WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT BILL 1997

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This is a Bill, not an Act. For current law, see the Acts databases.

WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT BILL 1997

1996-97

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Workplace Relations and Other Legislation Amendment Bill 1997

No. , 1997

(Industrial Relations)

A Bill for an Act to amend the Workplace Relations Act 1996, and for related purposes

9711820—999/25.6.1997—(118/97) Cat. No. 96 9303 3 ISBN 0644 505982

Contents

Workplace Relations Act 1996 7wrolah1.html

Workplace Relations and Other Legislation Amendment Act 1996 7wrolah1.html

Workplace Relations Act 1996 7wrolah1.html

Navigation Act 1912 7wrolah1.html

Safety, Rehabilitation and Compensation Act 1988 7wrolah1.html

Seafarers Rehabilitation and Compensation Act 1992 7wrolah1.html

Superannuation Act 1976 7wrolah1.html

Superannuation Act 1990 7wrolah1.html

A Bill for an Act to amend the Workplace Relations Act 1996, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Workplace Relations and Other Legislation Amendment Act 1997.

2 Commencement

(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

(2) Schedule 8 commences on a day to be fixed by Proclamation.

(3) If Schedule 8 does not commence under subsection (2) within the period of 6 months beginning on the day when this Act receives the Royal Assent, it commences on the first day after the end of that period.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Awards and arbitration

Workplace Relations Act 1996

1 Paragraph 143(1A)(b)

Omit “order”, substitute “award”.

2 At the end of section 170MZ

Add:

(8) Part VIII (compliance) applies in relation to awards under subsection 170MX(3) in the same way as it applies to awards as defined in subsection 4(1).

3 At the end of section 170N

Add:

(2) Subsection (1) does not prevent the Commission exercising its arbitration powers to deal with an application to vary an award by making a safety net wage adjustment.

Workplace Relations and Other Legislation Amendment Act 1996

4 Subitem 50(3) of Schedule 5

After “Principal Act”, insert “, or varied under item 49 of this Schedule,”.

Schedule 2—Certified agreements

Workplace Relations Act 1996

1 Paragraph 170LJ(3)(a)

Repeal the paragraph, substitute:

(a) all the persons employed on the day 14 days before approval is given either have, or have ready access to, the agreement, in writing, at least 14 days before that approval is given; and

(aa) any person first employed less than 14 days before approval is given either has, or has ready access to, the agreement, in writing, before that approval is given; and

2 Subsection 170LK(2)

Repeal the subsection, substitute:

(2) The employer must take reasonable steps to ensure that:

(a) 14 days’ notice, in writing, of intention to make the agreement is given to every person:

(i) who is employed when such a notice is first given; and

(ii) whose employment will be subject to the agreement; and

(b) notice, in writing, of intention to make the agreement is given, before the agreement is made, to every person first employed after the first notice is given under paragraph (a);

and the agreement must not be made before the 14 days mentioned in paragraph (a) have passed.

3 Paragraph 170LR(2)(a)

Repeal the paragraph, substitute:

(a) all the persons employed on the day 14 days before approval is given either have, or have ready access to, the agreement, in writing, at least 14 days before that approval is given; and

(aa) any person first employed less than 14 days before approval is given either has, or has ready access to, the agreement, in writing, before that approval is given; and

4 Section 170MS

Repeal the section, substitute:

170MS What happens if application to certify agreement is not made within 21 days

(1) Unless an application to the Commission is made within the time limits set out in subsection (2), nothing that was done during the bargaining period by an employee whose employment is subject to the agreement or by a person bound by the agreement is protected action.

(2) The time limits are as follows:

(a) if the agreement is made in accordance with section 170LJ—21 days after the day on which it is approved as mentioned in subsection 170LJ(2);

(b) if the agreement is made in accordance with section 170LK—21 days after the day on which it is made as mentioned in subsection 170LK(1);

(c) if the agreement is made in accordance with Division 3 of this Part—21 days after the day on which it is approved as mentioned in subsection 170LR(1).

Schedule 3—AWAs and the Employment Advocate

Workplace Relations Act 1996

1 At the end of subsection 83BH(3)

Add:

; or (c) a place of business in which the authorised officer has reasonable cause to believe that a breach of Part VID (AWAs) or Part XA (freedom of association) has occurred, is occurring or is likely to occur.

2 Paragraph 83BH(4)(c)

Repeal the paragraph, substitute:

3 Paragraph 83BH(4)(e)

Repeal the paragraph.

4 Subsection 83BH(6)

After “under”, insert “paragraph (4)(d) or”.

5 After subsection 83BH(7)

Insert:

(7A) An authorised officer may, without force, enter a place of business in which a person ordinarily performs work or conducts business if the authorised officer has reasonable cause to believe that the person has information relevant to compliance purposes.

(7B) An authorised officer must not enter a place of business under subsection (7A) if he or she has reasonable cause to believe that the person concerned is not in that place.

(7C) An authorised officer who enters a place of business under subsection (7A) may interview the person concerned in that place.

6 Subsection 83BS(4) (after paragraph (b) of the definition of AWA official)

Insert:

(ba) a member of the staff assisting the Employment Advocate under section 83BD; or

7 Subparagraph 143(3)(b)(i)

Repeal the subparagraph, substitute:

(i) in the case of a decision or determination relating to an AWA—the decision or determination, edited so as not to disclose the identity of either party to the AWA; and

(ia) in the case of any other decision or determination—the decision or determination; and

8 Subsection 170VN(2)

Repeal the subsection, substitute:

(2) The Employment Advocate must issue a receipt to the person who filed the document if:

(a) the Employment Advocate is satisfied that the filing requirements for the document have been met; or

(b) the Employment Advocate is not satisfied that the filing requirements for the document have been met in all respects, but he or she is satisfied that the failure to meet the filing requirements has not disadvantaged, and will not disadvantage, a party to the AWA.

9 Subsection 170VN(3)

Omit “14 days”, substitute “21 days”.

10 Subsection 170VT(2)

Repeal the subsection.

11 Subsection 170VV(4) (definition of penalty provision)

Omit “subsection 170VT(1)”, substitute “section 170VT”.

12 Subsection 170WF(1)

After “AWA” (wherever occurring), insert “or ancillary document”.

13 Subsection 170WG(2)

After “AWA”, insert “or ancillary document”.

14 At the end of section 170WHA

Add:

(2) If the Employment Advocate considers it appropriate, a person authorised in writing by a party to an AWA for that purpose may help the party in relation to the approval, variation or termination of the AWA by explaining, to the Employment Advocate, the party’s understanding of the effect of the AWA or an ancillary document. Such a person must not be allowed to make submissions or to be heard for any other purpose.

15 Section 170WHC

Repeal the section, substitute:

170WHC Industrial Registrar not to publish AWA determinations

The Industrial Registrar is not obliged under section 143 to publish any determination of the Commission that approves or refuses to approve an AWA or a variation agreement, or that terminates an AWA. However, if the Industrial Registrar does publish such a determination under section 143, he or she must ensure that the publication does not disclose the identity of either party to the AWA.

16 At the end of section 285B

Add:

(5) In this section:

ancillary document has the same meaning as it has in Part VID.

Schedule 4—The no-disadvantage test

Workplace Relations Act 1996

1 Paragraph 170XA(2)(b)

Omit “other”.

2 Subsection 170XE(2)

Repeal the subsection, substitute:

(2) Upon application, the Employment Advocate must determine, and inform the employer in writing, that an award or awards are appropriate for the purpose of deciding whether the agreement passes the no-disadvantage test.

(3) For the purposes of subsection (2), the Employment Advocate must determine:

(a) an award or awards under this Act regulating terms or conditions of employment of employees engaged in the same kind of work as that of the person under the AWA; or

(b) if the Employment Advocate is satisfied that there is no such award under this Act—a State award or State awards regulating terms or conditions of employment of employees engaged in the same kind of work as that of the person under the AWA.

3 Subsection 170XF(1)

Omit “may”, substitute “, as the case requires, must”.

4 Subsection 170XF(2)

Repeal the subsection, substitute:

(2) Upon application, the Commission must determine, and inform the employer or organisation in writing, that an award or awards are appropriate for the purpose of deciding whether the agreement passes the no-disadvantage test.

(3) For the purposes of subsection (2), the Commission must determine:

(a) an award or awards under this Act regulating terms or conditions of employment of employees engaged in the same kind of work as that of those persons under the agreement; or

(b) if the Commission is satisfied that there is no such award under this Act—a State award or State awards regulating terms or conditions of employment of employees engaged in the same kind of work as that of those persons under the agreement.

Schedule 5—Termination of employment

Workplace Relations Act 1996

1 Subsection 152(1A)

Repeal the subsection, substitute:

(1A) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the award.

2 Subsection 170CE(7)

After “subsection (1)”, insert “or (3)”.

3 After subsection 170CE(7)

Insert:

(7A) An application under subsection (2) or (4) must be lodged within 21 days after the decision to terminate the employee’s employment is made.

4 Subsection 170CE(9)

Repeal the subsection, substitute:

(9) An application under subsection (1), (2), (3) or (4) may be discontinued by the applicant in accordance with rules made under section 48. The applicant may do so whether or not the employer and the employee have agreed to settle the matter.

5 Paragraph 170CH(8)(a)

Repeal the paragraph, substitute:

(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

6 Subsection 170LZ(3)

Repeal the subsection, substitute:

(3) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the certified agreement.

7 Subsection 170VQ(5)

Repeal the subsection.

8 Subsection 170VR(3)

Repeal the subsection, substitute:

Schedule 6—Freedom of association

Workplace Relations Act 1996

1 After paragraph 45(1)(e)

Insert:

(eaa) a decision of a member of the Commission to certify an agreement under Division 4 of Part VIB (but only on the ground that under subsection 170LU(2A) the Commission should have refused to certify the agreement);

(eba) a decision of a member of the Commission to vary, or not to vary, an award or certified agreement under section 298Z;

2 After paragraph 45(3)(b)

Insert:

(ba) in the case of an appeal under paragraph (1)(eea):

(i) a person bound by the certified agreement; or

(ii) an employee whose employment is subject to the certified agreement; or

(iii) the Employment Advocate;

(baa) in the case of an appeal under paragraph (1)(eba) in relation to an award:

(i) an organisation or party bound by the award; or

(ii) an employee whose employment is subject to the award; or

(iii) the Employment Advocate;

(bab) in the case of an appeal under paragraph (1)(eba) in relation to a certified agreement:

(i) a person bound by the certified agreement; or

(ii) an employee whose employment is subject to the certified agreement; or

(iii) the Employment Advocate;

3 After subsection 170LU(2)

Insert:

(2A) Despite section 170LT, the Commission must refuse to certify an agreement if the Commission is satisfied that it contains provisions that:

(a) require or permit, or purport to require or permit; or

(b) have the effect, or purport to have the effect, of requiring or permitting;

any conduct that:

(d) would, but for section 298C, contravene Part XA.

4 Application of item 3

The amendment made by item 3 applies for the purpose of any consideration by the Commission, after the commencement of the item, of whether to certify an agreement, even if the application for certification was made before that commencement.

5 At the end of subsection 170MD(7)

Add:

; or (e) section 298Z (which deals with the removal of preference clauses).

6 After section 298Y

Insert in Division 7 of Part XA:

298Z Removal of preference clauses from awards and certified agreements

(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 organisation or party bound by the award; or

(b) an employee whose employment is subject to the award; or

(3) Where, on application by a person mentioned in subsection (4), the Commission is satisfied that a certified agreement contains objectionable provisions, the Commission must vary the agreement so as to remove the objectionable provisions.

(4) The application may be made by:

(a) a person bound by the certified agreement; or

(b) an employee whose employment is subject to the certified agreement; or

(5) In this section:

objectionable provisions are provisions that:

(a) require or permit, or purport to require or permit; or

(b) have the effect, or purport to have the effect, of requiring or permitting;

any conduct that would contravene this Part, whether or not those provisions would in any case be void because of section 298Y.

7 Application of section 298Z

(1) Section 298Z of the Workplace Relations Act 1996 applies to an agreement that was:

(a) entered into before the commencement of Schedule 8 to the Workplace Relations and Other Legislation Amendment Act 1996; and

(b) covered by Division 2 of Part VIB of the Workplace Relations Act 1996 as then in force;

as if the agreement were a certified agreement. Section 298Z so applies in spite of anything in section 170MK of the Workplace Relations Act 1996 as in force before the commencement of Schedule 8 to the Workplace Relations and Other Legislation Amendment Act 1996.

(2) Section 298Z of the Workplace Relations Act 1996 applies to an enterprise flexibility agreement that is in force at the commencement of this Schedule as if the enterprise flexibility agreement were a certified agreement. Section 298Z so applies in spite of anything in section 170NL of the Workplace Relations Act 1996 as in force before the commencement of Schedule 8 to the Workplace Relations and Other Legislation Amendment Act 1996.

Schedule 7—Registered organisations

Workplace Relations Act 1996

1 Subsection 253ZI(1) (definition of amalgamated organisation)

Repeal the definition, substitute:

amalgamated organisation, in relation to an amalgamation, means the organisation of which members of a de-registered organisation became members under paragraph 253Q(3)(d), but does not include any such organisation that was subsequently de-registered under Division 7.

2 Subsection 253ZI(2)

Repeal the subsection, substitute:

(2) For the purposes of this Division, an organisation is taken to have been de-registered under Division 7 in connection with the formation of an amalgamated organisation if the de-registration occurred in connection with the formation of:

(a) the amalgamated organisation; or

(b) another organisation that was subsequently de-registered under Division 7 in connection with the formation of:

(i) the amalgamated organisation; or

(ii) an organisation that, through one or more previous applications of this subsection, is taken to have been de-registered under Division 7 in connection with the formation of the amalgamated organisation.

3 At the end of paragraph 253ZJ(3)(b)

Add “, whether by a direct voting system or a collegiate electoral system”.

4 Application of Schedule

The amendments made by this Schedule apply for the purposes of any determination of whether an application under section 253ZJ of the Workplace Relations Act 1996 was properly made, including an application made before the commencement of this Schedule.

Schedule 8—Matters referred by Victoria

Workplace Relations Act 1996

1 Section 170MB

Repeal the section, substitute:

170MB Successor employers bound

(1) If:

(a) an employer is bound by a certified agreement; and

(b) the application for certification of the agreement stated that it was made under Division 3; and

(c) at a later time, a new employer becomes the successor, transmittee or assignee (whether immediate or not) of the whole or a part of the business concerned;

then, from the later time:

(d) the new employer is bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and

(e) the previous employer ceases to be bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and

(f) a reference in this Part to the employer includes a reference to the new employer, and ceases to refer to the previous employer, to the extent that the context relates to the whole or the part of the business.

(2) If:

(a) an employer is bound by a certified agreement; and

(b) the application for certification of the agreement stated that it was made under Division 2; and

(c) at a later time, a new employer that is a constitutional corporation or the Commonwealth becomes the successor, transmittee or assignee (whether immediate or not) of the whole or a part of the business concerned;

then, from the later time:

(d) the new employer is bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and

(e) the previous employer ceases to be bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and

(3) This section does not affect the rights and obligations of the previous employer that arose before the later time.

2 Subsection 494(1)

Omit “subsection (2)”, substitute “this section”.

3 At the end of section 494

Add:

(3) Division 2 of Part VIB and related provisions of this Act also have effect as if subsection 170MB(2) were repealed and the following provision substituted:

(2) If:

(a) an employer is bound by a certified agreement; and

(b) the application for certification of the agreement stated that it was made under Division 2 or under Division 2 as it operates because of section 494; and

(c) at a later time, a new employer that is a constitutional corporation, or the Commonwealth, or an employer (within the meaning of Part XV) in Victoria, becomes the successor, transmittee or assignee (whether immediate or not) of the whole or a part of the business concerned;

then, from the later time:

(d) the new employer is bound by the certified agreement, to the extent that it relates:

(i) to the whole or the part of the business; and

(ii) in the case of a new employer (within the meaning of Part XV) in Victoria—to employees (within the meaning of Part XV) in Victoria; and

(e) the previous employer ceases to be bound by the certified agreement, to the extent that it relates:

(i) to the whole or the part of the business; and

(ii) in the case of a new employer (within the meaning of Part XV) in Victoria—to employees (within the meaning of Part XV) in Victoria; and

(f) a reference in this Part to the employer includes a reference to the new employer, and ceases to refer to the previous employer, to the extent that the context relates:

(i) to the whole or the part of the business; and

(ii) in the case of a new employer (within the meaning of Part XV) in Victoria—to employees (within the meaning of Part XV) in Victoria.

4 Subsection 495(1)

Omit “subsection (2)”, substitute “this section”.

5 Paragraph 495(2)(b)

Repeal the paragraph, substitute:

(b) an employee (within the meaning of this Part) in Victoria;

and so have effect as if the following paragraph were added at the end of section 170VC:

(g) the employer is an employer (within the meaning of Part XV) in Victoria and the employee is an employee (within the meaning of Part XV) in Victoria.

6 At the end of section 495

Add:

(3) Section 170VS also has effect in relation to an AWA made under Part VID as if the following subparagraph were inserted after subparagraph 170VS(1)(b)(vi):

(vii) the new employer is an employer (within the meaning of Part XV) in Victoria and the employee is an employee (within the meaning of Part XV) in Victoria;

Schedule 9—Miscellaneous amendments

Workplace Relations Act 1996

1 Paragraph 152(5)(a)

After “relevant”, insert “State”.

2 Subsection 178(1)

Repeal the subsection, substitute:

(1) Where an organisation or person bound by an award, an order of the Commission or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction.

3 Subsection 202(13) (definition of State Act)

Repeal the definition, substitute:

State Act means:

(a) the Industrial Relations Act 1996 of New South Wales; or

(b) the Industrial Organisations Act 1997 of Queensland; or

(d) the Industrial and Employee Relations Act 1994 of South Australia.

4 Paragraph (a) of Schedule 3

Omit “union”, substitute “organisation”.

5 Paragraph (a) of Schedule 3

Omit “Industrial Arbitration Act, 1940”, substitute “Industrial Relations Act 1996”.

6 Paragraph (b) of Schedule 3

Omit “Industrial Conciliation and Arbitration Act 1961”, substitute “Workplace Relations Act 1997”.

7 Paragraph (d) of Schedule 3

Omit “Industrial Conciliation and Arbitration Act, 1972”, substitute “Industrial and Employee Relations Act 1994”.

Schedule 10—Amendment of other Acts

Navigation Act 1912

1 Subsection 6(1)

Insert:

industrial agreement includes:

(a) a certified agreement, AWA or State employment agreement within the meaning of the Workplace Relations Act 1996; and

(b) an agreement certified or approved under:

(i) section 115 of the Industrial Relations Act 1988, as in force before the commencement of the Industrial Relations Amendment Act 1992; or

(ii) Division 3A of Part VI of the Industrial Relations Act 1988, as in force before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993; or

(iii) Part VIB of the Industrial Relations Act 1988, as in force before the commencement of Schedule 8 to the Workplace Relations And Other Legislation Amendment Act 1996.

2 Section 135

After “award”, insert “or industrial agreement”.

3 Section 292

After “Workplace Relations Act 1996”, insert “, or an industrial agreement,”.

Safety, Rehabilitation and Compensation Act 1988

4 Subsection 4(1)

Insert:

industrial agreement includes:

(a) a certified agreement, AWA or State employment agreement within the meaning of the Workplace Relations Act 1996; and

(b) an agreement certified or approved under:

(i) section 115 of the Industrial Relations Act 1988, as in force before the commencement of the Industrial Relations Amendment Act 1992; or

(ii) Division 3A of Part VI of the Industrial Relations Act 1988, as in force before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993; or

(iii) Part VIB of the Industrial Relations Act 1988, as in force before the commencement of Schedule 8 to the Workplace Relations And Other Legislation Amendment Act 1996.

5 Paragraph 33(2)(ba)

Omit “industrial award, determination, order or agreement”, substitute “award, determination, order or industrial agreement”.

6 Paragraph 52(6)(b)

Repeal the paragraph, substitute:

(b) an award or order made, or industrial agreement entered into, under a law of the Commonwealth; or

7 Section 116

After “award,”, insert “order, determination or industrial agreement,”.

Seafarers Rehabilitation and Compensation Act 1992

8 Section 3

Insert:

industrial agreement includes:

(a) a certified agreement, AWA or State employment agreement within the meaning of the Workplace Relations Act 1996; and

(b) an agreement certified or approved under:

(i) section 115 of the Industrial Relations Act 1988, as in force before the commencement of the Industrial Relations Amendment Act 1992; or

(ii) Division 3A of Part VI of the Industrial Relations Act 1988, as in force before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993; or

(iii) Part VIB of the Industrial Relations Act 1988, as in force before the commencement of Schedule 8 to the Workplace Relations And Other Legislation Amendment Act 1996.

9 Paragraph 4(1)(c)

After “award”, insert “or industrial agreement”.

10 Subsection 13(2)

Omit “certified”, substitute “industrial”.

11 Subsection 13(3)

Omit “certified”, substitute “industrial”.

12 Subsection 13(5)

Omit “certified”, substitute “industrial”.

13 Paragraph 13(6)(b)

Omit “certified”, substitute “industrial”.

14 Paragraph 31(14)(a)

Omit “certified”, substitute “industrial”.

15 Subsection 61(6)

Omit “or order” (twice occurring), substitute “, order or industrial agreement”.

16 Subsection 61(6)

Omit “relating to conciliation and arbitration”.

17 Section 137

After “any award”, insert “or industrial agreement”.

18 Section 137

Omit “certified”, substitute “industrial”.

Superannuation Act 1976

19 Subsection 54C(1)

Omit “or contract of employment”, substitute “, contract of employment or other agreement”.

Superannuation Act 1990

20 Subsection 13(1)

Omit “or contract of employment”, substitute “, contract of employment or other agreement”.

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