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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Workplace
Relations Amendment (Australian Workplace Agreements Procedures) Bill
2000
No. ,
2000
(Employment, Workplace Relations and Small
Business)
A Bill for an Act to amend the
Workplace Relations Act 1996 in relation to procedures for Australian
Workplace Agreements, and for related
purposes
ISBN: 0642
43901X
Contents
Part 1—Amendments 3
Workplace Relations Act
1996 3
Part 2—Application and saving
provisions 40
A Bill for an Act to amend the Workplace Relations Act
1996 in relation to procedures for Australian Workplace Agreements, and for
related purposes
The Parliament of Australia enacts:
This Act may be cited as the Workplace Relations Amendment (Australian
Workplace Agreements Procedures) Act 2000.
(1) Subject to subsections (2) and (3), this Act commences on a day
to be fixed by Proclamation.
(2) Subject to subsection (3), if this Act does not commence under
subsection (1) within the period of 6 months beginning on the day on which
it receives the Royal Assent, it commences on the first day after the end of
that period.
(3) If:
(a) the Workplace Relations Amendment (Secret Ballots for Protected
Action) Act 2000; or
(b) item 3 of Schedule 1 to the Workplace Relations Amendment
(Termination of Employment) Act 2000;
has commenced before the day on which this Act commences under
subsection (1) or (2), item 1 of Schedule 1 to this Act does not
commence at all.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Subsection 4(1)
Insert:
old IR agreement means an agreement certified or approved
under:
(a) section 115, as in force immediately before the commencement of
the Industrial Relations Amendment Act 1992; or
(b) Division 3A of Part VI, as in force immediately before the
commencement of Schedule 2 to the Industrial Relations Reform Act
1993; or
(c) Part VIB, as in force immediately before the commencement of
item 1 of Schedule 9 to the Workplace Relations and Other
Legislation Amendment Act 1996.
Note: If the Workplace Relations Amendment (Secret
Ballots for Protected Action) Act 2000 or item 3 of Schedule 1
to the Workplace Relations Amendment (Termination of Employment) Act
2000 has already commenced, this item does not come into operation. See
subsection 2(3).
2 Divisions 1, 2, 3, 4, 5 and 6 of
Part VID
Repeal the Divisions, substitute:
(1) This Part deals with the making, approval and operation of:
(a) Australian Workplace Agreements (AWAs); and
(b) agreements to extend, vary or terminate AWAs (ancillary
agreements).
(2) Division 1 contains provisions dealing with the interpretation
and scope of this Part.
(3) Division 2 sets out the requirements for making an AWA.
Division 3 deals with the approval process for AWAs. Division 4 sets
out the effect of an AWA on awards, agreements and laws. That Division
also:
(a) sets out obligations breach of which may lead to a civil penalty;
and
(b) deals with the conduct of industrial action by a party to an AWA
during the AWA’s period of operation before its nominal expiry
date.
(4) Division 5 deals with agreements to extend, vary or terminate
AWAs. The Division contains the following Subdivisions:
(a) Subdivision A dealing with the making and approval of extension
agreements;
(b) Subdivision B dealing with the making and approval of variation
agreements;
(c) Subdivision C dealing with the making and approval of agreements to
terminate AWAs and other mechanisms for terminating AWAs.
(5) Division 7 deals with enforcement and remedies in relation to
AWAs and ancillary agreements.
(6) Division 9 contains miscellaneous matters in relation to AWAs and
ancillary agreements.
In this Part, unless the contrary intention appears:
ancillary document means any of the following:
(a) a variation agreement;
(b) an extension agreement;
(c) a termination agreement;
(d) a termination notice.
approval notice means an approval notice issued by the
Employment Advocate under Division 3 or 5.
approved means approved under Division 3 or 5 by the
Employment Advocate.
AWA has a meaning affected by section 170VAB and
subsections 170VCB(4) and 170VEG(4).
AWA date means the date on which the employer and employee
sign the AWA or, if they sign on different dates, the later of those
dates.
bargaining agent means a person or group of persons duly
appointed as a bargaining agent under section 170WAA.
constitutional trade or commerce means trade or
commerce:
(a) between Australia and a place outside Australia; or
(b) between the States; or
(c) within a Territory, between a State and a Territory or between 2
Territories.
eligible court means any of the following:
(a) the Federal Court of Australia;
(b) a Supreme Court of a State or Territory;
(c) a District, County or Local Court;
(d) a magistrate’s court.
employee has a meaning affected by
section 170VAB.
employer has a meaning affected by
section 170VAB.
existing employee, in relation to an AWA, means an employee
who signed the AWA after commencing the employment to which the AWA
relates.
extension agreement means an agreement to extend the nominal
expiry date of an AWA.
new employee, in relation to an AWA, means an employee who
signed the AWA before, or at the time of, commencing the employment to which the
AWA relates.
no-disadvantage test means the no-disadvantage test set out
in Part VIE.
nominal expiry date means the nominal expiry date that
applies under section 170VBC.
party, in relation to an AWA or ancillary document, means the
employer or employee.
period of operation, in relation to an AWA, means the period
of operation as determined under section 170VBD.
refusal notice means a refusal notice issued by the
Employment Advocate under Division 3 or 5.
relevant or designated award means the relevant or designated
award that is used when applying the no-disadvantage test set out in
Part VIE.
State agreement means an employment agreement made under, or
for the purposes of, a law of a State.
termination agreement means an agreement to terminate an
AWA.
variation agreement means an agreement to vary an
AWA.
verified copy, in relation to a document, means
a copy that is certified as being a true copy of the document.
(1) So far as the context permits, a reference in this Part to an AWA or
ancillary document includes a reference to a proposed AWA or ancillary
document.
(2) In relation to a proposed AWA or ancillary document, a reference to
the employer or employee is a reference to the person who will be the employer
or employee when the AWA or ancillary document starts to operate.
An AWA is of no effect unless at least one of the following applies at
the AWA date:
(a) the employer is a constitutional corporation;
(b) the employer is the Commonwealth;
(c) the employee’s primary workplace is in a Territory;
(d) the employer is a waterside employer, the employee is a waterside
worker and the employee’s employment is in connection with constitutional
trade or commerce;
(e) the employee is a maritime employee and the employee’s
employment is in connection with constitutional trade or commerce;
(f) the employee is a flight crew officer and the employee’s
employment is in connection with constitutional trade or commerce.
An AWA or ancillary document has effect as provided by this Part, and not
otherwise.
(1) An employer and employee may make a written agreement, called an
Australian workplace agreement, that deals with matters pertaining to the
relationship between an employer and employee.
(2) The requirements set out in the following sections must be satisfied
in relation to the AWA:
(a) section 170VBA (making an AWA);
(b) section 170VBB (content of an AWA).
(3) The AWA may be made before commencement of the employment.
(1) An AWA must be signed and dated by the employer and the employee who
are parties to it.
(2) The employee must genuinely consent to the terms and conditions in the
AWA.
(3) The employer must give the employee a copy of the AWA.
Note: This section is a civil penalty provision (see
section 170VV).
(4) Before the employee signs the AWA, the employer must:
(a) give the employee a copy of an information statement prepared by the
Employment Advocate (see subsection (5)); and
(b) explain the effect of the AWA to the employee.
(5) The information statement prepared by the Employment Advocate for the
purposes of paragraph (4)(a) must include information about the following
matters, but may include other information:
(a) Commonwealth statutory entitlements;
(b) occupational health and safety law;
(c) services provided by the Employment Advocate;
(d) bargaining agents.
(6) If the rate of the employee’s remuneration under the AWA as at
the start of its period of operation is not more than $68,000 per year, the
employee may withdraw his or her consent to the AWA by giving written notice of
the withdrawal of consent to the employer before the end of the cooling-off
period.
Note: The employee may withdraw his or her consent to the
AWA even after the employer has applied to the Employment Advocate for approval
of the AWA (see subsections 170VC(6) and (7)).
(7) The cooling-off period is the period of:
(a) 5 days after the day on which a new employee signs the AWA;
and
(b) 14 days after the day on which an existing employee signs the
AWA.
Must be included
(1) The AWA must include the provisions relating to discrimination that
are prescribed by the regulations. If the AWA does not in fact include those
provisions, the AWA is taken to include those provisions.
(2) The AWA must include a dispute resolution procedure. If the AWA does
not in fact include a dispute resolution procedure, the AWA is taken to include
the model procedure that is prescribed by the regulations.
(3) A dispute resolution procedure that is included in an AWA under
subsection (2), or prescribed by the regulations for the purposes of
subsection (2), may confer powers on the Commission to settle disputes
between the parties to the AWA about the application or interpretation of the
AWA. The Commission may exercise those powers.
Must not be included
(4) The AWA must not include any provisions that prohibit or restrict
disclosure of details of the AWA by either party to another person.
(5) The AWA must not include any objectionable provisions within the
meaning of section 298Z.
(1) An AWA may specify a date as its nominal expiry date. The date cannot
be more than 3 years after the AWA date.
(2) If no date is specified, then the nominal expiry date is the third
anniversary of the AWA date.
Subject to section 170VCE, an AWA for an employee starts operating
on the later of:
(a) the AWA date; or
(b) the day specified in the AWA as the starting day; or
(c) if the employee is a new employee—the day the employment
commences;
and stops operating at the earlier of the following times:
(d) if no application is made to the Employment Advocate to approve the
AWA within the period of 60 days starting on the AWA date (or such longer period
as the Employment Advocate allows)—the start of the day after the end of
that period;
(e) the end of the day when a refusal notice is issued in relation to the
AWA;
(f) the time when a termination under section 170VEN, 170VEO or
170VEQ takes effect;
(g) the time when another AWA between the employer and employee starts to
operate.
Note: See also section 170VCA which deals with the
effect of the employee’s withdrawal of consent to the
AWA.
(1) An employer must apply, in writing, to the Employment Advocate for
approval of an AWA to which the employer is a party unless the employee
withdraws his or her consent to the AWA before the end of the cooling-off period
referred to in subsection 170VBA(7).
(2) The application must be made before the end of:
(a) the period of 60 days starting on the AWA date; or
(b) such longer period as the Employment Advocate allows.
Note: Section 170VCE sets out the consequences of
failure to apply for approval by the deadline.
(3) An application must be accompanied by:
(a) a copy of the AWA; and
(b) any other information that the Employment Advocate requires, by notice
published in the Gazette, for the purpose of performing his or her
functions.
(4) If the rate of the employee’s remuneration under the AWA as at
the start of its period of operation is more than $68,000 per year, an
application may be accompanied by:
(a) a declaration signed by the employee and the employer that the
remuneration is more than $68,000 per year; and
(b) if the application is accompanied by such a declaration—a
request signed by the employee asking the Employment Advocate to apply the
no-disadvantage test to the AWA.
Note: If a declaration, but not a request, is made, the AWA
is taken to satisfy the no-disadvantage test (see subsection
170VCB(2)).
(5) Two or more agreements may be included in the same notice of
application if the same employer is a party to all the agreements. The
agreements need not be in the same terms.
(6) Before the end of the cooling-off period referred to in subsection
170VBA(7), an employee referred to in subsection 170VBA(6) may withdraw his or
her consent to the AWA by giving to the employer and the Employment Advocate
written notice of the withdrawal of consent.
(7) The employee must lodge the written notice of withdrawal of consent
with the Employment Advocate within 7 days after giving notice of withdrawal to
the employer.
If:
(a) an employee referred to in subsection 170VBA(6) or 170VC(6) withdraws
his or her consent to the AWA before the end of the cooling-off period referred
to in subsection 170VBA(7); and
(b) apart from this section, the AWA would have already started to
operate;
the AWA is taken not to have started to operate.
Must approve if AWA passes the
no-disadvantage test etc.
(1) The Employment Advocate must approve an AWA if:
(a) the application for approval of the AWA is made in accordance with
section 170VC; and
(b) the AWA satisfies the requirements of section 170VBA;
and
(c) the AWA complies with section 170VBB; and
(d) subject to subsection (2), the AWA passes the no-disadvantage
test.
(2) An AWA is taken to pass the no-disadvantage test if, as at the start
of the AWA’s period of operation, the employee’s rate of
remuneration under the AWA is more than $68,000 per year and:
(a) the application for approval of the AWA is accompanied by a
declaration referred in paragraph 170VC(4)(a); but
(b) the employee has not made the request referred to in paragraph
170VC(4)(b).
Approval if concerns resolved
(3) If the Employment Advocate has concerns about whether the AWA meets
the requirements of subsection (1), the Employment Advocate must give the
parties to the AWA an opportunity to:
(a) take any action (including giving undertakings); or
(b) give to the Employment Advocate any information sought by the
Employment Advocate.
The Employment Advocate must approve the AWA if satisfied that, because of
the action taken or information given, those concerns are resolved.
(4) An undertaking accepted by the Employment Advocate is taken to be
included in the AWA.
Approval if no disadvantage to parties
(5) The Employment Advocate must approve the AWA if he or she:
(a) is not satisfied that the requirements of paragraphs (1)(a), (b)
and (c) are met in all respects; but
(b) is satisfied that the failure to meet those requirements has not
disadvantaged, and will not disadvantage, either party to the AWA.
However, this subsection does not apply to the requirements in subsections
170VBB(4) and (5).
Note: The AWA must pass the no-disadvantage test as required
by paragraph (1)(d).
Approval if not contrary to the public interest
(6) The Employment Advocate must approve the AWA (whether or not
subsection (1), (3) or (5) requires the Employment Advocate to approve the
AWA) if the Employment Advocate:
(a) is not satisfied that the AWA passes the no-disadvantage test;
but
(b) is satisfied that it is not contrary to the public interest to approve
the AWA.
(7) In deciding whether approval of an AWA is not contrary to the public
interest, the Employment Advocate must apply the principles (if any) referred to
in section 170VCC.
Otherwise, approval refused
(8) If the Employment Advocate is not required to approve the AWA, the
Employment Advocate must refuse to approve it.
(1) The President may establish principles to provide general guidance to
the Employment Advocate concerning whether approval of an AWA (or approval of an
AWA as varied) is not contrary to the public interest.
(2) The President may establish principles:
(a) on his or her own initiative; or
(b) on application by the Employment Advocate.
(3) If the Employment Advocate applies to the President for the
establishment of principles, the President must take such steps as the President
considers appropriate to obtain the Employment Advocate’s views about the
proposed principles.
(1) If the Employment Advocate approves an AWA, the Employment Advocate
must issue an approval notice to the employer.
(2) If the Employment Advocate refuses to approve an AWA, the Employment
Advocate must issue a refusal notice to the employer.
(3) If a designated award applies to the AWA to which the approval notice
or refusal notice relates, the Employment Advocate must identify the award in
the notice.
(4) The Employment Advocate must also include in an approval notice a copy
of each of the following:
(a) the provisions relating to discrimination referred to in subsection
170VBB(1) (if they are taken to be included in the AWA because of that
subsection);
(b) the model procedure relating to a dispute resolution procedure
referred to in subsection 170VBB(2) (if it is taken to be included in the AWA
because of that subsection);
(c) a copy of each undertaking (if any) in relation to the AWA that is
taken to be included in the AWA because of subsection 170VCB(4).
(1) If no application is made for approval of an AWA within the period of
60 days after the AWA date (or within such longer period as the Employment
Advocate allows):
(a) if the AWA has already started operating—the AWA ceases to
operate after the end of that period; and
(b) if the AWA has not already started operating—the AWA does not
start to operate; and
(c) the Employment Advocate cannot approve the AWA.
(2) If the Employment Advocate issues a refusal notice in relation to the
AWA:
(a) if the AWA has already started operating—the AWA ceases
operating at the end of the day when the refusal notice is issued; and
(b) if the AWA has not already started operating—the AWA does not
start to operate; and
(c) the Employment Advocate cannot approve the AWA.
(1) As soon as practicable after receiving from the Employment Advocate
the approval notice or refusal notice, the employer must give the employee with
whom the AWA was made a copy of:
(a) the notice; and
(b) any material that is taken to be included in the AWA because of
subsections 170VBB(1) and (2) and subsection 170VCB(4).
Note: This subsection is a civil penalty provision (see
section 170VV).
(2) The employer must give the employee any other document prescribed by
the regulations, within the period required by the regulations.
Note: This subsection is a civil penalty provision (see
section 170VV).
Awards
(1) During its period of operation, an AWA operates to the exclusion of
any award (including an award made under subsection 170MX(3)) that would
otherwise apply to the employee’s employment unless subsection (2)
applies to the AWA.
Exceptional matters order
(2) An AWA does not operate to the exclusion of an exceptional matters
order, but prevails over such an order to the extent of any
inconsistency.
State award or State agreement
(3) During its period of operation, an AWA operates to the exclusion of
any State award or State agreement that would otherwise apply to the
employee’s employment.
Certified agreement or old IR agreement
(4) During its period of operation, an AWA operates to the exclusion of
any certified agreement or old IR agreement that would otherwise apply to the
employee’s employment, unless subsection (5) or (6) applies to the
AWA.
(5) An AWA may expressly provide that it does not operate to the exclusion
of a certified agreement or old IR agreement that would otherwise apply to the
employee’s employment. In that case, the AWA prevails over the certified
agreement or old IR agreement only to the extent of any inconsistency.
(6) A certified agreement that comes into operation after the nominal
expiry date of an AWA may expressly provide that it prevails over the AWA to the
extent of any inconsistency. In that case, the certified agreement prevails over
the AWA only to the extent of any inconsistency.
State law
(1) Subject to this section, an AWA prevails over conditions of employment
specified in a State law, to the extent of any inconsistency.
(2) Provisions in an AWA that deal with the following matters operate
subject to the provisions of any State law that deals with the matter:
(a) occupational health and safety;
(b) workers’ compensation;
(c) apprenticeship;
(d) any other matter prescribed by the regulations.
(3) If a State law provides protection for an employee against harsh,
unjust or unreasonable termination of employment (however described in the law),
subsection (1) is not intended to affect the provisions of that law that
provide that protection, so far as those provisions are able to operate
concurrently with the AWA.
Prescribed conditions of employment
(4) To the extent of any inconsistency, an AWA prevails over prescribed
conditions of employment specified in a Commonwealth law that is prescribed by
the regulations.
(5) In this section:
Commonwealth law means an Act or any regulations or other
instrument made under an Act.
prescribed conditions means conditions that are identified by
the regulations.
State law means a law of a State or Territory (including any
regulations or other instrument made under a law of a State or Territory), but
does not include a State award or State agreement.
A party to an AWA must not breach the AWA.
Note: This section is a civil penalty provision (see
section 170VV).
(1) During the period of operation of an AWA before its nominal expiry
date, the employee must not engage in industrial action in relation to the
employment to which the AWA relates.
Note: This subsection is a civil penalty provision (see
section 170VV).
(2) During the period of operation of an AWA before its nominal expiry
date, the employer must not lock out the employee for the purpose of supporting
or advancing claims in respect of the employee’s employment.
Note: This subsection is a civil penalty provision (see
section 170VV).
(1) If:
(a) an employee who is a party to an AWA becomes an employee of a new
employer because the new employer is a successor to the whole or any part of the
previous employer’s business or undertaking; and
(b) at the succession time at least one of the following
applies:
(i) the new employer is a constitutional corporation;
(ii) the new employer is the Commonwealth;
(iii) the employee’s primary workplace is in a Territory;
(iv) the new employer is a waterside employer, the employee is a waterside
worker and the employee’s employment is in connection with constitutional
trade or commerce;
(v) the employee is a maritime employee and the employee’s
employment is in connection with constitutional trade or commerce;
(vi) the employee is a flight crew officer and the employee’s
employment is in connection with constitutional trade or commerce;
then, subject to any order of the Employment Advocate, the new employer
replaces the previous employer as a party to the AWA from the succession
time.
(2) The Employment Advocate may make an order for the purposes of this
section that a new employer who is the successor (whether immediate or not) of
the whole or part of a business or undertaking referred to in
paragraph (1)(a):
(a) is not bound by the AWA; or
(b) is bound by the AWA, but only to the extent specified in the
order.
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.
(3) The Employment Advocate may make an order under this section on
application by the employer bound by the agreement.
(4) Before making an order under this section, the Employment Advocate
must give the parties to the AWA an opportunity to make submissions.
(5) The succession does not affect the rights and obligations of the
previous employer that arose before the succession.
(6) In this section:
successor means a successor, transmittee or
assignee.
(1) An employer and employee may make a written agreement that extends the
nominal expiry date of an AWA to which they are parties. The extended date
cannot be more than 3 years after the AWA date.
(2) An extension agreement may only be made before the nominal expiry date
of the AWA.
(3) An extension agreement is made when it is signed and dated by the
employer and the employee who are parties to it.
(4) The employee must genuinely consent to making the extension
agreement.
(5) Subject to section 170VEC, the extension agreement takes effect
on the day on which the employer and the employee sign the agreement, or if they
sign on different days, the later of those days.
(1) An employer must apply, in writing, to the Employment Advocate
for approval of an extension agreement to which the employer is a party. An
application for approval must be made within:
(a) the period of 60 days starting on the day when the agreement takes
effect; or
(b) such longer period as the Employment Advocate allows.
Note: Subsection 170VEC(1) sets out the consequences of
failure to apply for approval before the end of that period.
(2) An application must be accompanied by:
(a) a copy of the extension agreement; and
(b) any other information that the Employment Advocate requires, by notice
published in the Gazette, for the purpose of performing his or her
functions.
(3) Two or more extension agreements may be included in the same notice of
application if the same employer is a party to all the agreements. The
agreements need not be in the same terms.
Approval if sections 170VE and 170VEA satisfied
(1) The Employment Advocate must approve the extension agreement
if:
(a) the application for approval of the extension agreement is made in
accordance with section 170VEA; and
(b) the extension agreement satisfies the requirements of
section 170VE.
Approval if no disadvantage to parties
(2) The Employment Advocate must approve the AWA if he or she:
(a) is not satisfied that the requirements of paragraphs (1)(a) and
(b) are met in all respects; but
(b) is satisfied that the failure to meet those requirements has not
disadvantaged, and will not disadvantage, either party to the AWA.
Approval notice etc.
(3) If the Employment Advocate approves an extension agreement, the
Employment Advocate must:
(a) issue an approval notice to the employer; and
(b) give a copy of the extension agreement as approved to the
employer.
Refusal of approval and refusal notice
(4) If the Employment Advocate is not required to approve the extension
agreement, the Employment Advocate must:
(a) refuse to approve the extension agreement; and
(b) issue a refusal notice to the employer.
Note: Subsection 170VEC(2) sets out the consequences of the
issuing of a refusal notice.
Employer must give certain documents to employee
(5) As soon as practicable after receiving from the Employment Advocate
the approval notice or refusal notice, the employer must give the employee with
whom the extension agreement was made a copy of:
(a) the notice; and
(b) the extension agreement (if it was approved).
Note: This subsection is a civil penalty provision (see
section 170VV).
(6) The employer must give the employee any other document prescribed by
the regulations, within the period required by the regulations.
Note: This subsection is a civil penalty provision (see
section 170VV).
(1) If no application is made for approval of an extension agreement
within the period of 60 days starting on the day when the agreement took effect
(or within such longer period as the Employment Advocate allows):
(a) the extension agreement ceases to have effect after the end of that
period; and
(b) the Employment Advocate cannot approve the extension
agreement.
(2) If the Employment Advocate issues a refusal notice in relation to the
extension agreement, the extension agreement ceases to have effect at the end of
the day when the refusal notice is issued.
(1) An employer and employee may make a written agreement varying an AWA.
A variation agreement is made when it is signed and dated by the employer and
the employee who are parties to it.
Note: A variation agreement may vary the AWA’s nominal
expiry date. However, the extended date cannot be more than 3 years after the
AWA date (see sections 170VBC and 170VE).
(2) If the rate of the employee’s remuneration under the AWA as
varied is not more than $68,000 per year as at when the variation agreement
takes effect, the employee may withdraw his or her consent to the variation
agreement by giving written notice of the withdrawal of consent to the employer
and the Employment Advocate before the end of the cooling-off period.
Note: The employee may withdraw his or her consent to the
variation agreement even after the employer has applied to the Employment
Advocate for approval of the variation agreement (see subsections 170VEE(6) and
(7)).
(3) The cooling-off period is the period of 14 days after
the day on which the employee signs the agreement.
(4) Subject to sections 170VEF and 170VEJ, the variation agreement
takes effect on:
(a) the day on which the employer and employee sign the variation
agreement, or if they sign on different days, the later of those days;
and
(b) if a day is specified in the variation agreement as the date of effect
and that day is later than the day under paragraph (a)—the day
specified in the agreement.
(5) Sections 170VBA and 170VBB apply to the AWA as varied in the same
way as those sections apply to the original AWA.
(1) An employer must apply, in writing, to the Employment Advocate for
approval of a variation agreement to which the employer is a party unless the
employee withdraws his or her consent to the variation agreement before the end
of the cooling-off period referred to in subsection 170VED(3).
(2) An application for approval must be made within:
(a) the period of 60 days starting on:
(i) the day on which the employer and the employee sign the variation
agreement; or
(ii) if they sign on different days—the later of those days;
or
(b) such longer period as the Employment Advocate allows.
Note: Subsection 170VEJ(1) sets out the consequences of
failure to apply for approval by the deadline.
(3) An application must be accompanied by:
(a) a copy of the variation agreement; and
(b) any other information that the Employment Advocate requires, by notice
published in the Gazette, for the purpose of performing his or her
functions.
(4) If the rate of the employee’s remuneration under the AWA as
varied is more than $68,000 per year as at when the variation agreement takes
effect, an application may be accompanied by:
(a) a declaration signed by the employee and the employer that the
remuneration is more than $68,000 per year; and
(b) if the application is accompanied by such a declaration—a
request signed by the employee asking the Employment Advocate to apply the
no-disadvantage test to the variation agreement.
Note: If a declaration, but not a request, is made, the AWA
as varied is taken to satisfy the no-disadvantage test (see subsection
170VEG(2)).
(5) Two or more variation agreements may be included in the same notice of
application if the same employer is a party to all the agreements. The
agreements need not be in the same terms.
(6) Before the end of the cooling-off period referred to in subsection
170VED(3), an employee referred to in subsection 170VED(2) may withdraw his or
her consent to the variation agreement by giving to the employer and the
Employment Advocate written notice of the withdrawal of consent.
(7) The employee must lodge the written notice of withdrawal of consent
with the Employment Advocate within 7 days after giving notice of withdrawal to
the employer.
If:
(a) an employee referred to in subsection 170VED(2) or 170VEE(6) withdraws
his or her consent to the variation agreement before the end of the cooling-off
period referred to in subsection 170VED(3); and
(b) apart from this section, the variation agreement would already have
taken effect;
the variation agreement is taken not to have taken effect.
Approval if AWA, as varied, passes the no-disadvantage test
etc.
(1) The Employment Advocate must approve a variation agreement
if:
(a) the application for approval of the variation agreement is made in
accordance with section 170VEE; and
(b) the variation agreement satisfies the requirements of
section 170VBA as it applies to those agreements; and
(c) the AWA as varied complies with section 170VBB as it applies to
variation agreements; and
(d) subject to subsection (2), the AWA, as varied, passes the
no-disadvantage test.
(2) An AWA, as varied, is taken to pass the no-disadvantage test if, as at
when the variation agreement takes effect, the employee’s rate of
remuneration under the AWA as varied is more than $68,000 per year
and:
(a) the
application for approval of the AWA is accompanied by a declaration referred in
paragraph 170VEE(4)(a); but
(b) the employee has not made the request referred to in paragraph
170VEE(4)(b).
Approval if concerns resolved
(3) If the Employment Advocate has concerns about whether the AWA meets
the requirements of subsection (1), the Employment Advocate must give the
parties to the AWA an opportunity to:
(a) take any action (including giving undertakings); or
(b) give to the Employment Advocate any information sought by the
Employment Advocate.
The Employment Advocate must approve the AWA if satisfied that, because of
the action taken or information given, those concerns are resolved.
(4) An undertaking accepted by the Employment Advocate is taken to be
included in the AWA as varied.
Approval if no disadvantage to parties
(5) The Employment Advocate must approve the variation agreement if he or
she:
(a) is not satisfied that the requirements of paragraphs (1)(a), (b)
and (c) are met in all respects; but
(b) is satisfied that the failure to meet those requirements has not
disadvantaged, and will not disadvantage, either party to the AWA.
However, this subsection does not apply to the requirements in subsections
170VBB(4) and (5) (as those subsections apply to variation
agreements).
Note: The AWA, as varied, must pass the no-disadvantage test
as required by paragraph (1)(d).
Approval if not contrary to the public interest
(6) The Employment Advocate must approve the variation agreement (whether
or not subsection (1), (3) or (5) requires the Employment Advocate to
approve it) if the Employment Advocate:
(a) is not satisfied that the AWA as varied passes the no-disadvantage
test; but
(b) is satisfied that it is not contrary to the public interest to approve
the variation agreement.
(7) In deciding whether approval of a variation agreement is not contrary
to the public interest, the Employment Advocate must apply the principles (if
any) referred to in section 170VCC.
Otherwise, approval refused
(8) If the Employment Advocate is not required to approve the variation
agreement, the Employment Advocate must refuse to approve it.
(1) If the Employment Advocate approves a variation agreement, the
Employment Advocate must:
(a) issue an approval notice to the employer; and
(b) give a copy of the variation agreement as approved to the
employer.
(2) If the Employment Advocate refuses to approve a variation agreement,
the Employment Advocate must issue a refusal notice to the employer.
Note: Subsection 170VEJ(2) sets out the consequences of the
issuing of a refusal notice.
(1) As soon as practicable after receiving from the Employment Advocate
the approval notice or refusal notice, the employer must give the employee with
whom the variation agreement was made a copy of:
(a) the notice; and
(b) the variation agreement as approved (if it was approved).
(c) any material that is taken to be included in the AWA because of
paragraph 170VEG(1)(c) or subsection 170VEG(4).
Note: This subsection is a civil penalty provision (see
section 170VV).
(2) The employer must give the employee any other document prescribed by
the regulations, within the period required by the regulations.
Note: This subsection is a civil penalty provision (see
section 170VV).
(1) If no application is made for approval of a variation agreement before
the end of the period referred to in subsection 170VEE(2):
(a) if the variation agreement has already taken effect—the
variation agreement ceases to have effect after the end of that period;
and
(b) if the variation agreement has not already taken effect—the
variation agreement does not take effect; and
(c) the Employment Advocate cannot approve the variation
agreement.
(2) If the Employment Advocate issues a refusal notice in relation to the
variation agreement:
(a) if the variation agreement has already taken effect—the
variation agreement ceases to have effect at the end of the day when the refusal
notice is issued; and
(b) if the variation agreement has not already taken effect—the
variation agreement does not take effect.
This Subdivision sets out the 3 ways in which an AWA may be
terminated:
(a) termination by a termination agreement (see sections 170VEL to
170VEN); and
(b) termination by the Employment Advocate (see section 170VEO);
and
(c) termination in accordance with the AWA (see sections 170VEP and
170VEQ).
(1) At any time, the employer and employee may make a written agreement to
terminate the AWA.
(2) A termination agreement is made when it is signed and dated by the
employer and the employee who are parties to it.
(3) The employee must genuinely consent to making the termination
agreement.
(4) A termination agreement must be approved by the Employment Advocate
under section 170VEN. If approved, the agreement takes effect:
(a) at the end of the day on which an approval notice is issued for the
termination agreement; or
(b) if a time for termination is specified in the termination agreement
and that time is later than the time under paragraph (a)—at the time
specified in the termination agreement.
If the Employment Advocate refuses to approve the termination agreement, it
does not take effect.
(1) An employer must apply, in writing, to the Employment Advocate
for approval of a termination agreement to which the employer is a
party.
(2) The application must be made within:
(a) the period of 60 days starting when the termination agreement is made;
or
(b) such longer period as the Employment Advocate allows.
(3) An application must be accompanied by:
(a) a copy of the termination agreement; and
(b) any other information that the Employment Advocate requires, by notice
published in the Gazette, for the purpose of performing his or her
functions.
(4) Two or more termination agreements may be included in the same notice
of application if the same employer is a party to all the agreements. The
agreements need not be in the same terms.
Approval if sections 170VEL and 170VEM are satisfied
(1) The Employment Advocate must approve the termination agreement
if:
(a) the application for approval of the termination agreement is made in
accordance with section 170VEM; and
(b) the termination agreement satisfies the requirements of
section 170VEL.
Approval if no disadvantage to parties
(2) The Employment Advocate must approve the termination agreement if he
or she:
(a) is not satisfied that the requirements of paragraphs (1)(a) and
(b) are met in all respects; but
(b) is satisfied that the failure to meet those requirements has not
disadvantaged, and will not disadvantage, either party to the AWA.
Approval notice
(3) If the Employment Advocate approves a termination agreement, the
Employment Advocate must issue an approval notice to the employer.
Refusal of approval and refusal notice
(4) If the Employment Advocate is not required to approve the termination
agreement, the Employment Advocate must:
(a) refuse to approve the termination agreement; and
(b) issue a refusal notice to the employer.
Employer must give certain documents to employee
(5) As soon as practicable after receiving from the Employment Advocate
the approval notice or refusal notice, the employer must give the employee with
whom the termination agreement was made a copy of:
(a) the notice; and
(b) the termination agreement (if it was approved).
Note: This subsection is a civil penalty provision (see
section 170VV).
(6) The employer must give the employee any other document prescribed by
the regulations, within the period required by the regulations.
Note: This subsection is a civil penalty provision (see
section 170VV).
(1) After the nominal expiry date of an AWA, the Employment Advocate may,
on application in writing by either party, terminate the AWA if the Employment
Advocate considers that it is not contrary to the public interest to do
so.
(2) Before making a determination for the purposes of subsection (1),
the Employment Advocate must take such steps as he or she thinks appropriate to
obtain the views of each of the parties to the AWA about whether the AWA should
be terminated.
(3) The Employment Advocate must issue a copy of its determination to the
parties.
(4) A termination under subsection (3) takes effect at the end of the
day on which the Employment Advocate issues copies of its determination, or at
such later time as is specified in the determination.
(1) After the nominal expiry date of an AWA, the employer or the employee
may apply, in writing, to the Employment Advocate for approval to terminate the
AWA in a manner provided for in the AWA.
(2) As soon as practicable after making the application, the applicant
must give written notice of the application to the other party to the
AWA.
(3) An application must be accompanied by:
(a) details of the manner provided for in the AWA to terminate the AWA;
and
(b) any other information that the Employment Advocate requires, by notice
published in the Gazette, for the purpose of performing his or her
functions.
(4) The termination of 2 or more AWAs may be covered by the same notice of
application if:
(a) the applicant is the employer; and
(b) the employer is a party to all the AWAs.
The terminations need not be in the same terms.
(5) A termination referred to in subsection (1) must be approved by
the Employment Advocate under section 170VEQ. If approved, the termination
takes effect:
(a) at the end of the day on which an approval notice is issued in
relation to the termination; or
(b) if a time for termination is specified in the application and that
time is later than the time under paragraph (a)—at the time specified
in the application.
If the Employment Advocate refuses to approve the termination, it does not
take effect.
Approval if section 170VEP etc. satisfied
(1) The Employment Advocate must approve an application made under
section 170VEP if:
(a) the application is made in accordance with section 170VEP;
and
(b) the applicant has notified the other party of the application;
and
(c) the termination is in accordance with the AWA.
Approval if no disadvantage to parties
(2) The Employment Advocate must approve the termination if he or
she:
(a) is not satisfied that the requirements of paragraphs (1)(a), (b)
and (c) are met in all respects; but
(b) is satisfied that the failure to meet those requirements has not
disadvantaged, and will not disadvantage, either party to the AWA.
Approval notice
(3) If the Employment Advocate approves the application, the Employment
Advocate must issue an approval notice to the applicant.
Refusal of approval and refusal notice
(4) If the Employment Advocate is not required to approve the termination,
the Employment Advocate must:
(a) refuse to approve the termination; and
(b) issue a refusal notice to the applicant.
Applicant must give certain documents to other party
(5) As soon as practicable after receiving from the Employment Advocate
the approval notice or refusal notice, the applicant must give the other party
to the AWA copy of the notice.
Note: This subsection is a civil penalty provision (see
section 170VV).
(6) The applicant must give the other party to the AWA any other document
prescribed by the regulations, within the period required by the
regulations.
Note: This subsection is a civil penalty provision (see
section 170VV).
3 At the end of subsection
170VV(1)
Add:
A contravention is not an offence.
Note: The heading to section 170VV is replaced by the
heading “Civil penalties”.
4 Subsection 170VV(4) (definition of penalty
provision)
Repeal the subsection, substitute:
(4) In this section:
penalty provision means:
(a) subsection 170VBA(3); or
(b) subsection 170VCF(1) or (2); or
(c) section 170VDB; or
(d) subsection 170VDC(1) or (2); or
(e) subsection 170VEB(5) or (6); or
(f) subsection 170VEI(1) or (2); or
(g) subsection 170VEN(5) or (6); or
(h) subsection 170VEQ(5) or (6); or
(i) subsection 170WAA(2) or (4); or
(j) subsection 170WF(1); or
(k) subsection 170WG(1) or (2); or
(l) section 170WH.
5 Subsection 170VV(3)
Repeal the subsection, substitute:
(3) An application for an order under subsection (1) that relates to
an AWA or ancillary document may be made by:
(a) a party to the AWA or ancillary document; or
(b) the Employment Advocate; or
(c) an authorised officer.
6 After section 170VV
Insert:
(1) If, in a proceeding against an employer under section 170VV, it
appears to the eligible court that an employee of the employer has not been paid
an amount that the employer was required to pay under the AWA, the court may
order the employer to pay to the employee the amount of the
underpayment.
(2) An order must not be made under subsection (1) in relation to so
much of an underpayment as relates to any period more than 6 years before the
commencement of the proceedings.
7 At the end of
section 170VW
Add:
(3) This section does not apply to the extent that the amount of the loss
or damage has been recovered by the employee who is a party to the AWA because
of an order made under section 170VVA.
8 Section 170VX
Repeal the section, substitute:
(1) If an AWA stops operating in the
circumstances set out in subsection (2) and the amount worked out under
paragraph (a) below is less than the amount worked out under
paragraph (b) below, the employee (or the Employment Advocate, or an
authorised officer, on the employee’s behalf) is entitled to recover the
shortfall from the employer in an eligible court:
(a) the total value of the entitlements to which the employee became
entitled under the AWA for the period it was in operation;
(b) the total value of the entitlements to which the employee would have
been entitled for that period (if the AWA had not been made) under the relevant
award in respect of the employment to which the AWA relates.
(2) The circumstances are where the AWA stops operating because of one of
the following:
(a) the employer’s failure to apply for approval of the AWA within
the period of 60 days after the AWA date (or within such longer period as the
Employment Advocate allowed);
(b) the issue of a refusal notice in relation to the AWA.
(1) This section applies if:
(a) the Employment Advocate approved an AWA under subsection 170VCB(3)
because the employer took action referred to in that subsection; and
(b) the AWA was operating before it was approved.
(2) If the amount worked out under paragraph (a) is less than the
amount worked out under paragraph (b), the employee (or the Employment
Advocate, or an authorised officer, on the employee’s behalf) is entitled
to recover the shortfall from the employer in an eligible court:
(a) the total value of the entitlements to which the employee became
entitled under the AWA for the period it was operating before it was
approved;
(b) the total value of the entitlements to which the employee would have
been entitled for that period if the AWA, as given to the Employment Advocate
for approval, had taken account of the action taken by the employer.
(1) If a variation agreement ceases to have effect in the circumstances
set out in subsection (2) and the amount worked out under
paragraph (a) below is less than the amount worked out under
paragraph (b) below, the employee (or the Employment Advocate, or an
authorised officer, on the employee’s behalf) is entitled to recover the
shortfall in an eligible court:
(a) the total value of the entitlements to which the employee became
entitled under the AWA, as varied, for the period during which the variation
agreement had taken effect;
(b) the total value of the entitlements to which the employee would have
been entitled for that period under the AWA before it was varied.
(2) The circumstances are where the variation agreement ceases to have
effect because of one of the following:
(a) the employer’s failure to apply for approval of the variation
agreement before the end of the period referred to in subsection
170VEE(2);
(b) the issue of a refusal notice in relation to the variation
agreement.
(1) This section applies if:
(a) the Employment Advocate approved a variation agreement under
subsection 170VLB(2) because the employer took action referred to in that
subsection; and
(b) the variation agreement had taken effect before it was
approved.
(2) If the amount worked out under paragraph (a) is less than the
amount worked out under paragraph (b), the employee (or the Employment
Advocate, or an authorised officer, on the employee’s behalf) is entitled
to recover the shortfall from the employer in an eligible court:
(a) the total value of the entitlements to which the employee became
entitled under the AWA, as varied, for the period during which the variation had
taken effect;
(b) the total value of the entitlements to which the employee would have
been entitled for that period if the variation agreement, as given to the
Employment Advocate for approval, had taken account of the action taken by the
employer.
9 Division 8 of
Part VID
Repeal the Division.
10 Before
section 170WF
Insert in Division 9:
(1) An employer or employee may appoint a person to be his or her
bargaining agent in relation to the making, approval, variation or termination
of an AWA. The appointment must be made in writing.
(2) Subject to subsection (3), an employer or employee must not
refuse to recognise a bargaining agent duly appointed by the other party for the
purposes of subsection (1).
Note: This subsection is a civil penalty provision (see
section 170VV).
(3) Subsection (2) does not apply if the person refusing has not been
given a copy of the bargaining agent’s instrument of appointment before
the refusal.
(4) An employer or employee must not coerce, or attempt to coerce, the
other party:
(a) to appoint, or not to appoint, a particular person as an authorised
bargaining agent; or
(b) to terminate the appointment of an authorised bargaining
agent.
Note: This subsection is a civil penalty provision (see
section 170VV).
(5) In this section:
person includes a group of persons.
11 At the end of subsection
170WF(1)
Add:
Note: This subsection is a civil penalty provision (see
section 170VV).
12 At the end of subsection
170WG(1)
Add:
Note: This subsection is a civil penalty provision (see
section 170VV).
13 At the end of subsection
170WG(2)
Add:
Note: This subsection is a civil penalty provision (see
section 170VV).
14 Section 170WH
Repeal the section, substitute:
A person must not give the Employment Advocate information for the
purposes of this Part that the person knows, or ought reasonably to know, is
false or misleading.
Note: This section is a civil penalty provision (see
section 170VV).
15 Subsection 170WHA(1)
Omit “filing,”.
16 Sections 170WHB, 170WHC and
170WHD
Repeal the sections.
17 Subsection 170WI(1)
Omit “filed with”, substitute “given to”.
18 Subsection 170WI(1)
Omit “or Commission”.
19 Paragraph 170WI(2)(a)
Omit “filed”, substitute “given to the Employment
Advocate”.
20 Paragraph 170WI(2)(b)
Omit “or Commission”.
21 Paragraph 170WI(2)(c)
Repeal the paragraph, substitute:
(c) that an approval notice or refusal notice was issued for a specified
AWA or ancillary document on a specified day.
22 At the end of
section 170WK
Add:
(2) The Agency Head may delegate his or her powers under
subsection (1) to an SES employee or an acting SES employee. A delegation
must be in writing.
23 Paragraph 170WL(d)
Repeal the paragraph.
24 Sections 524 and
525
Repeal the sections, substitute:
Subject to section 529, industrial action is not protected action
for the purposes of Division 8 of Part VIB if an employee who is bound
by an employment agreement organises or engages in the action:
(a) in the case of a collective employment agreement—at any time
when the agreement is in force; or
(b) in the case of an individual employment agreement—at any time
during the period of 3 years after the commencement of this Division.
Subject to section 529, a lockout is not protected action for the
purposes of Division 8 of Part VIB if an employer who is bound by an
employment agreement locks out an employee:
(a) in the case of a collective employment agreement—at any time
when the agreement is in force; or
(b) in the case of an individual employment agreement—at any time
during the period of 3 years after the commencement of this
Division.
Part 2—Application
and saving provisions
25 Application of items 2, 4, 8, 10 and 14
to 21
Subject to item 26, the amendments made by items 2, 4, 8, 10 and
14 to 21 apply to AWAs, extension agreements, variation agreements and
termination agreements made on or after the commencement of those
items.
26 Application of new
section 170VD
Section 170VD of the Workplace Relations Act 1996 as in force
immediately after the commencement of this item applies to AWAs made on or after
the commencement of item 2.
27 Application of items 5, 6 and
7
The amendments made by items 5, 6 and 7 apply to AWAs, extension
agreements, variation agreements and termination agreements whether made before,
on or after the commencement of those items.
28 Application of items 9 and
24
The amendments made by items 9 and 24 apply only in relation to
industrial action after the commencement of those items.
29 Savings—AWAs
(1) This item applies to an AWA if the AWA:
(a) was approved under section 170VPB or 170VPG of the Workplace
Relations Act 1996 as in force immediately before the commencement of this
item; and
(b) was in force immediately before that commencement.
(2) The AWA has effect, after that commencement, as if it had been approved
under section 170VCB of the amended Act.
30 Savings—extension
agreements
(1) This item applies to an extension agreement for an AWA if:
(a) the extension agreement was approved under section 170VPD of the
Workplace Relations Act 1996 as in force immediately before the
commencement of this item; and
(b) the AWA was in force immediately before that commencement.
(2) The extension agreement has effect, after that commencement, as if it
had been approved under section 170VEB of the amended Act.
31 Savings—variation
agreements
(1) This item applies to a variation agreement in relation to an
AWA:
(a) if the variation agreement was approved under section 170VPC or
170VPH of the Workplace Relations Act 1996 as in force immediately before
the commencement of this item; and
(b) the AWA was in force immediately before that commencement.
(2) The variation agreement has effect, after that commencement, as if it
had been approved under section 170VEG of the amended Act.
32 Savings—termination
agreements
(1) This item applies to a termination agreement for an AWA if:
(a) the termination agreement was approved under section 170VPD of
the Workplace Relations Act 1996 as in force immediately before the
commencement of this item; and
(b) the AWA was in force immediately before that commencement.
(2) The termination agreement has effect, after that commencement, as if it
had been approved under section 170VEN of the amended Act.
33 Savings—regulations made for purposes
of former sections 170VG and 170VR
If:
(a) regulations were made for the purposes of the former provision
referred to in column 2 of the table; and
(b) the regulations were in force immediately before the commencement of
this item;
the regulations have effect, after that commencement, as if they had been
made for the purposes of the new provision referred to in column 3.
|
Regulations continue to have effect |
||
|---|---|---|
|
Column 1 Item |
Column 2 Former provision |
Column 3 New provision |
|
1 |
subsection 170VG(1) |
subsection 170VBB(1) |
|
2 |
subsection 170VG(3) |
subsection 170VBB(2) |
|
3 |
subsection 170VR(4) |
subsection 170VDA(4) |
34 Savings—Gazette
notices
If:
(a) a notice was published in the Gazette for the purposes of the
former provision referred to in column 2 of the table; and
(b) the notice was in force immediately before the commencement of this
item;
the notice has effect, after that commencement, as if it had been published
in the Gazette for the purposes of the new provision referred to in
column 3.
|
Gazette notices continue to have effect |
||
|---|---|---|
|
Column 1 Item |
Column 2 Former provision |
Column 3 New provision |
|
1 |
paragraph 170VO(1)(c) |
paragraph 170VC(3)(b) |
|
2 |
paragraph 170VO(3)(c) |
paragraph 170VEE(3)(b) |
|
3 |
paragraph 170VO(4)(b) |
paragraph 170VEA(2)(b) |
|
4 |
paragraph 170VO(5)(b) |
paragraph 170VEM(3)(b) |
|
5 |
paragraph 170VO(6)(b) |
paragraph 170VEP(3)(b) |
35 Savings—prescribed
conditions
(1) This item applies to conditions identified by regulations if:
(a) the regulations were made for the purposes of the definition of
prescribed conditions in subsection 170VR(5) of the Workplace
Relations Act 1996 as in force immediately before the commencement of this
item; and
(b) the regulations were in force immediately before that
commencement.
(2) The regulations have effect, after that commencement, as if they had
been made for the purposes of the definition of prescribed
conditions in subsection 170VDA(5) of the amended Act.
36 Savings—appointment of bargaining
agent
(1) This item applies to an appointment of a bargaining agent if:
(a) the appointment was made under subsection 170VK(1) of the Workplace
Relations Act 1996 as in force immediately before the commencement of this
item; and
(b) the appointment was in force immediately before that
commencement.
(2) The appointment has effect, after that commencement, as if it had been
made under subsection 170WAA(1) of the amended Act.
37 Definitions
In this Part:
amended Act means the Workplace Relations Act 1996 as
amended by this Schedule.
former provision means a provision of the Workplace
Relations Act 1996 as in force immediately before the commencement of this
item.
new provision means a provision of the Workplace Relations
Act 1996 as in force immediately after the commencement of this
item.