty units for a body corporate or 60 penalty units in any

other case.

(7) The Court must not make an order under paragraph (5)(b) if the

employer concerned has contravened subsection 114(2) in

connection with the contravention of subsection (1) of this section.

(8) An application for an order under subsection (5) may be made by:

(a) the employer concerned; or

(b) a workplace inspector; or

(d) any other person prescribed by the regulations.

Note:

For other provisions about civil remedy provisions, see Division 4 of

Part VIII.

(9) A regulation prescribing persons for the purposes of

paragraph (8)(d) may limit its application to specified

circumstances.

114B Persons not to coerce people for payments in relation to

periods of industrial action

(1) A person must not take, or threaten to take, action that would have

the effect of directly or indirectly prejudicing the engagement, or

possible engagement, of another person as an independent

contractor with the intention of coercing the other person to make a

payment to an employee of the other person in relation to a day on

which the employee engaged or engages in industrial action

(whether or not protected action).

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Civil remedy provisions

(2) Subsection (1) is a civil remedy provision.

(3) The Court may make one or more of the following orders in

relation to a person who has contravened subsection (1):

(a) an order imposing a pecuniary penalty on the person;

(b) injunctions, and any other orders, that the Court considers

necessary to stop the contravention or remedy its effects;

(4) The pecuniary penalty under paragraph (3)(a) cannot be more than

300 penalty units for a body corporate or 60 penalty units in any

other case.

(5) An application for an order under subsection (3) may be made by:

(a) the other person referred to in subsection (1); or

(b) a workplace inspector; or

(d) any other person prescribed by the regulations.

Note:

For other provisions about civil remedy provisions, see Division 4 of

Part VIII.

(6) A regulation prescribing persons for the purposes of

paragraph (5)(d) may limit its application to specified

circumstances.

Interpretation

(7) In this section, a reference to an independent contractor is not

confined to a natural person.

Part VI--Awards

Division 1--Preliminary

115 Objects of Part

The objects of this Part are:

(a) to ensure that minimum safety net entitlements are protected

through a system of enforceable awards maintained by the

Commission; and

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(b) to ensure that awards are rationalised and simplified so they

are less complex and are more conducive to the efficient

performance of work; and

this Part in a way that:

(i) encourages the making of agreements between

employers and employees at the workplace or enterprise

level; and

(ii) protects the competitive position of young people in the

labour market, promotes youth employment, youth

skills and community standards, and assists in reducing

youth unemployment.

115A Performance of functions by the Commission

(1) The Commission must perform its functions under this Part in a

way that furthers the objects of this Act and, in particular, the

objects of this Part.

(2) In performing its functions under this Part, the Commission must

have regard to:

(a) the desirability of high levels of productivity, low inflation,

creation of jobs and high levels of employment; and

(b) decisions of the AFPC, and, in particular, the need to ensure

that Commission decisions are not inconsistent with AFPC

decisions; and

that do not act as a disincentive to bargaining at the

workplace level.

115B This Part does not apply in relation to prescribed employees in

Australia

(1) This Part does not apply in relation to:

(a) an employee in Australia who is prescribed by the

regulations as an employee in relation to whom this Part does

not apply; or

(b) the employee's employer.

Note 1:

In this context, Australia includes the Territory of Christmas Island,

the Territory of Cocos (Keeling) Islands and the coastal sea. See

section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

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Note 2:

The regulations may prescribe the employee by reference to a class.

See subsection 13(3) of the Legislative Instruments Act 2003.

(2) Before the Governor-General makes regulations prescribing an

employee as an employee in relation to whom this Part does not

apply, the Minister must be satisfied that this Part should not apply

to the employee because there is not a sufficient connection

between the employee's employment and Australia.

115C Extraterritorial extension

(1) This Part, and the rest of this Act so far as it relates to this Part,

extend:

(a) to an employee outside Australia who meets any of the

conditions in this section; and

(b) to the employee's employer (whether the employer is in or

outside Australia); and

employee (whether they are in or outside Australia).

Note: In

this

context,

Australia includes the Territory of Christmas Island,

the Territory of Cocos (Keeling) Islands and the coastal sea. See

section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

In Australia's exclusive economic zone

(2) One condition is that the employee is in Australia's exclusive

economic zone and either:

(a) is an employee of an Australian employer and is not

prescribed by the regulations as an employee to whom this

subsection does not apply; or

(b) is an employee prescribed by the regulations as an employee

to whom this subsection applies.

Note:

The regulations may prescribe the employee by reference to a class.

See subsection 13(3) of the Legislative Instruments Act 2003.

On Australia's continental shelf outside exclusive economic zone

(3) Another condition is that the employee:

(a) is outside the outer limits of Australia's exclusive economic

zone, but is in, on or over a part of Australia's continental

shelf prescribed by the regulations for the purposes of this

subsection, in connection with the exploration of the

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continental shelf or the exploitation of its natural resources;

and

(b) meets the requirements that are prescribed by the regulations

for that part.

Note:

The regulations may prescribe different requirements relating to

different parts of Australia's continental shelf. The regulations may

need to do so to give effect to Australia's international obligations.

Outside Australia's exclusive economic zone and continental shelf

(4) Another condition is that the employee:

(a) is neither in Australia's exclusive economic zone nor in, on

or over a part of Australia's continental shelf described in

paragraph (3)(a); and

(b) is an Australian-based employee of an Australian employer;

and

this subsection does not apply.

Definition

(5) In this section:

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

Division 2--Terms that may be included in awards

Subdivision A--Allowable award matters

116 Allowable award matters

(1) Subject to this Part, an award may include terms about the

following matters (allowable award matters) only:

(a) ordinary time hours of work and the time within which they

are performed, rest breaks, notice periods and variations to

working hours;

(b) incentive-based payments and bonuses;

(d)

ceremonial

leave;

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(e) observance of days declared by or under a law of a State or

Territory to be observed generally within that State or

Territory, or a region of that State or Territory, as public

holidays by employees who work in that State, Territory or

region, and entitlements of employees to payment in respect

of those days;

(f) monetary allowances for:

(i) expenses incurred in the course of employment; or

(ii) responsibilities or skills that are not taken into account

in rates of pay for employees; or

(iii) disabilities associated with the performance of particular

tasks or work in particular conditions or locations;

(g) loadings for working overtime or for shift work;

(h)

penalty

rates;

(i) redundancy pay, within the meaning of subsection (4);

(j)

stand-down

provisions;

(k) dispute settling procedures, but only as provided by

section 116A;

(l) type of employment, such as full-time employment, casual

employment, regular part-time employment and shift work;

(m) conditions for outworkers, but only to the extent necessary to

ensure that their overall conditions of employment are fair

and reasonable in comparison with the conditions of

employment specified in a relevant award or awards for

employees who perform the same kind of work at an

employer's business or commercial premises.

Note 1:

The matters referred to in subsection 116(1) have a meaning that is

affected by section 116B.

Note 2:

Entitlements relating to certain matters that were allowable award

matters immediately before the reform commencement are preserved

under Division 3.

Note 3:

Certain allowable award matters are protected in workplace

agreements as protected award conditions--see section 101B.

(2) A matter referred to in subsection (1) is an allowable award matter

only to the extent that the matter pertains to the relationship

between employers bound by the award and employees of those

employers.

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(3) An award may include terms about the matters referred to in

subsection (1) only to the extent that the terms provide minimum

safety net entitlements.

(4) For the purposes of paragraph (1)(i), redundancy pay means

redundancy pay in relation to a termination of employment that is:

(a) by an employer of 15 or more employees; and

(b)

either:

(i) at the initiative of the employer and on the grounds of

operational requirements; or

(ii) because the employer is insolvent.

(5) For the purposes of paragraph (4)(a):

(a) whether an employer employs 15 or more employees, or

fewer than 15 employees, is to be worked out as at the time

(the relevant time):

(i) when notice of the redundancy is given; or

(ii) when the redundancy occurs;

whichever happens first; and

(b) a reference to employees includes a reference to:

(i) the employee who becomes redundant and any other

employee who becomes redundant at the relevant time;

and

(ii) any casual employee who, at the relevant time, has been

engaged by the employer on a regular and systematic

basis for at least 12 months (but not including any other

casual employee).

(6) For the purposes of paragraph (1)(m):

conditions does not include pay.

outworker means an employee who, for the purposes of the

business of the employer, performs work at private residential

premises or at other premises that are not business or commercial

premises of the employer.

116A Dispute settling procedures

Each award is taken to include a term that specifies a model

dispute resolution process in the same terms as the model dispute

resolution process set out in Division 1 of Part VIIA, and a term

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providing for any other dispute settling process or procedure is

taken not to be about an allowable award matter for the purposes of

paragraph 116(1)(k).

116B Matters that are not allowable award matters

(1) For the purposes of subsection 116(1), matters that are not

allowable award matters within the meaning of that subsection

include, but are not limited to, the following:

(a) rights of an organisation of employers or employees to

participate in, or represent an employer or employee in, the

whole or part of a dispute settling procedure, unless the

organisation is the representative of the employer's or

employee's choice;

(b) transfers from one type of employment to another type of

employment;

employ in a particular type of employment;

(d) prohibitions (whether direct or indirect) on an employer

employing employees in a particular type of employment;

(e) the maximum or minimum hours of work for regular

part-time employees;

(f) restrictions on the range or duration of training arrangements;

(g) restrictions on the engagement of independent contractors

and requirements relating to the conditions of their

engagement;

(h) restrictions on the engagement of labour hire workers, and

requirements relating to the conditions of their engagement,

imposed on an entity or person for whom the labour hire

worker performs work under a contract with a labour hire

agency;

(i)

union

picnic

days;

(j)

tallies;

(k) dispute resolution training leave;

(l) trade union training leave;

(m) any other matter prescribed by the regulations.

(2) Paragraph (1)(e) does not prevent any of the following being

included in an award:

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(a) terms setting a minimum number of consecutive hours that

an employer may require a regular part-time employee to

work;

(b) terms facilitating a regular pattern in the hours worked by

regular part-time employees.

(3) In this section:

labour hire agency means an entity or a person who conducts a

business that includes the employment or engagement of workers

for the purpose of supplying those workers to another entity or

person under a contract with that other entity or person.

labour hire worker means a person:

(a)

who:

(i) is employed by a labour hire agency; or

(ii) is engaged by a labour hire agency as an independent

contractor; and

(b) who performs work for another entity or person under a

contract between that entity or person and the labour hire

agency.

116C Matters provided for by the Australian Fair Pay and

Conditions Standard

(1) A matter for which provision is made by the Australian Fair Pay

and Conditions Standard is not an allowable award matter, except

as mentioned in subsection (2).

(2) Despite subsection (1), an award may include a term about

ordinary time hours of work.

Note:

An award may also include preserved award terms (see section 116G).

116D Awards may not include terms involving discrimination and

preference

To the extent that a term of an award requires or permits, or has the

effect of requiring or permitting, any conduct that would

contravene Part XA, it is taken not to be about allowable award

matters.

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116E Awards may not include certain terms about rights of entry

To the extent that a term of an award requires or authorises an

officer or employee of an organisation:

(a) to enter premises:

(i) occupied by an employer that is bound by the award; or

(ii) in which work to which the award applies is being

carried on; or

(b) to inspect or view any work, material, machinery, appliance,

article, document or other thing on such premises; or

it is taken not to be about allowable award matters.

116F Awards may not include enterprise flexibility provisions

To the extent that a term of an award is an enterprise flexibility

provision within the meaning of section 113A of this Act as in

force immediately before the reform commencement, it is taken not

to be about allowable award matters.

Subdivision B--Other terms that are permitted to be in awards

116G Preserved award terms

An award may include preserved award terms (see Division 3).

116H Facilitative provisions

(1) An award may include a facilitative provision that allows

agreement at the workplace or enterprise level, between employers

and employees (including individual employees), on how a term in

the award about an allowable award matter or a preserved award

term is to operate.

(2) A facilitative provision must not require agreement between a

majority of employees and an employer, but must permit

agreement between an individual employee and an employer, on

how a term in an award about an allowable award matter or a

preserved award term is to operate.

(3) A facilitative provision may only operate in respect of an allowable

award matter or a preserved award term.

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(4) A facilitative provision is of no effect to the extent that it does not

comply with subsections (2) and (3).

116I Incidental and machinery terms

(1) An award may include terms that are:

(a) incidental to an allowable award matter about which there is

a term in the award; and

(b) essential for the purpose of making a particular term operate

in a practical way.

(2) For the purposes of this section, to the extent that a term of an

award is about a matter that is not an allowable award matter

because of the operation of section 116B, 116D, 116E or 116F, the

term is not, and cannot be, incidental to an allowable award matter,

and is of no effect to that extent.

(3) An award may include machinery provisions including, but not

limited to, provisions about the following:

(a)

commencement;

(b)

definitions;

(c)

titles;

(d)

arrangement;

(e) employers, employees and organisations;

(f) term of the award.

116J Anti-discrimination clauses

An award may include a model anti-discrimination clause.

116K Boards of reference

(1) An award may include, in accordance with subsection (2) or (3), a

term:

(a) appointing, or giving power to appoint, for the purposes of

the award, a board of reference consisting of a person or 2 or

more persons; and

(b) assigning to the board of reference functions as described in

subsection (4).

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(2) A term of a pre-reform award that appoints, or gives power to

appoint, a board of reference is taken:

(a) to continue in effect after the reform commencement, to the

extent that it complies with subsection (4); and

(b) to cease to have effect after the reform commencement, to the

extent that it does not comply with subsection (4).

(3) An award (the rationalised award) made under section 118E or

varied under section 118J may include a term that appoints, or

gives power to appoint, a board of reference, but the term has

effect only to the extent that:

(a) the term was included in one or more of the following awards

(the replaced award):

(i) any award that the rationalised award has the effect of

replacing;

(ii) if the rationalised award is an award varied under

section 118J--the award as in force immediately before

the variation; and

(b) the functions of the board of reference that relate to preserved

award terms relate only to preserved award terms that were

included in the replaced award immediately before the

making or variation of the rationalised award; and

(4) A term of an award that appoints, or gives power to appoint, a

board of reference:

(a) may confer upon the board of reference an administrative

function in respect of allowing, approving, fixing or dealing

with, in the manner and subject to the conditions specified in

the award, a matter or thing that, under the award, may from

time to time be required to be allowed, approved, fixed or

dealt with; and

(b) must not confer upon the board of reference a function of

settling or determining disputes about any matter arising

under the award.

(5) A function conferred under subsection (4) may relate only to

allowable award matters or terms permitted by this Subdivision to

be included in the award.

(6) A board of reference may consist of or include a Commissioner.

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(7) Subject to this section, the regulations may make provision in

relation to:

(a) a particular board of reference; or

(b) boards of reference in general;

including, but not limited to, the functions and powers of the board

or boards.

Subdivision C--Terms in awards that cease to have effect

116L Terms in awards that cease to have effect after the reform

commencement

(1) Immediately after the reform commencement, a term of an award

ceases to have effect to the extent that it is about matters that are

not allowable award matters, except to the extent (if any) that the

term is permitted by Subdivision B to be included in the award.

(2) This section does not affect the operation of preserved award

terms.

Subdivision D--Regulations relating to part-time employees

116M Award conditions for part-time employees

(1) The regulations may do either or both of the following in relation

to an award:

(a) provide for the award to have effect so that a part-time

employee is entitled to conditions to which a full-time

employee is entitled under the award;

(b) provide for the award to have effect so that conditions to

which a part-time employee is otherwise entitled under the

award (including because of paragraph (a)) are adjusted (in

accordance with the regulations or a method set out in the

regulations) in proportion to the hours worked by the

part-time employee.

(2) The award has effect accordingly.

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Division 3--Preserved award entitlements

117 Preservation of certain award terms

(1)

preserved award term is a term of an award that is about a

matter referred to in subsection (2), and:

(a) if the award is a pre-reform award that has not been varied

under section 118J--was in effect immediately before the

reform commencement; or

(b) in any other case--is taken to be included in the award

because of the operation of section 117A.

Note:

Section 116L, which provides for certain terms of awards to cease

immediately after the reform commencement, does not affect the

operation of preserved award terms--see subsection 116L(2).

(2) For the purposes of subsection (1), the matters are as follows:

(a)

annual

leave;

(b)

personal/carer's

leave;

(d) long service leave;

(e) notice of termination;

(f)

jury

service;

(g)

superannuation.

(3) If a term of an award referred to in subsection (1) is about both

matters referred to in subsection (2) and other matters, it is taken to

be a preserved award term only to the extent that it is about the

matters referred to in subsection (2).

(4) A preserved award term about the matter referred to in

paragraph (2)(g) (superannuation) ceases to have effect at the end

of 30 June 2008.

(5) A preserved award term continues to have effect for the purposes

of this Act.

Note:

Preserved award terms may not be varied.

(6) In this section:

personal/carer's leave includes war service sick leave, infectious

diseases sick leave and other like forms of sick leave.

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(7) The regulations may provide that for the purposes of

subsection (2):

(a)

parental leave does not include special maternity leave

(within the meaning of section 94C); and

(b) personal/carer's leave does not include one or both of the

following:

(i) compassionate leave (within the meaning of

section 93Q);

(ii) unpaid carer's leave (within the meaning of

section 93D).

Note:

The effect of excluding these forms of leave is that the entitlement

under the Australian Fair Pay and Conditions Standard in respect of

these forms of leave will automatically apply.

(8) Regulations under subsection (7) may be expressed to apply

generally or in respect of employees engaged in specified types of

employment, such as full-time employment, part-time

employment, casual employment, regular part-time employment or

shift work.

117A Preserved award terms of rationalised awards

(1) This section applies to an award (the rationalised award) if:

(a) the award is made under section 118E or is varied under

section 118J; and

(b) immediately before the making or variation, a preserved

award term was included in one or more of the following

awards (the replaced award):

(i) any award that the rationalised award has the effect of

replacing;

(ii) if the rationalised award is an award varied under

section 118J--the award as in force immediately before

the variation.

Note:

A replaced award may be either an award made under section 118E or

a pre-reform award (which may subsequently have been varied).

(2) The preserved award term of the replaced award is taken to be

included in the rationalised award.

(3) The preserved award term is taken to have the effect that:

(a) employees belonging to the class of employees that had

entitlements under the preserved award term of the replaced

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award have corresponding entitlements under the rationalised

award; and

(b) employees belonging to any class of employees that did not

have entitlements under the preserved award term of the

replaced award do not gain entitlements under the

rationalised award.

Note:

This means that the class of employees who had preserved award

entitlements under replaced awards retain those preserved award

entitlements after award rationalisation, but the class of employees

who have such entitlements is not expanded.

(4) The preserved award term is taken to have the effect that:

(a) only an employer bound by the preserved award term of the

replaced award is bound by the corresponding preserved

award term of the rationalised award; and

(b) other employers are not so bound.

Note 1:

This means that the class of employers bound by preserved award

terms is not expanded as a result of award rationalisation.

Note 2:

The operation of this subsection is affected by Part VIAA, which deals

with transmission of business.

(5) For the purposes of subsection (3), whether an employee belongs

to a class of employees that had entitlements under a preserved

award term of a replaced award is to be determined without

reference to whether the employee was employed before or after

the making of the rationalised award.

117B When preserved award entitlements have effect

(1) This section applies to an employee if:

(a) the employee's employment is regulated by an award that

includes a preserved award term about a matter; and

(b) the employee has an entitlement (the preserved award

entitlement) in relation to that matter under the preserved

award term.

(2)

If:

(a) the preserved award term is about a matter referred to in

paragraph 117(2)(a), (b) or (c); and

(b) the employee's preserved award entitlement in relation to the

matter is more generous than the employee's entitlement in

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relation to the corresponding matter under the Australian Fair

Pay and Conditions Standard;

the employee's entitlement under the Australian Fair Pay and

Conditions Standard is excluded, and the employee's preserved

award entitlement has effect in accordance with the preserved

award term. Otherwise, the employee's entitlement under the

Australian Fair Pay and Conditions Standard has effect.

Note:

See section 117C for the meaning of more generous.

(3)

If:

(a) the preserved award term is about a matter referred to in

paragraph 117(2)(a), (b) or (c) and the employee has no

entitlement in relation to the corresponding matter under the

Australian Fair Pay and Conditions Standard; or

(b) the preserved award term is about a matter referred to in

paragraph 117(2)(d), (e), (f) or (g);

the employee's preserved award entitlement has effect in

accordance with the preserved award term.

Note 1:

Preserved award terms relating to matters referred to in paragraph

117(2)(g) cease to have effect at the end of 30 June 2008--see

subsection 117(4).

Note 2:

Subsection 7C(2) provides that State laws dealing with long service

leave, jury service or superannuation (among other things) are not

excluded by this Act, but section 7D provides that awards prevail over

State laws to the extent of any inconsistency.

117C Meaning of more generous

(1) Whether an employee's entitlement under a preserved award term

in relation to a matter is more generous than the employee's

entitlement in relation to the corresponding matter under the

Australian Fair Pay and Conditions Standard:

(a) is as specified in, or as worked out in accordance with a

method specified in, regulations made under this paragraph;

(b) to the extent that regulations made under paragraph (a) do not

so specify--is to be ascertained in accordance with the

ordinary meaning of the term more generous.

(2) If a matter to which an entitlement under a preserved award term

relates does not correspond directly to a matter to which the

Australian Fair Pay and Conditions Standard relates, regulations

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made under paragraph (1)(a) may nevertheless specify that the

matters correspond for the purposes of this Division.

117D Modifications that may be prescribed--personal/carer's leave

(1) The regulations may provide that a preserved award term about

personal/carer's leave is to be treated as a separate preserved award

term about separate matters, to the extent that the preserved award

term is about any of the following:

(a) war service sick leave;

(b) infectious diseases sick leave;

(2) If the regulations so provide, sections 117, 117A, 117B and 117C

have effect in relation to each separate matter.

Note:

There is no entitlement in relation to war service sick leave, infectious

diseases sick leave or any other like form of sick leave under the

Australian Fair Pay and Conditions Standard, so there is no

corresponding matter for the purposes of subsection 117B(3).

117E Modifications that may be prescribed--parental leave

(1) The regulations may provide that a preserved award term about

parental leave is to be treated as being about separate matters to the

extent that it is about paid and unpaid parental leave.

(2) If the regulations provide that a preserved award term about

parental leave is to be treated as being about separate matters to the

extent that it is about paid and unpaid parental leave:

(a) sections 117, 117A and 117B have effect in relation to each

separate matter; and

(b) in accordance with section 94D, the entitlement that an

employee would have to unpaid parental leave under the

Australian Fair Pay and Conditions Standard is reduced by

any amount of paid parental leave to which the employee is

entitled under the preserved award term.

Note 1: There is no entitlement in relation to paid parental leave under

the Australian Fair Pay and Conditions Standard, so there is no

corresponding matter for the purposes of subsection 117B(3).

Note 2: Paragraph (b) does not have the effect of reducing entitlements. It

simply ensures that the operation of section 94D is not affected

by treating paid and unpaid parental leave separately under the

regulations.

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117F Preserved award terms--employers bound after reform

commencement

An employer that was not bound by a particular award immediately

before the reform commencement, but is subsequently bound by

the award under section 120, is not bound by any preserved award

terms included in the award.

Division 4--Award rationalisation and award

simplification

Subdivision A--Award rationalisation

118 Commission's award rationalisation function

(1) It is a function of the Commission to undertake award

rationalisation.

(2) Award rationalisation is to be carried out in accordance with a

written request (an award rationalisation request) made to the

President by the Minister.

(3) Each award rationalisation request must specify:

(a) the award rationalisation process that is to be undertaken

under this section; and

(b)

the

principles to be applied by the Commission in

undertaking the award rationalisation process; and

completed, which must not be later than 3 years after the

making of the request.

(4) Principles under paragraph (3)(b) relating to an award

rationalisation request may include, but are not limited to the

following:

(a) the awards to which the award rationalisation process relates;

(b) the nature of, and the extent of the coverage of, awards that

may be made as a result of the award rationalisation process;

awards and limits on the matters that may be included in such

awards.

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(5) An award rationalisation request may be varied or revoked by the

Minister by written instrument.

(6) The following are not legislative instruments:

(a) an award rationalisation request;

(b) an instrument under subsection (5).

118A Commission must deal with State-based differences

(1) In undertaking the first award rationalisation process requested

under subsection 118(2), the Commission must ensure that:

(a) terms and conditions of employment included in awards are

not determined by reference to State or Territory boundaries;

and

(b) awards have effect in each State and Territory.

(2) If the award rationalisation request under which the first award

rationalisation process is undertaken is not expressed to relate to all

awards, the Commission must nevertheless review all awards as

part of that award rationalisation process to the extent necessary to

satisfy the requirements of subsection (1).

(3) In undertaking subsequent award rationalisation processes, the

Commission must ensure that:

(a) terms and conditions of employment included in awards

made or varied as a result of the subsequent award

rationalisation process are not determined by reference to

State or Territory boundaries; and

(b) an award made or varied as a result of the subsequent award

rationalisation process has effect in each State and Territory.

(4) This section does not affect the operation of Division 3.

118B Award rationalisation to be undertaken by Full Bench

As soon as practicable after receiving an award rationalisation

request, the President must establish one or more Full Benches to

undertake the award rationalisation process requested.

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118C Award rationalisation request to be published

(1) As soon as practicable after receiving an award rationalisation

request, the President must give a copy of the request to a

Registrar.

(2) The Registrar must publish the request as follows:

(a) if requirements relating to publication are prescribed by the

regulations--in accordance with those requirements;

(b) if no such requirements are prescribed--in such manner as

the Registrar thinks appropriate.

118D Minister may intervene

The Minister may intervene in a proceeding that relates to an

award rationalisation process.

118E Making awards as a result of award rationalisation

A Full Bench may make one or more awards to give effect to the

outcome of an award rationalisation process.

118F Making awards as a result of award rationalisation

The Commission must not make an award other than under

section 118E.

118G Awards may not include certain terms

A Full Bench must not include a term in an award made under

section 118E if the term may not be included in the award because

of the operation of Division 2.

118H Awards must include term about regular part-time

employment

A Full Bench must include in an award made under section 118E a

term providing for regular part-time employment.

Note:

Clauses 15.3.1 to 15.3.5 of the Hospitality Industry--

Accommodation, Hotels, Resorts and Gaming Award 1998 provide a

model (see the Award Simplification Decision at P7500).

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118I Who is bound by awards

(1) An award made under section 118E binds the employers,

employees and organisations that it is expressed to bind.

Note:

An award may be expressed to bind additional employers, employees

and organisations under Division 6.

(2) An award must be expressed to bind the following:

(a)

specified

employers;

(b) specified employees of employers bound by the award, in

respect of work that is expressed to be regulated by the

award.

(3) An award may be expressed to bind one or more specified

organisations.

(4) For the purposes of subsections (2) and (3):

(a) employers may be specified by name or by inclusion in a

specified class or specified classes; and

(b) employees must be specified by inclusion in a specified class

or specified classes; and

(5) Without limiting the way in which a class may be described for the

purposes of subsection (4), the class may be described by reference

to a particular industry or particular kinds of work.

(6) The power of the Commission under subsections (2) and (3) must

be exercised in accordance with the terms of the award

rationalisation request to which the making of the award relates.

118J Variation of awards as part of award rationalisation

(1) The Commission may make an order varying an award to give

effect to the outcome of an award rationalisation process.

(2) The Commission must not vary an award under this section in such

a way that the award includes a term that may not be included in

the award because of the operation of Division 2.

(3) If the Commission varies an award under this section, the

Commission must include in the award a term providing for regular

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part-time employment, unless such a term is already included in

the award.

Note:

Clauses 15.3.1 to 15.3.5 of the Hospitality Industry--

Accommodation, Hotels, Resorts and Gaming Award 1998 provide a

model (see the Award Simplification Decision at P7500).

(4) If the Commission varies an award under this section, it must

specify the additional employers, employees and organisations (if

any) bound by the award.

(5) For the purposes of subsection (4), employers, employees and

organisations must be specified in the same manner, and subject to

the same limitations, as provided in subsections 118I(2) to (6) in

relation to awards made under section 118E.

118K Revocation of awards as part of award rationalisation

The Commission may make an order revoking an award to give

effect to the outcome of an award rationalisation process.

118L Preserved award terms

To avoid doubt, the Commission's power under this Division to

make or vary an award is subject to, and must not be exercised in a

manner that is inconsistent with, Division 3.

Subdivision B--Award simplification

118M Review and simplification of awards

(1) The Commission must review all awards for the purpose of

determining whether the awards include terms that may not be

included in awards under this Part.

Note:

Division 2 deals with terms that may be included in awards.

(2) The Commission may review awards for this purpose at the same

time as reviewing them for other purposes.

(3) The Commission must carry out the review:

(a) within the period prescribed by the regulations; and

(b) in accordance with any directions prescribed by the

regulations.

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(4) After reviewing an award, the Commission must make an order

varying the award to the extent (if any) necessary to ensure that the

award includes only terms that may be included under this Part.

(5) After reviewing an award, the Commission must make an order

revoking the award if the Commission is satisfied that the award is

obsolete or no longer capable of operating.

118N Principles for award simplification

(1) The Commission may (subject to section 118M) establish

principles for the review and simplification of awards under

section 118M.

(2) The Commission may establish principles relating to the following:

(a) the making or varying of awards in relation to each of the

allowable award matters;

(b) terms that may be included in awards (including, subject to

Division 2, about allowable award matters).

(3) After principles (if any) have been established under

subsections (1) and (2), the power of the Commission to vary an

award is exercisable only in a manner consistent with those

principles.

(4) The President or a Full Bench may, in relation to the exercise of

powers under this section, direct a member of the Commission to

provide a report in relation to a specified matter.

(5) After making such investigation (if any) as is necessary, a member

given a direction under subsection (4) must provide a report to the

President or Full Bench.

118O Minister may intervene

The Minister may intervene in a proceeding that relates to an

award simplification process.

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Subdivision C--Special technical requirements

118P Inclusion of preserved award terms in written awards

(1) This section applies if a preserved award term is taken under

Division 3 to be included in an award (a rationalised award) made

under section 118E or varied under section 118J.

(2) In reducing the rationalised award to writing as required by

section 121, the Commission must:

(a) include the preserved award term in the rationalised award;

and

(b) identify it as a preserved award term; and

and

(d) identify the employees bound by the preserved award term.

Note:

Section 117A deals with the employers bound by preserved award

terms.

(3) If more than one preserved award term to the same substantive

effect is taken under Division 3 to be included in the rationalised

award:

(a) paragraph (2)(a) requires that the preserved award term be

included only once in the rationalised award; and

(b) to avoid doubt, paragraphs (2)(b), (c) and (d) have effect

according to their terms in relation to the preserved award

term.

(4) For the purposes of paragraphs (2)(c) and (d) respectively:

(a) employers may be identified by name or by inclusion in a

specified class or specified classes; and

(b) employees must be identified by inclusion in a specified class

or specified classes.

(5) Without limiting the way in which a class may be described for the

purposes of this section, the class may be described by reference to

a particular industry or particular kinds of work.

118Q Reprints of varied awards

(1) If an award is varied under this Division, the Registrar must, as

soon as practicable after receiving a copy of the order varying the

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award under subsection 121(2), publish a consolidated reprint of

the award as varied.

(2) To avoid doubt, this requirement is in addition to, and not instead

of, the requirements of Division 7.

Division 5--Variation and revocation of awards

Subdivision A--Variation of awards

119 Variation of awards--general

(1) The Commission must not make an order varying an award except:

(a) as a result of an award rationalisation process; or

(b) as a result of an award simplification process; or

safety net entitlements (see section 119A); or

(d) on a ground set out in section 119B; or

(e) to bind additional employers, employees or organisations in

accordance with section 120; or

(f) under section 273; or

(g) in circumstances prescribed by the regulations for the

purposes of this paragraph.

Note:

The variation that the Commission can make as a result of an award

rationalisation process is affected by sections 117F and 118P.

(2) The Commission must not vary a preserved award term.

(3) The Commission must not vary a facilitative provision within the

meaning of section 116H except:

(a) as a result of an award rationalisation process; or

(b) as a result of an award simplification process; or

(4) The Commission must not vary a term taken to be included in an

award by section 116A (which deals with dispute settling

procedures).

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119A Variation of awards if essential to maintain minimum safety

net entitlements

(1) An employer, employee or organisation bound by an award may

apply to the Commission for an order varying the award on the

ground that that the variation is essential to the maintenance of

minimum safety net entitlements.

(2) If an application is made under subsection (1), the Commission

must take such steps as it thinks appropriate to ensure that each

employer, employee and organisation bound by the award, and any

other interested persons and bodies, are made aware of the

application.

(3) The Minister may intervene in relation to the application.

(4) The Commission may make an order under this subsection varying

the award only if the Commission is satisfied that:

(a) the variation is essential to the maintenance of minimum

safety net entitlements; and

(b) all of the following conditions are met:

(i) the award as varied would not be inconsistent with

decisions of the AFPC;

(ii) the award as varied would provide only minimum safety

net entitlements for employees bound by the award;

(iii) the award as varied would not be inconsistent with the

outcomes (if any) of award simplification and award

rationalisation;

(iv) the making of the variation would not operate as a

disincentive to agreement-making at the workplace

level;

(v) such other requirements prescribed by the regulations (if

any) for the purposes of this paragraph have been

satisfied.

119B Variation of awards--other grounds

(1) The Commission may, if it considers that an award or a term of an

award is ambiguous or uncertain, make an order varying the award

so as to remove the ambiguity or uncertainty.

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(2) If an award is referred to the Commission under section 46PW of

the Human Rights and Equal Opportunity Commission Act 1986,

the Commission must convene a hearing to review the award.

(3) In a review under subsection (2):

(a) the Commission must take such steps as it thinks appropriate

to ensure that each employer, employee and organisation

bound by the award is made aware of the hearing; and

(b) the Sex Discrimination Commissioner may intervene in the

proceeding.

(4) If the Commission considers that an award reviewed under

subsection (2) is a discriminatory award, the Commission must

take the necessary action to remove the discrimination by making

an order varying the award.

(5) The Commission may, on application by an employer, employee or

organisation bound by an award, make an order varying a term of

the award referring by name to an employer, employee or

organisation bound by the award:

(a) to reflect a change in the name of the employer, employee or

organisation; or

(b)

if:

(i) the registration of the organisation has been cancelled;

(ii) the employer, employee or organisation has ceased to

exist;

to omit the reference to its name.

(6) The onus of demonstrating that an award should be varied as set

out in an application under subsection (5) rests with the applicant.

(7) In this section:

discriminatory award means an award that:

(a) has been referred to the Commission under section 46PW of

the Human Rights and Equal Opportunity Commission Act

1986; and

(b) requires a person to do any act that would be unlawful under

Part II of the Sex Discrimination Act 1984, except for the fact

that the act would be done in direct compliance with the

award.

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For the purposes of this definition, the fact that an act is done in

direct compliance with the award does not of itself mean that the

act is reasonable.

Subdivision B--Revocation of awards

119C Revocation of awards--general

The Commission must not make an order revoking an award

except:

(a) as a result of an award rationalisation process; or

(b) as a result of an award simplification process; or

section 119D).

119D

Revocation of awards--award obsolete or no longer capable of

operating

(1) An employer, employee or organisation bound by an award may

apply to the Commission to have the award revoked on the ground

that the award is obsolete or is no longer capable of operating.

(2) If an application is made under subsection (1), the Commission

must take such steps as it thinks appropriate to ensure that each

employer, employee and organisation bound by the award is made

aware of the application.

(3) The Commission must make an order revoking the award if it is

satisfied that:

(a) the award is obsolete or is no longer capable of operating;

and

(b) revocation of the award would not be contrary to the public

interest.

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Division 6--Binding additional employers, employees and

organisations to awards

120

Binding additional employers, employees and organisations to

an award

(1) The Commission may make an order varying an award to bind an

employer, employee or organisation to the award.

Note 1:

Section 118E enables the Commission to make awards binding

specified employers, employees and organisations.

Note 2:

Pre-reform awards are taken to bind certain employers, employees and

organisations. A pre-reform award may be varied under section 118J

in a manner that affects who is bound.

(2) The Commission may make an order varying an award under

subsection (1) only in accordance with this Division.

120A

Application to be bound by an award--agreement between

employer and employees

(1) An employer may apply to the Commission for an order varying a

specified award to bind the employer and a specified class or

specified classes of employees of the employer.

(2) If an application is made under subsection (1), the Commission

must take such steps as it thinks appropriate to ensure that each

employer, employee and organisation bound by the award is made

aware of the application.

(3) The Commission may make an order varying the award as

specified in the application if it is satisfied that:

(a) a valid majority of the employees of the employer who would

be bound by the award support the application; and

(b) the award is appropriate to regulate the terms and conditions

of employment of those employees; and

the terms and conditions of employment of those employees.

(4) The Commission may make the order without holding a hearing

unless the Commission considers that it cannot be satisfied of the

matters referred to in paragraphs (3)(a) and (b) based on the

information provided.

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120B

Application to be bound by an award--no agreement between

employer and employees

(1) An employer, or an employee or employees of an employer, may

apply to the Commission for an order varying an award specified

in the application to bind the employer and a specified class or

specified classes of employees of the employer.

(2) An employer may make an application under subsection (1) even if

a valid majority of the employees of the employer who would be

bound by the award do not support the application.

(3) An employee or employees of an employer may make an

application under subsection (1) even if the employer does not

support the application.

(4) If an application is made under subsection (1), the Commission

must take such steps as it thinks appropriate to ensure that each

employer, employee and organisation bound by the award is made

aware of the application.

(5) The Commission may make an order varying the award as

specified in the application only if the Commission is satisfied:

(a) that the employer, and the employees of the employer who

would be bound by the award, have been unable to make a

workplace agreement, despite having made reasonable efforts

to do so; and

(b) the award is appropriate to govern the terms and conditions

of employment of those employees; and

the terms and conditions of employment of those employees.

(6) An organisation may make an application under subsection (1) on

behalf of an employee or employees, and may represent the

employee or employees in proceedings relating to the application,

if:

(a) the employee or employees have requested that the

organisation do so; and

(b) the organisation is entitled (under its eligibility rules) to

represent the interests of the employee or employees.

(7) In this section:

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protected action has the meaning given by section 108.

reasonable efforts does not require the taking of protected action.

120C

Application to be bound by an award--new organisations

(1) A new organisation may apply to the Commission for an order

varying an award to bind the organisation.

(2) If an application is made under subsection (1), the Commission

must take such steps as it thinks appropriate to ensure that each

employer, employee and organisation bound by the award, and any

other interested persons and bodies, are made aware of the

application.

(3) The Minister may intervene in relation to the application.

(4) The Commission may make the order if the Commission is

satisfied that:

(a) the new organisation has at least one member bound by the

award whose industrial interests the new organisation is

entitled (under its eligibility rules) to represent; and

(b) the making of the order is necessary to enable the new

organisation to represent properly the industrial interests of

those of its members who are bound by the award; and

organisation has traditionally been entitled to represent the

industrial interests of its members.

(5) In this section:

new organisation means:

(a) an association granted registration as an organisation under

the Registration and Accountability of Organisations

Schedule on or after the reform commencement; or

(b) a transitionally registered association registered under

clause 2 of Schedule 17.

120D

Application by new organisation to be bound by an award--

additional matters

(1) An application under subsection 120C(1) must be made within the

period of one year commencing on the day on which the new

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organisation was registered under the Registration and

Accountability of Organisations Schedule or Schedule 17.

(2) If an application under subsection 120C(1) relates to an award

made under section 118E or an award that has been varied under

section 118J, a Full Bench must consider the application.

120E Process for valid majority of employees

The regulations may prescribe the meaning of, or the method for

establishing what constitutes, a valid majority of the employees of

an employer or of a class of employees of an employer, for the

purposes of this Division.

120F General provisions

(1) Without limiting the way in which a class of employees may be

described for the purposes of this Division, the class may be

described by reference to a particular industry or particular kinds of

work.

(2) For the purposes of making an order binding an employer,

employee or organisation to an award:

(a) employers may be specified by name or by inclusion in a

specified class or specified classes; and

(b) employees must be specified by inclusion in a specified class

or specified classes; and

Division 7--Technical matters

121 Making and publication of awards and award-related orders

(1) An award or award-related order must:

(a) be reduced to writing; and

(b) be signed by:

(i) in the case of an award or order made by a Full Bench--

at least one member of the Full Bench; or

(ii) in the case of any other order--at least one member of

the Commission; and

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(2) If the Commission makes an award or an award-related order, the

Commission must promptly give to a Registrar:

(a) a copy of the award or order; and

(b) written reasons for the award or order; and

bound by the award or order.

(3) A Registrar who receives a copy of an award or an award-related

order under subsection (2) must promptly:

(a) make available a copy of the award or order and the written

reasons received by a Registrar in respect of the making of

the award or order to each employer, employee and

organisation shown on the list given to the Registrar under

paragraph (2)(c); and

(b) ensure that a copy of the award or order and the written

reasons received by the Registrar in respect of the making of

the award or order are available for inspection at each

registry; and

received by the Registrar in respect of the making of the

award or order are published as soon as practicable.

121A Awards and award-related orders must meet certain

requirements

(1) The Commission must, when making an award or an award-related

order, if it considers it appropriate, ensure that the award or order:

(a) does not include matters of detail or process that are more

appropriately dealt with by agreement at the workplace or

enterprise level; and

(b) does not prescribe work practices or procedures that restrict

or hinder the efficient performance of work; and

hindering productivity, having regard to fairness to

employees.

(2) The Commission must, when making an award or an award-related

order, ensure that the award or order:

(a) where appropriate, includes facilitative provisions that allow

agreement at the workplace or enterprise level, between

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employers and employees (including individual employees),

on how the award terms are to apply; and

(b) includes terms providing for the employment of regular

part-time employees; and

Note:

Clauses 15.3.1 to 15.3.5 of the Hospitality Industry--

Accommodation, Hotels, Resorts and Gaming Award 1998

provide a model (see the Award Simplification Decision at

P7500).

structure and content; and

(d) does not include terms that are obsolete or that need

updating; and

(e) does not include terms that discriminate against an employee

because of, or for reasons including, race, colour, sex, sexual

preference, age, physical or mental disability, marital status,

family responsibilities, pregnancy, religion, political opinion,

national extraction or social origin.

(3) An award or an award-related order does not discriminate against

an employee for the purposes of paragraph (2)(e) merely because:

(a) it discriminates, in respect of particular employment, on the

basis of the inherent requirements of that employment; or

(b) it discriminates, in respect of employment as a member of the

staff of an institution that is conducted in accordance with the

teachings or beliefs of a particular religion or creed:

(i) on the basis of those teachings or beliefs; and

(ii) in good faith.

121B Registrar's powers if member ceases to be a member

If:

(a) a member of the Commission ceases to be a member at a

time after an award or an award-related order has been made

by the Commission constituted by the member; and

(b) at that time, the award or order has not yet been reduced to

writing or has been reduced to writing but has not yet been

signed by the member;

the Registrar must reduce the award or order to writing, sign it and

seal it with the seal of the Commission, and the award or order has

effect as if it had been signed by the member of the Commission.

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121C Form of awards

An award or an award-related order is to be framed so as best to

express the decision of the Commission and to avoid unnecessary

technicalities.

121D Date of awards

The date of an award or an award-related order is the day on which

the award or order was signed under section 121.

121E Commencement of awards

(1) An award or an award-related order is to be expressed to come into

force on a specified day.

(2) Unless the Commission is satisfied that there are exceptional

circumstances, the day specified in an award or an award-related

order for the purposes of subsection (1) must not be earlier than the

date of the award or order.

121F Continuation of awards

An award continues in force until it is revoked under a provision

referred to in section 119C.

121G Awards of Commission are final

(1) Subject to this Act, an award or an award-related order (including

an award or order made on appeal):

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed

or called in question in any court; and

court on any account.

(2) An award or an award-related order is not invalid because it was

made by the Commission constituted otherwise than as provided

by this Act.

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121H Reprints of awards as varied

A document purporting to be a copy of a reprint of an award as

varied, and purporting to have been printed by the Government

Printer, is in all courts evidence of the award as varied.

121I Expressions used in awards

Unless the contrary intention appears in an award or an

award-related order, an expression used in the award or order has

the same meaning as it has in an Act because of the Acts

Interpretation Act 1901 or as it has in this Act.

Part VIAA--Transmission of business rules

Division 1--Introductory

122 Object

The object of this Part is to provide for the transfer of employer

obligations under certain instruments when the whole, or a part, of

a person's business is transmitted to another person.

122A Simplified outline

(1) Division 2 describes the transmission of business situation this Part

is designed to deal with. It identifies the old employer, the new

employer, the business being transferred, the time of transmission

and the transferring employees.

(2) Divisions 3 to 6 deal with the transmission of particular

instruments as follows:

(a) Division 3 deals with the transmission of AWAs;

(b) Division 4 deals with the transmission of collective

agreements;

(d) Division 6 deals with the transmission of APCSs.

(3) Division 7 deals with what happens with entitlements under the

Australian Fair Pay and Conditions Standard when there is a

transmission of business.

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(4) Division 8 deals with notification requirements, the lodgment of

notices with the Employment Advocate and the enforcement of

employer obligations by pecuniary penalties.

(5) Division 9 allows regulations to be made to deal with other

transmission of business issues.

122B Definitions

In this Part:

business being transferred has the meaning given by subsection

123(2).

Court means the Federal Court of Australia or the Federal

Magistrates Court.

new employer has the meaning given by subsection 123(1).

old employer has the meaning given by subsection 123(1).

operational reasons has the meaning given by subsection

170CE(5D).

parental leave has the same meaning as in subsection 94ZZB(3).

time of transmission has the meaning given by subsection 123(3).

transferring employee has the meaning given by sections 123A

and 123B.

transmission period has the meaning given by subsection 123(4).

Division 2--Application of Part

123 Application of Part

(1) This Part applies if a person (the new employer) becomes the

successor, transmittee or assignee of the whole, or a part, of a

business of another person (the old employer).

(2) The business, or the part of the business, to which the new

employer is successor, transmittee or assignee is the business

being transferred for the purposes of this Part.

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(3) The time at which the new employer becomes the successor,

transmittee or assignee of the business being transferred is the time

of transmission for the purposes of this Part.

(4) The period of 12 months after the time of transmission is the

transmission period for the purposes of this Part.

123A Transferring employees

(1) A person is a transferring employee for the purposes of this Part if:

(a) the person is employed by the old employer immediately

before the time of transmission; and

(b)

the

person:

(i) ceases to be employed by the old employer; and

(ii) becomes employed by the new employer in the business

being transferred;

within 2 months after the time of transmission.

(2) A person is also a transferring employee for the purposes of this

Part if:

(a) the person is employed by the old employer at any time

within the period of 1 month before the time of transmission;

and

(b) the person's employment with the old employer is terminated

by the old employer before the time of transmission for

genuine operational reasons or for reasons that include

genuine operational reasons; and

business being transferred within 2 months after the time of

transmission.

(3) In applying section 123B and Divisions 3 to 7 in relation to a

person who is a transferring employee under subsection (2) of this

section, a reference in those provisions to a particular state of

affairs existing immediately before the time of transmission is to be

read as a reference to that state of affairs existing immediately

before the person last ceased to be an employee of the old

employer.

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123B Transferring employees in relation to particular instrument

(1) A transferring employee is a transferring employee in relation to a

particular instrument if:

(a) the instrument applied to the transferring employee's

employment with the old employer immediately before the

time of transmission; and

(b) when the transferring employee becomes employed by the

new employer, the nature of the transferring employee's

employment with the new employer is such that the

instrument is capable of applying to employment of that

nature.

(2) The transferring employee ceases to be a transferring employee in

relation to the instrument if:

(a) the transferring employee ceases to be employed by the new

employer after the time of transmission; or

(b) the nature of the transferring employee's employment with

the new employer changes so that the instrument is no longer

capable of applying to employment of that nature; or

Paragraph (c) does not apply if the instrument is an APCS.

(3) This section applies to a preserved APCS as if it were an

instrument.

Division 3--Transmission of AWA

124 Transmission of AWA

New employer bound by AWA

(1)

If:

(a) immediately before the time of transmission:

(i) the old employer; and

(ii)

employee;

were bound by an AWA; and

(b) the employee is a transferring employee in relation to the

AWA;

the new employer is bound by the AWA by force of this section.

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Note:

The new employer must notify the transferring employee and lodge a

copy of the notice with the Employment Advocate (see sections 129

and 129A).

Period for which new employer remains bound

(2) The new employer remains bound by the AWA, by force of this

section, until whichever of the following first occurs:

(a) the AWA is terminated (see Division 9 of Part VB as

modified by section 124A);

(b) the AWA ceases to be in operation because it is replaced by

another AWA between the new employer and the transferring

employee (see paragraph 100(4)(b));

employee in relation to the AWA;

(d) the transmission period ends.

Old employer's rights and obligations that arose before time of

transmission not affected

(3) This section does not affect the rights and obligations of the old

employer that arose before the time of transmission.

124A Termination of transmitted AWA

Modified operation of subsections 103K(2) and 103L(2)

(1) The AWA cannot be terminated under subsection 103K(2) or

103L(2) during the transmission period (even if the AWA has

passed its nominal expiry date).

Subsection 103R(1) does not apply

(2) Despite subsection 103R(1), a workplace agreement or an award

may have effect in relation to the transferring employee's

employment with the new employer even if:

(a) the AWA is terminated during the transmission period; or

(b) the new employer ceases to be bound by the AWA because

the transmission period ends.

Note:

Paragraph (2)(b) is included for the avoidance of doubt. Subsection

103R(1) only applies if a workplace agreement is terminated.

Technically, the end of the transmission period does not terminate the

transmitted AWA. The new employer merely ceases to be bound by it.

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Division 4--Transmission of collective agreement

Subdivision A--General

125 Transmission of collective agreement

New employer bound by collective agreement

(1)

If:

(a) immediately before the time of transmission:

(i) the old employer; and

(ii) employees of the old employer;

were bound by a collective agreement; and

(b) there is at least one transferring employee in relation to the

collective agreement;

the new employer is bound by the collective agreement by force of

this section.

Note 1:

The new employer must notify transferring employees and lodge a

copy of a notice with the Employment Advocate (see sections 129 and

129A).

Note 2:

See also section 125A for the interaction between the collective

agreement and other industrial instruments.

Period for which new employer remains bound

(2) The new employer remains bound by the collective agreement, by

force of this section, until whichever of the following first occurs:

(a) the collective agreement is terminated (see Division 9 of

Part VB as modified by section 125C);

(b) there cease to be any transferring employees in relation to the

collective agreement;

agreement in relation to all the transferring employees in

relation to the collective agreement;

(d) the transmission period ends.

Note:

Paragraph (c)--see subsection (3).

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Period for which new employer remains bound in relation to

particular transferring employee

(3) The new employer remains bound by the collective agreement in

relation to a particular transferring employee, by force of this

section, until whichever of the following first occurs:

(a) the collective agreement ceases to be in operation in relation

to the transferring employee's employment with the new

employer because the new employer makes an AWA with

the transferring employee (see subsection 125B(2));

(b) the collective agreement ceases to be in operation in relation

to the transferring employee's employment with the new

employer because it has been replaced by another collective

agreement in relation to the transferring employee's

employment with the new employer (see subsection 100(5)

as modified by subsection 125B(3));

under subsection (2).

New employer bound only in relation to employment of

transferring employees in the business being transferred

(4) The new employer is bound by the collective agreement, by force

of this section, only in relation to the employment, in the business

being transferred, of employees who are transferring employees in

relation to the collective agreement.

New employer bound subject to Commission order

(5) Subsections (1), (2) and (3) have effect subject to any order of the

Commission under section 125E.

Old employer's rights and obligations that arose before time of

transmission not affected

(6) This section does not affect the rights and obligations of the old

employer that arose before the time of transmission.

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125A Interaction rules

Transmitted agreement

(1) This section applies if subsection 125(1) applies to a collective

agreement (the transmitted collective agreement).

Existing collective agreement

(2)

If:

(a) the new employer is bound by a collective agreement (the

existing collective agreement) immediately before the time

of transmission; and

(b) a person is a transferring employee in relation to the

transmitted collective agreement; and

subsection, apply, according to its terms, to the transferring

employee when the transferring employee becomes

employed by the new employer;

the existing collective agreement does not apply to the transferring

employee.

(3) Subsection (2) ceases to apply at the end of the transmission

period.

125B Transmitted collective agreement ceasing in relation to

transferring employee

Transmitted agreement

(1) This section applies if subsection 125(1) applies to a collective

agreement (the transmitted collective agreement).

AWA

(2) Despite subsection 100A(2), the transmitted collective agreement

ceases to be in operation in relation to a transferring employee's

employment with the new employer if the new employer makes an

AWA with the transferring employee after the time of

transmission.

Note:

Subsection 100A(2) provides that a collective agreement is normally

only suspended while an AWA is in operation. The effect of

subsection (2) of this section is to terminate the operation of the

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transmitted collective agreement in relation to the transferring

employee's employment when the AWA is made.

Replacement collective agreement

(3) Despite subsection 100(5), the transmitted collective agreement

ceases to be in operation in relation to a transferring employee if

the transmitted collective agreement has been replaced by another

collective agreement in relation to the employee (even if the

transmitted collective agreement has not passed its nominal expiry

date).

125C Termination of transmitted collective agreement

Transmitted agreement

(1) This section applies if subsection 125(1) applies to a collective

agreement (the transmitted collective agreement).

Modified operation of subsections 103K(2) and 103L(2)

(2) The transmitted collective agreement cannot be terminated under

subsection 103K(2) or 103L(2) during the transmission period

(even if the transmitted collective agreement has passed its

nominal expiry date).

Subsection 103R(1) does not apply

(3) Despite subsection 103R(1), a workplace agreement or an award

may have effect in relation to a transferring employee's

employment with the new employer if:

(a) the transmitted collective agreement is terminated during the

transmission period; or

(b) the new employer ceases to be bound by the transmitted

collective agreement because the transmission period ends.

Note:

Paragraph (3)(b) is included for the avoidance of doubt. Subsection

103R(1) only applies if a workplace agreement is terminated.

Technically, the end of the transmission period does not terminate the

transmitted collective agreement. The new employer merely ceases to

be bound by it.

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Special rule for transmitted workplace determination

(4) If the transmitted collective agreement is a workplace

determination, subsection 113F(3) ceases to apply to the

transmitted collective agreement at the time of transmission.

Note 1:

Subsection 113F(1) provides that this Act generally applies to a

workplace determination as if it were a collective agreement.

Note 2:

Subsection 113F(3) would otherwise prevent the transmitted

workplace determination from being terminated under Subdivision B

of Division 9 of Part VB before it had passed its nominal expiry date.

Subdivision B--Commission's powers

125D Application and terminology

(1) The Subdivision applies if:

(a) a person is bound by a collective agreement; and

(b)

another

person:

(i) becomes at a later time; or

(ii) is likely to become at a later time;

the successor, transmittee or assignee of the whole, or a part,

of the business of the person referred to in paragraph (a).

(2) For the purposes of this Subdivision:

(a)

the

outgoing employer is the person referred to in

paragraph (1)(a); and

(b)

the

incoming employer is the person first referred to in

paragraph (1)(b); and

(c)

the

business concerned is the business, or the part of the

business, to which the incoming employer becomes, or is

likely to become, the successor, transmittee or assignee; and

(d)

the

transfer time is the time at which the incoming employer

becomes, or is likely to become, the successor, transmittee or

assignee of the business concerned.

125E Commission may make order

(1) The Commission may make an order that the incoming employer:

(a) is not, or will not be, bound by the collective agreement; or

(b) is, or will be, bound by the collective agreement, but only to

the extent specified in the order.

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The order must specify the day from which the order takes effect.

That day must not be before the day on which the order is made or

before the transfer time.

(2) Without limiting paragraph (1)(b), the Commission may make an

order under that paragraph that the incoming employer is, or will

be, bound by the collective agreement but only for the period

specified in the order.

(3) To avoid doubt, the Commission cannot make an order under

subsection (1) that would have the effect of extending the

transmission period.

125F When application for order can be made

An application for an order under subsection 125E(1) may be made

before, at or after the transfer time.

125G Who may apply for order

(1) Before the transfer time, an application for an order under

subsection 125E(1) may be made only by the outgoing employer.

(2) At or after the transfer time, an application for an order under

subsection 125E(1) may be made only by:

(a) the incoming employer; or

(b) a transferring employee in relation to the collective

agreement; or

(d) an organisation of employees that:

(i) is entitled, under its eligibility rules, to represent the

industrial interests of a transferring employee; and

(ii) has been requested by the transferring employee to

apply for the order on the transferring employee's

behalf.

125H Applicant to give notice of application

The applicant for an order under subsection 125E(1) must take

reasonable steps to give written notice of the application to the

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328 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

persons who may make submissions in relation to the application

(see section 125I).

125I Submissions in relation to application

(1) Before deciding whether to make an order under subsection

125E(1) in relation to the collective agreement, the Commission

must give the following an opportunity to make submissions:

(a)

the

applicant;

(b) before the transfer time--the persons covered by

subsection (2);

subsection (3).

(2) For the purposes of paragraph (1)(b), this subsection covers:

(a) an employee of the outgoing employer:

(i) who is bound by the collective agreement; and

(ii) who is employed in the business concerned; and

(b) the incoming employer; and

agreement; and

(d) an organisation of employees that:

(i) is entitled, under its eligibility rules, to represent the

industrial interests of an employee referred to in

paragraph (a); and

(ii) has been requested by the employee to make

submissions on the employee's behalf in relation to the

application for the order under subsection 125E(1).

(3) For the purposes of paragraph (1)(c), this subsection covers:

(a) the incoming employer; and

(b) a transferring employee in relation to the collective

agreement; and

(d) an organisation of employees that:

(i) is entitled, under its eligibility rules, to represent the

industrial interests of a transferring employee; and

(ii) has been requested by the transferring employee to

make submissions on the transferring employee's behalf

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in relation to the application for the order under

subsection 125E(1).

Division 5--Transmission of award

126 Transmission of award

New employer bound by award

(1)

If:

(a) the old employer was, immediately before the time of

transmission, bound by an award that regulated the

employment of employees of the old employer; and

(b) there is at least one transferring employee in relation to the

award; and

the award in relation to the transferring employees in relation

to the award;

the new employer is bound by the award by force of this section.

Note 1:

Paragraph (c)--the award might already bind the new employer, for

example, because the new employer happens to be a respondent to the

award.

Note 2:

The new employer must notify transferring employees and lodge a

copy of a notice with the Employment Advocate (see sections 129 and

129A).

Note 3:

See also section 126A for the interaction between the award and other

industrial instruments.

Period for which new employer remains bound

(2) The new employer remains bound by the award, by force of this

section, until whichever of the following first occurs:

(a) the award is revoked;

(b) there cease to be any transferring employees in relation to the

award;

to all the transferring employees in relation to the award;

(d) the transmission period ends.

Note:

Paragraph (c)--see subsection (3).

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330 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Period for which new employer remains bound in relation to

particular transferring employee

(3) The new employer remains bound by the award in relation to a

particular transferring employee, by force of this section, until

whichever of the following first occurs:

(a) the award ceases to be in operation in relation to the

transferring employee's employment with the new employer

because the new employer makes an AWA with the

transferring employee after the time of transmission (see

subsection 126B(2));

(b) the award ceases to be in operation in relation to the

transferring employee's employment with the new employer

because a collective agreement comes into operation, after

the time of transmission, in relation to the transferring

employee's employment with the new employer (see

subsection 126B(3));

subsection (2).

New employer bound only in relation to employment of

transferring employees

(4) The new employer is bound by the award, by force of this section,

only in relation to the employment of employees who are

transferring employees in relation to the award.

Commission order

(5) Subsections (1), (2) and (3) have effect subject to any order of the

Commission.

(6) To avoid doubt, the Commission cannot make an order under

subsection (5) that would have the effect of extending the

transmission period.

Old employer's rights and obligations that arose before time of

transmission not affected

(7) This section does not affect the rights and obligations of the old

employer that arose before the time of transmission.

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126A Interaction rules

Transmitted award

(1) This section applies if subsection 126(1) applies to an award (the

transmitted award).

Collective agreement

(2) Subsection 126(1) has effect in relation to the transmitted award

subject to section 100B (award has no effect in relation to an

employee's employment while a collective agreement operates in

relation to that employment) so far as it relates to a collective

agreement that is in operation at the time of transmission.

Note:

Section 126B modifies the operation of section 100B in relation to

AWAs and collective agreements that come into operation after the

time of transmission.

126B Transmitted award ceasing in relation to transferring

employee

Transmitted award

(1) This section applies if subsection 126(1) applies to an award (the

transmitted award).

AWA

(2) Despite section 100B, the transmitted award ceases to be in

operation in relation to a transferring employee's employment with

the new employer if the new employer makes an AWA with the

transferring employee after the time of transmission.

Note:

Section 100B provides that an award is normally only suspended

while an AWA is in operation. The effect of subsection (2) of this

section is to terminate the operation of the transmitted award in

relation to the transferring employee when the AWA is made.

Collective agreement

(3) Despite section 100B, the transmitted award ceases to be in

operation in relation to a transferring employee's employment with

the new employer if a collective agreement comes into operation in

relation to the transferring employee's employment with the new

employer after the time of transmission.

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332 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Note:

Section 100B provides that an award is normally only suspended

while a collective agreement is in operation. The effect of

subsection (3) of this section is to terminate the operation of the

transmitted award in relation to the transferring employee when the

collective agreement is made.

Division 6--Transmission of APCS

127 Transmission of APCS

New employer bound by APCS

(1)

If:

(a) immediately before the time of transmission, an employee's

employment with the old employer was covered by an

APCS; and

(b) the employee is a transferring employee in relation to the

APCS; and

with the new employer would not be covered by the APCS;

the transferring employee's employment with the new employer is

covered by the APCS by force of this section.

Employee ceasing to be transferring employee

(2) The transferring employee's employment with the new employer

ceases to be covered by the APCS, by force of this section, if the

employee ceases to be a transferring employee in relation to the

APCS.

Old employer's rights and obligations that arose before time of

transmission not affected

(3) This section does not affect the rights and obligations of the old

employer that arose before the time of transmission.

Division 7--Entitlements under the Australian Fair Pay

and Conditions Standard

128 Parental leave entitlements

(1) At the time of transmission:

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(a) the new employer becomes liable for a transferring

employee's entitlements (if any) in relation to parental leave

that are:

(i) entitlements under the Australian Fair Pay and

Conditions Standard; and

(ii) entitlements for which the old employer was liable

immediately before the time of transmission; and

(b) the old employer ceases to be liable for those entitlements.

(2) The following count as service with the new employer for the

purpose of working out a transferring employee's entitlement to

parental leave under the Australian Fair Pay and Conditions

Standard:

(a) the transferring employee's service with the old employer

that counted for the purposes of working out the transferring

employee's entitlement to parental leave;

(b) any service with a previous employer that the old employer

recognised as service with the old employer for the purposes

of working out the transferring employee's entitlement to

parental leave.

(3)

If:

(a) documentation for parental leave, required under Division 6

of Part VA, is given to the old employer by a transferring

employee before the time of transmission; and

(b) the leave applied for has not started before the time of

transmission; and

Pay and Conditions Standard; and

(d) the old employer notifies the new employer of the

documentation under subsection (4);

the documentation is treated as if it had been given to the new

employer.

(4) The old employer must notify the new employer of:

(a)

any

person

who:

(i) is, or who is likely to be, a transferring employee; and

(ii) is on parental leave at the time of transmission on the

basis of an entitlement under the Australian Fair Pay

and Conditions Standard; and

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334 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) documentation for parental leave that is given to the old

employer before the time of transmission by a person who is,

or is likely to be, a transferring employee if the

documentation was given to the old employer on the basis of

an entitlement under the Australian Fair Pay and Conditions

Standard.

The notification must be given in writing within 14 days after the

time of transmission.

Note:

This is a civil remedy provision, see section 129C.

128A New employer assuming liability for particular entitlements

(1) This section applies if the new employer agrees, in writing, before

the time of transmission:

(a) to assume liability for; or

(b) to recognise continuity of service in relation to;

a transferring employee's entitlements in relation to a particular

matter.

(2) At the time of transmission:

(a) the new employer becomes liable for the transferring

employee's entitlements (if any):

(i) that accrued under the Australian Fair Pay and

Conditions Standard in relation to that matter before the

time of transmission; and

(ii) that are not entitlements in relation to parental leave;

and

(iii) for which the old employer was liable immediately

before the time of transmission; and

(b) the old employer ceases to be liable for those accrued

entitlements.

(3) The following count as service with the new employer for the

purpose of working out the transferring employee's entitlements

under the Australian Fair Pay and Conditions Standard in relation

to that matter:

(a) the transferring employee's service with the old employer

that counted for the purposes of working out the transferring

employee's entitlements in relation to that matter;

(b) any service with a previous employer that the old employer

recognised as service with the old employer for the purposes

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of working out the transferring employee's entitlements in

relation to that matter.

128B New employer assuming entitlements generally

(1) This section also applies if the new employer agrees in writing

before the time of transmission:

(a) to assume liability for a transferring employee's entitlements

generally; or

(b) to recognise continuity of service in relation to a transferring

employee generally.

(2) At the time of transmission:

(a) the new employer becomes liable for the transferring

employee's entitlements (if any):

(i) that accrued under the Australian Fair Pay and

Conditions Standard before the time of transmission;

and

(ii) that are not entitlements in relation to parental leave;

and

(iii) for which the old employer was liable immediately

before the time of transmission; and

(b) the old employer ceases to be liable for those accrued

entitlements.

(3) The following count as service with the new employer for the

purpose of working out the transferring employee's entitlements

under the Australian Fair Pay and Conditions Standard in relation

to a particular matter:

(a) the transferring employee's service with the old employer

that counted for the purposes of working out the transferring

employee's entitlements in relation to that matter;

(b) any service with a previous employer that the old employer

recognised as service with the old employer for the purposes

of working out the transferring employee's entitlements in

relation to that matter.

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336 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Division 8--Notice requirements and enforcement

129 Informing transferring employees about transmission of

instrument

(1) This section applies if:

(a) an employer is bound by an instrument (the transmitted

instrument) in relation to a transferring employee by force

of:

(i) section 124 (AWA); or

(ii) section 125 (collective agreement); or

(iii) section 126 (award); and

(b) a person is a transferring employee in relation to the

transmitted instrument.

The provision referred to in paragraph (a) is the transmission

provision.

(2) Within 28 days after the transferring employee starts being

employed by the employer, the employer must take reasonable

steps to give the transferring employee a written notice that

complies with subsection (3).

Note:

This is a civil remedy provision, see section 129C.

(3) The notice must:

(a) identify the transmitted instrument; and

(b) state that the employer is bound by the transmitted

instrument; and

transmitted instrument ends; and

(d) state that the employer will remain bound by the transmitted

instrument until the end of the transmission period unless the

transmitted instrument is terminated, or otherwise ceases to

be in operation, before the end of that period; and

(e) specify the kinds of instruments (if any) that can replace, or

exclude the operation of, the transmitted instrument; and

(f) set out the source for the terms and conditions that the

employer intends to apply to the matters that are dealt with

by the transmitted instrument when the transmitted

instrument ceases to bind the employer; and

(g) identify any collective agreement or award that binds:

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(i) the employer; and

(ii) employees of the employer who are not transferring

employees in relation to the transmitted instrument;

and that would bind the transferring employee but for the

transmission provision.

(4) Subsection (2) does not apply if:

(a) the transmitted instrument is an award and the new employer

and the transferring employee become bound by:

(i) a collective agreement that is capable of applying to the

transferring employee's employment with the new

employer and that is in operation at the time of

transmission; or

(ii) an AWA or a collective agreement at the time of

transmission or within 14 days after the time of

transmission; or

(b) the transmitted instrument is a workplace agreement and the

new employer and the transferring employee become bound

by an AWA within 14 days after the time of transmission.

129A Lodging copy of notice with Employment Advocate

Only one transferring employee

(1) If an employer:

(a) gives a notice under subsection 129(2) to a transferring

employee in relation to an AWA; or

(b) gives a notice under subsection 129(2) to the only person

who is a transferring employee in relation to a collective

agreement or award;

the employer must lodge a copy of the notice with the Employment

Advocate within 14 days after the notice is given to the transferring

employee. The copy must be lodged in accordance with

subsection (4).

Note 1:

This is a civil remedy provision, see section 129C.

Note 2:

Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

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338 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Multiple transferring employees and notices all given on the one

day

(2)

If:

(a) an employer gives a number of notices under subsection

129(2) to people who are transferring employees in relation

to a collective agreement or award; and

(b) all of those notices are given on the one day;

the employer must lodge a copy of one of those notices with the

Employment Advocate within 14 days after that notice is given.

The copy must be lodged in accordance with subsection (4).

Note 1:

This is a civil remedy provision, see section 129C.

Note 2:

Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

Multiple transferring employees and notices given on different

days

(3)

If:

(a) an employer gives a number of notices under subsection

129(2) to people who are transferring employees in relation

to a collective agreement or award; and

(b) the notices are given on different days;

the employer must lodge a copy of the notice, or one of the notices

that was given on the earliest of those days, with the Employment

Advocate within 14 days after that notice is given. The copy must

be lodged in accordance with subsection (4).

Note 1:

This is a civil remedy provision, see section 129C.

Note 2:

Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

Lodgment with Employment Advocate

(4) A notice is lodged with the Employment Advocate in accordance

with this subsection only if it is actually received by the

Employment Advocate.

Note:

This means that section 29 of the Acts Interpretation Act 1901 (to the

extent that it deals with the time of service of documents) does not

apply to lodgment of a notice.

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129B Employment Advocate must issue receipt for lodgment

(1) If a notice is lodged under section 129A, the Employment

Advocate must issue a receipt for the lodgment.

(2) The receipt must state that the notice was lodged under

section 129A on a particular day.

(3) The Employment Advocate must give a copy of the receipt to the

person who lodged the notice under section 129A.

129C Civil penalties

(1) The following are civil remedy provisions for the purposes of this

section:

(a)

subsection

128(4);

(b)

subsection

129(2);

Note:

Division 4 of Part VIII contains other provisions relevant to civil

remedies.

(2) The Court may order a person who has contravened a civil remedy

provision to pay a pecuniary penalty.

(3) The penalty cannot be more than 300 penalty units for a body

corporate or 60 penalty units in other cases.

(4) An application for an order under subsection (1) in relation to

subsection 128(4) (parental leave entitlements) may be made by:

(a) a transferring employee mentioned in that subsection; or

(b) an organisation of employees that is entitled, under its

eligibility rules, to represent the industrial interests of a

transferring employee mentioned in that subsection and has

been requested by the transferring employee to apply for the

order on the transferring employee's behalf; or

(d) the new employer mentioned in that subsection.

(5) An application for an order under subsection (1) in relation to an

instrument listed in the following table may be made by a person

specified in the item of the table relating to that kind of instrument:

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340 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Item Instrument

People

with standing to apply for

order

1 AWA

(a) the transferring employee; or

(b) an organisation of employees

that is entitled, under its

eligibility rules, to represent the

industrial interests of the

transferring employee and has

been requested by the

transferring employee to apply

for the order on the transferring

employee's behalf; or

2 collective

agreement (a) the transferring employee; or

(b) an organisation of employees

that is bound by the agreement;

that is entitled, under its

eligibility rules, to represent the

industrial interests of a

transferring employee and has

been requested by the

transferring employee to apply

for the order on the transferring

employee's behalf; or

(d) a workplace inspector

3 award

(a) a transferring employee; or

(b) an organisation of employees

that is entitled, under its

eligibility rules, to represent the

industrial interests of a

transferring employee; or

Division 9--Miscellaneous

130 Regulations

The regulations may make provision in relation to the effects that

the succession, transmission or assignment of a business, or a part

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of a business, have on the obligations of employers and the terms

and conditions of employees.

72 Before Division 2 of Part VIA

Insert:

Division 1--Entitlement to meal breaks

170AA Meal breaks

An employer must not require an employee to work for more than

5 hours continuously without an unpaid interval of at least 30

minutes for a meal.

Note:

Compliance with this section is dealt with in Part VIII.

170AB Displacement of entitlement to meal breaks

Section 170AA does not apply in relation to particular employment

of an employee while any of the following operates in relation to

the employee in relation to the employment:

(a)

award;

(b) a workplace agreement;

170AC Model dispute resolution process

The model dispute resolution process applies to a dispute under

this Division.

Note:

The model dispute resolution process is set out in Part VIIA.

170AD Extraterritorial extension

(1) This Division, and the rest of this Act so far as it relates to this

Division, extend:

(a) to an employee outside Australia who meets any of the

conditions in this section; and

(b) to the employee's employer (whether the employer is in or

outside Australia); and

employee (whether they are in or outside Australia).

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342 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Note: In

this

context,

Australia includes the Territory of Christmas Island,

the Territory of Cocos (Keeling) Islands and the coastal sea. See

section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

Employee in Australia's exclusive economic zone

(2) One condition is that the employee is in Australia's exclusive

economic zone and either:

(a) is an employee of an Australian employer and is not

prescribed by the regulations as an employee to whom this

subsection does not apply; or

(b) is an employee prescribed by the regulations as an employee

to whom this subsection applies.

Note:

The regulations may prescribe the employee by reference to a class.

See subsection 13(3) of the Legislative Instruments Act 2003.

On Australia's continental shelf outside exclusive economic zone

(3) Another condition is that the employee:

(a) is outside the outer limits of Australia's exclusive economic

zone, but is in, on or over a part of Australia's continental

shelf prescribed by the regulations for the purposes of this

subsection, in connection with the exploration of the

continental shelf or the exploitation of its natural resources;

and

(b) meets the requirements that are prescribed by the regulations

for that part.

Note:

The regulations may prescribe different requirements relating to

different parts of Australia's continental shelf. The regulations may

need to do so to give effect to Australia's international obligations.

Outside Australia's exclusive economic zone and continental shelf

(4) Another condition is that the employee:

(a) is neither in Australia's exclusive economic zone nor in, on

or over a part of Australia's continental shelf described in

paragraph (3)(a); and

(b) is an Australian-based employee of an Australian employer;

and

this subsection does not apply.

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Definition

(5) In this section:

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

73 At the end of section 170BA

Add:

Note:

Employer, employee and employment have their ordinary meaning in

this Division. See sections 4AA, 4AB and 4AC and Schedule 1.

74 After section 170BA

Insert:

170BAB Relationship of this Division to other laws providing

alternative remedies

(1) The Commission must not deal with an application under this

Division if the Commission is satisfied that there is available to the

applicant, or to the employees whom the applicant represents, an

adequate alternative remedy that:

(a) exists under a law of the Commonwealth (other than this

Division) or under a law of a State or Territory; and

(b) will ensure, for the employees concerned, equal remuneration

for work of equal value.

(2) The Commission must not deal with an application under this

Division for an order to secure equal remuneration for work of

equal value for an employee if proceedings for an alternative

remedy:

(a) to secure such remuneration for the employee; or

(b) against unequal remuneration for work of equal value for the

employee;

have begun:

(d) under another law of the Commonwealth; or

(e) under a law of a State or Territory.

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344 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(3) Subsection (2) does not prevent the Commission from dealing with

an application under this Division if the proceedings for the

alternative remedy:

(a) have been discontinued by the party who initiated the

proceedings; or

(b) have failed for want of jurisdiction.

(4) If an application has been made for an order under this Division to

secure equal remuneration for work of equal value for an

employee, a person is not entitled to take proceedings for an

alternative remedy under a provision or law of a kind referred to in

subsection (2):

(a) to secure such remuneration for the employee; or

(b) against unequal remuneration for work of equal value for the

employee.

(5) Subsection (4) does not prevent the taking of proceedings for an

alternative remedy if the proceedings under this Division:

(a) have been discontinued by the party who initiated the

proceedings; or

(b) have failed for want of jurisdiction.

(6) A remedy under a law of the Commonwealth, a State or a Territory

relating to discrimination in relation to employment, that consists

solely of compensation for past actions, is not an alternative

remedy, or an adequate alternative remedy, for the purposes of this

section.

170BAC Relationship of this Division to orders, determinations or

decisions of the AFPC

(1) The Commission is to have regard to decisions of the AFPC in

making orders under this Division.

(2) The Commission must not deal with an application for an order

under this Division if:

(a) the comparator group of workers (see subsection (3)) is being

paid a wage set by the AFPC; or

(b) enforcement of the order applied for would have the effect of

changing a wage set by the AFPC; or

the AFPC that is in force.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 345

(3)

subsection

(2):

comparator group of workers means workers whom the applicant

contends are performing work of equal value to the work

performed by the employees to whom the application relates.

75 Subsection 170BC(2)

Omit "including minimum rates", substitute "other than those set by the

AFPC".

76 Paragraph 170BC(3)(b)

Repeal the paragraph, substitute:

(b) the order can reasonably be regarded as appropriate and

adapted to giving effect to one or more of the following:

(i) the Anti-Discrimination Conventions;

(ii) the provisions of Recommendations referred to in

paragraphs 170BA(b) and (c).

77 After section 170BD

Insert:

170BDA Conciliation or mediation

(1) If an application is made for an order under this Division, the

Commission must, before starting to hear and determine the matter

to which the application relates:

(a) attempt to settle the matter by conciliation; or

(b) at the request or with the consent of both the applicant and

any employer of employees who, if the order applied for

were made, would be covered by it--refer the matter for

mediation by an independent person specified in the request

or consent.

(2) The Commission may order:

(a) the applicant, or a representative of the applicant; and

(b) each employer of employees who, if the order applied for

were made, would be covered by it, or a representative of

those employers;

to attend the conciliation or mediation.

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346 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(3) The Commission may order that the employees who, if the order

applied for were made, would be covered by it, or a representative

of those employees, be allowed to attend the conciliation or

mediation.

(4) The Commission may order that:

(a) the applicant; or

(b) each employer of employees who, if the order applied for

were made, would be covered by it;

inform the employees concerned of:

Division; and

(d) the details of the application and the order applied for; and

(e) the time and place at which conciliation or mediation will

take place.

170BDB If conciliation or mediation is unsuccessful

(1)

If:

(a) the Commission forms the view that all reasonable attempts

to settle the matter, or part of the matter, to which the

application relates by conciliation have been unsuccessful; or

(b) if the Commission referred the matter to an independent

person for mediation--the independent person informs the

Commission that all reasonable attempts to settle the matter,

or part of the matter, by mediation have been unsuccessful;

the Commission must advise accordingly the applicant and each

employer of employees who, if the order applied for were made,

would be covered by it.

(2) The Commission may order that:

(a) the applicant; or

(b) each employer of employees who, if the order applied for

were made, would be covered by it;

inform the employees concerned of the Commission's advice under

subsection (1).

(3) If the Commission advises persons under subsection (1), the

Commission is to proceed to hear and determine the matter, or part,

that was not settled.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 347

170BDC Hearing of matter by member who conducted conciliation

(1) If a member of the Commission has exercised conciliation powers

under section 170BDA in relation to a matter, the member must not

hear or determine, or take part in the hearing or determination of,

the matter if a person who was present at the conciliation objects.

(2) The member is not taken to have exercised conciliation powers in

relation to the matter merely because:

(a) the member arranged for a conference of the parties or their

representatives to be presided over by the member, but the

conference did not take place or was not presided over by the

member; or

(b) the member arranged for the parties or their representatives to

confer among themselves at a conference at which the

member was not present.

78 Section 170BE

Repeal the section.

79 After section 170BG

Insert:

170BGA Employer not to prejudice employee

(1) An employer must not, for the reason, or for reasons including the

reason, that an application or order has been made under this

Division, do or threaten to do any of the following:

(a) dismiss an employee;

(b) injure an employee in his or her employment;

(2) Subsection (1) is a civil remedy provision.

170BGB Penalties etc. for contravention of section 170BGA

(1) The Court, or the Federal Magistrates Court, on application by an

eligible person, may make one or more of the following orders in

relation to a person (the defendant) who has contravened

section 170BGA:

(a) an order imposing a pecuniary penalty on the defendant;

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348 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) an order requiring the defendant to pay a specified amount to

another person as compensation for damage suffered by the

other person as a result of the contravention;

(2) The maximum pecuniary penalty under paragraph (1)(a) is 300

penalty units if the defendant is a body corporate and otherwise 60

penalty units.

(3) The orders that may be made under paragraph (1)(c) include:

(a)

injunctions;

and

(b) any other orders that the court considers necessary to stop the

conduct or remedy its effects.

(4) In this section:

eligible person means any of the following:

(a) a workplace inspector;

(b) a person affected by the contravention;

(i) has been requested in writing, by the employee

concerned, to apply on the employee's behalf; and

(ii) has a member employed by the employee's employer;

and

(iii) is entitled, under its eligibility rules, to represent the

industrial interests of the employee in relation to work

carried on by the employee for the employer;

(d) the Sex Discrimination Commissioner;

(e) a person prescribed by the regulations for the purposes of this

paragraph.

(5) A regulation prescribing persons for the purposes of paragraph (e)

of the definition of eligible person may provide that a person is

prescribed only in relation to circumstances specified in the

regulation.

170BGC Proof not required of the reason for conduct

(1)

If:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 349

(a) in an application under section 170BGB relating to a

person's conduct, it is alleged that the conduct was, or is

being, carried out for a particular reason; and

(b) for the person to carry out the conduct for that reason would

constitute a contravention of section 170BGA;

it is presumed, in proceedings under this Division arising from the

application, that the conduct was, or is being, carried out for that

reason, unless the person proves otherwise.

(2) This section does not apply in relation to the granting of an interim

injunction.

Note:

See section 354A for interim injunctions.

170BGD Extraterritorial extension

(1) This Division, and the rest of this Act so far as it relates to this

Division, extends to an employee whose remuneration is

determined by or under this Act, a law of a State or Territory or a

contract of employment made in Australia, even though one or

both of the following apply:

(a) the employee is employed wholly or partly in work outside

Australia;

(b) the employee's employer operates, exists, is incorporated, or

is otherwise established, outside Australia.

Note: In

this

context,

Australia includes the Territory of Christmas Island,

the Territory of Cocos (Keeling) Islands and the coastal sea. See

section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

(2) In this section:

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

80 Sections 170BH, 170BHA and 170BI

Repeal the sections.

81 Paragraph 170CA(1)(e)

Omit "Subdivisions D and E", substitute "Subdivision E".

82 After section 170CA

Insert:

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350 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

170CAA Meaning of employee, employer and employment

In this Division, unless the contrary intention appears:

employee means:

(a) to the extent that a provision applies to, or in relation to, the

termination of employment of an employee within the

meaning of subsection 4AA(1)--an employee within the

meaning of that subsection; or

(b) otherwise--an employee within the ordinary meaning of the

expression.

employer means:

(a) to the extent that a provision applies to, or in relation to, the

termination of employment of an employee within the

meaning of subsection 4AA(1)--an employer within the

meaning of subsection 4AB(1); or

(b) otherwise--an employer within the ordinary meaning of the

expression.

employment means:

(a) to the extent that a provision applies to, or in relation to, the

termination of employment of an employee within the

meaning of subsection 4AA(1)--employment within the

meaning of subsection 4AC(1); or

(b) otherwise--the employment of an employee (within the

ordinary meaning of the expression) by an employer (within

the ordinary meaning of the expression).

83 Subsection 170CB(1)

Omit all the words after "before", substitute "the termination, an

employee within the meaning of subsection 4AA(1).".

84 Subsection 170CB(2)

Omit "170CL, 170CM and 170CN", substitute "170CL and 170CM".

85 Subsection 170CB(3)

Omit "Subdivisions C, D", substitute "Subdivisions C".

86 Subsection 170CB(4)

Omit "Subdivisions C, D", substitute "Subdivisions C".

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87 Subsection 170CB(4)

Omit all the words after "termination", substitute "of employment of an

employee within the meaning of subsection 4AA(1).".

88 Subsection 170CB(5)

Omit "Subdivisions C, D", substitute "Subdivisions C".

89 Subsection 170CBA(1)

Omit "D,".

Note:

The heading to subsection 170CBA(1) is altered by omitting "D,".

90 Subparagraph 170CBA(1)(f)(i)

Omit "award conditions", substitute "award-derived conditions (see

subsection 170CD(3))".

91 At the end of subsection 170CBA(1)

Add:

; (g) an employee engaged on a seasonal basis, within the meaning

of subsection (6A).

92 Subsection 170CBA(1) (note 2)

Omit "a State law", substitute "a provision of a State law that is not

excluded under section 7C".

93 After subsection 170CBA(1)

Insert:

(1A) Despite the exclusion of an employee from the operation of

Subdivisions B and F because of subsection (1):

(a) the employee may make an application under section 170CE

for relief in respect of the termination of his or her

employment on the ground of an alleged contravention of

section 170CK; and

(b) if the employee does so, those Subdivisions have effect, in so

far as they relate to that application, as if the employee had

not been excluded from their operation.

94 Subsection 170CBA(2)

Omit "Subdivision B, D", substitute "Subdivision B".

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352 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

95 Subsection 170CBA(4)

Repeal the subsection.

96 After subsection 170CBA(6)

Insert:

(6A) For the purposes of paragraph (1)(g), an employee is engaged on a

seasonal basis if the employee is engaged to perform work for the

duration of a specified season.

(6B) For the purposes of subsection (6A), a season is a period that:

(a) is determined at the commencement of the employee's

engagement (the commencement time); and

(b) begins at the commencement time; and

(i) is uncertain at the commencement time; and

(ii) is related to the nature of the work to be performed by

the employee; and

(iii) is objectively ascertainable when it occurs.

Note:

Examples of seasons are:

(a)

the part of a year characterised by particular conditions of

weather or temperature;

(b)

the part of a year when a product is best or available;

(c)

the part of a year marked by certain conditions, festivities or

other activities.

(6C) The regulations may provide that a particular period is, or is not, a

season for the purposes of subsection (6A).

97 Subsection 170CBA(7)

Omit "Subdivisions D and E", substitute "Subdivision E".

Note:

The heading to subsection 170CBA(7) is altered by omitting "Subdivisions D and E"

and substituting "Subdivision E".

98 Subsection 170CBA(7) (note 1)

Omit "a State law", substitute "a provision of a State law that is not

excluded under section 7C".

99 After section 170CCA

Insert:

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170CCB Extraterritorial extension

(1) This Division, and the rest of this Act so far as it relates to this

Division, extend to the termination, or proposed termination, of the

employment of an Australian-based employee even though one or

both of the following apply:

(a) the employee was employed outside Australia at the time of

the termination, the proposed time of termination or the time

of the making of the proposal to terminate;

(b) the act causing termination, or the proposal to terminate,

occurred outside Australia.

Note: In

this

context,

Australia includes the Territory of Christmas Island,

the Territory of Cocos (Keeling) Islands and the coastal sea. See

section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

(2) However, subsection (1) does not apply in relation to the employee

if either:

(a) all the following conditions are met at the time of the

termination, the proposed time of termination or the time of

the making of the proposal to terminate:

(i) the employee's employer is not an Australian employer;

(ii) the employee's primary place of work is in Australia's

exclusive economic zone or Australia's continental

shelf;

(iii) the employee is not prescribed by the regulations as an

employee in relation to whom subsection (1) applies

despite this subsection; or

(b) the employee is prescribed by the regulations as an employee

in relation to whom subsection (1) does not apply.

(3) In this section:

Australian-based employee means a person who would be an

Australian-based employee (as defined in subsection 4(1)) if the

definition of employee in section 170CAA applied to the definition

of Australian-based employee in that subsection.

Australian employer means a person who would be an Australian

employer (as defined in subsection 4(1)) if the definition of

employer in section 170CAA applied to the definition of

Australian employer in that subsection.

Schedule 1 Main amendments

354 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

100 Subsection 170CD(1) (definition of Commonwealth public

sector employee)

Repeal the definition.

101 Subsection 170CD(1)

Insert:

Court

means the Federal Court of Australia or the Federal

Magistrates Court.

102 Subsection 170CD(1) (paragraph (a) of the definition of

daily hire employee)

Repeal the paragraph, substitute:

(a)

whose

employment:

(i) is regulated by an award or a workplace agreement; and

(ii) under the award or workplace agreement is, or is

normally, apart from the application to the employee of

this Division:

(A) terminated at the end of each day or shift; or

(B) able to be terminated by the employer giving to

the employee not more than 1 day's notice; and

103 Subsection 170CD(1) (definition of Federal award

employee)

Repeal the definition.

104 Subsection 170CD(1) (definition of State or Territory

training authority)

Repeal the definition.

105 After subsection 170CD(1)

Insert:

(1A) For the purposes of paragraph (b) of the definition of daily hire

employee in subsection (1), award, old IR agreement, State award

and State employment agreement have the meanings given by

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 355

subsection 4(1) of this Act as in force immediately before the

reform commencement.

106 Subsection 170CD(2)

Omit "Subdivision C, D", substitute "Subdivision C".

107 Subsection 170CD(3)

Omit all the words after "under", substitute:

award-derived conditions if the employer is bound:

(a) in relation to the employee's wages and conditions of

employment--by an award or a workplace agreement; or

(b) in relation to:

(i) the employee's wages--by an APCS; and

(ii) in relation to the employee's conditions of

employment--by an award or a workplace agreement.

108 Subsection 170CE(1)

Omit "subsections (5) and (5A)", substitute "subsections (5), (5A), (5C)

and (5E)".

109 Paragraph 170CE(1)(b)

Omit "170CL, 170CM or 170CN", substitute "170CL or 170CM".

110 Subsection 170CE(3)

Omit "170CK, 170CM and 170CN", substitute "170CK and 170CM".

111 Paragraph 170CE(5B)(a)

Omit "3", substitute "6".

112 After subsection 170CE(5B)

Insert:

(5C) An application under subsection (1) must not be made on the

ground referred to in paragraph (1)(a), or on grounds that include

that ground, if the employee's employment was terminated for

genuine operational reasons or for reasons that include genuine

operational reasons.

(5D) For the purposes of subsection (5C), operational reasons are

reasons of an economic, technological, structural or similar nature

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356 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

relating to the employer's undertaking, establishment, service or

business, or to a part of the employer's undertaking, establishment,

service or business.

113 Before subsection 170CE(6)

Insert:

(5E) An application under subsection (1) must not be made on the

ground referred to in paragraph (1)(a), or on grounds that include

that ground, if, at the relevant time, the employer employed 100

employees or fewer, including:

(a) the employee whose employment was terminated; and

(b) any casual employee who had been engaged by the employer

on a regular and systematic basis for at least 12 months;

but not including any other casual employee.

(5F) For the purposes of subsection (5E):

(a)

the

relevant time is the time when the employer gave the

employee the notice of termination, or the time when the

employer terminated the employee's employment, whichever

happened first; and

(b) for the purposes of calculating the number of employees

employed by the employer, employee has the same meaning

as in paragraph 170CAA(1)(b).

114 At the end of section 170CEA

Add:

(4) If a respondent has moved for the dismissal of an application made,

or purported to have been made, under subsection 170CE(1):

(a) on the ground referred to in paragraph 170CE(1)(a); or

(b) on grounds that include that ground;

subsection (5) applies to the application.

(5) If the Commission is satisfied that an application to which this

subsection applies cannot be made under subsection 170CE(1) on

the ground referred to in paragraph 170CE(1)(a):

(a) because the employee is excluded from the operation of

Subdivision B by section 170CBA; or

(b) because of the operation of subsection 170CE(5A) (which

relates to qualifying periods); or

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relates to employers of 100 employees or fewer);

the Commission must:

(d) if paragraph (4)(a) applies--make an order that the

application is not a valid application; or

(e) if paragraph (4)(b) applies--make an order that the

application is not a valid application to the extent that it is

made on the ground referred to in paragraph 170CE(1)(a).

(6) The Commission is not required to hold a hearing in relation to the

making of an order under subsection (5).

115 After section 170CEA

Insert:

170CEB Applications that are frivolous, vexatious or lacking in

substance

(1)

If:

(a) an application is made, or purported to have been made,

under subsection 170CE(1):

(i) on the ground referred to in paragraph 170CE(1)(a); or

(ii) on grounds that include that ground; and

(b) the respondent moves for dismissal of an application on the

ground that it is frivolous, vexatious or lacking in substance;

and

vexatious or lacking in substance, in relation to the ground

referred to in paragraph 170CE(1)(a);

the Commission must:

(d) if subparagraph (a)(i) applies--make an order dismissing the

application; or

(e) if subparagraph (a)(ii) applies--make an order dismissing the

application to the extent that it is made on the ground

referred to in paragraph 170CE(1)(a).

(2) The Commission is not required to hold a hearing in relation to the

making of an order under subsection (1).

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358 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

170CEC Extension of time applications may be decided without a

hearing

If:

(a) an employee whose employment has been terminated by an

employer makes an application (the extension of time

application) under subsection 170CE(7) requesting the

Commission to allow an application to be lodged under

subsection 170CE(1) after the period of 21 days after the

termination took effect; and

(b) the proposed application under subsection 170CE(1) is an

application:

(i) on the ground referred to in paragraph 170CE(1)(a); or

(ii) on grounds that include that ground;

the Commission is not required to hold a hearing in relation to the

extension of time application.

170CED Matters that do not require a hearing

(1) The Commission must, in deciding whether or not to hold a

hearing for the purposes of deciding:

(a) whether to make an order under subsection 170CEA(5) or

170CEB(1); or

(b) whether to grant an extension of time application within the

meaning of section 170CEC;

take into account the cost that would be caused to the business of

the employer concerned by requiring the employer to attend a

hearing.

(2) If the Commission decides not to hold a hearing, the Commission

must, before making a decision:

(a) invite the employee and the employer concerned to provide

further information that relates to whether the order should

be made or the extension of time granted; and

(b) take account of any such information.

(3) If, as a result of information provided as mentioned in

subsection (2), the Commission considers that it would be desirable

to hold a hearing, the Commission may do so.

(4) An invitation under paragraph (2)(a) must:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 359

(a) be given by notice in writing to the employee and the

employer concerned; and

(b) specify the time by which the information referred to in the

invitation is to be provided.

170CEE Dismissal of application relating to termination for

operational reasons

(1)

If:

(a) an application is made, or is purported to have been made,

under subsection 170CE(1):

(i) on the ground referred to in paragraph 170CE(1)(a); or

(ii) on grounds that include that ground; and

(b)

either:

(i) the respondent has moved for the dismissal of the

application on the ground that the application is outside

the jurisdiction of the Commission because the

employee's employment was terminated for genuine

operational reasons or for reasons that include genuine

operational reasons; or

(ii) it appears to the Commission, on the face of all the

materials before it, that the employee's employment

may have been terminated for genuine operational

reasons or for reasons that include genuine operational

reasons;

the Commission must hold a hearing to deal with the operational

reasons issue before taking any further action in relation to the

application.

(2) If, as a result of the hearing, the Commission is satisfied that the

operational reasons relied on by the respondent were genuine, the

Commission must:

(a) if subparagraph (1)(a)(i) applies--make an order that the

application is not a valid application; or

(b) if subparagraph (1)(a)(ii) applies--make an order that the

application is not a valid application to the extent that it is

made on the ground referred to in paragraph 170CE(1)(a).

(3) Subject to any right of appeal to a Full Bench of the Commission, a

finding by the Commission that it is not satisfied that the

operational reasons relied on by the respondent were genuine is

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360 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

final and binding between the parties in any proceedings before the

Commission.

(4) In this section:

operational reasons has the meaning given by subsection

170CE(5D).

116 Paragraph 170CFA(3)(b)

Omit "170CK, 170CL and 170CN", substitute "170CK and 170CL".

117 Subsection 170CFA(4)

Omit "170CL, 170CM and 170CN", substitute "170CL and 170CM".

118 Paragraph 170CFA(5)(c)

Omit "170CK, 170CL and 170CN", substitute "170CK and 170CL".

119 Subsection 170CFA(7)

Omit all the words after "period" (second occurring).

120 Subsection 170CFA(8)

Repeal the subsection, substitute:

(8) The Commission must not, under any provision of this Act, extend

the period within which an election is required by subsection (6) to

be lodged.

(9) An appeal to a Full Bench under section 45 may not be made in

relation to the discontinuance of an application under

subsection (7).

121 Paragraph 170CG(3)(a)

Omit "the capacity or conduct of the employee", substitute "the

employee's capacity or conduct (including its effect on the safety and

welfare of other employees)".

122 Paragraph 170CG(3)(a)

Omit "or to the operational requirements of the employer's undertaking,

establishment or service".

123 After section 170CG

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Insert:

170CGA Exercise of arbitration powers by member who has

exercised conciliation powers

(1) If a member of the Commission has exercised conciliation powers

in relation to an application under this Division, the member must

not exercise, or take part in the exercise of, arbitration powers in

relation to the application if a party to the arbitration proceeding

objects.

(2) The member is not taken to have exercised conciliation powers in

relation to the application merely because:

(a) the member arranged for a conference of the parties or their

representatives to be presided over by the member, but the

conference did not take place or was not presided over by the

member; or

(b) the member arranged for the parties or their representatives to

confer among themselves at a conference at which the

member was not present.

124 Paragraph 170CH(4)(b)

Omit "subject to subsection (5)", substitute "subject to subsections (4A)

and (5)".

125 After subsection 170CH(4)

Insert:

(4A) In determining an amount for the purposes of an order under

paragraph (4)(b), the Commission must have regard to:

(a) the amount of any income earned by the employee from

employment or other work during the period between the

termination and the making of the order for reinstatement;

and

(b) the amount of any income reasonably likely to be so earned

by the employee during the period between the making of the

order for reinstatement and the actual reinstatement.

126 Subsection 170CH(7)

Omit "Subject to subsection (8)", substitute "Subject to

subsections (7A), (7B), (8) and (9)".

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362 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

127 After paragraph 170CH(7)(d)

Insert:

(da) any misconduct of the employee that contributed to the

employer's decision to terminate the employee's

employment; and

128 After subsection 170CH(7)

Insert:

(7A) An amount ordered by the Commission under subsection (4) or (6)

to be paid to an employee may not include a component by way of

compensation for shock, distress or humiliation, or other analogous

hurt, caused to the employee by the manner of terminating the

employee's employment.

129 Before subsection 170CH(8)

Insert:

(7B) If the Commission is satisfied that misconduct of the employee

contributed to the employer's decision to terminate the employee's

employment, the Commission must reduce the amount it would

otherwise fix under subsection (6) by an appropriate amount on

account of the misconduct.

130 Subsections 170CH(8) and (9)

Omit "award conditions", substitute "award-derived conditions (see

subsection 170CD(3))".

131 After subsection 170CJ(3)

Insert:

(3A) If the Commission is satisfied:

(a) that a person (the representative) representing a party to a

proceeding relating to an application made under

section 170CE caused costs to be incurred by the other party

to the proceeding; and

(b) that the representative caused the costs to be incurred because

of the representative's unreasonable act or omission in

connection with the conduct of the proceeding;

the Commission may, on an application by the other party, make

an order for costs against the representative.

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132 Section 170CN

Repeal the section.

133 Section 170CO

Omit "170CL, 170CM or 170CN", substitute "170CL or 170CM".

134 Subsection 170CP(1)

Omit "170CK, 170CL and 170CN", substitute "170CK and 170CL".

Note:

The heading to section 170CP is altered by omitting "170CL, 170CM or 170CN" and

substituting "170CL or 170CM".

135 Subsection 170CP(2)

Omit "a court of competent jurisdiction", substitute "an eligible court".

136 Subsection 170CP(3)

Omit "170CK, 170CM and 170CN", substitute "170CK and 170CM".

137 Subsection 170CP(5)

Omit "170CL, 170CM or 170CN", substitute "170CL or 170CM".

138 Subsection 170CR(1)

Omit "or 170CN".

139 Paragraph 170CR(1)(c)

Omit "subject to subsection (2)", substitute "subject to

subsections (1A), (2), (2A) and (2B)".

140 After subsection 170CR(1)

Insert:

(1A) An amount of compensation ordered by the Court under

paragraph (1)(c) or (d) to be paid to an employee may not include a

component by way of compensation for shock, distress or

humiliation, or other analogous hurt, caused to the employee by the

manner of terminating the employee's employment.

141 Subsection 170CR(2)

Repeal the subsection, substitute:

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364 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(2) In fixing an amount under paragraph (1)(c) for an employee who

was employed under award-derived conditions immediately before

the termination, the Court must not fix an amount that exceeds the

total of the following amounts:

(a) the total amount of remuneration:

(i) received by the employee; or

(ii) to which the employee was entitled;

(whichever is higher) for any period of employment with the

employer during the period of 6 months immediately before

the termination (other than any period of leave without full

pay); and

(b) if the employee was on leave without pay or without full pay

while so employed during any part of that period--the

amount of remuneration taken to have been received by the

employee for the period of leave in accordance with the

regulations.

(2A) In fixing an amount under paragraph (1)(c) for an employee who

was not employed under award-derived conditions immediately

before the termination, the Court must not fix an amount that

exceeds:

(a) the total of the amounts determined under subsection (2) if

the employee were an employee covered by the subsection;

(b) the amount of $32,000, as indexed from time to time in

accordance with a formula prescribed by the regulations;

whichever is the lower amount.

(2B) For the avoidance of doubt, an order by the Court under

paragraph (1)(c) or (d) may permit the employer concerned to pay

the amount required in instalments specified in the order.

142 Subsection 170CR(6)

Omit "170CL, 170CM or 170CN", substitute "170CL or 170CM".

143 Section 170CR (note)

Omit "170CL, 170CM or 170CN", substitute "170CL or 170CM".

144 Subdivision D of Division 3 of Part VIA

Repeal the Subdivision.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 365

145 Subsection 170GA(2)

Omit "The", substitute "Subject to subsection (2A), the".

146 After subsection 170GA(2)

Insert:

(2A) The power to make orders under subsection (2) does not include

the power to make orders for any of the following:

(a) reinstatement of an employee;

(b) withdrawal of a notice of termination if the notice period has

not expired;

(d) payment of severance pay;

(e) disclosure of confidential information or commercially

sensitive information relating to the employer, unless the

recipient of such information gives an enforceable

undertaking not to disclose the information to any other

person;

(f) disclosure of personal information relating to a particular

employee, unless the employee has given written consent to

the disclosure of the information and the disclosure is in

accordance with that consent.

147 At the end of section 170GA

Add:

(4) For the purposes of subsection (2A), commercially sensitive

information, confidential information and personal information

have their ordinary meanings unless the regulations provide

otherwise.

148 After section 170GB

Insert:

170GBA Powers and procedures of Commission for dealing with

applications

The Commission may, in relation to an application for an order

under section 170GA, attempt to settle the matter to which the

application relates by conciliation.

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366 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

149 Section 170GD

Repeal the section.

150 Subdivision F of Division 3 of Part VIA (heading)

Repeal the heading, substitute:

Subdivision F--Rights relating to termination of employment

151 Section 170HA

Repeal the section.

152 Section 170HB

Repeal the section, substitute:

170HB Limitation on applications alleging termination on

paragraph 170CE(1)(a) grounds

(1) An application under subsection 170CE(1) alleging termination of

employment on the ground referred to in paragraph 170CE(1)(a),

or grounds that include that ground, must not be made if other

termination proceedings have already been commenced in respect

of the termination of employment, unless the other termination

proceedings:

(a) have been discontinued by the employee who commenced

the proceedings; or

(b) have failed for want of jurisdiction.

Note:

Subsection (3) defines other termination proceedings.

(2) An employee must not commence other termination proceedings in

respect of a termination of employment if an application under

subsection 170CE(1) alleging termination of employment on the

ground referred to in paragraph 170CE(1)(a), or on grounds that

include that ground, has already been made, unless the application:

(a) has been discontinued by the employee; or

(b) has failed for want of jurisdiction.

(3) In this section:

other termination proceedings means proceedings, in respect of a

termination of the employment of an employee:

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(a) for a remedy in respect of the termination:

(i) under a provision of this Act other than section 170CE;

(ii) under another law of the Commonwealth; or

(iii) under a provision of a law of a State or Territory that is

not excluded by section 7C; and

(b) that allege that the termination was unlawful for any reason

(other than a failure by the employer to provide a benefit to

which the employee was entitled on the termination).

Note:

Section 7C provides for the exclusion of certain State and Territory

laws.

(4) For the avoidance of doubt, a proceeding seeking compensation, or

the imposition of a penalty, because an employer has failed, in

relation to a termination of employment, to meet an obligation:

(a) to give adequate notice of the termination; or

(b) to provide a severance payment as a result of the termination;

termination;

is taken to be a proceeding alleging that the termination was

unlawful because of a failure to provide a benefit to which the

employee was entitled on the termination.

153 Section 170HC

Repeal the section, substitute:

170HC Limitation on applications alleging unlawful termination

(1) An application alleging unlawful termination of employment must

not be made by an employee if other termination proceedings have

already been commenced in respect of the termination of

employment, unless the other termination proceedings:

(a) have been discontinued by the employee; or

(b) have failed for want of jurisdiction.

Note:

Subsection (3) defines an application alleging unlawful termination

and other termination proceedings.

(2) An employee must not commence other termination proceedings in

respect of a termination of employment if an application alleging

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368 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

unlawful termination of the employment has already been made,

unless the application:

(a) has been discontinued by the employee; or

(b) has failed for want of jurisdiction.

(3) In this section:

application alleging unlawful termination means an application

under section 170CE, in respect of a termination of employment,

on the ground that the termination constitutes a contravention of

section 170CK because it was done for a reason set out in

subsection 170CK(2).

other termination proceedings means proceedings, in respect of a

termination of employment:

(a) for a remedy in respect of the termination:

(i) under a provision of this Act other than section 170CE;

(ii) under another law of the Commonwealth; or

(iii) under a provision of a law of a State or Territory that is

not excluded by section 7C; and

(b) that allege that the termination was:

(i) harsh, unjust or unreasonable (however described); or

(ii)

unlawful;

for any reason (other than a failure by the employer to

provide a benefit to which the employee was entitled on the

termination).

Note:

Section 7C provides for the exclusion of certain State or Territory

laws.

154 Subsection 170JC(1)

Repeal the subsection.

155 Subsection 170JC(2)

Omit "For the purpose of applying Part VIII in that way, an", substitute

"An".

156 Subsection 170JC(3)

Omit "(as it applies in accordance with this section)".

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157 Paragraph 170JC(3)(a)

After "the Court" (wherever occurring), insert "or the Federal

Magistrates Court".

158 Paragraph 170JC(3)(b)

Omit "a court of competent jurisdiction", substitute "an eligible court".

159 At the end of section 170JD

Add:

(4) This section does not apply to an order under subsection

170CEA(5) or section 170CEB or to a decision on an extension of

time application within the meaning of section 170CEC.

160 Section 170JE

Repeal the section.

161 Section 170JEA

Omit " or the Court", substitute ", the Court or the Federal Magistrates

Court".

162 Sections 170JEB and 170JEC

Repeal the sections.

163 At the end of section 170JF

Add:

(3) An appeal to a Full Bench under section 45 may not be made in

relation to an order under subsection 170CEA(5) or

section 170CEB or in relation to a decision on an extension of time

application within the meaning of section 170CEC.

164 Section 170JG

Omit ", or certified agreement or AWA,", substitute "or workplace

agreement".

165 Section 170JH

Repeal the section.

166 At the end of Division 4 of Part VIA

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Add:

170JI Meaning of employee and employer

To avoid doubt, the expression employee or employer, when used

in a provision of this Division, is taken to have the same meaning

as in the provision of this Act to which the provision of this

Division relates.

167 Division 5 of Part VIA

Repeal the Division, substitute:

Division 5--Parental leave

170KA Object and application of Division

The object of this Division is to give effect, or further effect, to:

(a) the Family Responsibilities Convention; and

(b) the Workers with Family Responsibilities Recommendation,

1981, which the General Conference of the International

Labour Organisation adopted on 23 June 1981 and is also

known as Recommendation No. 165;

by providing for a system of unpaid parental leave, and a system of

unpaid adoption leave, that will help men and women workers who

have responsibilities in relation to their dependent children:

activity; and

(d) to reconcile their employment and family responsibilities.

Note:

Employer, employee and employment have their ordinary meaning in

this Division. See sections 4AA, 4AB and 4AC and Schedule 1.

170KB Entitlement to parental leave

The provisions of Division 6 of Part VA are taken to apply in

relation to an employee:

(a) who is not an employee within the meaning of subsection

4AA(1); and

(b) if the employee is a casual employee--who would be an

eligible casual employee within the meaning of Division 6 of

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Part VA, if he or she were an employee within the meaning

of subsection 4AA(1);

as if he or she were an employee to whom Division 6 of Part VA

applied.

Note 1:

Employees within the meaning of subsection 4AA(1) are entitled to

the key minimum entitlements of employment provided by the

Australian Fair Pay and Conditions Standard. These include an

entitlement to parental leave (see Division 6 of Part VA).

Note 2:

Compliance with this section is dealt with in Part VIII.

170KC Division supplements other laws

This Division is intended to supplement, not to override,

entitlements under other Commonwealth, State and Territory

legislation and awards.

170KD Model dispute resolution process

The model dispute resolution process applies to a dispute under

this Division.

Note:

The model dispute resolution process is set out in Part VIIA.

168 Parts VIB, VID, VIE and VII

Repeal the Parts, substitute:

Part VIIA--Dispute resolution processes

Division 1--Preliminary

171 Object

The objects of this Part are:

(a) to encourage employers and employees who are parties to a

dispute to resolve it at the workplace level; and

(b) to introduce greater flexibility for the resolution of disputes

by allowing the parties to determine the best forum in which

to resolve them.

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172 Court process

Nothing in this Part affects the right of a party to a dispute to take

court action to resolve the dispute.

Division 2--Model dispute resolution process

173 Model dispute resolution process

This Division sets out the model dispute resolution process.

Note:

The model dispute resolution process is used to resolve a variety of

disputes, including:

(a)

disputes about entitlements under the Australian Fair Pay and

Conditions Standard (see section 89E); and

(b)

disputes about the application of awards (see section 116A); and

(c)

disputes about the terms of a workplace agreement, where the

agreement itself does not include an alternative (see

section 101A); and

(d)

disputes about the application of a workplace determination (see

section 113D); and

(e)

disputes under Division 1 of Part VIA, which deals with meal

breaks (see section 170AC); and

(f)

disputes under Division 5 of Part VIA, which deals with parental

leave (see section 170KD).

174 Resolving dispute at workplace level

The parties to a dispute must genuinely attempt to resolve the

dispute at the workplace level.

Note:

This may involve an affected employee first discussing the matter in

dispute with his or her supervisor, then with more senior management.

175 Where dispute cannot be resolved at workplace level

Alternative dispute resolution process using an agreed provider

(1) If a matter in dispute cannot be resolved at the workplace level, a

party to the dispute may elect to use an alternative dispute

resolution process in an attempt to resolve the matter.

(2) The alternative dispute resolution process is to be conducted by a

person agreed between the parties in dispute on the matter.

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Where parties cannot agree on a provider

(3) If the parties cannot reach agreement on who is to conduct the

alternative dispute resolution process, a party to the dispute on the

matter may notify the Industrial Registrar of that fact.

(4) On receiving notification under subsection (3), the Industrial

Registrar must provide the parties with the prescribed information.

(5) If the parties cannot agree on who is to conduct the alternative

dispute resolution process within the consideration period, a party

to the dispute on the matter may apply to the Commission to have

the alternative dispute resolution process conducted by the

Commission.

(6) If an alternative dispute resolution process is used to resolve a

dispute on a matter, the parties to the dispute must genuinely

attempt to resolve the dispute using that process.

(7) In this section:

consideration period is a period beginning on the last day on

which the Industrial Registrar gives the prescribed information to a

party to the dispute on the matter and ending 14 days later.

176 Conduct during dispute

(1) An employee who is a party to a dispute must, while the dispute is

being resolved:

(a) continue to work in accordance with his or her contract of

employment, unless the employee has a reasonable concern

about an imminent risk to his or her health or safety; and

(b) comply with any reasonable direction given by his or her

employer to perform other available work, either at the same

workplace or at another workplace.

(2) In directing an employee to perform other available work, an

employer must have regard to:

(a) the provisions (if any) of the law of the Commonwealth or of

a State or Territory dealing with occupational health and

safety that apply to that employee or that other work; and

(b) whether that work is appropriate for the employee to

perform.

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Division 3--Alternative dispute resolution process

conducted by Commission under model dispute

resolution process

176A Alternative dispute resolution process

alternative dispute resolution process is a procedure for the

resolution of disputes, and includes:

(a)

conferencing;

and

(b)

mediation;

and

(d) neutral evaluation; and

(e)

case

appraisal;

and

(f)

conciliation;

and

(g) arbitration, or other determination of the rights and

obligations of the parties in dispute; and

(h) a procedure or service specified in the regulations.

176B Application

(1) A person may apply to the Commission to have an alternative

dispute resolution process conducted by the Commission under this

Division in relation to a matter or matters in dispute if:

(a) the dispute is one that may (whether under an award, a

workplace determination, a workplace agreement, a provision

of this Act or otherwise) be resolved using the model dispute

resolution process; and

(b) the parties to the dispute on the matter or matters have been

unable to resolve the dispute at the workplace level.

(2) An application to have an alternative dispute resolution process

conducted by the Commission under this Division must:

(a) be in the form (if any) prescribed by the regulations; and

(b) describe the matter, or matters, in dispute in relation to which

the alternative dispute resolution process is to be conducted;

and

matters who is making the application; and

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(d) specify that the alternative dispute resolution process is to be

conducted under the model dispute resolution process.

(3) The Commission may request the parties to provide further

information about:

(a) the matter or matters in dispute; and

(b) the steps taken to resolve the matter at the workplace level.

(4) The Commission may do either of the following in relation to an

application under this section:

(a) allow the amendment, on any terms that it thinks appropriate,

of the application;

(b) correct, amend or waive any error, defect or irregularity

whether in substance or form in the application.

176C Refusing application

(1) The Commission must refuse to conduct an alternative dispute

resolution process under this Division if the dispute is not one that

may be resolved using the model dispute resolution process.

(2) The Commission may refuse to conduct an alternative dispute

resolution process under this Division if the parties in dispute on

the matter have not made a genuine attempt:

(a) to resolve the dispute at the workplace level; or

(b) to reach agreement on who would conduct the alternative

dispute resolution process.

176D Commission's powers

(1) If the Commission conducts an alternative dispute resolution

process under this Division, the Commission must take such action

as is appropriate to assist the parties to resolve the matter.

(2) The action that the Commission may take includes:

(a) arranging conferences of the parties or their representatives at

which the Commission is present; and

(b) arranging for the parties or their representatives to confer

among themselves at conferences at which the Commission

is not present.

(3) The Commission must, as far as is practicable, act:

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376 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(a)

quickly;

and

(b) in a way that avoids unnecessary technicalities and legal

forms; and

conducted in a particular way--subject to subsection (4), in

accordance with that agreement.

(4) The Commission does not have power:

(a) to compel a person to do anything; or

(b) to arbitrate the matter, or matters, in dispute; or

the dispute; or

(d) to make an award in relation to the matter, or matters, in

dispute; or

(e) to make an order in relation to the matter, or matters, in

dispute; or

(f) to appoint a board of reference.

(5) The Commission does not have the power to do any of the things

mentioned in paragraph (4)(a), (d), (e) or (f), even if the parties

agree that the Commission should do it.

(6) The Commission may, subject to any reasonable limitations

imposed by the Commission, permit a party to the dispute on the

matter to be represented in the alternative dispute resolution

process.

(7) If the parties request the Commission to make recommendations

about particular aspects of a matter about which they are unable to

reach agreement, then the Commission may make

recommendations about those aspects of the matter.

(8) Subdivision B of Division 3A of Part II of this Act does not apply

in relation to the conduct of the alternative dispute resolution

process by the Commission under this Division.

176E Privacy

(1) The Commission must conduct the alternative dispute resolution

process in private.

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(2) The Commission must not disclose or use any information or

document that is given to the Commission in the course of

conducting the alternative dispute resolution process to any person,

unless:

(a) the information or document is disclosed or used for the

purpose of conducting the process; or

(b) the parties to the process consent to the disclosure or use; or

circumstances specified in regulations made for the purposes

of this paragraph; or

(d) the disclosure or use is otherwise required or authorised by

law.

(3) Evidence of anything said, or any act done, in the alternative

dispute resolution process is not admissible in proceedings relating

to the dispute:

(a) in any court; or

(b) before a person authorised by a law of the Commonwealth or

of a State or Territory to hear evidence; or

hear evidence;

unless:

(d) the parties agree to the evidence being admissible; or

(e) the evidence is admitted in circumstances specified in

regulations made for the purposes of this paragraph.

176F When alternative dispute resolution process complete

The alternative dispute resolution process is completed when:

(a) the parties agree that the matters in dispute are resolved; or

(b) the party who elected to use the alternative dispute resolution

process has informed the Commission that the party no

longer wishes to continue with the process.

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378 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Division 4--Alternative dispute resolution process used to

resolve other disputes

176G Application

(1) A person may apply to the Commission to have an alternative

dispute resolution process conducted by the Commission under this

Division in relation to a matter or matters in dispute if:

(a) the dispute on the matter or matters arises in the course of

bargaining in relation to a proposed collective agreement (as

defined for the purposes of Part VC); and

(b) all parties to the dispute agree that the process is to be

conducted by the Commission.

(2) An application to have an alternative dispute resolution process

conducted by the Commission under this Division must:

(a) be in the form (if any) prescribed by the regulations; and

(b) describe the matter, or matters, in dispute in relation to which

the alternative dispute resolution process is to be conducted;

and

matters who is making the application; and

(d) specify that the alternative dispute resolution process is to be

conducted in relation to a dispute on a matter or matters

arising in the course of bargaining in relation to a proposed

collective agreement (as defined for the purposes of

Part VC).

(3) The Commission may request the parties to provide further

information about the matter or matters in dispute.

176H Grounds on which Commission must refuse application

The Commission must refuse to conduct the alternative dispute

resolution process if the circumstances mentioned in subsection

176G(1) do not exist.

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176I Powers of the Commission

(1) If the Commission conducts an alternative dispute resolution

process under this Division, the Commission must take such action

as is appropriate to assist the parties to resolve the matter.

(2) The action that the Commission may take includes:

(a) arranging conferences of the parties or their representatives at

which the Commission is present; and

(b) arranging for the parties or their representatives to confer

among themselves at conferences at which the Commission

is not present.

(3) The Commission must, as far as is practicable, act:

(a)

quickly;

and

(b) in a way that avoids unnecessary technicalities and legal

forms; and

conducted in a particular way--subject to subsection (4), in

accordance with that agreement.

(4) The Commission does not have power:

(a) to compel a person to do anything; or

(b) to arbitrate the matter, or matters, in dispute; or

the dispute; or

(d) to make an award in relation to the matter, or matters, in

dispute; or

(e) to make an order in relation to the matter, or matters, in

dispute; or

(f) to appoint a board of reference.

(5) The Commission does not have power to do any of the things

mentioned in subsection (4), even if the parties agree that the

Commission should do it.

(6) The Commission may, subject to any reasonable limitations

imposed by the Commission, permit a party to the dispute on the

matter to be represented in the alternative dispute resolution

process.

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380 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(7) If the parties request the Commission to make recommendations

about particular aspects of a matter about which they are unable to

reach agreement, then the Commission may make

recommendations about those aspects of the matter.

(8) Subdivision B of Division 3A of Part II of this Act does not apply

in relation to the conduct of the alternative dispute resolution

process by the Commission under this Division.

176J Privacy

(1) The Commission must conduct the alternative dispute resolution

process in private.

(2) The Commission must not disclose or use any information or

document that is given to the Commission in the course of

conducting the alternative dispute resolution process to any person,

unless:

(a) the information or document is disclosed or used for the

purpose of conducting the process; or

(b) the parties to the process consent to the disclosure or use; or

circumstances specified in regulations made for the purposes

of this paragraph; or

(d) the disclosure or use is otherwise required or authorised by

law.

(3) Evidence of anything said, or any act done, in the alternative

dispute resolution process is not admissible in proceedings relating

to the dispute:

(a) in any court; or

(b) before a person authorised by a law of the Commonwealth or

of a State or Territory to hear evidence; or

hear evidence;

unless:

(d) the parties agree to the evidence being admissible; or

(e) the evidence is admitted in circumstances specified in

regulations made for the purposes of this paragraph.

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176K When alternative dispute resolution process complete

The alternative dispute resolution process is completed when the

parties agree that the matters in dispute are resolved.

Division 5--Dispute resolution process conducted by the

Commission under workplace agreement

176L Application

(1) A person may apply to the Commission to have a dispute

resolution process conducted by the Commission under this

Division in relation to a matter or matters in dispute if:

(a) the dispute is one that, under the terms of a workplace

agreement, may be resolved using a dispute resolution

process conducted by the Commission; and

(b) any steps that, under the terms of agreement, must be taken

before the matter is referred to the Commission have been

taken.

(2) An application to have a dispute resolution process conducted by

the Commission under this Division must:

(a) be in the form (if any) prescribed by the regulations; and

(b) describe the matter, or matters, in dispute in relation to which

the dispute resolution process is to be conducted; and

matters; and

(d) specify that the dispute resolution process is to be conducted

under the terms of a workplace agreement and not under the

model dispute resolution process.

(3) The Commission may request the parties to provide further

information about:

(a) the matter or matters in dispute; and

(b) the steps that have been taken to resolve the dispute.

Note:

Under section 101A, a workplace agreement must include a dispute

resolution process. That process may be something other than the

model dispute resolution process, and may involve applying to have

the Commission conduct an alternative dispute resolution process.

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176M Grounds on which Commission must refuse application

The Commission must refuse to conduct a dispute resolution

process under this Division in relation to a matter in dispute if:

(a) the dispute is not one that, under the terms of the workplace

agreement, may be resolved using a dispute resolution

process conducted by the Commission; or

(b) any of the steps that, under the terms of agreement, must be

taken before the matter is referred to the Commission have

not been taken.

176N Commission's powers

(1) In conducting the dispute resolution process under this Division,

the Commission has, subject to subsection (2), the functions and

powers:

(a) given to it under the workplace agreement; or

(b) otherwise agreed by the parties.

(2) The Commission does not have the power to make orders.

(3) The Commission must, as far as is practicable, act:

(a)

quickly;

and

(b) in a way that avoids unnecessary technicalities and legal

forms; and

or otherwise, that an aspect of the process is to be conducted

in a particular way--in accordance with that agreement.

(4) Subdivision B of Division 3A of Part II of this Act does not apply

in relation to the conduct of the dispute resolution process by the

Commission under this Division.

176O Privacy

(1) The Commission must conduct the dispute resolution process in

private.

(2) The Commission must not disclose or use any information or

document that is given to the Commission in the course of

conducting the dispute resolution process to any person, unless:

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(a) the information or document is disclosed or used for the

purpose of conducting the process; or

(b) the parties to the process consent to the disclosure or use; or

circumstances specified in regulations made for the purposes

of this paragraph; or

(d) the disclosure or use is otherwise required or authorised by

law.

(3) Evidence of anything said, or any act done, in the dispute

resolution process is not admissible in any proceedings relating to

the dispute:

(a) in any court; or

(b) before a person authorised by a law of the Commonwealth or

of a State or Territory to hear evidence; or

hear evidence;

unless:

(d) the parties agree to the evidence being admissible; or

(e) the evidence is admitted in circumstances specified in

regulations made for the purposes of this paragraph.

Division 6--Dispute resolution process conducted by

another provider

176P Application of this Division

This Division applies to a dispute resolution process in relation to a

dispute on a matter or matters that is not conducted by the

Commission.

176Q Representation

(1) If the dispute resolution process is an alternative dispute resolution

process, the person conducting the process may allow a party to be

represented in the process if the person conducting the process

believes that it is appropriate to do so.

(2) The person conducting the dispute resolution process may set

reasonable limits on the conduct of the representative in relation to

the process.

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384 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(3)

If:

(a) the dispute resolution process is conducted under the terms of

a workplace agreement; and

(b) the agreement makes provision for a party to the dispute to

be represented in the process;

the person conducting the dispute resolution process must allow

the party to be represented in accordance with the agreement.

176R Privacy

(1) The person conducting the dispute resolution process must do so in

private.

(2) A person who is conducting, or has conducted, a dispute resolution

process must not disclose or use any information or document that

is given to the person in the course of conducting that process to

any person, unless:

(a) the information or document is disclosed or used for the

purpose of conducting the process; or

(b) the parties to the process consent to the disclosure or use; or

circumstances specified in regulations made for the purposes

of this paragraph; or

(d) the disclosure or use is otherwise required or authorised by

law.

(3) Subsections (1) and (2) are civil remedy provisions.

(4) Evidence of anything said, or any act done, in the dispute

resolution process is not admissible in proceedings relating to the

dispute:

(a) in any court; or

(b) before a person authorised by a law of the Commonwealth or

of a State or Territory to hear evidence; or

hear evidence;

unless:

(d) the parties agree to the evidence being admissible; or

(e) the evidence is admitted in circumstances specified in

regulations made for the purposes of this paragraph.

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(5) The Court may make an order imposing a pecuniary penalty on a

person who has contravened subsection (1) or (2).

(6) The pecuniary penalty cannot be more than 300 penalty units for a

body corporate or 60 penalty units in any other case.

(7) An application for an order under subsection (5) may be made by:

(a) a party to the dispute in relation to which the dispute

resolution process is conducted; or

(b) an organisation that has at least one member who is an

employee bound by the agreement, and that is entitled to

represent the industrial interests of at least one such

employee; or

(d) any other person prescribed by the regulations.

Note:

For other provisions about civil remedy provisions, see Division 4 of

Part VIII.

169 Division 1 of Part VIII (heading)

Repeal the heading, substitute:

Division 1--Definitions

170 Section 177A

Repeal the section, substitute:

177A Definitions

In this Part:

applicable provision, in relation to a person, means:

(a) a term of one of these that applies to the person:

(i)

AWA;

(ii) the Australian Fair Pay and Conditions Standard;

(iii)

award;

(iv) a collective agreement;

(v) an order of the Commission (except one made under

Division 4 of Part VC); and

(b) section 170AA (meal breaks); and

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386 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Note 1:

Workplace determinations are treated for the purposes of the Act as if

they were collective agreements (see section 113F). Undertakings are

treated the same way (see section 103M). This means that a term of

one of these is an applicable provision for the purposes of this Part.

Note 2:

Division 4 of Part VC deals with protected action ballots. Breaches of

orders made under that Division are dealt with under section 109V.

eligible court means:

(a) the Court; or

(b) the Federal Magistrates Court; or

(d) a magistrate's court; or

(e) the Industrial Relations Court of South Australia; or

(f) any other State or Territory court that is prescribed by the

regulations.

171 Before section 178

Insert:

Division 2--Penalties and other remedies for contravention

of applicable provisions

177AA Standing to apply for penalties or remedies under this

Division

(1) The table sets out the persons who may apply for a penalty or other

remedy under this Division in relation to a breach of an applicable

provision.

Standing

Item If

the

applicable

provision is...

These persons may apply...

a term of an AWA

(a) an employer that is bound by the AWA;

(b) an employee who is bound by the AWA;

an employee who is bound by the AWA

(subject to subsection (2));

(d) an inspector

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 387

Standing

Item If

the

applicable

provision is...

These persons may apply...

a term of the Australian

Fair Pay and Conditions

Standard

(a) an employee whose employment is subject to

the Standard;

(b) an organisation of employees (subject to

subsection (3));

a term of an award

(a) an employer that is bound by the award;

(b) an employee whose employment is subject

to the award;

member affected by the breach;

(d) an organisation of employees, a member of

which is employed by the respondent

employer and whose industrial interests the

organisation is entitled, under its eligibility

rules, to represent in relation to work carried

on by the member for the employer;

(e) an inspector

a term of a collective

agreement

(a) an employer that is bound by the agreement;

(b) an employee who is bound by the

agreement;

subsection (3));

(d) an inspector

a term of an order of the

Commission

(a) a person who is bound by the order;

(b) an organisation of employers that has a

member affected by the breach;

which is employed by the respondent

employer and whose industrial interests the

organisation is entitled, under its eligibility

rules, to represent in relation to work carried

on by the member for the employer;

(d) an inspector

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388 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Standing

Item If

the

applicable

provision is...

These persons may apply...

6 section

170AA

(meal

breaks)

(a) an employee to whom section 170AA

applies;

(b) an organisation of employees (subject to

subsection (3));

7 section

170KB

(extended

entitlement to parental

leave)

(a) an employee to whom section 170KB

applies;

(b) an organisation of employees (subject to

subsection (3));

Note:

Workplace determinations are treated for the purposes of this Act as if

they were collective agreements (see section 113F). Undertakings are

treated the same way (see section 103M). This means that they are

covered by table item 4.

(2) An organisation of employees that represents an employee who is

bound by an AWA must not apply on behalf of the employee for a

penalty or other remedy under this Division in relation to a breach

of an applicable provision of the AWA unless:

(a) the employee has requested, in writing, the organisation to

apply on the employee's behalf; and

(b) a member of the organisation is employed by the employee's

employer; and

represent the industrial interests of the employee in relation

to work carried on by the employee for the employer.

(3) An organisation of employees must not apply for a penalty or other

remedy under this Division in relation to a breach of an applicable

provision that is:

(a) a term of the Australian Fair Pay and Conditions Standard; or

(b) a term of a collective agreement; or

(d)

section

170KB;

unless:

(e) a member of the organisation is employed by the respondent

employer; and

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(f) the breach relates to, or affects, the member of the

organisation or work carried on by the member for the

employer.

172 Subsection 178(1)

Repeal the subsection, substitute:

(1) An eligible court may impose a penalty in accordance with this

Division on a person if:

(a) the person is bound by an applicable provision; and

(b) the person breaches the provision.

173 Paragraph 178(2)(a)

Repeal the paragraph, substitute:

(a) 2 or more breaches of an applicable provision are committed

by the same person; and

174 Paragraph 178(2)(b)

Omit "organisation or".

175 Subsection 178(3)

Repeal the subsection, substitute:

(3) Subsection (2) does not apply to a breach of an applicable

provision that is committed by a person after an eligible court has

imposed a penalty on the person for an earlier breach of the

provision.

176 Subsections 178(4) to (5A)

Repeal the subsections, substitute:

(4) The maximum penalty that may be imposed under subsection (1)

for a breach of an applicable provision is:

(a) 60 penalty units for an individual; or

(b) 300 penalty units for a body corporate.

(5) If, in a proceeding under this section in relation to an AWA, it

appears to the eligible court that a party to the AWA has suffered

loss or damage as a result of a breach of the AWA by the other

party, the court may order the other party to pay the amount of the

loss or damage to the first-mentioned party.

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390 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

177 Subsection 178(6)

Omit "court concerned", substitute "eligible court".

178 Subsection 178(6)

Omit "award, order or agreement", substitute "applicable provision

(except a term of an AWA)".

179 Subsection 178(6A)

Omit "court concerned", substitute "eligible court".

180 Subsection 178(6A)

Omit "award, order or agreement", substitute "applicable provision

(except a term of an AWA)".

181 Subsection 178(6B)

Omit "court concerned", substitute "eligible court".

182 Subsection 178(7)

Omit "shall", substitute "must".

183 Subsection 178(8)

Omit "a term of an award, order or agreement shall", substitute "an

applicable provision must".

184 Subsection 178(9)

Repeal the subsection.

185 Section 179

Repeal the section, substitute:

179 Recovery of wages etc.

If an employer is required by an applicable provision (except a

term of an AWA) to pay an amount to an employee or to pay an

amount to a superannuation fund on behalf of an employee, the

employee, or an inspector on behalf of the employee, may, not later

than 6 years after the employer was required to make the payment

to the employee or fund, sue for the amount of the payment in an

eligible court.

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179AA Damages for breach of AWA

(1) A party to an AWA who suffers loss or damage as a result of a

breach of the AWA by the other party may recover the amount of

the loss or damage in an eligible court.

(2) The action must be brought within 6 years after the date on which

the cause of action arose.

186 Subsection 179A(1)

Omit "subsection 178(6) or in a proceeding under section 179, the

Court or a court of competent jurisdiction", substitute "subsection

178(5) or (6) or in a proceeding under section 179 or 179AA, the

eligible court".

187 Paragraph 179A(1)(a)

Omit "Court or a court of competent jurisdiction, as the case may be,",

substitute "eligible court".

188 Section 179B

Repeal the section, substitute:

179B Interest on judgment

A debt under a judgment or order of an eligible court made under

subsection 178(5) or (6) or section 179 or 179AA carries interest

from the date on which the judgment is entered or order made at

such rate as would apply under section 52 of the Federal Court of

Australia Act 1976 if the debt were a judgment debt to which that

section applies.

189 Paragraph 179C(a)

After "section 179", insert "or 179AA".

190 Paragraph 180(1)(a)

Omit "award, order or certified agreement", substitute "applicable

provision".

191 Division 3 of Part VIII

Repeal the Division.

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392 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

192 At the end of Part VIII

Add:

Division 4--General provisions relating to civil remedies

188 Operation of this Division

(1) This Division sets out rules that apply for the purposes of these

provisions:

(a) section 178; and

(b) another provision of this Act that is declared (whether by that

provision or by another provision of this Act) to be a civil

remedy provision (whether or not for the purposes of a

particular segment of this Act); and

contravention of a provision referred to in paragraph (b).

(2) Those provisions are called the civil remedy provisions.

189 Involvement in contravention treated in same way as actual

contravention

(1) A person who is involved in a contravention of a civil remedy

provision is treated as having contravened that provision.

(2) For this purpose, a person is involved in a contravention of a civil

remedy provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention;

(b) has induced the contravention, whether by threats or

promises or otherwise; or

indirectly, knowingly concerned in or party to the

contravention; or

(d) has conspired with others to effect the contravention.

190 Civil evidence and procedure rules for civil remedy orders

A court hearing a proceeding under a civil remedy provision must

apply the rules of evidence and procedure for civil matters.

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191 Recovery of pecuniary penalties

A pecuniary penalty payable under a civil remedy provision may

be recovered as a debt due to the person to whom the penalty is

payable.

192 Civil proceedings after criminal proceedings

A court must not make an order under a civil remedy provision

requiring a person to pay a pecuniary penalty if the person has been

convicted of an offence constituted by conduct that is substantially

the same as the conduct in relation to which the order would be

made.

193 Criminal proceedings during civil proceedings

(1) Proceedings for an order under a civil remedy provision requiring a

person to pay a pecuniary penalty are stayed if:

(a) criminal proceedings are started or have already been started

against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the

same as the conduct in relation to which the order would be

made.

(2) The proceedings for the order may be resumed if the person is not

convicted of the offence. Otherwise, the proceedings for the order

are dismissed.

194 Criminal proceedings after civil proceedings

Criminal proceedings may be started against a person for conduct

that is substantially the same as conduct in relation to which an

order under a civil remedy provision requiring the person to pay a

pecuniary penalty could be made regardless of whether such an

order has been made against the person.

195 Evidence given in proceedings for pecuniary penalty not

admissible in criminal proceedings

Evidence of information given or evidence of production of

documents by an individual is not admissible in criminal

proceedings against the individual if:

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394 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(a) the individual previously gave the evidence or produced the

documents in proceedings for an order under a civil remedy

provision requiring the individual to pay a pecuniary penalty

(whether or not the order was made); and

(b) the conduct alleged to constitute the offence is substantially

the same as the conduct in relation to which the order was

sought.

However, this does not apply to a criminal proceeding in respect of

the falsity of the evidence given by the individual in the

proceedings under the civil remedy provision.

196 Civil double jeopardy

If a person is ordered to pay a pecuniary penalty under a civil

remedy provision in respect of particular conduct, the person is not

liable to be ordered to pay a pecuniary penalty under some other

provision of a law of the Commonwealth law in respect of that

conduct.

193 Parts VIIIA, IX and XA

Repeal the Parts, substitute:

Part IX--Right of entry

Division 1--Preliminary

197 Objects of this Part

In addition to the object set out in section 3, this Part has the

following objects:

(a) to establish a framework that balances:

(i) the right of organisations to represent their members in

the workplace, hold discussions with potential members

and investigate suspected breaches of industrial laws,

industrial instruments and OHS laws; and

(ii) the right of occupiers of premises and employers to

conduct their businesses without undue interference or

harassment;

(b) to ensure that permits to enter premises and inspect records

are only held by persons who understand their rights and

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 395

obligations under this Part and who are fit and proper persons

to exercise those rights;

understand their rights and obligations under this Part;

(d) to ensure that permits are suspended or revoked where rights

granted under this Part are misused.

198 Definitions

In this Part:

affected employee means:

(a) in relation to the entry onto premises under section 208 to

investigate a suspected breach--an employee for whom all

the following are satisfied:

(i) the employee carries out work on the premises;

(ii) the employee is a member of the permit holder's

organisation;

(iii) the suspected breach relates to, or affects, the employee

or the work; and

(b) in relation to the entry onto premises under section 221 to

hold discussions--an employee for whom all the following

are satisfied:

(i) the employee carries out work on the premises;

(ii) the employee is a member of the permit holder's

organisation or is eligible to become a member of that

organisation;

(iii) the employee is one of the employees with whom the

discussions are to be held.

affected employer means an employer of affected employees.

authority documents, in relation to the entry onto premises by a

permit holder, means:

(a) if the permit holder entered the premises in reliance on an

entry notice:

(i) the permit holder's permit; and

(ii) the entry notice; or

(b) if the permit holder entered the premises in reliance on an

exemption certificate:

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396 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(i) the permit holder's permit; and

(ii) the exemption certificate; or

order of the Commission:

(i) the permit holder's permit; and

(ii)

the

order.

Commonwealth place means a place referred to in paragraph 52(i)

of the Constitution, other than the seat of government.

conduct includes an omission.

Court means the Federal Court of Australia or the Federal

Magistrates Court.

entry notice means an entry notice in the form approved under

section 199.

exemption certificate means an exemption certificate under

section 211.

industrial law means:

(a) this Act; or

(b) the Registration and Accountability of Organisations

Schedule; or

regulates the relationships between employers and

employees; or

(d) a State or Territory industrial law.

official, in relation to an organisation, means an officer or

employee of the organisation.

OHS law means a law of a State or Territory prescribed by the

regulations for the purposes of this definition.

permit means a permit under this Part.

permit holder means a person who holds a permit.

permit holder's organisation, in relation to a permit, means the

organisation in respect of which the permit was issued.

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repealed Part IX means Part IX of this Act, as in force at any time

before the reform commencement.

199 Form of entry notice

(1) The Industrial Registrar must, in writing, approve a form of entry

notice for the purposes of this section.

(2)

The

form:

(a) must require the following matters to be specified by the

person using the form:

(i) the premises that are proposed to be entered;

(ii) the organisation in respect of which the relevant permit

was issued;

(iii) any other matters prescribed by the regulations; and

(b) must include any other information prescribed by the

regulations.

(3) Subsection (2) does not, by implication, limit the matters that may

be contained in, or required by, the form.

200 Extraterritorial extension

In Australia's exclusive economic zone

(1) This Part, and the rest of this Act so far as it relates to this Part,

extend to premises that:

(a) are in Australia's exclusive economic zone; and

(b) are owned or occupied by an Australian employer.

This subsection has effect subject to Australia's obligations under

international law concerning jurisdiction over ships that fly the flag

of a foreign country and aircraft registered under the law of a

foreign country.

On Australia's continental shelf outside exclusive economic zone

(2) This Part, and the rest of this Act so far as it relates to this Part,

extend to premises that:

(a) are outside the outer limits of Australia's exclusive economic

zone, but in, on or over a part of Australia's continental shelf

prescribed for the purposes of this subsection; and

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398 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) are connected with the exploration of the continental shelf or

the exploitation of its natural resources; and

for that part.

Note:

The regulations may prescribe different requirements relating to

different parts of Australia's continental shelf. The regulations may

need to do so to give effect to Australia's international obligations.

Definition

(3) In this section:

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

Division 2--Issue of permits

201 Issue of permit

(1) An organisation may apply to a Registrar for the issue of a permit

to an official of the organisation. The application must be in

writing.

(2) The Registrar may issue a permit to the official named in the

application.

(3)

The

permit:

(a) must include any conditions that are imposed by the

Registrar under section 202; and

(b) must include any conditions that are applicable under

section 231 at the time of issue.

(4) The regulations may make provision in relation to the following

matters:

(a) the form of an application for a permit;

(b) the declarations and other documents that must accompany

the application;

(d) the form of a permit.

Note: Under

the

Criminal Code and the Statutory Declarations Act 1959,

penalties apply to false statements etc.

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202 Imposition of permit conditions at time of issue

(1) At the time of issuing a permit, a Registrar may impose conditions

that limit the circumstances in which the permit has effect.

Note:

For example, the conditions could limit the premises to which the

permit applies or the time of day when the permit operates.

(2) In deciding whether to impose conditions, a Registrar must have

regard to the matters specified in subsection 203(2).

203 Permit not to be issued in certain cases

Official not a fit and proper person

(1) A Registrar must not issue a permit to an official unless the

Registrar is satisfied that the official is a fit and proper person to

hold the permit.

(2) For the purposes of subsection (1), the Registrar must have regard

to the following matters:

(a) whether the official has received appropriate training about

the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence

against an industrial law;

against a law of the Commonwealth, a State, a Territory or a

foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or

intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been

ordered to pay a penalty under this Act or any other industrial

law in respect of conduct of the official;

(e) whether any permit issued to the official under this Part, or

under the repealed Part IX, has been revoked or suspended or

made subject to conditions;

(f) whether a court, or other person or body, under a State or

Territory industrial law or an OHS law, has cancelled,

suspended or imposed conditions on a right of entry for

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400 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

industrial or occupational health and safety purposes that the

official had under that law;

(g) whether a court, or other person or body, under a State or

Territory industrial law or an OHS law, has disqualified the

official from exercising, or applying for, a right of entry for

industrial or occupational health and safety purposes under

that law;

(h) any other matters that the Registrar considers relevant.

Note:

Part VIIC of the Crimes Act 1914 includes provisions that, in certain

circumstances, relieve persons from the requirement to disclose spent

convictions and require persons aware of such convictions to

disregard them.

Banning order or disqualification applies under this Part

(3) A Registrar must not issue a permit to an official:

(a) during a disqualification period specified by a Registrar

under section 205; or

(b) if the issue is prevented by a Commission order under

section 231 or 233.

Disqualification etc. applies under State law

(4) A Registrar must not issue a permit to an official at a time when:

(a) a suspension, imposed by a court or other person or body,

applies under a State or Territory industrial law or an OHS

law to a right of entry for industrial or occupational health

and safety purposes that the official has under that law; or

(b) a disqualification, imposed by a court or other person or

body, prevents the official from exercising, or applying for, a

right of entry for industrial or occupational health and safety

purposes under a State or Territory industrial law or an OHS

law.

Division 3--Expiry, revocation, suspension etc. of permits

204 Expiry of permit

Unless earlier revoked, a permit expires at the earlier of the

following times:

(a) at the end of the third anniversary of the date of issue;

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(b) when the permit holder ceases to be an official of the

organisation that applied for the permit.

205 Revocation, suspension etc. by Registrar

(1) A workplace inspector, or a person prescribed by the regulations,

may apply to a Registrar to take action under this section against a

permit holder. The application must be made in accordance with

the regulations.

(2) On application made under subsection (1), the Registrar may do

any of the following in relation to one or more permits held by the

permit holder:

(a) revoke the permit (whether or not the permit is already

suspended);

(b) suspend the permit for a specified period;

already suspended).

(3) In exercising powers under subsection (2), the Registrar must have

regard to the matters specified in subsection 203(2).

Registrar must revoke or suspend in certain circumstances

(4) If the Registrar is satisfied that any of the things mentioned in

subsection (5) has happened since the first of the permits was

issued, then the Registrar must take the following action in relation

to each permit held by the permit holder:

(a) if the permit expires before the end of the minimum

disqualification period--the Registrar must revoke the

permit;

(b) if the permit does not expire before the end of the minimum

disqualification period--the Registrar must either:

(i) revoke the permit; or

(ii) suspend the permit for a period that does not end earlier

than the end of the minimum disqualification period.

The Registrar must also specify a disqualification period for the

purposes of section 203. The disqualification period cannot be

shorter than the minimum disqualification period.

(5) The things are:

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402 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(a) the permit holder was found, in proceedings under this Act,

to have contravened section 229; or

(b) the permit holder, or another person, was ordered to pay a

penalty under this Act in respect of a contravention of this

Part by the permit holder; or

industrial law, cancelled or suspended a right of entry for

industrial purposes that the permit holder had under that law;

(d) a court, or other person or body, under a State or Territory

industrial law, disqualified the permit holder from exercising,

or applying for, a right of entry for industrial purposes under

that law; or

(e) the holder has, in exercising a right of entry under an OHS

law, engaged in conduct that was not authorised by that law.

(6) The Commission may make an order quashing or varying the

revocation or suspension of a permit if:

(a) the permit was revoked or suspended on grounds set out in

paragraph (5)(b) or (e); and

(b) the Commission is satisfied, on application by the permit

holder, that the revocation or suspension was harsh or

unreasonable in the circumstances.

Definition

(7) In this section:

minimum disqualification period, in relation to action by a

Registrar under subsection (4) (the current action), means:

(a) if a Registrar has never previously taken action against the

permit holder under that subsection--the period of 3 months

starting when the current action is taken; or

(b) if a Registrar has previously taken action against the permit

holder under that subsection on only one occasion--the

period of 12 months starting when the current action is taken;

holder under that subsection on at least 2 occasions--the

period of 5 years starting when the current action is taken.

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206 Revoked etc. permit must be returned to Registrar

(1) If any of the following happens to a permit, then the permit holder

must within 7 days return the permit to a Registrar:

(a) the permit is revoked;

(b)

the

permit

expires;

(d) conditions are imposed on the permit after it is issued.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 8 for enforcement.

(3) In the case of a suspended permit, a Registrar must, on application

by the permit holder or the permit holder's organisation, return the

permit to the permit holder after the end of the suspension period if

the Registrar is satisfied that the permit is then still in force.

Note:

In the meantime the permit might have been revoked or might have

expired.

207 Extra conditions to be endorsed on permit

If conditions are imposed on a permit by a Registrar under

section 205 or by the Commission under section 231, then the

permit ceases to have effect until the Registrar endorses those

conditions on the permit.

Division 4--Right of entry to investigate suspected

breaches

208 Right of entry to investigate breach

Right of entry for breach of Commonwealth industrial law etc.

(1) If a permit holder for an organisation suspects, on reasonable

grounds, that a breach has occurred, or is occurring, of:

(a) this Act; or

(b) an AWA; or

Commission under this Act, being an award, collective

agreement or order that is binding on the permit holder's

organisation;

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404 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

then, for the purpose of investigating the suspected breach, the

permit holder may, during working hours, enter premises if:

(d) work is being carried out on the premises by one or more

employees who are members of the permit holder's

organisation; and

(e) the suspected breach relates to, or affects, that work or any of

those employees.

No right to investigate AWA breach unless employee requests

(2) Paragraph (1)(b) does not apply unless the employee who is a party

to the AWA makes a written request to the organisation to

investigate the breach.

209 Rights of permit holder after entering premises

(1) This section applies if a permit holder has entered premises under

section 208 for the purpose of investigating a suspected breach.

Inspection of work etc. and interviewing employees

(2) While on the premises, the permit holder may, for the purpose of

investigating the suspected breach:

(a) during working hours, inspect or view any work, material,

machinery, or appliance, that is relevant to the suspected

breach; and

(b) during working hours, interview the following persons about

the suspected breach:

(i) employees who are members of the permit holder's

organisation;

(ii) employees who are eligible to become members of the

permit holder's organisation.

(3) For the avoidance of doubt, a refusal or failure by a person to

participate in an interview under this section is not to be treated as

conduct covered by section 149.1 of the Criminal Code.

Inspection of records while on the premises

(4) While on the premises, the permit holder may, for the purpose of

investigating the suspected breach, require an affected employer to

allow the permit holder, during working hours, to inspect and make

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copies of, any records relevant to the suspected breach (other than

non-member records) that:

(a) are kept on the premises by the employer; or

(b) are accessible from a computer that is kept on the premises

by the employer.

Inspection of records at later time

(5) The permit holder may, for the purpose of investigating the

suspected breach, by notice in writing, require an affected

employer, on a later day or days specified in the notice:

(a) to produce, or allow access to, all records, or particular

records, relevant to the suspected breach (other than

non-member records), either at the premises or at another

place that is agreed between the permit holder and the

employer; and

(b) to allow the permit holder, during working hours, to inspect

and make copies of, any of those records.

The permit holder may give the notice while on the premises or

within 5 days after the day on which the permit holder entered the

premises.

(6) A day specified in a notice to an employer under subsection (5)

cannot be earlier than 14 days after the notice is given to the

employer.

(7) Before issuing a requirement to an affected employer under

subsection (4) or (5), the permit holder must produce the permit

holder's authority documents for inspection by the employer.

(8) If a permit holder has given a notice to an employer under

subsection (5) requiring the employer to produce, or allow access

to, records at the premises, then the permit holder is entitled to

enter the premises during working hours for the purpose of

inspecting and copying the records in accordance with the notice.

Note: The

Privacy Act 1998 has rules about the disclosure of personal

information.

Application to Commission for access to non-member records

(9) The permit holder may, for the purposes of investigating the

suspected breach, apply to the Commission for either or both of the

following orders:

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(a) an order to allow the permit holder to enter the premises and

to inspect and make copies of non-member records that are

relevant to the suspected breach;

(b) an order to require an affected employer to produce, or allow

access to, such records for inspection and copying.

(10) The Commission may make such an order if it is satisfied that the

order is necessary to investigate the suspected breach. Before doing

so, the Commission must have regard to the conditions (if any) that

apply to the permit holder's permit.

(11) An application for an order under subsection (9):

(a) must be in accordance with the regulations; and

(b) must set out the grounds on which the application is made.

Definitions

(12) In this section:

non-member record means a record that:

(a) relates to the employment of a person who is not a member

of the permit holder's organisation; and

(b) does not also relate to the employment of a person who is a

member of the permit holder's organisation.

record relevant to the suspected breach means a record:

(a) that is relevant to the suspected breach; and

(b) that is of the following kind:

(i) a time sheet;

(ii) a pay sheet;

(iii) any other record or document, other than an AWA.

210 Limitation on rights--entry notice or exemption certificate

(1) Section 208 does not authorise entry to premises unless:

(a) the conditions in subsection (2) of this section are satisfied;

(b) the conditions in subsection (3) of this section are satisfied.

(2) The conditions are:

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(a) the permit holder gave an entry notice to the occupier of the

premises and gave the notice during working hours at least

24 hours, but not more than 14 days, before the entry; and

(b) the entry notice specifies section 208 as the section that

authorises the entry; and

or breaches; and

(d) the entry is on a day specified in the entry notice.

(3) The conditions are:

(a) the entry is on a day specified in an exemption certificate

under section 211 and the premises are the premises specified

in the exemption certificate; and

(b) the permit holder gave a copy of the exemption certificate to

the occupier of the premises not more than 14 days before the

entry.

(4) Conduct after entry is not authorised by section 209 unless the

conduct is for the purpose of investigating a suspected breach

identified in the permit holder's authority documents.

211 Exemption from requirement to provide entry notice

(1) An organisation may apply to a Registrar for an exemption

certificate in respect of the entry onto premises under section 208

to investigate a suspected breach.

(2) If the Registrar is satisfied that there are reasonable grounds for

believing that advance notice of entry onto the premises under

section 208 might result in the destruction, concealment or

alteration of relevant evidence, then the Registrar must issue an

exemption certificate in respect of entry onto those premises.

(3) An exemption certificate must:

(a) specify the premises to which it applies; and

(b) specify the organisation to which it relates; and

(d) specify particulars of the suspected breach or breaches to

which it relates; and

(e) specify section 208 as the section that authorises the entry.

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(4) The regulations may make provision in relation to the following

matters:

(a) the form of an application for an exemption certificate;

(b) the form of an exemption certificate.

212 Limitation on rights--failure to comply with requests of

occupier or affected employer

(1) This Division does not authorise a permit holder to enter, or remain

on, premises if the permit holder fails to produce the permit

holder's authority documents for inspection when requested to do

so by an affected employer or by the occupier of the premises.

(2) This Division does not authorise a permit holder to enter, or remain

on, premises if:

(a) an affected employer or the occupier of the premises requests

the permit holder to comply with an occupational health and

safety requirement that applies to the premises; and

(b) the request is a reasonable request; and

Note:

The Commission may make an order under section 232 if the request

is unreasonable.

(3) This Division does not authorise a permit holder to enter, or remain

on, premises if:

(a) an affected employer or the occupier of the premises requests

the permit holder to do either or both of the following:

(i) to conduct interviews in a particular room or area of the

premises;

(ii) to take a particular route to reach a particular room or

area of the premises; and

(b) the request is a reasonable request; and

Note:

The Commission may make an order under section 232 if the request

is unreasonable.

(4) For the purposes of subsection (3), if an affected employer or the

occupier requests the permit holder to hold discussions in a

particular room or area, or to take a particular route to reach a

particular room or area, the request is not unreasonable only

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because it is not the room, area or route that the permit holder

would have chosen.

213 Limitation on rights--residential premises

This Division does not authorise a person to enter any part of

premises that is used for residential purposes.

214 Limitation on rights--permit conditions

(1) A permit holder's rights under this Division in respect of a permit

are subject to any conditions that apply to the permit.

(2) Subsection (1) does not apply to rights of a permit holder under an

order by the Commission under section 209.

215 Burden of proving reasonable grounds for suspecting breach

Whenever it is relevant to determine whether a permit holder had

reasonable grounds for suspecting a breach, as mentioned in

section 208, the burden of proving the existence of reasonable

grounds lies on the person asserting the existence of those grounds.

Division 5--Entry for OHS purposes

216 OHS entries to which this Division applies

(1) This Division has effect in relation to a right to enter premises

under an OHS law if:

(a) the premises are occupied or otherwise controlled by:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(b) the premises are located in a Territory; or

(d) the right relates to requirements to be met by:

(i) a constitutional corporation or the Commonwealth in its

capacity as an employer; or

(ii) an employee of a constitutional corporation or the

Commonwealth; or

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(iii) a contractor providing services for a constitutional

corporation or the Commonwealth; or

(e) the right relates to conduct engaged in, or activity undertaken

or controlled, by:

(i) a constitutional corporation or the Commonwealth in its

capacity as an employer; or

(ii) an employee of a constitutional corporation or the

Commonwealth; or

(iii) a contractor providing services for a constitutional

corporation or the Commonwealth; or

(f) the exercise of the right will have a direct effect on:

(i) a constitutional corporation or the Commonwealth in its

capacity as an employer; or

(ii) an employee of a constitutional corporation or the

Commonwealth; or

(iii) a contractor providing services for a constitutional

corporation or the Commonwealth.

(2) In this section:

constitutional corporation includes:

(a) a Commonwealth authority; and

(b) a body corporate incorporated in a Territory.

217 Permit required for OHS entry

(1) An official of an organisation who has a right under an OHS law to

enter premises must not exercise that right unless the official:

(a) holds a permit under this Part; and

(b) exercises the right during working hours.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 8 for enforcement.

218 Rights to inspect employment records after entering premises

(1) A person who:

(a) is required to enter premises under an OHS law in

accordance with section 217; and

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(b) has a right under the OHS law to inspect or otherwise access

employment records on the premises;

must not exercise the right unless he or she has complied with

subsection (2).

(2) At least 24 hours before the entry, the person must have given the

occupier of the premises written notice of his or her intention to

exercise the right and the reasons for doing so.

(3) Subsection (1) is a civil remedy provision.

Note:

See Division 8 for enforcement.

Definition

(4) In this section:

employment record means a record that relates to the employment

of a person.

219 Limitation on OHS entry--failure to comply with requests of

occupier

(1) A permit holder must not enter, or remain on, premises under an

OHS law unless the permit holder produces his or her permit for

inspection when requested to do so by the occupier of the premises.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 8 for enforcement.

(3) A permit holder must not enter, or remain on, premises under an

OHS law if:

(a) the occupier of the premises requests the permit holder to

comply with an occupational health and safety requirement

that applies to the premises; and

(b) the request is a reasonable request; and

Note:

The Commission may make an order under section 232 if the request

is unreasonable.

(4) Subsection (3) is a civil remedy provision.

Note:

See Division 8 for enforcement.

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220 Limitation on OHS entry--permit conditions

A permit holder's right to enter premises under an OHS law in

accordance with section 217 is subject to any conditions that apply

to the permit.

Division 6--Right of entry to hold discussions with

employees

221 Right of entry to hold discussions with employees

A permit holder for an organisation may enter premises for the

purposes of holding discussions with any eligible employees who

wish to participate in those discussions. For this purpose, eligible

employee means any employee who:

(a) on the premises, carries out work that is covered by an award

or collective agreement that is binding on the permit holder's

organisation; and

(b) is a member of the permit holder's organisation or is eligible

to become a member of that organisation.

222 Limitation on rights--times of entry and discussions

The permit holder may only enter the premises under section 221

during working hours and may only hold the discussions during the

employees' mealtime or other breaks.

223 Limitation on rights--conscientious objection certificates

(1) This Division does not authorise entry to premises, or subsequent

conduct on the premises, if all of the following conditions are

satisfied:

(a) no more than 20 employees are employed to work at the

premises;

(b) all the employees at the premises are employed by an

employer who is the holder of a conscientious objection

certificate in force under section 180 of the Registration and

Accountability of Organisations Schedule, that has been

endorsed by a Registrar under subsection (2) of this section,

or under section 285C of the repealed Part IX;

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of an organisation.

(2) A Registrar may, on the application of an employer, endorse a

certificate issued to that employer under section 180 of the

Registration and Accountability of Organisations Schedule if the

Registrar is satisfied that the employer is a practising member of a

religious society or order whose doctrines or beliefs preclude

membership of an organisation or body other than the religious

society or order of which the employer is a member.

(3) An application under subsection (2) may be made at the time of an

application under section 180 of the Registration and

Accountability of Organisations Schedule or at any later time.

(4) The endorsement of a Registrar under subsection (2) remains in

force for the period that the certificate remains in force.

Note:

A certificate issued under section 180 of the Registration and

Accountability of Organisations Schedule remains in force for the

period (not exceeding 12 months) specified in the certificate, but may

be renewed. A Registrar's endorsement under subsection (2) does not

remain in force when a certificate is renewed, but a new application

for endorsement may be made.

224 Limitation on rights--entry notice

This Division does not authorise entry to premises, or subsequent

conduct on the premises, unless all the following conditions are

satisfied:

(a) the permit holder gave an entry notice to the occupier of the

premises at least 24 hours, but not more than 14 days, before

the entry;

(b) the entry notice specifies section 221 as the section that

authorises the entry;

225 Limitation on rights--residential premises

This Division does not authorise a person to enter any part of

premises that is used for residential purposes.

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226 Limitation on rights--failure to comply with requests of

occupier or affected employer

(1) This Division does not authorise a permit holder to enter, or remain

on, premises if the permit holder fails to produce the permit

holder's authority documents for inspection when requested to do

so by an affected employer or by the occupier of the premises.

(2) This Division does not authorise a permit holder to enter, or remain

on, premises if:

(a) an affected employer or the occupier of the premises requests

the permit holder to comply with an occupational health and

safety requirement that applies to the premises; and

(b) the request is a reasonable request; and

Note:

The Commission may make an order under section 232 if the request

is unreasonable.

(3) This Division does not authorise a permit holder to enter, or remain

on, premises if:

(a) an affected employer or the occupier of the premises requests

the permit holder to do either or both of the following:

(i) to hold discussions in a particular room or area of the

premises;

(ii) to take a particular route to reach a particular room or

area of the premises; and

(b) the request is a reasonable request; and

Note:

The Commission may make an order under section 232 if the request

is unreasonable.

(4) For the purposes of subsection (3), if an affected employer or the

occupier requests the permit holder to hold discussions in a

particular room or area, or to take a particular route to reach a

particular room or area, the request is not unreasonable only

because it is not the room, area or route that the permit holder

would have chosen.

227 Limitation on rights--permit conditions

A permit holder's rights under this Division in respect of a permit

are subject to any conditions that apply to the permit.

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Division 7--Prohibitions

228 Hindering, obstruction etc. in relation to this Part

(1) A permit holder exercising, or seeking to exercise, rights:

(a) under section 208, 209 or 221; or

(b) under an OHS law in accordance with section 217 or 218;

must not intentionally hinder or obstruct any person, or otherwise

act in an improper manner.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 8 for enforcement.

(3) A person must not refuse or unduly delay entry to premises by a

permit holder who is entitled to enter the premises:

(a) under section 208, subsection 209(8) or (10) or section 221;

(b) under an OHS law in accordance with section 217.

(4) Subsection (3) is a civil remedy provision.

Note:

See Division 8 for enforcement.

(5) An employer must not refuse or fail to comply with a requirement

under subsection 209(4) or (5).

(6) Subsection (5) is a civil remedy provision.

Note:

See Division 8 for enforcement.

(7) A person must not otherwise intentionally hinder or obstruct a

permit holder exercising rights:

(a) under section 208, 209 or 221; or

(b) under an OHS law in accordance with section 217 or 218.

(8) Subsection (7) is a civil remedy provision.

Note:

See Division 8 for enforcement.

(9) To avoid doubt, a failure to agree on a place as mentioned in

paragraph 209(5)(a) does not constitute hindering or obstructing a

permit holder exercising rights under section 209.

(10) Without limiting subsection (7), that subsection:

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(a) extends to hindering or obstructing that occurs after the entry

notice is given but before the permit holder enters the

premises; and

(b) applies whether or not the person who is hindering or

obstructing knows at the time which permit holder will be

exercising the rights in respect of the entry notice.

Note:

For example, if an entry notice is given to the occupier and a person

then destroys, conceals or manufactures evidence relating to the

suspected breach, that conduct would amount to hindering or

obstructing.

229 Misrepresentations about right of entry

(1) A person must not, in the circumstances mentioned in

subsection (2), engage in conduct:

(a) with the intention of giving a second person the impression;

(b) reckless as to whether a second person would get the

impression;

that the first person, or a third person, is authorised by this Part to

do a particular thing.

(2) The circumstances are:

(a) the first person or the third person (as the case requires) is not

authorised by this Part to do that thing; and

(b) the first person knows, or has reasonable grounds to believe,

that the first person or the third person (as the case requires)

is not authorised by this Part to do that thing.

(3) Subsection (1) is a civil remedy provision.

Note:

See Division 8 for enforcement.

Division 8--Enforcement

230 Penalties etc. for contravention of civil remedy provisions

(1) The Court, on application by an eligible person, may make one or

more of the following orders in relation to a person (the defendant)

who has contravened a civil remedy provision of this Part:

(a) an order imposing a pecuniary penalty on the defendant;

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(b) an order requiring the defendant to pay a specified amount to

another person as compensation for damage suffered by the

other person as a result of the contravention;

(2) The maximum pecuniary penalty under paragraph (1)(a) is 300

penalty units if the defendant is a body corporate and otherwise 60

penalty units.

(3) The orders that may be made under paragraph (1)(c) include:

(a)

injunctions;

and

(b) any other orders that the Court considers necessary to stop

the conduct or remedy its effects.

(4) Each of the following is an eligible person for the purposes of this

section:

(a) a workplace inspector;

(b) a person affected by the contravention;

paragraph.

(5) A regulation prescribing persons for the purposes of

paragraph (4)(c) may provide that a person is prescribed only in

relation to circumstances specified in the regulation.

Note:

Division 4 of Part VIII contains other provisions relevant to civil

remedies.

Division 9--Powers of the Commission

231 Orders by Commission for abuse of system

(1) If the Commission is satisfied that an organisation, or any official

of an organisation, has abused the rights conferred by this Part,

then the Commission may make whatever orders it considers

appropriate to restrict the rights of the organisation, or officials of

the organisation, under this Part.

(2) The Commission may make the orders:

(a) on its own initiative; or

(b) on application by a workplace inspector.

(3) The orders may include:

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(a) an order that revokes or suspends some or all of the permits

that have been issued in respect of the organisation; and

(b) an order that imposes limiting conditions on some or all of

the permits that have been issued in respect of the

organisation or that might in future be issued in respect of the

organisation; and

in respect of the organisation, either generally or to specified

persons.

For the purposes of this subsection, limiting condition means a

condition that limits the circumstances in which a permit has

effect.

(4) An organisation, or an official of an organisation, who is subject to

an order under this section must comply with the order.

(5) Subsection (4) is a civil remedy provision.

Note:

See Division 8 for enforcement.

(6) The powers of the Commission under this section are exercisable

by:

(a) the President; or

(b) a Presidential Member assigned by the President for the

purposes of the matter concerned; or

(7) Without limiting subsection (1), a permit holder abuses rights

conferred by this Part if, in exercising rights under Division 6, the

permit holder engages in recruitment conduct that is unduly

disruptive, either because the permit holder's exercise of powers of

entry is excessive in the circumstances or for some other reason.

(8) In this section:

recruitment conduct means encouraging employees to become

members of an organisation.

232 Unreasonable requests by occupier or affected employer

(1) If the Commission is satisfied that:

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(a) an affected employer or the occupier of premises has made a

request to a permit holder as mentioned in section 212, 219

or 226; and

(b) the request is not a reasonable request;

then the Commission may make whatever orders it considers

appropriate in respect of the rights of the organisation, or officials

of the organisation, to investigate breaches as mentioned in

section 208, to enter premises under an OHS law in accordance

with section 217 or to hold discussions with employees as

mentioned in section 221, as the case requires.

Note:

Unreasonable requests might amount to a breach of subsection 228(7).

(2) Without limiting subsection (1), the Commission may order that,

for a specified period, the permit holder who was exercising or

seeking to exercise rights under section 209 or 221 or under an

OHS law in accordance with section 217 or 218 is entitled to enter

specified premises, or a specified part of specified premises, for a

specified period, and exercise those rights.

(3) The powers of the Commission under this section are exercisable

by:

(a) the President; or

(b) a Presidential Member assigned by the President for the

purposes of the matter concerned; or

(4) The Commission may make an order under this section on its own

initiative or on application in accordance with the regulations.

233 Disputes about the operation of this Part

(1) The Commission may make orders for the purposes of settling

disputes about the operation of this Part.

(2) The Commission may make orders under subsection (1) on

application by:

(a) a permit holder; or

(b) a permit holder's organisation; or

(d) an occupier of, or an employer who employs employees who

carry out work on, OHS premises.

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(3) In making orders under subsection (1), the Commission:

(a) must have regard to fairness between the parties concerned;

and

(b) must not confer rights that are additional to, or inconsistent

with, rights exercisable under this Part.

(4) However, the Commission does have power, under subsection (1),

to:

(a) revoke or suspend a permit issued to a person under this Part;

(b) impose limiting conditions on a permit issued to a person

under this Part.

If the Commission does so, it may make any order that it considers

appropriate, for the purpose of settling the dispute, about the issue

of any further permit to the person, or of any permit or further

permit to any other person, under this Part.

(5) In this section:

limiting condition means a condition that limits the circumstances

in which a permit has effect.

OHS premises means premises in relation to which a person must

hold a permit in order to exercise a right of entry under an OHS

law.

234 Powers of inspection

(1) For the purposes of dealing with a proceeding under this Part, a

member of the Commission may at any time during working hours

do one or more of the following:

(a) enter prescribed premises;

(b) inspect or view any work, material, machinery, appliance,

article, document or other thing on the prescribed premises;

usually engaged in work on the prescribed premises.

(2) In this section:

prescribed premises means premises in relation to which a person

must hold a permit in order to exercise a right of entry under:

(a) this Part; or

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(b) an OHS law.

235 Parties to proceedings

The Commission may direct that parties be joined or struck out as

parties to proceedings under this Part.

236 Kinds of orders

The orders that the Commission may make under this Part include

the following:

(a) orders by consent of the parties to the proceedings;

(b) provisional or interim orders;

the effect that engaging in conduct in breach of a specified

term of the order is to be taken to constitute the commission

of a separate breach of the term on each day on which the

conduct continues.

237 Relief not limited to claim

In making an order in proceedings under this Part, the Commission

is not restricted to the specific relief claimed by the parties

concerned, but may include in the order anything which the

Commission considers necessary or expedient for the purposes of

dealing with the proceeding.

238 Publishing orders

(1) If the Commission makes an order under this Part, the Commission

must promptly:

(a) reduce the order to writing that:

(i) is signed by at least one member of the Commission;

and

(ii) shows the day on which it is signed; and

(b) give to a Registrar:

(i) a copy of the order; and

(ii) a list specifying each party who appeared at the hearing

of the proceeding concerned.

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422 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(2) The Commission must ensure that an order under this Part is

expressed in plain English and is easy to understand in structure

and content.

(3) A Registrar who receives a copy of an order under subsection (1)

must promptly:

(a) provide a copy of:

(i) the order; and

(ii) any written reasons received by the Registrar for the

order;

to each party shown on the list given to the Registrar under

subparagraph (1)(b)(ii); and

(b) ensure that copies of each of the following are available for

inspection at each registry:

(i)

the

order;

(ii) any written reasons received by the Registrar for the

order.

(4) The Industrial Registrar must ensure that the following are

published as soon as practicable:

(a) an order under this Part;

(b) any written reasons for the order that are received by a

Registrar.

(5) If a member of the Commission ceases to be a member:

(a) after an order under this Part has been made by the

Commission constituted by the member; but

(b) before the order has been reduced to writing or before it has

been signed by the member;

a Registrar must reduce the order to writing, sign it and seal it with

the seal of the Commission, and the order has effect as if it had

been signed by the member of the Commission.

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Part XA--Freedom of association

Division 1--Preliminary

239 Objects of Part

In addition to the object set out in section 3, this Part has the

following objects:

(a) to ensure that employers, employees and independent

contractors are free to become, or not become, members of

industrial associations;

(b) to ensure that employers, employees and independent

contractors are not discriminated against or victimised

because they are, or are not, members or officers of industrial

associations;

independent contractors who are prevented or inhibited from

exercising their rights to freedom of association;

(d) to provide effective remedies to penalise and deter persons

who engage in conduct which prevents or inhibits employers,

employees or independent contractors from exercising their

rights to freedom of association.

240 Definitions

(1) In this Part:

bargaining services means services provided by (or on behalf of)

an industrial association in relation to an agreement, or a proposed

agreement, under Part VB (including the negotiation, making,

approval, lodgment, operation, extension, variation or termination

of the agreement).

bargaining services fee means a fee (however described) payable:

(a) to an industrial association; or

(b) to someone else in lieu of an industrial association;

wholly or partly for the provision, or purported provision, of

bargaining services, but does not include membership dues.

Commonwealth place means a place referred to in paragraph 52(i)

of the Constitution, other than the seat of government.

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424 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

conduct includes an omission.

Court means the Federal Court of Australia or the Federal

Magistrates Court.

industrial association means:

(a) an association of employees and/or independent contractors,

or an association of employers, that is registered or

recognised as such an association (however described) under

an industrial law; or

(b) an association of employees and/or independent contractors a

principal purpose of which is the protection and promotion of

their interests in matters concerning their employment, or

their interests as independent contractors, as the case

requires; or

the protection and promotion of their interests in matters

concerning employment and/or independent contractors;

and includes a branch of such an association, and an organisation.

industrial body means:

(a) the Commission; or

(b) a court or commission, however designated, exercising under

an industrial law powers and functions corresponding to

those conferred on the Commission by this Act; or

an industrial law powers and functions corresponding to

those conferred on the Commission by the Registration and

Accountability of Organisations Schedule.

industrial instrument means an award or agreement, however

designated, that:

(a) is made under or recognised by an industrial law; and

(b) concerns the relationship between an employer and the

employer's employees, or provides for the prevention or

settlement of a dispute between an employer and the

employer's employees.

industrial law means this Act, the Registration and Accountability

of Organisations Schedule or a law, however designated, of the

Commonwealth or of a State or Territory that regulates the

relationships between employers and employees or provides for the

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prevention or settlement of disputes between employers and

employees.

objectionable provision has the meaning given by section 271.

office, in relation to an organisation or industrial association or a

branch of an organisation or industrial association, has the meaning

given by section 242.

officer, in relation to an industrial association, means:

(a) a person who holds an office in the association; or

(b) a delegate or other representative of the association; or

organisation includes a branch of an organisation.

threat means a threat of any kind, whether direct or indirect and

whether express or implied.

(2) For the purposes of this Part, the following conduct is taken to be

conduct of an industrial association:

(a) conduct of the committee of management of the industrial

association;

(b) conduct of an officer or agent of the industrial association

acting in that capacity;

association where the conduct is authorised by:

(i) the rules of the industrial association; or

(ii) the committee of management of the industrial

association; or

(iii) an officer or agent of the industrial association acting in

that capacity;

(d) conduct of a member of the industrial association, who

performs the function of dealing with an employer on behalf

of the member and other members of the industrial

association, acting in that capacity.

(3) Paragraphs (2)(c) and (d) do not apply if:

(a) a committee of management of the industrial association; or

(b) a person authorised by the committee; or

has taken reasonable steps to prevent the action.

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426 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(4) A reference in this Part, or in regulations made for the purposes of

this Part, to an independent contractor is not confined to a natural

person.

241 Meaning of industrial action

For the purposes of this Part, section 106A has effect as if the

words employer, employee and employment had their ordinary

meaning.

242 Meaning of office

(1) In this Part:

office, in relation to an association, means:

(a) an office of president, vice president, secretary or assistant

secretary of the association; or

(b) the office of a voting member of a collective body of the

association, being a collective body that has power in relation

to any of the following functions:

(i) the management of the affairs of the association;

(ii) the determination of policy for the association;

(iii) the making, alteration or rescission of rules of the

association;

(iv) the enforcement of rules of the association, or the

performance of functions in relation to the enforcement

of such rules; or

association, entitled to participate directly in any of the

functions referred to in subparagraphs (b)(i) and (iv), other

than an office the holder of which participates only in

accordance with directions given by a collective body or

another person for the purpose of implementing:

(i) existing policy of the association; or

(ii) decisions concerning the association; or

(d) an office the holder of which is, under the rules of the

association, entitled to participate directly in any of the

functions referred to in subparagraphs (b)(ii) and (iii); or

(e) the office of a person holding (whether as trustee or

otherwise) property:

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(i) of the association; or

(ii) in which the association has a beneficial interest.

(2)

subsection

(1):

association means an organisation or branch of an organisation, or

an industrial association or branch of an industrial association.

(3) A reference in this Part to an office in an organisation or industrial

association includes a reference to an office in a branch of the

organisation or association.

Division 2--Conduct to which this Part applies

243 Application

Divisions 3 to 8 of this Part apply only to the extent provided in

this Part.

244 Organisations

This Part applies to:

(a) conduct by an organisation; and

(b) conduct by an officer of an organisation acting in that

capacity; and

person's membership or non-membership of an organisation.

245 Matters arising under this Act or the Registration and

Accountability of Organisations Schedule

(1) This Part applies to conduct carried out with a purpose or intent

relating to a person's participation or non-participation (in any

capacity) in:

(a) any proceedings under this Act; or

(b) any other activity provided for by this Act; or

Organisations Schedule; or

(d) any other activity provided for by the Registration and

Accountability of Organisations Schedule.

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428 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(2) This Part applies to conduct carried out with a purpose or intent

relating to:

(a) the fact that an award or a workplace agreement applies to a

person's employment; or

(b) the fact that a person is bound by an award or a workplace

agreement.

246 Constitutional corporations

(1) This Part applies to the following conduct:

(a) conduct by a constitutional corporation;

(b) conduct against a constitutional corporation;

(d) conduct carried out with intent to adversely affect a

constitutional corporation;

(e) conduct that directly affects a person in the capacity of:

(i) an employee, or prospective employee, of a

constitutional corporation; or

(ii) a contractor, or prospective contractor, of a

constitutional corporation;

(f) conduct carried out with intent to directly affect a person in

the capacity of:

(i) an employee, or prospective employee, of a

constitutional corporation; or

(ii) a contractor, or prospective contractor, of a

constitutional corporation;

(g) conduct that consists of advising, encouraging or inciting a

constitutional corporation:

(i) to take, or not to take, particular action in relation to

another person; or

(ii) to threaten to take, or not to take, particular action in

relation to another person.

(2) In this section:

constitutional corporation includes a body corporate incorporated

in a Territory.

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247 Commonwealth and Commonwealth authorities

This Part applies to the following conduct:

(a) conduct by the Commonwealth or a Commonwealth

authority;

(b) conduct that affects, or is carried out with intent to affect, the

Commonwealth, or a Commonwealth authority, in its

relationships with its employees or contractors;

person in the capacity of an employee or contractor of the

Commonwealth or of a Commonwealth authority.

248 Territories and Commonwealth places

This Part applies to conduct in a Territory or a Commonwealth

place.

249 Extraterritorial extension

In Australia's exclusive economic zone

(1) This Part, and the rest of this Act so far as it relates to this Part,

extend to the following conduct in Australia's exclusive economic

zone:

(a)

conduct

that:

(i) is by a registered organisation, an Australian-based

employee or a group of persons including either a

registered organisation or an Australian-based

employee; and

(ii) affects adversely, or is intended to affect adversely, an

Australian employer;

(b)

conduct

that:

(i) is by an Australian employer or a group including an

Australian employer; and

(ii) affects adversely, or is intended to affect adversely, an

Australian-based employee, whether alone or with other

persons;

adversely, either an independent contractor who has a

connection with Australia that is prescribed for the purposes

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of this paragraph or a group including such an independent

contractor.

On Australia's continental shelf outside exclusive economic zone

(2) This Part, and the rest of this Act so far as it relates to this Part,

extend to the following conduct outside the outer limits of

Australia's exclusive economic zone and in, on or over a part of

Australia's continental shelf prescribed by the regulations for the

purposes of this subsection:

(a)

conduct

that:

(i) is by a registered organisation, an Australian-based

employee or a group of persons including either a

registered organisation or an Australian-based

employee; and

(ii) affects adversely, or is intended to affect adversely, an

Australian employer; and

(iii) meets the requirements prescribed by the regulations for

that part of Australia's continental shelf;

(b)

conduct

that:

(i) is by an Australian employer or a group including an

Australian employer; and

(ii) affects adversely, or is intended to affect adversely, an

Australian-based employee, whether alone or with other

persons; and

(iii) meets the requirements prescribed by the regulations for

that part of Australia's continental shelf;

(c)

conduct

that:

(i) affects adversely, or is intended to affect adversely,

either an independent contractor who has a connection

with Australia that is prescribed for the purposes of this

subparagraph or a group including such an independent

contractor; and

(ii) meets the requirements prescribed by the regulations for

that part of Australia's continental shelf.

Note:

The regulations may prescribe different requirements relating to

different parts of Australia's continental shelf. The regulations may

need to do so to give effect to Australia's international obligations.

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Outside Australia's exclusive economic zone and continental shelf

(3) This Part, and the rest of this Act so far as it relates to this Part,

extend to the following conduct outside Australia and neither in

Australia's exclusive economic zone nor in, on or over a part of

Australia's continental shelf described in subsection (2):

(a)

conduct

that:

(i) is by a registered organisation, an Australian-based

employee or a group of persons including either a

registered organisation or an Australian-based

employee; and

(ii) affects adversely, or is intended to affect adversely, an

Australian employer;

(b)

conduct

that:

(i) is by an Australian employer or a group including an

Australian employer; and

(ii) affects adversely, or is intended to affect adversely, an

Australian-based employee, whether alone or with other

persons;

adversely, either an independent contractor who has a

connection with Australia that is prescribed for the purposes

of this paragraph or a group including such an independent

contractor.

Definition

(4) In this section:

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

Division 3--General prohibitions relating to freedom of

association

250 Coercion

(1) A person must not organise or take, or threaten to organise or take,

any action against another person with intent to coerce the other

person or a third person:

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(a) to become, or not become, an officer or member of an

industrial association; or

(b) to remain, or cease to be, an officer or member of an

industrial association.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

251 False or misleading statements about membership

(1) A person must not make a false or misleading representation about:

(a) another person's obligation:

(i) to be, or become, an officer or member of an industrial

association; or

(ii) not to be, not to become or to cease to be, an officer or

member of an industrial association; or

(b) another person's obligation to disclose whether he or she, or

a third person, is, or has been, an officer or member of an

industrial association or of a particular industrial association;

member of an industrial association, or of a particular

industrial association, in order for the other person to obtain

the benefit of an industrial instrument.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

252 Industrial action for reasons relating to membership

(1) A person must not organise or take, or threaten to organise or take,

industrial action against another person for the reason that, or for

reasons that include the reason that, a person:

(a) is, has been, proposes to become or has at any time proposed

to become an officer or member of an industrial association;

(b) is not, does not propose to become or proposes to cease to be,

an officer or member of an industrial association.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

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Division 4--Conduct by employers etc.

253 Dismissal etc. of members of industrial associations etc.

(1) An employer must not, for a prohibited reason, or for reasons that

include a prohibited reason, do or threaten to do any of the

following:

(a) dismiss an employee;

(b) injure an employee in his or her employment;

prejudice;

(d) refuse to employ another person as an employee;

(e) discriminate against another person in the terms or conditions

on which the employer offers to employ the other person as

an employee.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

(3) For the purposes of paragraph (1)(d), an employer does not refuse

to employ another person if the employer does not intend to

employ anyone.

(4) A person must not, for a prohibited reason, or for reasons that

include a prohibited reason, do or threaten to do any of the

following:

(a) terminate a contract for services that he or she has entered

into with an independent contractor;

(b) injure the independent contractor in relation to the terms and

conditions of the contract for services;

independent contractor's prejudice;

(d) refuse to engage another person as an independent contractor;

(e) discriminate against another person in the terms or conditions

on which the person offers to engage the other person as an

independent contractor.

(5) Subsection (4) is a civil remedy provision.

Note:

See Division 9 for enforcement.

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(6) For the purposes of paragraph (4)(d), a person does not refuse to

engage another person if the person does not intend to engage

anyone.

254 Prohibited reasons

(1) Conduct referred to in subsection 253(1) or (4) is for a prohibited

reason if it is carried out because the employee, independent

contractor or other person concerned:

(a) is, has been, proposes to become or has at any time proposed

to become an officer, delegate or member of an industrial

association; or

(b) is not, does not propose to become or proposes to cease to be,

a member of an industrial association; or

independent contractor--has one or more employees who are

not, or do not propose to become, members of an industrial

association; or

(d) has not paid, or does not propose to pay, a fee (however

described) to an industrial association; or

(e) has refused or failed to join in industrial action; or

(f) in the case of an employee--has refused or failed to agree or

consent to, or vote in favour of, the making of an agreement

to which an industrial association of which the employee is a

member would be a party; or

(g) has made, proposes to make or has at any time proposed to

make an application to an industrial body for an order under

an industrial law for the holding of a secret ballot; or

(h) has participated in, proposes to participate in or has at any

time proposed to participate in a secret ballot ordered by an

industrial body under an industrial law; or

(i) is entitled to the benefit of an industrial instrument, an order

of an industrial body or the Australian Fair Pay and

Conditions Standard; or

(j) has made or proposes to make any inquiry or complaint to a

person or body having the capacity under an industrial law to

seek:

(i) compliance with that law; or

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(ii) the observance of a person's rights under an industrial

instrument; or

(k) has participated in, proposes to participate in or has at any

time proposed to participate in a proceeding under an

industrial law; or

(l) has given or proposes to give evidence in a proceeding under

an industrial law; or

(m) in the case of an employee, or an independent contractor,

who is a member of an industrial association that is seeking

better industrial conditions--is dissatisfied with his or her

conditions; or

(n) in the case of an employee or an independent contractor--has

absented himself or herself from work without leave if:

(i) the absence was for the purpose of carrying out duties or

exercising rights as an officer of an industrial

association; and

(ii) the employee or independent contractor applied for

leave before absenting himself or herself and leave was

unreasonably refused or withheld; or

(o) as an officer or member of an industrial association, has

done, or proposes to do, an act or thing for the purpose of

furthering or protecting the industrial interests of the

industrial association, being an act or thing that is:

(i)

lawful;

and

(ii) within the limits of an authority expressly conferred on

the employee, independent contractor or other person by

the industrial association under its rules; or

(p) in the case of an employee or independent contractor--has

not paid, has not agreed to pay, or does not propose to pay, a

bargaining services fee.

(2)

If:

(a) a threat is made to engage in conduct referred to in

subsection 253(1) or (4); and

(b) one of the prohibited reasons in subsection (1) of this section

refers to a person doing or proposing to do a particular act, or

not doing or proposing not to do a particular act; and

the person from doing the act, or coercing the person to do

the act, as the case requires;

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436 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

the threat is taken to have been made for that prohibited reason.

255 Inducements to cease membership etc. of industrial associations

etc.

(1) An employer, or a person who has engaged an independent

contractor, must not (whether by threats or promises or otherwise)

induce an employee, or the independent contractor, as the case

requires:

(a) to become an officer or member of an industrial association;

(b) to remain an officer or member of an industrial association;

association; or

(d) to cease to be an officer or member of an industrial

association.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

Division 5--Conduct by employees etc.

256 Cessation of work

(1) An employee or independent contractor must not cease work in the

service of his or her employer, or of the person who engaged the

independent contractor, as the case requires, because the employer

or person:

(a) is an officer or member of an industrial association; or

(b) is entitled to the benefit of an industrial instrument or an

order of an industrial body; or

person or body having the capacity under an industrial law to

seek:

(i) compliance with that law; or

(ii) the observance of a person's rights under an industrial

instrument; or

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(d) has participated in, proposes to participate in or has at any

time proposed to participate in any proceedings under an

industrial law; or

(e) has given evidence in a proceeding under an industrial law.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

Division 6--Conduct by industrial associations etc.

257 Industrial associations acting against employers

(1) An industrial association, or an officer or member of an industrial

association, must not organise or take, or threaten to organise or

take, industrial action against an employer because the employer is

an officer or member of an industrial association.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

(3) An industrial association, or an officer or member of an industrial

association, must not organise or take, or threaten to organise or

take, industrial action against an employer with intent to coerce the

employer:

(a) to become an officer or member of an industrial association;

(b) to remain an officer or member of an industrial association;

association; or

(d) to cease to be an officer or member of an industrial

association; or

(e) to pay a fee (however described) to an industrial association.

(4) Subsection (3) is a civil remedy provision.

Note:

See Division 9 for enforcement.

(5) An industrial association, or an officer or member of an industrial

association, must not:

(a) advise, encourage or incite an employer; or

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438 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) organise or take, or threaten to organise or take, industrial

action against an employer with intent to coerce the

employer;

to take action in relation to a person that would, if taken,

contravene subsection 253(1).

(6) Subsection (5) is a civil remedy provision.

Note:

See Division 9 for enforcement.

(7) An industrial association, or an officer or member of an industrial

association, must not, because a member of the association has

refused or failed to comply with a direction given by the

association:

(a) advise, encourage or incite an employer; or

(b) organise or take, or threaten to organise or take, industrial

action against an employer with intent to coerce the

employer;

to prejudice the member in the member's employment or possible

employment.

(8) Subsection (7) is a civil remedy provision.

Note:

See Division 9 for enforcement.

258 Industrial associations acting against employees etc.

(1) An industrial association, or an officer or member of an industrial

association, must not take, or threaten to take, action having the

effect, directly or indirectly, of prejudicing a person in the person's

employment, or prospective employment, with intent:

(a) to coerce the person to join in industrial action; or

(b) to dissuade or prevent the person from making an application

to an industrial body for an order under an industrial law for

the holding of a secret ballot.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

(3) An industrial association, or an officer or member of an industrial

association, must not:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 439

(a) take, or threaten to take, action having the effect, directly or

indirectly, of prejudicing a person in the person's

employment or prospective employment; or

(b) advise, encourage or incite a person to take action having the

effect, directly or indirectly, of prejudicing another person in

the other person's employment or prospective employment;

for any of the following reasons, or for reasons that include any of

the following reasons:

propose to pay, a bargaining services fee;

(d) the person is, has been, proposes to become, or has at any

time proposed to become, an officer or member of an

industrial association;

(e) the person is not, does not propose to become or proposes to

cease to be, a member of an industrial association;

(f) the person has not paid, has not agreed to pay, or does not

propose to pay, a fee (however described) to an industrial

association;

(g) the person has refused or failed to join in industrial action;

(h) the person has made, or proposes to make, any inquiry or

complaint to a person or body having the capacity under an

industrial law to seek:

(i) compliance with that law; or

(ii) the observance of a person's rights under an industrial

instrument.

(4) Subsection (3) is a civil remedy provision.

Note:

See Division 9 for enforcement.

259 Industrial associations acting against members

(1) An industrial association, or an officer or member of an industrial

association, must not impose, or threaten to impose, a penalty,

forfeiture or disability of any kind on a member of the association:

(a) with intent to coerce the member to join in industrial action;

(b)

because

the

member

has refused or failed to join in industrial

action; or

any time proposed to make, an application to an industrial

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440 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

body for an order under an industrial law for the holding of a

secret ballot; or

(d) because the member has participated in, proposes to

participate in, or has at any time proposed to participate in, a

secret ballot ordered by an industrial body under an industrial

law; or

(e) because the member has made, or proposes to make, any

inquiry or complaint to a person or body having the capacity

under an industrial law to seek:

(i) compliance with that law; or

(ii) the observance of a person's rights under an industrial

instrument; or

(f) because the member has refused or failed to agree or consent

to, or vote in favour of, the making of an agreement to which

the industrial association would be a party; or

(g) because the member has participated in, proposes to

participate in, or has at any time proposed to participate in, a

proceeding under an industrial law; or

(h) because the member has given, or proposes to give, evidence

in a proceeding under an industrial law.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

260 Industrial associations acting against independent contractors

etc.

(1) In this section:

discriminatory action, in relation to an eligible person, means:

(a) a refusal to make use of, or to agree to make use of, services

offered by the eligible person; or

(b) a refusal to supply, or to agree to supply, goods or services to

the eligible person; or

eligible person means a person who is not an employee, but who:

(a) is eligible to become a member of an industrial association;

(b) would be eligible to become a member of an industrial

association if he or she were an employee.

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(2) An industrial association, or an officer or member of an industrial

association, must not:

(a) advise, encourage or incite a person (whether an employer or

not) to take discriminatory action against an eligible person

because the eligible person, or any person employed or

engaged by the eligible person:

(i) is, has been, proposes to become or has at any time

proposed to become, a member of an industrial

association; or

(ii) is not, proposes not to become or proposes to cease to

be, a member of an industrial association; or

(iii) is a member of an industrial association who has refused

or failed to comply with a direction given by the

association; or

(iv) has not paid, or does not propose to pay, a fee (however

described) to an industrial association; or

(v) has made or proposes to make any inquiry or complaint

to a person or body having the capacity under an

industrial law to seek compliance with that law; or

(vi) has made or proposes to make any inquiry or complaint

to a person or body having the capacity under an

industrial law to seek the observance of a person's

rights under an industrial instrument; or

(b) take, or threaten to take, industrial action against a person

(whether an employer or not) with intent to coerce the person

to take discriminatory action against an eligible person

because the eligible person, or any person employed or

engaged by the eligible person:

(i) is, has been, proposes to become or has at any time

proposed to become, a member of an industrial

association; or

(ii) is not, proposes not to become or proposes to cease to

be, a member of an industrial association; or

(iii) is a member of an industrial association who has refused

or failed to comply with a direction given by the

association; or

(iv) has not paid, or does not propose to pay, a fee (however

described) to an industrial association; or

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(v) has made or proposes to make any inquiry or complaint

to a person or body having the capacity under an

industrial law to seek compliance with that law; or

(vi) has made or proposes to make any inquiry or complaint

to a person or body having the capacity under an

industrial law to seek the observance of a person's

rights under an industrial instrument; or

person with intent to coerce the eligible person, or any person

employed or engaged by the eligible person:

(i) to become, or to remain, a member of an industrial

association; or

(ii) not to become, or not to remain, a member of an

industrial association; or

(iii) to comply with a direction given by the association.

(3) Subsection (2) is a civil remedy provision.

Note:

See Division 9 for enforcement.

(4) For the avoidance of doubt, nothing in subsection (2) prevents an

industrial association from entering into an agreement or

arrangement with another person for the supply of goods or

services to members of the industrial association (including the

supply on particular terms or conditions).

(5) An industrial association, or an officer or member of an industrial

association, must not:

(a) advise, encourage or incite a person (whether an employer or

not) to take discriminatory action against an eligible person

for a prohibited reason; or

(b) take, or threaten to take, industrial action against a person

(whether an employer or not) with intent to coerce the person

to take discriminatory action against an eligible person for a

prohibited reason; or

person for a prohibited reason.

(6) Subsection (5) is a civil remedy provision.

Note:

See Division 9 for enforcement.

(7) Conduct mentioned in subsection (5) is carried out for a prohibited

reason if it is carried out because the eligible person concerned has

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not paid, has not agreed to pay, or does not propose to pay, a

bargaining services fee.

261 Industrial associations acting against independent contractors

etc. to encourage contraventions

(1) An industrial association, or an officer or member of an industrial

association, must not:

(a) advise, encourage or incite a person; or

(b) organise or take, or threaten to organise or take, industrial

action against a person with intent to coerce the person;

to take action in relation to another person that would, if taken,

contravene subsection 253(4).

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

262 Industrial associations not to demand bargaining services fee

(1) An industrial association, or an officer or member of an industrial

association, must not demand (whether orally or in writing)

payment of a bargaining services fee from another person.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

(3) Nothing in this section prevents an industrial association from

demanding payment of a bargaining services fee that is payable to

the association under a contract for the provision of bargaining

services.

(4) In this section:

demand includes:

(a) purport to demand; and

(b) have the effect of demanding; and

263 Action to coerce person to pay bargaining services fee

(1) An industrial association, or an officer or member of an industrial

association, must not take, or threaten to take, action against

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444 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

another person with intent to coerce the person, or a third person,

to pay a bargaining services fee.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

264 Industrial associations not prevented from entering contracts

To avoid doubt, nothing in this Division prevents an industrial

association from entering into a contract for the provision of

bargaining services with a person who is not a member of the

association.

Division 7--Conduct in relation to industrial instruments

265 Discrimination against employer in relation to industrial

instruments

(1) A person (the first person) must not discriminate against another

person (the second person) on the ground that:

(a) the employment of the second person's employees is

covered, or is not covered, by:

(i) the Australian Fair Pay and Conditions Standard; or

(ii) a particular kind of industrial instrument; or

(iii) an industrial instrument made with a particular person;

(b) it is proposed that the employment of the second person's

employees be covered, or not be covered, by:

(i) a particular kind of industrial instrument; or

(ii) an industrial instrument made with a particular person.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

(3) Subsection (1) does not apply to conduct that is protected action

(within the meaning of section 108).

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 445

Division 8--False or misleading representations about

bargaining services fees etc.

266 False or misleading representations about bargaining services

fees etc.

(1) A person must not make a false or misleading representation about:

(a) another person's liability to pay a bargaining services fee; or

(b) another person's obligation to enter into an agreement to pay

a bargaining services fee; or

industrial association.

(2) Subsection (1) is a civil remedy provision.

Note:

See Division 9 for enforcement.

Division 9--Enforcement

267 Definition

In this Division:

person, in relation to a contravention of a civil remedy provision,

includes an industrial association.

Note:

A person who is involved in a contravention of a civil remedy

provision is treated as having contravened that provision: see

section 189.

268 Penalties etc. for contravention of civil remedy provisions

(1) The Court, on application by an eligible person, may make one or

more of the following orders in relation to a person (the defendant)

who has contravened a civil remedy provision of this Part:

(a) an order imposing a pecuniary penalty on the defendant;

(b) an order requiring the defendant to pay a specified amount to

another person as compensation for damage suffered by the

other person as a result of the contravention;

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446 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(2) The maximum pecuniary penalty under paragraph (1)(a) is 300

penalty units if the defendant is a body corporate and otherwise 60

penalty units.

(3) The orders that may be made under paragraph (1)(c) include:

(a)

injunctions;

and

(b) any other orders that the Court considers necessary to stop

the conduct or remedy its effects.

(4) Each of the following is an eligible person for the purposes of this

section:

(a) a workplace inspector;

(b) a person affected by the contravention;

paragraph.

(5) A regulation prescribing persons for the purposes of

paragraph (4)(c) may provide that a person is prescribed only in

relation to circumstances specified in the regulation.

Note:

Division 4 of Part VIII contains other provisions relevant to civil

remedies.

269 Conduct that contravenes Division 3 and another Division of

this Part

If:

(a) a person engages in conduct; and

(b) the conduct contravenes both Division 3 and another

Division of this Part;

the Court may make orders under section 268 in relation to only

one of those contraventions.

270 Proof not required of the reason for, or the intention of, conduct

(1)

If:

(a) in an application under section 268 relating to a person's

conduct, it is alleged that the conduct was, or is being, carried

out for a particular reason or with a particular intent; and

(b) for the person to carry out the conduct for that reason or with

that intent would constitute a contravention of this Part;

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it is presumed, in proceedings under this Division arising from the

application, that the conduct was, or is being, carried out for that

reason or with that intent, unless the person proves otherwise.

(2) This section does not apply in relation to the granting of an interim

injunction.

Note:

See section 354A for interim injunctions.

Division 10--Objectionable provisions

271 Meaning of objectionable provision

(1) For the purposes of this Division, each of the following provisions

(however it is described in the document concerned) is an

objectionable provision:

(a) a provision that requires or permits any conduct that would

contravene this Part, or that would contravene this Part if

Division 2 were disregarded;

(b) a provision that directly or indirectly requires a person:

(i) to encourage another person to become, or remain, a

member of an industrial association; or

(ii) to discourage another person from becoming, or

remaining, a member of an industrial association;

of an industrial association;

(d) a provision that indicates opposition to persons being

members of an industrial association;

(e) a provision that requires or permits payment of a bargaining

services fee to an industrial association.

(2) For the purpose of determining whether a provision is an

objectionable provision, it does not matter whether that provision is

void because of section 272.

(3) In this section:

permits includes:

(a) purports to permit; and

(b) has the effect of permitting; and

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448 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

requires includes:

(a) purports to require; and

(b) has the effect of requiring; and

272 Objectionable provisions etc. in industrial instruments etc.

(1) A provision of an award is void to the extent that it is an

objectionable provision.

(2) A provision of an industrial instrument, or an agreement or

arrangement (whether written or unwritten), is void to the extent

that it requires or permits, or has the effect of requiring or

permitting, any conduct that would contravene this Part.

273 Removal of objectionable provisions from awards

(1) Where, on application by a person mentioned in subsection (2), the

Commission is satisfied that an award contains objectionable

provisions, the Commission must vary the award so as to remove

the objectionable provisions.

(2) The application may be made by:

(a) an employer, employee or an organisation bound by the

award; or

(b) an employee whose employment is subject to the award; or

Division 11--Miscellaneous

274 Freedom of association not dependent on certificate

(1) A person's rights under this Part do not depend on whether the

person is the holder of a conscientious objection certificate in force

under section 180 of Schedule 1B to this Act.

(2) This section is enacted for the avoidance of doubt.

194 Paragraph 299(1)(d)

Omit "Commission; or", substitute "Commission.".

195 Paragraph 299(1)(e)

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Repeal the paragraph.

196 At the end of section 299

Add:

Note 1:

This section is not the only provision creating an offence relating to

improper influence on a member of the Commission. Sections 135.1,

135.4, 139.1, 141.1 and 142.1 of the Criminal Code create offences of

using various dishonest means (including bribery, providing benefits

and making demands with menaces) to influence a Commonwealth

public official in the performance of his or her duties.

Note 2:

This section is not the only provision creating an offence relating to

interference with a witness in a proceeding before the Commission.

Sections 301 and 303 of this Act and sections 36A, 37, 38 and 40 of

the Crimes Act 1914 also do so. Section 39 of that Act also makes it

an offence to destroy evidence that may be required in such a

proceeding.

Contravening an order of the Commission

(3) A person commits an offence if:

(a) the Commission has made an order under this Act (other than

an order under Part VI (Awards)) or the Registration and

Accountability of Organisations Schedule; and

(b) the order binds the person; and

(d) the conduct contravenes the order.

Penalty: Imprisonment for 12 months.

(4)

subsection

(3):

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

Publishing false allegation of misconduct affecting Commission

(5) A person commits an offence if:

(a) the person publishes a statement; and

(b) the statement implies or expressly states there was

misconduct by a member (whether identified or not) of the

Commission in relation to the performance of the functions,

or exercise of the powers, of the Commission; and

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450 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

statement; and

(d) the publication is likely to have a significant adverse effect

on public confidence that the Commission is properly

performing its functions and exercising its powers.

Penalty: Imprisonment for 12 months.

Note:

The following heading to subsection 299(1) is inserted "General offences".

197 Section 300

Omit "119(1)", substitute "44M(1)".

198 Section 305A

Repeal the section.

199 Section 307

Repeal the section, substitute:

307 False statement in application for protected action ballot order

A person commits an offence if:

(a) the person makes, or joins with other persons in making, an

application for a protected action ballot order under

Division 4 of Part VC; and

(b) the application contains a statement that is false or

misleading in a material particular.

Penalty: 30 penalty units.

200 Section 308

Repeal the section.

201 Subsections 317(1) and (1A)

Repeal the subsections.

202 Subsections 317(2), (3) and (4)

After "in relation to a ballot", insert "ordered under Division 4 of

Part VC".

Note:

The heading to section 317 is replaced by the heading "Offences in relation to secret

ballots ordered under Division 4 of Part VC".

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203 Subsection 317(5)

Repeal the subsection.

204 Section 338

Omit "certified", substitute "collective".

205 Subsection 347(1)

Omit "shall", substitute "must".

206 After subsection 347(1)

Insert:

(1A) Despite subsection (1), if a court hearing a proceeding (including

an appeal) in a matter arising under this Act (other than an

application under section 170CP) is satisfied that a party to the

proceeding has, by an unreasonable act or omission, caused

another party to the proceeding to incur costs in connection with

the proceeding, the court may order the first-mentioned party to

pay some or all of those costs.

207 Subsection 347(2)

Omit "subsection (1)", substitute "subsections (1) and (1A)".

208 After section 349

Insert:

349A Signature on behalf of body corporate

For the purposes of this Act, a document may be signed on behalf

of a body corporate by a duly authorised officer of the body

corporate and need not be made under the body corporate's seal.

209 After section 352

Insert:

352A Variation of workplace agreements on grounds of sex

discrimination

(1) Subsections 119B(2), (3), (4) and (7) apply in relation to a

workplace agreement, as if a reference in those subsections to an

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452 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

award or a term of an award were a reference to a workplace

agreement or a term of a workplace agreement.

(2) Before taking action under subsections 119B(2) or (4) as applied

by force of subsection (1) of this section, the Commission must

give the persons bound by the agreement and the employees whose

employment is subject to the agreement an opportunity to amend

the agreement so as to remove the discrimination.

352B Court's powers in relation to unfair contracts with

independent contractors

(1) In this section and in section 352C:

contract means:

(a) a contract for services that:

(i) is binding on an independent contractor; and

(ii) relates to the performance of work by the independent

contractor, other than work for the private and domestic

purposes of the other party to the contract; and

(b) any condition or collateral arrangement relating to such a

contract.

Note:

The meaning of contract is limited by section 352D for constitutional

reasons.

(2) Application may be made to the Court to review a contract on

either or both of the following grounds:

(a) the contract is unfair;

(b) the contract is harsh.

(3) An application under subsection (2) may be made only by:

(a) a party to the contract; or

(b) an organisation of employees of which the independent

contractor is (or has applied to become) a member, if it is

acting with the written consent of the independent contractor;

person contracting for the services is (or has applied to

become) a member, if it is acting with the written consent of

the person.

(4) In reviewing the contract, the Court may have regard to:

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(a) the relative strength of the bargaining positions of the parties

to the contract and, if applicable, any persons acting on

behalf of the parties; and

(b) whether any undue influence or pressure was exerted on, or

any unfair tactics were used against, a party to the contract;

and

likely to be, less than that of an employee performing similar

work; and

(d) any other matter that the Court thinks relevant.

(5) If the Court forms the opinion that a ground referred to in

subsection (2) is established in relation to the whole or part of the

contract, it must record its opinion, stating whether the opinion

relates to the whole or a specified part of the contract.

(6) The Court may form the opinion that a ground referred to in

subsection (2) is established in relation to the whole or part of the

contract even if the ground was not canvassed in the application.

(7) The Court must exercise its powers under this section in a way that

furthers the objects of this Act as far as practicable.

352C Court may make orders about unfair contracts

(1) If the Court records an opinion under section 352B in relation to a

contract, it may make one or more of the following orders in

relation to the opinion:

(a) an order setting aside the whole or part of the contract;

(b) an order varying the contract.

(2) An order may only be made for the purpose of placing the parties

to the contract as nearly as practicable on such a footing that the

ground on which the opinion is based no longer applies.

(3) While the application is pending, the Court may make an interim

order if it thinks it is desirable to do so to preserve the position of a

party to the contract.

(4) An order takes effect from the date of the order or a later date

specified in the order.

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454 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(5) A party to the contract may apply to the Court to enforce an order

by injunction or otherwise as the Court thinks fit.

(6) This section does not limit any other rights of a party to the

contract.

352D Application of sections 352B and 352C

(1) Sections 352B and 352C apply only as follows:

(a) in relation to a contract to which a constitutional corporation

is a party;

(b) in relation to a contract entered into by a constitutional

corporation for the purposes of the business of the

corporation;

to which paragraph 51(i) of the Constitution applies;

(d) in relation to a contract so far as it affects matters that take

place in or are otherwise connected with a Territory;

(e) in relation to a contract to which the Commonwealth or a

Commonwealth authority is a party.

(2) In this section:

contract has the same meaning as in section 352B.

210 Subsections 353A(1) and (2)

Omit ", a certified agreement or an AWA", substitute "or a workplace

agreement".

211 After section 354

Insert:

354A Interim injunctions

If, under a provision of this Act, a court may grant an injunction,

the court may, if in its opinion it is desirable to do so, grant an

interim injunction pending its decision on the granting of an

injunction.

212 After section 355

Insert:

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355A Powers of courts

A provision of this Act conferring a power on a court does not

affect any other power of the court conferred by this Act or

otherwise.

213 Section 356

Omit "monetary penalty", substitute "pecuniary penalty".

214 Paragraph 357(1)(a)

Omit "monetary penalty", substitute "pecuniary penalty".

215 Paragraph 357(1)(b)

Omit "178(6)", substitute "178(5) or (6)".

216 Paragraphs 358A(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) the period of 3 years beginning on 1 January 2004; and

(b) the period of 3 years beginning on 1 January 2007; and

(ba) the period of 5 years beginning on 1 January 2010 and each

subsequent period of 5 years;

217 Paragraph 358A(1)(c)

Omit "agreements covered by Parts VIB and VID", substitute

"workplace agreements".

218 Paragraph 358A(1)(d)

Omit "and young persons", substitute ", mature age persons, young

persons and such other persons as are prescribed by the regulations".

219 After section 358A

Insert:

358B Acquisition of property

(1) The following laws and instruments:

(a)

this

Act;

(b) regulations, or any other instrument, made under this Act;

(c)

Schedule

1B;

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456 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(d) regulations, or any other instrument, made under

Schedule 1B;

(e) regulations made under item 1 of Schedule 4 to the

Workplace Relations Amendment (Work Choices) Act 2005;

(f) Part 2 of Schedule 4 to the Workplace Relations Amendment

(Work Choices) Act 2005;

do not apply, and are taken never to have applied, to the extent that

the operation of the law or instrument would result in an

acquisition of property from a person otherwise than on just terms.

(2) The repeals and amendments made by the following laws and

instruments:

(a)

the

Workplace Relations Amendment (Work Choices) Act

2005;

(b) any other Act, so far as it repeals or amends a provision of:

(i) this Act; or

(ii) regulations, or any other instrument, made under this

Act; or

(iii) Schedule 1B; or

(iv) regulations, or any other instrument, made under

Schedule 1B;

Workplace Relations Amendment (Work Choices) Act 2005;

(d) any other regulation or instrument, so far as it repeals or

amends a provision of:

(i) this Act; or

(ii) regulations, or any other instrument, made under this

Act; or

(iii) Schedule 1B; or

(iv) regulations, or any other instrument, made under

Schedule 1B;

do not apply, and are taken never to have applied, to the extent that

the repeals or amendments would result in an acquisition of

property from a person otherwise than on just terms.

(3) In this section:

acquisition of property has the same meaning as in paragraph

51(xxxi) of the Constitution.

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just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

220 Paragraph 359(2)(f)

Omit "certified", substitute "workplace".

221 Paragraph 359(2)(fa)

Repeal the paragraph.

222 At the end of section 359

Add:

(4) If jurisdiction in relation to a provision of this Act relating to a

civil remedy provision referred to in section 188 is conferred on

the Court or the Federal Magistrates Court, the regulations may

confer jurisdiction in relation to that provision on a specified court

of a State or Territory.

(5) The regulations may provide for a person who is alleged to have

committed an offence against the regulations to pay a penalty to

the Commonwealth as an alternative to prosecution.

(6) A penalty under subsection (5) must not exceed one-fifth of the

maximum fine that a court could impose on the person as a penalty

for that offence.

(7) The regulations may make provision enabling a person who is

alleged to have contravened a civil remedy provision the remedy

for which consists of or includes a pecuniary penalty to pay to the

Commonwealth, as an alternative to proceedings against the

person, a specified penalty.

(8) A penalty under subsection (7) must not exceed one-tenth of the

maximum pecuniary penalty that could have been imposed on the

person for contravening that civil remedy provision.

223 Part XIV (heading)

Repeal the heading, substitute:

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458 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Part XIV--Jurisdiction of the Federal Court of

Australia and Federal Magistrates Court

224 At the end of section 412

Add:

(4) The Federal Magistrates Court has jurisdiction with respect to

matters arising under this Act in relation to which:

(a) applications may be made to it under this Act; or

(b) actions may be brought in it under this Act; or

(d) penalties may be sued for and recovered under this Act; or

(e) prosecutions may be instituted for offences against this Act.

Note:

A proceeding pending in the Federal Magistrates Court may be

transferred to the Federal Court: see Part 5 of the Federal Magistrates

Act 1999.

225 Subsection 413(1)

After "The Court", insert "or the Federal Magistrates Court".

226 Subsection 413(2)

After "the Court" (wherever occurring), insert "or the Federal

Magistrates Court".

227 Subsection 413A(1)

Omit "The Court may give an interpretation of a certified agreement",

substitute "The Court or the Federal Magistrates Court may give an

interpretation of a collective agreement".

228 Paragraph 413A(1)(b)

Omit "certified".

229 Subsection 413A(2)

After "the Court" (wherever occurring), insert "or the Federal

Magistrates Court".

230 Subsection 414(1)

After "the Court", insert "and the Federal Magistrates Court".

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231 At the end of subsection 414(1)

Add:

Note:

The regulations can confer jurisdiction on a specified court of a State

or Territory in relation to a civil remedy provision: see subsection

359(4).

232 After subsection 469(1)

Insert:

(1A) A party to a proceeding before the Federal Magistrates Court in a

matter arising under this Act or the BCII Act may appear in person.

233 Subsections 469(2) and (2B)

After "the Court", insert "or the Federal Magistrates Court".

Note:

The heading to section 469 is altered by omitting "Court" and substituting "the Court

or the Federal Magistrates Court".

234 Subsection 469(9)

After "the Court", insert "or the Federal Magistrates Court".

235 Section 470

Before "If", insert "(1)".

236 At the end of section 470

Add:

(2) If the Federal Magistrates Court is of the opinion that an

organisation, person or body should be heard in a proceeding

before that court in a matter arising under this Act or the BCII Act,

that court may grant leave to the organisation, person or body to

intervene in the proceeding.

237 After subsection 471(1)

Insert:

(1A) The Minister may, on behalf of the Commonwealth, by giving

written notice to a Registrar of the Federal Magistrates Court,

intervene in the public interest in a proceeding before that court in

a matter arising under this Act or the BCII Act.

238 Subsection 471(2)

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460 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Omit "the Court, the Court may", substitute "the Court or the Federal

Magistrates Court, that court may".

239 Subsection 471(3)

After "the Court", insert "or the Federal Magistrates Court".

240 Part XV

Repeal the Part, substitute:

Part XV--Matters referred by Victoria

Division 1--Introduction

488 Objects

The main objects of this Part are:

(a) to extend certain provisions of this Act; and

(b) to include additional provisions in this Act;

as a result of the referral of certain matters to the Parliament of the

Commonwealth by the Commonwealth Powers (Industrial

Relations) Act 1996 of Victoria.

489 Definitions

In this Part (other than Division 10):

employee has the same meaning as in section 3 of the

Commonwealth Powers (Industrial Relations) Act 1996 of

Victoria, but does not include:

(a) a person who is undertaking a vocational placement; or

(b) a person so far as the definition of employee in subsection

4AA(1) of this Act covers the person.

employer has the same meaning as in section 3 of the

Commonwealth Powers (Industrial Relations) Act 1996 of

Victoria, but does not include an employer so far as the definition

of employer in subsection 4AB(1) of this Act covers the employer.

employment means employment of an employee, and employed

has a corresponding meaning.

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490 Part only has effect if supported by reference

A provision of this Part (other than paragraph 493(b) or Division 9

or 10) has effect only for so long, and in so far, as the

Commonwealth Powers (Industrial Relations) Act 1996 of Victoria

refers to the Parliament of the Commonwealth a matter or matters

that result in the Parliament of the Commonwealth having

sufficient legislative power for the provision so to have effect.

Division 2--Pay and conditions

491 Additional effect of Act--AFPC's powers

(1) Without affecting its operation apart from this section, Part IA also

has effect in relation to the employment of any employee in

Victoria, and for this purpose, each reference in paragraph 7J(2)(d)

to an employee (within the meaning of that paragraph) is to be read

as a reference to an employee (within the meaning of this Division)

in Victoria.

(2) Subsection (1) has effect subject to:

(a) sections 495, 496, 497, 498 and 525; and

(b) clause 30 of Schedule 14.

492 Additional effect of Act--Australian Fair Pay and Conditions

Standard

(1) Without affecting its operation apart from this section, Part VA

also has effect in relation to the employment of any employee in

Victoria, and for this purpose:

(a) each reference in that Part to an employer (within the

meaning of that Part) is to be read as a reference to an

employer (within the meaning of this Division) in Victoria;

and

(b) each reference in that Part to an employee (within the

meaning of that Part) is to be read as a reference to an

employee (within the meaning of this Division) in Victoria;

and

meaning of that Part) is to be read as a reference to the

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462 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

employment of an employee (within the meaning of this

Division) in Victoria; and

(d) Division 2 of Part VA has effect as if the following

provisions had not been enacted:

(i) Subdivisions D, E, F, I, K and L of that Division;

(ii) sections 90ZA, 90ZB, 90ZC, 90ZL and 90ZM;

(iii) subsections 90F(3) and (4);

(iv) paragraphs 90H(3)(b) and 90W(2)(b); and

(e) Division 2 of Part VA has effect as if an order that was in

force under repealed section 501 or 501A on the reform

comparison day (within the meaning of that Division) were a

pre-reform federal wage instrument (within the meaning of

that Division); and

(f) section 89E has effect as if Part VIIA had been modified in a

corresponding way to the way in which Part VA is modified

by paragraphs (a), (b) and (c); and

(g) Part VA has effect as if Division 6 of that Part had not been

enacted.

(2) Subsection (1) has effect subject to:

(a) sections 495, 496, 497, 498 and 525; and

(b) clause 30 of Schedule 14.

(3) The repeal of sections 501 and 501A by the Workplace Relations

Amendment (Work Choices) Act 2005 does not affect the continuity

of an APCS (within the meaning of Part VA) derived from an order

under either of those sections.

493 Application of the Australian Fair Pay and Conditions Standard

to employees in Victoria

For the purposes of the application of a provision of this Act (other

than this Division or Divisions 3 to 9) to an employee in Victoria, a

reference in the provision to the Australian Fair Pay and

Conditions Standard:

(a) is to be read as a reference to the Australian Fair Pay and

Conditions Standard that applies to the employee because of

section 492; and

(b) includes a reference to the provisions of Division 6 of

Part VA as they apply to the employee because of

section 170KB.

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494 Additional provisions of the Australian Fair Pay and Conditions

Standard

For the purposes of this Act, sections 495, 496, 497 and 498 are

additional provisions of the Australian Fair Pay and Conditions

Standard that applies to an employee in Victoria because of

section 492.

495 Adjustment of APCSs

(1) The AFPC may adjust an APCS if the adjustment:

(a) relates to the employment of one or more employees in

Victoria; and

(b) is of a rate provision or casual loading provision.

(2) The power to adjust an APCS under subsection (1) is subject to:

(a) sections 90 and 90A; and

(b) section 90X; and

(d) section 90ZR; and

(e) sections 496, 497 and 498.

(3) For the purposes of section 90ZK, an adjustment under

subsection (1) of this section is taken to be an adjustment under

Subdivision J of Division 2 of Part VA.

(4) In this section:

casual loading provision has the same meaning as in Division 2 of

Part VA.

rate provision has the same meaning as in Division 2 of Part VA.

496 Limitation on application of minimum wage standards

(1) If the AFPC exercises its wage-setting powers so as to set or adjust

a minimum wage for employees in Victoria:

(a) the setting or adjustment has no effect unless the employees

are within a work classification; and

(b) the setting or adjustment has no effect, in relation to a

particular employee, while the employee is subject to an

award or agreement under this Act.

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464 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(2) If a provision of the Australian Fair Pay and Conditions Standard

sets or adjusts a minimum wage for employees in Victoria:

(a) the setting or adjustment has no effect unless the employees

are within a work classification; and

(b) the setting or adjustment has no effect, in relation to a

particular employee, while the employee is subject to an

award or agreement under this Act.

(3) In this section:

minimum wage has the same meaning as in subsection 4(7) of the

Commonwealth Powers (Industrial Relations) Act 1996 of

Victoria.

work classification means a work classification that, immediately

before the commencement of subsection 4(7) of the

Commonwealth Powers (Industrial Relations) Act 1996 of

Victoria:

(a) was a declared work classification under the Employee

Relations Act 1992 of Victoria; or

(b) had been declared by the Employee Relations Commission of

Victoria to be an interim work classification.

Note:

See also clauses 89, 95 and 102 of Schedule 13 (extended meaning of

award).

497 Guarantee against reductions below pre-reform basic periodic

rates of pay

(1) This section applies if:

(a) the AFPC proposes to exercise its power under subsection

495(1) to adjust a preserved APCS; and

(b) immediately after the exercise of the power takes effect, there

will, under section 90F, be a guaranteed basic periodic rate of

pay (the resulting guaranteed basic periodic rate) for a

particular employee (within the meaning of this Division) in

Victoria who is affected by the exercise of the power; and

relevant adjustments mentioned in sections 90ZE to 90ZH

took effect), there would, under section 90F, have been a

guaranteed basic periodic rate of pay (the commencement

guaranteed basic periodic rate) for the employee if the

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employee had at that time been in his or her current

circumstances of employment.

(2) The AFPC must ensure that the result of the exercise of the power,

so far as it affects the employee, is such that the resulting

guaranteed basic periodic rate of pay for the employee will not be

less than the commencement guaranteed basic periodic rate of pay

for the employee.

(3) In this section:

basic periodic rate of pay has the same meaning as in Division 2 of

Part VA.

498 Guarantee against reductions below pre-reform casual loadings

that apply to basic periodic rates of pay

(1) This section applies in relation to the exercise by the AFPC of its

power under subsection 495(1) to adjust a preserved APCS.

(2) The AFPC must ensure that the result of the exercise of the power,

so far as it affects a particular casual employee (within the meaning

of this Division) in Victoria, is such that the resulting guaranteed

casual loading percentage for the employee will not be less than

the commencement guaranteed casual loading percentage for the

employee.

(3) For the purposes of subsection (2):

(a)

the

resulting guaranteed casual loading percentage for the

employee is the guaranteed casual loading percentage

referred to in section 90H for the employee, as it will be

immediately after the exercise of the power takes effect; and

(b)

the

commencement guaranteed casual loading percentage

for the employee is the percentage that, immediately after the

reform commencement (and after any relevant adjustments

mentioned in sections 90ZE to 90ZH took effect), would

have been the guaranteed casual loading percentage referred

to in section 90H for the employee if the employee had, at

that time, been in his or her current circumstances of

employment.

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499 Additional effect of Act--enforcement of, and compliance with,

the Australian Fair Pay and Conditions Standard

Without affecting its operation apart from this section, Part VIII

also has effect in relation to a term of the Australian Fair Pay and

Conditions Standard that applies to an employee in Victoria

because of section 492, and for this purpose:

(a) each reference in that Part to an employer (within the

meaning of that Part) is to be read as a reference to an

employer (within the meaning of this Division) in Victoria;

and

(b) each reference in that Part to an employee (within the

meaning of that Part) is to be read as a reference to an

employee (within the meaning of this Division) in Victoria;

and

meaning of that Part) is to be read as a reference to the

employment of an employee (within the meaning of this

Division) in Victoria; and

(d) each reference in that Part to the Australian Fair Pay and

Conditions Standard (within the meaning of that Part) is to be

read as a reference to the Australian Fair Pay and Conditions

Standard as that Standard applies to an employee in Victoria

because of section 492.

Division 3--Workplace agreements

500 Additional effect of Act--workplace agreements

(1) In addition to the effect that Part VB and related provisions of this

Act (other than Part VIAA) have in relation to agreements about

matters pertaining to the relationship between:

(a) an employer, or employers, within the meaning of that Part;

and

(b) an employee, or employees, within the meaning of that Part;

that Part and those provisions also have effect as mentioned in this

section.

(2) That Part and those provisions have effect in the same way as

mentioned in subsection (1) in relation to agreements about matters

pertaining to the relationship between:

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(a) an employer or employers in Victoria; and

(b) an employee or employees in Victoria;

and for this purpose:

employer (within the meaning of that Part) is to be read as a

reference to an employer (within the meaning of this

Division) in Victoria; and

(d) each reference in that Part and those provisions to an

employee (within the meaning of that Part) is to be read as a

reference to an employee (within the meaning of this

Division) in Victoria; and

(e) each reference in that Part and those provisions to

employment (within the meaning of that Part) is to be read as

a reference to the employment of an employee (within the

meaning of this Division) in Victoria by an employer (within

the meaning of this Division) in Victoria.

(3) The regulations may provide that a specified provision of this Act

is taken to be a related provision for the purposes of this section.

(4) The regulations may provide that a specified provision of this Act

is taken not to be a related provision for the purposes of this

section.

Note:

See also section 513 (transmission of business).

501 Workplace agreements--mandatory term about basic periodic

rate of pay

(1) This section applies to an agreement under Part VB (as that Part

has effect because of section 500).

(2) The agreement must contain an express term to the effect that, for

so long as an employee is subject to the agreement, the basic

periodic rate of pay that is payable to the employee must not be

less than:

(a) if a basic periodic rate of pay would have been applicable to

the employee under the Australian Fair Pay and Conditions

Standard if the employee had not been subject to an award or

the agreement--the basic periodic rate of pay that would so

have been applicable; or

(b)

if:

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(i) paragraph (a) does not apply to the employee; and

(ii) the employee is a junior employee, an employee with a

disability, or an employee to whom a training

arrangement applies;

the rate of pay specified in, or worked out in accordance with

a method specified in, regulations made for the purposes of

this paragraph; or

standard FMW.

(3) The agreement is void if the requirement in subsection (2) is not

satisfied.

(4) In this section:

basic periodic rate of pay has the same meaning as in Division 2 of

Part VA.

employee with a disability means an employee who is qualified for

a disability support pension as set out in section 94 or 95 of the

Social Security Act 1991, or who would be so qualified but for

paragraph 94(1)(e) or 95(1)(c) of that Act.

junior employee means an employee who is under the age of 21.

standard FMW has the same meaning as in Division 2 of Part VA.

502 Workplace agreements--mandatory term about casual loading

(1) This section applies to an agreement under Part VB (as that Part

has effect because of section 500) if a casual employee is subject to

the agreement.

(2) The agreement must contain an express term to the effect that, for

so long as the casual employee is subject to the agreement, the

casual loading that is payable to the employee must not be less than

the default casual loading percentage (within the meaning of

Division 2 of Part VA).

(3) The agreement is void if the requirement in subsection (2) is not

satisfied.

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Division 4--Industrial action

503 Additional effect of Act--industrial action

Without affecting its operation apart from this section, Part VC

also has the effect it would have if:

(a) each reference in that Part to an employer (within the

meaning of that Part) were read as a reference to an employer

(within the meaning of this Division) in Victoria; and

(b) each reference in that Part to an employee (within the

meaning of that Part) were read as a reference to an employee

(within the meaning of this Division) in Victoria; and

meaning of that Part) were read as a reference to the

employment of an employee (within the meaning of this

Division) in Victoria by an employer (within the meaning of

this Division) in Victoria; and

(d) Division 8 of that Part had not been enacted; and

(e) subsections 106A(1) to (4) were replaced by the following

subsections:

(1) For the purposes of this Act (other than Part XA

)

, industrial action

means any action of the following kind:

(a) the performance of work by an employee in a manner

different from that in which it is customarily performed, or

the adoption of a practice in relation to work by an employee,

the result of which is a restriction or limitation on, or a delay

in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by

an employee or on acceptance of or offering for work by an

employee;

failure or refusal to perform any work at all by employees

who attend for work;

(d) the lockout of employees from their employment by the

employer of the employees;

but does not include the following:

(e) action that is not agreement-related (as defined by

subsection (3));

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(f) action by employees that is authorised or agreed to by the

employer of the employees;

(g) action by an employer that is authorised or agreed to by or on

behalf of employees of the employer;

(h) action by an employee if:

(i) the action was based on a reasonable concern by the

employee about an imminent risk to his or her health or

safety; and

(ii) the employee did not unreasonably fail to comply with a

direction of his or her employer to perform other

available work, whether at the same or another

workplace, that was safe and appropriate for the

employee to perform.

Note 1:

See also subsection (5), which deals with the burden of proof of the

exception in paragraph (e) of this definition.

Note 2:

See also subsection (6), which deals with the burden of proof of the

exception in subparagraph (h)(i) of this definition.

(2) For the purposes of this Act (other than Part XA

)

(a) conduct is capable of constituting industrial action even if the

conduct relates to part only of the duties that employees are

required to perform in the course of their employment; and

(b) a reference to industrial action includes a reference to a

course of conduct consisting of a series of industrial actions.

Meaning of agreement-related

(3) For the purposes of this section, action is agreement-related if:

(a) it relates to the negotiation or proposed negotiation of an

agreement under Part VB (as that Part has effect because of

section 500); or

(b) it affects or relates to work that is regulated by an agreement

under Part VB (as that Part has effect because of

section 500).

Meaning of lockout

(4) For the purposes of this section, an employer locks out employees

from their employment if the employer prevents the employees

from performing work under their contracts of employment

without terminating those contracts.

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Burden of proof

(5) Whenever a person seeks to rely on paragraph (e) of the definition

of industrial action in subsection (1), that person has the burden of

proving that paragraph (e) applies.

(6) Whenever a person seeks to rely on subparagraph (h)(i) of the

definition of industrial action in subsection (1), that person has the

burden of proving that subparagraph (h)(i) applies.

504 Intervention in proceedings under Part VC

(1) The Commission must, on application, grant to a Minister of

Victoria, on behalf of the Government of Victoria, leave to

intervene in proceedings under Division 2 of Part VC if one or

more of the employees to be covered by the proposed agreement is

an employee in Victoria.

(2) The Full Bench must, on application, grant to a Minister of

Victoria, on behalf of the Government of Victoria, leave to

intervene in an appeal against a decision of a member of the

Commission if:

(a) the decision is made under Division 2 of Part VC in relation

to a bargaining period for negotiating a proposed agreement;

and

(b) one or more of the employees to be covered by the proposed

agreement is an employee in Victoria.

505 Additional effect of Act--enforcement of, and compliance with,

orders under Part VC

Without affecting its operation apart from this section, Part VIII

also has effect in relation to an order of the Commission under

Part VC as Part VC applies because of section 503, and for this

purpose:

(a) each reference in Part VIII to an employer (within the

meaning of Part VIII) is to be read as a reference to an

employer (within the meaning of this Division) in Victoria;

and

(b) each reference in Part VIII to an employee (within the

meaning of Part VIII) is to be read as a reference to an

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employee (within the meaning of this Division) in Victoria;

and

meaning of Part VIII) is to be read as a reference to the

employment of an employee (within the meaning of this

Division) in Victoria.

Division 5--Meal breaks

506 Additional effect of Act--meal breaks

Without affecting its operation apart from this section, Division 1

of Part VIA also has effect in relation to the employment of any

employee in Victoria, and for this purpose:

(a) each reference in that Division to an employer (within the

meaning of that Division) is to be read as a reference to an

employer (within the meaning of this Division) in Victoria;

and

(b) each reference in that Division to an employee (within the

meaning of that Division) is to be read as a reference to an

employee (within the meaning of this Division) in Victoria;

and

meaning of that Division) is to be read as a reference to the

employment of an employee (within the meaning of this

Division) in Victoria; and

(d) section 170AC has effect as if Part VIIA had been modified

in a corresponding way to the way in which Division 1 of

Part VIA is modified by paragraphs (a), (b) and (c).

507 Additional effect of Act--enforcement of, and compliance with,

section 170AA

Without affecting its operation apart from this section, Part VIII

also has effect in relation to section 170AA as that section applies

because of section 506, and for this purpose:

(a) each reference in that Part to an employer (within the

meaning of that Part) is to be read as a reference to an

employer (within the meaning of this Division) in Victoria;

and

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(b) each reference in that Part to an employee (within the

meaning of that Part) is to be read as a reference to an

employee (within the meaning of this Division) in Victoria;

and

meaning of that Part) is to be read as a reference to the

employment of an employee (within the meaning of this

Division) in Victoria; and

(d) each reference in that Part to section 170AA is to be read as a

reference to section 170AA as that section has effect because

of section 506.

Division 6--Termination of employment

508 Additional effect of Act--termination of employment

Without affecting its operation apart from this section, Division 3

of Part VIA also has effect in relation to the termination of

employment, at the initiative of the employer, of any employee in

Victoria, and for this purpose:

(a) each reference in that Division to an employer within the

meaning of subsection 4AB(1) is to be read as a reference to

an employer (within the meaning of this Division) in

Victoria; and

(b) each reference in that Division to an employee within the

meaning of subsection 4AA(1) is to be read as a reference to

an employee (within the meaning of this Division) in

Victoria; and

meaning of subsection 4AC(1) is to be read as a reference to

the employment of an employee (within the meaning of this

Division) in Victoria.

509 Additional effect of Act--enforcement of, and compliance with,

orders under Division 3 of Part VIA

Without affecting its operation apart from this section, Part VIII

also has effect in relation to an order of the Commission under

Division 3 of Part VIA as that Division applies because of

section 508, and for this purpose:

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(a) each reference in Part VIII to an employer (within the

meaning of Part VIII) is to be read as a reference to an

employer (within the meaning of this Division) in Victoria;

and

(b) each reference in Part VIII to an employee (within the

meaning of Part VIII) is to be read as a reference to an

employee (within the meaning of this Division) in Victoria;

and

meaning of Part VIII) is to be read as a reference to the

employment of an employee (within the meaning of this

Division) in Victoria.

Division 7--Freedom of association

510 Additional effect of Act--freedom of association

(1) Without affecting its operation apart from this section, Part XA

also has effect in relation to conduct in Victoria.

(2) Subsection (1) has effect despite section 243.

Division 8--Right of entry

511 Right of entry

Part IX has effect, in relation to premises of an employer in

Victoria, as if:

(a) Division 4 of that Part did not authorise entering any such

premises for the purposes of investigating a suspected breach

unless the suspected breach relates to:

(i) a provision of this Act (as that provision has effect

because of this Part); or

(ii) an agreement under Part VB (as Part VB has effect

because of section 500); and

(b) Division 6 of that Part did not authorise entering any such

premises for the purposes of holding discussions unless the

discussions relate to:

(i) an agreement under Part VB (as Part VB has effect

because of section 500); or

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(ii) a proposed agreement under Part VB (as Part VB has

effect because of section 500).

512 Additional effect of Act--enforcement of, and compliance with,

orders under Part IX

Without affecting its operation apart from this section, Part VIII

also has effect in relation to an order of the Commission under

Part IX in relation to premises of an employer in Victoria, and for

this purpose:

(a) each reference in Part VIII to an employer (within the

meaning of Part VIII) includes a reference to an employer

(within the meaning of this Division) in Victoria; and

(b) each reference in Part VIII to an employee (within the

meaning of Part VIII) includes a reference to an employee

(within the meaning of this Division) in Victoria; and

meaning of Part VIII) includes a reference to the employment

of an employee (within the meaning of this Division) in

Victoria.

Division 9--Transmission of business

513 Additional effect of Act--transmission of business

(1) Without affecting its operation apart from this section, Part VIAA

also has the effect it would have if:

(a) each reference in that Part to an employer (within the

meaning of that Part) included a reference to an employer

(within the meaning of this Division) in Victoria; and

(b) each reference in that Part to an employee (within the

meaning of that Part) included a reference to an employee

(within the meaning of this Division) in Victoria; and

meaning of that Part) included a reference to the employment

of an employee (within the meaning of this Division) in

Victoria by an employer (within the meaning of this

Division) in Victoria; and

(d) each reference in that Part to employed (within the meaning

of that Part) included a reference to employed (within the

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meaning of this Division) in Victoria by an employer (within

the meaning of this Division) in Victoria; and

(e) Division 5 of that Part had not been enacted; and

(f) each reference in that Part to an AWA (within the meaning of

that Part) included a reference to an AWA made under

Part VB (as Part VB has effect because of section 500); and

(g) each reference in that Part to a post-reform AWA (within the

meaning of that Part) included a reference to a post-reform

AWA made under Part VB (as Part VB has effect because of

section 500); and

(h) each reference in that Part to a collective agreement (within

the meaning of that Part) included a reference to a collective

agreement made under Part VB (as Part VB has effect

because of section 500); and

(i) each reference in that Part to a workplace agreement (within

the meaning of that Part) included a reference to a workplace

agreement made under Part VB (as Part VB has effect

because of section 500); and

(j) each reference in that Part to the Australian Fair Pay and

Conditions Standard (within the meaning of that Part)

included a reference to the Australian Fair Pay and

Conditions Standard as that Standard has effect because of

section 492; and

(k) each reference in that Part to an APCS (within the meaning

of that Part) included a reference to an APCS in force under

Part VA (as Part VA has effect because of section 492).

(2) To the extent to which Part VIAA (as it has effect because of

subsection (1)) applies if an employer (within the meaning of this

Division) in Victoria becomes the successor, transmittee or

assignee of the whole, or a part, of a business of:

(a) another employer (within the meaning of subsection

4AB(1)); or

(b) another employer (within the meaning of this Division) in

Victoria;

that Part has effect only for so long, and in so far, as the

Commonwealth Powers (Industrial Relations) Act 1996 of Victoria

refers to the Parliament of the Commonwealth a matter or matters

that result in the Parliament of the Commonwealth having

sufficient legislative power for that Part so to have effect.

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(3) To the extent to which Subdivision B of Division 4 of Part VIAA

(as it has effect because of subsection (1)) applies if an employer

(within the meaning of this Division) in Victoria is likely to

become the successor, transmittee or assignee of the whole, or a

part, of a business of:

(a) another employer (within the meaning of subsection

4AB(1)); or

(b) another employer (within the meaning of this Division) in

Victoria;

that Subdivision has effect only for so long, and in so far, as the

Commonwealth Powers (Industrial Relations) Act 1996 of Victoria

refers to the Parliament of the Commonwealth a matter or matters

that result in the Parliament of the Commonwealth having

sufficient legislative power for that Subdivision so to have effect.

514 Additional effect of Act--enforcement of, and compliance with,

orders under Part VIAA

Without affecting its operation apart from this section, Part VIII

also has effect in relation to an order of the Commission under

Part VIAA as Part VIAA applies because of section 513, and for

this purpose:

(a) each reference in Part VIII to an employer (within the

meaning of Part VIII) is to be read as a reference to an

employer (within the meaning of this Division) in Victoria;

and

(b) each reference in Part VIII to an employee (within the

meaning of Part VIII) is to be read as a reference to an

employee (within the meaning of this Division) in Victoria;

and

meaning of Part VIII) is to be read as a reference to the

employment of an employee (within the meaning of this

Division) in Victoria.

Division 10--Employment agreements

515 Definitions

In this Division:

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employee has the same meaning as in section 3 of the

Commonwealth Powers (Industrial Relations) Act 1996 of

Victoria, but does not include a person who is undertaking a

vocational placement.

employer has the same meaning as in section 3 of the

Commonwealth Powers (Industrial Relations) Act 1996 of

Victoria.

employment means employment of an employee, and employed

has a corresponding meaning.

employment agreement means an agreement that, immediately

before the reform commencement, was continued in force by

Subdivision E of Division 3 of Part XV of this Act.

Note:

These agreements were entered into under Part 2 of the Employee

Relations Act 1992 of Victoria before 1 January 1997.

516 Application of this Division

(1) This Division applies to an employment agreement about matters

pertaining to the relationship between an employer (within the

meaning of this Division) in Victoria and an employee (within the

meaning of this Division) in Victoria if:

(a)

both:

(i) the employer is also an employer within the meaning of

Division 1; and

(ii) the employee is also an employee within the meaning of

Division 1; or

(b)

both:

(i) the employer is also an employer within the meaning of

subsection 4AB(1); and

(ii) the employee is also an employee within the meaning of

subsection 4AA(1).

(2) This Division, to the extent to which it applies to an employment

agreement because of paragraph (1)(a), has effect only for so long,

and in so far, as the Commonwealth Powers (Industrial Relations)

Act 1996 of Victoria refers to the Parliament of the Commonwealth

a matter or matters that result in the Parliament of the

Commonwealth having sufficient legislative power for this

Division so to have effect.

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517 Inconsistency with other Commonwealth laws

Subject to clause 39 of Schedule 14, this Division does not have

effect to the extent of any inconsistency with a law of the

Commonwealth other than this Act.

518 Continued operation of employment agreements

(1) Subject to subsection (2), for the purposes of this Act, an

employment agreement continues in force as if Part 2 of the

Employee Relations Act 1992 of Victoria had not been repealed.

(2) For the purposes of this Act, an employment agreement ceases to

be in force in relation to an employee if the employment of the

employee is subject to an AWA, a collective agreement or a

workplace determination.

519 Stand down provisions

(1) If an employment agreement does not contain provision for the

standing-down of the employee if the employee cannot be usefully

employed because of:

(a) any strike; or

(b) any breakdown of machinery; or

cannot reasonably be held responsible;

the agreement is taken to include the provision mentioned in

subsection (2).

(2) The provision is that:

(a) the employer may deduct payment for any part of a day

during which the employee cannot usefully be employed

because of:

(i) any strike; or

(ii) any breakdown of machinery; or

(iii) any stoppage of work for any cause for which the

employer cannot reasonably be held responsible; and

(b) this does not break the continuity of employment of the

employee for the purpose of any entitlements.

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520 Model dispute resolution process

(1) An employment agreement is taken to include a term requiring

disputes about the application of the agreement to be resolved

using the model dispute resolution process.

Note:

The model dispute resolution process is set out in Part VIIA.

(2) Any term of the employment agreement that would otherwise deal

with the resolution of those disputes is void to that extent.

(3) Without affecting its operation apart from this subsection,

Part VIIA also has effect in relation to an employment agreement,

and for this purpose:

(a) each reference in that Part to an employer (within the

meaning of that Part) is to be read as a reference to an

employer (within the meaning of this Division) in Victoria;

and

(b) each reference in that Part to an employee (within the

meaning of that Part) is to be read as a reference to an

employee (within the meaning of this Division) in Victoria;

and

(within the meaning of that Part) is to be read as a reference

to an employment agreement; and

(d) each reference in that Part to a workplace agreement is to be

read as a reference to an employment agreement.

521 Additional effect of Act--enforcing employment agreements

Without affecting its operation apart from this section, Part VIII

also has effect in relation to an employment agreement, and for this

purpose:

(a) each reference in that Part to an employer (within the

meaning of that Part) is to be read as a reference to an

employer (within the meaning of this Division) in Victoria;

and

(b) each reference in that Part to an employee (within the

meaning of that Part) is to be read as a reference to an

employee (within the meaning of this Division) in Victoria;

and

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meaning of that Part) is to be read as a reference to the

employment of a person under an employment agreement;

and

(d) each reference in that Part to an AWA is to be read as a

reference to an employment agreement.

522 Employer to give copy of employment agreement

Each employer bound by an employment agreement must, on being

requested to do so by the employee bound by the agreement, give a

copy of the agreement to the employee as soon as possible.

523 Additional effect of Act--employee records and pay slips

Without affecting its operation apart from this section,

section 353A also has effect in relation to the employment of a

person under an employment agreement, and for this purpose:

(a) each reference in that section to an employer (within the

meaning of that section) is to be read as a reference to an

employer (within the meaning of this Division) in Victoria;

and

(b) each reference in that section to employment (within the

meaning of that section) is to be read as a reference to the

employment of a person under an employment agreement;

and

reference to an employment agreement.

524 Registrar not to divulge information in employment agreements

If a Registrar has a copy of an employment agreement, the

Registrar must not allow the information in the copy to become

available to any person other than:

(a) a party to the agreement; or

(b) a person with authority to enforce the provisions of the

agreement.

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525 Relationship between employment agreements and Australian

Fair Pay and Conditions Standard

(1) An employment agreement that operates in relation to an employee

prevails over the Australian Fair Pay and Conditions Standard to

the extent to which, in a particular respect, the employment

agreement provides a more favourable outcome for the employee.

(2) The Australian Fair Pay and Conditions Standard prevails over an

employment agreement that operates in relation to an employee to

the extent to which, in a particular respect, the Australian Fair Pay

and Conditions Standard provides a more favourable outcome for

the employee.

(3) The regulations may prescribe:

(a) what a particular respect is for the purposes of this section; or

(b) the circumstances in which an employment agreement

provides or does not provide a more favourable outcome in a

particular respect; or

Conditions Standard provides or does not provide a more

favourable outcome in a particular respect.

526 Relationship between employment agreements and awards

An award prevails to the extent of any inconsistency with an

employment agreement.

Note:

See also clauses 89, 95 and 102 of Schedule 13 (extended meaning of

award).

Division 11--Exclusion of Victorian laws

527 Additional effect of Act--exclusion of Victorian laws

Without affecting their operation apart from this section, the

following provisions:

(a) section 7C (other than paragraph 7C(3)(f) or (m));

(b) sections 7D and 7E;

also have effect in relation to the employment of any employee in

Victoria, and for this purpose:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 483

meaning of those provisions) is to be read as a reference to an

employer (within the meaning of this Division) in Victoria;

and

(d) each reference in those provisions to an employee (within the

meaning of those provisions) is to be read as a reference to an

employee (within the meaning of this Division) in Victoria;

and

(e) each reference in those provisions to employment (within the

meaning of those provisions) is to be read as a reference to

the employment of an employee (within the meaning of this

Division) in Victoria.

Note:

See also clause 87 of Schedule 13 (common rules in Victoria), which

has effect despite any other provision of this Act.

Division 12--Additional effect of other provisions of this

Act

528 Additional effect of other provisions of this Act

The regulations may provide that, without affecting the operation

of specified provisions of this Act apart from those regulations,

those provisions also have a specified effect.

Note:

The regulations must deal with matters referred by Victoria (see

section 490).

241 Section 538 (definition of employee)

Repeal the definition, substitute:

employee means an individual so far as he or she is employed by a

constitutional corporation.

242 Subsection 541(1)

Omit "or (5) (as appropriate)".

243 Subsection 541(3)

Omit "clause 1 of Schedule 1A", substitute "a provision of the

Australian Fair Pay and Conditions Standard".

244 Subsection 541(3)

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484 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Omit "This subsection is subject to subsection (5).".

245 Subsection 541(4)

Omit "provisions in clause 1 of Schedule 1A that deal", substitute "a

provision of the Australian Fair Pay and Conditions Standard that

deals".

246 Subsection 541(5)

Repeal the subsection.

247 Paragraph 548(1)(a)

Omit "monetary penalty", substitute "pecuniary penalty".

248 Section 550 (definition of additional condition)

Omit "a wage instrument other than a rate of pay", substitute "an award

or notional agreement preserving State awards".

249 Section 550 (definition of employee)

Repeal the definition.

250 Section 550 (definition of employer)

Repeal the definition.

251 Section 550 (definition of full-time apprentice)

Omit "wage instrument", substitute "award or notional agreement

preserving State awards".

252 Section 550 (definition of State or Territory training

authority)

Repeal the definition.

253 Section 550 (definition of training arrangement)

Repeal the definition.

254 Section 550 (definition of wage instrument)

Repeal the definition.

255 Section 551

Repeal the section.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 485

256 Section 552

Repeal the section.

257 Subsection 553(5)

Repeal the subsection, substitute:

School-based apprentices not covered by this section

(5) This section does not apply to a school-based apprentice if:

(a) an award or notional agreement preserving State awards

covers the employment of the school-based apprentice; and

(b) the award or notional agreement preserving State awards

specifies additional conditions for the school-based

apprentice; and

does so by making specific provision for school-based

apprentices.

258 Subsection 554(1)

Omit "a wage instrument", substitute "an APCS".

259 Section 555

Repeal the section.

260 Subsection 556(6)

Repeal the subsection, substitute:

School-based trainees not covered by this section

(6) This section does not apply to a school-based trainee if:

(a) an award or notional agreement preserving State awards

covers the employment of the school-based trainee; and

(b) the award or notional agreement preserving State awards

specifies additional conditions for the school-based trainee;

and

does so by making specific provision for school-based

trainees.

261 At the end of section 557

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486 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Add:

(3) This section has effect as if it were a provision of the Australian

Fair Pay and Conditions Standard.

262 Section 558

Omit "paid, or provided additional conditions," substitute "provided

additional conditions".

263 Section 558

Omit "552(1), 553(2), 555(1) or 556(2)", substitute "553(2) or 556(2)".

264 Schedule 1A

Repeal the Schedule.

265 Section 1 of Schedule 1B

Omit "the objects of the Schedule", substitute "Parliament's intention in

enacting this Schedule".

266 Section 5 of Schedule 1B

Repeal the section, substitute:

5 Parliament's intention in enacting this Schedule

(1) It is Parliament's intention in enacting this Schedule to enhance

relations within workplaces between federal system employers and

federal system employees and to reduce the adverse effects of

industrial disputation.

(2) Parliament considers that those relations will be enhanced and

those adverse effects will be reduced, if associations of employers

and employees are required to meet the standards set out in this

Schedule in order to gain the rights and privileges accorded to

associations under this Schedule and the Workplace Relations Act.

(3) The standards set out in this Schedule:

(a) ensure that employer and employee organisations registered

under this Schedule are representative of and accountable to

their members, and are able to operate effectively; and

(b) encourage members to participate in the affairs of

organisations to which they belong; and

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 487

high standards of accountability of organisations to their

members; and

(d) provide for the democratic functioning and control of

organisations; and

(e) facilitate the registration of a diverse range of employer and

employee organisations.

(4) It is also Parliament's intention in enacting this Schedule to assist

employers and employees to promote and protect their economic

and social interests through the formation of employer and

employee organisations, by providing for the registration of those

associations and according rights and privileges to them once

registered.

Note:

The Workplace Relations Act contains many provisions that affect the

operation of this Schedule. For example, provisions of the Workplace

Relations Act deal with some powers and functions of the

Commission and of Registrars. Decisions made under this Schedule

may be subject to procedures and rules (for example, about appeals)

that are set out in the Workplace Relations Act.

267 Section 6 of Schedule 1B

Insert:

Australian Building and Construction Commissioner has the

same meaning as in the Building and Construction Industry

Improvement Act 2005.

268 Section 6 of Schedule 1B

Insert:

Australian Building and Construction Inspector has the same

meaning as in the Building and Construction Industry Improvement

Act 2005.

269 Section 6 of Schedule 1B (definition of AWA)

Repeal the definition, substitute:

AWA has the same meaning as in the Workplace Relations Act.

270 Section 6 of Schedule 1B (definition of award)

Repeal the definition, substitute:

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488 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

award means:

(a) an award within the meaning of the Workplace Relations

Act; and

(b) a transitional award within the meaning of Schedule 13 to the

Workplace Relations Act.

271 Section 6 of Schedule 1B (definition of certified

agreement)

Repeal the definition.

272 Section 6 of Schedule 1B

Insert:

collective agreement has the same meaning as in the Workplace

Relations Act.

273 Section 6 of Schedule 1B (definition of enterprise)

Repeal the definition, substitute:

enterprise means:

(a) a business that is carried on by a single employer; or

(b) a business that is carried on by related bodies corporate, at

least one of which is an employer; or

paragraph (a) or (b); or

(d) a grouping of 2 or more operationally distinct parts of a

business mentioned in paragraph (a) or (b).

Whether bodies corporate are related is to be determined in

accordance with the principles set out in section 50 of the

Corporations Act 2001.

274 Section 6 of Schedule 1B (definition of enterprise

association)

Repeal the definition, substitute:

enterprise association has the meaning given by subsection

18C(1).

275 Section 6 of Schedule 1B (definition of enterprise

organisation)

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 489

Repeal the definition.

276 Section 6 of Schedule 1B

Insert:

federally registrable:

(a) in relation to an association of employers--has the meaning

given by section 18A; and

(b) in relation to an association of employees--has the meaning

given by section 18B; and

given by section 18C.

277 Section 6 of Schedule 1B

Insert:

federal system employee has the meaning given by subsection

18B(2).

278 Section 6 of Schedule 1B

Insert:

federal system employer has the meaning given by subsection

18A(2).

279 Section 6 of Schedule 1B (definition of industrial dispute)

Repeal the definition.

280 Section 6 of Schedule 1B (definition of old IR agreement)

Repeal the definition.

281 Section 6 of Schedule 1B

Insert:

State award has the same meaning as in the Workplace Relations

Act.

282 Section 6 of Schedule 1B

Insert:

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490 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

State demarcation order means a State award, to the extent that it

relates to the rights of a State-registered association to represent the

interests under a State or Territory industrial law of a particular

class or group of employees.

283 Section 6 of Schedule 1B

Insert:

State or Territory industrial law has the same meaning as in the

Workplace Relations Act.

284 Section 6 of Schedule 1B

Insert:

State-registered association has the meaning given by clause 1 of

Schedule 17 to the Workplace Relations Act.

285 Section 6 of Schedule 1B

Insert:

transitionally registered association has the meaning given by

clause 1 of Schedule 17 to the Workplace Relations Act.

286 Section 6 of Schedule 1B

Insert:

workplace inspector means a person appointed as a workplace

inspector under section 84 of the Workplace Relations Act.

287 Section 7 of Schedule 1B

Repeal the section, substitute:

7 Meaning of industrial action

(1) For the purposes of this Schedule, industrial action means any

action of the following kinds:

(a) the performance of work by an employee in a manner

different from that in which it is customarily performed, or

the adoption of a practice in relation to work by an employee,

the result of which is a restriction or limitation on, or a delay

in, the performance of the work;

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 491