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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK LEGISLATION AMENDMENT
(CLOSING LOOPHOLES) BILL 2023
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace Relations,
the Hon Tony Burke MP)
THIS EXPLANATORY MEMORANDUM TAKES ACCOUNT OF AMENDMENTS
MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
TABLE OF CONTENTS
OUTLINE .............................................................................................................................................................. 1
FINANCIAL IMPACT STATEMENT .............................................................................................................. 3
REGULATION IMPACT STATEMENT .......................................................................................................... 3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS ................................................................. 4
NOTES ON CLAUSES ...................................................................................................................................... 52
SCHEDULE 1--MAIN AMENDMENTS ...................................................................................................... 57
SCHEDULE 2--AMENDMENT OF THE ASBESTOS SAFETY AND ERADICATION AGENCY ACT
2013 ............................................................................................................................................................... 293
SCHEDULE 3--AMENDMENT OF THE SAFETY, REHABILITATION AND COMPENSATION ACT
1988 ............................................................................................................................................................... 305
SCHEDULE 4--AMENDMENT OF THE WORK HEALTH AND SAFETY ACT 2011.......................... 307
SCHEDULE 5--AMENDMENT OF THE COAL MINING INDUSTRY (LONG SERVICE LEAVE)
ADMINISTRATION ACT 1992 ................................................................................................................... 337
i
FAIR WORK LEGISLATION AMENDMENT
(CLOSING LOOPHOLES) BILL 2023
OUTLINE
The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill) would amend
the Fair Work Act 2009 (FW Act) and related legislation to improve the workplace relations
framework by:
• Improving job security by replacing the existing definition of 'casual employee'
with a fair and objective definition and by introducing a new employee choice
pathway for eligible employees to change to permanent employment if they wish to
do so.
• Addressing anomalous consequences of the small business redundancy exemption
in insolvency contexts by providing an exception to its operation when a larger
business downsizes to become a smaller business employer due to insolvency.
• Making targeted amendments to the bargaining framework by:
o Enabling multiple franchisees to access the single-enterprise stream;
o Allowing supported bargaining and single interest employer agreements to
be replaced by single-enterprise agreements at any time if certain
conditions are met;
o Authorising the Fair Work Commission (FWC) to make and vary
enterprise agreement model terms for flexibility, consultation and dispute
resolution in place of the existing provisions according to which these
terms are made by regulation;
• Ensuring that terms included in an intractable bargaining determination made by the
FWC, if not previously agreed by the bargaining representatives, must be not less
favourable to employees or employee organisations than corresponding terms in
existing enterprise agreements.
• Protecting bargained wages in enterprise agreements from being undercut by the
use of labour hire workers who are paid less than those minimum rates.
• Supporting workplace delegates by providing a framework for delegates' rights and
including protections for workplace delegates when seeking to exercise those rights.
• Establishing a new protected attribute in the FW Act to improve workplace
protections against discrimination for employees who have been, or continue to be,
subjected to family and domestic violence.
• Changing the defence to misrepresenting employment as an independent contractor
arrangement, known as 'sham contracting', from a test of 'recklessness' to one of
'reasonableness'.
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• Enabling a registered organisation to obtain an exemption certificate from the FWC
to waive the 24 hours' notice requirement for entry if they reasonably suspect a
member of their organisation has been or is being underpaid.
• Empowering the FWC to take action in relation to the future issue of such
exemption certificates if those rights are misused (for example, by imposing
conditions, or banning their issue for a specified period).
• Addressing concerns that a bargaining representative's non-compliance with a FWC
order to attend a FW Act section 448A conference could render subsequent
industrial action unprotected - for both those represented by the non-complying
bargaining representative, and for others participating in the action.
• Increasing maximum penalties for underpayments by amending the civil penalties
and serious civil contravention frameworks, and adjusting the threshold for what
will constitute a serious contravention.
• Clarifying that Fair Work Ombudsman (FWO) compliance notices can require an
employer to calculate the amount of an underpayment that is owed to an employee,
and that a court can order the recipient of the notice to comply with its terms.
• Repealing amendments made by the Fair Work (Registered Organisations)
Amendment (Withdrawal from Amalgamations) Act 2020, relating to the withdrawal
of parts of amalgamated organisations (de-merger).
• Introducing a new criminal offence for wage theft, which applies to intentional
conduct.
• Inserting into the FW Act an interpretive principle for determining the ordinary
meanings of 'employee' and 'employer' for the purposes of the FW Act. This
would enhance fairness by requiring consideration of the real substance, practical
reality and true nature of the relationship by reference to the totality of the
relationship between the parties.
• Allowing the FWC to set fair minimum standards for 'employee-like' workers,
including in the gig economy.
• Allowing the FWC to set fair minimum standards to ensure the Road Transport
Industry is safe, sustainable and viable.
• Allowing the FWC to deal with disputes about unfair terms in services contracts to
which an independent contractor is a party.
• Repealing a sunsetted clause regarding applications to vary modern awards if
already being dealt with in a four yearly review.
• Extending the functions of the Asbestos Safety and Eradication Agency to address
silica related diseases.
• Introducing a presumption according to which first responders covered by the
Safety, Rehabilitation and Compensation Act 1988 (SRC Act) who sustain post-
traumatic stress disorder (PTSD) will not have to prove their employment
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significantly contributed to their PTSD for the purpose of their workers'
compensation claim.
• Introducing a new offence of industrial manslaughter in the Work Health and Safety
Act 2011 (WHS Act), reflecting recommendations 23b of the Review of the Model
Work Health and Safety Laws - Final Report (Boland Review) and 13 of the They
Never Came Home Report (Senate Inquiry), and significantly increasing the
penalties for the existing Category 1 offence.
• Providing for a Family and Injured Workers Advisory Committee in the WHS Act.
• Aligning the WHS Act offence framework with recent changes to the Model WHS
Law by indexing the penalties for existing offences to the Consumer Price Index.
• Ensuring provisions dealing with the appointment of the Board of Directors of the
Coal Mining Industry (Long Service Leave Funding) Corporation reflect the
withdrawal of the Mining and Energy Division from the Construction, Forestry,
Maritime, Mining and Energy Union, which will occur on 1 December 2023.
FINANCIAL IMPACT STATEMENT
The measures in the Bill have a financial impact of $18.9 million over four years to 2026-27.
The Government has committed $104.7 million over four years to 2026-27, to support
implementation of measures in the Bill. Revenues of $85.8 million over four years to 2026-27
are expected to be returned through measures in the Bill, including penalties.
REGULATION IMPACT STATEMENT
The impact analyses for the following amendments were attached to the explanatory
memorandum to the Bill on introduction in the House of Representatives and are available in
full online:1
• Standing up for casual workers;
• Closing the labour hire loophole;
• Minimum standards and increased access to dispute resolution for independent
contractors.
1
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Legislation Amendment (Closing Loopholes) Bill 2023
1. The Fair Work Legislation Amendment (Closing Loopholes) Bill (Bill) is compatible
with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
2. The Bill would amend the Fair Work Act 2009 (FW Act) and related legislation to close
loopholes to protect Australian workers and strengthen the work health and safety
(WHS) framework.
Casual employment
3. Part 1 of Schedule 1 to the Bill would amend existing section 15A of the FW Act to
implement an objective definition of 'casual employee' to determine when an employee
can be classified as a casual employee.
4. The new definition would be characterised by the absence of a firm advance
commitment to continuing and indefinite work, to be assessed against various factors
that indicate the real substance, practical reality and true nature of the employment
relationship. Assessment of the true nature of the employment relationship reflects the
common law approach to defining casual employment before the High Court of
Australia's decision in WorkPac Pty Ltd v Rossato [2021] HCA 23 (Rossato).
5. The factors would include whether there is a mutual understanding or expectation
between the employer and employee, whether the employee can elect to accept or reject
work, the future availability of continuing work, whether there are other employees
performing the same work who are part-time or full-time employees, or whether there
is a regular pattern of work.
6. The Bill would also amend the National Employment Standards (NES) at Part 2-2 of
the FW Act to provide casual employees with two pathways to change their
employment status - by exercising a choice via a new notification procedure, or
through the existing casual conversion procedure. The amendments would also
establish a robust new framework for dealing with disputes about employment status.
7. The Bill would respond to findings of the Review of the Fair Work Amendment
(Supporting Australia's Jobs and Economic Recovery) Act 2021 (Cth) (Statutory
Review) by:
• strengthening the existing dispute resolution framework in the FW Act, including
by allowing the Fair Work Commission (FWC) to determine, by mandatory
arbitration, whether an employer had reasonable grounds to refuse to make an offer
or decline a request for casual conversion;
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• introducing new civil remedy provisions prohibiting employers from making
misrepresentations to engage an employee as a casual employee and dismissing an
employee to re-engage them as a casual employee in certain circumstances; and
• requiring employers to provide the Casual Employment Information Statement to
casual employees at the start of their employment and at 12 months.
8. Casual employment forms a significant proportion of the Australian labour market, and
suits the needs of many employees and employers.
9. Nonetheless, there are identified issues with casual employment. The Senate
Committee on Job Security Report noted that the common characteristics of casual
employment support a proposition that casual workers are less secure2 and although
casual employees are generally entitled to receive a loading to compensate for a lack of
paid leave entitlements, casual employees generally earn less on average than
permanent employees, both in terms of weekly and hourly earnings.3
10. The amendments made by this Part of the Bill would provide casual workers with a
greater ability to make a choice about their employment status, by providing a pathway
to move to permanent employment if they wish. Under the amendments, an employee
would have the opportunity to move from casual employment where they are in fact
working like a permanent employee. The choice to change status would rest with the
employee; no employee would be forced to change employment status. Rather, the
amendments would strengthen the pathway to permanent work for employees who
choose it.
Small business redundancy exemption
11. Part 2 of Schedule 1 would address the anomalous consequences of the small business
redundancy exemption in insolvency contexts by providing an exception to its
operation when a larger business downsizes to become a smaller business employer due
to insolvency.
Enabling multiple franchisees to access the single-enterprise stream
12. Part 3 of Schedule 1 would allow multiple franchisees of the same franchisor or related
bodies corporate of the same franchisor or any combination to make a single-enterprise
agreement, while retaining the ability to make a multiple-enterprise agreement.
Transitioning from multi-enterprise agreements
13. Part 4 of Schedule 1 would introduce provisions facilitating the transition from a single
interest employer agreement or supported bargaining agreement to a single-enterprise
agreement.
14. Part 4 would provide that where a single-enterprise agreement is made and an existing
single interest employer agreement or supported bargaining agreement (whether or not
nominally expired) applies to at least one of the employees covered by the single-
2
Senate Committee on Job Security Report, page 79,
https://parlinfo.aph.gov.au/parlInfo/download/committees/reportsen/024780/toc_pdf/Thejobinsecurityreport.pdf;
fileType=application%2Fpdf.
3
ABS, Characteristics of Employment, August 2022.
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enterprise agreement, the better off overall test (BOOT) would be modified. Any
employee to whom a single interest employer agreement or supported bargaining
agreement applies must be better off under the single-enterprise agreement than the
supported bargaining agreement or single interest employer agreement (as the case may
be) that applies at test time.
Model terms
15. Part 5 of Schedule 1 would change the process for determining the model flexibility,
consultation and dispute resolution terms for enterprise agreements and the model term
for settling disputes arising under a copied State instrument. Currently, these model
terms are prescribed in the Fair Work Regulations 2009 (FW Regulations). The
proposed amendments would replace the existing requirements with requirements that
the FWC, as Australia's expert and independent workplace relations tribunal, determine
the model terms.
Intractable bargaining workplace determinations
16. Part 5A of Schedule 1 would provide that where an existing enterprise agreement
applies to employees who will be covered by the intractable bargaining workplace
determination, the FWC must not include in the determination a term dealing with a
matter still at issue which is less favourable to the employee, and any employee
organisation that was a bargaining representative, than the corresponding term in the
existing enterprise agreement.
17. Part 5A would expand the definition of agreed terms for intractable bargaining
workplace determinations to ensure that a determination must also include terms that
are agreed between the bargaining representatives at the time the application for an
intractable bargaining declaration is lodged, as well as terms that are agreed at the time
a declaration is issued and at the end of any post-declaration negotiating period (if one
is ordered).
Closing the labour hire loophole
18. Part 6 of Schedule 1 would insert new Part 2-7A into the FW Act, which would allow
employees and organisations entitled to represent their industrial interests to apply to
the FWC for a regulated labour hire arrangement order. The FWC would not be
required to make the order if satisfied that it was not fair and reasonable, having regard
to submissions from affected businesses and employees.
19. If the FWC made such an order, labour hire providers would generally be required to
pay their employees no less than what they would be entitled to be paid under the host
business' enterprise agreement (or other covered employment instrument) if the
employee were directly employed by the host. Host businesses would also be required
to provide certain information to labour hire providers on request to assist them in
meeting their payment obligations.
20. Certain exemptions would be built into the framework, including where a labour hire
employee is engaged for a short-term period or where a training arrangement applies to
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the employee. The provisions also will not apply where the host is a small business
employer as defined in the FW Act.
21. The provisions would be supported by an anti-avoidance framework to prevent
businesses from adopting certain practices with the intention of avoiding obligations
under new Part 2-7A.
22. The FWC would be able to resolve disputes about the operation of Part 2-7A, including
by mandatory arbitration, and may determine an alternative protected rate of pay for a
labour hire employee where it would be unreasonable for an employer to pay the
employee the protected rate under Part 2-7A.
Workplace delegates' rights
23. Part 7 of Schedule 1 would insert statutory workplace rights for workplace delegates to
support their role in representing workers and a general protection for workplace
delegates to facilitate the exercise of these rights. It would also provide for modern
awards and enterprise agreements to detail the specific requirements for various
industries, occupations and workplaces.
Strengthening protections against discrimination
24. Part 8 of Schedule 1 would amend the FW Act to protect employees who have been, or
continue to be, subjected to family and domestic violence (FDV) from discrimination
within the workplace by making it a protected attribute in the FW Act. The
amendments would prohibit a national system employer from taking adverse action
against an employee or prospective employee on that basis. The amendments would
also prohibit employers who are not covered by Part 3-1 of the FW Act from
terminating an employee's employment on the basis of subjection to FDV.
25. Further, the amendments would prohibit modern awards and enterprise agreements
from including terms that discriminate against employees because of, or for reasons
including, their subjection to FDV. The amendments would also require the FWC,
when performing functions or exercising its powers under the FW Act in relation to a
matter, to take into account the need to respect and value the diversity of the workforce
by helping to prevent and eliminate discrimination on the basis of subjection to FDV.
Sham arrangements
26. Part 9 of Schedule 1 would change the defence to misrepresenting employment as an
independent contracting arrangement, known as 'sham contracting', in
subsection 357(2) of the FW Act from a test of 'recklessness' to one of
'reasonableness'. The new test would provide that an employer would not contravene
the prohibition on sham contracting in subsection 357(1) of the FW Act if the employer
reasonably believed that the contract was a contract for services. The burden of proof
would rest with the party who made the representation, consistently with the existing
defence.
Exemption certificates for suspected underpayment
27. Part 10 of Schedule 1 would enable an organisation to obtain an exemption certificate
from the FWC to waive the minimum 24 hours' notice requirement for entry if they
7
reasonably suspect a member of their organisation has been or is being underpaid. It
would also protect permit holders who are exercising rights in accordance with Part 3-4
from improper conduct by others and empower the FWC to impose conditions on a
permit, as an alternative to revoking or suspending an entry permit in the circumstances
set out in section 510 of the FW Act.
Penalties for civil remedy provisions
28. Part 11 of Schedule 1 would increase the maximum civil pecuniary penalties that apply
to contraventions (including serious contraventions) of wage exploitation-related
provisions by five times (and 10 times for non-compliance with a compliance notice). It
would also enable the maximum penalty for a contravention to be determined by
reference to three times the value of the underpayment (if able to be determined) in
certain circumstances. It would also amend the scheme for 'serious contraventions' in
section 557A so that it applies to knowing and reckless contraventions of the relevant
provisions, rather than to knowing and systematic contraventions.
Compliance notice measures
29. Part 12 of Schedule 1 would clarify that a compliance notice issued to a person may
require the person to calculate and pay the amount of any underpayment; and a relevant
court may make an order requiring compliance with a notice (other than an
infringement notice) issued by a Fair Work Inspector or the FWO.
Withdrawal from amalgamations
30. Part 13 of Schedule 1 would repeal amendments made by the Fair Work (Registered
Organisations) Amendment (Withdrawal from Amalgamations) Act 2020, relating to the
withdrawal of parts of amalgamated organisations (de-merger).
Wage theft
31. Part 14 of Schedule 1 would introduce a new criminal offence for wage theft (including
'related offence provisions' that deal with ancillary liability), which applies to
intentional conduct. It would provide for 'safe harbour' by way of compliance with a
voluntary small business wage compliance code or a cooperation agreement if the
relevant requirements are met. It would also require the FWO to publish a compliance
and enforcement policy, including guidelines relating to the circumstances in which the
FWO will or will not accept or consider undertakings.
32. It would enable the Commonwealth Crown (but not other Australian Governments) to
be liable to be prosecuted for the new criminal offence for wage theft or a 'related
offence provision'. It would also clarify that the Crown in each of its capacities (that is,
all Australian Governments) and to the extent the Commonwealth's legislative power
permits, is liable to be the subject of proceedings for a contravention of a civil remedy
provision (this reflects the status quo.) It would also include provisions of a machinery
nature setting out how liability may attach in these circumstances.
Definition of employment
33. Part 15 of Schedule 1 would insert a new section 15AA into Part 1-2 of the FW Act.
New section 15AA would require that the ordinary meanings of 'employee' and
8
'employer' be determined by reference to the real substance, practical reality and true
nature of the relationship between the parties. This would require the totality of the
relationship between the parties, including not only the terms of the contract governing
the relationship but also the manner of performance of the contract, to be considered in
characterising a relationship as one of employment or one of principal and contractor.
34. The amendments respond to the High Court's decisions in CFMMEU v Personnel
Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations
Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek). These decisions require that where
the parties have comprehensively committed the terms of their relationship to a written
contract the validity of which is not in dispute, the characterisation of that relationship
proceeds by reference to the rights and obligations of the parties under the contract.
Except in limited circumstances, a wide-ranging review of the parties' subsequent
conduct is inappropriate. Prior to Personnel Contracting and Jamsek, it was broadly
believed that the correct approach was to apply the 'multi-factorial' test.
35. The intention of the amendments is to facilitate a return to the 'multi-factorial' test
previously applied by courts and tribunals in characterising a relationship as one of
employment or of principal and contractor.
Provisions relating to regulated workers
36. Part 16 of Schedule 1 would implement amendments to the FW Act and associated
legislation to ensure that certain independent contractors are entitled to greater
workplace protections than they are currently. The majority of the amendments are
targeted at independent contractors who are either:
• employee-like workers performing digital platform work; or
• engaged in the road transport industry.
37. The amendments would:
• provide a framework for the FWC to exercise functions and powers that relate to
the road transport industry;
• insert a new jurisdiction enabling the FWC to set minimum standards orders and
minimum standards guidelines in relation to employee-like workers performing
digital platform work and regulated road transport industry contractors;
• enable digital labour platform operators and road transport businesses to make
consent-based collective agreements with registered employee organisations;
• empower the FWC to deal with disputes over an employee-like worker's unfair
deactivation from a digital labour platform, or the unfair termination of a road
transport contractor's services contract by a road transport business;
• enable independent contractors earning below a specified contractor high income
threshold to dispute unfair contract terms in the FWC;
9
• ensure the Independent Contractors Act 2006 (IC Act) continues to apply in respect
of independent contractors performing work that is remunerated at an amount that
exceeds the new contractor high income threshold.
Mediation and conciliation conference orders
38. Part 14A of Schedule 1 would address concerns that a bargaining representative's non-
compliance with a FWC order to attend a conference pursuant to section 448A of the
FW Act could render subsequent employee claim action unprotected - for both those
represented by the non-complying bargaining representative, and for others
participating in the action.
Amendment of the Asbestos Safety and Eradication Agency Act 2013
39. Schedule 2 to the Bill would amend the Asbestos Safety and Eradication Agency Act
2013 (ASEA Act) to broaden ASEA's functions which are currently confined to
asbestos.
40. The increase in silicosis and other silica-related diseases is deeply concerning and has
raised the need for urgent coordinated national action to reduce rates of silica-related
diseases and to support affected workers and their families. This Bill would expand the
functions of the well-respected Asbestos Safety and Eradication Agency (ASEA) to
include coordinating action on silica safety and silica-related diseases. This would
include developing, promoting and reporting on a Silica National Strategic Plan which
will coordinate and track the progress of jurisdictions against nationally agreed targets.
ASEA would be renamed the Asbestos and Silica Safety and Eradication Agency
(Agency) to reflect these changes. The renamed Agency's functions will include
responsibility for coordination, awareness raising, research, reporting and providing
advice to the government on silica.
41. Establishing and appropriately resourcing the renamed Agency as a national
coordination mechanism for action on silica-related diseases acts on the
recommendations of the National Dust Disease Taskforce (NDDT). The NDDT was
established in 2019, and in June 2021 submitted a final report to the then Minister for
Health and Aged Care recommending a national approach to the prevention, early
identification, control and management of silicosis and other occupational dust diseases
in Australia. An All of Governments' response to the NDDT's Final Report was
published in April 2022.
42. The Bill would expand the membership of the current Asbestos Safety and Eradication
Council (ASEC) to include appropriate representation from employee and employer
representatives and an expert in asbestos or silica-related matters. ASEC would be
renamed the Asbestos and Silica Safety and Eradication Council (Council) to reflect
these changes. Eligibility would also be broadened to allow for persons with lived
experience to be appointed to the Council.
Amendment of the Safety, Rehabilitation and Compensation Act 1988
43. Schedule 3 to the Bill implements presumptive liability provisions for first responders
covered by the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) who
10
suffer from PTSD. The proposed amendments are consistent with the recommendation
of the Senate Education and Employment References Committee report, The people
behind 000: mental health of our first responders and reflect epidemiologist Professor
Tim Driscoll's advice in his December 2021 review of Safe Work Australia's Deemed
Diseases List which recommended that PTSD be listed as a deemed disease for police
officers, ambulance officers including paramedics, and firefighters.
44. Schedule 3 would amend the SRC Act to provide a rebuttable presumption that PTSD
suffered by specified first responders was contributed to, to a significant degree, by
employment. The presumption will apply to employees of the Australian Federal
Police, firefighters, ambulance officers (including paramedics), emergency services
communications operators and other persons engaged under the Australian Capital
Territory's Emergencies Act 2004.
Amendment of the Work Health and Safety Act 2011
45. Schedule 4 to the Bill would strengthen the offences and penalties framework in the
Work Health and Safety Act 2011 (WHS Act). A new offence of industrial
manslaughter would be introduced. This would align Commonwealth WHS laws with
the model Act which was recently amended to provide for industrial manslaughter
within the model framework. The model Act does not prescribe the exact provisions of
the model offence to enable each jurisdiction to implement (or maintain) an offence
tailored to the criminal law framework of the jurisdiction. However, the model Act
provides for an industrial manslaughter offence via a jurisdictional note and
accompanying model penalties for the offence. The offence in this Bill reflects
recommendations 23b of the Review of the Model Work Health and Safety Laws - Final
Report (Boland Review) and 13 of the They Never Came Home Report (Senate
Inquiry).
46. The existing Category 1 offence and State and Territory general manslaughter offences
may also apply when a worker or other person is killed at a workplace. A specific
industrial manslaughter offence responds to community concern that the WHS
framework requires stronger penalties for the most egregious breaches of WHS duties
that result in workplace fatalities.
47. Schedule 4 would also:
• repeal and replace provisions dealing with criminal liability for bodies corporate,
the Commonwealth, and public authorities. These amendments reflect recent
changes to the model Act, with appropriate modifications and additional provisions
where necessary;
• clarify that the Category 1 offence applies to officers of persons conducting a
business or undertaking (PCBUs);
• significantly increase Category 1 penalties;
• increase all penalties in the WHS Act by 39.03 per cent (excluding Category 1 - see
discussion below) and provide for future indexing (giving effect to
recommendation 22 of the Boland Review); and
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• provide for a Family and Injured Workers Advisory Committee.
Human rights implications
48. The definition of 'human rights' in the Human Rights (Parliamentary Scrutiny) Act
2011 relates to the core seven United Nations human rights treaties. The Bill engages
the following rights:
• the right to the enjoyment of just and favourable conditions of work under
Articles 6 and 7 of the International Covenant on Economic Social and Cultural
Rights (ICESCR);
• the right to social security, including social insurance under Article 9 of the
ICESCR;
• the right to protection and assistance for families under Article 10(2) of the
ICESCR;
• the right to the highest attainable standard of physical and mental health under
Article 12 of the ICESCR;
• the right to an effective remedy under Article 2(3) of the International Covenant on
Civil and Political Rights (ICCPR) and Article 2 of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) and right to
a fair hearing under Article 14(1) of the ICCPR;
• the right to presumption of innocence and other guarantees in relation to criminal
charges under Article 14 and Article 15 of the ICCPR;
• the right to privacy and reputation under Article 17 of the ICCPR;
• the right to freedom of association, including the right to form and join trade unions
under Article 22 of the ICCPR and Article 8 of the ICESCR;
• the right to equality and non-discrimination under Article 2 of the ICCPR and
Article 2 of the ICESCR and Article 26 of the ICCPR;
• the right of women not to be discriminated against based on gender under
Articles 2, 3 and 11 of the CEDAW and Article 26 of the ICCPR; and
• the rights of parents and children in Articles 3 and 18 of the Convention on the
Rights of the Child (CRC) and Article 5 of the CEDAW.
49. The content of the right to work, the right to just and favourable conditions of work and
the right to freedom of association in the ICESCR and ICCPR can be informed by
specific obligations in treaties of the International Labour Organisation (ILO), such as
the Right to Organise and Collective Bargaining Convention 1949 (No. 98) (ILO
Convention 98), which protects the right of employees to collectively bargain for terms
and conditions of employment, the Freedom of Association and Protection of the Right
to Organise Convention 1948 (No. 87), which provides employer and employee
organisations with protection for their organisational autonomy, and the Occupational
Safety and Health Convention 1981 (No. 155), which requires the adoption of a
12
coherent national policy on occupational safety, occupational health and the working
environment.
50. The content of the right to equality and non-discrimination in the ICESCR and ICCPR
can be informed by specific obligations in the Discrimination (Employment and
Occupation) Convention 1958 (ILO Convention 111) and, when it comes into force for
Australia, the Violence and Harassment Convention 2019 (ILO Convention 190).
Rights to work and rights in work
51. Article 6 of the ICESCR requires the State Parties to the Covenant to recognise the
right to work and to take appropriate steps to safeguard this right. The United Nations
Committee on Economic, Social and Cultural Rights has stated that the right to work in
Article 6(1) encompasses the need to provide the worker with just and favourable
conditions of work.
52. The United Nations Committee on Economic Social and Cultural Rights in General
Comment 18 has also stated that the right to work includes:
the right not to be deprived of work unfairly. This definition underlines the
fact that respect for the individual and his dignity is expressed through the
freedom of the individual regarding the choice to work, while emphasizing
the importance of work for personal development as well as for social and
economic inclusion.
53. There can also be no discrimination in access to and maintenance of employment on the
grounds enumerated in Article 2(2) of the ICESCR.
54. Article 7 of the ICESCR requires the State Parties to the Covenant to recognise the
right of everyone to the enjoyment of just and favourable working conditions.
Casual employment
55. The amendments at Part 1 of Schedule 1 to the Bill would positively engage the right to
the enjoyment of just and favourable working conditions by providing for a fair and
objective definition of casual employee. The amended definition would require an
objective assessment of the absence or presence of a firm advance commitment to
continuing and indefinite work, having regard to the real substance, practical reality and
true nature of the employment relationship. The amended definition would ensure
employees are not able to be misclassified as casual, simply because of the label
attached to their contract of employment, and ensure those employees receive the
correct entitlements and working conditions, based on the true nature of their
employment relationship.
56. This change to how casual employment is defined reflects the findings of the Statutory
Review that consideration should be given to whether the definition should focus solely
on the terms of the initial offer and acceptance, and 'not on the basis of any subsequent
conduct of either party' as per existing subsection 15A(4) of the FW Act.
13
57. The amendments would also prohibit arrangements whereby employers dismiss a
permanent employee in order to engage them as casual or make an intentional
misrepresentation to engage an employee as a casual. This ensures similar protections
are afforded in relation to casual employment as are provided in relation to independent
contracting by the existing sham contracting provision in the FW Act, and gives effect
to a finding of the Statutory Review.
58. These amendments would further promote rights in work by strengthening the dispute
resolution framework, ensuring that employers and employees can resolve disputes that
could not be resolved at the workplace level in a way that is accessible and informal.
59. The measures would also promote rights to work by making it fairer and easier for the
FWC to deal with disputes about employee choice and casual conversion brought by
employees. The current framework does not empower the FWC to deal with disputes
by mandatory arbitration. Rather, parties must consent to the FWC arbitrating the
matter, forcing employees to prosecute their claim in the Federal Circuit and Family
Court if their employer does not consent to the arbitration. Under the new framework,
employees will be able to access flexible and timely pathways to permanent
employment, supporting employee choice about employment status, engaging Article 7
of the ICESCR.
60. The measures are aimed at achieving the legitimate objective for the purposes of
international human rights law of promoting full, productive, and freely chosen
employment (Article 1 of the ILO Convention 122).
Small business redundancy exemption
61. The amendments to the FW Act in Part 2 of Schedule 1 would promote the right to just
and favourable conditions of work by addressing an anomaly which arises in the pre-
existing small business redundancy exemption. This anomaly causes some employees
to lose their legal entitlement to redundancy pay under the NES in the context of a
business downsizing from a larger business to a smaller business due to insolvency.
62. The pre-existing small business redundancy exemption is a longstanding feature of the
workplace relations framework under the FW Act. It encourages employment by small
businesses by relieving them of NES redundancy pay obligations, which can be a
significant contingent cost of employing staff. To qualify for the exemption, businesses
must employ fewer than 15 staff.
63. An unintended anomaly arises in the operation of the small business redundancy
exemption, in some insolvency contexts. When a larger employer incrementally
downsizes due to insolvency, either in the period leading to liquidation or bankruptcy,
or afterwards, they may fall below the 15-employee threshold and become a small
business employer before the final few staff are made redundant. These final
employees, who often stay on to assist in the orderly wind-up of the business, lose the
entitlement they previously would have had to redundancy pay under the NES,
accumulated over years of continuous service with their employer.
14
64. The amendments would provide an exception to the operation of the small business
redundancy exemption in such downsizing contexts, thus preserving an employee's
redundancy pay entitlement in a range of scenarios in which the employer may have
become a small business employer due to insolvency. This ensures an employee's legal
entitlement to redundancy pay is not taken away based on when they were made
redundant.
Enabling multiple franchisees to access the single-enterprise stream
65. Part 3 of Schedule 1 engages the right to just and favourable conditions of work. It is
intended that Part 3 would strengthen the ability of franchisees and their employees to
bargain for just and favourable conditions of work by facilitating franchisees' access to
the single-enterprise agreement stream, thereby allowing them access to the full range
of bargaining streams under the FW Act. For example:
• Part 3 would enable franchisees to bargain as if they were a single enterprise,
including conducting any ballot to approve an agreement as if they were a single
enterprise.
• Employees of franchisees would be able to obtain a majority support determination
where a majority of employees who would be covered by the proposed agreement
wish to bargain, without needing to establish that each employer has at least
20 employees.
66. By making bargaining more accessible for franchisees and their employees, the
employees of franchisees have a greater ability to influence their conditions of work
and to achieve just and favourable conditions of work.
Transitioning from multi-enterprise agreements
67. Part 4 of Schedule 1 would support rights in work by allowing employers and their
employees to make a single-enterprise agreement to replace a single interest employer
agreement or supported bargaining agreement prior to its nominal expiry date. This
would allow employers and their employees to come to an agreement on terms and
conditions of employment that are suited to their specific circumstances.
68. Part 4 requires a replacement agreement to be compared with the existing agreement for
the purposes of the BOOT. In doing so, it promotes the right to just and favourable
conditions of work by preventing conditions in single-enterprise agreements that
replace a multi-enterprise agreement regressing overall, even if they are still more
beneficial than those in the underlying modern award.
69. Safeguards would be provided by the amendments to the BOOT and by requirements
for the employer to receive the consent of employee organisations or to be permitted by
a voting request order before taking a replacement single-enterprise agreement to vote.
These safeguards would ensure that the amendments allowing for the transition from
multi-enterprise agreements to single-enterprise agreements support the rights to just
and favourable conditions of work.
15
Model terms
70. The amendments in Part 5 of Schedule 1 would be compatible with and promote the
right to just and favourable working conditions of work and collective bargaining. The
model terms act as a safety net ensuring that compliant terms dealing with consultation,
flexibility and dispute resolution are included in all enterprise agreements, and a
compliant term dealing with dispute settlement is included in copied State instruments.
The model terms would not override terms agreed to between the parties to an
agreement or instrument where the terms meet the requirements of the FW Act,
minimising any concern that the model terms would limit the capacity of employees to
determine just and favourable conditions.
71. The amendments empowering the FWC to determine the model terms for enterprise
agreements and copied State instruments require the FWC to consider 'best practice'
workplace relations and whether all persons and bodies have had a reasonable
opportunity to be heard and make submissions before making the determinations. It is
intended that this would ensure the ongoing relevancy of the model terms as well as
facilitating greater public consultation in the determination of the model terms.
72. In mandating considerations of best practice workplace relations and public
participation in the process of determining model terms, individuals are empowered to
participate in the determination of up-to-date and relevant terms that may form part of
the terms and conditions of their employment. In doing so, the amendments support the
right to just and favourable conditions of work.
Intractable bargaining workplace determinations
73. Part 5A of Schedule 1 would support rights in work by ensuring that when the FWC
makes an intractable bargaining workplace determination, the FWC cannot include
terms dealing with matters still at issue which are less favourable to employees and
employee organisations than terms dealing with the same matter in an existing
enterprise agreement that applies to the employees. This would ensure that, unless
otherwise agreed, terms for employees and employee organisations cannot go
backwards under an intractable bargaining workplace determination.
74. Part 5A would support rights to work and rights in work by ensuring that an intractable
bargaining workplace determination includes terms that are agreed between the
bargaining representatives at the time the application for an intractable bargaining
declaration is lodged, as well as terms that are agreed at the time a declaration is made
and at the end of any post-declaration negotiating period (if one is ordered). This would
ensure that rights in work that are agreed during bargaining are reflected in an
intractable bargaining workplace determination.
Closing the labour hire loophole
75. Part 6 of Schedule 1 would positively engage the right to the enjoyment of just and
favourable working conditions by protecting bargained rates in enterprise agreements,
or other covered employment instruments (see item 72 of the Bill), from being undercut
by the use of labour hire. While many employers negotiate enterprise agreements with
16
their employees that set minimum rates, the FW Act currently allows employers to
engage workers through a labour hire company, who are often paid less than those
agreed rates.
76. Several inquiries have shown that labour hire is used in a range of industries with the
result of undercutting bargained rates. For example, a Senate inquiry into labour hire
considered these labour hire issues in the mining, agriculture, and transport and
distribution sectors. The Victorian Inquiry into the Labour Hire Industry also found that
because host enterprise agreements do not generally apply to labour hire workers, this
results in lower pay for some workers who work alongside directly engaged employees.
77. To close this loophole, the Bill would enable employees and organisations entitled to
represent their industrial interests, as well as host businesses, to apply to the FWC for
an order that would require labour hire employees to be paid no less than what they
would receive if they were directly employed by the host business and paid in
accordance with the host's enterprise agreement or other employment instrument.
These provisions would therefore enable labour hire employees to be paid at least the
same as their directly employed counterparts who are performing the same work and
paid under the host's enterprise agreement. Labour hire workers who are paid higher
rates than directly employed workers would not be affected.
78. Certain exceptions would be built into the framework, which are reasonable and
proportionate. The framework would not apply to arrangements where the performance
of work is for the provision of a service to the host business, rather than the supply of
labour. A default three-month exemption period would apply to avoid impacting labour
hire arrangements for surge work or where a short-term replacement is needed. The
FWC would be able to hear from parties who wish to extend or shorten that exemption
period, on a case-by-case basis.
79. Employees on training arrangements also would not be impacted by this measure to
avoid impacting training arrangements regulated by State or Territory laws.
80. To minimise the impact on small businesses, the measure would not apply where a host
business is a small business employer within the meaning of the FW Act.
81. Penalties would apply to an employer or regulated host who would enter into a scheme
to prevent the making of an order and avoid the operation of a regulated labour hire
arrangement order that has been made. This will ensure that employees who are
covered by an order continue to enjoy just and favourable working conditions.
82. The Bill would also ensure that regulated employees are paid appropriately for any
termination payments to which they are entitled.
Workplace delegates' rights
83. Part 7 of Schedule 1 would positively engage the right to the enjoyment of just and
favourable working conditions by improving access to representation for workers, and
the ability of workplace delegates to provide such representation. These provisions
17
engage and promote operative articles of the Workers' Representative Convention,
1971 (No. 135) of the ILO (ILO Convention 135), which Australia has ratified.
84. Currently, the FW Act provides limited protection to workplace delegates of an
employee organisation acting within the workplace. Divisions 3 and 4 of Part 3-1 of the
FW Act prohibit adverse action against employees who are officers or members of
industrial associations, and allows for freedom of association and involvement in lawful
industrial activities. However, these protections do not provide workplace delegates
with positive rights that protect and enable them to exercise their roles in the
workplace. A key function of a workplace delegate is to be a point of contact for
members within the workplace and to represent the concerns of workers to the
employer or business. The Bill would positively engage the right to just and favourable
conditions of work by ensuring that workplace delegates have substantive rights to
represent the industrial interests and concerns of their and their fellow workers.
85. The Bill would further support this right by requiring that the details of various
supporting rights for workplace delegates be included in modern awards and enterprise
agreements, which would allow them to be tailored to particular industries and
enterprises. The introduction of a new general protection to enforce these rights would
also positively engage rights in work, including by implementing Article 1 of the ILO
Convention 135.
86. Introducing rights for workplace delegates would also positively impact the right to just
and favourable conditions of work for all workers in a workplace. By providing explicit
rights for workplace delegates, other workers in the workplace are empowered to raise
workplace concerns to the workplace delegate and therefore improve their ability to
cooperatively resolve any disputes that may arise in the workplace. Workers can also
more effectively engage in bargaining to negotiate fair wages and conditions.
Stronger protections against discrimination
87. Subjection to FDV can be a significant impediment and disruption to workforce
participation and an employee's right to work. Current protections within the FW Act
do not explicitly protect employees or prospective employees who are subjected to
FDV against adverse action by their employer, such as being dismissed or refused
employment. Part 8 of Schedule 1 would positively engage the right to work by clearly
prohibiting employers from engaging in adverse action such as dismissing or refusing
to employ a person because they are subjected to FDV. This Bill would also prohibit
employers who are not covered by Part 3-1 of the FW Act from terminating an
employee's position of employment on the grounds of their subjection to FDV.
88. FDV can also be a significant impediment and disruption to favourable work
conditions. Under existing arrangements in the FW Act, an employee who is subjected
to FDV is not necessarily protected from employer adverse action within the workplace
unless it is connected to the exercise of the employee's workplace rights (that is,
accessing paid FDV leave) or it can be argued to be protected by another attribute, such
as sex. An employee's subjection to FDV therefore could be a source of discrimination
18
within the workplace, for example resulting in a reduction of work hours or a demotion.
This Bill would promote the right to just and favourable conditions of work, and
prevent discrimination in access to and maintenance of employment, by ensuring
employees and prospective employees who have been, or continue to be, subjected to
FDV are protected from adverse action.
89. Modern awards and enterprise agreements must not include terms that discriminate
against employees on the basis of a range of protected attributes. By including this
additional protected attribute, this Bill would ensure that employees who are subjected
to FDV are also afforded equal, favourable conditions of work within the terms of
modern awards and enterprise agreements. For example, if the FWC is considering
whether to approve a new enterprise agreement, the amendments would require the
FWC to be satisfied that the agreement does not include any terms that discriminate
against employees on the basis of their subjection to FDV. The Bill would further
promote the right to just and favourable conditions of work by requiring the FWC to
take into account the need to prevent and eliminate discrimination on the basis of
subjection to FDV when exercising its powers and performing its functions.
Sham arrangements
90. Sham contracting results in employees being wrongly classified as contractors, which
may limit employees' access to employment protections and entitlements, including
minimum or award wages and leave entitlements. Under the existing provision in the
FW Act, employers are not liable for misrepresenting employment as independent
contracting if they prove that, when the representation was made, they did not know,
and were not reckless as to whether, the contract was a contract of employment rather
than for services.
91. The amendments that would be made by the Bill to section 357 of the FW Act would
promote the right to just and favourable conditions of work by ensuring a more
objective test applies when determining whether an employer can make out the defence
to sham contracting. This new test would require employers who have misrepresented
employment as independent contractors to prove they reasonably believed that the
employee was an independent contractor, not merely that they were not reckless as to
the employee's correct status. This change will provide further incentives for employers
to correctly classify workers from the outset, ensuring employees receive their proper
entitlements.
Exemption certificates for suspected underpayment
92. Part 10 of Schedule 1 would positively engage the right to the enjoyment of just and
favourable working conditions by improving access to representation for members, by
enhancing entry rights and protections for entry permit holders exercising entry under
Part 3-4 of the FW Act. Entry to investigate a suspected contravention of the FW Act,
or a term of a fair work instrument, requires at least 24 hours' notice (section 487).
While provision is made to waive the notice requirement, by application to the FWC for
an exemption certificate (section 519), the bar for obtaining such exemption certificates
19
is high, so rarely used. That is, the FWC must reasonably believe that advance notice of
the entry might result in the destruction, concealment or alteration of relevant evidence.
93. The Bill would expand the grounds for the issue of an exemption certificate under
section 519, so the notice period may also be waived if the FWC is satisfied that the
suspected contravention, or contraventions, involve the underpayment of wages, or
other monetary entitlements, of a member of the organisation whose industrial interests
the organisation is entitled to represent and who performs work on the premises. This
measure would be subject to comprehensive safeguards against misuse of the entry
powers.
94. Existing safeguards that will continue to apply, include:
• the obligation for the permit holder to give a copy of the exemption certificate to the
occupier of the premises (or their apparent representative), any affected employer
(or their apparent representative), before or as soon as practicable after entering the
premises (section 487(4));
• the obligation to comply with reasonable work health and safety requirements
(section 491);
• prohibitions on intentionally hindering and obstructing any other person when
exercising rights of entry, or otherwise acting in an improper manner (section 500);
• restrictions on the unauthorised use or disclosure of information or documents
(section 504); and
• existing dispute resolution mechanisms in the FW Act (sections 505 and 505A).
95. The proposed amendments would enhance access to the workplace for permit holders
to effectively investigate suspected contraventions (involving underpayments) and
exercise powers under Part 3-4 including interviewing relevant persons and inspecting
relevant records and documents.
96. In addition, the measure will protect permit holders exercising rights under Part 3-4
against people acting in an improper manner towards them.
97. For these reasons, the measure positively engages the right to the enjoyment of just and
favourable working conditions.
Penalties for civil remedy provisions and wage theft
98. The FW Act currently has a civil (not criminal) framework for the enforcement of
workplace rights and entitlements under the Act. This means that underpaid workers
may seek recovery of any underpayments, pecuniary penalties (except in small claims
proceedings) and other civil remedies.
99. Despite recent Government action to address underpayments, non-compliance remains
a persistent problem. Several inquiries, including the Migrant Workers' Taskforce and
the Senate Inquiry into Unlawful Underpayment of Employees' Remuneration, have
20
recommended the introduction of a criminal offence for wage theft to further deter
wage underpayments.
100. Part 14 of Schedule 1 proposes amendments to the FW Act to introduce a new criminal
offence for wage theft (new section 327A), which would apply to intentional conduct. It
would rely on Parts 2.4 and 2.5 of the Schedule 1 to the Criminal Code Act 1995
(Criminal Code) to establish pathways for prosecuting ancillary and corporate criminal
liability relating to the new offence. Provision would be made for the Commonwealth
to be liable for an offence, and for the FWO to investigate suspected underpayment
crimes (including of 'related offence provisions' as defined, which are provided for
under the Criminal Code).
101. This measure aims to encourage compliance with the relevant workplace laws and
further deter wrongdoing, particularly where the conduct is intentional.
102. Compliance outcomes would be further improved (as proposed by Part 11 of
Schedule 1) by increasing civil pecuniary penalties for contraventions of civil remedy
provisions involving worker exploitation. Details of the proposed civil pecuniary
penalty increases are set out in more detail below.
103. The proposed new offence for wage theft (and related provisions), coupled with
proposed increases to relevant civil pecuniary penalties, would promote the right to just
and favourable conditions of work by improving compliance with the relevant
workplace laws. Criminalising wage theft will further deter deliberate underpayments,
and higher civil pecuniary penalties for contraventions involving worker exploitation
would help promote a robust 'compliance culture' in relation to workplace laws across
Australian businesses.
Definition of employment
104. Part 15 of Schedule 1 would positively engage the right to the enjoyment of just and
favourable working conditions by ensuring that a fairer test applies when determining
the ordinary meanings of 'employee' and 'employer' for the purposes of the FW Act.
105. The Bill would ensure the totality of the relationship, including the terms of the
employment contract and the manner of performance of the contract, must be
considered when characterising a relationship as one of employment or one subject to a
contract for services. The provision is intended to address the existing common law test
as set out in the High Court's decisions in Personnel Contracting and Jamsek, which
provides that the question of whether an individual is an employee or independent
contractor is to be determined with reference only to the terms of the written contract (if
there is one), with limited exceptions.
106. Expanding the frame of reference for the categorisation of a work relationship would
positively engage rights in work by enhancing fairness. Fairness will be enhanced by
requiring that the question of a workers' status be determined by reference to all
relevant aspects of the relationship. These amendments would ensure workers are
21
correctly categorised, even in the face of a carefully drafted contract which may not
fully reflect how the contract is performed in practice.
107. The new interpretive principle is consistent with the approach set out in Article 9 of the
ILO's Employment Relationship Recommendation, 2006 (No. 198) (ILO
Recommendation 198), which seeks to promote an objective of decent work and
provides that:
For the purposes of the national policy of protection for workers in an
employment relationship, the determination of the existence of such a
relationship should be guided primarily by the facts relating to the
performance of work and the remuneration of the worker, notwithstanding
how the relationship is characterized in any contrary arrangement,
contractual or otherwise, that may have been agreed between the parties.
108. Whether a worker is categorised as an employee or as an independent contractor under
a contract for services has significant implications for the rights and protections to
which they are entitled. For the most part the FW Act confers rights and imposes
obligations on, and in respect of the relationship between, an employer and an
employee.
109. This Bill would result in some persons who are currently purportedly engaged as
independent contractors becoming employees for the purposes of those parts of the FW
Act where 'employee' and 'employer' are expressed to have their ordinary meaning.
This would promote rights in work by extending to those workers who become
employees by operation of the amendments a range of entitlements and protections only
conferred on individuals who come within the meaning of 'employee' and work under
arrangements reflective of a contract of service.
Provisions relating to regulated workers
110. Part 16 of Schedule 1 would promote the right to work and rights in work as it would
provide the FWC the ability to make minimum standards for employee-like workers
and regulated road transport contractors, collectively 'regulated workers'.
111. The right to just and favourable conditions of work, as set out in the ICESCR, is not
limited to workers within an employment relationship. By extending certain minimum
standards to regulated workers, these provisions of the Bill engage and promote
Article 7 of the ICESCR.
112. Part 3A-2 - MSOs and MSGs: Under new Part 3A-2 the FWC would be empowered
to make either binding (MSOs) or non-binding (MSGs) minimum standards for
regulated workers, which could include (but not be limited to) payment terms,
deductions, record-keeping in relation to matters covered by or required by the FW Act
(or an order or instrument made under that Act), insurance, consultation, representation,
delegates' rights and/or cost recovery.
22
113. Given regulated workers do not currently have a simple, fair and relevant safety net of
minimum terms and conditions, this measure would clearly promote the rights of these
workers to just and favourable conditions of work.
114. New road transport objective and minimum standards objective: Part 16 would
introduce a minimum standards objective (new section 536JX) and a road transport
objective (new section 40D) into the FW Act.
115. New section 536JX would promote the right to just and favourable conditions by
requiring the FWC to take into account the need for an appropriate safety net of
minimum standards for regulated workers when performing functions or exercising its
powers under Part 3A-2 that, among other things:
• deals with minimum rates of pay:
• takes into account all necessary costs for regulated workers covered by an MSO or
MSG;
• ensure that workers covered by an MSO or MSG receive pay comparable to the pay
and conditions that employees performing comparable work would receive.
116. This would go towards ensuring fair wages and comparable remuneration for work of
similar value.
117. When performing a function or power in relation to certain matters relating to the road
transport industry, new section 40 would also require the FWC to also take into account
the road transport objective, which would include the need for standards that ensure
that the road transport industry is safe, sustainable and viable. Ensuring the road
transport industry is safe, sustainable and viable would promote the right to work for
people working in that industry, including by helping to ensure safe and healthy
working conditions.
118. Part 3A-4 - collective agreements for regulated workers: Part 3A-4 would further
promote the right to the enjoyment of just and favourable conditions of work by
providing a simple, flexible and fair framework that enables consent-based collective
agreement making between regulated businesses (that is, digital labour platform
operators and road transport businesses) and registered employee organisations.
119. Collective agreements would be able to be made about the terms and conditions under
which regulated workers perform work, and how agreements operate.
120. Expanding access to collective bargaining would promote the right to enjoyment of just
and favourable conditions of work by enabling organisations representing workers to
collectively secure safe, healthy and fair conditions.
121. Interaction rules would further promote a regulated workers' rights in work and ensure
no regulated worker is worse off, by ensuring a term of a collective agreement would
have no effect in relation to the extent that the term is detrimental to a worker in any
respect, when compared to an applicable MSO or a State or Territory law that deals
with the same matter.
23
122. Part 3A-3-Unfair deactivation and unfair termination: The right to work includes
the right to not be deprived of work unfairly. Part 16 would insert new Part 3A-3. This
would provide new protections for employee-like workers and road transport
contractors against unfair deactivation and unfair termination respectively. Reactivation
or reinstatement would be the primary remedy for unfair deactivation or termination
respectively. These new protections would go towards ensuring these people are not
deprived of work unfairly, thus promoting the right to work.
123. The Bill would enable digital labour platform operators to temporarily suspend or
modify a person's access to a digital labour platform for no longer than 7 business days
for specified reasons. In doing so, there are certain permissible circumstances where a
person may be deprived of work for a limited period. However, it would not enable a
person to be deprived of work unfairly.
124. The provisions would only allow a short temporary suspension or modification of a
person's access to a digital labour platform where the digital platform operator believes
on reasonable grounds:
• that it is necessary to protect the health and safety of users of the digital labour
platform or a member of the community;
• the person may have committed fraud, misrepresented or falsified information;
• that the person has not complied with applicable licensing and accreditation
requirements imposed by or under a law; or
• that the suspension or modification of access is necessary to enable the digital
labour platform operator to conduct an investigation, or refer the matter to a law
enforcement agency for the purposes of conducting an investigation.
125. In these circumstances, a short suspension would ensure that appropriate steps can be
taken to consider, investigate and/or escalate these matters. The requirement that the
FWC needs to be satisfied that the operator believed at least one of these circumstances
exists would further ensure a person who uses a digital labour platform is not deprived
of work unfairly.
126. These provisions would engage the right to the enjoyment of just and favourable
working conditions by excluding some steps taken by digital labour platform operators
when determining whether a person is an employee under the FW Act and providing
that certain persons are not employees in certain circumstances. However, to the extent
that this limits human rights for certain classes of workers, it is directed at achieving a
legitimate objective and is necessary, reasonable and proportionate to achieving that
objective.
127. The objective of these provisions is to provide certainty to digital labour platform
operators about the status of their workers for the purpose of determining the workers'
rights and entitlements. This would ensure that steps taken by a digital labour platform
operator to comply with its obligations under the new unfair deactivation provisions in
Part 3A-3, or the Digital Labour Platform Deactivation Code (being the Code made by
24
the Minister under section 536LJ) or an order made under, or for the purposes of,
Chapter 3A, cannot be considered when determining whether the true nature and
practical reality of the employment relationship is one of employment. This avoids a
perverse outcome whereby acts of a digital labour platform to comply with the new
employee-like provisions or orders made under them may otherwise have the effect of
inadvertently creating an employment relationship.
128. The Bill would also ensure that a worker who has been found to be an 'employee-like
worker' to whom a minimum standards order applies is not an employee in relation to
particular digital platform work. This would provide certainty to digital labour platform
operators that workers covered by these orders cannot later bring proceedings to
recover unpaid employment entitlements.
Amendment of the Asbestos Safety and Eradication Agency Act 2013
129. The prevention of occupational diseases is a fundamental aspect of the right to just and
favourable conditions of work. Its realisation requires the adoption of a national policy
for the prevention of diseases, minimising hazards in the working environment and
ensuring broad participation in its formulation, implementation and review, in
particular of workers and employers and their representative organisations.
130. The policy should also promote the collection and dissemination of reliable and valid
data on the fullest possible range of occupational diseases and include appropriate
enforcement provisions and adequate penalties for violations.
131. Schedule 2 to the Bill would promote the right to safe and healthy working conditions
by expanding the current remit of ASEA to include prevention of silica-related
occupational diseases. The amendments would enhance the promotion of safe and
healthy working conditions by setting out the priority matters for the Silica National
Strategic Plan. These would include, eliminating or minimising exposure to respirable
crystalline silica, raising silica safety awareness, and improving research and national
data.
132. Workplace exposure to respirable crystalline silica is a serious issue threatening the
lives of Australian workers. The increase in silicosis and other silica-related
occupational diseases has raised the need for urgent national action and coordination.
Silica reform is complex and sits across multiple portfolios and jurisdictions. ASEA's
role as a coordinating agency reflects the jurisdictional nature of addressing asbestos,
and now silica.
133. The Bill would expand the Agency's functions to include a focus on silica safety and
coordination, awareness raising, reporting and providing advice to government on silica
safety and silica-related diseases. Further, this Bill would promote and assist current
efforts to manage silica risks in the workplace and eliminate silica-related diseases.
134. The Council's functions would also be broadened to reflect these changes. The addition
of members with silica-related knowledge or experience, and its expanded silica-related
25
functions, would effectively contribute towards ensuring safe and healthy working
conditions.
135. The Bill would promote the right to safe and healthy working conditions for those
working with respirable crystalline silica as it would establish a cross-jurisdictional
governance mechanism for national silica action, with aims to eliminate silica-related
diseases by preventing exposure to respirable crystalline silica.
136. The Bill would also promote Article 7 through facilitating the new Agency's data
collection, analysis and reporting functions to inform about the jurisdictional efforts to
implement the national silica and asbestos strategic plans.
Amendment of the Work Health and Safety Act 2011
137. Rights to work and rights in work are engaged by Schedule 4 to the Bill as it
strengthens the offences and penalties framework in the WHS Act, providing greater
deterrence for poor safety management in workplaces. The United Nations Committee
on Economic Social and Cultural Rights has stated that the right to work in Article 6(1)
of the ICESCR includes the element that 'the right to work should be protected, by
providing the worker with just and favourable conditions of work, in particular to safe
working conditions ... '. Article 7 of the ICESCR provides that everyone has the right to
the 'enjoyment of just and favourable conditions of work, which ensure, in
particular ... [s]afe and healthy working conditions'. Similarly, the ILO recognises a safe
and healthy working environment as a fundamental right at work, within the framework
of the Declaration on Fundamental Principles and Rights at Work 1998, as amended in
2022.
138. The prevention of occupational accidents and diseases is a fundamental aspect of the
right to just and favourable conditions of work. Its realisation requires the adoption of a
national policy for the prevention of accidents and work-related injuries by minimising
hazards in the working environment and ensuring broad participation in its formulation,
implementation, and review, in particular by workers, employers, and their
representative organisations.
139. This Bill promotes the right to safe and healthy working conditions by:
• strengthening the Commonwealth WHS offences regime by introducing a new
industrial manslaughter offence to punish and deter the most egregious breaches of
WHS duties;
• including provisions to allow for corporate and Commonwealth criminal liability
through attribution of conduct engaged in on behalf of a body corporate or the
Commonwealth by defined persons to these entities - that is, the conduct is taken to
have been engaged in by the body corporate or the Commonwealth;
• increasing penalty amounts across the WHS Act by 39.03 per cent (excluding
Category 1 - see discussion below), and inserting a mechanism to increase penalties
annually in line with national CPI so penalties maintain their real value over time;
and
26
• significantly increasing penalties for the Category 1 offence to reflect the
seriousness of a breach of that provision.
140. Strengthening the Commonwealth WHS framework through these measures would
promote the right to safe and healthy working conditions by deterring non-compliance
with WHS laws and facilitating more effective prosecutions of bodies corporate and the
Commonwealth.
141. The right to work includes the protection and promotion of the right to safe and healthy
working conditions. Preventing serious work-related incidents resulting in death or
serious injury or illness is fundamental to safeguarding that right.
142. The Bill would positively engage the right to work by protecting and promoting a safe
and healthy workplace by creating the Family and Injured Workers Advisory
Committee (Advisory Committee). The Advisory Committee will be primarily
comprised of members with lived experiences of serious work-related incidents. The
unique perspectives of lived experience members would inform the advice and
recommendations the Advisory Committee gives to the Minister and Commonwealth
regulators dealing with work health and safety (WHS) on policies, procedures and
strategies concerning serious work-related incidents. This would contribute to more
effective WHS policies and standards and promote the right to a safe and healthy
workplace.
Right to protection and assistance for families
143. Article 9 of the ICESCR provides for the right of everyone to social security, including
social insurance. Elaborating on Article 9, the Committee on Economic, Social and
Cultural Rights provided in General Comment 19 that 'States parties should ... ensure
the protection of workers who are injured in the course of employment or other
productive work'.4 Workers' compensation is analogous to social insurance in that it
provides payment of wages and medical costs to employees for injuries occurring as a
result of their employment.
144. The right to protection and assistance to families in Article 10(2) of the ICESCR,
recognises protection should be accorded to mothers during a reasonable period before
and after childbirth.
Amendment of the Safety, Rehabilitation and Compensation Act 1988
145. The amendments to the SRC Act at Schedule 3 to the Bill are intended to improve the
physical and mental health outcomes for first responders covered by the SRC Act by
simplifying their access to workers' compensation if they are suffering from PTSD.
Employment will be presumed to have significantly contributed to PTSD suffered by
first responders for the purposes of workers' compensation.
146. If a person does not satisfy the requirements of subsection 7(11) of the SRC Act (for
example, by not meeting the definition of 'first responder'), it remains open for the
4
Committee on Economic, Social and Cultural Rights, General Comment 19: The Right to Social Security (art. 9), U.N. Doc
E/C.12/GC/19 (2008), [17].
27
employee to otherwise establish, on the balance of probabilities, that the disease was
contributed to, to a significant degree, by the employee's employment.
Right to physical and mental health
147. Article 12 of the ICESCR requires that State Parties to the Covenant recognise the right
of everyone to the enjoyment of the highest attainable standard of physical and mental
health. The UN Committee on Economic, Social and Cultural Rights has stated that the
right to health embraces a wide range of socio-economic factors that promote
conditions in which people can lead a healthy life, extending to underlying
determinants of health such as safe and healthy working conditions.
148. The steps to be taken by the States Parties to the present Covenant to achieve the full
realisation of this right shall include those necessary for:
...
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and
other diseases; ...
Amendment of the Asbestos Safety and Eradication Agency Act 2013
149. Schedule 2 to the Bill would positively engage this right. Promoting 'industrial
hygiene' involves taking steps to protect the work environment by reducing workers'
exposure to substances that impact upon human health including where workplace
exposure to respirable crystalline silica results in people developing serious health
conditions. New Part 1A and Item 15 would provide the Agency with functions related
to silica safety and coordination and monitoring of jurisdictional efforts to eliminate
silica-related occupational diseases.
150. New section 5B and paragraphs 8(1)(b) and 8(1)(d) would confer on the Agency
various functions in relation to the Silica National Strategic Plan. In new section 5B,
the definition of the term 'Silica National Strategic Plan' specifically refers to
supporting workers who are affected by silica-related diseases' and 'eliminating or
minimising the exposure to respirable crystalline silica in workplaces'. These
provisions would require the Agency to focus on addressing matters which would result
in improving industrial hygiene in Australian workplaces.
151. Further, it is likely that conditions such as mesothelioma, asbestosis and silicosis are
diseases for the purposes of Article 12(2)(c).
152. The Bill would promote the right to health by broadening the object of the ASEA Act
to include elimination of silica-related diseases. One of the Agency's key objectives
would be to lead coordinated and national action to eliminate asbestos and silica-related
diseases by collaborating with States, Territories and local governments, and other
relevant persons on the development of the Asbestos National Strategic Plan and Silica
National Strategic Plan. The Agency would also be required to undertake various
activities in relation to encouraging, coordinating and monitoring implementation of the
28
plans and collaborating with governments about asbestos and silica safety and related
diseases.
153. New subsection 8(1) would provide that the Agency's functions would broadly include
eliminating or minimising exposure to respirable crystalline silica, raising silica safety
awareness, and improving research and national data. Therefore, the Bill would
promote the right to health as the Agency's functions would be directed towards
preventing and eliminating asbestos and silica-related diseases.
Amendment of the Safety, Rehabilitation and Compensation Act 1988
154. By simplifying the workers' compensation process for first responders suffering PTSD,
the amendments to the SRC Act promote access to those first responders suffering
PTSD to rehabilitation and compensation, embracing their right to the highest
attainable standard of mental health.
Amendment of the Work Health and Safety Act 2011
155. The right to physical and mental health expressed in Article 12 of the ICESCR is
engaged by this Bill as the United Nations Committee on Economic Social and Cultural
Rights has stated that the right to health concerns safe and healthy working conditions.
Guidance from the Attorney-General's Department clarifies that where Article 12(2)(b)
mentions 'industrial hygiene' this 'refers to the minimisation, so far as is reasonably
practicable, of the causes of health hazards inherent in the working environment'.
156. This Bill promotes the right to physical and mental health by strengthening the offences
and penalties framework which accompany a person's duty to minimise the causes of
health hazards inherent in the working environment. The Bill achieves this by
amending the WHS Act to better deter non-compliance with WHS duties.
157. Serious work-related incidents result in significant effects on the health and wellbeing
of victims and their families. The Senate Inquiry report They never came home - the
framework surrounding the prevention, investigation and prosecution of industrial
deaths in Australia noted that the human impact of an industrial death is catastrophic
and life-long. These impacts can be amplified while attempting to navigate formal
processes such as investigations and prosecutions following a work-related death.
158. The Bill would positively engage the right to health by ensuring that the systems of
support for workers and other persons (such as victim families) affected by a serious
work-related incident are informed by lived experience perspectives.
159. The Advisory Committee will be primarily comprised of members with lived
experiences of serious work-related incidents. The lived experiences of those members
would inform advice and recommendations to the Minister and Commonwealth
regulators dealing with WHS about the support necessary for people impacted by
serious workplace incidents. Improving engagement with, and support for, workers and
their families following a serious work-related incident would assist them to achieve
the highest attainable standard of health possible and promote the right to physical and
mental health.
29
Right to an effective remedy and right to a fair hearing
160. Article 2(3) of the ICCPR and Article 2 of the CEDAW provides the right to an
effective remedy for persons who have suffered human rights violations by Australian
authorities, as well as persons who have suffered discrimination perpetrated by
Australian authorities. The United Nations Human Rights Committee has stated that the
right to an effective remedy encompasses an obligation to bring to justice perpetrators
of human rights abuses, including discrimination, and also to provide appropriate
reparation to the persons who have suffered human rights abuses. Reparation can
involve measures including compensation, restitution, rehabilitation, public apologies,
guarantees of non-repetition and changes in relevant laws and practices.
161. Article 14(1) of the ICCPR provides that, in the determination of rights and obligations
in a suit at law, all persons have a right to a fair and public hearing before a competent,
independent and impartial court or tribunal established by law.
Casual employment
162. Part 1 of Schedule 1 would positively engage the right to a fair remedy by
implementing a new dispute resolution framework for the FWC to deal with disputes
between employers and employees about employee choice and casual conversion.
163. Part 1 would require the parties to first attempt to resolve the dispute at a workplace
level. If this is unsuccessful, the amendments would allow employees to make
applications to the FWC to deal with disputes as it considers is appropriate, including
by mediation, conciliation, making a recommendation or expressing an opinion, or
mandatory arbitration.
164. The Bill would further promote the right to an effective remedy by enabling the FWC
to make binding orders, having regard to what is fair and reasonable. Parties can also,
on application, have the dispute heard in the small claims jurisdiction of the Federal
Circuit and Family Court of Australia.
Closing the labour hire loophole
165. Part 6 of Schedule 1 would positively engage the right to a fair remedy by creating a
new low-cost dispute resolution mechanism by allowing an affected party to apply to
the FWC to resolve a dispute and by providing for parties to be represented by an
organisation entitled to represent their industrial interests.
166. Consistently with other dispute resolution processes in the FW Act, the parties would
be required to attempt to resolve the dispute at the workplace level before applying to
the FWC. If these discussions did not resolve the dispute, the FWC would be required
to first deal with the dispute other than by arbitration, such as by mediation or
conciliation.
167. If mediation or conciliation were unsuccessful, and the parties agree to the FWC
arbitrating the dispute, the FWC's order could apply to work performed before and
after the order is made. If the parties do not consent to arbitration, the order could only
apply prospectively in relation to work performed after the order is made. The FWC
30
would not be able to make the order unless satisfied it is fair and reasonable. This is
consistent with the scope of the FWC's power as an administrative tribunal rather than
a court.
Workplace delegates' rights
168. Part 7 of Schedule 1 would positively engage the right to a fair hearing by creating a
right for workplace delegates to represent members who are in dispute with their
employer or relevant regulated business. This would improve the ability for workers to
access representation by their workplace delegates. The proposed rights to reasonable
communication with members and reasonable access to the workplace would also
support the efficacy with which workplace delegates can perform their roles. Although
disciplinary or dispute processes in the workplace do not rise to the level of a hearing
before a court or tribunal, the outcomes of these processes can have a substantial impact
on the workers involved. Improving the ability for workers to seek assistance from a
workplace delegate, and removing barriers to delegates providing such representation
or assistance, would help to maintain the procedural fairness of these processes.
169. The Bill would also positively engage the right to an effective remedy by establishing a
process for workplace delegates, in new sections 350A and 350B, to challenge
behaviour that is inconsistent with the rights of delegates provided for by the new
section 350C. Although the FW Act acknowledges their existence, there is currently
limited legislative protection for workplace delegates. In some circumstances,
workplace delegates might be able to avail themselves of the protections for
participating in industrial activities (Division 4 of Part 3-1 of the FW Act), however
there are currently no rights specific to workplace delegates. Establishing a purpose-
built protection against unreasonably hindering or obstructing a workplace delegate
would complement the existing protections and ensure that workplace delegates are
able to enforce the proposed positive rights.
Provisions relating to regulated workers
170. Part 16 of Schedule 1 relating to standard setting for regulated workers would
positively engage the right to an effective remedy by:
• requiring MSOs for regulated workers and collective agreements to include terms
providing a procedure for settling disputes; and
• allow for regulations to be made to empower the FWC to conduct an internal merits
review of a decision to make or vary an RTMSO.
171. Part 3A-3 establishes quick, flexible and informal procedures for the resolution of
unfair deactivation and termination claims that address the needs of both the regulated
businesses and regulated workers, thereby promoting the right to an effective remedy.
The associated remedies under the new provisions would further enhance this right, by
enabling the FWC to make a variety of orders, with reactivation/reinstatement being the
primary remedy. The efficient and effective resolution of disputes, and therefore the
promotion of the right to a fair hearing, would be assured by empowering the FWC to
31
determine whether it is appropriate to hold a conference or a hearing, taking into
account the differences of the parties' circumstances and their wishes.
172. This measure would allow the FWC to make an order for costs against a party in a
matter arising under new Part 3A-3 (unfair deactivation or unfair termination of
regulated workers). While this could be construed as having the potential to limit a
person's access to justice (if the risk of costs acts as a disincentive), this provision
should not bar access to the FWC in relation to new Part 3A-3. Costs could only be
awarded under the new provision if a party's unreasonable act or omission relating to
the conduct or continuation of the matter caused the other party to incur costs. This is
targeted towards litigants who pursue or defend unfair termination or unfair
deactivation claims in an unreasonable manner. This would also disincentivise a party
with 'deeper pockets' from acting unreasonably to increase the other party's own costs
in an attempt to discourage parties from bringing proceedings against them or
encourage a party to settle on unfavourable terms. In this respect the measure will
enhance the right to a fair hearing.
173. Part 3-5-Unfair contract terms: A remedy under Part 3-5 would only be available to
independent contractors who earn below a high income threshold. This measure is
targeted at people with low bargaining power and lower pay for whom the costs of
going to court could act as a disincentive or outright bar to seeking a remedy. For those
applicants, the lower costs and increased accessibility of the FWC as compared to the
federal courts would enhance their right to an effective remedy.
174. Independent contractors with incomes above the contractor high income threshold
would continue be able to access the existing unfair contracts protections under the IC
Act, ensuring that they would still have the right to an effective remedy.
175. This Part would prevent people from 'double dipping' by pursuing or obtaining
multiple remedies in relation to the same services contract. However, to ensure that a
person would still be able to obtain an effective remedy, they could still commence
proceedings under Part 3-5 or another law so long as the applicant discontinued the
other proceedings, or the proceedings failed for lack of jurisdiction.
176. Appropriate transitional and application provisions in Part 17 of Schedule 1 would
further ensure that no litigants or potential litigants under the IC Act are disadvantaged,
confused or suffer delays because of the commencement of the FWC's new
jurisdiction. Proceedings currently before the courts and applications relating to
contracts entered into prior to commencement would be able to be conclusively
determined under the IC Act.
Criminal process rights
177. Articles 14 and 15 of the ICCPR protect criminal process rights:
• Article 14(1) provides that all persons shall be equal before the courts and tribunals,
and that in the determination of any criminal charge against a person, that person is
entitled to a fair and public hearing by a competent, independent, and impartial
tribunal established by law;
32
• Article 14(2) provides that those charged with a criminal offence are presumed
innocent until proven guilty according to the law;
• Article 14(3) sets out a range of guarantees that each person shall be entitled to in
the determination of any criminal charge against them. This includes the right not to
be compelled to testify against themselves or to confess guilt;
• Article 14(7) protects against the risk of double punishment; and
• Article 15(1) protects against criminal penalties applying retrospectively.
Casual employment
178. Part 1 of Schedule 1 in relation to casual employees do not directly engage rights in
relation to criminal process, but these amendments do propose to enact several civil
remedy provisions.
179. New civil remedy provisions would be included in relation to contravening an order of
the FWC or engaging in sham casual arrangements. The maximum penalty for these
contraventions would be 300 penalty units. Contravention of an FWC order will often
result in underpayments due to misclassification. This penalty is consistent with other
underpayment-related penalties, and for sham casual arrangements is consistent with
increased penalties for sham arrangements in relation to independent contractors.
Closing the labour hire loophole
180. The amendments to close the labour hire loophole would not directly engage rights in
relation to criminal process but they do provide for civil remedies. This includes
penalties where a labour hire provider fails to pay an employee in accordance with
Part 2-7A where a regulated labour hire arrangement order is in place, where a
regulated host does not provide certain information to an employer on request, or where
a party contravenes an order of the FWC.
181. The maximum penalty a court could order would be 600 penalty units for a serious
contravention or otherwise 60 penalty units. This is consistent with the maximum
penalty that currently applies under the FW Act in relation to similar conduct, for
example, contravening an equal remuneration order. This penalty is proportionate to the
seriousness of the contravention, noting that the measure is directed towards preventing
the undercutting of bargained rates.
182. Appropriate safeguards are built into the new civil penalty provisions. For example, an
employer who does not pay a regulated employee the protected rate of pay in
accordance with Part 2-7A will not be liable to a civil penalty if they reasonably relied
upon information provided by a regulated host and the information was incorrect.
183. The anti-avoidance provisions would apply retrospectively, with application from the
date the Bill is introduced in the Parliament. This means penalties may apply in relation
to conduct engaged in before the Bill commences. This is reasonable and proportionate
to prevent businesses from taking steps to avoid obligations under new Part 2-7A
33
before the Bill commences. Parties will be on notice about their obligations as the
legislation will be publicly available when it is introduced.
Workplace delegates' rights
184. Part 7 of Schedule 1 providing for specific workplace delegates' rights do not directly
engage rights in relation to criminal processes, but they do provide for civil remedies.
Specifically, the Bill would introduce a new protection against employers and regulated
businesses unreasonably failing or refusing to deal with a workplace delegate,
knowingly or recklessly making a false or misleading representations to a workplace
delegate, or unreasonably hindering, obstructing or preventing the exercise of a
workplace delegate's rights.
185. The protection would not apply when an employer or regulated business has acted
reasonably. The onus would be on the employer or regulated business to prove their
conduct was not unreasonable, as the employer or regulated business is best placed to
provide evidence about the reasons and intent behind the actions they took (or did not
take).
186. This protection would also not be engaged if the employer or regulated business is
taking actions required under a Commonwealth or State or Territory law.
187. The maximum pecuniary penalty for contravening this new civil remedy provision
would be 60 penalty units for an individual, or 300 penalty units for a body corporate.
This is consistent with the maximum penalties which apply to contraventions of
existing civil remedy provisions in Part 3-1 of the FW Act, including the protections
against adverse action and coercion. The new civil penalty provisions will only apply to
conduct which occurs after the date the respective Divisions commence. This positively
engages the protection against retrospective application of penalties in relation to civil
remedies.
188. In some circumstances, action by an employer which obstructs a workplace delegate
might contravene both the proposed civil remedy provisions, and the existing civil
penalty provision prohibiting adverse action taken because an employee has exercised,
or proposes to exercise, a workplace right. This will not expose employers or regulated
businesses to a risk of double punishment. Section 556 of the FW Act prevents a court
from ordering that a person pay a pecuniary penalty if a pecuniary penalty has already
been imposed under another provision of a law of the Commonwealth in relation to the
same conduct.
189. Overall, this measure would have a neutral impact on criminal process rights.
Sham arrangements
190. The prohibition of certain sham contracting arrangements in subsection 357(1) of the
FW Act does not directly engage rights in relation to criminal processes, but does
provide for civil remedies.
34
191. The existing provision in section 357 of the FW Act places the onus on an employer to
prove they have a defence to sham contracting. Whilst the new provision changes the
nature of the defence to sham contracting, it does not change this burden of proof. The
burden is on the employer because it is a defence and the burden of proving a defence
usually rests with the party seeking to rely on it. Further, the employer is best placed to
provide evidence about the belief they held when making the representation.
192. There is a legitimate objective to this evidential burden and it is confined within
reasonable limits considering the question to be answered. The provision does not
impose criminal penalties, for the reasons articulated at paragraph 177 below. However,
to the extent that section 357 may limit criminal process rights those limitations are
reasonable, necessary and proportionate
Penalties for civil remedy provisions
193. The Parliamentary Joint Committee on Human Rights (PJCHR) Practice Note 2
provides that civil penalty provisions may engage criminal process rights under
Articles 14 and 15 of the ICCPR, regardless of the distinction between criminal and
civil penalties in domestic law. A penalty may be considered 'criminal' where it:
• is classified as criminal under Australian law;
• is intended to punish or deter, and applies to the public in general (rather than being
restricted to people in a specific regulatory context); or
• includes imprisonment or a substantial pecuniary sanction.
194. When a provision imposes a civil penalty, an assessment is required as to whether it
amounts to a criminal penalty for the purposes of ICCPR.
195. New civil remedy provisions should not be considered criminal penalties: The Bill
includes several new civil penalty provisions. The penalty provisions of the FW Act are
expressly classified as civil penalties (section 549). These provisions create pecuniary
penalties in the form of a debt payable to the Commonwealth or other person. The civil
penalty provisions do not impose criminal liability, and do not lead to the creation of a
criminal record. There is no possibility of imprisonment for failing to pay a penalty
(section 571).
196. The purpose of the civil penalty provisions is to encourage compliance with the FW
Act, which supports the implementation of Australia's obligations under international
law. The penalties would generally apply to defined classes of employers and not the
public in general. While the FWO has enforcement powers, proceedings may also be
brought by an affected employee or union. In addition, the civil remedy provisions
would apply in the regulatory environment for industrial relations, rather than to the
public at large. These factors all suggest that the civil penalties imposed by the FW Act
are civil rather than criminal in nature.
197. The severity of the relevant civil penalties should be considered low. They are
pecuniary penalties (rather than a more severe punishment like imprisonment) and there
35
is no sanction of imprisonment for non-payment of penalties. The penalties are
generally at or below the level usually considered to be severe enough to be classified
as criminal (that is, below 60 penalty units for individuals).
198. As the proposed new civil penalties would reasonably be characterised as not being
criminal in nature, the specific criminal process guarantees in Articles 14 and 15 of the
ICCPR would not apply. In any event, however, new civil penalties, and the civil
penalty regime in the FW Act more broadly, comply with the requirements of
Articles 14 and 15 in that they would not apply retrospectively (Article 15(1)), the
presumption of innocence applies (Article 14(2)), and there is no risk of double
punishment as there are no comparable criminal penalties (Article 14(7)).
199. On this basis, the proposed new penalties should not be considered criminal for the
purposes of human rights law.
Wage theft
200. The Bill proposes amendments to introduce a new criminal offence for wage theft (new
section 327A), which would apply to intentional conduct. It would rely on Parts 2.4 and
2.5 of the Criminal Code to establish pathways for prosecuting ancillary and corporate
criminal liability relating to the new offence. Provision would be made for the
Commonwealth to be liable for an offence, and for the FWO to investigate suspected
underpayment crimes (including of 'related offence provisions' as defined, which are
provided for under the Criminal Code).
201. Criminalising wage theft engages criminal process rights. The proposed offence
provision, if enacted, would sit within the broader Commonwealth criminal framework,
including the Crimes Act and Criminal Code, which guarantees criminal process rights
as provided for in Articles 14 and 15. Further comments relating to Article 14(3) are
made below.
202. In addition to these rights:
• the FW Act provides for an appeals process from decisions of eligible State or
Territory courts (section 565);
• the FW Act protects against criminal/civil double jeopardy (section 552), and would
protect an accused while criminal proceedings are on foot, by staying any related
civil proceedings against the person (where a pecuniary penalty order is sought)
(section 553); and
• proposed transitional arrangements for the proposed new offence for wage theft
(new section 327A) would make clear that the new offence provision applies
prospectively, that is to conduct that occurs after commencement.
203. Absolute liability elements: The Bill limits the presumption of innocence by imposing
absolute liability for certain offence elements. The application of absolute liability
limits the presumption of innocence to the extent that it allows for the imposition of
criminal liability without requiring the prosecution to prove fault in the defendant.
36
204. According to the Guide to Framing Commonwealth Offences, absolute liability may be
acceptable where an element is essentially a precondition of an offence and the state of
mind of the defendant is not relevant. For the new offence for wage theft (new
section 327A), absolute liability would attach to two preconditions for the offence, that
is:
• the employer is required to pay an amount (a required amount) to, on behalf of, or
for the benefit of, an employee under (new paragraph 327A(1)(a)):
o the FW Act; or
o a fair work instrument; or
o a transitional instrument (as continued in existence by Schedule 3 to the
Fair Work (Transitional Provisions and Consequential Amendments) Act
2009); and
• the required amount is not (new subparagraph 327A(1)(b)) an amount covered by
subsection (2).
205. It is also appropriate to apply absolute liability to paragraph 327A(1)(b), because this is
a jurisdictional element. New paragraph 327A(1)(b) does not relate to the substance of
the offence, but marks a boundary between matters that are within scope for the offence
and those that are not. The Commonwealth Guide to Framing Offences explains that
applying absolute liability to a particular physical element of an offence may be
justified where the element is jurisdictional, rather than one going to the essence of the
offence.
206. Further, the absolute liability measures are proportionate in that they only apply to
elements of the offence and not to the offence as a whole. In this respect, the
prosecution will still be required to prove, beyond a reasonable doubt, all other
elements of the offence including fault elements.
207. The substance of the offence is in new paragraphs 327A(1)(c) and (d), for which the
fault element would be intention (paragraph 327A(3)(b)):
• For new paragraph 327A(1)(c), the prosecution would have to prove beyond a
reasonable doubt that the defendant intentionally engaged in the relevant conduct.
• For new paragraph 327A(1)(d), the prosecution would have to prove beyond a
reasonable doubt that the defendant intended that their conduct would result in a
failure to pay the required amount to, on behalf of, or for the benefit of, the
employee in full on or before the day when the required amount is due for
payment. For there to be an offence, the person must mean to bring about the result
(that is, a failure to pay the required amount), or be aware that result will occur in
the ordinary course of events (refer to s 5.2 of the Criminal Code).
208. These fault elements ensure that only serious conduct involving underpayments is
caught by the offence provision, which justifies the corresponding sanctions.
37
209. For these reasons, it is appropriate to attach absolute liability to the preconditions to the
offence in new paragraphs 327A(1)(a) and (b).
210. Abrogating the privilege against self-incrimination: The Bill would expand the
circumstances in which Fair Work Inspectors may exercise their existing powers, as
they would be able to investigate suspected wage theft under the proposed new offence
provision and 'related offence provisions'. A number of minor or technical
amendments (explained elsewhere) are proposed to ensure that outcome.
211. Sections 713 and 713A abrogate the privilege against self-incrimination in the specified
circumstances. With some exceptions, subsection 713(2) and section 713A of the FW
Act generally provide that if an individual produces a document or record in
compliance with specified provisions, that record or document, and any evidence
obtained as a direct or indirect consequence of inspecting that document or record, is
not admissible in evidence in criminal proceedings. The immunity is different in the
case of an individual who gives information, or produces a record or document, or
answers a question, under a FWO notice (see subsection 713(3)).
212. Items 228 to 230 of the Bill would provide that the immunities conferred by
subsections 713(2) and (3) and section 713A do not apply to two classes of documents.
The first is an employee record that is required to be made and kept under section 535
of the FW Act. The second is a copy of a pay slip that has been created in relation to an
employee (see section 536 of the FW Act).
213. As a result of the amendments, these employee records and copies of pay slips may be
used in evidence.
214. To the extent that these amendments limit the rights under Article 14 of the ICCPR,
those limitations are reasonable, necessary and proportionate.
215. Sections 535 and 536 of the FW Act require employers to keep the employee records
and issue pay slips to employees. If an employer is lawfully required to produce and
keep (or issue) these documents and records, then it is not reasonable for their use in
evidence to be prevented.
216. Records required to be kept and pay slips required to be issued under sections 535 and
536 of the FW Act are often central to establishing that an underpayment has occurred
in civil proceedings. The immunities conferred by subsections 713(2) and (3) and
section 713A would significantly impair Fair Work Inspectors' ability to effectively
investigate the new wage theft criminal offence.
217. Further, the records and documents must only be produced in limited circumstances:
the documents may only be produced and inspected/copied while a Fair Work Inspector
is on the premises or following the provision of a notice.
218. To the extent these amendments limit the rights under Articles 14 and 15 of the ICCPR,
they are appropriate as they seek to achieve the legitimate objective of protecting
employee entitlements, recovering underpayments and prosecuting criminal non-
compliance. The commencement and application provision, and the operation of
38
existing sections 552 and 553 of the FW Act, operate to reduce any conflict with the
relevant Articles 14(3)(g) and 15(1).
Amendment of the Work Health and Safety Act 2011
219. Measures in Schedule 4 of the Bill engage and limit criminal process rights.
220. Part 1 of Schedule 4: There will be no limitation period for bringing proceedings for
an industrial manslaughter offence (Item 7). New subsection 30A(5) states that for the
purposes of alternative verdicts, the general limitation period of 2 years which
otherwise applies to Category 1 and 2 offences (with some exceptions - see existing
section 232) is displaced (Item 1).
221. The absence of limitation periods for industrial manslaughter and alternative verdicts
could limit a defendant's right to a fair trial. This is particularly relevant to the right in
Article 14(3)(c) of the ICCPR that everyone is entitled to be tried without undue delay
and the principle of 'equality of arms' in Article 14(1), which requires that all parties to
a proceeding must have a reasonable opportunity of presenting their case under
conditions that do not disadvantage them as against other parties to the proceedings.
Where no limitation period applies it could be difficult for an officer to defend
themselves years after the fact. People with relevant knowledge may have moved on
and evidence may be difficult to access.
222. Any limitation on the right to a fair trial arising from not applying limitation periods to
the industrial manslaughter offence and alternative verdicts is justifiable because it
would be necessary to pursue a legitimate objective and is reasonable, necessary and
proportionate.
• A limitation period would be inappropriate for an offence as serious as industrial
manslaughter. The absence of a limitation period is consistent with other
manslaughter offences.
• Disapplying limitation periods in relation to alternative verdicts seeks to ensure the
accused does not escape punishment on technical grounds. This would mean that if
the prosecution commenced industrial manslaughter proceedings outside the
limitation period that applied to, for example, a Category 2 offence (2 years after
the offence first comes to the notice of the regulator or 1 year after a coronial
finding - see section 232 of the WHS Act), it would not impact the ability of a court
to find the accused guilty of a Category 2 offence in the alternative.
223. Reasonable excuse: The Category 1 offence is drafted to align with the model Act and
therefore includes a 'reasonable excuse' defence in paragraph 31(1)(b). The reasonable
excuse defence imposes the evidential burden on the defence to establish that a
reasonable excuse justifying their conduct existed.
224. The reasonable excuse defence contained in section 31 of the WHS Act enlivens the
presumption of innocence in Article 14(2) of the ICCPR. As explained above, a reverse
onus provision will not necessarily violate the presumption of innocence provided the
law is not unreasonable in the circumstances and maintains the rights of the accused.
39
Such a provision may be justified if the nature of the offence makes it very difficult for
the prosecution to prove each element, or if it is clearly more practical for the accused
to prove a fact than for the prosecution to disprove it. To the extent section 31 limits the
presumption of innocence, that limitation is justified on the basis that it is more
practical for the accused to bear the evidential burden in relation to whether a
reasonable excuse for their conduct existed.
225. Legal burden for defence like provisions in new sections 244B, 244C, 245B and
245C: New subsection 244B(2) would create defences that provide
paragraphs 244B(1)(b) and (c) do not apply if the body corporate proves it took
reasonable precautions to prevent the conduct, authorisation, or permission of the
conduct. New subsection 244B(2) requires the defendant to discharge the legal burden
in relation to that matter, that is, they must positively prove that such reasonable
precautions were taken. Section 13.5 of the Criminal Code provides that a legal burden
imposed on the defendant must be discharged on the balance of probabilities. This
reversal of the burden of proof is necessary because the steps taken to prevent WHS
breaches are peculiarly within the knowledge of the defendant. Also, the inside access
to specialised information and corporate knowledge available to the body corporate as
to the actual steps taken, and the context for those choices, would mean that it would be
significantly more difficult and costly for the prosecution to disprove than for the
defendant to establish the matter.
226. Additionally, the conduct proscribed by WHS offences poses a grave danger to public
health or safety. Conduct constituting a WHS breach often poses a such danger.
227. New sections 244C, 245B and 245C are substantially the same as new section 244B
and the explanation above applies.
228. Strict liability: The Parliamentary Joint Committee on Human Rights has noted the
imposition of strict or absolute liability will not violate Article 14(2) where it pursues a
legitimate aim and is reasonable and proportionate to that aim.
229. The Bill would introduce an industrial manslaughter offence which would include strict
liability elements. Importantly, the offence also requires the prosecution to prove either
negligence or recklessness and that the conduct was intentional. Strict liability only
applies to certain elements.
230. Most offences in the WHS Act include strict liability elements or are strict liability.
Strict liability as a feature of WHS Act offences was carefully considered when the
WHS Act was first introduced. The presumption of innocence can be seen to be
impinged by removing the requirement for the prosecution to prove fault in relation to
one or more physical elements of an offence. However, WHS strict liability offences
arise in a regulatory context where, for reasons such as public safety, and the public
interest in ensuring that regulatory schemes are observed, the sanction of criminal
penalties is justified.
231. WHS offences also arise in a context where a defendant can reasonably be expected,
because of their professional involvement, to know the requirements of the law, and the
40
mental, or fault, element can justifiably be excluded. The rationale is that people who
owe WHS duties such as employers, persons in control of aspects of work, and
designers and manufacturers of work structures and products, as opposed to members
of the general public, can be expected to be aware of their duties and obligations to
workers and the wider public. The industrial manslaughter offence would apply to
PCBUs, and 'officers' (the most senior persons in an organisation).
232. The legitimate aim of strict liability for WHS offences, to ensure defendants operating
in the WHS regulatory context are held accountable for breaches of their positive duties
to ensure a safe and healthy workplace, is proportionate to any limitation it places on
the presumption of innocence.
Right to privacy and reputation
233. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful
interference with their privacy, family, home and correspondence. This includes respect
for informational privacy, including in respect of storing, using, and sharing private
information and the right to control the dissemination of personal and private
information. Privacy guarantees a right to secrecy from the publication of personal
information. It also prohibits unlawful attacks on a person's reputation.
Exemption certificates for suspected underpayment
234. The FW Act establishes a right of entry scheme for entry permit holders, including
entry to investigate suspected contraventions (section 481) which is subject to (among
other things) at least 24 hours' notice. Provision is made to waive the 24 hour-notice
period by applying to the FWC for an exemption certificate, with a view to preventing
the possibility of destruction, concealment or alternation of relevant documents and
records (section 519).
235. It is proposed that the grounds for the issue of an exemption certificate should be
expanded, so the notice period may also be waived if the FWC is satisfied that the
suspected contravention, or contraventions, involve the underpayment of wages, or
other monetary entitlements, of a member of the organisation whose industrial interests
the organisation is entitled to represent and who performs work on the premises. This
measure would be subject to comprehensive safeguards against misuse of the entry
powers.
236. There may be concerns that this measure may engage the right to privacy. However,
there is no proposal in this measure to change either the grounds for entry, or to modify
the existing limits and protections for entry scheme under Part 3-4. This means that the
existing framework will continue to:
• limit the exercise of the relevant entry rights to workplaces and working hours only
(subsections 481(1), 490(1));
• limit access to member records as set out in section 482, subject to the existing
application process in section 483AA;
41
• prohibit entry permit holders from intentionally hindering and obstructing any other
person when exercising rights of entry, or otherwise acting in an improper manner
(section 500);
• restrict the unauthorised use or disclosure of information or documents
(section 504); and
• prohibit an entry permit holder from entering any part of premises that is used
mainly for residential purposes (section 493).
237. For these reasons, the proposed measure does not engage the right to privacy.
Provisions related to regulated workers
238. Section 712AA would be consequentially amended by Part 16 of Schedule 1 to provide
that the FWO may apply to a nominated AAT presidential member for an FWO notice
in relation to the underpayment of monetary entitlements under an MSO, the unfair
deactivation of an employee-like worker or unfair termination of a regulated road
transport contractor.
239. A FWO notice may require a person to give information, produce documents or attend
before the FWO and answer questions relevant to an investigation. The person who is
been given a FWO notice must comply with the notice, and if they do not, they could
be subject to a civil penalty.
240. By extending the circumstances under which a person can be required by a FWO notice
to produce documents, give information or attend an examination to answer questions,
this provision would limit the right to privacy.
241. The objective of this measure is to ensure that the FWO would be able to secure
positive investigation outcomes in relation to underpayment of monetary entitlements
under an MSO or the unfair deactivation of an employee-like worker or unfair
termination of a regulated road transport contractor.
242. The limitation on privacy would be necessary, reasonable and proportionate. The ability
to use these powers would be particularly important where there are no relevant
documents that appear to be available and subsequently the investigation into these
matters has stalled. These powers would also be important to enable the FWO to
establish whether a contravention of an MSO would constitute a serious contravention
by determining whether the conduct was deliberate.
243. These powers are currently available for investigations into matters such as the
underpayment of wages or other monetary entitlements of employees, and the unfair
dismissal of employees. The FWO should have the same powers in investigations into
similar matters involving regulated workers, otherwise this would perpetuate the
disadvantage already faced by these workers.
244. Extending the FWO notice regime to breaches of MSOs and collective agreements
would ensure the FWO's coercive powers would continue to only be used for the
42
intended purpose of facilitating investigations into the exploitation of vulnerable
workers, specifically in relation to underpayments and entitlements.
245. Additionally, the FWO notice regime has adequate safeguards, including:
• The requirement that the FWO believes on reasonable grounds that a person has
informational documents relevant to an investigation and is capable of giving
evidence and sets this out in an affidavit.
• The requirement that an AAT member can only issue the FWO notice if satisfied
that there are reasonable grounds to believe the person has information or
documents or is capable of giving evidence relevant to the investigation and that of
obtaining information, documents or evidence have been attempted and have been
unsuccessful or are not appropriate.
• Protection from liability relating to FWO notices.
• The requirement that the FWO notify the Commonwealth Ombudsman of the issue
of a FWO notice and provide a report about the examination.
Amendment of the Asbestos Safety and Eradication Agency Act 2013
246. New section 14A inserted by Schedule 2 would provide for the Chief Executive Officer
of the Agency to request information from a person in certain circumstances and an
express permission for a person to provide the requested information.
247. New subsections 14A(5)-(6) would provide an express permission that a person can
rely on to provide the requested information, if they consider the disclosure to the new
Agency is appropriate. This express permission would not compel a person to provide
information when requested. New subsection 14A(6) would provide that a person may
disclose information to the Agency in response to a request despite anything in a law of
the Commonwealth (other than the ASEA Act) or a law of a State or Territory. This
means that a non-disclosure provision in other legislation that would otherwise prevent
information being disclosed to the new Agency, does not prevent its disclosure.
248. This amendment engages the right to privacy because information that may be
disclosed could include personal information and non-disclosure provisions that
otherwise apply may be overridden.
249. To the extent that the right to privacy is limited by the amendment it is considered that
limitation is necessary to achieve a legitimate objective. The purpose of the amendment
is to ensure that information necessary to support the Agency's research, data and
reporting functions can be collected. Silica issues are complex and require coordination
and information sharing across portfolios as well as jurisdictions. This amendment is
intended to facilitate information sharing between government agencies and bodies.
New section 14A is framed broadly to provide flexibility for the future. For example,
ASEA has a very cooperative approach and in the future the Agency may form
partnerships with non-Governmental organisations and request information from such
bodies as well.
43
250. Tracking progress against the national strategic plans and developing evidence-based
research relies on input from a range of sources including all State and Territory
governments. This amendment would ensure that persons with relevant information are
able to provide that information to the Agency.
251. The amendment is reasonable and proportionate, as information must be necessary for
the performance of the Agency's research, data and reporting functions. This would
involve for example, data on number of diagnosed cases of silicosis or other silica-
related diseases in each State and Territory. It would not include for example, a
person's medical record as that would not be necessary for the performance of the
Agency's functions. Failing to fulfil a request would not be an offence and broad
discretion will be retained by the person holding information. There could be a range of
legitimate reasons why a request may not be fulfilled, including if, for example,
providing the information requested would cause unnecessary duplication of work and
create an administrative burden on the person.
252. The Agency would be subject to a range of obligations to ensure that the information it
obtains is handled appropriately:
• Personal information collected by the Agency is subject to the requirements of the
Privacy Act 1988 which governs its collection, use, disclosure, storage and disposal.
• As Australian Public Service (APS) employees, the Agency's employees would be
bound by the APS Code of Conduct, including regulation 2.1 (duty not to disclose
information) which applies to information obtained by the Agency related to the
performance of its statutory functions. A breach of the Code of Conduct by an APS
employee may lead to the imposition of sanctions up to and including termination
of employment.
• The Criminal Code includes offences relating to the unauthorised disclosure of
information by current (and former) Commonwealth officers, including APS
employees, punishable by terms of imprisonment (of between two and seven years
depending on the circumstances of the offence).
Right to freedom of association
253. Article 22 of the ICCPR protects the right to freedom of association, including the right
to form and join trade unions. Article 8(1)(c) and (d) of the ICESCR also support the
right to freedom of association by providing that States Parties undertake to ensure the
right to form and join trade unions and the right to strike, including picketing activities.
There are also specific obligations relating to freedom of association in the ILO's
Freedom of Association and Protection of the Right to Organise Convention 1948
(No. 87) and Right to Organise and Collective Bargaining Convention 1949 (No. 98).
Workplace delegates' rights
254. Workplace delegates have various roles and responsibilities necessary for the ongoing
support and functioning of registered employee organisations. They can serve as the
first point of contact for members of an employee organisation within the workplace,
44
including when a worker is considering joining an employee organisation, and
represent worker concerns in the workplace.
255. There is currently limited legislative protection or specific rights for workplace
delegates performing these roles within a workplace. Delegates may have to use annual
leave or take unpaid time off work to undertake training necessary to their roles in the
registered organisation. Employers may also seek to prevent delegates from
communicating with members or eligible members while at the employer's premises.
Consequently, in some circumstances it may be difficult for delegates to provide
effective support and representation to members and eligible members in the
workplace. Imposing such restrictions on workplace delegates can have an impact on
how effectively they can perform their roles, and consequently take lawful industrial
activity and protected industrial action.
256. Part 7 of Schedule 1 would require that modern awards and all new enterprise
agreements contain a term that deals with workplace delegates' rights. These terms
must include a right to represent members within their workplace and various
supporting rights, including rights to reasonable access to paid time off for training, and
reasonable access to the workplace and workplace facilities for advancing their
members' industrial interests. The Bill would support these new protections for
workplace delegates by introducing a specific protection against an employer
unreasonably failing or refusing to deal with the workplace delegate, making a false or
misleading representation to the workplace delegate, or unreasonably hindering or
obstructing the exercise of a workplace delegate's rights.
257. These amendments would positively engage the right to freedom of association,
particularly Article 8(c) of the ICESCR which guarantees the right of trade unions to
function freely, subject to no limitations other than those prescribed by law. These
amendments would ensure that workplace delegates are afforded these basic primary
rights within the workplace to carry out their delegate duties.
Exemption certificates for suspected underpayment
258. These amendments would positively engage the right to freedom of association,
particularly Article 8(1)(c) of the ICESCR which guarantees the right of trade unions to
function freely, subject to no limitations other than those prescribed by law. Of
particular relevance is guidance provided by the Committee of Experts on the
Application of Conventions and Recommendations of the International Labour
Conference which acknowledges 'the right of trade union officers to have access to
places of work' pursuant to Article 3 of ILO Convention 87 (Freedom of Association
and Collective Bargaining, 81st session, Report III, Part 4B at [128]).
259. Part 3-4 of the FW Act provides a framework for right of entry for officials of
organisations and employers the FWC to deal with the misuse of rights and disputes.
260. These amendments would waive the minimum 24-hour notice period required for entry
to investigate a suspected contravention of the FW Act, or a term of a fair work
instrument, in specified circumstances, namely, that the permit holder's organisation
45
has been issued with an exemption certificate on the ground of a suspected
underpayment. This would enhance access to the workplace for officials of registered
organisations (who are permit holders) to effectively investigate suspected
contraventions and exercise powers under Part 3-4 including interviewing relevant
persons and inspecting relevant records and documents.
261. In addition, the measure will protect permit holders exercising rights under Part 3-4
against people acting in an improper manner towards them.
262. The measure positively engages the right to freedom of association by enhancing the
ability of permit holders to investigate suspected wage underpayments.
Withdrawal from amalgamations
263. This measure engages the right to freedom of association and the right to take part in
public affairs and elections, by proposing to:
• repeal provisions of the RO Act that enable applications for a de-merger ballot to
the FWC (to initiate a de-merger process) to be made more than five years after the
relevant amalgamation (RO Act, section 94A); and
• repeal paragraph (c) of the definition of 'separately identifiable constituent part' to
restore certainty about the part(s) of an organisation that may be subject to a de-
merger ballot (RO Act, section 93(1)).
264. This measure would restore the provisions as they were before amendments made by
the Fair Work (Registered Organisations) Amendment (Withdrawal from
Amalgamations) Bill 2020 (2020 amendments). The measure would strengthen the
principle of freedom of association by removing the instability and uncertainty that has
been brought about by the 2020 amendments.
265. The measure would restore the old arrangements for de-amalgamations, which provide
a reasonable opportunity for members of a constituent part of an amalgamated
organisation with a connection to a previously de-registered organisation to de-merge
within a period of two to five years after the relevant amalgamation occurred. The
measure would also not preclude members from forming, joining or seeking the
registration of trade unions and employer organisations subject to the requirements of
the RO Act and the rules of those organisations.
Provisions relating to regulated workers
266. The new collective agreement framework in Part 16 of Schedule 1 would provide for
the making of collective agreements between regulated businesses and organisations
that are entitled to represent the industrial interests of regulated workers. Further,
organisations that represent the industrial interests of a person who is party to a services
contract would be able to apply to the FWC for a remedy under the new unfair contract
terms provisions. These amendments would positively engage the right to freedom of
association by enhancing the ability of trade unions to advocate for their members and
enhancing their role.
46
267. Item 268 would insert new subsection 350(2A), which would provide that a regulated
business must not induce a regulated contractor to take, or propose to take, membership
action. While existing subsection 350(2) would apply to most regulated businesses and
regulated workers, it would not necessarily apply to those digital labour platforms that
do not directly enter into a contract for services with an independent contractor. As
such, new subsection (2A) would ensure these digital labour platform operators, and
their workers are also covered. Under existing subsection 350(3), a person takes
membership action if they become, do not become, remain or cease to be, an officer or
member of an industrial association. By extending this protection to more people, the
Bill would promote the right to freedom of association.
Mediation and conciliation conference orders
268. On 6 June 2023, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act
2022 (SJBP Act) made a number of changes to the process for applying for a protected
action ballot (PAB) order. Relevantly, the SJBP Act inserted section 448A into the FW
Act, which provides that if the FWC has made a PAB order in relation to a proposed
enterprise agreement, the FWC must make an order directing the bargaining
representatives for the agreement to attend a conciliation conference during the PAB
period. These amendments were intended to de-escalate disputes by providing an
opportunity for parties to further negotiate and potentially resolve, or at least reduce,
matters in dispute.
269. In CEPU v Nilsen (NSW) Pty Ltd [2023] FWCFB 134, a Full Bench of the FWC
considered the new provisions and noted (at [69]) that non-compliance with an order to
attend a conciliation conference by one or more employee bargaining representatives
could render subsequent employee claim action unprotected - for both those
represented by the non-complying bargaining representative and for others participating
in the action.
270. The Bill would enhance the right to freedom of association by removing this barrier
that might prevent employees from engaging in employee claim action in circumstances
where their bargaining representative has complied with an order to attend a
conciliation conference. The amendments would only require the employee bargaining
representative (or representatives) who applied for the PAB order to attend the
conciliation conference in order for the subsequent employee claim action to be
protected. If any other bargaining representative failed to attend the conference, this
would not render subsequent employee claim action unprotected.
271. The Bill also positively engages the right to freedom of association by clarifying the
circumstances in which an employer can engage in employer response action. The
amendments would clarify that the employer organising or engaging in employer
response action in response to employee claim action authorised by a PAB, or their
bargaining representative, must attend the conciliation conference in order for the
employer response action to be protected.
47
Right to collective bargaining
272. ILO Convention 98 protects the right of workers to collectively bargain for terms and
conditions of employment. It requires States Parties (among other things) to take
measures appropriate to national conditions to encourage and promote machinery for
voluntary negotiation between employers or employers' organisations and workers'
organisations, with a view to the regulation of terms and conditions of employment by
means of collective agreements.
Enabling multiple franchisees to access the single-enterprise stream
273. Part 3 of Schedule 1 would enhance the ability of employees of franchisees to
collectively bargain for terms and conditions of employment by allowing them to
access the single-enterprise stream. This would provide employees of franchisees with
more options when bargaining, and would allow employees of franchisees to access a
more straightforward bargaining stream.
274. Franchisees are able to access the existing single interest employer stream, in
Division 10 of Part 2-4 (Enterprise agreements) of the FW Act, where the application
for a single interest employer authorisation is made by the employers that would be
covered, or by a bargaining representative for an employee who would be covered
where other criteria are satisfied including that each employer employs at least
20 people. Employees of franchisees that employ fewer than 20 people may therefore
be unable to access this stream without the consent of the employers concerned.
275. Allowing franchisees to access the single-enterprise agreement stream will remove this
barrier, allowing employees of franchisees to seek a majority support determination
regardless of the number of employees of each franchisee. The Bill would therefore
promote the right to collective bargaining by providing an additional means of reaching
agreement on the terms and conditions of employment which may be more accessible
for employees of franchisees where the employer does not consent to multi-enterprise
bargaining and each individual employer employs fewer than 20 people.
276. The single-enterprise agreement stream may also be the preferable bargaining stream
for franchisees as a separate vote at each franchise would not be required. This is
intended to make bargaining for such an agreement more attractive to franchisees and
increase the willingness of franchisees to bargain with their employees.
277. By making bargaining more accessible and more attractive to franchisees, the Bill is
intended to increase bargaining between franchisees and their employees. In this way,
the Bill would support the right to collective bargaining.
Transitioning from multi-enterprise agreements
278. Part 4 of Schedule 1 supports the right to collective bargaining as it expands the
circumstances in which an enterprise agreement can be bargained for and made. The
amendments in Part 4 would allow a single-enterprise agreement to be made with
employees to whom a single interest employer agreement or supported bargaining
agreement that has not nominally expired applies.
48
279. At present, an employer specified in a supported bargaining authorisation is prohibited
from bargaining for a single-enterprise agreement with employees covered by a
supported bargaining authorisation unless all of its employees are covered by a
supported bargaining agreement. Part 4 would allow bargaining for a replacement
single-enterprise agreement to occur where not all of the employees specified in the
authorisation are covered by a supported bargaining agreement. This would support the
right to collective bargaining.
Provisions relating to regulated workers
280. New Part 3A-4 inserted by Part 16 of Schedule 1 would allow the FWC to register
consent collective agreements between a digital labour platform operator and an
organisation entitled to represent employee-like workers, or a road transport business
and an organisation entitled to represent regulated road transport contractors. In doing
so, it would promote the right to collectively bargain consistently with the objectives
and provisions of ILO Convention 98.
281. Collective agreements would be about the terms and conditions under which regulated
contractors perform work. The collective agreement making process would be simple
and flexible and ensure that barriers to making and implementing agreements are as low
as possible. Parties would be free to negotiate the terms of a collective agreement
without interference. This would act as an incentive to make a collective agreement.
282. Further, section 536JT would authorise certain conduct for the purposes of
subsection 51(1) of the Competition and Consumer Act 2010 (CCA) and Competition
Code. This would include making a collective agreement and anything done by a
person or entity in preparation for, or incidental to, making, or applying for registration
of, a collective agreement. This authorisation would enable the relevant parties to make
and comply with collective agreements without breaching the CCA and Competition
Code. By limiting appropriately these competition related restrictions on the ability to
make collective agreements, this measure would further promote the right to
collectively bargain.
Right to equality and non-discrimination
283. Both the ICCPR (Article 2(1)) and the ICESCR (Article 2(2)) require States Parties to
the covenants to guarantee that the rights set out in these covenants are exercised
without discrimination of any kind, including on the grounds of race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or
other status. Article 26 of the ICCPR further provides that States Parties must ensure
that all persons are equal before the law and are entitled, without any discrimination, to
the equal protection of the law.
Stronger protections against discrimination
284. Adding 'subjection to FDV' as a protected attribute in the FW Act would promote the
rights to equality and non-discrimination by protecting vulnerable employees from
discrimination within Australia's workplaces. Terms within modern awards and
enterprise agreements that discriminate against an employee because they have been, or
49
continue to be, subjected to FDV would be prohibited by these amendments. The
amendments would also protect employees and prospective employees from adverse
action, such as being dismissed or refused employment, on account of the employee's
or prospective employee's subjection to FDV. The amendments would further promote
anti-discrimination protections and equality by requiring the FWC to consider the need
to prevent discrimination against employees subjected to FDV whilst performing its
functions. The amendment would also complement protections against discrimination
for victim-survivors of FDV which exist in some States and Territories.
Right of women not to be discriminated against based on gender
285. The CEDAW provides that in relation to discrimination against women, State Parties
must:
• ensure the effective protection of women against acts of discrimination (Article
2(c));
• ensure the full development and advancement of women (Article 3); and
• take all appropriate measures to eliminate discrimination against women in the field
of employment to ensure the same rights between men and women (Article 11).
This includes the right to equal remuneration, equal treatment in respect of work of
equal value, and equality of treatment in the evaluation of the quality of work
(Article 11(1)(d)).
286. Article 26 of the ICCPR requires State laws to guarantee equal and effective protection
against discrimination on a number of grounds, including sex.
Casual employment
287. The Workplace Gender Equality Agency has noted that women are overrepresented in
casual employment.5 Furthermore, ABS data shows that not only are women more
likely than men to be casual (53.2 per cent of casual employees are women),6 they are
more likely than men to be long term casuals. Of the 752,200 casual employees
employed for more than two years, 55.7 per cent were women.7
288. This may add to the gender pay gap, noting casual employees are, on average, paid less
than permanent employees, and exacerbates job insecurity for women workers. Casual
employee average weekly earnings (in main job) were $845.60, whereas permanent
employee average weekly earnings were $1,691.10, a difference of $845.50.8
289. The amendments that would be made by Part 1 of Schedule 1 would positively engage
the right of women not to be discriminated against based on gender by providing an
easier pathway to permanent employment for those who choose it.
5
Workplace Gender Equality Agency, Australia's Gender Equality Scorecard: Key results from the Workplace
Gender Equality Agency's Employer Census 2021-22,
https://www.wgea.gov.au/sites/default/files/documents/WGEA-Gender-Equality-Scorecard-2022.pdf.
6
ABS, Labour Force Survey Detailed, May 2023.
7
ABS, Characteristics of Employment, August 2022, unpublished TableBuilder.
8
ABS, Characteristics of Employment, August 2022, unpublished TableBuilder.
50
Stronger protections against discrimination
290. While FDV can affect anyone, it is recognised as a form of gendered violence that
disproportionately affects women. Discrimination on the basis of subjection to FDV is
therefore more likely to affect employees and prospective employees who are women.
The amendments in Part 8 of Schedule 1, by protecting against such discrimination,
would positively engage the rights of women not to be discriminated against based on
gender in the context of employment.
Rights of parents and children
291. Article 3(1) of the CRC provides that the best interests of the child must be a primary
consideration in all actions undertaken by legislative bodies.
292. Article 18(1) of the CRC goes on to state that parties shall use their best efforts to
ensure recognition of the principle that both parents have common responsibilities for
the upbringing and development of their children. Similarly, Article 5(b) of the
CEDAW provides parties shall take measures to promote the recognition of the
common responsibility of men and women in the upbringing and development of their
children.
Casual employment
293. The amendments that would be made by Part 1 of Schedule 1 would positively engage
the right to protection and assistance for families by providing a pathway to permanent
employment for casual employees in caring roles. Employees who are classified as
casual on engagement but whose working arrangements thereafter are not reflective of
true casual employment could more easily opt to change their status to permanent under
the proposed amendments. This would provide an opportunity for these employees to
access paid leave and other entitlements in relation to care and family responsibilities,
including paid carer's leave, which is not available to casual workers.
Conclusion
The Bill is compatible with human rights because it promotes human rights, including civil,
political, social, economic and labour rights. To the extent that it may limit human rights,
those limitations are reasonable, necessary and proportionate.
Minister for Employment and Workplace Relations, the Hon Tony Burke MP
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NOTES ON CLAUSES
In these notes on clause, the following abbreviations are used:
Abbreviation Definition
2019 ASEA Review Review of the Asbestos Safety and Eradication Agency's Role
and Functions - Final Report
2020 RO Amdt Act Fair Work (Registered Organisations) Amendment
(Withdrawal from Amalgamations) Act 2020
Advisory Committee Family and Injured Workers Advisory Committee
AEC Australian Electoral Commission
AFP Australian Federal Police
Agency Asbestos and Silica Safety and Eradication Agency
AI Act Acts Interpretation Act 1901
AMSA Australian Maritime Safety Authority
ASEA Asbestos Safety and Eradication Agency
ASEA Act Asbestos Safety and Eradication Agency Act 2013
ASEC Asbestos Safety and Eradication Council
ASSEA Act Asbestos and Silica Safety and Eradication Agency Act 2013
This refers to the ASEA Act as it would be amended by the
Bill
Bankruptcy Act Bankruptcy Act 1966
Bill Fair Work Legislation Amendment (Closing Loopholes) Bill
2023
Boland Review Review of the Model Work Health and Safety Laws - Final
Report
BOOT Better off overall test
CDPP Commonwealth Director of Public Prosecutions
CEO Chief Executive Officer of the Asbestos Safety and Eradication
Agency
52
Abbreviation Definition
CFMMEU Construction, Forestry, Maritime, Mining and Energy Union
Coal LSL Administration Coal Mining Industry (Long Service Leave) Administration Act
Act 1992
Coal LSL Corporation Coal Mining Industry (Long Service Leave Funding)
Corporation
Corporations Act Corporations Act 2001
Council Asbestos and Silica Safety and Eradication Council
CPI Consumer Price Index (national)
Crimes Act Crimes Act 1914
Criminal Code Schedule 1 to the Criminal Code Act 1995
Department Department of Employment and Workplace Relations
ELGs Employee-like Worker Guidelines
ELMSO Employee-like minimum standards order
Fair Work Inspector A person appointed as a Fair Work Inspector under section 700
or the FWO in their capacity as such
FDV Family and domestic violence
Federal Court Federal Court of Australia
Federal Court of Federal Court of Australia Act 1976
Australia Act
FEG Act Fair Entitlements Guarantee Act 2012
FW Act Fair Work Act 2009
FW Regulations Fair Work Regulations 2009
FWC Fair Work Commission
FWO Fair Work Ombudsman
Guide Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers
IC Act Independent Contractors Act 2006
53
Abbreviation Definition
ICCPR International Convention on Civil and Political Rights
IFA Individual Flexibility Arrangement
ILO International Labour Organisation
ILO Convention 111 Discrimination (Employment and Occupation) Convention
1958 (No. 111)
ILO Convention 190 Violence and Harassment Convention 2019 (No. 190)
Legislation Act Legislation Act 2003
Migrant Workers' The taskforce established in 2016 to identify proposals for
Taskforce improvements in law, law enforcement and investigation, and
other practical measures to more quickly identify and rectify
any cases of migrant worker exploitation, and chaired by
Professor Allan Fels AO and Dr David Cousins AM
Minister Minister for Employment and Workplace Relations
M&E Division Mining and Energy Division
MEU Mining and Energy Union
Model Act Model Work Health and Safety Act
MSGs Minimum Standards Guidelines
MSO Minimum Standards Order
National Principles National Principles to support families following an industrial
death
NDDT National Dust Diseases Taskforce
NES National Employment Standards
NOPSEMA National Offshore Petroleum Safety and Environmental
Management Authority
NORDR National Occupational Respiratory Disease Registry
NPEVWC National Plan to End Violence against Women and Children
2022-2032
54
Abbreviation Definition
NWRCC The council by the name of the National Workplace Relations
Consultative Council, established under section 4 of the
National Workplace Relations Consultative Council Act 2002
OHS(MI) Act Occupational Health and Safety (Maritime Industry) Act 1993
PAB Protected action ballot
PCBU Person conducting a business or undertaking
President President of the Fair Work Commission
RO Act Fair Work (Registered Organisations) Act 2009
RTAG Road Transport Advisory Group
RTGs Road Transport Guidelines
RTMSO Road Transport Minimum Standards Order
Senate Inquiry They never came home - the framework surrounding the
prevention, investigation and prosecution of industrial deaths
in Australia
SJBP Act Fair Work Legislation Amendment (Secure Jobs, Better Pay)
Act 2022
SRC Act Safety, Rehabilitation and Compensation Act 1988
SWA Safe Work Australia
UCT Unfair contract term
WHS Work Health and Safety
WHS Act Work Health and Safety Act 2011
WHS Regulations Work Health and Safety Regulations 2011
Clause 1: Short title
294. This is a formal provision specifying the short title of the Act.
Clause 2: Commencement
295. The table in this clause sets out when the provisions of the Bill commence.
Clause 3: Schedules
296. This clause gives effect to the provisions in the Schedules to the Bill.
55
Clause 4: Review of operation of amendments
297. This clause would require the Minister to cause a review to be conducted of all
amendments made by the Bill. Including a statutory review provision in this Act is
consistent with the approach to reviews in recent workplace relations legislation. It will
provide for a review to be conducted following the commencement of all provisions in
this Bill, allowing for a consideration of their impact and whether further legislative
amendments may be necessary to improve their operation.
298. Subclause 4(2) sets out the matters that must be considered when conducting the
review, as part of a non-exhaustive list.
299. Subclause 4(3) would require the statutory review to start no later than two years after
Royal Assent.
300. Subclauses 4(4)-(5) would require a written report of the review to be provided to the
Minister within six months of the commencement of the review, and set out the tabling
requirements for the report.
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SCHEDULE 1--MAIN AMENDMENTS
Part 1--Casual employment
Amendments to the Fair Work Act 2009
301. Part 1 would repeal the definition of casual employee at existing section 15A in
Division 3 of Part 1-2, and introduce a new fair and objective definition which would
draw on core elements of the meaning of casual employment as it was understood
before the decision of the High Court of Australia in WorkPac Pty Ltd v Rossato [2021]
HCA 23 (Rossato). The amendments would provide clear points in time at which the
definition is to be applied, to provide certainty as to status. Together with amendments
to enhance employee choice, the new definition would expand access to permanent
employment for those employees who seek it.
302. Part 1 would also provide an enhanced pathway for casual employees to move to full-
time or part-time employment if they wish to do so. The new framework would provide
clear processes for employee driven choice about employment status which would
supplement existing provisions enabling conversion in specified circumstances and the
contractual ability of employees and employers to change employment status by
consent. This would be underpinned by the new fair and objective test for when an
employee can be classified as a casual employee of an employer, an effective dispute
resolution process and strong protections against conduct designed to avoid or
undermine the new framework. The new framework would retain the existing statutory
offset rule in section 545A.
303. Part 1 would also amend existing Division 4A of Part 2-2 by introducing a new
notification process underpinned by employee choice. This new process would enable
an employee to notify their employer if they believe they are no longer, at that point in
time, a casual employee within the meaning of the new definition of casual employee.
This process would provide a new legislative pathway to full-time or part-time
employment driven by employee choice in addition the existing casual conversion
pathway.
304. Part 1 would also strengthen dispute resolution for employers and employees who have
a dispute about the operation of amended Division 4A of Part 2-2, including by
allowing the FWC to deal with disputes by arbitration and make any orders it considers
fair and reasonable.
305. Part 1 would also include new civil remedy provisions in Division 6 of Part 3-1, the
general protections provisions, to protect against conduct designed to result in the
misclassification of casual employees.
Item 1: Section 15A
Section 15A Meaning of casual employee
306. This item would repeal the definition of casual employee at existing section 15A in
Division 3 of Part 1-2 and substitute a new definition of casual employee. A casual
employee within the meaning of new subsections 15A(1)-(2) would remain a casual
employee until the occurrence of an event specified in new subsection 15A(5).
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307. The new meaning of casual employee would:
• provide a fair and objective test to determine when a person can be classified as a
casual employee;
• provide certainty about when a casual employee would change or convert their
employment status from casual to full-time or part-time employment; and
• ensure that backpay liabilities could not arise because of a change in an employee's
status during their employment.
308. Taken together with the new pathways for employees to seek to have their status under
the definition recognised, this definition would provide greater access to permanent
employment opportunities for those employees who seek it.
309. The new meaning of casual employee would underpin the new employee choice
pathway (new Subdivision B--Employee choice about casual employment in
Division 4A of Part 2-2), which would allow a casual employee who believes they are
no longer a casual employee to notify their employer, at that point in time, and effect a
change in their employment status with their employer to full-time or part-time
employment (subject to the grounds for not accepting an employee notification at new
subsection 66AAC(4)).
310. General rule: New subsection 15A(1) would introduce a general rule that defines an
employee as a 'casual employee' of an employer if both of the following conditions are
satisfied:
• the employment relationship is characterised by an absence of a firm advancement
commitment to continuing and indefinite work (new paragraph 15A(1)(a)); and
• the employee would be entitled to a casual loading, or a specific rate of pay for
casual employees under the terms of a fair work instrument if the employee were a
casual employee, or the employee is entitled to such a loading or rate of pay under
the contract of employment (new paragraph 15A(1)(b)).
311. The 'absence of a firm advance commitment to continuing and indefinite work' would
be the central element of the new meaning of casual employee, and the key feature
distinguishing casual employment from full-time or part-time employment. There is no
requirement for the 'continuing and indefinite work' to be according to an agreed
pattern of work, unlike the existing definition or the position at common law before
Rossato. The intention is to expand access to secure work for an employee engaged in a
manner substantially consistent with full-time or part-time employment, and reflective
of the patterns of work of these employees.
312. The new meaning of casual employee would draw on core elements of the meaning of
casual employment, as it was understood prior to the decision of the High Court in
Rossato, including considerations to inform the objective assessment of whether there
is an absence of a firm advance commitment to continuing and indefinite work. These
considerations would capture all aspects of the employment relationship and require an
objective assessment of the totality of the employment relationship.
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313. Indicia that apply for the purposes of the general rule: New subsection 15A(2)
would set out a number of considerations which would need to be assessed when
considering whether the employment relationship is characterised by an absence of a
firm advance commitment to continuing and indefinite work (new
paragraph 15A(1)(a)).
314. Firstly, the relationship would be required to be assessed based on the real substance,
practical reality and true nature of the employment relationship, as was the approach in
WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [180] (new paragraph 15A(2)(a)).
315. This would require an objective assessment of the totality of the relationship, and not
just the terms of the contract of employment, in assessing whether the employment
relationship is characterised by an absence of a firm advance commitment to continuing
and indefinite work.
316. Secondly, a firm advance commitment may be in the form of a mutually agreed term in
a contract of employment, or a mutual understanding or expectation between an
employer and employee (new paragraph 15A(2)(b)). A firm advance commitment may
be discerned from a mutual understanding or expectation between an employer and
employee irrespective of the terms of the contract of employment. The mutual
understanding or expectation does not need to amount to a contract or a variation of the
contract of employment. A mutual understanding or expectation could be inferred from
how the employment contract is performed, or the conduct of the employer and
employee after entering into the employment contract (see new paragraph 15A(3)(a)).
317. The intention of this provision is to ensure that the assessment would be genuinely
objective and not limited by the subjective views of the parties. Contrary to the result in
Rossato, a firm advance commitment would not be required to be an 'enforceable
commitment'. A firm advance commitment could be identified, for instance, on the
basis of ongoing work performed on a regular, systematic, stable or predictable basis
performed over a sufficient length of time.
318. Finally, in assessing the employment relationship (on the basis of new
paragraphs 15A(2)(a)-(b)), regard would be required to the following potential
indicators that the employment relationship is not casual:
• whether there is an inability of the employer to elect to offer work and/or an
inability of the employee to elect to accept or reject work and whether this inability
occurs in practice (new subparagraph 15A(2)(c)(i));
• whether it is reasonably likely that continuing work of the kind performed by the
employee, in the employer's enterprise, will be available in the future, having
regard to the nature of the employer's enterprise (new subparagraph 15A(2)(c)(ii));
• whether there are full-time or part-time employees in the employer's enterprise
performing the same kind of work usually performed by the employee (new
subparagraph 15A(2)(iii)) - this comparison may demonstrate that the work usually
performed by the employee in the employer's enterprise is or is not able to be
performed on a full-time or part-time basis; and
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• whether there is a regular pattern of work for the employee (new
subparagraph 15A(2)(c)(iv)) - this regular pattern of work may include some
fluctuations or variations over time, including for reasonable absences such as for
illness, injury or recreation, and does not need to be absolutely uniform (see new
paragraph 15A(3)(c)). A regular pattern of work may be (but is not necessarily)
indicative of a firm advance commitment to continuing and indefinite work. This
reflects the former position under the general law, according to which it was the
informality, uncertainty and irregularity of an engagement that gave it the
characteristic of being casual: Reed v Blue Line Cruises Ltd (1996) 73 IR 420.
319. The considerations in new paragraph 15A(2)(c) would not be exhaustive, but each of
the considerations listed would need to be taken into account when assessing whether
the employment relationship is characterised by an absence of a firm advance
commitment to continuing and indefinite work. Not all considerations need to be
satisfied to establish the employment relationship is characterised by a firm advance
commitment to continuing work (see new paragraph 15A(3)(b)).
320. A legislative note to new subsection 15A(2) would clarify that a regular pattern of work
does not of itself indicate a firm advance commitment to continuing and indefinite
work. That is, an employee who has a regular pattern of work may still be a casual
employee if there is no firm advance commitment to continuing and indefinite work.
321. New paragraph 15A(3)(b) would clarify that no single consideration in new
paragraph 15A(2)(c) is determinative of a firm advance commitment to continuing and
indefinite work and not all the considerations listed in new paragraph 15A(2)(c) need to
be satisfied to establish a firm advance commitment.
322. Together, these two items support the emphasis of the new objective definition in
section 15A being on the totality of the employment relationship. A regular pattern of
work neither automatically means the employee is casual, nor does it mean the
employee is not casual. The assessment should consider the real substance, practical
reality and true nature of the employment relationship, not a single factor in isolation.
Illustrative examples
Example 1: University student
Quyen is a university student who obtains a casual bar attendant position at her local hotel.
Quyen chooses to accept casual employment as she prefers the flexibility to accommodate
university commitments and the 25 per cent casual loading.
Upon commencement, Quyen and her employer have a discussion. Quyen advises her
employer that she is available to work on Friday and Saturday nights only. Quyen advises
that she is unavailable to work at any other time, due to study commitments. In response, the
employer offers Quyen casual shifts each Friday and Saturday night, with Quyen able to
reject any shifts if unavailable. This suits the employer's operational requirements and fits in
with Quyen's advised availability. The employer explains to Quyen that there is no firm
60
advance commitment to continuing and indefinite work in the business, which is reflected in
a written employment contract. Quyen accepts the contract and commences work.
Irrespective of the offer of regular shifts to accommodate Quyen's university schedule, the
employer has made no firm advance commitment to Quyen to continuing and indefinite work
upon commencement; which means Quyen is correctly classified as a casual within the
meaning of section 15A.
After 6 months working with the local hotel, Quyen considers her circumstances and is happy
to continue working as a casual employee each Friday and Saturday night when available,
and decides not to give her employer written notice seeking to change from casual to part-
time employment.
Example 2: Mature age pensioner
Barry has retired from full time work and is on the part pension. Barry is offered casual
employment at Parliament House on the basis that his employer expects to be able to offer
him shifts on sitting days. The Parliamentary calendar is provided to Barry upon
commencement in November for the next year, although it is subject to change.
Barry receives no guaranteed hours from the employer, nor a firm advance commitment that
he will be offered casual shifts on every sitting day. This flexibility works well for Barry, as
it provides him with the autonomy to accept or reject work so as not to impact on his pension.
Barry is a casual employee upon commencement within the meaning of section 15A.
Example 3: Firm advance commitment
Alex accepts a casual position as a security guard at a shopping centre. The contract of
employment Alex receives contains terms to the effect that they will be required to work
rostered shifts each Thursday late night and at least one weekend day each week, and will be
paid a 25 per cent loading.
The contract communicates the firm advance commitment to continuing and indefinite work
that Alex's employer makes to them. Due to the stated requirement for Alex to work those
rostered shifts on Thursday evenings and over the weekend (as opposed to stating an
expectation for their availability to work at peak trading times), it does not appear that Alex
has the ability to elect to accept or reject work. The contract of employment does not include
a term that provides the contract will terminate at the end of an identifiable period, or a term
that limits the above requirement to work each Thursday night and one weekend day, to a
specified season or period.
These considerations indicate Alex's employment should be characterised as permanent part-
time and not casual within the meaning of section 15A.
If Alex questions their classification and they are found to have been misclassified as casual,
amounts payable to Alex for relevant entitlements as a permanent employee can be reduced
by an amount equal to the casual loading paid to them already. If Alex was mistakenly
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misclassified and the employer reasonably believed Alex would be correctly classified as a
casual, no penalty would apply for misrepresentation.
323. Exceptions to general rule: From 6 December 2023, the FW Act will include specific
provisions limiting the use of fixed term contracts. These limitations do not apply to
casual employees. To ensure that casual employment is not used to undermine the
limits on fixed term contracts, new subsection 15A(4) would provide that, generally, a
casual employee cannot be engaged on a fixed term contract - that is, a contract which
includes a term providing the contract will terminate at the end of identifiable period,
whether or not the contract also includes a term that provides for circumstances in
which the contract may be terminated earlier than the end of identifiable period (new
paragraph 15A(4)(a)).
324. However, the limitation on casual employees being engaged on fixed term contracts
will not apply if the identifiable period is identified by reference to a specified season,
or the completion of the shift of work to which the contract of employment relates (new
paragraph 15A(4)(b)). As a consequence, a casual employee would be able to be
engaged for the duration of a season, such as a fruit picking season, or as a labourer on
a shift by shift basis.
325. The term 'season' is not defined in the Bill and would take its ordinary meaning. This
means 'season' would include, for example, a generally recognised season of the year
(Spring, Summer, Autumn, Winter), a particular period marked by festivity (such as
Christmas, Easter, and Ramadan), or a period generally described with reference to
seasonality (such as a fruit picking season, football season, or ski season). It would not
refer to simply any defined period of time.
326. Consistent with this, a note to subsection 15A(4) would clarify that a 'specified season'
does not include a university semester or a school term.
327. Employees engaged as casual employees remain so until the occurrence of a
specified event: New subsection 15A(5) would specify an exhaustive list of events
which would result in casual employee changing status to full-time or part-time
employment if specified events were to occur.
328. The effect of this new subsection is to provide certainty that a person who commences
employment as a casual employee within the meaning of new subsections 15A(1)-(4)
will remain a casual employee of the employer until:
• the employment status of the employee is changed or converted to full-time or part-
time employment under new Division 4A of Part 2-2, including by the employee
choice pathway in new Subdivision B, or the existing casual conversion pathway in
new Subdivision C (new paragraph 15A(5)(a)); or
• the FWC makes an order under new section 66MA, or under existing section 739 in
Division 2 of Part 6, changing or converting the employment status of the employee
(new paragraph 15A(5)(b)); or
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• the employment status of the employee is changed or converted to full-time or
part-time employment under the terms of a fair work instrument that applies to the
employee (new paragraph 15A(5)(c)); or
• the employer makes an alternative offer of employment to the employee and the
employee commences work for the employer on a basis other than as a casual
employee (new paragraph 15A(5)(d)).
329. New subsection 15A(5) would provide certainty about when the employment status of a
casual employee would change or convert to full-time or part-time employment and
about entitlements payable to casual employees. If an employee was correctly classified
as a casual employee on engagement within the meaning of new subsections 15A(1)-
(4), they would remain a casual employee until such time that an event specified in new
subsection 15A(5) occurred.
330. However, as under the existing definition of casual employee, if an employer
misclassifies an employee as a casual employee at commencement of the employment
relationship, the employee would never have been a casual employee and may make a
claim to be paid an amount for one or more relevant entitlements with respect to the
period they were misclassified. A court making orders in such circumstances would be
required under existing section 545A to reduce any amount payable to the employee for
relevant entitlements (but not below nil) by an amount equal to the casual loading
amount received by the employee.
Item 2: Paragraph 61(2)(ba)
331. Existing subsection 61(2) in Division 2 of Part 2-2 lists the minimum standards that
comprise the NES.
332. This item would repeal the reference to 'offers and requests for casual conversion
(Division 4A);' at existing paragraph 61(2)(ba) and substitute with a reference to
'casual employment (Division 4A);' as a consequence of the amendment made by
item 4.
Item 3: Subsection 65(2A)
333. Existing subsection 65(2) sets out categories of employees entitled to request flexible
working arrangements. Existing paragraph 65(2)(a) provides that an employee who is
not a casual employee may only request flexible working arrangements after having
completed at least 12 months of continuous service. Existing subsection 65(2A) enables
an employee who converts to full-time or part-time employment under existing casual
conversion provisions to count the time they were a regular casual employee as
continuous service for the purposes of establishing eligibility to request flexible
working arrangements.
334. Item 3 would omit reference to 'converted under Division 4A of Part 2-2' in existing
subsection 65(2A) and substitute 'changed or converted under Division 4A of Part 2-2',
to reflect the new pathway to full-time and part-time employment provided under new
Subdivision B in Division 4A of Part 2-2 ('employee choice').
63
335. The amendment would clarify that a period of employment as a regular casual
employee would count as continuous service for the purposes of applying existing
paragraph 65(2)(a) in circumstances where:
• an employee changes to full-time or part-time employment under new
Subdivision B in Division 4A of Part 2-2 ('employee choice'); or
• an employee converts to full-time or part-time employment under existing
Division 4A of Part 2-2 ('casual conversion') which would become new
Subdivision C in Division 4A of Part 2-2.
Item 4: Division 4A of Part 2-2 (heading)
Division 4A - Casual employment
336. This item would repeal the heading 'Division 4A--Offers and requests for casual
conversion' at existing Division 4A of Part 2-2 and substitute with 'Division 4A--
Casual employment', to reflect the inclusion of employee choice provisions in
Division 4A, as well as the existing casual conversion provisions.
337. The casual employment framework in new Division 4A of Part 2-2 would have four
subdivisions:
• Subdivision A, setting out the general application rule and object for Division 4A;
• Subdivision B ('employee choice'), setting out a process for an employee (if they
choose) to notify their employer in writing that they believe they no longer meet the
requirements in subsections 15A(1)-(4), and a procedure for the employer to
respond;
• Subdivision C ('casual conversion'), setting out a process for casual conversion,
including a requirement for an employer to offer eligible casual employees
conversion to full-time or part-time employment within 21 days after the end of the
12 month period from the employee's commencement of employment unless they
have reasonable grounds not to offer; and
• Subdivision D, dealing with other provisions relevant to employee choice and
casual conversion, including its effect and dispute resolution options.
338. The new casual employment framework in Division 4A of Part 2-2 would form part of
the NES. The established interaction rules at existing section 55 in Division 3 of
Part 2-1 would apply. These include that a modern award or enterprise must not exclude
any provision of the NES.
339. Nothing would prevent an employer and employee from agreeing to a change of
employment status outside the employee choice and casual conversion pathways in
Division 4A of Part 2-2. If they do so, this change of status would be recognised under
new paragraph 15A(5)(d).
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Item 5: After section 66A
Section 66AAA Object of this Division
340. This Item would insert a new section 66AAA, to introduce an object into Division 4A
of Part 2-2.
341. New section 66AAA would set out the intent to establish a new framework for changes
to, or conversion of, casual employment status that:
• is quick, flexible, and informal;
• addresses the needs of employers and employees; and
• provides dispute resolution supporting casual employees' choice about employment
status.
342. Existing paragraph 578(a) requires the FWC to take the objects of the FW Act, or any
part of the FW Act, into account when performing its functions or exercising powers in
relation to disputes about employee choice or casual conversion. Consequently, the
FWC would need to take the object in new section 66AAA into account in performing
its functions under new Division 4A.
Item 6: After Subdivision A of Division 4A of Part 2-2
Subdivision B - Employee choice about casual employment
343. Item 6 would insert new 'Subdivision B -- Employee choice about casual employment'
in Division 4A of Part 2-2 ('employee choice'), providing a new legislative pathway to
full-time or part-time employment for casual employees who no longer believe they are
a casual employee within the meaning of new subsection 15A(1).
344. An eligible casual employee would be able to initiate a change to full-time or part-time
employment under these provisions if the employee:
• believes they are no longer a casual employee at the point in time when they make
the notification to their employer; and
• wants to change their employment status to full-time or part-time employment.
There would be no requirement for an employee to issue a notification if they do not
want to change their employment status from casual to full-time or part-time
employment. Employees would have complete choice about whether or not to do so.
These amendments would have no effect on any casual employee, or their entitlement
to a casual loading, unless the employee wishes to avail themselves of the opportunity
to change status.
Section 66AAB Employee notification
345. New section 66AAB would provide rules for employees who wish to notify a change of
status to their employer. An employee would need to:
• believe that their status no longer meets the definition of casual employment;
• meet minimum employment periods; and
65
• not be currently engaged in a dispute under new section 66M, or had certain
notification or dispute resolution events occur within the preceding six months.
346. Belief in change of status: To be eligible to make a notification, an employee would
have to believe that they are no longer, at that point in time, a casual employee, having
regard to the meaning of casual employee at new subsections 15A(1)-(4).
347. No notifications while dispute being dealt with: A casual employee would not be
eligible to issue a notification under new section 66AAB to change their employment
status if a dispute between the employer and employee was already being dealt with
under new section 66M, including by arbitration under new section 66MA, or under
existing section 739 in Division 2 of Part 6-2 (new paragraph 66AAB(b)).
348. Minimum employment period: To be eligible to issue a notification under new
section 66AAB, a casual employee would have to have been employed for a period,
beginning on the day employment started, of at least:
• 12 months, in the case of a small business employee (new
subparagraph 66AAB(c)(i)); or
• six months, for all other employees (new subparagraph 66AAB(c)(ii)).
349. Frequency of notifications: A casual employee would not be eligible to issue a
notification to their employer if any of the events set out in the list at new
paragraph 66AAB(d) had taken place in the six month period before the date the
notification were to be given. If a casual employee has:
• received a response from their employer under new section 66AAC not accepting a
previous employee notification made under new section 66AAB;
• received a notice from their employer under existing subsection 66C(3) not making
an offer of casual conversion under existing section 66B;
• declined an offer for casual conversion under existing section 66D made by their
employer under existing section 66B; or
• resolved a dispute about the operation of new Division 4A of Part 2-2, including
about employee choice or casual conversion, with their employer under new
section 66M, including by arbitration under new section 66MA, or under existing
section 739 in Division 2 of Part 6-2 they would be required to wait a period of six
months from the event before issuing a notification to their employer under new
section 66AAB. If more than one event has occurred, the six month period would
be counted from the last of the events.
350. This feature of the framework would protect employers against repeated attempts by a
casual employee to change or convert their employment status within a six month
period. Where a casual employee has had the opportunity to change or convert their
employment status to full-time or part-time employment, they will not be entitled to
issue a notification under new section 66AAB within a period of at least six months.
66
351. Restricting access to the employee choice pathway to employees with at least six
months of service for casual employees of non-small business employers, and
12 months for small business employers, would provide employers and employees with
sufficient time to establish and assess the real substance, practical reality and true
nature of the employment relationship. The longer period provided for small business is
appropriate given the significance of change of employment status for such businesses,
is intended to allow small business employers additional time to understand their rights
and obligations under new Division 4A of Part 2-2, and is consistent with the current
eligibility timeframes under the existing casual conversion framework.
352. The employee choice pathway would sit alongside the existing casual conversion
pathway, as amended by this Bill. A casual employee would not be able to access both
pathways simultaneously, or within a six month period of an event under one pathway
occurring (subject to the ability to change pathways once a dispute is before the FWC
under new subsection 66M(7)).
Section 66AAC Employer response
353. New section 66AAC provides rules for how an employer must respond to an employee
notification under new section 66AAB.
354. Timing of notification: An employer would be required to respond in writing to a
notification from an employee under new section 66AAB within 21 days after the
notification is given to them (new subsection 66AAC(1)).
355. Information that must be included in the response: A response would be required to
state whether the employee does or does not agree with the employee notification, and
different information depending on whether the employer does, or does not, accept the
notification (new subsection 66AAC(2)).
356. If the employer accepts the notification, they must state:
• that they accept the notification;
• whether the employee is changing to full-time or part-time employment;
• the employee's hours of work after the change takes effect; and
• the day that the change will take effect.
357. If the employer does not accept the notification, they must state:
• that they do not accept the notification on one or more of the grounds set out in new
subsection 66AAC(4);
• detailed reasons for their decision; and
• information about the employee's ability to attempt to resolve the dispute under
new section 66M, and, if the dispute is not resolved, the ability of the FWC to make
an order under new subsection 66MA(1).
358. Consulting with employees: If accepting the notification, the employer would be
required to first consult with the employee on the changes to the employee's
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employment, including whether the change is to full-time or part-time employment,
what the employee's hours of work will be and the day the change will take effect (new
subsection 66AAC(3)).
359. In general, the day the status change would take effect must be the first day of the
employee's first full pay period starting after the day the response is given by the
employer, unless otherwise agreed (new subsection 66AAD(2)). The written response
issued by the employer, after consulting with the employee, must include this
information (new subparagraph 66AAC(2)(b)(iii)).
360. If not accepting the notification, the employer would be required to first consult with
the employee about their decision.
Illustrative example
Mackenzie, the new owner of a beachside café, buys an upmarket espresso machine and
wants to hire a barista to operate the machine. This will enable her to focus on establishing
the new business.
Mackenzie engages Gus in November, on a casual basis, paying him a 25 per cent loading
and rostering him to work on an 'as needed' basis. He is a student and has nominated his
availability to be Wednesday to Sunday between 7.30am-3.30pm.
She is not able to indicate how long she may be able to provide him with employment at the
outset, but hopes that if the new coffee machine proves successful she may be able to provide
more regular employment.
On engagement: Gus is correctly classified as a casual employee. There is no firm advance
commitment to continuing and indefinite work, and he is paid a casual loading under the
applicable fair work instrument.
Two years later: The business is thriving and Gus now works regularly at the café,
Wednesday to Sunday 7.30am-12pm, with extra hours as required to meet customer demand
during the summer period. Gus is absent for some single days due to illness.
Gus decides that a move to ongoing employment would be beneficial and decides to issue a
notification to Mackenzie under the 'employee choice' provisions of the FW Act.
He considers that his working arrangements are, in effect, those of an ongoing employee,
although there are no other employees with which to compare. Both Mackenzie and Gus
expect that these arrangements will continue into the future.
Mackenzie agrees to Gus' notification and, after discussing the notification, they agree that
he will commence as a permanent part-time employee two weeks later.
361. Grounds for not accepting a notification: new subsection 66AAC(4) would set out an
exhaustive list of grounds upon which an employer would be able to refuse an
employee notification under new section 66AAB. An employer would be able to refuse
an employee notification on any of the following grounds:
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• the employer believes the employee is still correctly classified as a casual
employee, having regard to new subsections 15A(1)-(4) (new
paragraph 66AAC(4)(a));
• it would be impractical for the employer to accept the notification because, in order
to avoid contravening the term of a fair work instrument that would apply to the
employee as a full-time or part-time employee, it would be reasonably necessary to
make substantial changes to the terms and conditions of the employee's
employment which would significantly affect the way the employee would need to
work (new paragraph 66AAC(4)(b));
• a change of employment status to full-time or part-time employment would not
comply with a recruitment or selection process required by or under a law of the
Commonwealth or a State or a Territory if the employer were to accept the
notification (new paragraph 66AAC(4)(c)).
362. A change of status may be impractical for the purposes of new paragraph 66AAC(4)(b),
for example, where the relevant fair work instrument would require minimum hours of
engagement for part-time employment that are more than the employee is usually
rostered to work as a casual employee of the employer. However, nothing would
prevent the employer and employee from coming to an alternative arrangement during
consultation with one another before the employer issues a written response under new
section 66AAC.
363. A ground for refusal to comply with public sector recruitment or selection processes in
new paragraph 66AAC(4)(c) would allow the uninterrupted operation of
Commonwealth, State and Territory laws governing public service recruitment. In these
sectors, decisions relating to engagement and promotion into permanent roles are
required to be based on merit, which is a long-standing and fundamental principle of
public sector employment in Australia. At the Commonwealth level, the Public Service
Act 1999 provides for an Australian Public Service that is career-based and which
makes decisions relating to engagement and promotion that are based on merit. In order
to be engaged as an ongoing Australian Public Service employee, a person must have
been found suitable through a merit-based selection process. A process that enables an
employee to become ongoing without a merit-based selection process for the same or a
similar role within the preceding 18 months, would be inconsistent with the recruitment
processes required under the Public Service Act 1999.
Section 66AAD Effect of employer acceptance of employee notification
364. New subsection 66AAD(1) would provide that an employee is taken to be a full-time or
part-time employee, beginning on the day specified in the employer response accepting
the employee's notification.
365. New subsection 66AAD(2) would provide that the day specified must be the first day
of the employee's first full pay period that starts after the day of the employer's
response, unless another day is agreed.
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Item 7: Subdivision B of Division 4A of Part 2-2 (heading)
Item 9: Subsection 66C(3) (note)
Item 10: Subdivision C of Division 4A of Part 2-2 (heading)
Subdivision C - Offers for casual conversion
366. These items would make consequential amendments to reflect the insertion of new
'Subdivision B -- Employee choice about casual employment' in Division 4A of
Part 2-2 before existing 'Subdivision B--Employer offers for casual conversion' which
would become 'Subdivision C--Offers for casual conversion':
• Item 7 would repeal the heading 'Subdivision B--Employer offers for casual
conversion' at existing Division 4A of Part 2-2 and substitute with
'Subdivision C--Offers for casual conversion';
• Item 9 would repeal the note at existing subsection 66C(3) in existing
'Subdivision B--Employer offers for casual conversion'; and
• Item 10 would repeal the heading 'Subdivision C--Residual right to request casual
conversion' This item is consequential to item 11.
Item 11: Sections 66F to 66J
367. This item would repeal existing sections 66F to 66J, which deal with an employee's
residual right to request casual conversion.
368. This item would remove the existing pathway for eligible casual employees to request
casual conversion.
369. Employees would be able to access the employee choice pathway to notify their
employer if they no longer believe they are a casual employee where they have been
employed with their employer for six months, or 12 months for employees of a small
business.
370. This would not impact on the existing requirement to offer conversion to eligible
employees. Where an employee has been employed with their employer for 12 months,
the employer (except small businesses) will still need to undertake an assessment under
the existing casual conversion framework and, if the employee has worked a regular
pattern of work during at least the last six months of that period, offer conversion or
provide reasons for not doing so.
371. Small business employers are not required to make an offer of casual conversion under
the existing framework. Casual employees employed by a small business will be able to
access the employee choice pathway at 12 months of employment with their employer.
372. This means that medium and large employers would retain the obligation to offer
eligible employees conversion and employees would have one pathway to initiate a
status change, the new employee choice pathway. Employees would have access to the
new employee choice pathway and would only be eligible to issue a notification to their
employer every six months in accordance with new paragraph 66AAB(d).
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Item 12: Section 66K
373. This item would insert a reference to new subparagraph 66AAC(2)(b)(iii) into the
existing avoidance of doubt provision in section 66K, which deals with the effect of
conversion of employment to full-time or part-time employment, as a consequence of
the insertion of the new employee choice provisions in Subdivision B by item 6.
374. The existing provision makes clear that a change from casual to non-casual
employment under existing paragraph 66E(1)(c) would be a change for the purpose of:
• the FW Act and any other law of the Commonwealth;
• a law of a State or Territory;
• any fair work instrument that applies to the employee; and
• the employment contract.
375. This item would add a change of employment status to full-time of part-time
employment under the employee choice pathway, on and after the day specified in the
employers response (new subparagraph 66AAC(2)(b)(iii)), to the existing avoidance of
doubt provision in section 66K, to ensure clarity regarding the effect of a change of
employment status under the employee choice pathway.
Item 13: Subsection 66L(1)
376. This item would repeal existing subsection 66L(1) (not including the note) and
substitute new subparagraph 66L(1), which would prohibit an employer from changing
the usual pattern of work, reducing of varying the hours of work, or terminating the
employment of a casual employee as a means of avoiding their rights and obligations
under new Division 4A of Part 2-2.
377. This amendment would expand the effect of existing subsection 66L(1) to expressly
prohibit changing the pattern of work of a casual employee to avoid any right or
obligation under Division 4A of Part 2-2.
378. This amendment is necessary to reflect the meaning of casual employee in new
section 15A, in particular the requirement to have regard to whether there is a regular
pattern of work for the employee when assessing whether there is an absence of a firm
advance commitment to continuing and indefinite work (new
subparagraph 15A(2)(c)(iv)). The existence of a regular pattern of work is an important
indicator of the presence of a firm advance commitment, although it would not be
solely determinative of an employee's status.
Item 14: Subsection 66L(2)
379. This item would repeal existing subsection 66L(2) and substitute new
subparagraph 66L(2), which would make it clear that nothing in Division 4A of Part 2-2
would:
• require an employee to change or convert to full-time or part-time employment;
71
• permit an employer to require an employee to change or convert to full-time or
part-time employment; or
• require an employer to increase the working hours of a casual employee if they
have made a notification to change to full-time or part-time employment.
Item 15: Section 66M
380. This item would repeal existing section 66M and substitute a new section 66M to
provide procedures the employer and employee must follow to resolve any disputes
about the operation of new Division 4A of Part 2-2. This would include a procedure for
referring disputes to the FWC if the employer and employee have been unable to
resolve the dispute at the workplace level.
381. Disputes covered: This item would apply to a dispute between an employer and
employee about the operation of new Division 4A of Part 2-2, including disputes about
employee choice under new Subdivision B (new subsection 66M(1)) and disputes about
casual conversion under new Subdivision C (new subsection 66M(3)). Unlike existing
section 66M, which only applies where a process is not otherwise provided by a fair
work instrument, contract of employment or other written agreement, this new process
would apply generally. However, if the dispute is about employee choice under new
Subdivision B, the FWC would not be able to deal with the dispute if it were satisfied a
change to the status of the employee would result in the employer not complying with a
recruitment or selection process required by or under a law of the Commonwealth or
State or a Territory (new subsection 66M(2)).
382. Resolving disputes: New subsection 66M(4) would require an employer and employee
to first attempt to resolve a dispute at the workplace level, by discussion between the
parties. The reflects the benefit of resolving disputes as close to the workplace as
possible.
383. Exactly how disputes are handled in the workplace is not specified, and may be adapted
by particular employers to suit their workplace structures and policies. This could
include discussion between the affected employee and their immediate supervisor or
more senior levels of management if appropriate.
384. The notes at new subsection 66M(4) would refer the reader to modern awards and
enterprise agreements, which must contain dispute settlement terms capable of dealing
with any dispute under the NES, which would include new Division 4A of Part 2-2.
These terms may supplement or be incidental or ancillary to the procedures in new
sections 66M and 66MA.
385. FWC dispute resolution: new subsection 66M(5) would allow the employer or
employee to refer the dispute to the FWC if discussions at the workplace level do not
resolve the dispute.
386. The FWC would be required to first deal a dispute with it by means other than
arbitration in the first instance, unless there were exceptional circumstances (new
subsection 66M(6)). The note to new subsection 66M(6) refers the reader to the
72
existing powers of the FWC to deal with disputes by mediation, conciliation, making a
recommendation or expressing an opinion (see existing section 595 in Division 3 of
Part 5-1).
387. If the dispute cannot be resolved by other means, the FWC would be able to deal with
the dispute by arbitration in accordance with new section 66MA.
388. Changing streams: New subsections 66M(7)-(9) would provide the FWC with the
ability to deal with a dispute about the operation of 'Subdivision B--Employee choice
about casual employment' as though it were a dispute about the operation of new
'Subdivision C--Offers for casual conversion', and vice versa, if it considered it
appropriate to do so and the employee agreed.
389. This feature of the dispute resolution framework is designed to provide the FWC with a
broad range of options for dealing with disputes arising under the operation of new
Division 4A of Part 2-2. It is also intended to give effect to the object in new
section 66AAA, to ensure dispute resolution is flexible and supports employee choice
about employment status.
390. New subsection 66M(7) would set out the circumstances in which the FWC could deal
with a dispute referred about employee choice as though it were a dispute about casual
conversion. If the FWC considered it appropriate to do so and the employee agreed, the
FWC would be able to treat a dispute referred under employee choice as though it were
referred under casual conversion so long as the employee agrees to the dispute being
dealt with in such a manner, and the FWC considers it appropriate to do so.
391. New subsection 66M(8) would set out the circumstances in which the FWC could deal
with a dispute referred about casual conversion as though it were a dispute about
employee choice. If the FWC considered it appropriate to do so and the employee
agreed, the FWC would be able to treat a dispute referred under casual conversion as
though it were referred under employee choice so long as the timing requirements set
out in new subparagraphs 66AAB(c)-(d) would not have otherwise prevented the
employee from giving the employer a notification under new section 66AAB. The
FWC would also not be able to deal with a dispute about casual conversion as though it
were a dispute about employee choice if it were satisfied a change to the status of the
employee would result in employer not complying with a recruitment or selection
process required by or under a law of the Commonwealth or State or a Territory (new
subsection 66M(2)).
392. If the FWC considered it appropriate to change streams under new
subsections 66M(7)-(9) and the employee agreed, for the purposes of dealing with the
dispute in the alternative stream, the FWC would be able to:
• deem any actions required by the employer and employee under the alternative
stream, which would have been required in order for the FWC to deal with the
dispute, to be taken to have occurred (new paragraph 66M(9)(a));
• invite submissions from the employer and employee, when treating a dispute about
casual conversion as though it were a dispute about employee choice, about whether
73
any grounds from new subsection 66AAC(4) exist which would have caused the
employer to be unable to accept an employee notification under new
section 66AAB (new paragraph 66M(9)(b)); or
• invite submissions from the employer and employee, when treating a dispute about
employee choice as though it were a dispute about casual conversion, about whether
there any reasonable grounds referred to in paragraph 66C(1)(a) exist (new
paragraph 66M(9)(b)).
393. These processes are intended to reduce the burden on the FWC, applicants and
respondents, by providing flexibility to the FWC to deal with matters before it in the
most expedient fashion.
394. Representatives: New subsection 66M(10) would allow the employer or employee to
appoint a representative for the purpose of resolving the dispute or having the dispute
dealt with by the FWC. The representative could be a person, or an employer or
employee organisation entitled to represent the industrial interests of the employer or
employee. The note at new subsection 66M(10) refers the reader to the provisions at
existing section 596, which allow a person to be represented in a matter before the
FWC by a lawyer or paid agent with the permission of the FWC.
395. Procedural rules: new subsection 66M(11) provides that, in relation to a dispute
referred to the FWC under new subsection 66M(5), procedural rules may provide for:
• the joinder as a party to the dispute of any other employee that has a dispute with
the same employer under new section 66M, or any employee organisation entitled
to represent the industrial interests of such an employee; and
• for processes to support the operation of changing streams under new
subsections 66M(7)-(9).
396. Nothing in new subsection 66M(11) would limit the operation of the procedural rules at
existing section 609.
397. The content of these rules would be informed by the objects at new section 66AAA,
particularly the importance of quick, flexible and informal arrangements that support
the needs of both employers and employees.
398. The FWC would be able to deal with a dispute referred to it under either the employee
choice or casual conversion pathway by arbitration in accordance with new
section 66MA. The FWC would only deal with a dispute by arbitration after other
means of dispute resolution had been attempted, such as mediation or conciliation, or in
the first instance if there were exceptional circumstances (new subsection 66M(6)).
399. Orders the FWC may make: New subsection 66MA(1) would set out a number of
orders the FWC may consider it appropriate to make if dealing with a dispute by
arbitration, including:
• for a dispute about employee choice, that the employee be treated as a full-time or
part-time employee from the date of the first full pay period that starts after the day
74
the order is made (or a later date if the FWC considers it appropriate), or that the
employee continue to be treated as a casual employee (new subsection 66M(4));
• for a dispute about casual conversion, that the employer make the employee an
offer of casual conversion under existing section 66B (new subsection 66MA(7)).
400. The orders set out in new subsection 66MA(1) are not exhaustive and the FWC is not
limited to making only the orders listed in subsections 66MA(4) and (7). In general, the
FWC would be able to make any order it considers appropriate. However, it would not
be able to make any order unless it considers that making the order would be fair and
reasonable (new subsection 66MA(2)).
401. The note at new subsection 66MA(2) refers the reader to existing paragraph 578(a),
which requires the FWC to take into account the objects of the FW Act, or any part of
the FW Act, when performing its functions or exercising its powers. The objects of
Division 4A of Part 2-2 (new section 66MA), in addition to the objects of the FW Act
at existing section 3 in Division 1 of Part 1-1, would therefore need to be considered by
the FWC when making an order under new subsection 66MA(1).
402. Under new subsection 66MA(3), the FWC would not be able to make an order if the
order would be inconsistent with a provision of the FW Act or a term of a fair work
instrument that applies to the employer and employee at the time immediately before
the order were to be made (new subsection 66MA(3)). This is intended to ensure that an
order does not have the effect of amending terms and conditions designed to protect
full-time or part-time employees, but which may not apply to casual employees because
of the differences between full-time and part-time employment and casual employment.
It would not prevent an order that is inconsistent with a previous order made under new
subsection 66MA(1), where this was considered appropriate by the FWC. This
clarification is necessary because 'fair work instrument' is defined by section 12 to
include orders of the FWC.
403. In deciding whether to make an order about employee choice under new
subsection 66MA(1), including an order referred to new subsection 66MA(4), and what
the terms of such an order would be, the FWC would be required to:
• consider whether a substantial change would be reasonably necessary to the
employee's terms and conditions to ensure the employer does not contravene the
term of a fair work instrument that would apply to the employee as a full-time or
part-time employee (new paragraph 66MA(5)(a));
• disregard any conduct of the employer and employee that took place after the
employee gave the employer the notification under new section 66AAB (new
paragraph 66MA(5)(b)).
404. Contravening an order: New subsection 66MA(8) would provide that a person must
not contravene an order made under new subsection 66MA(1). A contravention of an
order made under new subsection 66MA(1) would be subject to a potential civil
penalty.
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Item 16: Subsection 67(1A)
405. This item would omit 'converted under Division 4A of Part 2-2' in existing
subsection 67(1A) in Division 5 of Part 2-2 and substitute 'changed or converted under
Division 4A of Part 2-2'.
406. Existing section 67 sets out categories of employees who are entitled to access parental
leave and related entitlements under existing Division 5 of Part 2-2. Existing
subsection 67(1) provides that an employee who is not a casual employee may access
leave entitlements (other than unpaid pre-adoption leave or unpaid safe job leave) after
having completed at least 12 months of continuous service. Existing subsection 67(1A)
enables an employee who converts to full-time or part-time employment under
existing Division 4A of Part 2-2 to count the time they were a regular casual employee
as continuous service for the purposes of establishing entitlement to parental leave and
relation entitlements.
407. This item would clarify that a period of employment as a regular casual employee
would count as continuous service for the purposes of applying existing
subsection 67(1A) in circumstances where:
• an employee changes to full-time or part-time employment under the employee
choice provisions; or
• an employee converts to full-time or part-time employment under the existing
casual conversion provisions.
408. The item is a consequential amendment to reflect the new pathway to full-time and
part-time employment provided by the employee choice provisions.
Item 17: Subsection 125A(2)
409. This item would omit 'and offers and requests for casual conversion' from existing
subsection 125A(2) and substitute 'and how this can be changed or converted'.
410. Existing section 125A requires the FWO to prepare a Casual Employment Information
Statement for publishing in the Gazette. Existing subsection 125A(2) sets out what
information must be included in the Casual Employment Information Statement,
including information about casual conversion under existing provisions.
411. This item would amend existing subsection 125A(2) to clarify that the Casual
Employment Information Statement must include information about how an
employee's casual status may change under both the employee choice and the casual
conversion provisions.
Item 18: After paragraph 125A(2)(a)
412. This item would insert new subparagraphs 125A(2)(aa) and (ab) after existing
paragraph 125A(2)(a).
413. Existing subsection 125A(2) provides that the Casual Employment Information
Statement prepared by the FWO must include information about the meaning of casual
employee under existing section 15A and information relating to casual conversion.
The Casual Employment Information Statement would continue to include this
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information and would be updated to reflect the new meaning of casual employee and
other changes made by this Bill to Division 4A of Part 2-2, such as the new employee
choice pathway, the role of the FWC in dealing with disputes and the availability of
arbitration.
414. This item would require the Casual Employment Information Statement to include the
following information relating to the new employee choice provisions:
• the ability for casual employees who have completed six months of employment, or
12 months in the case of casual employees of small business employers, to issue a
notification to their employer under new section 66AAB if they no longer, at that
point in time, believe they are a casual employee within the meaning of new
subsections 15A(1)-(4) (new subparagraph 125A(2)(aa));
• the grounds upon which an employer may not accept an employee choice
notification made under new section 66AAB (new subparagraph 125A(2)(ab)).
415. While the Casual Employment Information Statement must include this information, it
could also include additional information about casual employment. For example, the
Statement could include information about casual employees being entitled to a casual
loading (or a specific rate of pay for casual employees under the terms of a fair work
instrument) under new paragraph 15A(1)(b). This loading amount is paid to casual
employees having regard to the nature of their employment and the fact that casual
employees do not receive a range of entitlements provided to full-time and part-time
employees, such as annual leave. The Statement could also explain that employees
would no longer be entitled to a casual loading if they were to change or convert to
full-time or part-time employment.
Item 18A: Paragraphs 125A(2)(d) and (da)
416. This item would repeal existing paragraphs 125A(2)(d) and (da) relating to information
about the residual right to request casual conversion in the Casual Employment
Information Statement.
Item 19: Subsection 125B(1)
417. This item would repeal existing subsection 125B(1) and substitute new
subsection 125B(1).
418. Existing subsection 125B sets out when an employer must give each casual employee
the Casual Employment Information Statement during the course of their employment.
Existing subsection 125B(1) requires this to occur before, or as soon as practicable
after, the casual employee commences employment with the employer.
419. This item would amend existing subsection 125B(1) by including an additional
requirement for an employer to give each casual employee the Casual Employment
Information Statement as soon as practicable after 12 months of employment (new
paragraph 125B(1)(b)).
420. This will ensure casual employees receive information about the ability to change or
convert to full-time or part-time employment at a point in time when all casual
77
employees will have access to the employee choice pathway, including employees of
small business employers, and when some employers will be required to offer casual
conversion under that pathway.
Item 20: Before section 357
Subdivision A - Independent contracting
421. Division 6 of Part 3-1 of the FW Act relates to general protections against sham
arrangements. It currently only addresses independent contracting arrangements. This
item would insert protections relating to casual employment arrangements. This will
provide protections for employees who are engaged as casual employees under a sham
arrangement.
Item 21: At the end of Division 6 of Part 3-1
Subdivision B - Casual employment
422. This item would insert a new Subdivision B--Casual employment in Division 6 of
Part 3-1 of the FW Act, dealing with employers:
• dismissing an employee to engage them as casual employee (new section 359B);
and
• making a misrepresentation to a current or former employee to engage them as
casual employee (new section 359C).
423. These provisions complement the new definition and employee choice pathway by
establishing an anti-avoidance framework in relation to casual employment.
Section 359B Dismissing to engage as casual employee
424. New section 359B would prohibit an employer from dismissing an employee to
reengage them as casual employee to perform the same, or substantially the same,
work. It is modelled on the protection in existing section 358 against dismissing an
employee to engage them as an independent contractor. This new section would be a
civil remedy provision under Part 4-1 of the FW Act.
425. As new section 359B would turn on the reasons for the actions of the employer, it
would be subject to the effect of existing section 360 in Division 7 of Part 3-1 which
provides that a person takes action for a particular reason if the reasons for the action
include that reason.
Section 359C Misrepresentation to engage as casual employee
426. New section 359C would prohibit an employer from knowingly making a false
statement to a current or former employee with the intention of persuading or
influencing that employee to become a casual employee to perform the same, or
substantially the same, work for the employer. This new section would be a civil
remedy provision under Part 4-1 of the FW Act.
427. As new section 359C would turn on the reasons for the actions of the employer, it
would be subject to the effect of existing sections 360 and 361 in Division 7 of Part 3-1
which provide that a person takes action for a particular reason if the reasons for the
78
action include that reason, and place the burden of proving the reason for an action on
the employer, respectively.
Item 22: Subsection 539(2) (after table item 5AA)
428. This item would add new item 5AAA, regarding contraventions of new Division 4A of
Part 2-2, to the table of civil remedy provisions set out at existing subsection 539(2).
Contraventions of new subsection 66MA(8) (a person must not contravene an order of
the FWC about casual employment) would be included in the new table item as a civil
remedy provision.
429. The new table item would provide that a person affected by the contravention, an
employee organisation or an inspector can bring an action for an alleged contravention
of the provisions in a federal court or eligible State or Territory Court. The maximum
civil penalty for a contravention would be 300 penalty units.
Item 23: Subsection 539(2) (before table item 12)
430. This item would add a new table item 11B, regarding contraventions of the new sham
casual arrangement prohibitions in new sections 359B and 359C, to the table of civil
remedy provisions set out at existing subsection 539(2).
431. The new table item would provide that a person affected by the contravention, an
employee organisation or an inspector can bring an action for an alleged contravention
of the provisions in a federal court or eligible State or Territory Court. The maximum
civil penalty for a contravention would be 300 penalty units.
Item 23A: At the end of subparagraph 548(1B)(a)(ii)
Item 23B: Subparagraphs 548(1B)(a)(iii) and (iv)
Item 23C: Subsection 548(1B) (note)
432. These items would make a technical amendment to subparagraph 548(1B)(a)(ii) and
repeal subparagraphs 548(1B)(a)(iii) and (iv), consequential to the repeal of the residual
right to request casual conversion.
433. It would also repeal the note at subsection 548(1B) and substitute a new note that
notifies the reader that a court may make orders under Division 2 in relation to small
claims proceedings requiring an employer to make an offer of conversion because the
employee meets eligibility requirements, and that it is not open to an employer to rely
on reasonable business grounds to not make an offer of casual conversion.
Item 24: After subsection 548(1B)
434. This item would amend existing section 548 to expand the small claims jurisdiction to
include disputes about whether a person was a casual employee of their employer
within the meaning of new subsections 15A(1)-(4) at commencement of their
employment with that employer (new subsection 548(1C)).
435. This item would allow employees to choose the small claims procedure to apply to
proceedings if the employee has applied for an order (other than a pecuniary penalty
order) under Division 2 from a magistrates court or the Federal Circuit and Family
Court of Australia (Division 2) in connection with a dispute about whether the
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employee was a casual employee of their employer within the meaning of new
subsections 15A(1)-(4) at commencement of their employment with that employer.
436. The note to new subsection 548(1C) sets out an example of the kind of order a court
may make under Division 2 in relation to small claims proceedings under new
subsection 548(1C), being a declaration as to whether the employee was a casual,
parttime or full-time employee at the commencement of the employment.
437. If an employee is found to have been misclassified as a casual employee by a court,
existing section 545A will allow any resulting backpay to be offset against any casual
loadings paid to the employee.
Item 25: After paragraph 675(2)(ab)
438. This item would amend existing section 675 by inserting new paragraph 675(2)(ac).
439. The effect of this would be to provide that a person does not commit an offence if the
FWC has made an order under new subsection 66MA(1), and the person contravenes
the order. However, contravention of an order would be prohibited by new
subsection 66MA(8), and would give rise to a civil remedy.
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Part 2--Small business redundancy exemption
Amendments to the Fair Work Act 2009
440. Part 2 would amend section 121 of the FW Act to address an anomaly arising under
paragraph 121(1)(b), commonly referred to as the 'small business redundancy
exemption'. It only applies to employees of employers that are bankrupt or in
liquidation due to insolvency. It does not affect ongoing, solvent businesses.
441. Part 2 covers the situation when a larger employer incrementally downsizes due to
insolvency, either in the period leading up to liquidation or bankruptcy, or afterwards,
and the number of employees falls below the 15 employee threshold for the small
business definition, causing some employees to lose their previous entitlement to
redundancy pay under section 119 of the NES. This may occur, for example, where an
insolvency practitioner makes most of the employees of a company redundant upon
their appointment, but retains the bookkeeping and payroll staff - fewer than
15 employees in total - to assist with the orderly wind up of the business. At present,
the majority of employees would receive their redundancy entitlements. However, the
employees kept on to finalise the winding up would not because the employer would
then come within the small business redundancy exemption.
442. The amendment would provide an exception to the operation of the small business
redundancy exemption in such downsizing contexts. It is intended to address
inequitable outcomes for employees, including those who remain employed to assist
with the orderly wind-down of an insolvent business, and support the more efficient
conduct of external administrator, controller and bankruptcy trustee appointments.
Item 26: Section 12 (definition of appointment)
443. This item would repeal the existing definition of 'appointment' and replace it with a
definition of 'appointment' that includes the 'appointment of an insolvency
practitioner', to give meaning to the term in new paragraph 121(4)(d). The newly
inserted text is consistent with the definition of 'appointment' in section 5 of the FEG
Act.
Item 27: Section 12
444. This item would insert the following new definitions:
• 'Bankruptcy Act 1966';
• 'Bankruptcy trustee' (as defined in the Bankruptcy Act);
• 'Corporations Act 2001';
• 'Insolvency practitioner' (as defined in the FEG Act);
• 'Liquidator' (as defined in the Corporations Act); and
• 'Members' voluntary winding up'.
445. The new definitions would inform the interpretation of new subsections 121(4)-(7),
where those terms are used.
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Item 28: At the end of section 121
446. This item would insert new subsections (4), (5), (6) and (7) into section 121, to provide
an exception to the operation of the small business redundancy exemption in current
paragraph 121(1)(b), where an employer downsizes from a larger business to a small
business employer due to insolvency.
447. New paragraphs (4)(a)-(d) would ensure the current exemption to the obligation to pay
redundancy at paragraph 121(1)(b) does not apply in the circumstances where the
employer is bankrupt or in liquidation (other than a members' voluntary winding up)
and has only become a small business employer due to employee terminations.
448. New subparagraphs (4)(d)(i)-(iii) would provide a six month 'look back' period to
apply to determine the application of the exception, from six months before the
bankruptcy or liquidation, or the appointment of the insolvency practitioner, or, if the
appointment of the insolvency practitioner was immediately preceded by the
appointment of other insolvency practitioners, from the earliest appointment date.
449. New subparagraph (4)(d)(iv) would apply where the terminations that caused the
employer to become a small business employer were due to the insolvency of the
employer. It would apply, for example, in the following circumstance: a receiver and
manager is appointed to an employer because the employer is in default due to
insolvency. During the appointment, the employer terminates the employment of one or
more employees with the result that the employer becomes a small business employer.
The receivership concludes and the employer enters liquidation six months and one day
after the conclusion of the receivership. New subparagraphs (4)(d)(i)-(iii) do not apply
to the employer because of the length of time between the conclusion of the
receivership and the liquidation. However, new subparagraph (4)(d)(iv) applies because
the terminations that caused the employer to become a small business employer were
due to insolvency.
450. New subsection (5) would provide the new definition of members' voluntary winding
up to clarify the use of that term in new subsection (4). A members' voluntary winding
up under section 495 of the Corporations Act is a process for winding up solvent
companies and requires a declaration of solvency by members. Liquidations due to a
members' voluntary winding up are excluded from new paragraph (4)(b) so that it only
applies to insolvent liquidations.
451. New subsection (6) clarifies the operation of new subsection (4) in circumstances
where an employer enters liquidation due to a members' voluntary winding up but
subsequently turns out to be insolvent. If and when the employer enters liquidation
(other than a members' voluntary winding up), following the process set out in
section 496 of the Corporations Act, the new subsection (4) would apply to the
employer, and for the purposes of new subsections (4)-(6), the original appointment
date of the members' voluntary winding up is treated as the date the company went into
liquidation.
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452. New subsection (7) would clarify when a partnership is bankrupt or liquidation for the
purposes of new paragraph (4)(b).
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Part 3--Enabling multiple franchisees to access the single enterprise stream
Amendments to the Fair Work Act 2009
453. Part 3 would allow multiple franchisees to access the single-enterprise agreement
stream, without removing the ability to bargain for a multi-enterprise agreement if this
is the preferred option of the parties.
Item 29: Subsection 172(3)
454. Existing section 172(2) of the FW Act limits bargaining for a single-enterprise
agreement to a single employer or to 'related employers' as defined in existing
subsection 172(5A). Franchisees do not come within the existing definition of 'related
employers' and accordingly may be prevented from making a single-enterprise
agreement.
455. Existing section 172(3) limits bargaining for a multi-enterprise agreement to a situation
where there are two or more employers who are not all related employers.
456. This item would enable bargaining for a multi-enterprise agreement where two or more
employers are all related employers as set out in new subsection 172(3A). Item 30
would insert new subsection 172(3A). This would ensure that employers that carry on
similar business activities under the same franchise, and that are franchisees of the
same franchisor, or related bodies corporate of the same franchisor, continue to be able
to make a multi-enterprise agreement, despite meeting the definition of 'related
employers' in new paragraph 172(5A)(c) (refer item 31).
457. The new provisions would maintain the ability of employers who are otherwise not all
related employers to make a multi-enterprise agreement. If, for example, a group of
employers includes franchisees of a common franchisor, as well as other employers that
are not franchisees of that franchisor, these employers would not all be related
employers, and could make a multi-enterprise agreement.
Item 30: After subsection 172(3)
458. This item would insert subsection 172(3A). Subsection 172(3A) operates with item 29
and item 31 to ensure that a class of related employers can bargain for a multi-
enterprise agreement. This class is specified through item 30 and is all related
employers under new paragraph 172(5A)(c). Item 31 would insert new
paragraph 172(5A)(c).
459. In conjunction with item 29, item 30 would make clear that all related employers as
defined in new paragraph 172(5A)(c) retain the ability to make a multi-enterprise
agreement. Two or more employers that are all related employers as defined in existing
paragraphs 172(5A)(a)-(b) (that is, related employers that are not franchisees or related
bodies corporate of the same franchisor) would continue to be excluded from multi-
enterprise bargaining.
Item 31: At the end of subsection 172(5A)
460. This item would expand the definition of 'related employers' in existing
subsection 172(5A) to include employers that carry on similar business activities under
the same franchise as franchisees of the same franchisor, or related bodies corporate of
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the same franchisor, or any combination of the two. This definition is modelled on the
definition used in existing subsection 249(2).
461. New paragraph 172(5A)(c) would allow franchisees to bargain together as related
employers for a single-enterprise agreement under subsection 172(2) without needing
to demonstrate that they are engaged in a common enterprise. This would allow
franchisees of the same franchisor to bargain for and make a single-enterprise
agreement as a single enterprise, including access to all available mechanisms relating
to single-enterprise bargaining under the FW Act. A single-enterprise agreement is
made where a majority of employees who vote approve the agreement
(subsection 182(1)). Approval by a majority of employees of each employer would not
be required. Finally, bargaining representatives for a single-enterprise agreement are
able to obtain a majority support determination where a majority of employees who
would be covered by the agreement wish to bargain.
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Part 4--Transitioning from multi-enterprise agreements
Amendments to the Fair Work Act 2009
462. Part 4 would amend the FW Act to allow a single-enterprise agreement to replace a
single interest employer agreement or supported bargaining agreement (as the case may
be) that has not passed its nominal expiry date.
Item 32: Section 12 (definition of voting request order)
463. This item is a consequential amendment which expands the definition of voting request
order to include an order as described in new subsection 240A(4), introduced by
item 57.
Item 33: Paragraph 58(2)(c)
464. This item is a consequential amendment which would provide that the general rule in
existing subsections 58(1) and (2) applies where existing subsection 58(3) and new
subsections 58(4) and (5) (refer item 34) do not apply.
Item 34: At the end of section 58
465. Existing section 58 provides that only one enterprise agreement can apply to an
employee at a time and sets out the rules for determining when an enterprise agreement
applies to an employee. Subsection 58(2) provides that, generally, where an enterprise
agreement applies to an employee, and another enterprise agreement comes into
operation that would also apply to that employee, the later enterprise agreement will not
apply until the earlier agreement reaches its nominal expiry date. Existing
subsection 52(2) makes clear that a reference to an enterprise agreement applying to an
employee is a reference to the agreement applying to that employee in relation to
particular employment.
466. A special rule in existing subsection 58(3) provides that if a single-enterprise agreement
applies to an employee, and a supported bargaining agreement comes into operation
that covers the employee in relation to the same employment, the supported bargaining
agreement will apply immediately, and the single-enterprise agreement can never apply
again.
467. This item would add two new special rules into existing section 58. The interaction
rules, respectively in new subsections 58(4) and 58(5), would provide that if a single
interest employer agreement or a supported bargaining agreement (each of which is an
old agreement) applies to an employee in relation to particular employment, and a
single-enterprise agreement later comes into operation that covers that employment, the
single-enterprise agreement will apply to that employee in relation to that employment,
and the old agreement can never apply again.
Item 35: At the end of paragraph 173(2)(d)
468. This item would correct a typographical error in existing subsection 173(2).
Item 36: Section 180A (at the end of the heading)
469. This item would amend the heading of existing section 180A to specify that the section
applies to proposed enterprise agreements that are multi-enterprise agreements. This
item would assist in distinguishing between section 180A, and new section 180B (refer
86
item 37) which deals with the agreement of bargaining representatives in relation to
certain proposed single-enterprise agreements.
Item 37: After section 180A
470. This item would insert a new section 180B into the FW Act. New section 180B is
modelled on existing section 180A. Existing section 180A prevents an employer asking
their employees to vote to approve a proposed multi-enterprise agreement unless they
have received the written agreement of employee organisations that would be covered
by the agreement, or are permitted to do so by a voting request order in relation to the
agreement.
471. New section 180B would only apply to a proposed single-enterprise agreement (new
agreement) where a single interest employer agreement or supported bargaining
agreement that is within its nominal term (each of which is an old agreement) applies to
at least one of the employees covered by the proposed agreement.
472. Where an old agreement applies to at least one of the employees who is covered by the
new agreement, new section 180B would require an employer to have received the
written agreement of all employee organisations to which the old agreement applies
before asking employees to vote to approve the new agreement. If written agreement is
not provided, the employer may apply for a voting request order under new
subsection 240A(4), introduced by item 57.
Item 38: Subsection 188(2A)
Item 39: Subsection 188(2A)
Item 40: Paragraph 188(5)(ab)
473. These items are technical amendments which would deal with the insertion of new
section 180B.
Item 41: After paragraph 191A(3)(b)
474. This item would add new paragraph 191A(3)(ba). Currently, when considering whether
to approve an enterprise agreement with amendments, the FWC is required by existing
subsection 191A(3) to seek the views of the employer or employers covered by the
agreement, the award covered employees for the agreement and a bargaining
representative for the agreement.
475. This item would insert a requirement that if the enterprise agreement is a single-
enterprise agreement that covers a group of employees that includes at least one
employee to whom a single interest employer agreement or supported bargaining
agreement applies, the FWC must also seek the views of the employee or employees to
whom the single interest employer agreement or supported agreement applies.
Item 42: Subsection 193(1)
476. This item would repeal and substitute subsection 193(1) with new subsections 193(1)
and 193(1A). Existing subsection 193(1) states that an agreement passes the BOOT
where each award covered employee and each reasonably foreseeable employee for the
agreement would be better off under the agreement than the relevant modern award.
87
This current test for award covered employees would be retained at new
paragraph 193(1)(a).
477. New paragraph 193(1)(b) would modify the operation of the BOOT in the circumstance
where an application has been made for approval of a single-enterprise agreement (new
agreement) which covers at least one employee to whom a single interest employer
agreement or supported bargaining agreement (each of which is an old agreement)
applies.
478. New paragraph 193(1)(b) would require the new agreement to be assessed against the
old agreement rather than relevant modern award, for each employee to whom the old
agreement applies. The new agreement would pass the BOOT in relation to these
employees where the employees are better off under the new agreement than the old
agreement. This would ensure that employees would be better off under the subsequent
single-enterprise agreement than the old agreement.
479. In this circumstance the BOOT analysis for award covered employees would not be
changed. The new agreement would pass the BOOT in relation to award covered
employees where those employees are better off under the new agreement than the
relevant award.
480. New subsection 193(1A) makes clear that where an employee is both award covered
and an old agreement applies to them, the BOOT analysis for that employee is to be
undertaken in relation to the old agreement only.
481. Employees who are award covered, and those to whom an old agreement applies, must
all be better off overall under the new agreement for it to pass the BOOT.
482. The legislative notes included under existing subsection 193(1) are retained under new
subsection 193(1). Legislative note 1 points the reader to the definition of reasonably
foreseeable employee in existing subsection 193(5). Legislative note 2 highlights the
rules for applying the BOOT in existing section 193A, drawing particular attention to
the requirement that the FWC only have regard to reasonably foreseeable patterns or
kinds of work in existing subsection 193A(6).
Item 43: After subsection 193(2)
483. This item would insert new subsection 193(2A). Existing subsection 193(2) requires the
FWC to disregard an individual flexibility arrangement (IFA) that has been agreed
between an employee and employer under a modern award when assessing whether an
employee is better off overall under a proposed agreement than the relevant modern
award.
484. If the FWC is assessing whether a single-enterprise agreement passes the BOOT, and a
supported bargaining agreement or single interest employer agreement applies to at
least one of the employees that the single-enterprise agreement covers, new
subsection 193(2A) would require the FWC to disregard an IFA made under the
supported bargaining agreement or single interest employer agreement.
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Item 44: Paragraphs 193A(2)(a) and (b)
485. This item would amend existing paragraphs 193A(2)(a) and (b). New
paragraph 193(1)(b) (refer item 42) would provide that where a single-enterprise
agreement (new agreement) is made with employees, and a single interest employer
agreement or supported bargaining agreement (each of which is an old agreement)
applies to at least one of those employees, the employees to whom the old agreement
applies must be better off under the new agreement than the old agreement for the new
agreement to pass the BOOT.
486. Existing paragraphs 193A(2)(a) and (b) make clear that, when assessing whether an
agreement passes the BOOT, the FWC must have regard to the terms and conditions of
the agreement that would be more beneficial, and those that would be less beneficial,
relative to the relevant modern award terms.
487. This item would amend paragraphs 193A(2)(a) and (b) to require the FWC to have
regard to the terms and conditions of an agreement that would be more beneficial to an
employee, and those that would be less beneficial to an employee, than those under the
modern award, supported bargaining agreement or single interest employer agreement,
whichever is relevant to the employee.
Item 45: Paragraph 193A(3)(b)
488. This item would repeal and substitute paragraph 193A(3)(b). Existing
paragraph 193A(3)(b) requires the FWC to consider the views expressed by award
covered employees for an agreement when determining whether the agreement passes
the BOOT. This requirement would be retained in new subparagraph 193A(3)(b)(i).
489. New subparagraph 193A(3)(b)(ii) would require the FWC to also consider the opinion
of any employee to whom a supported bargaining agreement or single interest employer
agreement applies as to whether a proposed single-enterprise agreement that covers
them passes the BOOT.
Item 46: At the end of subsection 193A(4)
490. This item would add new paragraph 193A(4)(c). Existing subsection 193A(4) requires
the FWC to give primary consideration to a view shared by all of those listed in
paragraphs 193A(4)(a)-(b) as to whether a proposed agreement (other than a
greenfields agreement (refer existing subsection 193A(5)) passes the BOOT. Existing
paragraphs 193A(4)(a)-(b) list bargaining representatives for employers and bargaining
representatives for award covered employees (that are employee organisations).
491. New paragraph 193A(4)(c) would add a reference to bargaining representatives for
employees to whom a supported bargaining agreement or single interest employer
agreement applies, where the proposed agreement is a single-enterprise agreement that
covers at least one employee to whom a supported bargaining agreement or single
interest employer agreement applies.
492. Where a proposed agreement is a single-enterprise agreement that covers one of more
employees to whom a supported bargaining agreement or single interest employer
agreement applies, the FWC would be required to give primary consideration to a
89
common view as to whether the agreement passes the BOOT that is expressed by
bargaining representatives for employers, bargaining representatives (that are employee
organisations) for award covered employees, and bargaining representatives (that are
employee organisations) for employees to whom a single interest employer agreement
or supported bargaining agreement applies.
Item 47: Paragraph 193A(6A)(b)
493. This item would repeal and substitute paragraph 193A(6A)(b). Existing section 193A
provides guidance as to how the FWC is to apply the BOOT. Existing
subsection 193A(6) limits the patterns or kinds of work that the FWC may have regard
to when applying the BOOT to those that are reasonably foreseeable. Employers cannot
be required to provide undertakings in relation to hypothetical kinds of work that are
not reasonably foreseeable.
494. Existing section 193A(6A) provides that the FWC must determine whether a particular
pattern or kind of work is reasonably foreseeable if a view is expressed by a relevant
employer, award covered employee, or bargaining representative.
495. New subparagraph 193A(6A)(b)(ii) would include an additional requirement that the
FWC must also determine the matter, in the circumstance that the agreement is a single-
enterprise agreement which covers employees to whom a single interest employer
agreement or supported bargaining agreement applies, if those employees express a
view as to whether a particular pattern or kind of work is reasonably foreseeable.
Item 48: Subsection 193A(7)
496. Existing subsection 193A(7) allows the FWC to assume that if an employee belongs to
a class of employees that would be better off under the agreement than the modern
award, the employee would also be better off under the agreement, in the absence of
evidence to the contrary.
497. This item would amend existing subsection 193A(7) to allow the FWC to assume that
an employee would be better off under a proposed single-enterprise agreement than
under an existing single interest employer agreement or supported bargaining
agreement that applies to them, in the absence of evidence to the contrary, where that
employee is a member of a group of employees that would be better off under the
single-enterprise agreement than the relevant single interest employer agreement or
supported bargaining agreement.
Item 49: After paragraph 211(4A)(ac)
498. This item would insert new paragraph 211(4A)(ad). Existing section 211 sets out when
the FWC must approve a variation of an enterprise agreement. Existing
subsection 211(4A) provides that the FWC must give consideration to any views
relating to whether the agreement (as proposed to be varied) passes the BOOT that have
been expressed by the relevant employer or employers, employees, and any employee
organisations covered by the agreement.
90
499. New paragraph 211(4A)(ad) would provide that new paragraph 193A(4)(c) (refer
item 46) would not apply when the FWC is considering whether an agreement as
proposed to be varied passes the BOOT.
500. Existing subsection 193A(4) requires the FWC to give primary consideration to the
common views of those listed in paragraphs 193A(4)(a)-(b). New
paragraph 193A(4)(c) lists employee organisations that are bargaining representatives
for any employee to whom a single interest employer agreement or supported
bargaining agreement applies, where a single-enterprise agreement has been made that
covers at least one such employee.
501. In the context of an application to vary an enterprise agreement, the circumstances
described in new paragraph 193A(4)(c) are not relevant as the previous agreement
would no longer apply to the employees. Existing paragraph 211(4A)(ac) relevantly
provides for the consideration of the views of bargaining representatives that are
covered by the agreement that is proposed to be varied.
Item 50: Paragraph 227A(2)(a)
502. This item would amend existing paragraph 227A(2)(a). Existing subsection 227A(2)
provides the circumstances that must be satisfied before an application can be made to
the FWC for a reconsideration as to whether an enterprise agreement passes the BOOT.
503. The condition in existing paragraph 227A(2)(a) is that the FWC must have had regard
to patterns or kinds of work engaged in or to be engaged in by award covered
employees for the agreement prior to approving it.
504. This item would amend existing paragraph 227A(2)(a) to include the FWC having had
regard to patterns or kinds of work engaged in, or to be engaged in, by any employee or
employees to whom a single interest employer agreement or supported bargaining
agreement applies prior to approving a single-enterprise agreement that covers that
employee or those employees.
Item 51: Paragraph 227A(2)(b)
Item 52: At the end of section 227A
505. These items would amend paragraph 227A(2)(b) and insert new subsection 227A(5).
Existing paragraph 227A(2)(b) provides the second condition that must be satisfied
before an application can be made to the FWC for reconsideration of whether an
agreement passes the BOOT.
506. Existing paragraph 227A(2)(b) refers to employees covered by existing
subsection 227A(4) performing or engaging in patterns or kinds of work that the FWC
did not consider when it undertook the BOOT. Existing subsection 227A(4) covers an
employee if the employee would be an award covered employee as defined in existing
subsection 193(4) if the test time were the time the application for reconsideration was
made.
507. These items provide that the condition in paragraph 227A(2)(b) can also be satisfied
where the relevant employee is covered by new subsection 227A(5).
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508. New subsection 227A(5) would cover employees who, at the time the application for
reconsideration is made, are employees to whom a single-enterprise agreement applies,
and to whom a single interest employer agreement or supported bargaining agreement
applied at the time the FWC undertook the BOOT assessment of the single-enterprise
agreement.
Item 53: After paragraph 227B(2)(a)
509. This item would amend section 227B to insert new paragraph 227B(2)(aa). Existing
section 227B varies the effect of existing sections 193 and 193A for the purposes of
reconsidering whether an agreement passes the BOOT.
510. This item would provide that, when reconsidering whether a single-enterprise
agreement which applies to employees to whom a single interest employer agreement
or supported bargaining agreement applied immediately before the single-enterprise
agreement came into operation, employees that are covered by new subsection 227A(5)
(refer item 52) are taken to have a single interest employer agreement or supported
bargaining agreement apply to them. Employees covered by new subsection 227A(5)
are employees to whom a supported bargaining agreement or single interest employer
agreement applied before the FWC approved the single-enterprise agreement.
511. This item is necessary as, at the time of reconsideration, the single interest employer
agreement or supported bargaining agreement would no longer apply, as the single-
enterprise agreement would apply.
Item 54: After paragraph 227B(2)(f)
512. This item would amend section 227B to insert new paragraph 227B(2)(fa). Existing
section 227B varies the effect of existing sections 193 and 193A for the purposes of
reconsidering whether an agreement passes the BOOT. Existing subsection 193A(4)
requires the FWC to give primary consideration to the common views of those listed in
paragraphs 193A(4)(a)-(b). New paragraph 193A(4)(c) (refer item 46) would list
employee organisations that are bargaining representatives for any employee to whom a
single interest employer agreement or supported bargaining agreement applies, where a
single-enterprise agreement has been made that covers at least one such employee.
513. New paragraph 227B(2)(fa) would provide that when reconsidering whether an
agreement passes the BOOT, the FWC would not need to consider the views shared by
persons including bargaining representatives for any employee to whom a single
interest employer agreement or supported bargaining agreement applies, where a
single-enterprise agreement has been made that covers at least one such employee. In
the context of an application to reconsider the BOOT, the single interest employer
agreement or supported bargaining agreement would no longer apply. Existing
paragraph 227B(2)(f) relevantly provides for the consideration of the common views of
the employer(s) and employee organisations that are covered by the agreement.
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Item 55: After subsection 236(1A)
Item 56: After subsection 238(1)
514. These items would insert new subsections 236(1B) and 238(2), which would prevent
applications for majority support determinations and scope orders being made in
relation to a proposed single-enterprise agreement which covers (among other
employees) at least one employee to whom a single interest employer agreement or
supported bargaining agreement that has not nominally expired, applies. Parties would
have access to bargaining dispute applications under existing section 240. Preventing
access to majority support determinations and scope orders would have the effect that
bargaining representatives could not compel bargaining for a single-enterprise
agreement where there is a supported bargaining agreement or single interest employer
agreement within its nominal term and in operation.
Item 57: At the end of section 240A
515. This item would insert new subsection 240A(4). Existing section 240A allows a
bargaining representative for a multi-enterprise agreement to apply to the FWC for a
voting request order permitting the employer to ask their employees to vote to approve
the agreement (refer existing section 180A).
516. New subsection 240A(4) would allow an application to be made for a voting request
order in relation to a proposed single-enterprise agreement where a supported
bargaining agreement or single interest employer agreement (each of which is an old
agreement), which has not passed its nominal expiry date, applies to one or more of the
employees who would be covered by the proposed agreement.
517. The requirements in new subsection 240A(4) are modelled on those in existing
subsection 240A(1). After the notification time for a proposed agreement, a bargaining
representative for the agreement could apply for a voting request order where the
bargaining representatives for the agreement have been asked to provide the employer
with their written agreement to the employer putting the agreement to vote, and one or
more bargaining representatives have failed to do so.
518. This item would provide a means for an employer to take the new agreement to vote
where the failure of a bargaining representative to provide written agreement is
unreasonable in the circumstances, and making the request for employees to vote on the
agreement would not be inconsistent with the employer's good faith bargaining
obligations (refer sections 240B and 228).
Item 58: Section 240B
519. This item is a consequential amendment that would give effect to new
subsection 240A(4).
Item 59: Section 245
520. This item is a technical amendment to allow for new subsection 245(2) (refer item 60).
Item 60: At the end of section 245
521. This item would insert new subsection 245(2). Existing section 245 provides that the
FWC is taken to have varied a supported bargaining authorisation (authorisation) to
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remove an employer's name only when they, and all of their employees that are listed
on the authorisation, are covered by an enterprise agreement or workplace
determination. There is no means for an employee to be removed from an authorisation.
522. Existing subsection 172(7) provides that an employer covered by an authorisation
cannot bargain for or make an enterprise agreement other than a supported bargaining
agreement with employees specified on an authorisation.
523. New subsection 245(2) would provide that the FWC is taken to have varied an
authorisation to remove an employee when they are covered by an enterprise agreement
or workplace determination that has come into operation. New subsection 245(2) would
allow an employer to make a single-enterprise agreement with a group of employees
with whom the employer has previously made a supported bargaining agreement,
where some of its employees that are specified on the authorisation are not covered by
an agreement or workplace determination.
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Part 5--Model terms
Amendments to the Fair Work Act 2009
524. Part 5 would require the FWC to determine model flexibility, consultation and dispute
resolution terms for enterprise agreements, and the model dispute settlement term for
copied State instruments. As Australia's independent workplace relations tribunal, with
responsibility for setting and reviewing the equivalent clauses in the award safety net, it
is appropriate that the FWC perform this function. The Bill prescribes the matters the
FWC must take into account when determining each model term.
525. Part 5 would commence by Proclamation or the day after a 12-month period
commencing on the day the Bill receives Royal Assent. A maximum period of
12 months would allow sufficient time to constitute a Full Bench (or Full Benches) to
determine the model terms, hear and consider submissions made in relation to the
model terms as would be required by Part 5, and make the determinations. It is intended
that the FWC would undertake detailed consultation, including with (but not limited to)
national peak councils, during this period.
526. The FWC would have the power to vary its determinations. Responsibility for
maintaining the currency of the model terms will be vested in the FWC and the ability
to vary the terms in line with developments in workplace relations will ensure their
ongoing relevancy.
Item 61: Subsection 202(5)
527. Existing subsection 202(1) requires that enterprise agreements contain a flexibility
term. The flexibility term enables an employer and employee to agree to vary the effect
of an enterprise agreement to meet the genuine needs of the employer and employee.
528. This item would repeal and substitute a new subsection 202(5) as well as insert new
subsections 202(6) and (7).
529. In doing so, the existing requirement that the FW Regulations prescribe the model
flexibility term for enterprise agreements would be replaced with a requirement that the
FWC determine the model flexibility term.
530. New subsection 202(6) would set out what is required of the FWC when determining
the model flexibility term.
531. The model term determined by the FWC would be required to be consistent with the
existing requirements of a flexibility term set out in subsection 202(1).
532. Paragraph 202(6)(b) would provide a list of matters that the FWC must take into
consideration in determining the model term, in addition to any other matters the FWC
considers relevant.
533. The FWC would be required to consider whether the model term generally accords with
comparable terms in modern awards. New subparagraph 202(6)(b)(i) would require
consideration of common features of flexibility terms in modern awards, rather than a
detailed examination of all flexibility terms found in awards, or the selection of a single
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flexibility term to be used as a comparator. This would promote consistency across
enterprise agreements and modern awards.
534. New subparagraph 202(6)(b)(ii) would require the FWC to take into account what it
considers is 'best practice' workplace relations. This would allow the FWC to exercise
its expert judgement, supplemented by submissions, to determine a model term that
reflects the current best approach.
535. New subparagraph 202(6)(b)(iii) would require the FWC to consider whether all
persons and bodies have been provided with a reasonable opportunity to make
submissions on the determination of the model term. This would ensure that there is
meaningful public consultation prior to determining the model term.
536. New subparagraph 202(6)(b)(iv) would require the FWC to take into account the object
of the FW Act, and the objects of Part 2-4 (see section 171).
537. Legislative note 1 draws attention to the requirement that a Full Bench is required to
make the model flexibility term. This requirement would be inserted into the FW Act
by item 63.
538. Legislative note 2 points to subsection 33(3) of the AI Act for variations of a
determination. This subsection provides that, in summary, where an Act provides a
power to make an instrument of legislative character, that power includes the power to
vary such an instrument. This would allow the FWC to update the model term from
time to time in line with developments in workplace relations practices.
539. New subsection 202(7) would provide that the model term is a legislative instrument
that could not be disallowed by Parliament. As Australia's workplace relations tribunal,
the FWC has expert and technical knowledge of contemporary workplace relations and
operates independently of political processes. The determination would be required to
be made following consideration of submissions by the public, thereby mandating
public participation in the process. The model term would play a limited role in creating
rights or obligations in circumstances where an enterprise agreement does not contain a
compliant flexibility term.
540. Ensuring the model term is not disallowable would also avoid the risk of the model
term being disallowed after an enterprise agreement has proceeded to a vote by
employees on the basis that the model term determined by the FWC would be included.
Were this to occur, questions as to genuine agreement may arise on the basis that an
important term of the agreement would not be included. This situation may also cause
commercial uncertainty and frustrate bargaining processes.
Item 62: Subsection 205(3)
541. Existing subsection 205(1) requires enterprise agreements to include a consultation
term which requires an employer to consult with employees about major workplace
change or a change in rosters or ordinary hours of work. The term must also allow for
employees to be represented for the purposes of that consultation.
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542. This item would repeal and substitute a new subsection 205(3) as well as insert new
subsections 205(4), (5) and (6).
543. In doing so, the existing requirement that the FW Regulations prescribe the model
consultation term for enterprise agreements would be replaced with a requirement that
the FWC determine the model consultation term.
544. New subsection 205(4) would set out what is required of the FWC when determining
the model consultation term.
545. New paragraph 205(4)(a) would require the model term to satisfy the requirements of
existing subsections 205(1) and (1A), which set the minimum requirements of a
consultation term included in an enterprise agreement.
546. New paragraph 205(4)(b) would provide a list of matters that the FWC must take into
consideration in determining the model term, in addition to any other matters the FWC
considers relevant.
547. The FWC would be required to consider whether the model term generally accords with
comparable terms in modern awards. New subparagraph 205(4)(b)(i) would require
consideration of common features of consultation terms in modern awards, rather than a
detailed examination of all consultation terms found in awards, or the selection of a
single consultation term to be used as a comparator. This would promote consistency
across enterprise agreements and modern awards.
548. New subparagraph 205(4)(b)(ii) would require the FWC to take into account what it
considers is 'best practice' workplace relations. This would allow the FWC to exercise
its expert judgement, supplemented by submissions, to determine a model term that
represents the current best approach.
549. New subparagraph 205(4)(b)(iii) would require the FWC to consider whether all
persons and bodies have been provided with a reasonable opportunity to make
submissions on the determination of the model term. This would ensure that there is
appropriate public consultation prior to determining the model term.
550. New subparagraph 205(4)(b)(iv) would require the FWC to assess whether the model
term would be an objectionable emergency management term according to existing
paragraphs 195A(1)(a)-(d). It is not relevant to the FWC's assessment of whether the
model term would be an objectionable emergency management term that the term
would not be an objectionable emergency management term because of the operation of
existing subsection 195A(2).
551. New subparagraph 205(4)(b)(v) would require the FWC to take into account the object
of the FW Act and the objects of Part 2-4 of the FW Act (see section 171).
552. Legislative note 1 draws attention to the requirement that a Full Bench is required to
make the model consultation term. This requirement would be inserted into the FW Act
by item 63.
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553. Legislative note 2 points to subsection 33(3) of the AI Act for variations of a
determination. This subsection provides that, in summary, where an Act provides a
power to make an instrument of legislative character, that power includes the power to
vary such an instrument. This would allow the FWC to update the model term from
time to time in line with developments in workplace relations practices.
554. New subsection 205(5) would ensure that when determining the model consultation
term, the FWC is not limited to addressing the content of existing subsections 205(1)
and 205(1A). Rather, existing subsections 205(1) and (1A) set the core requirements
that must be satisfied by a consultation term, including the model consultation term.
555. New subsection 205(6) would provide that the model term is a legislative instrument
that cannot be disallowed by Parliament. As Australia's industrial relations tribunal, the
FWC has expert and technical knowledge of contemporary workplace relations and
operates independently of political processes. The determination would be required to
be made following consideration of submissions by the public, thereby mandating
public participation in the process. The model term would play a limited role in creating
rights or obligations in circumstances where an enterprise agreement does not contain a
compliant consultation term.
556. Ensuring the model term is not disallowable would also avoid the risk of the model
term being disallowed after an enterprise agreement has proceeded to a vote by
employees on the basis that the model term determined by the FWC would be included
in it. Were this to occur, questions as to genuine agreement may arise on the basis that
an important term of the agreement would not be included. This situation may also
cause commercial uncertainty and frustrate bargaining processes.
Item 63: After subsection 616(4)
557. Section 616 sets out the FWC's functions that must be performed by a Full Bench of
the FWC. This item would insert new subsection 616(4A) to require that any
determination of a model term under new subsections 202(5), 205(3), 737(1) or
768BK(1A) be made by a Full Bench. This would ensure consistency with the manner
in which modern awards are created.
Item 64: Section 737
558. This item would repeal and substitute a new section 737.
559. The existing requirement that the FW Regulations prescribe the model dispute
resolution term for enterprise agreements in section 737 would be replaced with a
requirement in new subsection 737(1) that the FWC determine the model term.
560. New subsection 737(2) sets out what is required of the FWC when determining the
model term.
561. New paragraph 737(2)(a) would require the model term determined by the FWC to
satisfy the requirements of existing subsection 186(6). This subsection requires an
enterprise agreement to include a term setting out the process for settling disputes
arising under the agreement or the National Employment Standards (NES). The term
must also permit the representation of employees throughout that process.
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562. New paragraph 737(2)(b) would provide a list of matters that the FWC must take into
account in determining the model term, in addition to any other matters the FWC
considers relevant.
563. New paragraph 737(2)(b) would provide a list of matters that the FWC must take into
account in determining the model term, in addition to any other matters the FWC
considers relevant.
564. The FWC would be required to consider whether the model term generally accords with
comparable terms in modern awards. New subparagraph 737(2)(b)(i) would require
consideration of common features of dispute resolution terms in modern awards, rather
than a detailed examination of all dispute resolution terms found in awards, or the
selection of a single dispute resolution term to be used as a comparator. This would
promote consistency across enterprise agreements and modern awards.
565. New subparagraph 737(2)(b)(ii) would require the FWC to take into account what it
considers is 'best practice' workplace relations. This would allow the FWC to exercise
its expert judgement, supplemented by submissions, to determine a model term that
represents the current best approach.
566. New subparagraph 737(2)(b)(iii) would require the FWC to consider whether all
persons and bodies have been provided with a reasonable opportunity to make
submissions on the determination of the model term. This would ensure that there is
appropriate public consultation prior to determining the model term.
567. New subparagraph 737(2)(b)(iv) would require the FWC to take into account the
operation of existing subsections 739(3)-(6) and 740(3)-(4). These subsections limit
the powers of the FWC, or the person empowered to arbitrate a dispute under the
dispute resolution term, to dealing with the dispute only in the manner permitted by the
dispute resolution term, and prohibit a decision being made by the FWC or the person
that is inconsistent with the FW Act or a fair work instrument that applies to the parties.
568. New subparagraph 737(2)(b)(v) would require the FWC to take into account the object
of the FW Act.
569. Legislative note 1 draws attention to the requirement that a Full Bench is required to
make the model dispute resolution term. This requirement would be inserted into the
FW Act by item 63.
570. Legislative note 2 points to subsection 33(3) of the AI Act for variations of a
determination. This subsection provides that, in summary, where an Act provides a
power to make an instrument of legislative character, that power includes the power to
vary such an instrument. This would allow the FWC to update the model term from
time to time in line with developments in workplace relations practices.
571. New subsection 737(3) would provide that the model term would be a legislative
instrument that could not be disallowed by Parliament. As Australia's independent
workplace relations tribunal, the FWC has expert and technical knowledge of
contemporary workplace relations and operates independently of political processes.
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The determination would be required to be made following consideration of
submissions by the public, thereby mandating public participation in the process. The
model term would play a limited role in determining rights and obligations, as it will
only apply where it is agreed to by the parties, or where the FWC accepts an
undertaking from the employer that the model term will apply under existing paragraph
190(1)(b).
Item 65: Section 768BK (after the heading)
Item 66: Subsection 768BK(1)
Item 67: After subsection 768BK(1)
572. Part 6-3A of the FW Act provides for the transfer of State public sector employees to
the national system. This might take place when, for example, a State enterprise is sold
to a national system employer. Part 6-3A was modelled on Part 2-8 of the FW Act,
which provides for transfers of employees between national system employers.
573. When the employees transfer from State public sector employment to national system
employment, a copied State instrument governs the terms and conditions under which
the employees are employed. The instrument is the same as the State award or
agreement which applied to the employees immediately before moving into the national
system.
574. Existing section 768BK provides that if the copied State instrument does not provide a
procedure for settling disputes about matters arising under the instrument, then the
model term prescribed by the FW Regulations applies.
575. Item 65 would insert a new subheading into existing section 768BK as a guide for the
reader consequential to item 67 inserting new subsection 768BK(1A) in the FW Act.
576. Items 66 and 67 would amend existing subsection 768BK(1) to provide that a copied
State instrument for a transferring employee that does not include a dispute settlement
procedure term will be taken to include the model term determined by the FWC
pursuant to new subsection 768BK(1A).
Item 68: Subsection 768BK(2)
Item 69: Subsection 768BK(2)
577. As copied State instruments can either be based on a State award or an agreement made
under State law, existing subsection 768BK(2) clarifies that the model term prescribed
for either class of instrument can be the same or different.
578. Items 68 and 69 do not change the substance of existing subsection 768BK(2). The
items would amend subsection 768BK(2) to reflect the amendments made by items 66
and 67.
Item 70: At the end of section 768BK
579. This item would insert a new subsection 768BK(3) into the FW Act. The new
subsection would set out the matters the FWC must take into account when determining
the model dispute settlement term.
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580. New paragraph 768BK(3)(a) would require the FWC to consider whether the model
term generally accords with comparable terms in modern awards. The new paragraph
would require consideration of common features of dispute settlement terms in modern
awards, rather than a detailed examination of all dispute settlement terms found in
awards, or the selection of a single dispute settlement term to be used as a comparator.
581. New paragraph 768BK(3)(b) would require the FWC to take into account what it
considers is 'best practice' workplace relations. This would allow the FWC to exercise
its expert judgement, supplemented by submissions, to determine a model term that
represents the current best approach.
582. New paragraph 768BK(3)(c) would require the FWC to consider whether all persons
and bodies have been provided with a reasonable opportunity to make submissions on
the determination of the model term. This would ensure that there is appropriate public
consultation prior to determining the model term, and in applying the other factors set
out in new subsection 768BK(3).
583. New paragraph 768BK(3)(d) would require the FWC to consider whether the model
term is consistent with the operation of existing subsections 739(3)-(6) and 740(3)-(4).
These subsections limit the powers of the FWC, or the person empowered to arbitrate a
dispute under the dispute settlement term, to dealing with the dispute only in the
manner permitted by the dispute settlement term, and prohibit a decision being made by
the FWC or the person that is inconsistent with the FW Act or a fair work instrument
that applies to the parties.
584. New paragraph 768BK(3)(e) would require the FWC to take into account the object of
the FW Act.
585. Legislative note 1 draws attention to the requirement that a Full Bench is required to
make the model dispute settlement term. This requirement would be inserted into the
FW Act by item 63.
586. Legislative note 2 points to subsection 33(3) of the AI Act for variations of a
determination. This subsection provides that, in summary, where an Act provides a
power to make an instrument of legislative character, that power includes the power to
vary such an instrument. This would allow the FWC to update the model term from
time to time in line with developments in workplace relations practices.
587. New subsection 768BK(4) would provide that the model term would be a legislative
instrument that could not be disallowed by Parliament. As Australia's industrial
relations tribunal, the FWC has expert and technical knowledge of contemporary
workplace relations and operates independently of political processes. The
determination would be required to be made following consideration of submissions by
the public, thereby mandating public participation in the process. The model term
would play a limited role in creating rights or obligations in circumstances where a
copied State instrument does not contain a dispute settlement term.
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Part 5A--Intractable bargaining workplace determinations
Amendments to the Fair Work Act 2009
588. Part 5A would ensure that terms that are agreed at the time an application for an
intractable bargaining declaration is lodged, the time the intractable bargaining
declaration is made and at the end of any post-declaration negotiating period (if there is
one) must be included in an intractable bargaining workplace determination.
589. Part 5A would provide that the FWC cannot include in an intractable bargaining
workplace determination a term dealing with a matter still at issue which is less
favourable to employees, or employee organisations to be covered by the
determination, than a term dealing with the same matter in an enterprise agreement that
applies to an employee or employee organisation immediately before the determination
is made.
Item 70A: At the end of subsection 270(3)
590. This item would introduce a legislative note at the end of existing subsection 270(3), to
signpost that terms in an intractable bargaining workplace determination which deal
with matters still at issue must comply with new section 270A (refer item 70B).
Item 70B: After section 270
591. This item would insert new section 270A into the FW Act.
592. New section 270A would apply to an intractable bargaining workplace determination if,
immediately before the determination is made, an enterprise agreement (or multiple
enterprise agreements) applies to one or more employees who will be covered by the
determination.
593. New subsection 270A(2) would introduce a requirement that a term that the FWC is
required to include in a determination (because it deals with a matter still at issue at the
relevant time) must be not less favourable to employees or employee organisations than
a corresponding term in an enterprise agreement which applies to them immediately
before the determination is made and that deals with the matter.
594. New subsection 270A(3) would enable the FWC to assume that, if a particular term of a
workplace determination would be not less favourable to a class of employees than a
corresponding term in an existing enterprise agreement that applies to those employees,
the term of the workplace determination would be not less favourable to individuals
within that class. This assumption can be displaced by evidence to the contrary. New
subsection 270A(3) is modelled on existing subsection 193A(7) of the FW Act which
operates in relation to the application of the better off overall test.
595. New subsection 270A(4) would provide that the 'not less favourable test' in new
subsection 270A(2) would not apply to a term of an intractable bargaining workplace
determination that provides for a wage increase. The exclusion is not intended to
capture terms that provide for payment at a rate above the base rate of pay in particular
circumstances, such as terms dealing with penalty rates or allowances. Rather,
subsection 270A(4) is intended to apply only to terms dealing with the amount by
which the base rate of pay increases. For example:
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• a term would provide for a wage increase where it states that the base rate of pay
will increase by 3 per cent from 1 July 2023, or by $3 from 1 July 2023;
• a term would not provide for a wage increase where it states that the base hourly
rate from 1 July 2022 is $24, and the base hourly rate from 1 July 2023 is $27, or
that an employee is entitled to 175 per cent of the ordinary hourly rate for all work
performed on a Saturday.
596. The exclusion related to terms that provide for a wage increase is also not intended to
apply to terms which:
• are about how wage increases should be paid or how often,
• provide for wages to be salary sacrificed, or
• provide for other elements of pay such as allowances, overtime rates, shift loadings,
or other penalty payments.
597. The effect of subsection 270A(4) is that the amount by which wages increase year on
year will not need to be equal to or greater than increases included in previous
enterprise agreements. However, wage rates under an intractable bargaining workplace
determination must be not less favourable to employees than the relevant, existing
enterprise agreement.
Item 70C: Subsection 274(3)
598. This item would repeal existing subsection 274(3) and substitute it with a new
subsection 274(3) that defines an 'agreed term' for an intractable bargaining workplace
determination.
599. New subsection 274(3) would define agreed terms to be any terms that the bargaining
representatives for the proposed enterprise agreement had agreed should be included in
the enterprise agreement at any of three points in time:
• when the application for an intractable bargaining declaration is lodged,
• when the intractable bargaining declaration is made, and
• at the end of any post-declaration negotiating period, if there is one.
600. The provision is intended to operate cumulatively. Additional terms may become
'agreed terms' at each step. Once a term is an agreed term according to any of
paragraphs 273(3)(a)-(c), it remains an agreed term and cannot later become a term
dealing with a matter still at issue or be left out of the determination. It is intended that
this would narrow the matters still at issue at each stage.
601. Subsection 274(3) would ensure that bargaining representatives cannot retract their
agreement to proposed terms once an intractable bargaining declaration application is
made. If a bargaining representative sought to retract their agreement to a term at an
earlier stage or resisted agreeing to a term in an attempt to have the matter determined
by the FWC, the good faith bargaining requirements in existing section 228 may be
relevant. In determining which terms to include in a workplace determination, the Full
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Bench (under existing section 275 of the FW Act) must take into account factors
including whether the conduct of bargaining representatives was reasonable and the
extent to which bargaining representatives have complied with good faith bargaining.
Part 6--Closing the labour hire loophole
Amendments to the Fair Work Act 2009
602. Part 6 would insert new Part 2-7A into the FW Act. New Part 2-7A would relate to
various labour hire arrangements and provide for orders to be made regulating these
arrangements.
603. When an employer supplies one or more employees to perform work for a host
business, employees and unions would be able to apply to the FWC for a regulated
labour hire arrangement order. The FWC would be prohibited from making an order
unless it is satisfied that the performance of the work for the host is not or will not be
for the provision of a service, rather than the supply of labour. The FWC would also be
prohibited from making an order if satisfied that it was not fair and reasonable in all the
circumstances to do so, having regard to submissions from affected businesses and
employees. In determining whether making an order would not be fair and reasonable,
the FWC would be required to consider a range of factors including existing pay
arrangements, whether the performance of the work is for the provision of services
rather than the supply of labour, and the history of industrial arrangements applying to
the host and the employer.
604. If the FWC made the order, employers that supply labour to a host and are covered by
the order would generally be required to ensure that employees working as part of the
arrangement are paid no less than the rate at which they would be paid under the host
employer's enterprise agreement if they were directly employed (the protected rate of
pay). In this way, the orders would protect bargained rates in enterprise agreements that
host businesses have negotiated with their employees from being undercut by the use of
labour hire.
605. Once an order is made, host employers would be required to provide certain
information to employers supplying employees under the arrangement on request to
assist them in meeting their payment obligations.
606. Certain exemptions would be built into the framework, including where an employee
supplied under the arrangement is engaged for a short-term period or where a training
arrangement applies to the employee. The provisions also would not apply where the
host business is a small business employer as defined in the FW Act.
607. The provisions would be supported by an anti-avoidance framework to prevent
businesses from adopting certain practices with the intention of avoiding obligations
under new Part 2-7A.
608. The FWC would be able to resolve disputes about the operation of Part 2-7A, including
by mandatory arbitration. It would be able to determine an alternative protected rate of
pay for an employee supplied to work for a host employer where it would be
unreasonable for the employee's employer to pay the employee the protected rate of
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pay under Part 2-7A and there is an alternate employment instrument that applies to the
host employer or a related body corporate of the host employer.
Item 71: After paragraph 5(8)(a)
609. Section 5 sets out the content of Chapter 2 of the FW Act (Terms and conditions of
employment). This item would make a consequential amendment to include new
Part 2-7A (inserted by item 73) in the list of other terms and conditions for national
system employees.
Item 72: Section 12
610. Section 12 of the FW Act contains the Dictionary. This item would insert several new
definitions in section 12 for terms relied on in new Part 2-7A (inserted by item 73).
Those terms are:
• alternative protected rate of pay order, defined by reference to new
subsection 306M(2);
• arbitrated protected rate of pay order, defined by reference to new
subsection 306Q(1);
• covered employment instrument;
• host employment instrument, defined by reference to new subsection 306E(6);
• protected rate of pay, defined by reference to new section 306F;
• recurring extended exemption period, defined by reference to new
subsection 306K(2);
• regulated employee, defined by reference to new subsection 306E(5);
• regulated host, defined by reference to new section 306C; and
• regulated labour hire arrangement order, defined by reference to new
subsection 306E(1).
611. A reference to a covered employment instrument would include an enterprise
agreement, a workplace determination (as defined in section 12 of the FW Act), and a
determination under section 24 of the Public Service Act 1999 that applies to a class of
APS employees in an Agency (within the meaning of that Act).
612. It would also include an instrument made under any other law of the Commonwealth or
a State or a Territory that provides for the terms and conditions of employment for a
class of national system employees of the Commonwealth or a State or Territory, or of
an authority of the Commonwealth or of a State or Territory. This would include
instruments determining the terms and conditions of employment of relevant employees
made under Acts such as the Australian Federal Police Act 1979 or the Parliamentary
Service Act 1999.
613. This definition would ensure that the regulatory framework in new Part 2-7A would
apply in relation to workplaces covered by determinations or instruments other than an
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enterprise agreement, but which serve an equivalent purpose. The Part would apply in
relation to any determination or equivalent instrument that covers a class of employees,
including as amended after the provision would commence. Regulations may be made
to ensure that new Part 2-7A can apply to any other instrument relating to the
employment of a class of national system employees that is made under a
Commonwealth, State or Territory law that is not already covered by the wording of
this provision.
Item 72A: At the end of section 201
614. New subsection 201(5) would address circumstances where the FWC approves a new
enterprise agreement, where that enterprise agreement would become the host
employment instrument named in an existing regulated labour hire arrangement order
by operation of new section 306EB. This would require that when approving a new
enterprise agreement in these circumstances, the FWC must note in its decision to
approve the enterprise agreement that it will be the host employment instrument, for
that order.
615. This provision would be relevant where an enterprise agreement that applies to a
regulated host is specified as the host employment instrument in a regulated labour hire
arrangement order, and the new enterprise agreement being approved by the FWC
would replace that enterprise agreement.
616. This provision would operate in conjunction with new subsection 306EC(3), which
would require the FWC to give written notice to employers covered by a regulated
labour hire arrangement order of the approval of the host's new enterprise agreement,
where the new enterprise agreement would become the host employment instrument for
the purposes of that order. The FWC would also be required to notify relevant
employers of the effect of the approval of the new enterprise agreement in relation to
the regulated labour hire arrangement order.
Item 73: After Part 2-7
617. This item would insert new Part 2-7A, relating to regulated labour hire arrangement
orders, into the FW Act, after existing Part 2-7.
618. The Guide to Part 2-7A provides that Division 2 deals with certain payments relating to
termination of employment and the continued application of regulated labour hire
arrangement orders in particular circumstances, in addition to alternative protected rate
of pay orders.
Division 1--Introduction
619. Division 1 would set out the introductory matters for Part 2-7A.
Section 306A Guide to this Part
620. New section 306A would set out the guide to Part 2-7A. This Part would regulate
certain labour hire arrangements with the intention of ensuring that employees working
for a host business as part of a labour hire arrangement are paid for the work they
perform in line with the terms of the host business' covered employment instrument.
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The guide would provide that the new Part relates to regulated labour hire arrangement
orders. This includes the making of such orders by the FWC and the obligations of
employers and regulated hosts covered by such orders. The Part deals with the making
of alternative protected rate of pay orders by the FWC, disputes arising under the Part,
and prohibiting avoidance behaviour.
Section 306B Meanings of employee and employer
621. New section 306B would provide that, for the purposes of Part 2-7A, employee means
a national system employee and employer means a national system employer. These
terms are defined in sections 13 and 14 of the FW Act respectively.
Section 306C Meaning of regulated host
622. New section 306C would provide the definition of 'regulated host' and lists the bodies
and persons that would be defined as a 'regulated host'. The list would reflect the
entities covered by the definition of national system employer set out at section 14 of
the FW Act, as extended by sections 30D and 30N in States that have referred power
over workplace relations to the Commonwealth. The provision would rely on the same
constitutional powers that underpin the definition of national system employer, with
some alteration given host businesses are not the employers of regulated employees.
The Part would regulate the conduct of those persons and bodies in relation to their role
in hosting a person who is not their employee.
Section 306D References to kinds of work and work performed for a person etc.
623. New subsection 306D(1) would provide that, for the purposes of Part 2-7A, a reference
to work of a kind includes a reference to work that is substantially of that kind. This
would clarify that the provisions of this Part are not intended to be read narrowly or
limited to a specific kind of work. Labour hire arrangements can be complex and
involve multiple parties and agreements.
624. New subsection 306D(2) would provide that for the purposes of Part 2-7A, a reference
to work performed for a person includes a reference to work performed wholly or
principally for that person, for an enterprise carried on by the person, and for a joint
venture or common enterprise engaged in by the person and one or more other persons.
This would not expand the scope of the provisions in Part 2-7A but rather clarify the
intention of new section 306D that new Part 2-7A is intended to take into account the
various circumstances in which labour hire arrangements may be used, including where
labour hire employees are provided to work for the benefit of a joint venture or
common enterprise between a number of parties. In those circumstances, the regulated
host may be determined to be one of the parties to the joint venture or common
enterprise.
625. For the purposes of this Part, the terms 'joint venture' and 'common enterprise' are
intended to be read broadly and would include arrangements where there is a
contractual agreement between parties to participate in a common project, and where
the parties act together to incorporate a company for the purposes of a joint project.
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626. To further clarify this point, new subsection 306D(3) would provide that when
determining whether work is performed for a person by an employee of an employer it
does not matter whether there is or will be any agreement between the person and the
employer relating to the performance of the work. That is, for the purposes of
determining which party should be named the 'regulated host' for the purposes of an
order made under the new Part, it is not a requirement that there be a direct agreement
(or any agreement) between the party receiving the benefit of the work, and the
employer employing workers to perform the work.
Division 2--Regulated labour hire arrangement orders
627. Division 2 would set out:
• when the FWC may make a regulated labour hire arrangement order
(Subdivision A, new section 306E);
• the obligations of employers and regulated hosts when there is a regulated labour
hire arrangement order in effect (Subdivision B, new sections 306F-306H);
• the details of short-term arrangements (Subdivision C, new sections 306J-306L);
and
• the details of alternative protected rate of pay orders (Subdivision D, new
sections 306M-306N).
Subdivision A--Making regulated labour hire arrangement orders
Section 306E FWC may make a regulated labour hire arrangement order
628. New section 306E would provide for the circumstances in which the FWC may make a
regulated labour hire arrangement order. The effect of the order would be to apply the
obligations in Part 2-7A to a labour hire arrangement. If no order is made, hosts and
employers would have no obligations under Part 2-7A, other than those imposed by the
anti-avoidance provisions in Division 4.
629. Regulated labour hire arrangement order: New subsection 306E(1) would provide
that the FWC must make such an order if satisfied of certain matters.
630. New paragraph 306E(1)(a) would ensure that an application may be made where an
employee is supplied, either directly or indirectly, to perform work for the regulated
host, irrespective of the contractual or other arrangements between the employer and
the regulated host or other associated entities of the regulated host.
631. As an example, this provision would provide that the FWC may make an order where it
is satisfied that the employer would supply labour to a regulated host who is party to a
joint venture, whether or not the agreement for the supply of labour is made with the
regulated host or another party to the joint venture.
632. New paragraph 306E(1)(b) would provide that in order to be able to make an order, the
FWC must be satisfied that a covered employment instrument that applies to the
regulated host would apply to the employees being supplied, or to be supplied, if the
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host were to employ the employees to perform work of the kind being, or to be,
performed.
633. New paragraph 306E(1)(c) would provide that the FWC cannot make such an order
where the regulated host is a small business employer. This would reduce the
administrative burden on small businesses. It would also allow for labour hire workers
employed by small businesses to be covered by a regulated labour hire arrangement
order where they are working for a regulated host who is not a small business. Small
business employer is defined in section 23 of the FW Act.
634. New subsection 306E(1A) would provide that despite subsection 306E(1), the FWC
must not make a regulated labour hire arrangement order unless it is satisfied that the
performance of the work is not or will not be for the provision of a service, rather than
the supply of labour. In order to determine whether an arrangement is for the provision
of a service rather than the supply of labour, the FWC would be required to have regard
to the matters listed in new subsection 306E(7A). These matters are whether and to
what extent:
• the employer is involved in matters relating to the performance of the work
(paragraph 306E(7A)(a));
• the employer or a person acting on their behalf directs, supervises or controls the
employees when they perform work for the host (paragraph 306E(7A)(b));
• the employees use or will use systems, plant or structures of the employer to
perform the work (paragraph 306E(7A)(c));
• the employer or another person is or will be subject to industry or professional
standards or responsibilities in relation to the employees (paragraph 306E(7A)(d));
and
• the work is of a specialist or expert nature (paragraph 306E(7A)(e)).
635. To the extent that each of the factors in paragraphs 307E(7A)(a) to (e) are demonstrated
by submissions and evidence of the parties to the application for an order - for instance,
that an employer directs, supervises or controls work being performed for the host -
this would weigh in favour of the FWC finding that the arrangement is for the provision
of a service rather than the supply of labour.
636. Not all the factors listed would need to be satisfied for the FWC to find that an
arrangement is for the provision of a service, however the FWC must consider each of
them. Where the parties do not put forward any evidence or submissions to the FWC
about one or more of these factors, it would be sufficient for the FWC to note this as
part of their consideration pursuant to subsection 307E(7A).
637. For the purposes of these new subsections, higher education qualifications would not be
required for work to be considered specialist or expert. For example, employees of a
catering service employer contracted to provide catering for a regulated host whose
primary business is not the provision of catering services may be found to be
undertaking work of a specialist or expert nature, even where the host's covered
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employment instrument provides for the performance of work of the type provided by
the catering service provider.
638. These provisions allow the FWC to assess the reality of the arrangement to determine
whether it is, or is not, for the provision of a service and then decide, as a jurisdictional
question, whether it is prevented from making an order.
639. New subsection 306E(2) would provide that despite subsection (1), the FWC must not
make the order if it is satisfied that it is not fair and reasonable to do so in the
circumstances, having regard to considerations arising under subsection (8). As part of
an order under this provision, the FWC may consider and jointly make other orders
pursuant to applications made under Part 2-7A relating to the regulated labour hire
arrangement. For example, if a party considered that an alternative protected rate of pay
should apply in relation to an employee, if the FWC were to make a regulated labour
hire arrangement order, the FWC could deal with that question by making an order
under new section 306M at the same time as it considered whether to make the
regulated labour hire arrangement order (see new paragraph 306M(1)(c)).
640. Subsection 306E(3) would provide that the supply of employees to the regulated host
can be the result of one or more agreements, and that those agreements can be between
parties that are not the regulated host or the employer. This would recognise that
regulated labour hire arrangement orders can cover complex arrangements with
multiple participating parties and agreements. Labour hire employees can be supplied
directly from the employer to the regulated host or indirectly through multiple
agreements and entities. Where the result of those agreements is that an employer
provides employees to perform labour for the regulated host, the arrangement would
satisfy the criterion in new paragraph 306E(1)(a).
641. New paragraph 306E(3)(c) would provide that a regulated labour hire arrangement
order can apply even where the regulated host and employer are related bodies
corporate. This would capture circumstances where a company is established to employ
employees and provide them to a related body corporate host business under a labour
hire arrangement where there is a covered employment instrument applying to the
regulated host. A note to the provision would clarify that where related bodies
corporate with different branding do not provide labour to one another, the FWC would
not make a regulated labour hire arrangement order. This is because the obligations
imposed as a result of a regulated labour hire arrangement order only apply where one
employer provides labour to another.
642. New subsection 306E(4) would clarify that the basis on which particular employees are
engaged as part of a labour hire arrangement is not relevant to the consideration under
new paragraph 306E(1)(b). This would address, for example, circumstances where
employees are or would be employed as casual employees and the covered employment
instrument that applies to the regulated host does not provide for casual employment.
Where that instrument applies to work of the kind to be undertaken by the employees as
part of the labour hire arrangement, the requirements of new paragraph 306E(1)(b)
would be satisfied.
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643. Regulated employee and host employment instrument definition: New
subsection 306E(5) would define the term 'regulated employee' as an employee
supplied, or who will be supplied, to perform work for a regulated host.
644. New subsection 306E(6) would define the term 'host employment instrument' as the
covered employment instrument relevant to a regulated labour hire arrangement order,
referred to in paragraph 306E(1)(b).
645. Who may apply for an order: New subsection 306E(7) would list the parties who can
apply to the FWC for a regulated labour hire arrangement order.
646. Matters to be considered if submissions are made: New subsection 306E(8) would
set out matters that the FWC may consider when deciding whether it is not fair and
reasonable in all the circumstances to make a regulated labour hire arrangement order
for the purposes of new subsection 306E(2). The FWC is only required to consider
matters listed in new subsection (8) where the parties have made submissions on these
matters (new subsection 306E(2)).
647. New paragraph 306E(8)(a) would provide that the FWC may consider the pay
arrangements that apply to employees of the regulated host (or its related bodies
corporate). The FWC may consider whether the host employment instrument applies
only to a particular class of employees, and whether there would be employees of that
class performing work as part of the regulated labour hire arrangement. It may consider
whether the host has ever actually engaged employees under its employment instrument
to perform work of the same classification as would be performed under the labour hire
arrangement. This may assist the FWC in determining the relevant rate of pay that
would apply to the regulated employees, were an order made. The FWC may also
consider the relevant rate of pay that would apply under a regulated labour hire
arrangement order in determining if it is fair and reasonable to all parties to make the
order.
648. New paragraph 306E(8)(c) would provide that the FWC may consider the history of
industrial arrangements applying to the regulated host and the employer. This would
include considering previous regulated labour hire arrangement orders and bargaining
related to any covered employment instrument applying to each party. It may also
include how workers have been previously engaged by a regulated host to perform
certain work.
649. New paragraph 306E(8)(d) would provide that the FWC may also consider any
corporate relationship between the regulated host and the employer, including whether
they are related bodies corporate, engaged in a joint venture or a common enterprise.
650. New paragraph 306E(8)(da) would provide that the FWC may consider the nature of
the named host's interest in the joint venture or common enterprise. For example,
where the host's interest in the joint venture or common enterprise is minor, or the host
does not otherwise supply labour for the joint venture, these are intended to weigh
against the FWC considering it would be fair and reasonable to make an order treating
the named entity as the regulated host. However, where the named host is a meaningful
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participant in the joint venture,9 and/or supplies labour of the same kind as would be
covered by the order to the joint venture, this would weigh in favour of the FWC
finding that it is fair and reasonable to make an order that names the named party as the
regulated host.
651. New subparagraph 306E(8)(da)(ii) would also require the FWC to consider the pay
arrangements that apply to parties in the joint venture or common enterprise. The FWC
may consider whether parties to the joint venture have employment instruments that
apply to a particular class of employees, and whether there would be employees of that
class performing work as part of the joint venture or common enterprise. Where labour
provided as part of the labour hire arrangement is of a similar type to the work
performed by those employees or where it would otherwise be covered by the
employment instrument of a party to the joint venture, this may weigh in favour of that
party being named the regulated host on the face of an order.
652. The effect of these provisions would be to permit the FWC to clarify which party
should be named as the regulated host on the face of an order, where employees
perform work for a joint venture or common enterprise and multiple parties to that joint
venture or common enterprise benefit from the work. The FWC must consider fairness
and reasonableness in coming to any decision. Where appropriate, this would permit
employees providing work to a joint enterprise to be paid at the same rate as other
employees working for that enterprise, where those employees are undertaking work
that is similar or the same.
653. New paragraph 306E(8)(e) would provide that the FWC may consider the terms and
nature of the labour hire arrangement, including how long it will operate for, the
location of the work being performed, the industry the work is performed in and how
many employees are engaged to perform work for the regulated host as part of the
arrangement.
654. Finally, new paragraph 306E(8)(f) would provide that the FWC would also be able to
have regard to any other matter it considers relevant.
655. What an order must specify: New subsection 306E(9) would provide a list of matters
that must be specified in a regulated labour hire arrangement order. This would include:
• the parties covered by the order;
• the relevant host employment instrument; and
• the date the order commences.
656. Where the order is required to list the regulated employees covered by the order, it is
not required to list each employee, but rather the class of employees that would be
participating in the regulated labour hire arrangement. The orders are intended to be
broad and to cover employees engaged to work as part of the regulated labour hire
9
For example, has a significant share compared to other joint venturers, but not where a minority party is not
simply providing a financial contribution in return for a share of the joint venture's output (for example, a share
of the output in proportion to the share of the joint venture by way of an off-take arrangement).
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arrangement after the order is made. An order referenced in this section is an order
made under the relevant section.
657. New note to subsection 306E(9) would clarify that for the purposes of paragraphs (b)
and (c), an order may specify additional employers and regulated employees of those
employers that may be covered by a determination made under new section 306EA.
658. What an order may specify: New subsection 306E(10) would provide that a regulated
labour hire arrangement order may (but need not) specify an end date for the order,
when it will cease to be in force. A regulated labour hire arrangement order could also
be varied or revoked under existing section 603.
Section 306EA Regulated labour hire arrangement order may cover additional arrangements
659. Subsection 306EA(1) would allow the FWC, of its own motion or upon a further
application, to join another employer or employers (the additional employers) to an
application for a regulated labour hire arrangement order. Before joining additional
employers to an application, the FWC must be satisfied that the additional employers
also, or will also, provide employees, and that the employees of the additional
employers carry out, or will carry out, the same or similar work to the employees of the
employer already named in the application for the regulated host.
660. New subsection 306EA(2) would provide that in addition to the FWC being able to
make a determination under this section on its own motion, an application could be
made by any of the following parties:
• the original applicant for the regulated labour hire arrangement order;
• any other party who could have made an application for the regulated labour hire
arrangement order. For example, this would include the host, an employee of either
the employer supplying labour or of the host receiving the labour, or an employee
organisation entitled to represent such an employee; and
• any potential additional employer that could be joined to the application, any
employee of that employer, or an employee organisation entitled to represent any
employees of that employer.
661. If the FWC exercises its power to join additional employers to the application, and
before making a regulated labour hire arrangement order, new subsection 306EA(3)
would require the FWC to seek the views of the additional employers, the employees of
the additional employers, and any employee organisation entitled to represent the
industrial interests of the additional employers' employees.
662. Subsection 306EA(4) would provide that, if the FWC decides to make an order under
the original application, then, unless either of subsections 306EA(5) or (6) apply, the
FWC may also decide to include any or all of the additional employers, and any or all
of their employees, as named parties within that order.
663. New subsection 306EA(5) would provide that the FWC must not include the additional
employers or additional employees as parties named in the order, to whom the order
applies, unless it is satisfied that:
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• the additional employers provide or will provide the additional employees to the
regulated host, and the additional employees carry out or will carry out the same or
similar kind of work as the employees already named in the application;
• the host's employment instrument would be the covered employment instrument in
respect of the additional employees; and
• the work being carried out by the additional employees would not be for the
provision of a service, rather than the supply of labour, taking into account the
matters at subsection 306E(7A) in relation to the additional employer and additional
regulated employees.
664. The FWC also must not make the order in respect of the additional employers and
additional regulated employees if satisfied that it is not fair and reasonable to do so,
taking into account the submissions of the additional employers and additional
regulated employees, and the factors in subsection 306E(8).
Section 306EB Application of regulated labour hire arrangement order to new covered
employment instrument
665. New section 306EB would cover circumstances where an employment instrument
(including an enterprise agreement) of a regulated host is referred to as the covered
employment instrument for the purposes of a regulated labour hire arrangement order,
and a new covered employment instrument is made that applies to the host and its
employees. In such a circumstance, the amendments would provide that the order will
be taken to refer to the new covered employment instrument from the time the new
instrument starts to apply to the host's employees.
Section 306EC Notification requirements in relation to new covered employment instrument
666. New subsections 306EC(1) and 306EC(2) would require the regulated host to provide
written notice to the employer or employers covered by the order that the new
employment instrument has been approved (whether by its employees or otherwise) and
inform the employer or employers of the effect of the new instrument. This provision is
a civil remedy provision.
667. New subsection 306EC(3) would further provide that, where the FWC approves an
enterprise agreement that will replace a covered employment instrument listed in a
regulated labour hire arrangement order, the FWC must inform the employers covered
by the order that the enterprise agreement has been approved, and the effect of approval
of the enterprise agreement in relation to the order. Subsection 306EC(3) would operate
in conjunction with the proposed amendment to insert a new subsection 201(5) of the
FW Act, which would require the FWC to specify in its approval decision that the
regulated labour hire arrangement order would apply in relation to the newly approved
enterprise agreement.
Section 306ED Varying regulated labour hire arrangement order to cover new employers
668. New subsection 306ED(1) would apply where there is a regulated labour hire
arrangement order either in force or made but not yet in force between a regulated host
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and one or more employers, and the host enters into an arrangement with one or more
other employers not already covered by the order to supply employees to perform work
of the kind being provided by the employer already covered by the order. This may
occur in the ordinary course of business, for example, where the regulated host puts the
supply of labour services out to tender.
669. In these circumstances, new subsection 306ED(2) would require the host to apply to the
FWC for an order to vary the regulated labour hire arrangement order to cover the new
employers, as soon as practicable after they become aware that a new employer is to
supply regulated employees in the manner described in subsection 306ED(1). This
provision would be a civil remedy provision.
670. New subsection 306ED(3) would provide that a regulated host is not permitted to
discontinue an application brought under subsection 306ED(2) under section 588
(which relates to discontinuing applications) unless the host will no longer be engaging
a new employer to provide employees to perform work of the kind covered by the
regulated labour hire arrangement order.
671. New subsection 306ED(4) would require the host to notify the new employer engaged
to provide labour to the regulated host in writing that the host has made the variation
application, and that the regulated labour hire arrangement order would apply to the
new employer and their employees on an interim basis until the FWC makes a decision
on the variation application. The host would be required to so notify the new employer
as soon as possible after the variation application is made. This provision would be a
civil remedy provision.
672. New subsection 306ED(5) would provide that the FWC must take all reasonable steps
to make a decision on the variation application before the new employer supplies any
employees to the regulated host to commence work.
673. New subsection 306ED(6) would provide that the FWC must make the variation order
if the host and the new employer inform the FWC that they agree to the order being
made.
674. New subsection 306ED(7) would provide that, subject to requirements in subsections
306ED(8) and (9), the FWC must also make the variation order if it is satisfied of the
matters referred to in subsection 306E(1) in relation to the regulated host, the new
employer, and employees of the new employer engaged to supply labour for the
purposes of the order.
675. New subsection 306ED(8) would provide that the FWC must not make a variation
order under subsection (7) unless it is satisfied that the performance of the work is not
or will not be for the provision of a service, rather than the supply of labour, having
regard to the matters referred to in subsection 306E(7A).
676. New subsection 306ED(9) would provide that the FWC must not make the variation
order if it is satisfied that it is not fair and reasonable in all the circumstances to make
the variation, having regard to any matters referred to in subsection 306E(8) in relation
to which parties have made submissions.
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677. New subsection 306ED(10) would provide that the variation order would come into
effect on a day specified in the order.
678. New subsection 306ED(11) would provide that, if the FWC does not decide whether to
make the variation order before the new employer supplies employees to the regulated
host, the regulated labour hire arrangement order is taken to apply to the new employer
and employees it supplies to the host on an interim basis from the time the application
is made, until it is determined. During this time, the new employer will be subject to the
requirements of the existing order in relation to employees supplied to work for the host
in respect of work of a type covered by the order, including the requirement to pay
those employees the protected rate of pay in respect of that work.
Section 306EE Notifying tenderers etc. of regulated labour hire arrangement order
679. New subsection 306EE(1) would provide that the provision applies where a host is
covered by a regulated labour hire arrangement order, and a tender process is conducted
by or on behalf of a host, or in respect of a joint venture or common enterprise to which
the host is a party. The tender process must be in respect of work that is the subject of
an order, where successful tenderers to that process would become covered by that
order by operation of new section 306ED.
680. New subsection 306EE(2) would provide that the host conducting the tender process
must advise all of the tenderers for the supply of labour, from the start of the tender
process, that the regulated labour hire arrangement order may apply to the successful
tenderer, and that they could be required to pay the protected rate of pay to their
employees. This provision would be a civil remedy provision. In relation to this
requirement, new subsection 306F(3A) described below would provide that an
employer would not be subject to a civil penalty if they pay regulated employees less
than the protected rate of pay, where the host was required to notify them as a tenderer
under subsections 306EE(2) or (3), but failed to do so.
681. New subsection 306EE(3) would provide that the host must, as soon as practicable after
the end of the tender process, advise the successful tenderer or tenderers in writing that:
• the host is required to make an application pursuant to subsection 306ED(2);
• the effect of subsection 306ED(11) in relation to the application; and
• that if the FWC decides to vary the regulated labour hire arrangement order under
section 306ED to cover those employers, and the order is in force or would come
into force, the employers would be required to pay their employees who perform
work for the regulated host in accordance with Part 2-7A at the protected rate of
pay.
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Subdivision B--Obligations of employers and regulated hosts etc. when a regulated labour
hire arrangement order is in force
Section 306F Protected rate of pay payable to employees if a regulated labour hire
arrangement order is in force
682. Application of section: Section 306F would apply where there is a regulated labour
hire arrangement order in force.
683. Employer must not pay less than the protected rate of pay: Subsection 306F(2)
would require an employer covered by a regulated labour hire arrangement order to pay
regulated employees no less than the protected rate of pay in connection with the work
performed under the arrangement. This is a civil remedy provision.
684. The obligation to pay no less than the protected rate of pay requires employers to
ensure that the total overall amount paid to the regulated employee is no less than the
protected rate of pay. In accordance with the definition of protected rate of pay set out
in subsections (4)-(9), it does not:
• require a strict line-by-line comparison of entitlements;
• require the application of entitlements from the host instrument to the regulated
employees;
• require all employees to be paid the same amount, irrespective of their length of
service, skills or experience, unless this is also a requirement of the host's covered
employment instrument; or
• prevent the regulated employee being paid more than the protected rate of pay, if,
for example, their employer's enterprise agreement is more generous than the host's
agreement.
685. That is, if the full rate of pay that would have been payable to the regulated employee if
they were directly employed by a host for a particular period is $1,000, the only
obligation of the employer is to pay that employee at least $1,000.
686. The obligation to pay the protected rate of pay extends to periods of leave a regulated
employee takes during a placement with a regulated host covered by a regulated labour
hire arrangement order.
687. Exception: New subsection 306F(3) would set out an exception to the obligation to pay
no less than the protected rate of pay at subsection 306F(2). The subsection would
provide for circumstances where the protected rate of pay is not paid because the
employer reasonably relies on information provided by the regulated host as to how the
protected rate of pay should be correctly calculated and the information provided by the
regulated host is incorrect. In this circumstance, the employer would not be exposed to
a civil penalty for failing to comply with new subsection 306F(2). This would protect
employers from a penalty that could arise from circumstances that are outside of their
control. Given the serious consequences for employees should this situation arise,
employers should take careful steps to ensure that the protected rate of pay is properly
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calculated and that the regulated host has provided them with any necessary
information to allow correct calculation of the protected rate of pay.
688. New subsection 306F(3A) would provide that an employer would not contravene the
requirement to pay the protected rate of pay in subsection 306F(2) if they are required
to pay the protected rate of pay on an interim basis because a variation application has
been made but they have not been notified by the regulated host of the variation
application or because the host did not comply with their obligations under new
subsections 306EE(2) and (3). The intention of this provision is to prevent employers
being exposed to a civil penalty where they were not notified of their obligations to pay
the protected rate of pay to employees.
689. Meaning of protected rate of pay: New subsection 306F(4) would define 'protected
rate of pay' as the full rate of pay that would be payable to the employee if the host
employment instrument covered by the regulated labour hire arrangement order were to
apply to the employee. This provision would adopt the definition of 'full rate of pay' in
existing section 18. The protected rate of pay would accordingly include loadings
(including annual leave loading), allowances, overtime or penalty rates, incentive-based
payments or bonuses and any other separately identifiable amounts.
690. New subsection 306F(5) would clarify how the protected rate of pay should be
calculated for casual employees where the host employment instrument either does not
provide for casual employment, or does not provide for casual employees to undertake
work of the relevant kind the casual employee is engaged to perform. The provision
would provide that the protected rate of pay for casual employees in this circumstance
is the full rate of pay that would be payable if the employee were engaged other than as
a casual employee under the host employment instrument, and the base rate of pay were
increased by an additional 25 per cent. This increase to the base rate of pay is intended
to reflect the casual loading rates. This provision would ensure that casual employees
are not prevented from receiving the protected rate of pay for their work for a regulated
labour host, including where casual employment is not specifically provided for in the
host employment instrument.
691. New subsection 306F(6) would address circumstances where the employer mentioned
in subsection 306F(1) is only a national system employer because of section 30D or
30N (which extend the meaning of national system employer in relation to state
referrals of power). The new subsection would provide that, despite subsections (4) and
(5), the protected rate of pay for regulated employees in this circumstance would not
include any amount that relates to an excluded subject matter within the meaning of
subsection 30A(1) or 30K(1). Amounts relating to excluded subject matters for the
purposes of this subsection may include long service leave, leave for victims of crime
and jury or emergency service leave.
692. New subsections 306F(7) and (8) would set out how the protected rate of pay would be
calculated for employees who are pieceworkers for the purposes of existing
paragraphs 16(2)(b) and 18(2)(b) respectively.
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693. New subsection 306F(9) would provide that the protected rate of pay for the purposes
of new subsection 306F(5) would not include paid leave entitlements that would apply
if the employee were engaged other than as a casual, unless the employee were
otherwise entitled to them. This subsection would clarify the operation of new
subsection 306F(5). This means, for example, that a casual would not be entitled to paid
annual leave because of any provision in Part 2-7A, but nothing in the Part would
prevent a casual employee being entitled to paid family and domestic violence leave as
this paid leave entitlement is extended to casual employees.
694. Requirement to pay no less than protected rate of pay applies despite other fair
work instruments etc.: New subsection 306F(10) would provide that new
subsection 306F(2) would apply irrespective of any provision of any fair work
instrument or covered employment instrument (other than an instrument made by the
FWC under the Part, including under section 306N or section 306Q) that applies to the
regulated employee or the regulated employee's contract of employment, that would
provide for a rate of pay for the work that is less than the protected rate of pay. The
intention of this provision is to ensure that regulated employees are remunerated at the
higher of any applicable rate of pay under a fair work instrument or relevant covered
employment instrument. Where the protected rate of pay is less than the amount of total
remuneration an employee receives, paying the employee as normal would comply with
both the obligation to pay at least the protected rate of pay, and the remuneration
obligations under the relevant industrial instrument.
Section 306G Exceptions from requirement to pay protected rate of pay
695. New section 306G would provide for circumstances where there is no requirement to
pay the protected rate of pay, despite a regulated labour hire arrangement order being in
force.
696. Training arrangements: New subsection 306G(1) would provide that there is no
requirement to pay the protected rate of pay where a training arrangement applies in
respect of a regulated employee. This provision is intended to apply to all workers
employed on an apprentice or trainee contract. This would reduce barriers to employers
providing training pathways to meet future skills demands. Training arrangement is
defined in the Dictionary at section 12.
697. Certain short-term arrangements: New subsection 306G(2) would provide for
circumstances in which there is no requirement to pay the protected rate of pay to a
regulated employee because the regulated employee performs work for the regulated
host during a short-term arrangement. Unless the FWC makes a determination
extending, removing or shortening this exempt period, the exemption period will
generally be where an employee performs work for a period of three months or less.
This exception would recognise that businesses may need to respond quickly to short-
term increases in demand for services, or to rapid deadlines. The exception would
reduce barriers to rapidly increasing a workforce to satisfy surges in demand over a
short-term period. Employers may need to engage employees for short-term periods to
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back fill positions for employees on leave or who are unwell, or to respond to a
temporary surge in demand. Employers may have a discrete role or task that needs
completion in the short term and may choose to engage employees through a labour
hire agreement to meet that requirement. Employers may need to engage labour hire
employees while they conduct a formal hiring process. In these circumstances, the
provision would facilitate the employers' need to respond rapidly to staffing
requirements by providing an exception to the requirements set out in this Part.
698. The exception would also act to protect employees by limiting the time the exception
can operate for. New subsection 306G(3) would provide that the exception to new
section 306F in relation to short-term arrangements would only apply until such time as
the agreement or agreements under which the regulated employee is engaged to work
are varied, or a new agreement or agreements are made that result in the employee
continuing to perform work of the kind for the regulated host for longer than the three
month period (or another exempt period as specified by a FWC determination under
new sections 306J or 306K). The requirement to pay the employee the protected rate of
pay would be enlivened from the date their contract is varied or a new contract is
entered into, that would require them to work for longer than the exempt period.
Section 306H Obligations of regulated hosts covered by a regulated labour hire arrangement
order
699. Application of this section: New section 306H would set out obligations of regulated
hosts covered by a regulated labour hire arrangement order.
700. Ability to request information regarding protected rate of pay: New
subsection 306H(2) would provide that where a regulated labour hire arrangement order
is in force and an employer does not have all the information required to work out the
protected rate of pay for work performed by a regulated employee for a regulated host,
the employer may request that the regulated host provide it with the information. The
subsection would allow employers to identify specific information which, if provided,
would allow them to accurately determine the protected rate of pay and request that the
regulated host or proposed regulated host provide it. It would also allow employers to
request that regulated hosts provide information such as policies relating to how rates of
pay are calculated or how a host employment instrument applies.
701. New subsection 306H(3) would provide that, if an employer makes a request for the
purposes of subsection 306H(2), the regulated host must comply with the request as
soon as reasonably practicable after it is made, and within a period that allows the
employer to comply with its obligations to pay the protected rate of pay to its
employees in a timely manner. This subsection would be a civil remedy provision.
702. This information could include documents, policies, emails or records in any form
detailing how a regulated host applies the terms of the host employment instrument to
certain classes of employee (whether in practice, or in theory if the regulated host has
not previously engaged employees under a certain classification). It may include a copy
of the host employment instrument that covers the class of work or class of employees
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covered by a regulated labour hire arrangement order. It may include information about
how a regulated host calculates, or would calculate, certain entitlements under the
relevant host employment instrument or how it determines or would determine an
employee's classification and rate of pay for certain work based on their previous level
of experience. The obligation to respond to an employer's request could also extend to
the creation of documents that detail how the protected rate of pay should be calculated,
if no documents to this effect were available, or if the relevant documents were
considered to be commercially sensitive.
703. Manner of complying with request: New subsection 306H(4) would provide that a
regulated host could comply with a request under new subsection 306H(2) by different
methods.
• Regulated hosts could provide an employer with the relevant information that
would allow the employer to undertake their own calculations to determine the
protected rate of pay for the work.
• Alternatively, a regulated host may choose to undertake its own calculations as to
the correct protected rate of pay for each regulated employee for each pay period,
and to provide that information to the employer before the end of each pay period.
Regulated hosts might choose to undertake their own calculations, for example,
where information about how the protected rate of pay is calculated under their
policies is commercially sensitive, or where they are concerned that the correct
protected rate of pay will not otherwise be accurately calculated.
Subdivision C--Short-term arrangements
Section 306J Determination altering exemption period for short-term arrangements
704. Subdivision C would address short-term arrangements, including circumstances where
the FWC may make orders altering the exemption period of a short-term arrangement.
705. New section 306J would provide that the FWC can alter the duration of the three month
short-term exemption period provided for in new subsection 306G(2). On application,
the FWC could make a determination under this section if a regulated labour hire
arrangement order had been made (whether or not it is yet in force), or where an
application for such an order had been made but not finally determined.
706. The FWC could determine under this section that there was no exempt period for the
purpose of new section 306G, or that the exempt period provided for in that section is
extended or reduced to a period determined by the FWC. During the exempt period,
there would be no requirement for the employer to pay regulated employees the
protected rate of pay.
707. Parties would be able to apply for a determination that the short-term exemption period
is extended or reduced, or that there is no exemption period, to reflect the specific
circumstances of a surge demand period experienced by a regulated host. Employers or
organisations entitled to represent their industrial interests may seek a determination
under this provision due to an extended surge in demand during which it is necessary to
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engage many additional workers. Employees or organisations entitled to represent their
industrial interests may seek a determination that a specified surge period should be
shortened or that there is no surge period at all.
Section 306K Determination of recurring extended exemption period
708. New section 306K would provide that the FWC could determine that there is a
recurring period that would be exempt from the requirement to pay the protected rate of
pay for the purposes of subparagraph 306G(2)(b)(iii). An application for a
determination under this section could be made where a regulated labour hire
arrangement order had been made (whether or not it is yet in force) or where an
application for such an order had been made but not finally determined.
709. The FWC could determine under this section that the exempt period for the purpose of
subsection 306G(4) is to recur at specified intervals, for an exempt period of more than
three months, starting on a specified day in specified consecutive years. An example of
this would be for surges in staffing requirements occurring around the Christmas period
or snow season, that occur every year for a period of more than three months. For
employees who commence during the recurring extended exempt period, there would
be no requirement for the employer to pay regulated employees the protected rate of
pay for the remaining period of the extended exemption, or three months, whichever is
longer (see new subparagraph 306G(2)(b)(iii)). The determination could be made in
relation to specified kinds of work in relation to which the labour hire arrangement
order relates or would relate.
710. For harvest periods or surge periods with changeable dates, employers could apply for
the recurring surge period to start at the earliest possible date for that predicted surge
period. Regulated hosts would not be required to commence engaging labour hire on
the start date of a recurring surge exemption period and could engage employees under
the exemption at any time during the period. A regulated host could seek a longer
recurring exemption period to buffer any uncertainty around the dates of a seasonal
surge period if necessary.
Section 306L Making and effect of determinations under this Subdivision
711. New section 306L would set out matters relating to determinations made under
Subdivision C.
712. Who may apply for determination: New subsection 306L(1) would specify which
parties can apply for a determination under the subdivision.
713. New paragraph 306L(1) would make clear that a regulated host, an employer or
employee covered by the regulated labour hire arrangement order, or any organisation
entitled to represent their industrial interests, may make an application to the FWC for a
determination to vary the exemption period for a short term arrangement.
714. Time for making determination: New subsection 306L(2) would require the FWC to
make a determination under the subdivision as quickly as possible after an application
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is made. This is intended to minimise the period of uncertainty as to what the
exemption period will be once an application has been made.
715. Requirements for making determination: New subsection 306L(3) would require the
FWC to seek submissions from any other party that could have applied for a
determination under the Subdivision. This would ensure all relevant parties are given an
opportunity to make submissions relating to any application for a change to the short-
term exemption period. However, there is no requirement that those parties express any
views, provided that they have been provided with a reasonable opportunity to do so.
716. New subsection 306L(4) would require that the FWC only make a determination
extending, reducing, or removing the exemption period, or providing for a recurring
period, if it is satisfied that there are exceptional circumstances to justify the
determination. In determining whether there are exceptional circumstances, the FWC
would be required to have regard to the purpose of the proposed exemption period,
including whether the application requests that the period be specified to satisfy the
need for short term or surge workforce demands. The FWC would also be required to
have regard to several other factors set out in the subsection, including submissions
from the relevant parties and organisations entitled to represent their industrial interests
(if any), the circumstances of the relevant parties, the industry in which the work is
performed, and any other matters it considers relevant. If an application has been made
for a longer or recurring exemption period, a greater justification will be required the
longer the period or the greater the number of recurring surge periods sought in the
application.
717. When determination comes into force: New subsection 306L(5) would specify when
a determination under this subdivision comes into force.
Subdivision D--Alternative protected rate of pay orders
Section 306M Making an alternative protected rate of pay order
718. Application of this section: Subdivision D would set out the process for making
alternative protected rate of pay orders and the effect of such orders. This Subdivision
is intended to apply where parties consider that the host employment instrument that
applies (or would apply) under a regulated labour hire arrangement order should not
apply to certain regulated employees, and that an alternative covered employment
instrument should apply instead. This may be the case where the alternative covered
employment instrument better reflects the type of work or classification of work to be
performed under the regulated labour hire arrangement. Such an application could also
arise where the rate of pay specified under the alternative covered employment
instrument more fairly compensates for work of the type to be performed under the
regulated labour hire arrangement.
719. Alternative protected rate of pay order: New section 306M would set out the process
for making an alternative protected rate of pay order. An application for an order under
this section could be made where a regulated labour hire arrangement order had been
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made (whether or not it is yet in force) or where an application for such an order had
been made but not finally determined.
720. An alternative rate of pay order would specify how the alternative protected rate of pay
would be calculated and that the employer must pay the rate of pay worked out in that
way to the regulated employee (new subsection 306M(2)).
721. Rate of pay: New subsection 306M(3) would provide that the method for determining
the alternative protected rate of pay must be set by reference to the protected rate of pay
that would apply if an alternative covered employment instrument applied to the
employee. The alternative covered employment instrument specified would be required
to be either:
• an instrument that applies to a related body corporate of the regulated host and
would apply to a person employed by the related body corporate to perform work of
that kind; or
• an instrument that applies to the regulated host and would apply to a person
employed by the regulated host to perform work of that kind, in circumstances that
do not apply in relation to the employee.
722. The latter condition is intended to apply in situations where the regulated host has
multiple enterprise agreements covering the same kinds of work, that apply to different
employees in different circumstances (for example, in different locations, or by
reference to when they commenced employment).
723. The intention of the provision is to allow the FWC to make an order specifying an
alternative covered employment instrument only in circumstances where that
instrument would be more appropriately applied to a regulated employee's employment
as part of a labour hire arrangement, and where the alternative instrument applies to one
of the parties participating in or arranging for the labour hire arrangement. An
instrument that is unrelated to the employment obligations of the regulated host or its
related bodies corporate will not apply.
724. Who may apply: The FWC could make an alternative protected rate of pay order on
application by the employee, the employer, the regulated host or an organisation
entitled to represent the industrial interests of one of those parties (new
subsection 306M(4)).
725. Time for making: The FWC would be required to make a determination as quickly as
possible after the application for an alternative protected rate of pay order is made. If it
makes an alternative protected rate of pay order, the order would be required to specify
how the alternative protected rate of pay is to be calculated, and that the employer must
pay the alternative protected rate of pay as specified in connection with the work
performed under the associated regulated labour hire arrangement order.
726. Criteria for making etc.: New subsection 306M(6) would provide that the FWC must
not make the order unless it is satisfied that requiring an employer to pay the regulated
employee at the protected rate of pay arising under the host employment instrument
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would be unreasonable (for example, because the rates would be insufficient or
excessive). The FWC must also be satisfied that there is a covered employment
instrument of the kind referred to in new subsection 306M(3) that could be the subject
of an alternative rate of pay order.
727. New subsection 306M(7) would require that, before making the order, the FWC seek
submissions from relevant parties listed in the subsection, including the employer and
employees to whom the alternative covered employment instrument to be specified in
the order applies for the purposes of subsection (3) (if that employer is not the regulated
host).
728. New subsection 306M(8) would require that the FWC have regard to whether the host
employment instrument covered by the regulated labour hire arrangement order applies
only to a particular class of employees (including whether it applies to all of the
relevant regulated employees to be engaged under a regulated labour hire arrangement)
in deciding whether to make the order. It must also have regard to whether the host
employment instrument has ever applied to an employee at a classification that would
be applicable to the relevant regulated employee or group of regulated employees.
Where the host employment instrument has previously applied to employees at the
same classification as the regulated employee, it may weigh against the making of an
alternative protected rate of pay order. Where the host employment instrument would
apply to a class of employees that would not generally include the regulated employee,
it may support the view that an alternative covered employment instrument might be
more appropriately applied to the regulated employee.
729. The FWC must also consider the views of any of the parties listed in subsection (7), the
protected rate of pay that would be payable to the regulated employee if an order were
made, and any other considerations it thinks is relevant in deciding whether to make the
order.
730. Exception for short-term arrangements: New subsection 306M(9) would provide
that when making an alternative protected rate of pay order, the FWC must ensure that
any exception set out in new section 306G (short-term arrangements) that would apply
to the calculation of the protected rate of pay also applies in relation to the alternative
protected rate of pay order.
Section 306N Effect of alternative protected rate of pay order
731. New section 306N would provide when an alternative protected rate of pay order comes
into effect, and when the alternative protected rate of pay would be applied.
732. When alternative protected rate of pay order comes into force: New
subsection 306N(1) would specify when an alternative protected rate of pay order
would come into force.
733. Effect of alternative protected rate of pay order: New subsection 306N(2) would
provide that where a regulated labour hire arrangement order is already in force at the
time the alternative protected rate of pay order is made, then the alternative protected
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rate of pay order applies only to work performed once that order comes into force.
Employers will not be required to backpay regulated employees where an alternative
rate of pay order comes into force after a regulated labour hire arrangement order is
already in force. Similarly, employers will not be entitled to recover money from
employees for wages paid in respect of work undertaken under a regulated labour hire
arrangement order that is already in force, when an alternative protected rate of pay
order is made that decreases the protected rate of pay.
734. The alternative protected rate of pay order would have effect despite the requirement in
new section 306F and any other provision of a fair work instrument, covered
employment instrument or employment contract that provides for a lower rate of pay
than that specified in the alternative protected rate of pay order.
735. Person must not contravene an alternative protected rate of pay order: New
subsection 306N(3) would provide that a person must not contravene a term of an
alternative protected rate of pay order. This provision would be a civil remedy
provision.
Subdivision E - Termination payments
Section 306NA Determining amounts of payments relating to termination of employment
736. New subsection 306NA(1) would provide that the section applies if an employee's
employment is or is to be terminated, and the employee is or has been covered by a
regulated labour hire arrangement order. This amendment would specify appropriate
rates of pay for termination entitlements for employees who are or have been covered
by such an order.
737. New subsection 306NA(2) would specify how amounts of payments relating to the
termination of an employee's employment are to be determined. The new provision
would provide that where an employer is required to make payments in relation to the
termination of an employee's employment, the rate of that payment will be the rate of
pay the employee is ordinarily entitled to, unless the employee is covered by new
subsection 306NA(3). In that case, the applicable rate of pay will be the rate of pay
under the operation of new Part 2-7A.
738. New subsection 306NA(3) would set out circumstances in which an employee's
termination of employment payments must be calculated in accordance with the
operation of the new Part. These circumstances include where:
• immediately before the termination of the employee's employment occurs or is to
occur, the employee's work is or will be covered by a regulated labour hire
arrangement order;
• the employee would be performing work in respect of that order for a host at the
time of the termination of their employment, (including during a period of
authorised leave or absence); and
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• unless the amount is a payment in lieu of notice of termination, the employee has
not performed work for any other regulated host in relation to the employee's
employment with the employer.
739. The intention of this provision is to simplify the calculation of amounts payable on
termination of employment for employers. Where an employee has only performed
work for one regulated host during their employment, termination payments will be
calculated with reference to the protected rate of pay if that rate is higher than what
they would otherwise be paid. Where an employee has performed work for more than
one regulated host, termination payments will be calculated with reference to the terms
of the employer's enterprise agreement or other applicable employment instrument. The
exception to this is payment in lieu of notice of termination of employment. Such
payments in lieu of notice will be payable at the protected rate of pay, where that rate is
higher than what the employee would otherwise be paid in lieu of notice, and where
immediately before the termination of the employment occurs or is to occur, the
employee is or will be covered by a regulated labour hire arrangement order in force in
relation to work performed by the employee for a regulated host. In practice, this means
payment in lieu of notice will be payable at no less than the protected rate of pay where
termination occurs during an employee's placement with a host covered by a regulated
labour hire arrangement order, even if they have worked for other regulated hosts
previously.
740. New subsection 306NA(4) would provide that if the performance of the work for the
host relates to a joint venture or common enterprise engaged in by the host and one or
more other persons, for the purposes of paragraph 306NA(3)(d), parties are to disregard
any work that is taken to be performed for those other persons because of the operation
of paragraph 306D(2)(c). Paragraph 306D(2)(c) provides that a reference in this Part to
work performed for a person includes a reference to work performed wholly or
principally for the benefit of a joint venture or common enterprise engaged in by the
person and one or more other persons.
741. New subsection 306NA(4) would ensure that, where an employee has worked for a
joint venture or common enterprise, each of the other parties to the joint venture or
common enterprise are disregarded when considering whether an employee has worked
for one or more parties. This would mean that, if an employee has only worked for the
joint venture under their agreement with their employer, the employee is taken to have
only worked for one regulated host under that joint venture. The employee will not be
taken to have worked for more than one regulated host, irrespective of whether their
work has also been for the benefit of the other joint venturers.
742. New subsection 306NA(5) would provide for excluded subject matters in respect of this
provision. It would provide that where the employer is a referring state, and therefore is
only a national system employer by operation of section 30D or 30N of the FW Act,
section 306NA would not apply. Any termination payments would be paid in
accordance with the relevant arrangements of the employer.
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743. New subsection 306NA(6) would provide that the section would apply despite the
terms of any fair work instrument, covered employment instrument, or employment
contract that applies to the employee.
Division 3--Dealing with disputes
744. Division 3 would set out the dispute resolution framework for Part 2-7A.
Section 306P Disputes about the operation of this Part
745. When this division applies to a dispute: New section 306P would provide a
mechanism for the resolution of disputes arising under the Part. This dispute resolution
mechanism would apply if there was a dispute about the operation of Part 2-7A and a
regulated labour hire arrangement order is in force or will come into force. A dispute
may arise, for example, about what the protected rate of pay is for a regulated
employee. The dispute could also be concerned with whether the protected rate of pay
has been or is being paid by the employer.
746. Parties must attempt to resolve dispute at a workplace level: The section would
require parties to attempt to resolve the dispute at a workplace level before applying to
the FWC.
747. How the FWC deals with dispute: If workplace level discussions do not resolve the
dispute, a party to the dispute would be able to make an application to the FWC to
resolve the dispute. The FWC would be required to first deal with the dispute by means
other than arbitration unless were exceptional circumstances.
748. Representatives: An employer, employee or regulated host would be able to appoint
an organisation or other person to support or represent them for the purposes of
resolving the dispute at the workplace level or through the FWC.
749. Joinder of other employees to disputes: The FWC procedural rules could also
provide for the joinder of employees as parties to the dispute who have a dispute about
the operation of Part 2-7A with the same regulated host or employer.
Section 306Q Dealing with disputes by arbitration
750. New subsection 306Q(1) would provide that the FWC can arbitrate a dispute under this
Part, including by making an arbitrated protected rate of pay order.
751. An arbitrated protected rate of pay order made under this section would be required to
specify how the protected rate of pay in respect of a regulated employee should be
worked out where an order is or will be in force. This may include a breakdown of how
provisions of a host employment instrument are to be applied. It may include specifying
how a regulated employee or class of regulated employees are to be classified under a
host employment instrument.
752. The order must also specify that the protected rate of pay for a regulated employee is to
be calculated and paid as provided by the order.
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753. New subsection 306Q(2) would address circumstances where the employer is only a
national system employer because of section 30D or 30N (which extend the meaning of
national system employer in relation to state referrals of power). The new subsection
would provide that the rate of pay specified under an arbitrated protected rate of pay
order made for the purposes of this new subsection must not include any amount that
relates to an excluded subject matter within the meaning of subsection 30A(1) or
30K(1). Amounts relating to excluded subject matters for the purposes of this
subsection may include long service leave, leave for victims of crime and jury or
emergency service leave.
754. New subsection 306Q(3) would provide that the FWC could not make an arbitrated
protected rate of pay order unless satisfied that it would be fair and reasonable to do so.
755. New subsection 306Q(4) would provide that where the parties agree to the FWC
arbitrating the dispute, the protected rate of pay order could apply in relation to work
performed on or after the regulated labour hire arrangement order is made. This may
mean that an employer is liable to pay backpay to the regulated employee if the
employer has been paying the employee less than the rate set out in the arbitrated
protected rate of pay order.
756. New subsection 306Q(5) would provide that if the parties did not agree to the FWC
arbitrating the dispute, the arbitrated protected rate of pay order could only apply in
relation to work performed on or after the day the order is made, or on or after the day a
regulated labour hire arrangement order comes into force (whichever is later). An
employer will not be required to provide back pay in respect of work performed under a
regulated labour hire arrangement that has been undertaken prior to an arbitrated
protected rate of pay order being made in this circumstance.
757. Effect of arbitrated protected rate of pay order: New subsection 306Q(6) would
provide that an arbitrated protected rate of pay order would have effect despite the
requirements in new section 306F and any relevant fair work instrument, covered
employment instrument or employment contract that provides for a lower rate of pay in
relation to so much of the work as is performed during the period in which the order
applies. The intention of this provision is to clarify that the effect of an arbitrated
protected rate of pay order is to establish a single authority for how the protected rate of
pay should be calculated in respect of a relevant regulated employee, during the period
in which it is in force.
758. New subsection 306Q(7) would provide that a person must not contravene a term of an
arbitrated protected rate of pay order. This provision would be a civil remedy provision.
759. New subsection 306Q(8) would provide that, when making an arbitrated protected rate
of pay order, the FWC must ensure that any exception set out in section 306G
(short-term arrangements) that would apply to the calculation of the protected rate of
pay also applies in relation to the arbitrated protected rate of pay order.
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Section 306R Application fees
760. New section 306R is modelled on section 367 of the FW Act and other similar
provisions that provide for application fees.
761. New subsection 306R(1) would require an application made under new
subsection 306P(4) to be accompanied by the fee prescribed in the FW Regulations (if
any). New paragraphs 306R(2)(a)-(c) would provide that the FW Regulations may
prescribe the application fee, the method for indexing the fee and the circumstances in
which all or part of the fee may be waived or refunded.
762. As a result of section 15A of the AI Act, as in force on 25 June 2009 (see section 40A
of the FW Act), this regulation-making power cannot be read as authorising the
imposition of a tax.
Division 4--Anti-avoidance
763. Division 4 would set out the anti-avoidance framework for Part 2-7A.
Section 306S Preventing making of regulated labour hire arrangement orders
764. New section 306S is intended to be a broad anti-avoidance provision aimed at
preventing behaviours intended to avoid the operation of Part 2-7A.
765. New subsection 306S(1) would provide that an employer or a regulated host
contravenes the section if they enter into a scheme, or carry out or begin to carry out a
scheme, either alone or with another person or persons, where the sole or dominant
purpose is to prevent the FWC from making a regulated labour hire arrangement order,
and the FWC is prevented from making the order.
766. A contravention of this provision would attract a civil penalty.
767. 'Scheme' would be defined broadly in new subsection 306S(2).
768. Adopting certain corporate structures with the purpose of preventing the FWC from
being able to make a regulated labour hire order is an example of a scheme that may
contravene this provision.
Section 306SA Avoidance of application of regulated labour hire arrangement orders
769. New section 306SA is a broad anti-avoidance provision aimed at preventing behaviours
intended to avoid the operation of Part 2-7A. It would supplement the effect of new
section 306S.
770. New subsection 306SA(1) would provide that an employer or a regulated host
contravenes the section if they enter into a scheme, or carry out or begin to carry out a
scheme, either alone or with another person or persons, where the sole or dominant
purpose is to avoid the application of a regulated labour hire arrangement order that has
been made, whether or not the order is yet in force. The provision would apply where
as a result of the scheme a person avoids the application of such an order. A
contravention of this provision would attract a civil penalty.
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771. 'Scheme' would be defined broadly in new subsection 306SA(2).
772. Adopting certain corporate structures with the sole or dominant purpose of avoiding the
application of an existing regulated labour hire arrangement order (for instance, a
structure that would limit the number of employees to whom the order would apply) is
an example of a scheme that may contravene this provision.
Section 306T Short-term arrangements --engaging other employees
773. This provision is intended to prevent an employer from engaging successive employees
for less than three months (or another period determined by the FWC) in order to
enliven the short-term arrangement exemption and avoid paying employees in
accordance with Part 2-7A.
774. An employer would contravene this provision if they were covered by a regulated
labour hire arrangement order and:
• the employer is not required to pay a regulated employee at a rate determined in
accordance with Part 2-7A (the protected rate of pay, arbitrated rate of pay or
alternative rate of pay) because the employee was engaged for less than three
months (or a different period determined by the FWC altering the short-term
exemption period); and
• the employer engages another person to perform the same, or substantially the
same, work as the first employee; and
• it could reasonably be concluded that the purpose, or one of the purposes, of
engaging the other person was to avoid paying a regulated employee in accordance
with Part 2-7A.
775. A contravention of this provision would attract a civil penalty.
Section 306U Short-term arrangements -- entering into other labour hire agreements
776. This provision is intended to prevent a regulated host from entering into successive
short-term labour hire agreements to avoid paying employees in accordance with
Part 2-7A. As each such agreement would be for a period of three months or less, the
short-term arrangement exemption would be enlivened which would mean employers
would not be obliged to pay regulated employees the protected rate of pay under this
Part.
777. A regulated host would contravene this provision if they were covered by a regulated
labour hire arrangement order and:
• the employer is not required to pay a regulated employee at a rate determined in
accordance with Part 2-7A (the protected rate of pay, arbitrated rate of pay or
alternative rate of pay) because the agreement would engage employees for less
than three months (or a different period determined by the FWC altering the short-
term exemption period); and
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• the regulated host enters into an agreement that has the result that another person is
to perform the same, or substantially the same, work as that performed by the
regulated employee for the regulated host; and
• it could reasonably be concluded that the purpose, or one of the purposes, of
engaging the other person was to avoid the employer paying a regulated employee
in accordance with Part 2-7A.
778. A contravention of this provision would attract a civil penalty.
Section 306V Engaging independent contractors
779. This provision is intended to prevent an employer from dismissing labour hire
employees and engaging other workers as independent contractors to perform the same
work to avoid the operation of Part 2-7A.
780. Dismissing an employee and re-engaging the same employee as an independent
contractor to perform the same work is already prohibited under section 358 of the FW
Act.
781. An employer covered by a regulated labour hire arrangement order would contravene
new section 306V if the employer:
• dismisses a regulated employee covered by the order who was performing work for
a regulated host; and
• engages another person as an independent contractor to perform the same work or
work of that kind for the regulated host; and
• as a result, the employer is not required to pay a person a rate determined under or
in accordance with Part 2-7A (for example, because the obligations do not extend to
labour hire employees who are independent contractors); and
• it could reasonably be concluded that the purpose, or one of the purposes, of
engaging the independent contractor was to avoid paying a regulated employee in
accordance with Part 2-7A.
782. A contravention of this provision would attract a civil penalty.
Division 5--Other matters
Section 306W Guidelines
783. New section 306W would require the FWC to make written guidelines in relation to the
operation of Part 2-7A to assist with education and compliance, so that readers can
more easily understand the new Part.
784. New subsection 306W(2) would assist readers by clarifying that the guidelines would
not be a legislative instrument within the meaning of subsection 8(1) of the Legislation
Act. This is not an express exemption from the Legislation Act, but rather clarifies the
status of the guidelines.
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785. New subsection 306W(3) would require the FWC to ensure the guidelines are in force
by 1 November 2024, when the provisions take effect, and at all times after that day.
Item 74: Subsection 539(2) (after table item 9)
786. This item would add a new table item, 9A, regarding contraventions of new Part 2-7A,
to the table of civil remedy provisions set out at subsection 539(2) of the FW Act.
Contraventions of news subsections 306EC(1), 306ED(2), 306ED(4), 306EE(2),
306EE(3), 306F(2), 306H(3), 306N(3), 306Q(7), 306S(1), 306SA(1), and sections
306T, 306U and 306V would be included in the new table item as civil remedy
provisions.
787. The new table item would provide that an employee, an employee organisation or an
inspector could bring an action for an alleged contravention of the provisions in a
federal court or eligible State or Territory Court. The maximum civil penalty for a
contravention would be 60 penalty units, or 600 penalty units for serious
contraventions.
Item 75: After paragraph 557(2)(f)
788. Section 557 of the FW Act sets out when two or more contraventions of a civil remedy
provision are taken to constitute a single contravention where certain conditions are
met. Generally, those conditions are that the contraventions were committed by the
same person and arose out of a course of conduct by that person.
789. This item would insert new paragraphs into subsection 557(2), including new
sections 306F(2) (protected rate of pay payable to employees covered by a regulated
labour hire arrangement order), 306H(3) (obligations of regulated hosts covered by
regulated labour hire arrangement orders), 306N (contravention of alternative protected
rate of pay orders) and 306Q(7) (contravention of arbitrated protected rate of pay
orders) in the list of civil remedy provisions that are taken to constitute a single
contravention.
Item 76: After paragraph 576(1)(f)
790. Section 576 of the FW Act sets out the functions that are conferred on the FWC by the
FW Act. This item would make a consequential amendment that would insert regulated
labour hire arrangement orders (Part 2-7A) into the existing list of functions.
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Part 7--Workplace delegates' rights
Amendments to the Fair Work Act 2009
791. Part 7 would introduce new workplace rights and protections for workplace delegates,
who are employees or workers, appointed or elected under the rules of their employee
organisation, to represent members in a particular enterprise. These new rights and
protections would support their role in representing employees and regulated workers in
workplaces. It would provide for modern awards and future enterprise agreements to
provide more detailed rights for specific industries, occupations and workplaces. It
would also provide a new general protection for workplace delegates to facilitate the
exercise of these rights.
Division 1--Amendments commencing the day after Royal Assent
792. Division 1 of Part 7 contains amendments to the FW Act that would commence the day
after Royal Assent. These amendments would:
• insert definitions of 'delegates' rights term' and 'workplace delegate' into the
Dictionary;
• from 1 July 2024, require all modern awards, new enterprise agreements and new
workplace determinations to include a delegates' rights term (see item 308,
clauses 103, 104, 105 and 106);
• insert a new general protection in Division 4 of Part 3-1 of the FW Act specific to
workplace delegates; and
• give workplace delegates rights in relation to representing the industrial interests of
members, and other persons eligible to be a member, of the relevant employee
organisation, including in a dispute with their employer.
Item 77: Section 12
793. Section 12 of the FW Act contains the Dictionary. This item would insert a new
definition of 'delegates' rights term' as a term in a fair work instrument that provides
for the exercise of the rights of workplace delegates.
794. The note to the definition of 'delegates' rights term' would alert readers to:
• new section 350C, which sets out the rights of workplace delegates, and
• that the delegates' rights term must provide for at least the exercise of these rights
(in accordance with new section 205A and new subsection 273(7) inserted by
items 81 and 82).
795. This item would also insert a new definition of 'workplace delegate' into the Dictionary
by reference to new subsection 350C(1), which would be inserted by item 84.
Item 78: At the end of Subdivision C of Division 3 of Part 2-3
796. Subdivision C of Division 3 of Part 2-3 of the FW Act sets out the terms that must be
included in modern awards. This item would insert a new section 149E, which would
require modern awards to include a delegates' rights term.
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797. When the FWC varies a modern award, it would be required to include a new
delegates' rights term or to vary an existing delegates' rights term in a modern award,
and it must be satisfied that making the variation would be necessary to achieve the
modern awards objective in section 134 of the FW Act. This obligation (to be satisfied
it is necessary to achieve the modern awards objective in section 134 of the FW Act)
also applies to the FWC making a new modern award.
Item 79: Section 169 (paragraph about Division 5)
798. Section 169 is the Guide to Part 2-4 of the FW Act, which deals with enterprise
bargaining. This item is a consequential amendment that would signpost that Division 5
of Part 2-4, which deals with mandatory terms of enterprise agreements, would include
a requirement for terms about workplace delegates' rights. This reflects the inclusion of
this requirement in new section 205A, which would be inserted by item 81.
Item 80: After subsection 201(1)
799. This item would insert a new subsection 201(1A) to support the operation of the new
subsection 205A(2) (as set out in item 81).
800. Existing section 201 of the FW Act sets out certain matters that the FWC must note in
its decision to approve an enterprise agreement. This item would add to these matters a
requirement for the FWC to make a note in its approval decision if the delegates' rights
term contained in a modern award is taken to be term of an enterprise agreement.
801. The FWC's enterprise agreement approval decisions are publicly available, and this
item would provide greater clarity to employees and employers regarding their rights
and obligations.
Item 81: At the end of Division 5 of Part 2-4
802. Division 5 of Part 2-4 of the FW Act sets the terms that must be included in an
enterprise agreement. This item would insert a new section 205A.
803. New subsection 205A(1) would provide that an enterprise agreement must include a
delegates' rights term. This requirement would only apply to enterprise agreements put
to a vote by the employer on or after 1 July 2024 (as set out in Part 18 item 105).
804. New subsection 205A(2) would provide that a delegates' rights term in an enterprise
agreement must be at least as favourable as the delegates' rights term of modern award
(or awards) that cover the workplace delegates. This would involve comparing the
delegates' rights term of the enterprise agreement against the term in the relevant
modern award(s).
805. If during the approval process, the FWC considers an enterprise agreement that would
otherwise be approved has a less favourable delegates' rights term than that included in
the modern award(s) that cover the workplace delegates, this item would provide that
the enterprise agreement term has no effect and that the delegates' rights term of the
modern award that covers the workplace delegates would instead be taken as a term of
the agreement. If there are multiple modern awards that cover the workplace delegates,
the FWC would be required to determine the most favourable delegates' rights term
included in those modern awards. New subsection 201(1A) (inserted by item 80) would
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then require the FWC to note that this modern award term is taken to be a term of the
enterprise agreement in its decision to approve the enterprise agreement.
806. New subsection 205A(3) would confirm that, where a delegates' rights term in a
modern award is taken to be a term of the enterprise agreement, the term does not
change if the modern award changes. This means that the delegates' rights term
contained in the relevant modern award at the time that the enterprise agreement is
approved continues to be the term that applies to the parties to the enterprise agreement.
This is intended to provide certainty as to the rights and obligations of parties to the
enterprise agreement.
Item 82: At the end of section 273
807. Existing section 273 of the FW Act sets out the mandatory terms that must be included
in a workplace determination. Workplace determinations set the terms and conditions
of employment in certain circumstances where bargaining for a proposed enterprise
agreement has not resolved all of the matters at issue at the end of a negotiating period.
808. New subsections 273(6) and (7) would provide that the FWC must include a delegates'
rights term for workplace delegates to whom the workplace determination applies in
workplace determinations, and require that such a term cannot be less favourable than a
delegates' rights term in any modern award that covers the workplace delegate.
Item 83: Section 334 (paragraph about Division 4)
809. Existing section 334 provides a Guide to Part 3-1 of the FW Act, which provides for the
general protections. This item would amend section 334 to signpost that provisions
concerning the exercise of workplace delegates' rights are also contained in Division 4
of that Part.
Item 84: At the end of Division 4 of Part 3-1
810. This item would insert new sections 350A and 350C into Division 4 of Part 3-1, to
provide protections for workplace delegates, and to set out their rights, respectively.
New section 350A - Protection for workplace delegates
811. Division 3 of Part 3-1 provides protections against adverse action for employees who
become officers or members of industrial associations as a result of their membership.
Division 4 of Part 3-1 includes protections for freedom of association and involvement
in lawful industrial activities. New section 350A would complement these existing
protections by providing specific protections for workplace delegates.
812. New subsection 350A(1) would prohibit an employer from:
• unreasonably failing or refusing to deal with a workplace delegate;
• knowingly or recklessly making a false or misleading representation to a workplace
delegate; or
• unreasonably hindering, obstructing or preventing the exercise of the rights of a
workplace delegate.
813. This new general protection would be subject to certain limitations.
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814. Under new paragraphs 350A(1)(a) and (c), a delegate would only be protected from an
employer unreasonably failing or refusing to deal with a workplace delegate, or
unreasonably hindering, obstructing or preventing the exercise of the rights of a
workplace delegate. As a result, employers would still be able to undertake reasonable
management action, carried out in a lawful way.
815. New subsection 350A(3) provides that the burden for establishing that the conduct of
an employer is not unreasonable is on the employer. Accordingly, if a workplace
delegate establishes that an employer failed or refused to deal with them, or hindered,
obstructed or prevented the exercise of their rights, the burden would shift to employers
to demonstrate the reasonableness of their acts or omissions. The burden would be
placed on the employer because the employer is best placed to provide evidence about
the reasons and intent behind the actions they took (or omitted to take).
816. New subsection 350A(2) makes it clear that the protections in new subsection 350A(1)
are only enlivened when an employer is dealing with a workplace delegate acting in
that capacity.
817. Finally, new subsection 350A(4) would provide that the protections would not apply in
respect of any conduct required by or under a law of the Commonwealth or a State or
Territory. This would include action taken, for example, under relevant work health and
safety legislation, to ensure the health and safety of workers while at work.
New section 350C - Workplace delegates and their rights
818. Definition of 'workplace delegate': New subsection 350C(1) would define the term
'workplace delegate'.
819. Section 12 of the FW Act provides that the term 'officers of industrial associations' can
include 'delegates', but does not specify who would be a workplace delegate.
820. This new definition is intended to be sufficiently broad to capture workplace delegates
across a range of employee organisations, regardless of the language used to describe
the role in each organisation's rules. The definition of 'workplace delegate' would
recognise the role of workplace delegates in representing the interests of all workers,
not just employees, who work at the relevant enterprise and who are eligible to be a
member of the relevant employee organisation. The definition would not include
employees of the employee organisations in workplaces generally, as a person can only
be a workplace delegate in respect of the enterprise or part of an enterprise where they
work, either as an employee or as a regulated worker (see new section 15G).
821. 'Employee organisation' is defined in section 12 of the FW Act as an organisation of
employees that is registered under the RO Act. Almost all large trade unions are
registered as employee organisations under the RO Act. Limiting the definition of
workplace delegate to representatives of such organisations enables the new provisions
to rely on the existing regulatory framework established around registered
organisations, and is consistent with the approach taken in the FW Act regarding the
application of the right of entry provisions in Part 3-4.
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822. Workplace delegates' rights: New subsections 350C(2) and (3) would provide rights
for workplace delegates.
823. There is currently limited legislative protection for workplace delegates performing
their roles within a workplace. The FW Act does not contain any positive rights specific
to workplace delegates.
824. New subsection 350C(2) would provide a key right for workplace delegates to
represent the industrial interests of members, and other persons eligible to be a member,
of the relevant employee organisation, including in a dispute with their employer. If
reasonable opportunities to undertake representation are provided, but not taken up,
there will be no breach of the right.
825. The proposed note to subsection 350C(2) clarifies that new subsection 350C(2) would
not require a worker to accept representation from a workplace delegate or create any
obligation on a worker. It would not infringe on a workers' right to choose their own
representative in a dispute with their employer or relevant regulated business (if they
choose to be represented) and does not affect the relationship between workplace
delegates and their members. Rather, new subsection 350C(2) would create an
enforceable right between a workplace delegate and their employer or relevant
regulated business.
826. New subsection 350C(3) would facilitate the exercise of the representational rights in
new subsection 350C(2) by providing that workplace delegates are entitled to:
• reasonable communication with members, and any other persons eligible to be
members, in relation to their industrial interests;
• reasonable access to the workplace and workplace facilities where the enterprise is
being carried on; and
• reasonable access to paid time, during normal working hours, for the purposes of
related training.
827. These rights are specified at the level of principle, with the expectation that for most
employees, modern awards and enterprise agreements would provide greater detail for
particular industries, occupations, or enterprises. In relation to communication and
access, in many cases this may require nothing more than the general access to
communications or premises that an employee would normally have by virtue of
working for an enterprise.
828. All of the rights in new subsection 350C(3) are subject to a requirement of
reasonableness, that is, an employer would only be required to provide facilities to the
extent that this would be reasonable. To recognise the diversity of Australian
workplaces and their available facilities and resources, new subsection 350C(5) would
provide that in determining what is reasonable for the purposes of new
subsection 350C(3), regard must be had to the size and nature of the relevant enterprise,
the resources of the employer at the enterprise and the facilities available at the relevant
enterprise.
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829. Further, an exemption for small business employers would be provided by new
subparagraph 350C(3)(b)(ii). Small business employers would be exempt from the
obligation to provide workplace delegates paid time for the purpose of undertaking
training for their role as a workplace delegate due to the amendments. This exemption
would alleviate the cost burden of the amendments on small businesses. Small
businesses could still elect to provide workplace delegates with paid time for training,
or may otherwise have obligations to do so, for example under an enterprise agreement.
For the purposes of this provision, small business has the meaning given by existing
section 23 of the FW Act.
830. Subsection 350C(4) would provide that where an employer complies with a delegates'
rights term in a fair work instrument, the employer is taken to have complied with the
rights as set out in subsection 350C(3). This would ensure that, where a fair work
instrument provides more detailed information about the rights of workplace delegates,
employers can rely on that term as a complete statement of their obligations under new
subsection 350C(3).
Item 85: Subsection 539(2) (table item 11, column 1)
831. This item would add a contravention of subsection 350A(1) to the table of civil remedy
provisions set out at existing subsection 539(2) of the FW Act.
832. The new table item would provide that a person affected by the contravention, an
industrial association or a FWO inspector can bring an action for an alleged
contravention of new subsection 350A(1) in a federal court.
833. The maximum penalty for a contravention would be 60 penalty units, which is
consistent with the penalty for other breaches of the general protections.
Division 2--Amendments commencing 1 July 2024
834. Division 2 of Part 7 contains amendments to the FW Act that commence on
1 July 2024, to align with the commencement of new Chapter 3A inserted by Part 16 of
Schedule 1 (Provisions relating to regulated workers). This Division would expand the
provisions provided for in Division 1 of Part 7 to include regulated workers (see new
section 15G) and regulated businesses (see new section 15F).
835. Under new section 15G a person would be taken to be a regulated worker if they are:
• an 'employee-like worker' (see new section 15P), being an independent contractor
performing digital platform work (see new section 15N) under a services contract
(see new section15H) with one or more 'employee-like' characteristics (see new
paragraph 15P(1)(e)); or
• a 'regulated road transport contractor' (see new section 15Q) performing work in
the road transport industry (see new section 15S) under a services contract (see new
section 15H).
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Item 86: Section 12
836. Section 12 of the FW Act contains the Dictionary. This item would insert a new
definition of 'associated regulated business' by reference to new subsection 350B(5)
which would be inserted by item 87.
Item 87: After section 350A
837. This item would insert a new section 350B to provide protections to regulated workers
who are workplace delegates, on the same basis as the protections provided to
workplace delegates who are employees by new section 350A (inserted by item 84).
Protections for delegates who are regulated workers
838. As for workplace delegates who are employees, new subsection 350B(1) would
prohibit an associated regulated business from:
• unreasonably failing or refusing to deal with a workplace delegate;
• knowingly or recklessly making a false or misleading representation to a workplace
delegate; or
• unreasonably hindering, obstructing or preventing the exercise of the rights of a
workplace delegate.
839. As for the protection for workplace delegates who are employees, the protection for
workplace delegates who are regulated workers would be subject to certain limitations.
840. Under new paragraphs 350B(1)(a) and (c), a delegate would only be protected from an
associated regulated business unreasonably failing or refusing to deal with a workplace
delegate, or unreasonably hindering, obstructing or preventing the exercise of the rights
of a workplace delegate. As a result, associated regulated businesses would still be able
to undertake reasonable management action, carried out in a lawful way.
841. New subsection 350B(3) provides that the burden for establishing that the conduct of an
associated regulated business is not unreasonable is on the business. Accordingly, if a
workplace delegate establishes that a business failed or refused to deal with them, or
hindered, obstructed or prevented the exercise of their rights, the burden would shift to
the business to demonstrate the reasonableness of their acts or omissions. The burden
would be placed on the business because it is best placed to provide evidence about the
reasons and intent behind the actions it took (or omitted to take).
842. New subsection 350B(2) makes it clear that the protections in new subsection 350B(1)
are only enlivened when an associated regulated business is dealing with a workplace
delegate acting in that capacity.
843. Finally, new subsection 350B(4) would provide that the protections would not apply in
respect of any conduct required by or under a law of the Commonwealth or a State or
Territory. This would include action taken, for example, under relevant work health and
safety legislation, to ensure the health and safety of workers while at work.
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Meaning of associated regulated business
844. New subsection 350B(5) would set out the meaning of 'associated regulated business'.
A business would be an associated regulated business for a regulated worker who is a
workplace delegate if it either directly engaged the delegate under a contract for
services, or if it arranged or facilitated the delegates entry into a services contract.
Item 88: Subsection 350C(1)
845. This item would amend the definition of workplace delegate provided in new
subsection 350C(1) (inserted by item 84), to provide that a workplace delegate is a
person appointed or elected to represent the industrial interests of either or both
employees and regulated workers. This reflects the extension of protections to regulated
workers by the amendments in Division 2.
Item 89: Subsection 350C(2)
846. This item would amend new subsection 350C(2) to expand the right for workplace
delegates to represent other workers in a dispute to include disputes with regulated
businesses.
Item 90: Subparagraphs 350C(3)(b)(i) and (ii)
847. This item would replace subparagraphs 350C(3)(b)(i) and (ii) (inserted by item 84), to
grant regulated workers who are workplace delegates the ability to access workplace
facilities for the purpose of representing the industrial interests of all workers who are
eligible to be a member of the relevant employee organisation.
848. The extent to which regulated workers can access facilities is assessed against a test of
reasonableness and in consideration of the factors in new subsection 350C(5). For
example, some regulated businesses (for example, a digital labour platform or a road
transport business) may not have physical workplaces or facilities in the same way as
an employer does where employees perform work on-site. In determining whether a
regulated business provided a workplace delegate reasonable access to the workplace
and facilities, regard would have to be given to the factors at new subsection 350C(5),
which could include consideration of the actual facilities available at the regulated
business and whether providing access to such facilities is possible.
849. The amendments made by this item would not require regulated businesses to provide
paid time to regulated worker delegates for the purposes of training in relation to their
role as a workplace delegate. This recognises that regulated workers often perform
'task' based commitments within clearly defined parameters, such as making a
delivery, compared to many traditional employee relationships with routine 'shifts',
time-based work or regular and systematic working hours.
Item 91: Subsection 350C(4)
850. This item would replace new subsection 350C(4) to ensure that, in addition to
employers, regulated businesses are taken to have complied with the workplace
delegates' rights provided for in new subsection 350C(3) of the FW Act if they have
complied with the delegates' rights term in the relevant fair work instrument. While the
inclusion of such a term would not be mandatory, for a regulated business, the relevant
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category of fair work instrument would be a minimum standards order (MSO) (see new
section 15E) or collective agreement (see new section 15B)
Item 92: Paragraphs 350C(5)(a), (b) and (c)
851. This item would replace new paragraphs 350C(5)(a), (b) and (c), to ensure that the
factors provided for in new subsection 350C(5), which must be considered when
assessing the reasonableness of workplace delegates' entitlements in
subsection 350C(3), appropriately extend to regulated businesses.
Item 93: Subsection 539(2) (table item 11, column 1)
852. This item would add a contravention of subsection 350B(1) to the table of civil remedy
provisions set out at existing subsection 539(2) of the FW Act.
853. The new table item would provide that a person affected by the contravention, an
industrial association or a FWO inspector can bring an action for an alleged
contravention of new subsection 350B(1) in a federal court.
854. The maximum penalty for a contravention would be 60 penalty units, which is
consistent with the penalty for other breaches of the general protections.
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Part 8--Strengthening protections against discrimination
Amendments to the Fair Work Act 2009
855. Subjection to FDV is not currently a protected attribute in the FW Act or other
Commonwealth anti-discrimination laws but is protected by some State and Territory
anti-discrimination laws. The amendments in Part 8 would include a new protection for
employees and prospective employees by recognising subjection to FDV as a protected
attribute within the FW Act's anti-discrimination provisions.
856. The FW Act was recently amended by the Fair Work Amendment (Paid Family and
Domestic Violence Leave) Act 2022 to introduce 10 days of paid FDV leave in a
12-month period for full-time, part-time and casual employees. These amendments
would complement this leave entitlement as both amendments seek to give effect to
Australia's obligations under Violence and Harassment Convention 2019 (ILO
Convention 190) and work to progress the same overall policy intention of
strengthening workplace protections for employees subjected to FDV.
Item 94: Subsection 153(1)
Item 95: Subsection 195(1)
Item 96: Subsection 351(1)
Item 97: Section 578
Item 98: Paragraph 772(1)(f)
857. The FW Act contains a range of protections against discriminatory conduct:
• Subsections 153(1) and 195(1) of the FW Act deal with discriminatory terms in
modern awards and enterprise agreements, respectively.
• Subsection 351(1) of the FW Act prohibits an employer from taking discriminatory
adverse action against a person who is a current or prospective national system
employee because of the person's protected attribute.
• Paragraph 578(c) requires the FWC, when performing its functions or exercising
powers, to take into account the need to respect and value the diversity of the work
force by helping to prevent and eliminate discrimination.
• Paragraph 772(1)(f) prohibits an employer from terminating an employee's
employment because of the person's protected attribute.
858. These items would add 'subjection to family and domestic violence' to the existing list
of protected attributes at each of these provisions.
859. This protection against subjection to family and domestic violence would be consistent
with the approach of State and Territory anti-discrimination laws which include family
and domestic violence as a protected attribute.10 This protection would also ensure the
10
Discrimination Act 1991 (ACT) s 7(1)(x); Industrial Relations Act 2016 (QLD) s 296; Anti-Discrimination
Act 1992 (NT) s 19(1)(jb); Equal Opportunity (Domestic Abuse) Amendment Act 2023 (SA). See also Law
Reform Commission of Western Australia, Review of the Equal Opportunity Act 1984 (WA) (Project 111 Final
Report), May 2022, pp. 12, 121-4.
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anti-discrimination provisions in the FW Act would not apply to persons who are
perpetrators of (or have perpetrated) family and domestic violence and who are not
subject to (or have not been subjected to) family and domestic violence.
860. Under existing subsection 342(3) of the FW Act, action taken that is authorised by or
under a law of the Commonwealth or a law of a State or Territory prescribed by the
regulations, such as an action taken to mitigate a work health safety risk, does not
constitute adverse action for the purposes of subsection 351(1).
Item 99: Before section 789HA
Item 100: Section 789HA (heading)
Item 101: Section 789HA
861. These items are consequential amendments to Part 6-4E of the FW Act to accommodate
the insertion of a new Division 2.
Item 102: At the end of Part 6-4E
862. This item would insert a new Division 2 in existing Part 6-4E dealing with the
constitutional basis for the amendments and the extension of the anti-discrimination
rules. This would ensure that the amendments to add subjection to FDV as a protected
attribute under the FW Act would have constitutional support to apply to national
system employers and employees by virtue of the external affairs power under
paragraph 51(xxix) of the Constitution.
863. This would ensure that the amendments to add subjection to FDV as a protected
attribute in the FW Act have constitutional support to apply in relation to employees
and employers that are national system employees and employers by virtue of the
States' referrals of industrial relations power (State referral employees and employers).
864. New section 789HC would set out the Conventions relied upon for the external affairs
power under paragraph 51(xxix) of the Constitution.
865. Existing sections 153, 195 and 351 of the FW Act are intended to operate with the same
coverage in relation to subjection to FDV as they currently do in relation to the existing
protected attributes. The extension of these amendments by new section 789HD to State
referral employers and employees, and in the case of section 351 to action taken in a
referring State, would rely on the external affairs power as enlivened by the
Conventions listed in new section 789HC.
866. The amendments to paragraph 578(c) made by item 97 would be supported by the
incidental aspects of the relevant powers relied on to support sections 153, 195 and 351,
and so is not covered by this item.
867. The amendments in Part 8 give effect to Australia's obligations under ILO
Convention 111 and the ILO Convention 190.
868. Article 2 of ILO Convention 111 requires Members to declare and pursue a national
policy designed to promote equality of opportunity and treatment in respect of
144
employment and occupation, with a view to eliminating any discrimination in
employment.
869. Article 3(b) of ILO Convention 111 requires Members to, by methods appropriate to
national conditions and practice, enact such legislation 'as may be calculated to secure
the acceptance and observance of the policy.'
870. The National Plan to End Violence against Women and Children 2022-2032
(NPEVWC), is a national policy encouraging workplaces to integrate intervention
initiatives to reduce, prevent and respond appropriately to sexual harassment and
violence. The NPEVWC aims to promote recovery for victim-survivors, including
'rebuilding of a victim-survivor's life, their ability to return to the workplace and
community, as well as obtaining financial independence and economic security'.11 The
term 'victim-survivor' is used in the NPEVWC as a gender-neutral term to describe all
people, including men, experiencing family, domestic and sexual violence.12 The
NPEVWC also aims to challenge sensationalised or stereotyped views, as well as views
informed by other types of discrimination, that contribute to a culture that condones
gender-based violence and enables victim-blaming.13 The NPEVWC notes '[e]ffective
processes and policies can also enable employees experiencing gender-based violence
to seek support and receive assistance from their employers'.14 The amendments in
Part 8 would support these aims by preventing discrimination against employees and
prospective employees subjected to FDV and, in the case of items 96 and 97, allowing a
victim-survivor to seek civil remedy when they believe their employer or prospective
employer has contravened the relevant general protections prohibitions.
871. The Australian Government ratified ILO Convention 190 on 9 June 2023. When ILO
Convention 190 comes into force for Australia on 9 June 2024, amendments in Part 8
would engage Australia's commitments under this Convention to ensure non-
discrimination in employment and occupation, and to mitigate the effects of domestic
violence in the world of work.
872. Article 6 of ILO Convention 190 requires Members to adopt laws, regulations and
policies ensuring the right to equality and non-discrimination in employment and
occupation, including for women workers, as well as for workers and other people
belonging to vulnerable groups disproportionately affected by violence and harassment
in the world of work. The amendments in Part 8 ensure the right to equality and non-
discrimination for employees experiencing FDV by establishing a new protected
attribute within the FW Act for employees who have been, or continue to be, subjected
to family and domestic violence.
873. Article 10(f) of ILO Convention 190 requires Members to take appropriate measures to
recognise the effects of domestic violence and, so far as reasonably practicable,
11
Commonwealth of Australia (2022) National Plan to End Violence Against Women and Children 2022-2032,
86.
12
Ibid 33.
13
Ibid 105.
14
Ibid 57.
145
mitigate its impact in the world of work. The amendments in Part 8 recognise the
effects of domestic violence and mitigate its impact in the world of work by preventing
discrimination against employees subjected to family and domestic violence and
improving those employees' options for recourse when such discrimination does occur
in the workplace.
146
Part 9--Sham arrangements
Amendments to the Fair Work Act 2009
874. The amendments in Part 9 would change the defence to misrepresenting employment as
an independent contracting arrangement (known as 'sham contracting'), in
subsection 357(2) of the Act from a test of 'recklessness' to one of reasonable belief.
The amendments in this schedule would also provide a non-exhaustive list of factors a
court must consider when assessing reasonableness under the new defence. The new
test will only apply in relation to representations made on or after the commencement
of Part 9 of Schedule 1 to this Bill.
Item 103: Subsection 357(2)
875. Subsection 357(1) currently prohibits an employer from misrepresenting an
employment contract as an independent contracting arrangement. This is often referred
to as sham contracting. Subsection 357(2) currently provides a defence to sham
contracting if the employer proves that, when the representation was made, the
employer did not know, and was not reckless as to whether, the contract was a contract
of employment rather than a contract for services.
876. This item would repeal existing subsection 357(2) and replace it with new
subsections 357(2) and 357(3). New subsection 357(2) would provide a defence to
sham contracting in subsection 357(1) if the employer reasonably believed that the
contract was a contract for services. The burden of proof would rest with the party who
made the representation, consistently with the existing defence.
877. This would implement recommendations made by several independent reviews,
including the Post Implementation Review of the Act, the Productivity Commission's
Report on the Workplace Relations Framework and the Black Economy Taskforce
Final Report. The reviews found that the current defence in subsection 357(2) is not
effective at deterring sham contracting, as it is too easy for an employer to establish that
they did not know the true nature of the engagement and did not act recklessly when
making the misrepresentation. The reviews recommended the defence be replaced with
a more objective test. The new defence under subsection 357(2) would enable a court to
assess an employer's behaviour according to what the employer reasonably believed,
rather than assessing an employer's behaviour only with regards to their subjective
reasons for acting.
878. The new subsection 357(3) would provide guidance to a court in determining whether
an employer's belief was reasonable. Subparagraph 357(3)(a) would provide that the
size and nature of the employer's enterprise must be considered when determining if an
employer's belief was reasonable. This consideration would only be a relevant
consideration of reasonable belief for the purposes of sham contracting and would not
apply to uses of that phrase elsewhere in the FW Act.
147
879. New subparagraph 357(3)(b) would give a court discretion to consider any other
relevant factors relevant to determining if an employer's belief was reasonable.
Depending on the particular circumstances, other relevant factors might include:
• the employer's skills and experience;
• the industry in which the employer operates;
• how long the employer has been operating;
• the presence or absence of dedicated human resource management specialists or
expertise in the employer's enterprise; and
• whether the employer sought legal or other professional advice about the proper
classification of the individual, including any advice from an industrial association,
and, if so, acted in accordance with that advice.
880. Subsection 357(3) would provide guidance to employers as to the evidence they may
seek to rely upon in establishing the new defence to sham contracting and reinforce the
expectation that employers should take appropriate steps, commensurate with their
experience and the nature of their enterprise, to understand how they are engaging an
individual before entering into a contract.
881. If an employer is found to have engaged in sham contracting but successfully makes
out the defence, the employer would not be liable to a civil penalty for a contravention
of subsection 357(1). However, they may still be liable for other civil contraventions in
relation to the misclassification. For example, if an employer has not paid correct
entitlements to an employee as a result of a misclassification of an employee as an
independent contractor, the employer may be liable to a civil penalty and/or to backpay
the unpaid entitlements.
148
Part 10--Exemption certificates for suspected underpayment
Amendments to the Fair Work Act 2009
882. This Part would amend Part 3-4 (Right of Entry) of the FW Act to:
• enable an organisation to obtain an exemption certificate from the FWC to waive
the minimum 24 hours' notice requirement for entry if they reasonably suspect a
member of their organisation has been or is being underpaid;
• empower the FWC to take action in relation to the future issue of such exemption
certificates if those rights are misused (for example, by imposing conditions, or
banning their issue for a specified period);
• protect permit holders who are exercising rights in accordance with Part 3-4 from
improper conduct by others; and
• empower the FWC to impose conditions on a permit, as an alternative to revoking
or suspending an entry permit in the circumstances set out in section 510 of the
FW Act.
Item 104: Subsection 481(1) (note 4)
Item 105: Subsection 483A(1) (note 3)
Item 106: Section 484 (note 2)
Item 107: Subsection 492(3) (note 2)
Item 108: Section 500 (note 3)
Item 109: Section 502 (at the end of the heading)
Item 110: At the end of subsection 502(1)
Item 111: Subsection 502(2)
Item 112: Subsection 502(3)
883. These items would amend the existing prohibition on hindering or obstructing a permit
holder exercising their rights in accordance with Part 3-4 of the FW Act, so that it also
prohibits improper conduct, and make the necessary consequential amendments.
884. Items 104 to 108 are consequential, and would update the notes under the specified
subsections to reflect the proposed change.
885. Item 109 is consequential upon the substantive change, and would amend the specified
heading so it reflects the proposed change.
886. Item 110 would amend subsection 502(1) to provide (in addition to the existing
prohibitions) that a person must not act in an improper manner towards a permit holder
who is exercising their rights in accordance with Part 3-4 of the FW Act. This extension
is intended to cover a wider range of conduct than intentionally hindering or obstructing
and may include, depending on the circumstances, swearing, making offensive, racist,
sexist or homophobic comments or acting in a physically aggressive or intimidatory
manner towards a permit holder.
149
887. The proposed amendment would bring the prohibition in section 502 in line with the
similar prohibition in section 500, which prohibits permit holders from hindering or
obstructing etc. others while exercising their rights in accordance with Part 3-4.
888. Subsection 502(1) is a civil remedy provision under Part 4-1 (Civil Remedies).
889. Items 111 and 112 are consequential, and would amend the specified subsections to
reflect the changes made to the substantive provision by Item 110.
Item 113: After paragraph 508(2)(d)
Item 114: After paragraph 508(2)(e)
890. Subsection 508(1) of the FW Act empowers the FWC to restrict the rights that are
exercisable under Part 3-4 by an organisation, or officials of an organisation, if satisfied
that they have misused those rights. Subsection 508(2) sets out examples of the kind of
action the FWC may take.
891. These items would insert two new items into the list to make clear that the FWC may
take action by:
• requiring, for a specified period, that some or all of the exemption certificates that
might be issued in relation to the organisation on the ground mentioned in
subparagraph 519(1)(b)(ii) to be issued subject to specified conditions; and
• banning, for a specified period, the issue of exemption certificates on the ground
mentioned in subparagraph 519(1)(b)(ii) in relation to an organisation, either
generally or to specified permit holders.
892. The reference to subparagraph 519(1)(b)(ii) denotes the new ground on which the FWC
may issue an exemption certificate (see item 122).
893. These items would provide the FWC with additional powers to support its protective
role with respect to rights exercised under Part 3-4.
894. If the FWC required exemption certificates to be issued subject to specified conditions,
such conditions could be recorded on the exemption certificate(s) when issued by the
FWC.
Item 115: Subdivision D of Division 5 of Part 3-4 (heading)
Item 116: Section 510 (heading)
Item 117: Subsection 510(1) (heading)
Item 118: Subsection 510(1)
Item 119: Subsection 510(5) (at the end of the heading)
Item 120: Subsection 510(5)
Item 121: Paragraph 510(6)(a)
895. Subsection 510(1) provides that the FWC must revoke or suspend each entry permit
held by a permit holder if it is satisfied that any of the events listed in
paragraphs 510(1)(a) to (f) has happened since the first of those permits was issued.
150
896. These items would empower the FWC to impose conditions on a permit, as an
alternative to revoking or suspending an entry permit in the circumstances set out in
section 510 of the FW Act, and make the necessary consequential amendments.
897. Items 115 to 117 are consequential upon the substantive changes, and would amend the
specified headings to reflect the proposed changes.
898. Item 118 would empower the FWC to impose conditions on an entry permit as an
alternative to suspending or revoking the entry permit when required to take action
under subsection 510(1). This would provide the FWC with an additional mechanism in
taking action under subsection 510(1), to ensure that the proposed sanction is
appropriate.
899. The FWC must record on an entry permit any conditions that have been imposed on its
use (FW Act, subsection 515(3)). The FWC may specify the duration of a condition, if
appropriate.
900. Items 119 to 121 are consequential upon the substantive change made by item 118, and
would ensure that the change is reflected throughout section 510 as appropriate.
Item 122: Paragraph 519(1)(b)
Item 123: After paragraph 519(2)(d)
901. Subsection 519(1) of the FW Act provides that the FWC must issue an exemption
certificate to an organisation for an entry under section 481 (which deals with entry to
investigate suspected contraventions) if the organisation has applied for the certificate
(paragraph 519(1)(a)) and the FWC reasonably believes that the advance notice of the
entry given by an entry notice might result in the destruction, concealment or alteration
of relevant evidence (paragraph 519(1)(b)).
902. In effect, an exemption certificate waives the minimum 24 hours' notice requirement
that would otherwise apply to entry under section 481. A permit holder exercising entry
without notice (pursuant to a certificate) must instead provide a copy of the exemption
certificate to the occupier of the premises and any affected employer either before or as
soon as practicable after entering the premises (section 487).
903. Item 122 would supplement the exemption scheme in section 519 by empowering the
FWC to issue an exemption certificate on a new ground, that is, if it is satisfied that the
suspected contravention, or contraventions, involve the underpayment of wages, or
other monetary entitlements, of a member of the organisation whose industrial interests
the organisation is entitled to represent and who performs work on the relevant
premises.
904. This amendment would enhance the ability of permit holders and organisations to
effectively investigate suspected contraventions of the Act or a fair work instrument
(for example, a modern award or enterprise agreement) involving underpayment of
wages, or other monetary entitlements, of a member.
151
905. It is anticipated that applications under section 519 (including applications brought
under the new ground) would generally be dealt with on an ex parte basis, because its
purpose is to enable entry to premises without notice, in the specified circumstances.
906. There is no change to existing protections, including:
• limiting the exercise of the relevant entry rights to workplaces and working hours
only (subsections 481(1), 490(1));
• limiting access to member records as set out in section 482, subject to the existing
exemption scheme in section 483AA;
• prohibiting entry permit holders from intentionally hindering and obstructing any
other person when exercising rights of entry, or otherwise acting in an improper
manner (section 500);
• restricting the unauthorised use or disclosure of information or documents
(section 504); and
• prohibiting an entry permit holder from entering any part of premises that is used
mainly for residential purposes (section 493).
907. Item 123 would add a new requirement to the content requirements for exemption
certificates listed in subsection 519(2). That is, a new requirement that an exemption
certificate issued on the new ground set out in new subparagraph 519(1)(b)(ii) must
also specify the names of any permit holders who may enter under the exemption
certificate.
152
Part 11--Penalties for civil remedy provisions
Amendments to the Fair Work Act 2009
908. Part 11 would amend the FW Act to reduce underpayments and the exploitation of
workers in Australia by providing further deterrence against non-compliance with
tougher penalties.
909. The measures in this Part implement recommendation 5 of the Migrant Workers'
Taskforce to increase the general level of penalties for contraventions of wage
exploitation-related provisions in the FW Act so that they are more in line with those
applicable in other business and consumer laws.
910. The amendments made by this Part would:
• increase civil pecuniary penalties that apply to contraventions (including serious
contraventions) of wage exploitation-related provisions by five times;
• increase the civil pecuniary penalty for failure to comply with a compliance notice
by 10 times so that it is consistent with other penalties;
• enable the maximum penalty for a contravention to be determined by reference to
three times the value of the underpayment (if relevant) in certain circumstances;
• amend the scheme for 'serious contraventions' in section 557A so that it applies to
knowing and reckless contraventions of the relevant provisions, so the scheme
applies to mid-tier contraventions and operates more harmoniously with the
proposed underpayments offence.
Division 1--Penalties
Item 124: Subsection 539(2) (cell at table item 1, column 4)
Item 125: Subsection 539(2) (cell at table item 2, column 4)
Item 126: Subsection 539(2) (cell at table item 3, column 4)
Item 127: Subsection 539(2) (cell at table item 4, column 4)
Item 128: Subsection 539(2) (cell at table item 5, column 4)
Item 129: Subsection 539(2) (cell at table item 7, column 4)
Item 130: Subsection 539(2) (cell at table item 8, column 4)
Item 131: Subsection 539(2) (cell at table item 9, column 4)
Item 132: Subsection 539(2) (cell at table item 10, column 4)
Item 133: Subsection 539(2) (cell at table item 10A, column 4)
Item 138: Subsection 539(2) (cell at table item 29, column 4)
911. These items would increase the maximum civil pecuniary penalties for the specified
civil remedy provisions to 3,000 penalty units for a 'serious contravention' (as provided
for in section 557A of the FW Act) and otherwise 300 penalty units. This represents a
five-fold increase. The maximum civil pecuniary penalties would be five times higher
153
for a body corporate. The amount of a Commonwealth penalty unit is $313 at the time
of publishing.
912. In summary, the proposed civil pecuniary penalty increases for ordinary and 'serious
contraventions' would affect:
Bill item Item in Provision, general description
subs 539(2)
table
124 1 44--Contravening National Employment Standards
125, 126 2, 3 45--Contravening a modern award
127, 128 4, 5 50--Contravening an enterprise agreement
129 7 280--Contravening a workplace determination
130 8 293--Contravening a national minimum wage order
131 9 305--Contravening an equal remuneration order
132, 133 10, 10A 323(1), (3)--Method and frequency of payment
325(1), (1A)--Unreasonable requirements to spend or pay amount
328(1), (2), (3)--Employer obligations in relation to guarantee of
annual earnings
138 29 535(1), (2), (4)--Employer obligations in relation to employee
records
536(1), (2), (3)--Employer obligations in relation to pay slips
Item 134: Subsection 539(2) (table item 11, column 1)
Item 135: Subsection 539(2) (table item 11, column 1)
Item 136: Subsection 539(2) (table item 11, column 1)
Item 137: Subsection 539(2) (after table item 11)
Item 139: Subsection 539(2) (table item 29AA, column 4)
Item 140: Subsection 539(2) (table item 29A, column 4)
Item 141: Subsection 539(2) (table item 32, column 4)
Item 142: Subsection 539(2) (table item 33, column 4)
Item 143: Subsection 539(2) (table item 33A, column 4)
Item 144: Subsection 539(2) (table item 34, column 4)
913. These items would increase the ordinary civil pecuniary penalties for the specified civil
remedy provisions to 300 penalty units for an individual, and five times higher for a
body corporate. This represents a five-fold increase, and a ten-fold increase to the
maximum civil pecuniary penalty for a failure to comply with a compliance notice
(table item 33 in subsection 539(2)).
154
914. Items 134 to 137 would involve a rearrangement of table item 11 in subsection 539(2),
so that the penalty increase is limited to contraventions of subsection 357(1) and
sections 358 and 359 of the FW Act.
915. In summary, the proposed civil pecuniary penalty increases for ordinary contraventions
would affect:
Bill item Item in Provision, general description
subs 539(2)
table
137 11A 357(1)--Misrepresenting employment as independent contracting
arrangement
358--Dismissing to engage as independent contractor
359--Misrepresentation to engage as independent contractor
139 29AA 536AA(1), (2)--Employer obligations in relation to advertising
rates of pay
140 29A 558B(1), (2)--Responsibility of responsible franchisor entities
and holding companies for certain contraventions
141 32 712(3)--Power to require persons to produce records etc
142 33 716(5)--Compliance notices
143 33A 718A(1)--False or misleading information or documents
144 34 745(1)--Contravening the extended parental leave provisions
760--Contravening the extended notice of termination provisions
Item 145: Paragraph 557A(1)(a)
Item 146: Paragraph 557A(1)(b)
Item 147: Subsection 557A(1) (example)
Item 148: Subsections 557A(2) to (5)
916. These items would amend the scheme for 'serious contraventions' in section 557A so
that the scheme applies to mid/upper-tier contraventions and operates harmoniously
with the proposed underpayments offence. The latter would be reserved for the most
serious instances of intentional underpayments.
917. Items 145 and 146 would amend the concept of a 'serious contravention' so that a
contravention of a civil remedy provision by a person is a serious contravention if the
person knowingly contravened the provision or was reckless as to whether the
contravention would occur.
918. This adds an alternative 'recklessness' element to the provision, and omits the
requirement in existing paragraph 557A(1)(b) that 'the person's conduct constituting
the contravention was part of a systematic pattern of conduct relating to one or more
other persons'.
155
919. Item 147 would update the example under subsection 557A(1) to reflect the changes.
920. Item 148 would omit provisions that deal with the test for systematic patterns of
conduct, and insert a definition of 'reckless' for purposes of the provision as amended.
The definition is specific to the provision, and adopts a 'subjective belief' test,
commensurate to the test that is typically used in the criminal law. The higher
evidentiary bar posed by using the 'subjective belief' test for recklessness reflects the
seriousness of these kinds of contraventions, which attract relatively high civil
pecuniary penalties under the FW Act. The insertion of this provision is not intended to
affect the operation of how 'recklessness' fault elements operate elsewhere in the
FW Act, as the term is intended to take its meaning from the individual purpose and
context of each provision.
Division 2--Contingent amendments
Item 149: Subsection 539(2) (cell at table item 34AAA, column 4)
921. The SJBP Act will insert a new item (item 34AAA) into the table under
subsection 539(2) of the FW Act. This will specify section 757BA (which deals with
employer obligations in relation to pay slips relating to paid leave to which the person
is entitled because of section 757B) as a civil remedy provision. The maximum civil
penalty for a contravention will attract a penalty for a 'serious contravention' of
600 penalty units for an individual, or otherwise 60 penalty units for an individual. The
penalty is five times higher for bodies corporate.
922. This item is contingent on the commencement of the relevant sections, and would
increase the penalties five-fold to 3,000 penalty units for a 'serious contravention' (as
provided for in section 557A of the FW Act) and otherwise 300 penalty units.
Division 3--Underpayments
Item 150: Section 12
Item 151: Subsection 539(2) (after note 3)
Item 152: Subsection 546(2)
Item 153: After subsection 546(2)
923. These items would enable an 'amount of the underpayment' penalty to apply as the
maximum civil penalty for contravention of a civil remedy provision, if certain
prerequisites are met.
924. Item 150 would insert a definition of the phrase 'associated with an underpayment
amount' into the definitions (section 12 of the FW Act).
925. Item 151 would insert a note under subsection 539(2) to alert readers to provisions that
deal with civil penalties for bodies corporate, and contraventions associated with
underpayment amounts.
926. Item 152 is consequential upon the insertion of new subsection 546(2A), by
accommodating the new subsection.
156
927. Item 153 would insert new subsection 546(2A), which provides for application of the
new 'amount of the underpayment' penalty for contravention of a civil remedy
provision, providing that:
• the contravention is 'associated with an underpayment amount'
(paragraph 546(2A)(a)); and
• the application specifies that the applicant wants the maximum penalty to be
calculated based on a multiple of the underpayment amount
(paragraph 546(2A)(b)); and
• the person is not taken to have contravened the civil remedy provision under
section 550 (person involved in a contravention) (paragraph 546(2A)(c)).
928. New paragraph 546(2A)(b) is intended to afford respondents an extra degree of
protection; by putting them on notice, as early as possible in the proceeding, about the
kind of civil pecuniary penalties that are being sought (and could be imposed) against
them and the evidence required for the court to determine the amount of the
underpayment. It is intended to operate in a similar manner to existing
subsection 557A(6), which applies where higher pecuniary penalties are being sought
for an alleged 'serious contravention'. While it would be possible for an applicant to
seek to amend their originating application before a court to seek an 'amount of the
underpayment' penalty at a later stage, it is expected that the relevant court would
consider justice between the parties and the timing of the application to amend as
important factors in exercising their discretion whether to allow the application.
929. New paragraph 546(2A)(c) makes it clear that an 'amount of the underpayment'
penalty would not be available in relation to an accessory (see section 550 of the
FW Act). The rationale for an 'amount of the underpayment' penalty is that the
maximum penalty that may be imposed on a wrong doer should reflect a multiple (that
is, three times) of the amount of their wrongful profit, in this context, the amount of the
underpayment. Such a penalty is intended to more adequately penalise and deter
wrongdoing in circumstances where the amount of the underpayment exceeds the
maximum civil pecuniary penalty specified in subsection 539(2). In an underpayments
case, the beneficiary of the wrongful conduct (that is, underpayments) would be the
underpaying employer, not an accessory, so it is inappropriate to levy an 'amount of the
underpayment' penalty against multiple parties, and against individuals who are not the
beneficiary of the underpayment--that is, against an accessory or accessories, as well
as the employer.
930. New paragraphs 546(2A)(d) and (e) would provide that the maximum pecuniary
penalty is the higher of: the ordinary penalty for the contravention as set out in the
relevant column in the table in existing subsection 539(2) (or five times that amount for
bodies corporate) or three times the 'underpayment amount'. This provision establishes
the maximum pecuniary penalty for a contravention of a civil remedy provision, and
the courts would be responsible for imposing an appropriate civil pecuniary penalty on
the contravener(s), using their sentencing discretion.
157
Item 154: After section 546
931. This item would insert new section 546A into the FW Act, to provide for when a
contravention of a civil remedy provision is taken to be 'associated with an
underpayment amount' for the purposes of determining whether an 'amount of the
underpayment' penalty may apply.
932. New section 546A would enable an 'amount of the underpayment' penalty to be
available if there is a failure to pay the required amount under the FW Act or a
specified instrument (as set out in the provision), and the failure is related to the
contravention. This means that such a penalty may apply to contraventions that directly
or indirectly result in underpayments. For example, failure to pay minimum rates under
an applicable modern award is an example of a contravention that directly results in an
underpayment. A sham contracting misrepresentation, or a failure to keep employee
records, are examples of contraventions that may indirectly result in an underpayment.
The effect of new section 546A is that an 'amount of the underpayment' penalty may
be available in either of these circumstances.
933. New subsection 546A(2) would define the term 'underpayment amount', consistently
with the approach taken for the proposed wage theft measure.
934. Existing section 557 may apply if 2 or more contraventions of a civil remedy provision
specified in subsection 557(2) are committed by the same person, and the
contraventions arouse out of a course of conduct by the person. If multiple
contraventions are 'grouped' by this rule, then the corresponding 'underpayment
amount' for each relevant contravention would also likewise be aggregated for
purposes of the new provisions.
158
Part 12--Compliance notice measures
Amendments to the Fair Work Act 2009
935. This Part would amend the FW Act to clarify that:
• a compliance notice issued to a person may require the person to calculate and pay
the amount of any underpayment; and
• a relevant court may make an order requiring compliance with a notice (other than
an infringement notice) issued by a Fair Work Inspector or the FWO.
Item 155: At the end of subsection 545(2)
936. Subsection 545(1) of the FW Act affords a broad discretion to a relevant court to grant
an 'appropriate' remedy which meets the circumstances of the contravention of a civil
remedy provision under the FW Act. Without limiting subsection (1), subsection 545(2)
provides that a relevant court can make orders of the specified kind.
937. This item would amend the provision to add a new example to the list in
subsection 545(2): an order requiring a person to comply, either wholly or partly, with a
notice (other than an infringement notice) given to the person by a Fair Work Inspector
or the FWO. This reference to a notice includes:
• a notice to produce issued by a Fair Work Inspector (see the FW Act, section 712);
• a compliance notice issued by a Fair Work Inspector (see the FW Act, section 716);
and
• a FWO notice given to a person by the FWO (or their delegate) (see the FW Act,
section 712AD).
Item 156: At the end of paragraph 716(2)(a)
938. Subsection 716(2) of the FW Act provides that a Fair Work Inspector may give a
person a notice (compliance notice) requiring the person to take the action specified in
the notice to remedy the direct effects of the contravention identified in
subsection 716(1). That subsection applies only if an inspector reasonably believes that
a person has contravened one or more of the provisions or terms referred to in
subsection 716(1) of the FW Act.
939. This item would amend existing subsection 716(2) to clarify that the specified action
may include requiring the recipient to calculate and pay the amount of any
underpayment.
940. This amendment supports the view of the Migrant Workers' Taskforce that there should
be no 'unnecessary legislative or administrative barriers' to the effective use of
compliance notices.
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Part 13--Withdrawal from amalgamations
Amendments to the Fair Work (Registered Organisations) Act 2009
941. This Part would amend the RO Act to repeal amendments made by the 2020 RO Amdt
Act, relating to the withdrawal of parts of amalgamated organisations (de-merger).
942. Amendments proposed to be made by this Part would:
• repeal provisions of the RO Act that enable the FWC to accept applications for a
de-merger ballot to be made more than five years after the relevant amalgamation
has occurred, to restore stability and certainty for amalgamated organisations;
• repeal paragraph (c) of the definition of 'separately identifiable constituent part' in
subsection 93(1) of the RO Act, to restore certainty about the part(s) of an
organisation that may be subject to a de-merger ballot and de-merger from an
amalgamated organisation;
• reverse a number of minor or technical amendments to the de-merger provisions
including provisions about:
o the conduct of ballots;
o the proposed name of the relevant organisations and the proposed rules, or
alterations of rules, of the relevant organisations and when they take effect
at the conclusion of a de-merger process;
o the FWC's power to accept undertakings to avoid demarcation disputes;
and
o membership of the newly registered organisation.
Item 157: Paragraph 92(a)
Item 158: Paragraph 92(b)
943. These items update the objects of the relevant Part to reflect the proposed changes
made by this Bill.
Item 159: Section 92A
944. Section 92A of the RO Act requires there to be a statutory review of the amendments
made by the 2020 RO Amdt Act by the specified time. The relevant review report is
published on the website of the Department.
945. This item would repeal the section, as it has been complied with and is now redundant.
Item 160: Subsection 93(1) (definition of amalgamated organisation)
Item 161: Subsection 93(1) (definition of amalgamated organisation)
Item 162: Subsection 93(1) (paragraph (b) of the definition of constituent member)
Item 163: Subsection 93(1) (subparagraph (b)(i) of the definition of constituent part)
Item 165: Subsection 93(1) (definition of predecessor law)
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Item 166: Subsection 93(1) (paragraph (a) of the definition of separately identifiable
constituent part)
Item 170: Subsection 93(2)
Item 171: Subsection 93(3)
Item 172: Subsection 93(4)
Item 174: Paragraph 94(1)(a)
946. The 2020 RO Amdt Act amended the RO Act to empower the FWC to accept
applications for de-merger ballots more than five years after the relevant amalgamation
occurred: section 94A of the RO Act. As part of this function, the FWC may consider
organisations that existed, or amalgamations that occurred under older, 'predecessor
laws' (as defined). It is proposed that the FWC's ability to accept applications outside
the standard five year limitation period be removed.
947. These items would remove the definition of, and references to, the term 'predecessor
law' throughout the relevant Part, as they will no longer be required if the other repeals
proposed by this Bill are made.
Item 164: Subsection 93(1) (definition of designated official)
Item 179: Subsection 102(1) (heading)
Item 180: Subsections 102(1A), (1B) and (1C)
Item 185: Subsection 102(3)
Item 187: Section 103 (heading)
Item 188: Subsection 103(1) (heading)
Item 189: Subsections 103(1A), (1B) and (1C)
Item 190: Subsection 103(2) (heading)
Item 191: Subsection 103(2)
Item 192: Subsection 103(5) (heading)
Item 193: Subsection 103(7) (heading)
Item 194: Subsection 103(7)
Item 195: Subsection 104(1)
Item 196: Subsection 104(1A)
Item 197: Subsection 106(1)
Item 198: Paragraph 106(1)(c)
Item 199: Subsections 106(2) and (3)
Item 200: Section 107 (heading)
Item 201: Subsection 107(1)
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Item 202: Subsection 107(2)
Item 203: Subsection 107(4)
948. The 2020 RO Amdt Act amended the RO Act to enable a 'designated official' to
conduct de-merger ballots and related functions if allowed by the FWC.
949. These items would remove capacity for de-merger ballots to be conducted by a
'designated official', and make the necessary consequential amendments. This would
reinstate the arrangements for conducting de-merger ballots as they were before the
2020 amendments (that is, de-merger ballots would be conducted exclusively by the
AEC).
Item 167: Subsection 93(1) (paragraph (b) of the definition of separately identifiable
constituent part)
Item 168: Subsection 93(1) (paragraph (c) of the definition of separately identifiable
constituent part)
950. The 2020 RO Amdt Act amended the RO Act to expand the kinds of 'constituent parts'
that are eligible to de-merge from an amalgamated organisation (that is, by adding
paragraph (c) to the definition of 'separately identifiable constituent part' in
subsection 93(1)). In a departure from previous policy, this extension did not require
there to be a clear connection between the 'constituent part' seeking to de-merge and a
previous organisation de-registered with respect to the formation of the amalgamated
organisation.
951. These items would repeal paragraph (c) of the definition of a 'separately identifiable
constituent part' in subsection 93(1) of the RO Act and make a consequential
amendment. This would reinstate the rules regarding which parts of an amalgamated
organisation are capable of de-merging to as they were before the 2020 amendments
were made, and remove the uncertainty about the scope and operation of the current
provisions.
Item 169: Subsection 93(1) (definition of workplace or safety law)
Item 175: Sections 94A and 95A
Item 177: Paragraph 100(1)(ba)
Item 183: Paragraphs 102(2)(aa) and (ca)
Item 207: Sections 110A and 110B
952. The 2020 RO Amdt Act amended the RO Act to:
• empower the FWC to accept applications for de-merger ballots made more than five
years after the relevant amalgamation has occurred (section 94A of the RO Act);
• require specified information be given to the FWC about proposed names and rules
(or amendments to existing names and rules, as the case may be) for the affected
organisations (section 95A of the RO Act);
• specify when the rules of a newly registered organisation and any alterations to the
rules of an amalgamated organisation take effect (section 110A of the RO Act); and
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• make the necessary consequential amendments.
953. These items would repeal these provisions, and restore the relevant provisions to how
they were before the 2020 amendments.
Item 173: Subsection 94(1)
Item 176: Subsection 100(1)
Item 181: Subsection 102(2) (heading)
Item 182: Subsection 102(2)
Item 184: Subsection 102(3)
Item 186: Subsection 102(4)
954. The 2020 RO Amdt Act amended provisions of the RO Act relating to the conduct of
de-merger ballots, to provide that such ballots could be conducted otherwise than by
post (for example, by attendance ballots).
955. These items would restore the provisions relating to the conduct of de-merger ballots to
how they were before the 2020 amendments, and make necessary consequential
amendments. This would align the provisions with those for similar kinds of ballots
conducted under the RO Act, including the default for ballots to approve proposed
amalgamations (RO Act, section 65).
Item 178: Subsection 100(4)
Item 183: Paragraphs 102(2)(aa) and (ca)
Item 207: Sections 110A and 110B
956. The 2020 RO Amdt Act amended the RO Act so that, in ordering that a ballot be held,
the FWC may accept certain undertakings to avoid demarcation disputes that might
otherwise from an overlap between the eligibility rules proposed for the affected
organisations (RO Act, subsection 100(4)).
957. These items would repeal this power (RO Act, subsection 100(4)) (item 178), provision
for when and how such undertakings take effect (RO Act, section 110B) (item 207) and
other minor consequential amendments. This would restore the provisions to how they
were before the 2020 amendments.
Item 204: Paragraph 109(2)(a)
Item 205: Paragraph 109(2)(b)
Item 206: Paragraph 109(2)(ba)
958. The 2020 RO Amdt Act made minor amendments to section 109 of the RO Act, which
empowers the Federal Court to make certain orders giving effect to ballots, including
orders relating to assets and liabilities. In general, these amendments reflected the fact
that a broader range of 'constituent parts' could potentially de-merge from an
amalgamated organisation.
163
959. These items would reverse the 2020 amendments, which will no longer be necessary or
relevant if the other repeals proposed by this Bill are made.
Item 208: Section 111 (heading)
Item 209: Paragraph 111(3)(b)
Item 210: Subsection 111(4)
960. The 2020 RO Amdt Act amended the provisions for membership of an organisation
following de-merger of a 'separately identifiable constituent part', so that any members
of such a part would become a member of the newly registered organisation by default
(RO Act, subsections 111(3) and (4)).
961. These items would restore the relevant provisions to how they were prior to the 2020
amendments. In particular, by restoring a process for members of the amalgamated
organisation to choose to remain a member of the amalgamated organisation or become
a member of the newly registered organisation.
Item 211: Subsection 123(2)
962. The 2020 RO Amdt Act amended the provisions for individuals holding office after de-
merger under section 123 of the RO Act, so that the rules of a newly registered
organisation must not permit a person to hold office after the day that would have been
the person's last day of term in the constituent office if the de-merger had not occurred.
963. This item would reinstate the provisions that applied before the 2020 amendments, so
that the rules of the newly registered organisation must not permit a person to hold
office after the later of:
• the day that would have been the person's last day of term in the constituent office
if the withdrawal had not occurred; or
• the first anniversary of the date of the withdrawal.
Item 212: Application of amendments
964. This item provides for the application of the proposed amendments, as follows:
• if the relevant section 94 application does not or did not rely on section 94A or
paragraph (c) of the definition of 'separately identifiable part' - the process may
proceed under the old rules (that is, the provisions that applied under the RO Act as
if the amendments made by this Part had not been made); and
• if the relevant section 94 application for a proposed de-merger relies or relied on
one or both of those provisions - the process may only continue (again, under the
old rules) if the ballot in relation to the proposed de-merger was finalised before
1 July 2023 (that is, the ballot was prepared, dated and signed (under
subsection 106(1) of the RO Act)).
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Part 14--Wage theft
Amendments to the Fair Work Act 2009
965. Part 14 would amend the FW Act to:
• introduce a new criminal offence for wage theft, which applies to intentional
conduct;
• apply Part 2.5 of the Criminal Code to establish corporate criminal liability in
relation to the new criminal offence for wage theft;
• enable the responsible Minister to declare, by legislative instrument, a voluntary
small business wage compliance code (the voluntary code). Compliance with the
voluntary code is intended to provide assurance to small business employers that
they will not be referred for criminal prosecution for wage theft under the FW Act;
• introduce cooperation agreements with 'safe harbour' effect, in relation to self-
reporting of conduct to the FWO which may amount to the commission of a wage
theft offence under the FW Act;
• confer a new function on the FWO requiring the FWO to publish a compliance and
enforcement policy, including guidelines relating to the circumstances in which the
FWO will or will not accept or consider undertakings, or enter or consider entering
into cooperation agreements;
• require the FWO consult with the NWRCC about the guidelines, before publishing
its compliance and enforcement policy;
• make minor amendments to the functions and powers of FWO and Fair Work
Inspectors, to ensure that all relevant existing compliance and related powers may
be exercised for determining whether an offence has been committed;
• clearly empower the FWO and Fair Work Inspectors to exercise their compliance
and related powers to investigate suspected ancillary and similar offences ('related
offence provisions'), for which provision is made under the Criminal Code or
Crimes Act;
• provide that immunities (that apply if an individual's privilege against self-
incrimination is abrogated) do not apply in relation to employee records required to
be kept under the FW Act, or records of pay slips;
• provide that only the CDPP and AFP may commence a prosecution of the new
criminal offence for wage theft, within 6 years of the offence occurring;
• enable the Commonwealth Crown (but not other Australian Governments) to be
liable to be prosecuted for the new criminal offence for wage theft or a 'related
offence provision';
• clarify that the Crown in each of its capacities (that is, all Australian Governments)
and to the extent the Commonwealth's legislative power permits, is liable to be the
subject of proceedings for a contravention of a civil remedy provision (which
maintains the status quo for these provisions); and
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• establish new attribution rules enabling civil liability to be established under the
FW Act against all Australian Governments (to the extent the Commonwealth's
legislative power permits) and criminal liability to be established against the
Commonwealth.
Item 213: Section 12
966. This item would insert 11 new definitions into the Dictionary of the FW Act,
section 12. These new definitions are explained in the context of the proposed
substantive provisions in which they appear (below).
Item 214: At the end of subsection 37(2)
Item 215: At the end of section 37
967. These items would amend the Crown liability provisions in section 37 of the FW Act,
to lift the 'Crown shield' in that section, to enable the Commonwealth to be prosecuted
for the new criminal offence for wage theft or a 'related offence provision'.
968. Item 214 would enable an exception to be created to the general rule in
subsection 37(2), that the FW Act does not make the Crown liable to be prosecuted for
an offence.
969. Item 215 would insert new subsections 37(3) and (4).
970. New subsection 37(3) provides that the Crown in right of the Commonwealth
(Commonwealth) is liable to be prosecuted for the new criminal offence for wage theft
or a 'related offence provision' that relates to such an offence. The Crown in right of
the States and Territories will not be liable for prosecution for the new offence.
971. New subsection 37(4) clarifies that the Crown, in each of its capacities and to the extent
the Commonwealth's legislative power permits, is liable to be subject of proceedings
for a contravention of a civil remedy provision. The reference to the Crown in each of
its capacities refers to all Australian Governments. Notably, the scope of liability is
intended to apply only to the extent of the Commonwealth's legislative power,
including the States' referral of powers in relation to the FW Act.
972. This provision makes clear that civil proceedings may be brought against an Australian
Government under the FW Act (subject to the relevant limitations described above),
and civil remedies including civil pecuniary penalties may be imposed in such civil
proceedings. This reflects the status quo.
Item 216: Section 321 (after the paragraph relating to Division 2)
973. This item would update the Guide to the relevant Part, to reflect the introduction of the
new criminal offence for wage theft.
Item 217: Before section 323
Item 218: Subsection 324(1) (note 1)
Item 219: Section 327 (heading)
166
Item 220: At the end of Division 2 of Part 2-9
974. These items would insert 2 new subdivisions into Division 2 of Part 2-9 (Items 217 and
220) and make a consequential amendment to a note and section heading to reflect this
change (Items 218 and 219).
975. Item 220 would insert the new criminal offence for wage theft into the FW Act (new
section 327A), make provision for the voluntary code (new section 327B) and provide
for the commencement of proceedings for offences against the new offence for wage
theft and related offence provisions (new section 327C).
Subdivision B - Offence for failing to pay certain amounts as required
Section 327A Offence - failing to pay certain amounts as required
976. New section 327A provides that an employer commits an offence if:
• the employer is required to pay an amount (a required amount) to, on behalf of, or
for the benefit of, an employee under the FW Act or a specified instrument; and
• the required amount is not an amount covered by subsection (2); and
• the employer engages in conduct; and
• the conduct results in a failure to pay the required amount to, on behalf of, or for the
benefit of, the employee in full on or before the day when the required amount is
due for payment.
977. New section 327A requires consideration of whether an amount is one that an employee
is 'required' to pay 'to, on behalf of, or for the benefit of, an employee'. If an employer
pays what the FW Act requires (section 323, read subject to the deductions clause in
section 324), they will not contravene new subsection 327A(1). For example, if a
modern award specifies a weekly base rate of $1,000 for a full-time employee, and the
employer has been properly authorised by the employee to deduct $100 per week for
parking fees (or salary sacrifice, etc.) then the 'required amount' would be $900.
978. New paragraph 327A(1)(b) provides that an amount covered by subsection (2) is not
covered by the offence provision. The states' referral of powers to the Commonwealth
that is relied on for the FW Act relevantly excludes:
• superannuation;
• long service leave;
• paid leave that the employee was entitled to take by reason of being a victim of
crime; and
• paid leave that the employee was entitled to take because the employee attended for
service on a jury, or for emergency services duties.
979. The new offence provision for wage theft does not apply to any underpayments in this
respect, if the parties are only national system employees and national system
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employers due to the States' referral of powers to the Commonwealth for the purposes
of paragraph 51(xxxvii) of the Constitution.
980. Generally, with the exception of employees who are entitled to long service leave under
Division 9 of Part 2-2 (the NES), State or Territory long service leave laws are
specifically permitted to provide entitlements to national system employees
(paragraph 27(2)(g)).
981. For new paragraph 327A(1)(c), the prosecution will have to prove beyond reasonable
doubt that the defendant intentionally engaged in the relevant conduct. A failure to
make a payment, for example, due to a banking error would not be caught by the
provision.
982. For clarity, the term 'engage in conduct' will be defined in section 12 to mean: do an
act or omit to perform an act. The term 'engages in conduct' allows the prosecution to
allege a course of conduct in charging an offence rather than being required to identify
a particular act as constituting the offending conduct.
983. For new paragraph 327A(1)(d), the prosecution will have to prove beyond reasonable
doubt that the defendant intended that their conduct would result in a failure to pay the
required amount to, on behalf of, or for the benefit of, the employee in full on or before
the day when the required amount is due for payment.
984. For there to be an offence, the person must mean to bring about the result (that is, a
failure to pay the required amount), or be aware that result will occur in the ordinary
course of events (refer to section 5.2 of the Criminal Code).
985. This makes clear that underpayments that are accidental, inadvertent or based on a
genuine mistake are not caught by the provision. For example, if an employer genuinely
misclassifies an employee and pays them an hourly rate of $25 per hour instead of $30
per hour (for the correct classification), the resulting failure to pay the required amount
($30 per hour) was not intentional and would not be caught by the provision.
986. If, however, an employer paid an employee $10 per hour, knowing it was below the
minimum wage, the resulting failure to pay the required amount (whatever it may be)
would be intentional, and caught by the provision. Exact knowledge of the required
amount (to a dollars and cents value) would not be required to establish the offence.
987. New subsection 327A(1) is followed by two legislative notes. Note 1 refers readers to
the penalty, in subsection (5), and note 2 makes clear that a single payment to, on
behalf of, or for the benefit of, an employee in relation to a particular period may
comprise more than one required amount.
988. New subsection 327A(2) would list the relevant amounts for purposes of new
paragraph 327A(1)(b). It would disapply the wage theft provision in relation to the
specified entitlements for 'referral' employees and employers, that is, those employees
and employers who are covered by the FW Act only by virtue of the States' referral of
powers to the Commonwealth for the purposes of paragraph 51(xxxvii) of the
Constitution.
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989. New subsection 327A(3) specifies the fault elements for the new criminal offence for
wage theft:
• absolute liability applies to paragraphs (1)(a) and (b); and
• the fault element for paragraphs (1)(c) and (d) is intention.
990. The two legislative notes under the subsection alert the reader to the sections of the
Criminal Code that are relevant to the interpretation of the subsection.
991. Section 6.2 of the Criminal Code provides that the prosecution is not required to prove
any fault element in relation to any offence or physical element of an offence which is
expressly provided to be of absolute liability. Where absolute liability applies to an
element of an offence or the complete offence, the defence of mistake of fact under
section 9.2 of the Criminal Code is not available to the defendant. Absolute liability is
appropriate in situations where it is not sensible to place on the prosecution the onus of
demonstrating a fault element and where the mistake of fact defence should not be
available to a defendant.
992. Absolute liability applies to the physical elements in proposed paragraphs (1)(a) and (b)
because in most applicable instances the person concerned will not possess any fault
element concerning these physical elements, and accordingly the offence would
become almost unenforceable if the prosecution were obliged to demonstrate fault.
Further, the person's degree of culpability under this offence is not materially affected
by absence of the subject fault. (The fault element for paragraphs (1)(c) and (d) is
intention, which requires the prosecution to prove that the required conduct was
intention, and that there was a resulting intention to fail to pay the required amount, or
underpay.) The defence of mistake of fact should not be available to the defendant for
paragraphs (1)(a) and (1)(b) and accordingly absolute liability, and not strict liability, is
the appropriate application.
993. New subsection 327A(4) deals with the situation where things have been given or
provided (that is 'payment in kind'), or amounts required to be spent or paid, in
contravention of Division 2 of Part 2-9 of the FW Act. For example, an employee may
have been required to pay an amount of their wages back to their employer (or a person
nominated by their employer) as 'cashback'. The new subsection would apply the rules
in section 327 of the FW Act, so that:
• anything given or provided by the employer contrary to paragraph 323(1)(b)
and subsection 323(3) is taken never to have been given or provided to
the employee; and
• any amount that the employee has been required to spend or pay contrary to
subsection 325(1), or in accordance with a term to which subsection 326(3) applies,
is taken to be a deduction, from an amount payable to the employee, made by the
employer otherwise than in accordance with section 324.
994. Any unlawful off-set or requirement to spend would be treated as an underpayment for
purposes of the new offence for wage theft.
169
995. New subsection 327A(5) sets out the maximum penalty for an offence against the new
offence provision for wage theft, which may include a term of imprisonment of up to
10 years, in addition to a fine of up to the specified amount, set out in the provision.
The Guide to Framing Commonwealth Offences was applied in determining to
criminalise the requisite conduct, and set the maximum penalty for an offence. In
setting the maximum term of imprisonment for an offence, regard was had to offences
of a similar nature, particularly offences of theft and fraud under the general law (for
example, the offence of general dishonesty in section 135.1 of the Criminal Code,
among others).
996. New subsection 327A(5) enables the sentencing court to impose a fine based on the
underpayment amount.
997. New subsection 327A(6) provides that the maximum fine for an offence against the
new offence provision for wage theft is:
• if the court can determine the underpayment amount for the offence--the greater of
3 times the underpayment amount and whichever of the following applies:
o for an individual - 5,000 penalty units;
o for a body corporate - 25,000 penalty units; or
• otherwise, the following amount:
o for an individual - 5,000 penalty units;
o for a body corporate - 25,000 penalty units.
998. The value of a Commonwealth penalty unit is $313 at the time of publishing.
999. New subsection 327A(7) defines the 'underpayment amount' for the purposes of the
section. It covers both a failure to underpay the required amount in full, or a failure to
pay at all.
1000. New subsections 327A(8)-(10) establish a 'course of conduct' sentencing rule for the
new offence for wage theft, which is based on a similar rule that applies in the context
of sentencing for civil contraventions (FW Act, section 557).
1001. New subsection 327A(8) provides that if a person is found guilty of committing two or
more offences (the aggregated offences) and the aggregated offences arose out of a
course of conduct by the person, then the person is taken for sentencing purposes to
have been found guilty of a single offence.
1002. The intention is that a 'course of conduct' may occur in relation to groups of employees
who have been underpaid in the same manner over time, not just in relation to a single
employee.
1003. New subsections 327A(9) and (10) clarify the effect of the 'course of conduct'
sentencing rule on calculating penalties based on the underpayment amount. If multiple
offences are grouped and penalised as a single offence under the sentencing rule, then
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the corresponding underpayments are also aggregated (that is, added up together) for
purposes of applying these penalties.
Section 327B The Voluntary Smal Business Wage Compliance Code
1004. New subsection 327B(1) enables the Minister to declare by legislative instrument a
'voluntary small business wage compliance code' (voluntary code). Compliance with
the voluntary code is intended to provide assurance to small business employers (as
defined by the voluntary code) that they will not be referred for criminal prosecution in
relation to a failure to pay an amount to, on behalf of, or for the benefit of, an
employee. Item 213 relevantly amends the Dictionary in section 12 of the FW Act to
insert a signpost referring readers to the definition of 'voluntary small business wage
compliance code' in new subsection 327B(1).
1005. It is intended that the FWO will develop the voluntary code through a tripartite process
involving both employee and employer organisations. The voluntary code would be
declared by the Minister before the commencement of the offence contained in new
subsection 327A(1).
1006. If a small business employer has underpaid an employee and wishes to seek assurance
from the FWO under these provisions, the small business employer will need to satisfy
the FWO that it has complied with the voluntary code in relation to that underpayment.
For example, this could include evidence that the small business employer has rectified
any systemic issue that contributed to underpaying affected employees, and that
required payments have been made to those employees. If the FWO is satisfied that a
small business employer has complied with the voluntary code, the FWO must not refer
any conduct that resulted in the failure to pay to the CDPP or the AFP for action in
relation to a possible offence against new subsection 327A(1). The FWO must also not
enter into a cooperation agreement with the employer that covers any conduct that
resulted in the 'failure to pay' (new subsection 327B(2)).
1007. The FWO must give a small business employer written notice of its decision as to
whether the employer has complied (or not) with the voluntary code (new
subsection 327B(3)).
1008. Compliance or otherwise with the voluntary code does not affect the power of an
inspector to institute or continue civil proceedings, or give a compliance notice
(section 716 of the FW Act) in relation to the conduct, or the power of the FWO to
accept an enforceable undertaking in relation to the conduct (section 715 of the FW
Act), or any other power or function of the FWO or a Fair Work Inspector that is not
mentioned in new paragraphs 327(2)(a) or 327(2)(b) (new subsection 327B(4)).
Section 327C Commencing proceedings for certain offences against this Act
1009. New subsection 327C(1) would limit the function of commencing proceedings for an
offence against the new offence for wage theft or a 'related offence provision' to the
CDPP or the Australian Federal Police. This has the effect of providing a contrary
intention for purposes of the Crimes Act, section 13 (which provides for the institution
of proceedings in respect of offences).
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1010. New subsection 327C(2) would impose a limitation period of 6 years for bringing a
proceeding, after the commission of the offence. This means that any alleged offending
that occurred outside the limitation period (even if it could be said to form part of the
same course of conduct) would not be covered by the new wage theft offence.
Item 221: Paragraph 682(1)(c)
Item 222: Paragraph 682(1)(c)
1011. The functions of the FWO include monitoring compliance with the FW Act, and
inquiring into, and investigating any act or practice that may be contrary to the Act
(paragraphs 682(1)(b) and (c)). These functions already cover investigating offences
against the FW Act. Amendments are proposed to ensure the FWO has the new
function of investigating offences against 'related offence provisions' (in the Crimes
Act and Criminal Code), that deal with ancillary and similar liability, insofar as they
relate to offences against the FW Act.
1012. Item 213 would insert a definition of 'contravene' into the Act's definitions section
(section 12), to make clear that general references to contravening the Act (or a similar
phrase) may cover the contravention of a civil remedy provision, a provision of the FW
Act that creates an offence and a 'related offence provision' (that is, unless the context
of the term clearly dictates otherwise). This is consistent with the well-understood
interpretation of the term, so is a clarifying amendment only.
1013. Item 221 would amend paragraph 682(1)(c) to replace the word 'act' with 'any
conduct', to make clear that the FWO's functions include monitoring and investigating
etc. omissions under the FW Act, as well as acts.
1014. Item 222 would amend the FWO's investigations function in paragraph 682(1)(c) to
additionally cover conduct that maybe contrary to a 'related offence provision'. The
term 'related offence provision' is proposed to be defined in FW Act's dictionary in
section 12 to mean:
• section 6 of the Crimes Act; or
• a provision of Part 2.4 of the Criminal Code;
to the extent that the offence created by the provision relates to an offence against this
Act other than an offence mentioned in the dot points above.
1015. Similar amendments are proposed in relation to the compliance powers Fair Work
Inspectors (as necessary), to ensure that these powers also extend to investigating
alleged offences against 'related offence provisions' insofar as they relate to offences
against the FW Act. These are described in more detail below.
Item 223: After paragraph 682(1)(d)
Item 224: At the end of section 682
1016. Subsection 682(1) of the FW Act sets out the functions of the FWO.
1017. This item would add to this list the function of publishing a compliance and
enforcement policy, including guidelines relating to the circumstances in which the
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FWO will, or will not: accept or consider accepting undertakings under section 715; or
enter or consider entering into cooperation agreements under section 717B.
1018. The addition of this function would formalise a long-standing practice of the FWO, in
publishing this material. The provision does not specify how the material must be
published.
1019. Item 224 would require the FWO to consult with the NWRCC about the guidelines,
before publishing its policy. No details are prescribed about how this consultation
should occur, but it is expected that it would be carried out reasonably, commensurate
to the nature of any proposed changes to the guidelines. This would not prevent the
FWO from consulting more widely on other aspects of its policies as appropriate.
Item 225: Paragraph 706(1)(a)
Item 226: Subsection 711(1)
Item 227: Paragraph 712AA(1)(a)
1020. Sections 706, 711 and 712AA deal with the scope of the compliance powers of Fair
Work Inspectors, their power to ask for a person's name and address, and the FWO's
powers in relation to FWO notices.
1021. These items would amend the specified provisions to ensure that the relevant powers
are exercisable in relation to a suspected offence against the Act, including a 'related
offence provision' as proposed to be defined in section 12.
Item 228: At the end of section 713
Item 229: Section 713A
Item 230: At the end of section 713A
1022. Sections 713 and 713A of the FW Act abrogate the common law privilege against self-
incrimination in the specified circumstances. This loss is offset, by conferring use and
derivative use immunities on the affected individuals. That is, by providing that
documents produced and any information or thing obtained as a direct or indirect
consequence will not be admissible as evidence against the individual in the specified
proceedings (subject to the specified exceptions).
1023. These items would create an exception to the immunities conferred by these sections, in
relation to:
• an employee record in relation to an employee that is made under section 535; or
• a copy of a pay slip created in relation to an employee. Pay slips are required to be
issued to employees under section 536.
1024. The rationale is that employee records that are required to be kept under the FW Act,
section 535, or copies of payslips that are required to be issued under the FW Act,
section 536, should be able to be tendered as evidence before a court, including
criminal proceedings. In other words, the regulator should not be prevented from
tendering evidence of employee records or pay slips against an individual, just because
they were produced by notice or other coercive process. Further, as the regulator will be
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undertaking criminal investigations, and these records will be central to being able to
prove the offence, providing immunity would mean the regulator is unable to properly
discharge their function in respect of criminal underpayments.
Item 231: After Subdivision DD of Division 3 of Part 5-2
1025. This item inserts new subdivision DE of Division 3 of Part 5-2, which establishes a
framework for the making of cooperation agreements between the FWO and a person
that has self-reported to the FWO the possible commission of an offence, or at least the
physical elements of an offence, against new subsection 327A(1) or a related offence
provision (to the extent that the offence created by the provision relates to an offence
against subsection 327A(1)) (new subsection 717B(1)). Item 213 amends the
Dictionary in section 12 of the FW Act to relevantly insert a signpost referring readers
to the definition of 'cooperation agreement' in new subsection 717B(1).
1026. The cooperation agreements framework is intended to provide a person with the
opportunity to access 'safe harbour' from potential criminal prosecution if they have
engaged in conduct that amounts to the possible commission of the new wage theft
offence or related offence and self-reported their conduct to the FWO. If, after having
regard to a range of matters provided in new subsection 717B(2), the FWO decides to
enter into a cooperation agreement with the person, the FWO must not refer conduct
engaged in by the person that is covered by the agreement to the CDPP or the AFP for
possible criminal prosecution while the agreement is in force. The matters that the
FWO must have regard to in new subsection 717B(2) include whether in the FWO's
view, the person has made a voluntary, frank and complete disclosure of the conduct (to
the extent of the person's knowledge at the time of the disclosure), and the nature and
level of detail of the disclosure (paragraph 717B(2)(a)), and the person's history of
compliance with the FW Act (paragraph 717B(2)(f)), which is intended to be construed
broadly and could include, for example, whether there has been past compliance with
enforcement tools such as compliance notices.
1027. While a cooperation agreement is in force, it does not prevent an inspector instituting or
continuing civil proceedings in relation to the conduct, or conduct engaged in by any
other person from being referred to the CDPP or the AFP for action in relation to a
possible offence (new subsection 717A(2)).
1028. The regulations may prescribe matters in relation to the content of cooperation
agreements (new subsection 717B(3)).
1029. New section 717C provides that a cooperation agreement is in force from the time it is
entered into or any later time specified in the agreement until it expires (if an expiry
date is specified in the agreement), is terminated (new section 717D), or is withdrawn
(new section 717E).
1030. The FWO may terminate a cooperation agreement with a person, by written notice at
any time, if it is satisfied that the person has contravened a term of the agreement, or
provided false or misleading information or documents, or on any other ground
prescribed by the regulations (new subsection 717D(1)). As an alternative to
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terminating a cooperation agreement on the grounds in new subsection 717D(1), the
FWO may apply to the Federal Court, the Federal Circuit and Family Court of Australia
(Division 2) or an eligible State or Territory Court for an order under new
subsection 717D(3).
1031. The parties to a cooperation agreement may withdraw from, or vary, the agreement by
consent (new sections 717E, 717F).
1032. New section 717G is intended to clarify how the cooperation agreements framework
interacts with other powers in the FW Act. In particular, a cooperation agreement does
not affect the power of an inspector to give a compliance notice (section 716 of the FW
Act) in relation to the conduct, or the power of the FWO to accept an enforceable
undertaking in relation to the conduct (section 715 of the FW Act), or any other power
or function of the FWO or an inspector that is not mentioned in new
subsection 717A(1). An enforceable undertaking or a compliance notice has no effect to
the extent of inconsistency with a cooperation agreement (new subsection 717G(2)).
Item 232: Subsections 793(1) and (2)
Item 233: After subsection 793(3)
Item 234: At the end of subsection 793(4)
1033. Section 793 of the FW Act attributes to the corporation the conduct and (if relevant)
state of mind of the individuals referred to in the section. It deals with both civil and
criminal liability. Section 793 does not exhaustively prescribe the legal means by which
the state of mind held by, or the conduct engaged in by, a body corporate may be
ascertained. Its purpose is to provide for an expanded range of persons whose conduct
and state of mind might be ascribed to a body corporate than that which exists at
common law, while at the same time preserving the common law doctrines.
1034. Subsection 793(4) provides that Part 2.5 of Chapter 2 of the Criminal Code does not
apply to an offence against the FW Act.
1035. These items would reverse the position in relation to the new offence for wage theft and
related offence provisions (to the extent they relate to such an offence), by disapplying
the statutory attribution rules in subsections 793(1) and (2), so applying Part 2.5 of
Chapter 2 of the Criminal Code. This means that the attribution rules for criminal
responsibility in Part 2.5 of Chapter 2 of the Criminal Code would apply in those
circumstances (but not for other offences against the FW Act).
Item 235: After section 794
1036. Subsection 37(1) provides that the FW Act binds the Crown in all its capacities (that is,
all the Australian Governments), to the extent the states' referral of powers (if any)
permit. However, the provision that attributes the conduct (and states of mind) of
individuals to apply to bodies corporate (section 793), so that liability may be
established, does not apply to bodies politic (that is, the Australian Governments).
1037. Item 235 would address this gap by inserting:
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• new section 794A into the FW Act to provide for the liability of Australian
Governments under civil remedy provisions;
• new section 794B to provide for the liability of the Commonwealth for certain
offences (that is, to the extent that the 'Crown shield' against prosecution for
offences has been lifted);
• new section 794C to identify responsible agencies for Australian Governments; and
• new section 794D to provide for the liability of the Commonwealth to pay civil and
criminal penalties.
Section 794A Liability of Australian governments under civil remedy provisions
1038. New subsection 794A(1) would limit the scope of the new attribution provision for the
purposes of applying a civil remedy provision, or any other provision of the FW Act,
insofar as it relates to a civil remedy provision, in relation to an Australian
Government.
1039. The practical operation of this provision will be limited to the extent the
Commonwealth's legislative power permits, including the scope of the states' referral
of powers.
1040. New subsection 794A(2) would define an 'Australian Government' for purposes of the
section to include the Commonwealth, a State, the Australian Capital Territory and the
Northern Territory.
1041. New subsections 794A(3) and (4) would make provision for the conduct and state of
mind the individuals referred to in the section to be attributed to an Australian
Government. These provisions are based on the equivalent provisions that apply in
relation to bodies corporate, in section 793 of the FW Act.
1042. New subsection 794A(5) would clarify that if an Australian Government contravenes a
civil remedy provision, the pecuniary penalty that it may be ordered to pay is that
applicable to a body corporate. This reflects the status quo, so would be an amendment
of a clarifying nature only.
1043. New subsection 794A(6) would enable regulations to be made to prescribe
modifications in the way the section applies in relation to Australian Governments. The
Government has developed the new regulatory framework for the liability of Australian
Governments under civil remedy provisions, but it is a new and as yet untested
framework. A degree of complexity is involved, as the provisions need to be able to
(potentially) apply to all Australian Governments (noting practical operation of the
provisions would currently be limited because of the limited scope of the states'
referrals in relation to their public services). There remains the possibility that the
operation of the section in practice may produce unintended or unforeseen results.
Including this regulation-making power is critical to ensuring timely and targeted
adjustments can be implemented if required.
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1044. New subsection 794A(7) would define the term 'employee' to have its ordinary
meaning in the section.
Section 794B Liability of the Commonwealth for certain offences
1045. New subsection 794B(1) would apply Part 2.5 of the Criminal Code in relation to the
Commonwealth, for the purposes of an offence against new subsection 327A(1)
(offence for failing to pay amounts as required) or a related offence provision, to the
specified extent, in the same way as Part 2.5 applies in relation to bodies corporate.
This aligns with the attribution rules that are proposed for corporate criminal
responsibility (that is, Part 2.5 of the Criminal Code).
1046. New subsection 794B(1) would apply Part 2.5 of the Criminal Code:
• without the provisions that are not relevant (that is, as if section 12.4 and 12.5 of the
Criminal Code were omitted); and
• with the modifications set out in the table below subsection (2) (subject to any
further modification prescribed by the regulations);
• such other modifications as are necessary, given the different regulatory context for
liability of the Commonwealth (subject to any further modification prescribed by
the regulations); and
• any modifications prescribed by the regulations.
1047. The modifications set out in the table translate certain terms and concepts that apply in
the corporate context (that is, 'a body corporate's board of directors', 'a high
managerial agent of a body corporate' and 'the corporate culture of a body corporate')
and substitute references that work in the government context.
1048. In the context of government, the equivalent of:
• a body corporate's board of directors--is taken to be the governing body of the
agency of the Commonwealth (the 'relevant agency') whose officer, employee or
agent engaged in conduct constituting a physical element of the offence;
• a high managerial agency of a body corporate-- is taken to be a person who is an
officer, employee or agent of the Commonwealth with duties of such responsibility
that the person's conduct may fairly be assumed to represent the policy of the
relevant agency;
• the corporate culture of a body corporate--is taken to be one or more attitudes,
policies, rules, courses of conduct or practices existing within the relevant agency
or a part of the relevant agency.
1049. New subparagraph 794B(2)(b)(iii) would enable regulations to be made to prescribe
modifications to the way in which Part 2.5 applies to establish Commonwealth liability
(including modifications to those made by the table following the subsection (2)).
1050. The Government has developed a new regulatory framework for the criminal liability
of the Commonwealth, leveraging from a similar exercise in relation to the WHS Act. It
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is a new and as yet untested framework. A degree of complexity is involved, as the
provisions need to be able to (potentially) apply to a broad range of Commonwealth
entities. There remains the possibility that the operation of the section in practice may
produce unintended or unforeseen results. Including this regulation-making power is
critical to ensuring timely and targeted adjustments can be implemented if required.
1051. New subsection 794B(3) provides that the penalty to be imposed on the
Commonwealth, if found guilty of a relevant offence, is the penalty applicable to a
body corporate.
1052. New subsection 794B(4) would define the term 'employee' to have its ordinary
meaning.
1053. New subsection 794B(5) would define the term 'governing body' of the
Commonwealth for the purposes of the section.
Section 794C Responsible agencies for Australian governments
1054. New section 794C would specify how proceedings may be brought against an
Australian Government (civil proceedings only), or the Commonwealth (that is, civil
proceedings, or criminal proceedings brought against the Commonwealth in the
permitted circumstances). That is, by identifying a 'responsible agency'.
1055. New subsection 794C(1) would provide that, if relevant proceedings are brought, the
'responsible agency' as defined in new subsection (4) in relation to the contravention or
the commission of the offence may be specified in any document initiating, or relating
to, the proceedings.
1056. New subsection 794C(2) specifies the nature of the responsible agency's entitlement to
act in the proceedings, and confers the procedural rights and obligations of the relevant
Government on the responsible agency.
1057. New subsection 794C(3) would empower, with the court's leave, a specified person to
change the responsible agency during the proceedings. This flexibility is necessary to
deal with changes like machinery of government changes.
1058. New subsection 794C(4) would define what a 'responsible agency' is in relation to a
contravention of a civil remedy provision by an Australian Government, or the
commission of an offence by the Commonwealth. The starting point is identifying the
agency where the relevant conduct occurred; then, if it has ceased to exist, any
successor of that agency; then (if none), the agency of the Australian Government or
Commonwealth (as the case requires) that the court declares to be the responsible
agency.
1059. New subsection 794C(5) would enable regulations to be made to modify how the
section applies in relation to an Australian government (in relation to a contravention of
a civil remedy provision), and the Commonwealth (in relation to the commission of an
offence).
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1060. The Government has developed a new regulatory framework for the liability of
Australian Governments, including how relevant proceedings may be brought against
them under the FW Act. It is a new and as yet untested framework. A degree of
complexity is involved, as the provisions need to be able to (potentially) apply to a
broad range of entities of the Australian Governments. There remains the possibility
that the operation of the section in practice may produce unintended or unforeseen
results. Including this regulation-making power is critical to ensuring timely and
targeted adjustments can be implemented if required.
Section 794D Liability of the Commonwealth to pay civil and criminal penalties
1061. While the Commonwealth is not liable to pay a pecuniary penalty to itself, the intention
is that the Commonwealth should be notionally liable to pay such a penalty, whether
under:
• a court's pecuniary penalty order (whether imposed in civil or criminal proceedings
under the FW Act); or
• infringement notice issued under the FW Act.
1062. New section 794D would provide a process for making the notional payment, including
provision for an appropriation for the purpose (new subsection 794D(4)).
Amendments to the Federal Court of Australia Act 1976
Item 236: After paragraph 23AB(4)(a)
1063. Section 562 of the FW Act confers jurisdiction on the Federal Court in relation to any
matter (whether civil or criminal) arising under the FW Act.
1064. Division 1A of Part III of the Federal Court of Australia Act sets out procedures to be
followed during criminal proceedings in the Federal Court relating to certain indictable
offences. This Division does not confer jurisdiction on the Court in relation to
indictable offences. Other provisions (like section 562 of the FW Act) need to have
done this.
1065. Subsection 23AB(4) of the Federal Court of Australia Act lists the offences to which
the Division applies.
1066. This item would amend paragraph 23AB(4)(a) to add a new item, being an indictable
offence against the FW Act, so that the procedures in the Division apply in relation to
those proceedings.
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Part 14A-- Amendments relating to mediation and conciliation conference orders made
under section 448A of the Fair Work Act 2009
Amendments to the Fair Work Act 2009
1067. New Part 14A would address the circumstances in which employee claim action and
employer response action are available following a conference ordered by the FWC
under section 448A of the FW Act.
1068. Amendments made by the SJBP Act provided that where the FWC has made a PAB
order in relation to a proposed enterprise agreement, the FWC is required under
section 448A to make an order directing all bargaining representatives for the proposed
agreement to attend a conference for the purposes of mediation or conciliation. The
conference must occur on or before the day on which voting in the PAB closes. The
amendments were intended to provide an opportunity for bargaining parties to further
negotiate and potentially reach agreement, or at least confine disputed issues, before
industrial action is taken.
1069. A Full Bench of the FWC considered the new provisions in CEPU v Nilsen (NSW) Pty
Ltd [2023] FWCFB 134 (Nilsen). The Full Bench noted (at [68]-[69]) that employee
claim action will only be protected under the amendments if each bargaining
representative of an employee who will be covered by the agreement has attended the
conciliation conference. This means that non-compliance with an order to attend a
section 448A conference by one or more employee bargaining representatives, for
example, one who may not have been the applicant for the PAB order, could render
subsequent employee claim action unprotected - for both those represented by the non-
complying bargaining representative and for others participating in the action.
1070. New Part 14A would address the issue identified in Nilsen by clarifying the class of
employee bargaining representatives captured by the requirement to attend a
conciliation conference in order for subsequent employee claim action engaged in by
employees to be protected. It would also clarify the circumstances in which an
employer can engage in employer response action.
Item 236A: Subsection 409(6A)
1071. This item would repeal and substitute subsection 409(6A), which sets out one of the
requirements that must be satisfied for employee claim action to be protected. The
effect of amended subsection 409(6A) is that the bargaining representative who applied
for a PAB order must have attended the conciliation conference under section 448A
that related to the PAB order for the subsequent employee claim action to be protected.
Where 2 or more bargaining representatives jointly apply for the PAB order, each of
those bargaining representatives must have attended the conciliation conference.
Item 236B: Subsection 411(3)
1072. This item would amend subsection 411(3) to clarify that the employer organising or
engaging in employer response action in response to action that is authorised by a PAB,
and any bargaining representative of the employer, must have attended a conciliation
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conference under section 448A that related to the PAB order for the subsequent
employer response action to be protected.
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Part 15--Definition of employment
Amendments to the Fair Work Act 2009
1073. For the most part the FW Act confers rights and imposes obligations on, and in respect
of the relationship between, an 'employer' and an 'employee'. The terms 'employer'
and 'employee' are defined to have their ordinary meanings, that is, the meanings
ascribed at common law.
1074. Part 15 of Schedule 1 would insert a new section 15AA into Part 1-2 of the FW Act.
New section 15AA would require that the ordinary meanings of 'employee' and
'employer' be determined by reference to the real substance, practical reality and true
nature of the relationship between the parties. This would require the totality of the
relationship between the parties, including not only the terms of the contract governing
the relationship but also the manner of performance of the contract, to be considered in
characterising a relationship as one of employment or one of principal and contractor.
1075. In requiring an inquiry that extends beyond the contractual rights and obligations of the
parties, the amendments would overcome the contract-centric approach established by
the High Court's decisions in CFMMEU v Personnel Contracting Pty Ltd [2022]
HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022]
HCA 2 (Jamsek). In these decisions, a majority of the High Court held that where a
comprehensive written contract exists, the question of whether an individual is an
employee of a person is to be determined solely with reference to the rights and
obligations found in the terms of that contract. In such circumstances, the High Court
held, it is not necessary or appropriate to engage in a wide-ranging review of the
parties' conduct in performing their obligations under that contract. There are limited
exceptions where one can look beyond the terms of the contract, such as where a
contract is a sham, or has been varied or rendered unenforceable, or subject to an
estoppel.
1076. The intention of this Part is to require a 'multi-factorial' assessment, as was previously
commonly understood to be the correct approach in characterising a relationship as one
of employment, or of principal and contractor, for the purposes of the FW Act. There is
no exhaustive list of factors that will be relevant to a 'multi-factorial' assessment,
ensuring a flexible approach that will enable the ordinary meanings of 'employee' and
'employer' to continue to adapt to changing social conditions, market structures and
work arrangements.
Item 237: After section 15
1077. This item would insert new section 15AA into Division 3 of Part 1-2 of the FW Act to
provide a principle of interpretation for determining the ordinary meanings of
'employee' and 'employer' for the purposes of the FW Act.
Section 15AA Determining the ordinary meanings of employee and employer
1078. Subsection 15AA(1) would require that the ordinary meanings of 'employee' and
'employer' be determined by ascertaining the real substance, practical reality and true
nature of the relationship between the parties. This phrase indicates that, while the
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terms of the contract between the parties will be a relevant factor, they are not
determinative in circumstances where they do not reflect the real nature of the working
relationship.
1079. The new interpretive principle aligns with Article 9 of ILO Recommendation 198,
which states that, with respect to the employment relationship, 'the determination of the
existence of such a relationship should be guided primarily by the facts relating to the
performance of work and the remuneration of the worker, notwithstanding how the
relationship is characterized in any contrary arrangement, contractual or otherwise, that
may have been agreed between the parties.' By ensuring that the true nature of the
relationship is determinative, the new provision will ensure that disguised
employments, which seek to evade or attenuate the legal obligations of an employment
relationship, are legally ineffective.
1080. Subsection 15AA(1) would make it clear that this new approach applies for the
purposes of the FW Act. New section 15AA would not change the meaning of
'employee' or 'employer' at common law. New section 15AA would not change the
meaning of these terms in the context of any other Commonwealth legislative scheme.
1081. Subsection 15AA(2) would identify matters that must be considered in ascertaining the
real substance, practical reality and true nature of the relationship between parties.
1082. Paragraph 15AA(2)(a) would first require consideration of the totality of the
relationship between the parties. This phrase, drawn from His Honour Justice Mason's
judgment in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 (Brodribb) and
echoed by the majority in Hollis v Vabu [2001] HCA 44 (Hollis), is intended to indicate
that in characterising the relationship, all relevant incidents of the relationship must be
considered and no one incident will necessarily be determinative.
1083. Paragraph 15AA(2)(b) would provide that in considering the totality of the relationship
between the individual and the person, regard must be had not only to the terms of the
contract governing the relationship, but also to other factors including, but not limited
to, the manner in which the contract is performed. This would make it clear that
analysis of the totality of the relationship is not restricted to a consideration of the rights
and duties established under the parties' contract. It must include, among other things,
how the contract is performed in practice.
1084. The intention is to ensure that the way in which a contract is performed in practice can
be considered in characterising the relationship irrespective of whether the performance
of the contract has resulted in a contractual variation. This is intended to directly
counteract the principle established in Personnel Contracting and Jamsek that where a
comprehensive written contract exists, evidence of post-contractual conduct of the
parties is not relevant in establishing the existence of an employment relationship or
otherwise (except in limited circumstances, including where the contract has been
varied by post-contractual conduct).
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1085. The intention is that subsection 15AA(2) would facilitate the use of a multi-factorial
approach when characterising a relationship, even in the face of a comprehensive
written contract.
1086. Under the multi-factorial approach, guidance for the outcome is provided by various
factors or indicia. A considerable number of case authorities, including Brodribb and
Hollis, identify factors relevant in the characterisation of a relationship as one of
employment or one of contractor and principal. In Brodribb, Mason J noted a
prominent factor in determining the nature of the relationship between a person who
engages another to perform work and the person so engaged is the degree of control
which the former can exercise over the latter. Other relevant matters were said to
include, among other things:
• the mode of remuneration;
• the provision and maintenance of equipment;
• the obligation to work;
• the hours of work and provision for holidays;
• the deduction of income tax;
• the delegation of work by the putative employee.
1087. Wilson and Dawson JJ determined that factors suggesting a contract of service (an
employment relationship) include:
• the right to have a particular person do the work;
• the right to suspend or dismiss the person engaged;
• the right to the exclusive services of the person engaged and the right to dictate the
place of work, hours of work and the like.
1088. Indicia which indicate a contract for services (a relationship of principal and contractor)
were said to include:
• work involving a profession, trade or distinct calling on the part of the person
engaged;
• the provision by the putative employee of their own place of work or their own
equipment;
• the creation by the putative employee of goodwill or saleable assets in the course of
their work;
• the payment by the putative employee from their remuneration of business expenses
of any significant proportion;
• the payment to the putative employee of remuneration without deduction for
income tax.
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1089. Wilson and Dawson JJ also noted that the actual terms and terminology of the contract
will always be of considerable importance.
1090. Other indicia have arisen over time in the authorities. Courts have often observed that
there is no exhaustive list of relevant factors and that they will vary from case to case.
So too will the weight to be afforded to particular indicia. This is partly because the test
has evolved to adapt to changing social conditions and new work arrangements, and
indeed will continue to do so.
1091. A legislative note following subsection 15AA(2) would alert the reader to the decisions
of the High Court in Personnel Contracting and Jamsek and clarify that the
amendments are a direct response to those decisions.
1092. In most work relationships, the question of an individual's employment status is
uncontroversial. Where this is the case, the amendments are intended to have little or no
impact. Where the question of an individual's work status does arise, the amendments
would ensure that a fairer test applies to characterising the relationship.
Illustrative example
Wei is a cleaner and works via a cleaning agency to clean commercial offices in Melbourne's
Central Business District. She works five nights per week and is told which offices to clean
among the agency's list of clients. Wei signed a services agreement with the cleaning agency,
which describes her as an independent contractor and specifies a rate of $90 per office, which
can take anywhere from three to six hours in the evening. The services agreement also
specifies that she is responsible for travel to and from worksites, and able to delegate work to
others as required.
The new interpretive principle to determine the meaning of 'employee' and 'employer' under
the FW Act applies when determining whether Wei is an employee of the cleaning agency.
The interpretive principle allows an assessment of the arrangement by way of reference to the
real substance, practical reality and true nature of the relationship between Wei and the
agency, and beyond the terms of the services agreement to which Wei has agreed. For
example, a court or a tribunal would take into account a range of factors relating to the
totality of the relationship, such as Wei being told where and when she has to work, that she
has little control over how she performs the work, the expectation that Wei would dress in
attire branded with the logo of the cleaning agency and that her work is judged against the
agency's performance standards. It would be relevant that she is able to delegate that work.
1093. New section 15AA would not apply to certain provisions of the FW Act.
• New paragraph 15AA(3)(a) would provide that subsections 15AA(1) and (2) do not
apply to Divisions 2A and 2B of Part 1-3 of the FW Act. As a result,
subsections 15AA(1) and (2) would not apply to employers and employees who are
national system employers and employees because of the extended meaning given
by sections 30C, 30D, 30M and 30N. The common law test for employment as
provided for in Personnel Contracting and Jamsek would continue to apply to
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employees and employers that are national system employees and employers by
virtue of the States' referrals of industrial relations power.
• New paragraph 15AA(3)(b) would provide that subsections 15AA(1) and (2) would
not apply to Part 3-1 of the FW Act to the extent that Part 3-1 applies only by
operation of sections 30G or 30R of the FW Act. Part 3-1 of the FW Act sets out a
range of workplace protections. Section 30G and 30R extend the application of
Part 3-1 to action in a referring State.
1094. The approach required by the decisions in Personnel Contracting and Jamsek would
also continue to apply to employees and employers under other workplace laws, to the
extent that those laws adopt the ordinary meaning of employee and employer.
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Part 16--Provisions relating to regulated workers
1095. This Part would implement amendments to the Fair Work Act and associated
legislation to ensure that certain independent contractors are entitled to greater
workplace protections than they are currently. The majority of the amendments are
targeted at independent contractors who are either:
• employee-like workers performing digital platform work; or
• engaged in the road transport industry.
1096. The amendments would:
• provide a framework for the FWC to exercise functions and powers that relate to
the road transport industry;
• insert a new jurisdiction enabling the FWC to set minimum standards orders and
minimum standards guidelines in relation to employee-like workers performing
digital platform work and regulated road transport industry contractors;
• enable digital labour platform operators and road transport businesses to make
consent-based collective agreements with registered employee organisations;
• empower the FWC to deal with disputes over an employee-like worker's unfair
deactivation from a digital labour platform, or the unfair termination of a road
transport contractor's services contract by a road transport business; and
• enable independent contractors earning below a specified high-income threshold to
dispute unfair contract terms in the FWC.
Division 1--Overarching road transport matters
Amendments to the Fair Work Act 2009
Item 238: After section 40B
1097. This item would insert new Part 1-4--Road transport industry objective and advisory
group into the FW Act.
1098. Part 1-4 would provide a framework for the FWC's exercise of functions and powers in
relation to the road transport industry, including:
• employers and employees; and
• regulated road transport contractors and road transport businesses, primarily under
new Chapter 3A.
Part 1-4--Road transport industry objective and advisory group
Division 1--Guide to this Part
40C Guide to this Part
1099. This section would outline the Guide to this Part. In particular, the Guide would explain
that Part 1-4 provides:
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• that the Expert Panel for the road transport industry must have regard to the road
transport objective when performing functions and exercising powers under this
Act;
• that the Expert Panel's functions and powers extend to employees, employers,
regulated road transport contractors and road transport businesses;
• for the establishment and membership of the RTAG, its advisory functions in
relation to road transport minimum standards, and matters relating to prioritisation
of the FWC's work in the road transport industry;
• for regulations in relation to the road industry contractual chain.
Division 2--Road transport industry objective
40D The road transport objective
1100. This section would set out the road transport objective. In performing a function or
exercising power under the FW Act, the Expert Panel for the road transport industry
would be required to consider the need for an appropriate safety net of minimum
standards for regulated road transport workers and employees in the road transport
industry, having regard to:
• the need for standards that ensure the road transport industry is safe, sustainable and
viable;
• the need to avoid unreasonable adverse impacts on the following:
o sustainable competition among road transport industry participants;
o road transport industry business viability, innovation and productivity;
o administrative and compliance costs for road transport industry
participants.
1101. A note to this section would clarify that the matters that must be dealt with by the
Expert Panel are matters relating to the making of, varying or revoking modern awards
and road transport minimum standards orders relating to the road transport industry
(with a cross reference to subsection 617(10B)). It would also confirm that the
President has discretion to direct an Expert Panel for the road transport industry to deal
with a matter (with a cross reference to subsection 617(10D)).
1102. For matters relating to employees, it is intended that the road transport objective would
be a consideration the Expert Panel must take into account in addition to any other
objectives or guidance provided under the FW Act, such as the modern awards
objective set out in section 134 in relation to making or varying a modern award.
Division 3--Road Transport Advisory Group
1103. This division would provide for the establishment and functions of the RTAG and its
subcommittees. The RTAG is a special advisory body appointed by the Minister
specifically to support the FWC in carrying out its functions relating to the road
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transport industry, including in relation to employees and regulated road transport
contractors.
40E Establishment of Road Transport Advisory Group
1104. This section would provide for the establishment of the RTAG.
1105. Subsection (2) would outline that the function of the RTAG is to advise the FWC in
relation to matters about the road transport industry, including but not limited to:
• the making and varying of modern awards relating to the road transport industry;
• the making and varying of RTMSOs and RTGs;
• the prioritisation by the FWC of matters relating to the road transport industry; and
• such other matters as are prescribed by the regulations.
1106. Subsection (3) would require that the RTAG, before advising the FWC in relation to a
matter, must consult any relevant subcommittee established under 40G.
1107. Subsection (4) would require the President to consult, and have regard to the views of,
the RTAG in deciding the priorities for the work of the FWC regarding matters
affecting the road transport industry.
1108. Note that new subsection 536KA would require the FWC to not make a RTMSO
unless it has consulted with the RTAG.
40F Membership of the Road Transport Advisory Group
1109. Subsection (1) would provide that the RTAG consists of members the Minister
appoints.
1110. Subsection (2) would state the Minister must ensure members of the RTAG are
members of and/or nominated by an organisation entitled to represent the industrial
interests of one or more regulated road transport contractors; or an organisation that is
entitled to represent the industrial interests of one or more road transport businesses.
1111. Subsection (3) would explain that a member of RTAG would hold office for the period
specified in the instrument of appointment, which would be a maximum of three years.
A note to this section would clarify a member of RTAG is eligible for reappointment,
cross referencing subsection 33(4A) of the AI Act.
1112. Subsection (4) would allow the Minister to revoke a person's appointment to the
RTAG.
1113. Subsection (5) would state the President of the FWC could give directions to the RTAG
as to how it is to carry out its functions.
1114. Subsection (6) would allow the President to appoint a member of the Expert Panel for
the road transport industry to chair the RTAG.
1115. It is not intended that members of the RTAG would be entitled to any remuneration or
allowances for their participation.
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40G Road Transport Advisory Group subcommittees
1116. This section would allow the RTAG to establish subcommittees to advise it in relation
to matters relevant to performance of its functions.
1117. The subcommittee may include persons who are not members of RTAG, but a
subcommittee must be chaired by a member. Subcommittee membership may be drawn
from the broad range of organisations and interests in the road transport industry, under
the leadership of RTAG members.
1118. It is not intended that members of the RTAG's subcommittees would be entitled to any
remuneration or allowances for their participation.
Division 4--Regulations relating to the road transport industry contractual chain
1119. This division would provide a power for regulations to be made about the road
transport industry contractual chain and contractual chain participants.
1120. This division would allow regulations to be made to empower the FWC to make orders
in relation to road transport contractual chains and participants within those chains.
This reflects the nature of the road transport industry that may see a range of parties
throughout a contractual chain (otherwise known as a supply chain) that affect the
working conditions of road transport workers and operating conditions of road transport
and ancillary businesses. It would give the Government flexibility to extend the
operation of the new road transport jurisdiction in Chapter 3A to contractual chains,
should it become apparent this is necessary to ensure the successful operation of the
new framework.
40H Meaning of road transport industry contractual chain participant
1121. This section would provide that a road transport industry contractual chain participant
is a person connected with the road transport industry who is:
• a national system employer (as defined in section 14);
• a national system employee (as defined in section 14);
• a constitutional corporation (as defined in section 12);
• a regulated road transport contractor (see new section 15Q);
• a road transport business (see new section 15R); or
• a person who satisfies the requirements prescribed by the regulations.
1122. The intent is to ensure that all relevant persons in the road transport industry contractual
chain are able to be brought within scope, should this be required for the purposes
described below.
40J Regulations about the road transport industry contractual chain
1123. This section would enable regulations to be made for and in relation to matters relating
to the road transport industry contractual chain or road transport contractual chain
participants. For example, the regulations may:
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• empower the FWC to make road transport industry contractual chain orders, that
confer rights and impose obligations on road transport industry contractual chain
participants;
• specify the matters that a road transport industry contractual chain order must, may
or must not deal with;
• empower the FWC to vary, suspend or revoke road transport industry contractual
chain orders;
• empower the FWC to deal with disputes between road transport industry contractual
chain participants covered by road transport industry contractual chain orders;
• provide for and in relation to the interaction between road transport industry
contractual chain orders, fair work instruments and other instruments under this Act
or the regulations;
• provide for and in relation to the interaction between the regulations or road
transport industry contractual chain orders and a law of the Commonwealth, a State
or a Territory or an instrument made under such a law;
• provide for civil penalties for contraventions of the regulations, which must not
exceed 60 penalty units for an individual and 600 penalty units for a body
corporate; and
• empower the FWO to enforce road transport industry contractual chain orders.
1124. The maximum penalties for these regulations would ensure broadly consistent
treatment with breaches of other civil remedy provisions in the Fair Work Act.
Ensuring penalties have an appropriate deterrent effect would be consistent with
achieving the objective of ensuring a safe and viable road transport industry
1125. This section would provide that before making regulations under this section, the
Minister must be satisfied that the regulations are for the purposes of promoting the
following:
• equitable workplace relations outcomes;
• a safe, sustainable and viable road transport industry;
• sustainable competition among road transport industry participants; and
• fairness between road transport industry contractual chain participants.
Division 2--Expert Panel for the road transport industry
Amendments to the Fair Work Act 2009
1126. This division would make amendments to the FW Act to establish and provide the
functions of a new Expert Panel for the road transport industry. The Expert Panel would
be responsible for performing functions and exercising powers relating to the road
transport industry, including in relation to modern awards and RTMSOs, having regard
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to the road transport objective. The Expert Panel could also be directed to deal with
other matters that the President considers may relate to the road transport industry.
1127. This would ensure the FWC has the expertise it needs to better assess minimum
standards and conditions for both employees and contractors working in the road
transport industry. The expertise required for the new Expert Panels would be provided
by either part-time Expert Panel members or appropriately qualified FWC members.
Item 239: At the end of subsection 157(1) (after note 3)
1128. Section 157 of the FW Act provides that the FWC may make, vary or revoke a modern
award if the FWC is satisfied that it is necessary to achieve the modern awards
objective.
1129. This item would insert a note at the end of subsection 157(1) (after note 3) of the FW
Act clarifying if the FWC is making, varying or revoking a modern award the President
considers might relate to the road transport industry (cross-referencing section 40D), it
must have regard to the road transport objective.
1130. This would make the reader aware that both the modern awards objective and road
transport objective would need to be applied when the FWC is making, varying or
revoking such an award.
Item 240: After subsection 582(4)
1131. This item would amend section 582 of the FW Act to insert new subsections (4A), (4B)
and (4C). Existing section 582 relates to directions by the President.
1132. New subsection (4A) would provide that if the President gives a direction that two or
more matters be dealt with jointly, then the direction must require the matters to be
dealt with by the Expert Panel where at least one of the matters:
• must be dealt with by an Expert Panel constituted to deal with a matter that relates
to the road transport industry (as required by new subsection 617(10B)); or
• is a matter the President considers might relate to the road transport industry and
has directed be dealt with by an Expert Panel constituted for that purpose (in
accordance with new subsection 617(10D)).
1133. This means that where at least one of the matters to be dealt with jointly fall into one of
those categories then the matters will travel together and be dealt with by an Expert
Panel. The note to this subsection would cross-reference subsection 620(1E) regarding
the constitution of an Expert Panel for these purposes.
1134. Subsection (4B) would provide that the above provisions do not limit the power of the
President to direct that other matters be dealt jointly by an Expert Panel.
1135. Section (4C) would provide that the President may give a direction that a FWC member
deal with a matter that the President considers might relate to the road transport
industry, if the FWC member has knowledge of, or experience in, the road transport
industry, whether or not the President considers that the matter might relate to another
industry or sector. For example, the President would be able to direct a suitably
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qualified FWC member to deal with a dispute relating to a road transport collective
agreement.
Item 241: After subsection 617(10A)
1136. This item would insert new subsections after subsection 617(10A) of the FW Act.
1137. Subsection (10B) would provide that the following must be made by an Expert Panel
for the road transport industry:
• a modern award that the President considers might relate to the road transport
industry;
• a determination varying or revoking a modern award that the President considers
might relate to the road transport industry;
• a RTMSO or a determination varying or revoking a RTMSO;
• RTG or a determination varying or revoking RTG;
• such other instruments as prescribed.
1138. Note 1 to this subsection would cross-reference subsection 620(1E) for further
information about the constitution of the Expert Panel for the road transport industry.
1139. Note 2 to this subsection would inform the reader that the road transport objective
would be relevant to functions of the Expert Panel for the road transport industry as
would be provided in new section 40D.
1140. Subsection (10C) would provide that for the purposes of new subsection (10B), if the
President considers that a determination or a modern award or other prescribed
instrument might relate to the road transport industry it does not matter if the President
considers that the determination or modern award might relate to another industry or
sector.
1141. Section 10D would provide that the President with power to direct that the following
matters be dealt with by an Expert Panel constituted for the purpose, regardless of
whether the President considers that the matter might also relate to another industry or
sector:
• the making, varying or revoking of an ELMSO or ELG to the Expert Panel if the
President considers it might relate to the road transport industry; and
• any other prescribed instrument or matter that the President considers might relate
to the road transport industry.
1142. The note to this subsection would cross-reference to subsection 620(1E) regarding
constitution of an Expert Panel.
Item 242: At the end of subsection 617AA(4)
1143. This item would insert new paragraphs (e) and (f) in existing subsection 617AA(4).
1144. Existing section 617AA applies where a Full Bench and Expert Panel consist of the
same FWC members. It provides, for the avoidance of doubt, that the functions and
193
powers of those FWC members as a Full Bench are not limited by the purposes for
which an Expert Panel consisting of those same members was constituted. Likewise,
the functions and powers of the Expert Panel are not limited by the functions and
powers of the Full Bench.
1145. Subsection 617AA(4) clarifies that a reference to a full bench or an Expert Panel
performing a functions or exercising a power would include reference to the listed
functions or powers.
1146. The following would be added would to the listed functions or powers to make clear
section 617AA would apply to them:
• performing a function or exercising a power under Chapter 3A;
• dealing with a matter that the President considers might relate to the road transport
industry.
Item 243: Subsection 617A(1)
1147. This item would amend existing section 617A(1) to insert reference to new
subsection 620(1E).
1148. Existing Subsection 617A allows the President to give a direction under section 582
requiring that a matter that is relevant to a function of an Expert Panel for pay equity,
an Expert Panel for the Care and Community Sector or an Expert Panel for pay equity
in the Care and Community Sector be investigated, and that a report about the matter be
prepared.
1149. This amendment would similarly allow the President to also give a direction requiring
that a matter relevant to a function of the Expert Panel for the road transport industry be
investigated and that report about the matter be prepared.
Item 244: Subsection 617A(1) (note)
1150. After 'remuneration' in subsection 617A(1)(note), this item would insert the words 'the
road transport industry'. This is a consequential change to reflect the amendment made
by the above item.
Item 245: After subsection 620(1D)
1151. This item would insert new subsection 620(1E) which would provide for constitution of
an Expert Panel for the road transport industry.
1152. Subsection (1E) would provide that an Expert Panel constituted under this subsection
for a purpose referred to in subsection 617(10B) or (10D) must include (except as
provided by section 622):
• the President, a Vice President or Deputy President appointed by the President to be
Chair of the Panel; and
• at least one Expert Panel member or other FWC Member who has knowledge of, or
experience in, the road transport industry; and
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• subject to existing subsection 620(2A) (which would require the President to ensure
an Expert Panel for the road transport industry consists of a majority of FWC
members who have knowledge of, or experience in, the road transport industry),
such number (if any) of other FWC Members as the President considers
appropriate.
Item 246: Subsection 620(2A)
Item 247: Subsection 620(2A)
1153. These items would add references to new subsection (1E) and paragraph (1E)(b) in
existing subsection 620(2A).
1154. These amendments would require the President to ensure an Expert Panel for the road
transport industry consists of a majority of FWC members who have knowledge of, or
experience in, the road transport industry.
Division 3--Minimum standards for regulated workers
Amendments to the Fair Work Act 2009
Item 248: After section 15A
1155. This item would insert new Division 3A into Part 1-2 (Definitions).
Division 3A--Definitions relating to regulated workers
Subdivision A--General
15B Meaning of collective agreement
1156. This section would insert a new meaning of 'collective agreement' into the FW Act,
being:
• an employee-like worker collective agreement;
• a road transport collective agreement.
15C Meaning of contractor high income threshold
1157. This section would insert a new definition of 'contractor high income threshold' into
the FW Act. This amount would be prescribed by regulations. A regulation will have no
effect if it reduces the amount of the contractor high income threshold.
1158. This regulation making power is similar to section 333 of the FW Act, which provides
for a high income threshold for employees. This would allow for indexation of the
contractor high income threshold.
1159. The contractor high income threshold would be relevant in the following
circumstances:
• New paragraph 536LT(5)(b) - the amount of compensation for an unfair
termination that can be ordered by the FWC to a person would not be able to exceed
the lesser of half the amount of the contractor high income threshold immediately
before termination. This amount is the total amount of remuneration received by the
person or to which the person was entitled (whichever is higher) for any period
195
during which the person performed work under the services contract during the 26
weeks immediately before the termination.
• New subsection 536LU(2) - this would prevent a person from making an
application for an unfair deactivation or unfair termination remedy unless, the sum
of the contractor's annual rate of earnings, and such other amounts (if any) worked
out in relation to the person in accordance with the regulations, is less than the
contractor high income threshold.
• New section 536ND - this would prevent a person from making an application for
an unfair contract remedy in relation to a services contract unless, the sum of the
contractor's annual rate of earnings, and such other amounts (if any) worked out in
relation to the person in accordance with the regulations, is less than the contractor
high income threshold within the meaning of the FW Act.
• New subsection 12(2A) of the IC Act, as amended by item 306 of this Part 16 - this
would provide an application must not be made in relation to a services contract
unless, the sum of the contractor's annual rate of earnings, and such other amounts
(if any) worked out in relation to the person in accordance with the regulations, is
more than the contractor high income threshold within the meaning of the FW Act.
15D Meaning of minimum standards guidelines
1160. This section would insert a new definition of 'minimum standards guidelines' into the
FW Act, being:
• employee-like worker guidelines (ELG);
• road transport guidelines (RTG).
15E Meaning of minimum standards order
1161. This section would insert a new definition of 'minimum standards order' (MSO) into
the FW Act, being:
• an employee-like worker minimum standards order (ELMSO);
• a road transport minimum standards order (RTMSO).
15F Meaning of regulated business
1162. This section would insert a new definition of 'regulated business' into the FW Act,
being:
• a digital labour platform operator; or
• a road transport business.
15G Meaning of regulated worker
1163. This section would insert a new definition of 'regulated worker' into the FW Act,
being:
• an employee-like worker; or
• a regulated road transport contractor.
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15H Meaning of services contract
1164. This section would insert a new definition of 'services contract' into the FW Act.
General meaning
1165. Subsection (1) would provide that services contract is defined to mean a contract for
services that:
• relates to the performance of work under the contract by an individual; and
• has the requisite constitutional connection.
1166. A note in subsection (1) would provide that conditions or collateral arrangements that
relates to a services contract would be taken to be part of that services contract:
subsection (4).
The requisite constitutional connection
1167. Subsection (2) would provide the circumstances in which a services contract would
have the requisite constitutional connection for the purposes of subsection (1). The
requisite constitutional connection identifies the constitutional bases for new
Chapter 3A. This includes the corporations power (paragraph 51(xx) of the
Constitution), the Commonwealth's power to regulate entities of the Commonwealth
and Commonwealth authorities, the Territories power and the trade and commerce
power.
1168. A contract for services would have the requisite constitutional connection if:
• at least one party to the contract is:
o a constitutional corporation; or
o the Commonwealth or a Commonwealth authority; or
o a body corporate incorporated in a Territory in Australia;
• or any of the following applies:
o the work concerned is wholly or principally to be performed in a Territory
in Australia; or
o the contract was entered into in a Territory in Australia; or
o at least one party to the contract is a natural person who is resident in, or a
body corporate that has its principal place of business in, a Territory in
Australia; or
o the work concerned is done in the course of constitutional trade or
commerce.
1169. A note to subsection (2) would explain that Australia includes Norfolk Island, the
Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, including a
cross-reference to the definition of Australia in section 12.
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1170. A services contract under Part 3A-2 (minimum standards for regulated workers), Part 3
(unfair deactivation and unfair termination) and Part 4 (collective agreement) to the
extent it relates to digital platform work, would also have the requisite constitutional
connection if the contract was arranged or facilitated through or by means of a digital
labour platform, where the operator of the digital labour platform is either:
• a constitutional corporation; or
• the Commonwealth or a Commonwealth authority; or
• a body corporate incorporated in a Territory in Australia; or
• a natural person who is resident in, or a body corporate that has its principal place
of business in, a Territory in Australia.
1171. A note to (3) would mirror the note in (2) regarding the coverage of Australia.
1172. The intent of this definition is to clearly capture operators of 'horizontal' or
'marketplace' digital labour platforms which may intermediate a services contract made
between a worker and an individual but is not itself a party to it. There are examples of
such digital labour platforms in the care sector.
Conditions and collateral arrangements
1173. Subsection (4) would provide that a condition or a collateral arrangement that relates to
a services contract is to be included as part of the services contract if, were the
condition or collateral arrangement itself a contract for services, would have the
requisite constitutional connection. For example, this would mean that a side agreement
that refers to the operation of the services contract could be treated itself as part of the
services contract. This ensures that technical distinctions do not need to be drawn
between the services contract and other agreements between the parties that are likely
to impact on the operation of the services contract. A similar provision exists in
subsection 5(4) of the IC Act and existed in the former paragraph 832(1)(b) of the
Workplace Relations Act 1996 in relation to the former Commonwealth unfair contracts
jurisdiction.
15J Prospective regulated workers
1174. This section would make clear that a reference to a regulated worker in relation to a
services contract also refers to a person who may later become a regulated worker for a
services contract.
15K Effect of Chapter in determining whether a person is an employee or employer
1175. This section would provide that the effect of an MSO, MSG or a collective agreement
applying to or covering an individual or a person is to be disregarded for the purposes
of ascertaining the real substance, practical reality and true nature of the relationship
between an individual and a person.
1176. This provision would aim to ensure that anything done to comply with an MSO, MSG
or collective agreement would not, in and of itself, have the effect of altering a worker's
198
status. For example, an assessment of the practical reality of the relationship would
occur before considering how external factors such as an MSO or MSG are factored in.
1177. Item 237 in Part 15 would insert new section 15AA into Division 3 of Part 1-2 of the
FW Act which would provide a principle of interpretation that applies for the purposes
of determining the ordinary meaning of 'employee' and 'employer' for the purposes of
the FW Act.
15KA Specific provision about the effect of certain provisions relating to digital platform
work in determining whether a person is an employee or an employer
1. New section 15KA would be inserted at the end of new Subdivision A of new Division
3A. Subsection (1) would provide that, for the purposes of ascertaining the real substance,
practical reality and true nature of the relationship between an individual and a person,
any steps taken by a digital labour platform operator to comply with its obligations under
any of the following in relation to the individual are to be disregarded:
• Part 3A-3 (Unfair deactivation or unfair termination);
• the Digital Labour Platform Deactivation Code (being the code made by the
Minister under section 536LJ); or
• an order made under, or for the purposes of, Chapter 3A.
2. Subsection (2) would provide that an employee-like worker to whom an ELMSO applies
in relation to particular digital platform work is not an employee in relation to that work.
3. This section would provide certainty to digital labour platform operators about the status
of their workers for the purpose of determining the workers' rights and entitlements. The
would ensure that steps taken by a digital labour platform operator to comply with its
obligations cannot be considered when determining whether the true nature and practical
reality of the employment relationship is one of employment. This avoids a perverse
outcome whereby acts of a digital labour platform operator to comply with the new
employee-like provisions or orders made under them may otherwise have the effect of
inadvertently creating an employment relationship.
1178. The section would also provide certainty to digital labour platform operators that
workers covered by MSOs cannot later bring proceedings to recover unpaid
employment entitlements.
Subdivision B--Digital platform work
15L Meaning of digital labour platform
1179. Subsection (1) would insert a new definition of 'digital labour platform' into the FW
Act. It would mean an online enabled application, website or system operated to
arrange, allocate or facilitate the provision of labour services, where:
• the operator of the application, website or system:
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o engages independent contractors directly or indirectly through or by means
of the application, website or system; or
o acts as an intermediary for or on behalf of more than one distinct but
interdependent sets of users who interact with the independent contractors
or the operator via the application, website or system; and
• the operator of the application, website or system processes aggregated payments
referable to the work performed by the independent contractors.
1180. Subsections (2) and (3) would insert regulation-making powers, enabling an online
enabled application, website or system to be prescribed as a digital labour platform, or
to be excluded as not a being digital labour platform.
1181. Subsection (4) would specify that an application, website or system may be specified
by name or by inclusion in a specified class or specified classes or in respect of all
forms of digital platform work, or in respect of specified forms of digital platform
work.
1182. The definition of digital labour platform is intended to be deliberately broad to ensure
that it can capture new market structures and forms of work as they emerge. It is not
intended to capture online classifieds where there is not a payment processed, or digital
platforms that facilitate the sale of goods.
15M Meaning of digital labour platform operator
1183. This section would insert a new definition of 'digital labour platform operator' into the
FW Act. It would mean the operator of a digital labour platform that enters into or
facilitates a services contract where work is performed by employee-like workers.
15N Meaning of digital platform work
1184. Subsection (1) would insert a new definition of 'digital platform work' into the FW
Act. It would mean either work:
• performed by an independent contractor where the work is performed under a
services contract through or by means of a digital labour platform, or the services
contract under which the work is performed was arranged or facilitated through or
by means of a digital labour platform and payment is made for that work; or
• work prescribed by the regulations.
1185. Subsection (2) would enable regulations to also be made to prescribe when work is not
'digital platform work'.
1186. Subsection (3) would provide that for the purposes of paragraph (1)(b) and
subsection (2), digital platform work may include work specified by name or by
inclusion in a specified class or classes.
15P Meaning of employee-like worker
1187. This section would insert a new definition of 'employee-like worker' into the FW Act.
1188. A person will be an employee-like worker if they are any of the following:
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• an individual who is a party to a services contract in their capacity as an individual
(other than as a principal), and performs work under the contract;
• if a body corporate is a party to a services contract (other than as a principal) - an
individual who is a director of the body corporate, or a member of the family of a
director of a body corporate, and performs work under the contract;
• if a trustee of a trust is a party to a services contract in their capacity as a trustee
(other than as a principal) - an individual who is a trustee of the same trust and
performs work under the contract, whether or not the individual is a party to the
contract; or
• if a partner in a partnership is a party to a services contract in their capacity as a
partner (other than as a principal) - an individual who is a partner in the same
partnership and performs work under the contract, whether or not the individual is a
party to the contract.
1189. The effect of this subsection to capture individuals performing work under a services
contract regardless of the type of entity they have adopted.
1190. Additionally, the person must:
• perform all, or a significant majority, of the work to be performed under the
services contract;
• the work that the person performs under the services contract is digital platform
work;
• the person does not perform any work under the services contract as an employee;
and
• satisfy one or more of the following characteristics:
o the person has low bargaining power in negotiations in relation to the
services contract under which the work is performed;
o the person receives remuneration at or below the rate of an employee
performing comparable work;
o the person has a low degree of authority over the performance of the work;
or
o the person has such other characteristics as are prescribed by the
regulations.
1191. The regulations made may specify that a person must have all or only one or some of
the characteristics prescribed.
1192. The intended effect of these provisions is not to capture persons that have a high degree
of bargaining power, are comparatively well paid and have a significant degree of
authority over their work, regardless of whether they perform work on a digital
platform. It is intended, for example, that skilled tradespeople would not be captured
even if they work on a digital platform.
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1193. For the purposes of determining whether a person satisfies the above characteristics, the
effect of an MSO, MSG or a collective agreement applying to, or covering, the
individual is to be disregarded.
Illustrative example: Care sector digital labour platform
Jim works as an independent contractor providing services on a gig platform in the care
sector called GigCare. GigCare operates as an online-enabled marketplace, where contractors
pay a fee to operate on the platform and must agree to terms of service that place obligations
on how they use the platform and interact with clients found on the platform. GigCare's
platform provides a platform for communications between the parties and processes
payments from clients to Jim.
GigCare's platform is a digital labour platform because it acts as an intermediary between
Jim (and other contractors) and clients, and it processes payments. If a union representing Jim
and similar contractors applies to the FWC for a minimum standards order in relation to work
that he and those similar contractors performs through the GigCare platform, the FWC will
also need to consider whether those similar contractors are employee-like workers, including
because they have low bargaining power, comparatively low pay or a low degree of authority
over their work.
1194. A reference to an independent contractor includes a reference to an employee-like
worker.
Subdivision C--Road Transport Industry
15Q Meaning of regulated road transport contractor
1195. Subsection (1) would insert a new definition of 'regulated road transport contractor'
into the FW Act.
1196. A person will be a regulated road transport contractor if they are any of the following:
• an individual who is a party to a services contract in their capacity as an individual
(other than as a principal), and performs work under the contract;
• if a body corporate is a party to a services contract (other than as a principal) - an
individual who is a director of the body corporate, or a member of the family of a
director of a body corporate, and performs work under the contract;
• if a trustee of a trust is a party to a services contract in their capacity as a trustee
(other than as a principal) - an individual who is a trustee of the same trust and
performs work under the contract, whether or not the individual is a party to the
contract; or
• if a partner in a partnership is a party to a services contract in their capacity as a
partner (other than as a principal) - an individual who is a partner in the same
partnership and performs work under the contract, whether or not the individual is a
party to the contract.
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1197. The effect of this subsection to capture individuals performing work under a services
contract regardless of the type of entity they have adopted.
1198. Additionally:
• the person must perform all, or a significant majority, of the work to be performed
under the services contract (the definition of services contract would be inserted at
section 15H);
• the person must not perform any work under the services contract as an employee;
• the work performed under the services contract must be work in the road transport
industry (the definition of road transport industry would be inserted at section 15S);
and
• the person must not be an employee-like worker who performs work in the road
transport industry under the services contract (the definition of employee-like
worker would be inserted at section 15P).
1199. Subsection (2) would provide that in this Part, a reference to an independent contractor
includes a reference to an individual who is a regulated road transport contractor.
15R Meaning of road transport business
1200. This section would insert a new definition of 'road transport business' into the FW Act.
1201. Subsection (1) would provide a person is a road transport business if they:
• receive services under a services contract, where the services contract provides for
the performance of work in the road transport industry; or
• are a constitutional corporation, or is included in a class of constitutional
corporations, prescribed by the regulations.
1202. Subsection (2) would specify that a business or undertaking may be specified by name
or by inclusion in a specified class or classes.
15S Meaning of road transport industry
1203. This section would insert a new definition of 'road transport industry' into the FW Act.
1204. Subsection (1) would provide that 'road transport industry' includes all of the
following:
• the road transport and distribution industry within the meaning of the Road
Transport and Distribution Award 2020 as in force on 1 July 2024, with such
modifications (if any) as are prescribed by regulations for the purposes of this
paragraph; and
• the long distance operations in the private road transport industry within the
meaning of the Road Transport (Long Distance Operations) Award 2020 as in force
on 1 July 2024, with such modifications (if any) as are prescribed by regulations for
the purposes of this paragraph; and
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• the waste management industry within the meaning of the Waste Management
Award 2020 as in force on 1 July 2024, with such modifications (if any) as are
prescribed by regulations for the purposes of this paragraph; and
• the cash in transit industry within the meaning of the Transport (Cash in Transit)
Award 2020 as in force on 1 July 2024, with such modifications (if any) as are
prescribed by regulations for the purposes of this paragraph; and
• the passenger vehicle transportation industry within the meaning of clause 4.2 of the
Passenger Vehicle Transportation Award 2020, not including paragraph 4.2(c)), as
in force on 1 July 2024, with such modifications (if any) as are prescribed by
regulations for the purposes of this paragraph; and
• any other industry (however described) prescribed by the regulations for the
purposes of this paragraph.
1205. Subsection (2) would specify that the regulations can prescribe an industry as a road
transport industry by applying, adopting or incorporating any matter contained in a
modern award as in force or existing from time to time.
Item 249: After section 536H
1206. This item would insert new Chapter 3A into the FW Act.
• Part 3A-1 would contain core provisions, dealing with the coverage and operation
of the provisions of this Chapter;
• Part 3A-2 would provide the framework for setting minimum standards for
employee-like workers performing digital platform work, and for road transport
contractors;
• Part 3A-3 would be about unfair deactivation from digital labour platforms of
employee-like workers and unfair termination of the services contracts of regulated
road transport contractors;
• Part 3A-4 would provide the framework for collective-agreement making between
regulated businesses (that is, digital labour platform operators and road transport
businesses) and registered employee organisations;
• Part 3A-5 would be about unfair contract terms of services contracts, providing a
framework for dealing with unfair contract terms.
Part 3A-1--Core provisions for this Chapter
1207. Part 3A-1 would be about the coverage and operations of the provisions in new
Chapter 3A. It would set out when MSOs, MSGs and collective agreements cover
regulated workers and regulated businesses. It would also specify the rules relating to
the interaction of the provisions in new Chapter 3A with State and Territory laws.
Division 1--Introduction
536J Guide to this Part
1208. New section 536J would provide a Guide to Part 3A-1.
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536JA Meaning of employee and employer
1209. This section would provide that in Part 3A-1 the terms 'employee' and 'employer' have
their ordinary meanings.
Division 2--Provisions relating to coverage and operation of minimum standards orders,
minimum standards guidelines and collective agreements
Subdivision A--Coverage and operation of minimum standards orders and guidelines
536JB Contravening a minimum standards order
1210. Section 536JB would provide that a person must not contravene a term of an MSO.
1211. A note would explain this section would be a civil remedy provision under Part 4-1 of
the FW Act. As such, civil remedies may be sought in relation to a contravention.
1212. Another note would provide that a person would not contravene a term of an MSO
unless the MSO applies to the person (with a cross-reference to subsection 536JC(1)).
536JC The significance of a minimum standards order applying to a person
1213. New section 536JC would provide that an MSO would not impose obligations on a
person, and a person would not contravene an MSO unless the MSO specifically
applies to that person (see new section 536JD).
1214. This section would also provide that an MSO does not give a person an entitlement
unless the MSO specifically applies to that person (see new section 536JD).
536JD When a minimum standards order applies to a person
1215. Section 536JD would provide when an MSO applies to a person.
1216. When a minimum standards order applies to a regulated worker: Subsection (1)
would provide that an MSO 'applies' to a regulated worker if:
• the MSO is in operation and covers the regulated worker (see section 536JE); and
• no other provision of the FW Act provides, or has the effect, that the MSO does not
apply to the regulated worker.
1217. When an ELMSO applies to a digital labour platform operator: Subsection (2)
would provide that an ELMSO 'applies' to a digital labour platform operator if:
• the ELMSO covers the digital labour platform operator (see new section 536JE);
• the ELMSO covers employee-like workers;
• the digital labour platform operator:
o directly or indirectly engages employee-like workers under services
contracts covered by the ELMSO, and those employee-like workers
perform work through or by means of the digital labour platform it
operates; or
o arranges or facilitates services contracts through or by means of the digital
labour platform it operates, under which employee-like workers who are
covered by the MSO perform work;
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o the MSO is in operation; and
o no other provision of the FW Act provides, or has the effect, that the
ELMSO does not apply to the digital labour platform operator.
1218. When a RTMSO applies to a road transport business: Subsection (3) would provide
that a RTMSO applies to a road transport business if:
• the RTMSO covers the road transport business (see new section 536JE); and
• the RTMSO covers regulated road transport contractors (see new section 536JE);
and
• the road transport business receives the services of a regulated road transport
contractor covered by the RTMSO under a services contract;
• the RTMSO is in operation (see new section 536JF); and
• no other provision of the FW Act provides, or has the effect, that the RTMSO does
not apply to the road transport business.
1219. MSO applies in relation to services contracts: Subsection (5) would provide that a
reference in the FW Act to an MSO applying to a regulated worker is a reference to the
order applying to the regulated worker in relation to a services contract. In other words,
MSOs would only apply in relation to services contracts (see new section 15H).
536JE When a minimum standards order covers a regulated worker or a regulated business
1220. Section 536JE would provide when an MSO 'covers' a regulated worker or a regulated
business, being when the order is expressed to cover the regulated worker or regulated
business.
1221. Effect of other provisions of this Act, FWC orders or court orders on coverage:
Subsection (2) would provide that an MSO also covers a regulated worker or regulated
business if any of the following provides for or has that effect:
• a provision of the FW Act;
• an FWC order made under a provision of the FW Act;
• an order of a court.
1222. Subsection (3) would provide that, despite subsections (1) and (2), an MSO does not
cover a regulated worker or regulated business if any of the following provides, or has
the effect, that the MSO would not cover the regulated worker or regulated business:
• a provision of the FW Act;
• an FWC order made under a provision of the FW Act;
• an order of a court.
1223. MSOs that have ceased to operate: Subsection (4) would provide that an MSO that
has ceased to operate does not cover a regulated worker or regulated business (see new
section 536JF).
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536JF When a minimum standards order is in operation
1224. Section 536JF would provide when an MSO is in operation.
1225. When an MSO comes into operation: Subsections (1) and (2) would provide that an
MSO comes into operation on the day specified in the order, which must not be earlier
than the day on which the MSO is made.
1226. Subsection (2A) would provide that the FWC must be satisfied that the specified day on
which an ELMSO would come into operation would enable the FWC to undertake a
reasonable period of consultation after the relevant notice of intent for the order was
published, having regard to the unique nature of digital platform work.
1227. Subsection (3) would provide that the specified day on which an RTMSO would come
into operation must not be earlier than 24 months after the relevant notice of intent for
the order is published (refer to new section 536KB). This is to ensure that a notice of
intent and draft RTMSO would need to be in place for 24 months before an RTMSO
can come into effect.
1228. Where the FWC make significant changes to a draft RTMSO, it would be required to
publish a notice of intent in relation to the revised draft RTMSO and publish the revised
draft; and undertake a period of consultation on the revised draft RTMSO lasting at
least 12 months (see new subsection 536KE(2)).
1229. When a determination revoking an MSO comes into operation: Subsection (4)
would provide that a determination varying or revoking an MSO would operate on the
day specified in that determination.
1230. Subsection (5) would provide that a determination varying or revoking an MSO must
not be earlier than the day on which the determination is made. The subsection provides
very limited exceptions in which a determination can come into operation before that
day:
• when a determination is made under subsection 536KQ(3), which would enable the
FWC to make a determination varying an MSO to remove an ambiguity or
uncertainty or to correct an error; and
• where the FWC is satisfied that there are exceptional circumstances.
1231. This is similar to existing subsection 165(2) of the FW Act, which provides for a
determination that varies a modern award, other than in relation to modern award
wages, to have retrospective effect in limited circumstances.
1232. Enabling retrospectivity in limited circumstances would help to ensure that MSOs are
working as intended in the event of errors, ambiguity or exceptional circumstances.
New section 536JU would ensure that any person who contravenes a term of an MSO
due to a variation with retrospective effect is not liable to pay a pecuniary penalty in
respect of past conduct.
1233. MSOs operate until revoked: Subsection (6) would provide that an MSO continues to
operate until it is revoked.
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1234. Subsection (6A) would provide that the 'the relevant notice of intent' for an ELMSO
(referred to subsection 2A) is the notice of intent published under new
subsection 536KAA(1) at the same time as the draft of the ELMSO is published.
1235. Subsection (7) would provide that the 'relevant notice of intent' for an RTMSO is the
notice of intent published under subsection 536KB(1) at the same time as the draft of
the RTMSO is made.
536JG When minimum standards guidelines cover a regulated worker or regulated business
1236. Subsection (1) would provide that an MSG 'covers' a regulated worker or a regulated
business if the MSG is expressed to cover them.
1237. Effect of other provisions of this Act, FWC orders or court orders on coverage:
Subsection (2) would provide that an MSG would cover a regulated worker or regulated
business if any of the following provides or has the effect that an MSG would cover
them:
• a provision of the FW Act;
• an FWC order made under a provision of the FW Act;
• an order of the court.
1238. Subsection (3) would provide that despite subsections (1) and (2), an MSG would not
cover a regulated worker or regulated business if any of the following provides or has
the effect that an MSG would not cover them:
• a provision of the FW Act;
• an FWC order made under a provision of the FW Act;
• an order of the court.
1239. MSGs that have ceased to operate: Subsection (4) would provide that an MSG that
has ceased to operate does not cover a regulated worker or regulated business.
536JH When minimum standards guidelines are in operation
1240. This section would provide when an MSG is in operation.
1241. When MSGs come into operation: Subsections (1) and (2) would provide that an
MSG would come into operation on the day specified in the MSG, which must not be
earlier than the day on which the MSG is made.
1242. When a determination varying or revoking MSGs comes into operation:
Subsections (3) and (4) would provide that a determination revoking an MSG would
operate on the day specified in that determination; which must not be earlier than the
day on which the determination is made.
1243. MSGs operate until revoked: Subsection (5) would provide that an MSG would
continue to operate until it is revoked.
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Subdivision B--Coverage and operation of collective agreements
536JJ Contravening a collective agreement
1244. Section 536JJ would provide that a person must not contravene a term of a collective
agreement.
1245. A note would explain this section would be a civil remedy provision under Part 4-1 of
the FW Act. As such, civil remedies may be sought in relation to a contravention.
1246. Another note would explain that a person does not contravene a term of a collective
agreement unless it applies to them and refer the reader to new section 536JK.
536JK The significance of a collective agreement applying to a person
1247. Subsection (1) would provide that a collective agreement would not impose obligations
on a person, nor would a person contravene a term of a collective agreement, unless the
agreement applies to the person (see new section 536JL).
1248. Subsection (2) would provide that a collective agreement would not give a person an
entitlement unless it applies to them (see new section 536JL).
536JL When a collective agreement applies to a person
1249. When a collective agreement applies to a regulated worker: Subsection (1) would
provide that a collective agreement 'applies' to a regulated worker where:
• it covers the regulated worker (see new section 536JM);
• is in operation (see new section 536JN); and
• no other provision of the FW Act has the effect that the collective agreement does
not apply to the regulated worker.
1250. When a collective agreement applies to a regulated business: Subsection (2) would
provide that a collective agreement 'applies' to a regulated business if:
• the collective agreement covers the regulated business (see new section 536JM);
• the collective agreement covers regulated workers (see new section 536JN);
• if the regulated business is a digital labour platform operator:
o it directly or indirectly engages, under services contracts, employee-like
workers covered by the collective agreement who perform work through or
by means of a digital labour platform it operates; or
o it arranges or facilitates services contracts through or by means of the
digital labour platform it operates, under which employee-like workers
covered by the collective agreement perform work;
• if the regulated business is a road transport business - the road transport business
receives services of the regulated road transport contractors under a services
contract; and
• no other provision of the FW Act provides, or has the effect, that the collective
agreement does not apply to the regulated business.
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1251. Collective agreement applies in relation to services contracts: Subsection (3) would
provide that a reference in the FW Act to a collective agreement applying to a regulated
worker is a reference to the collective agreement applying to the regulated worker in
relation to a services contract. In other words, collective agreements would only apply
in relation to services contracts (section 15H).
536JM When a collective agreement covers a regulated worker, a regulated business or an
organisation
1252. Section 536JM would provide when a collective agreement 'covers' a regulated
worker, a regulated business or an organisation.
1253. Subsection (1) would provide that a regulated worker, regulated business or an
organisation would be covered by a collective agreement if the agreement is expressed
to cover them.
1254. Effect of other provisions of this Act, FWC orders or court orders on coverage:
Subsection (2) would provide that a collective agreement would also cover a regulated
worker, regulated business or organisation if a provision of the FW Act, a FWC order
made under the FW Act or court order has the effect that they would be covered.
1255. Subsection (3) would provide that, despite subsections (1) and (2), a collective
agreement would not cover the regulated worker, the regulated business or the
organisation if a provision of the FW Act, a FWC order made under the FW Act or
court order has the effect that they would not be covered.
1256. Collective agreements that have ceased to operate: Subsection (4) would provide
that a collective agreement would not cover a regulated worker, business or an
organisation where it has ceased to operate.
536JN When a collective agreement is in operation
1257. Section 536JN would provide when a collective agreement is in operation.
1258. When a collective agreement comes into operation: Subsection (1) would provide
that a collective agreement would come into operation on either the day it is registered,
or on a later date if one is specified in the collective agreement.
1259. When a collective agreement is terminated: Subsection (2) would provide that a
collective agreement would be terminated either at the end of the period of operation
specified in the collective agreement (see paragraph 536MS(3)(a)), or on an earlier date
if one is specified in a termination notice for the collective agreement (see new
subsection 536MW(1)).
1260. Collective agreements operate until terminated: Subsection (3) would provide that a
collective agreement would continue in operation until it is terminated.
1261. Interaction with MSOs, etc.: Subsection (4) would provide that a term of a collective
agreement has no effect to the extent that it is detrimental to the regulated worker in
any respect, when compared to an MSO or State or Territory law that applies to the
regulated worker in relation to that matter (see further the requirements set out in new
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section 536MR). This would enable collective agreements to supplement an MSO or
State or Territory law, but not override them.
Division 3--Exclusion of certain States and Territory laws
536JP Exclusion of certain State and Territory laws
1262. This section would exclude the operation of certain State and Territory laws that cover
similar kinds of matters that Chapter 3A would cover. This broadly replicates sections 7
and 10 of the IC Act but relates to regulated workers and regulated businesses instead
of parties to a services contract.
1263. The reason for broadly replicating parts of the IC Act in a new division (rather than
amending Part 1-3 of the FW Act) is to ensure the same kinds of laws covered by the
IC Act exclusion would be excluded in relation to parties covered by Chapter 3A, and
therefore support consistency across the statute book.
1264. The intention is to ensure that no new State or Territory schemes would operate
concurrently with the Commonwealth scheme without the power for the
Commonwealth to prevent (or allow) this. This seeks to ensure the full effectiveness of
the scheme.
1265. Subsection (1) would provide that the rights, entitlements, obligations and liabilities of
a regulated worker or a regulated business are not affected by a law of a State or
Territory to the extent that the law would otherwise do one or more of the following:
• take, deem or treat a regulated business or regulated worker to be an employee or an
employer for the purposes of a law relating to one or more workplace relations
matters (defined in new section 536JQ);
• confer or impose rights, entitlements, obligations or liabilities on regulated business
or regulated worker in relation to matters that, in an employment relationship,
would be workplace relations matters (defined in new section 536JQ);
• expressly provide for a court, commission or tribunal to do any of the following in
relation to a services contract on an unfairness ground (defined in new
section 536JR):
o make an order or determination setting aside, voiding or making all or part
of the services contract unenforceable;
o make an order or determination amending or varying all or part of the
services contract.
1266. Notes to subsection (1) would refer the reader to the fact that the meanings of
'workplace relations matter' and 'unfairness ground' are set out in sections 536JQ and
536JR respectively.
1267. Subsection (2) would provide for the exclusion of additional State and Territory laws
by regulation. Specifically, it would specify that rights, entitlements, obligations and
liabilities of a regulated business or a regulated worker are not affected by a State or
Territory law that is specified in regulations made for the purposes of this subsection.
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This would allow the Commonwealth to provide that particular laws (or parts of those
laws) are excluded from operation even where other parts of Division 3 expressly
preserve their operation, as made clear by subsection 536JP(4).
1268. Subsection (3) would provide certain exceptions to the rule in subsection (1). A State or
Territory law is not excluded in relation to:
• the extent that it deals with outworkers;
• Chapter 6 of the Industrial Relations Act 1996 (NSW) and related provisions; and
• the Owner Drivers and Forestry Contractors Act 2005 (Vic).
1269. Paragraph (3)(c) would also enable the regulations to specify a law of a State or
Territory (or part of those laws) that would be exempt from the exclusion in
subsection 536JP(1), and as such, would continue to have effect. It is expected (but
subject to a future decision of government) that initially the same laws that are
presently exempted by the Independent Contractors Regulation 2016 would also be
exempted by regulations made under this subsection.
536JQ What are workplace relations matters
1270. Section 536JQ would provide a definition of 'workplace relations matters'. This
definition would be critical for the operation of the exclusion of State and Territory
laws in new subsection 536JP(1) and is also relevant to the new framework for orders
in relation to unfair contract terms of services contracts (Div 3 of Part 3A-5). It would
provide a list of what matters would be included and excluded as a workplace relations
matter, and broadly replicates section 8 of the IC Act.
1271. New paragraph (1)(i) would allow the regulations to specify further matters that would
be 'workplace relations matters'.
1272. New paragraph (2)(m) would allow the regulations to specify further matters that would
not be 'workplace relations matters'.
536JR What is an unfairness ground
1273. Section 536JR would provide a definition of 'unfairness ground'. It would list of what
matters would be an unfairness ground, and broadly replicates section 9 of the IC Act.
This definition would be critical for the operation of the exclusion of State and
Territory laws in paragraph 536JP(1)(c).
536JS Interaction of minimum standards orders with State and Territory laws
1274. Subsection (1) would provide that an MSO would prevail over a State or Territory law
to the extent of any inconsistency.
1275. This is intended to address the interaction between MSOs and State and Territory laws
that are not excluded from operating by subsection 536JP(1), as these laws would
otherwise have concurrent operation.
1276. Such a law (or regulations, rules or other instruments (however described) made under
that law) would not operate, in relation to the parties covered by the MSO, to the extent
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that it prescribes rights and obligations that are inconsistent with the rights and
obligations set out in the MSO.
1277. Subsection (2) would provide that, despite subsection 536JS(1), an MSO is subject to:
• any State or Territory laws prescribed by the regulations;
• any State or Territory law that provides for rights or remedies by reference to a
State or Territory law prescribed by the regulations for the purposes of
paragraph (2)(a); and
• regulations, rules or other instruments (however described) made pursuant to or for
the purposes of these laws.
1278. An MSO could not diminish, but could supplement, rights and obligations under these
laws.
536JT Authorisation of conduct for the purposes of the Competition and Consumer Act 2010
1279. This section would authorise certain conduct for the purposes of subsection 51(1) of the
Competition and Consumer Act 2010 (CCA) and the Competition Code that is
operative in each state and territory within the meaning of section 150A of the CCA.
1280. Subsection 51(1) of the CCA provides that an Act can specify, and specifically
authorise, conduct that would otherwise contravene Part IV of the CCA. Such conduct
must be disregarded in deciding whether a person has contravened Part IV, which
relates to restrictive trade practices and prohibits certain conduct.
1281. Under subsections (1), (2) and (3), the following conduct would be specified in and
specifically authorised for the purposes of subsection 51(1) of the CCA and
Competition Code:
• anything done in accordance with an MSO, MSG or a collective agreement by a
person or entity covered by the order or agreement;
• making a collective agreement by a person or entity;
• anything done by a person or entity in preparation for, or incidental to, making, or
applying for registration of, a collective agreement. This includes conduct involved
in amending or terminating a collective agreement.
1282. The intention of authorising this conduct would be to enable people or entities to make
and comply with collective agreements and comply with MSOs or guidelines in
accordance with Chapter 3A without breaching the CCA or Competition Code.
1283. However, subsection 536JT(4) would provide that conduct referred to in
subsections (1), (2) and (3) would not be specified in or specifically authorised where
the conduct is:
• making a contract or arrangement, or arriving at an understanding, that contravenes
or would contravene paragraphs 45AD(3)(a) or 45AD(3)(b) of the CCA or the
Competition Code; or
213
• boycott conduct within the meaning of subsection 87AA(2) of the CCA or the
Competition Code.
1284. This conduct is not authorised because it is not considered necessary to do so to give
effect to the arrangements in Chapter 3A and, in relation to boycott conduct, could be
inconsistent with the consent-based nature of the collective agreement provisions.
1285. Collective agreement would take the meaning set out in new section 15B, that is, an
employee-like worker collective agreement or a road transport collective agreement.
Division 4--Other general matters
536JU Special rules relating to retrospective variations of minimum standards orders
1286. Subsection (1) would provide that this section applies if a determination is made that
varies an MSO with retrospective effect. A note would refer the reader to
subsection 536JF(5), which sets out when a determination may commence
retrospectively.
1287. No creation of liability to pay pecuniary penalty for past conduct: Subsection (2)
would provide that a court must not order a person to pay a pecuniary penalty under
Division 2 of Part 4-1 in relation to conduct that contravenes a term of the order if:
• the person engaged in conduct before the determination was made; and
• but for the retrospective effect of the determination, the conduct would not have
contravened a term of the minimum standards order.
1288. A note to this subsection would clarify that subsection (2) does not affect the powers of
a court to make other kinds of orders under Division 2 of Part 4-1.
Part 3A-2--Minimum standards for regulated workers
1289. This Part would insert a new and novel framework which empowers the FWC to set
minimum standards for certain classes of independent contractors.
1290. Part 3A-2 would deal with two specific classes of independent contractors eligible for
minimum standards. While the rationale for minimum standards for employee-like
workers performing digital platform work and road transport contractors may differ, the
way in which the FWC should approach setting standards for individuals performing
work under services contracts is essentially the same. For this reason, Part 3A-2 would
establish a single framework for standard-setting, with some important departures for
RTMSOs in respect of the process of consultation and prohibited content, owing to the
specific characteristics of the industry.
Division 1--Introduction
536JV Guide to this Part
1291. This section would provide a Guide to Part 3A-2, which sets out the minimum
standards objective and empowers the FWC to make MSOs and MSGs for regulated
workers.
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536JW Meaning of employee and employer
1292. This section would provide that in Part 3A-2 the terms 'employee' and 'employer' have
their ordinary meanings.
Division 2--The minimum standards objective
536JX The minimum standards objective
1293. This section would set out the minimum standards objective and provide for when the
minimum standards objective applies.
1294. The minimum standards objective would require the FWC to take into account the need
for an appropriate safety net of minimum standards for regulated workers, having
regard for the need for standards:
• to be clear, simple, fair and relevant;
• to recognise the skills and experiences of regulated workers and the value of the
work they perform, as well as their views and preferences about their working
arrangements;
• that do not change the form of engagement of regulated workers from independent
contractor to employee;
• that do not preference a particular business model or working arrangement;
• to be tailored to the relevant industry, occupation, sector, business model, the type
of work, working arrangements, and regulated worker preferences
• that reflect the differences in the form of engagement of regulated workers as
independent contractors to the form of engagement of employees;
• that have regard to the ability of regulated workers to perform work under a
services contract for multiple businesses, and the fact that the work may be
performed simultaneously;
• that deal with minimum rates of pay that:
o take into account costs necessarily incurred by regulated workers directly
arising from the performance of a services contract; and
o take into account safety net minimum standards that apply to employees
performing comparable work.
o do not change the form or engagement of regulated workers;
• to avoid unreasonable adverse impacts upon:
o industry participants, including on sustainable competition and
administrative and compliance costs;
o business costs, regulatory burden, sustainability, innovation, productivity
or viability;
o the national economy;
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o persons or bodies that use or rely on the work performed by regulated
workers, or the services received under services contracts for the
performance of that work; and
• to consider other orders or instruments (including but not limited to MSOs and
MSGs) made under new Chapter 3A and to avoid unnecessary overlap of such
orders or instruments.
1295. It is intended subsection 536JX(b) would require the FWC to consider the type of costs
that would be incurred by a regulated worker in the course of performing work under a
services contract and not costs that regulated workers would ordinarily incur regardless
of the work performed under a services contract, such as fixed costs for vehicles that
also are for personal use. The FWC would also be required to take into account
comparable safety net minimum standards that apply to employees performing similar
work, rather than terms and conditions above these that reflect 'industry rates'.
1296. The minimum standards objective would apply to the performance and exercise of the
FWC's functions and powers under Part 3A-2.
1297. When performing a function or power in relation to the road transport industry under
Part 3A-2, new section 40D would also require the FWC to take into account the road
transport objective.
Division 3--Minimum standards orders
Subdivision A--General matters
536JY Minimum standards orders
1298. This section would allow the FWC, on its own initiative or on an application, to make
an MSO setting standards for employee-like workers or regulated road transport
contractors.
1299. An MSO for employee-like workers would be an 'employee-like minimum standards
order' (ELMSO).
1300. An MSO for regulated road transport contractors would be a 'road transport minimum
standards order' (RTMSO).
1301. A note would refer the reader to the fact that an RTMSO can only be made by the
Expert Panel for the road transport industry (cross-referencing new
subsection 617(10B)).
536JZ Applications for minimum standards orders
1302. This section would set out the process for how an application for an MSO can be made
to the FWC.
1303. Subsection (1) would provide that any of the following may apply to the FWC for the
making of an MSO:
• an organisation entitled to represent the industrial interests of one or more regulated
workers that would be covered by the MSO;
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• an organisation entitled to represent the industrial interests of one or more regulated
businesses that would be covered by the MSO;
• a regulated business that would be covered by the MSO;
• the Minister.
1304. 'Organisation' is defined in section 12 of the FW Act as an organisation registered
under the RO Act. As such, only registered organisations would be able to make an
application. This is consistent with applications for the making or variation of modern
awards.
1305. A note would explain that an Expert Panel for the road transport industry can hear more
than one application under the FW Act together (cross-referencing subsection 582(4)).
An Expert Panel would be able to hear an application for an RTMSO together with
another application that relates to the road transport industry.
1306. Matters to be specified in an application: Subsections (2) and (3) would create a
requirement that an application under subsection (1) must:
• specify whether an ELMSO or a RTMSO is being applied for; and
• specify the class of regulated worker to be covered by the MSO.
1307. Subsection (4) would provide that this class could be described by reference to a
particular industry or sector, or part of an industry or sector, or particular kinds of work.
1308. These application requirements would be in addition to any application requirements
specified in the procedural rules (see section 609 of the FW Act).
Subdivision B--Matters relating to employee-like worker minimum standards orders
536K Particular matters FWC must take into account in making a decision on an employee-
like worker minimum standards order
1309. This section would set out the initial matter the FWC must consider before making or
varying an ELMSO under new section 536KG.
1310. Subsection (1) would provide this section applies if an application is made for an
ELMSO or for a variation of an ELMSO under subsection 536JZ(1), or if the FWC is
considering making or varying an employee-like worker MSO under new
section 536KP.
1311. Subsection (2) would require the FWC be satisfied that, overall, the class of people to
be covered by the MSO are employee-like workers. If the FWC is not satisfied,
subsection (3) would require it to decide to refuse to consider the application or not
make the order.
1312. The FWC would be required to generally consider the class of people, rather than
enquiring into the individual circumstances of all of the persons that fall within the
class.
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1313. It is intended that this would act as a "gateway" so that whether workers within a class
detailed in the application meet the criteria set out in paragraph 15P(1)(d) is a
preliminary consideration for the FWC before it considers the application further. This
reflects the scope of the jurisdiction that is limited to employee-like workers rather than
independent contractors more generally.
1314. Subsection (4) would provide additional matters the FWC must take into account
before making or varying an ELMSO.
1315. Under the new subsection, the FWC could not make or vary an ELMSO unless there
has been genuine engagement with the parties that the ELMSO covers or would cover,
and the consultation process set out in new Subdivision BA has been followed.
1316. When making or varying ELMSOs the FWC would also be required to have regard to
choice and flexibility in working arrangements. The requirement to have regard to
choice and flexibility in working arrangements would further ensure that the FWC has
regard to the unique nature of digital platform work, without compromising on
minimum safeguards to be afforded to employee-like workers to whom an ELMSO
would apply. That is, the ability of an employee-like worker, as a type of independent
contractor, to have choice and flexibility regarding matters such as when and how they
perform digital platform work, the time of day they choose to work, the duration of
such work, and how many times a day they choose to work. This would complement
the requirements that the FWC not include any term in an MSO that changes the form
of the engagement (paragraph 536KM(1)(d)) and that it sets standards having regard to
the need for standards to reflect the differences in the form of engagement of regulated
workers as independent contractors.
Subdivision BA--Consultation process for employee-like worker minimum standards
orders
536KAA FWC to prepare and publish a draft of an employee-like worker minimum standards
order
1317. Subsection (1) would provide that before the FWC makes an ELMSO, it must publish a
notice stating that it proposes to make an ELMSO, and must publish a draft of the
proposed ELMSO. Subsection (2) would require the FWC to publish the notice of
intent and the draft ELMSO on the FWC website and by any other means the FWC
considers appropriate.
1318. This requirement is limited to the making of ELMSOs and would ensure that before a
ELMSO is made, the FWC has adequately consulted affected parties on the
implications of the rights and obligations put forward in a draft ELMSO.
1319. This would also assist the FWC in its decision-making in accordance with the minimum
standards objective (section 536JX) and the additional matters listed in amended
section 536K.
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536KAB Affected entities to have a reasonable opportunity to make submissions on a draft
employee-like worker minimum standards order
1320. Subsection (1) would require the FWC to ensure affected entities have a reasonable
opportunity to make written submissions to it in relation to a draft ELMSO published
under new paragraph 536KAA(1)(b), having regard to the unique nature of digital
platform work.
1321. Subsections (2) and (4) would require the FWC to publish submissions received on its
website and by any other means it considers appropriate.
1322. Subsection (3) would provide the FWC does not have to publish information in
submissions that is confidential or commercially sensitive. Instead, the FWC may
publish a summary of the information which contains sufficient detail to allow a
reasonable understanding of the substance of the information (without disclosing
anything that is confidential or commercially sensitive). If the FWC considers it not
practicable to prepare such a summary, the FWC may publish a statement that
confidential or commercially sensitive information in the submission has not been
published.
1323. Subsection (5) would provide that a reference in the FW Act to a submission under this
section includes a reference to a summary or statement referred to in paragraph (3)(b).
1324. Subsection (6) would provide that an affected entity for the purposes of subsection (1)
is a person or body likely to be affected by the making of an ELMSO based on the
draft. An affected person or body would include an employee-like worker who would
be covered by the ELMSO, a digital labour platform operator that would be covered by
the ELMSO, and registered organisations entitled to represent them.
1325. Subsection (6) would also provide an affected entity for the purposes of subsection (1)
is a person or body prescribed by the regulations, or a person or body belonging to a
class prescribed by the regulations.
1326. It is intended this section would require the FWC to give people an opportunity to be
involved in the process, noting it is required under existing section 577 to perform its
functions in a manner that is open and transparent. This would ensure that there is
meaningful public consultation prior to the making of ELMSOs.
536KAC Hearings in relation to draft order
1327. This section would provide that the FWC may hold a hearing in relation to a draft
ELMSO if it chooses.
536KAD Finalising draft order
1328. This section would provide that the FWC may make any changes it thinks appropriate
to a draft ELMSO. If the changes are significant, the FWC must do the following:
• decide not to make the ELMSO based on the draft;
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• publish a subsequent notice of intent (as per new subsection 536KAA(1)) in relation
to the revised ELMSO and publish the revised draft; and
• follow the same process set out in section 536KAB - with the FWC to ensure a
further reasonable period of consultation having regard to the unique nature of
digital platform work.
1329. This provision would require the FWC to afford affected persons another meaningful
opportunity (in addition to the initial consultation that would be required under new
section 536KAB) to consider the revised draft order and how it may affect them, and
ensure the FWC takes these contemporary views on a draft ELMSO as it is meant to be
taken into account in the making of a final order, if any.
536KAE Decision not to make order based on the draft
1330. This section would provide that the FWC can decide that no ELMSO is to be made
based on the draft. If it does, it must publish a notice of this decision on its website and
any other means it considers appropriate. In this way, there is no compulsion or
requirement for the FWC to make an ELMSO at the completion of the mandatory
consultation process.
Subdivision C--Matters relating to road transport minimum standards orders
536KA Particular matters FWC must take into account in making a decision on a road
transport minimum standards order
1331. This section would set out the particular matters the FWC must take into account before
making a decision to make or vary a RTMSO.
1332. Subsection (1) would provide that this section applies where an application is made for
a RTMSO under subsection 536JZ(1), variation of a RTMSO under section 536KP or
the FWC is considering making or varying a RTMSO on its own initiative.
1333. Subsection (2) would require the FWC to not make an RTMSO unless:
• there has been genuine engagement with the parties to be covered;
• the RTAG has been consulted; and
• the consultation process set out in Subdivision D has been followed;
1334. The FWC must also have regard to the commercial realities of the road transport
industry; and must be satisfied that making the RTMSO will not unduly affect the
viability and competitiveness of owner drivers or similar persons.
Subdivision D--Consultation process for road transport minimum standards orders
536KB FWC to prepare and publish a draft of a road transport minimum standards order
1335. Subsection (1) would provide that before the FWC makes a RTMSO, it must publish a
notice stating that it proposes to make it and publish a draft of the proposed RTMSO.
Subsection (2) would require the notice of intent and draft RTMSO be published on the
FWC website and by any other means the FWC considers appropriate.
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1336. This requirement is limited to the making of RTMSOs and would ensure that before a
RTMSO is made, the FWC has adequately consulted affected parties on the
implications of the rights and obligations put forward in a draft RTMSO. This would
also assist the FWC in its decision-making in accordance with the minimum standards
objective (see new section 536JX), road transport objective (see new section 40D) and
additional matters listed in new section 536KA.
536KC Affected persons and bodies to have a reasonable opportunity to make and comment
on a draft road transport minimum standards order
1337. Subsection (1) would provide that, during the period of consultation, the FWC must
ensure affected persons have a reasonable opportunity to make written submissions to it
in relation to a draft RTMSO published under new section 536KB.
1338. Subsections (2) and (4) would require the FWC to publish submissions received on its
website and by any other means it considers appropriate.
1339. Subsection (3) would provide the FWC does not have to publish information in
submissions that is confidential or commercially sensitive. Instead, the FWC may
publish a summary of the information which contains sufficient detail to allow a
reasonable understanding of the information without disclosing anything that is
confidential or commercially sensitive. If the FWC considers it not practicable to
prepare such a summary, the FWC may publish a statement that confidential or
commercially sensitive information in the submission has not been published. As for
submissions, subsection (4) would require the FWC to publish this material on its
website and by any other means it considers appropriate. Subsection (5) would provide
that a reference in the FW Act to a submission under this section includes a reference to
a summary or statement.
1340. Subsection (6) would provide that an affected person for the purposes of subsection (1)
is a person likely to be affected by the making of an RTMSO based on the draft
RTMSO. An affected person would include, but not be limited to, a regulated road
transport contractor that would be covered by the RTMSO, a road transport business
that would be covered by the RTMSO, or an organisation entitled to represent the
industrial interests of such a regulated road transport contractor or road transport
business. It is intended this section would require the FWC to give people an
opportunity to be involved in the process, noting it is required under existing
section 577 to perform its functions in a manner that is open and transparent. This
subsection would not prevent any other interested person or association (including peak
councils) from making submissions during this process.
536KD Hearings in relation to draft order
1341. This provision would provide that the FWC may hold a hearing in relation to a draft
road transport MSO if it chooses.
536KE Finalising draft order
1342. This section would provide that the FWC may make any changes it thinks appropriate
to a draft RTMSO. If the changes are significant, the FWC must do the following:
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• decide not to make the RTMSO based on the draft;
• publish a subsequent notice of intent (as per new section 536KB) in relation to the
revised RTMSO and republish the revised draft;
• follow the same process set out in section 536KC - with the period of consultation
to be no shorter than 12 months starting from when the subsequent notice of intent
and revised draft are published.
1343. This provision would require the FWC to afford affected persons another meaningful
opportunity (in addition to the initial consultation that would be required under
section 536KC) to consider the revised draft order and how it may affect them, and
ensure the FWC takes these contemporary views on a draft RTMSO as it is meant to be
made into account in the making of a final order, if any.
536KF Decision not to make order based on the draft
1344. This provision would provide that the FWC can decide that no RTMSO is to be made
based on the draft. If it does, it must publish a notice of this decision on its website and
any other means it considers appropriate. In this way, there is nothing compelling the
FWC to make a RTMSO at the completion of the mandatory consultation process.
Subdivision E--Decisions on minimum standards orders
536KG Decisions on applications for minimum standards orders
1345. Subsection (1) would list the types of decisions the FWC could make about an
application for an MSO. The FWC may decide to:
• refuse to consider the application
• make an MSO;
• not make an MSO; or
• if it considers it appropriate to do so, instead make an MSG under section 536KR.
1346. Without limiting the FWC's power to refuse an application, subsection (2) would
provide that the FWC would be empowered (but would not be required) to refuse to
consider an application if it would not be consistent with a direction of the President
under new section 582(4D). New section 582(4D) would be inserted by item 279, and
would require the President to give a direction as to how the FWC would prioritise its
work under Part 3A-2.
536KH Terms that must be included in an employee-like worker minimum standards order
1347. Terms relating to coverage: Subsection (1) would provide that an ELMSO must have
terms that set out their coverage which set out:
• the digital platform work covered by the ELMSO;
• the digital labour platform operator or operators covered by the ELMSO; and
• the employee-like workers covered by the ELMSO.
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1348. Subsection (2) would provide that an ELMSO must be expressed to cover one or more
specified digital labour platform operators, and specified employee-like workers with
the requisite link to a digital platform operator. These being employee-like workers
who:
• are engaged through or by means of a digital labour platform operated by a digital
labour platform operator covered by the ELMSO; or
• perform work under a contract arranged or facilitated through or by means of a
digital labour platform operated by digital labour platform operator covered by the
ELMSO.
1349. Subsection (3) would provide that an ELMSO must specify which digital labour
platform operator or operators is/are primarily responsible for providing the
entitlements of employee-like workers.
1350. Subsection (4) would provide that a digital labour platform operator may be specified
by name or by inclusion in a specified class/classes. Employee-like workers must be
specified by inclusion in a specified class/classes. Subsection (5) would provide that the
class may be described by reference to a particular industry or sector or part thereof, or
by reference to particular kinds of work.
536KJ Terms that must be included in a road transport minimum standards order
1351. Terms relating to coverage: Subsection (1) would provide that RTMSOs must have
terms that set out their coverage. An RTMSO must include terms which set out:
• the work in the road transport industry covered by the RTMSO;
• the regulated road transport contractors covered by the RTMSO; and
• the road transport businesses covered by the RTMSO.
1352. Subsection (2) would provide that an RTMSO must be expressed to covered specified
road transport businesses and specified regulated road transport contractors.
1353. Subsection (3) would provide that a road transport business may be specified by name
or by inclusion in a specified class or classes. Regulated road transport contractors must
be specified by inclusion in a specified class or classes. Subsection (4) would provide
that the class may be described by reference to a particular industry or sector or part
thereof, or by reference to particular kinds of work.
536KK Terms about setting disputes must be included in a minimum standards order
1354. This section would provide that an MSO must include a term setting out a procedure for
settling disputes about any matter arising under the order.
1355. Item 302 of Part 16 would make corresponding consequential amendments to
section 738 of the FW Act. Section 738 provides that Division 2 of Part 6-2 of the FW
Act (which relates to dealing with disputes) applies where certain instruments include
terms for dealing with disputes. This would have the effect that Division 2 of Part 6-2
would apply if an MSO includes a term that provides a procedure for the FWC to deal
with a dispute.
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536KL Terms that may be included in a minimum standards order
1356. This section would provide a non-exhaustive list of matters that may be included in an
MSO, which would be:
• payment terms;
• deductions;
• record-keeping in relation to matters covered by or required by the FW Act (or an
order or instrument made under that Act) that concern regulated workers or
regulated businesses;
• insurance;
• consultation;
• representation;
• delegates' rights; and
• cost recovery
1357. Other matters not listed above would be able to be included in an MSO, provided they
are not terms that must not be in an MSO (refer to new section 536KM and 536KN).
This may include terms which require human review of automated decisions made by
the digital labour platform.
536KM Terms that must not be included in a minimum standards order
1358. Subsection (1) would set out matters which MSOs cannot include terms about. These
would be:
• overtime rates;
• rostering arrangements;
• matters primarily of a commercial nature that do not affect the terms and conditions
of engagement of regulated workers covered by the MSO;
• terms that would change the form of the engagement or the status of regulated
workers covered by the MSO. For example, an MSO could not include a term that
deems a regulated worker to be an employee. An MSO could also not include terms
that are so incompatible with the nature of independent contracting that to comply
with them, would cause the regulated worker to be treated as if they were an
employee;
• a matter relating to work health and safety that is otherwise comprehensively dealt
with by a law of the Commonwealth, a State or a Territory; and
• a matter prescribed by the regulations, or belonging to a class of matter prescribed
by the regulations.
1359. Subsection (3) would provide that for the purposes of paragraph (1)(e), the regulations
would be able to
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• specify that a particular matter is, or is not, dealt with comprehensively by another
law; and
• prescribe one or more laws to which paragraph (1)(e) does not apply.
536KMA Further terms that must not be included in an employee-like worker minimum
standards order
1360. New section 536KMA would, in addition to the matters set out in section 536KM,
provide further terms that must not be included in an ELMSO.
1361. Subsection (1) would provide that an ELMSO must not include terms about the
following matters:
• penalty rates for work performed at particular times or on particular days (including
but not limited to loadings and shift allowances);
• payment for time prior to the acceptance of an engagement on a digital labour
platform or time in between the completion of an engagement and the
commencement of the next engagement on a digital labour platform; and
• minimum periods of engagement or a minimum payment referrable to a period of
minimum engagement.
1362. Subsection (2) would allow the FWC to include a term about a matter mentioned in
subsection (1) only if it is satisfied that the inclusion of the term is appropriate for the
type of work performed by the employee-like workers and the digital labour platform
operators covered by the ELMSO.
536KN Further terms that must not be included in a road transport minimum standards order
1363. This section would set out additional matters which RTMSOs cannot include terms
about. These would be:
• matters relating to road transport that is otherwise comprehensively dealt with by
the Heavy Vehicle National Law (as set out in the schedule to the Heavy Vehicle
National Law Act 2012 (Qld)) or another law of the Commonwealth, a State or a
Territory;
• matters prescribed by the regulations.
1364. Subsection (2) would provide that for the purposes of paragraph (1)(b), the regulations
would be able to:
• specify that a particular matter is, or is not, dealt with comprehensively by the
Heavy Vehicle National Law or another law; and
• prescribe one or more laws to which subparagraph (1)(a)(ii) does not apply.
536KP Application to vary or revoke minimum standards orders
1365. This section would set out that the following may apply to the FWC for variation or
revocation of an MSO:
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• an organisation that is entitled to represent the industrial interests of one or more
regulated workers that is or would be covered by the MSO;
• an organisation that is entitled to represent the industrial interests of one or more
regulated businesses that is or would be covered by the MSO;
• a regulated business that is or would to be covered by the MSO; and
• the Minister.
1366. 'Organisation' is defined in section 12 of the FW Act as an organisation registered
under the RO Act. As such, only registered organisations would be able to make an
application. This is consistent with applications for the making or variation of modern
awards.
536KQ FWC may vary or revoke minimum standards orders if consistent with the minimum
standards objective
1367. Subsection (1) would allow the FWC to make a determination to vary or revoke an
MSO if the FWC is satisfied that doing so would be consistent with the minimum
standards objective (see new section 536JX). A note would indicate that for RTMSOs,
the FWC would also need to take into account the road transport objective (see new
section 40D).
1368. Subsection (2) would provide that in making a determination to vary an MSO, the FWC
would not need to give effect to all elements of the variation sought an application
under new section 536KP. For example, an application may seek for an MSO to be
varied in such a way that would cover people who would not meet the definition of
'regulated worker', but also seek that additional terms are included in the MSO. The
FWC could refuse to extend the coverage but make a determination to vary the MSO to
include the additional terms if it considers this would be consistent with the minimum
standards objective.
1369. Subsection (2) is intended to complement (and apply in addition to) section 599 of the
FW Act, which provides that the FWC is not required to make a decision in relation to
an application in the terms applied for.
1370. Subsection (3) would provide that the FWC can make a determination varying an MSO
to remove an ambiguity or uncertainty or to correct an error.
1371. Subsection (4) would provide that the FWC can make a determination to vary or revoke
an MSO on its own initiative or on application by a party under new section 536KP.
Division 4--Minimum standards guidelines
536KR Minimum standards guidelines
1372. Subsection (1) would allow the FWC to make MSGs for regulated workers performing
work under a services contract (refer to new sections 15G and 15H). MSGs would set
non-binding minimum standards.
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1373. Subsections (2) and (3) would provide that MSGs for employee-like workers would be
called 'employee-like worker guidelines' (ELGs) and MSGs for regulated road
transport contractors would be called 'road transport guidelines' (RTGs), respectively.
1374. Subsection (4) would provide the FWC may make MSGs on its own initiative or on
application by a relevant party under new section 536KS.
536KS Applications for minimum standards guidelines
1375. Subsection (1) would provide that the following may apply to the FWC for the making
of MSGs:
• an organisation that is entitled to represent the industrial interests of one or more
regulated workers to be covered by the MSGs;
• an organisation that is entitled to represent the industrial interests of one or more
regulated businesses to be covered by the MSGs;
• a regulated business to be covered by the MSGs; and
• the Minister.
1376. 'Organisation' is defined in section 12 of the FW Act as an organisation registered
under the RO Act. As such, only registered organisations would be able to make an
application. This is consistent with applications for the making or variation of modern
awards.
1377. Matters to be specified in an application: Subsection (2) would require that an
application for MSGs must specify the class of regulated workers to be covered by the
MSGs.
1378. Subsection (3) would provide that for the purposes of subsection (2) (but without
limiting the way in which the class can be described), the class may be described by
reference to a particular industry or sector, or part of an industry or sector, or particular
kinds of work. This would mirror the equivalent MSO provisions (refer to
section 536JZ).
1379. These application requirements would be in addition to any application requirements
specified in the procedural rules (see section 609 of the FW Act)
536KT Initial matter to be considered for employee-like worker minimum standards
guidelines
1380. Subsection (1) would provide that the FWC must consider a certain initial matter before
making or varying an ELG on its own initiative or on application. This mirrors the
provision under section 536K for ELMSOs.
1381. The FWC must be satisfied under new subsection (2) that, on the whole, the class of
people to be covered by the ELGs are employee-like workers. It is intended that the
FWC would be required to consider the class of people in general, rather than enquiring
into the individual circumstances of all the persons that fall within the class.
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1382. If it is not satisfied, subsection (3) would require the FWC to refuse to consider the
application (if an application was made) or not make or vary the ELGs (if the FWC was
considering making or varying the ELGs on its own initiative). It is intended that this
would act as a "gateway" so that whether workers within a class detailed in the
application meet the criteria set out in paragraph 15P(1)(e) is a preliminary
consideration for the FWC before it considers the matter further.
536KU Decision on applications for minimum standards guidelines
1383. Subsection (1) would set out the decisions the FWC can make if an application for
MSGs is made to it under subsection 536KS(1). The FWC may decide to:
• refuse to consider the application;
• make the MSGs; or
• not make the MSGs.
1384. Without limiting the FWC's power to refuse an application, subsection (2) would
provide that the FWC would be empowered (but would not be required) to refuse to
consider an application if it would not be consistent with a direction of the President
regarding prioritisation under new section 582(4D). New section 582(4D) would be
inserted by item 279, and would require the President to give a direction as to how the
FWC would prioritise its work under Part 3A-2.
536KV Minimum standards guidelines not to be made if a minimum standards order is in
operation
1385. This section would provide that where an MSO is in operation, the FWC must not make
MSGs that cover the same regulated workers and the same regulated businesses in
relation to the same matters as the MSO. This is because the intention is that, since
MSOs are binding, they would override MSGs.
536KW Terms that must be included in minimum standards guidelines
1386. This section would provide that:
• RTGs must include terms about the same matters RTMSOs must include terms on
(see section 536KJ); and
• ELGs must include terms about the same matters that ELMSOs must include terms
on (see section 536KH).
536KX Terms that may be included in minimum standards guidelines
1387. This section would provide that MSGs may include terms about any of the same
matters as permitted to be included in MSOs (as would be set out in new
sections 536KJ and 536KL).
536KY Terms that must not be included in minimum standards guidelines
1388. This section would provide that:
• RTGs must not include terms about any matters not permitted to be included in
RTMSOs (see sections 536KM and 536KN); and
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• ELGs must not include terms about any matters not permitted to be included in
ELMSOs (see section 536KM and 536KMA).
536KZ FWC may vary or revoke minimum standards guidelines if consistent with the
minimum standards objective and the road transport objective
1389. Subsection (1) would provide that the FWC may make a determination to vary or
revoke MSGs if it is satisfied that doing so would be consistent with the minimum
standards objective and, if applicable, the road transport objective. New section 40D
would set out when the road transport objective would be applicable.
1390. Subsection (2) would provide that in making a determination to vary MSGs, the FWC
would not need to give effect to all elements of the variation sought an application
under new section 536L. For example, an application could seek for MSGs to be varied
in such a way that they would cover people who would not meet the definition of
'regulated worker', but also seek that additional terms are included in the MSGs. The
FWC could refuse to extend the coverage but make a determination to vary the MSGs
to include the additional terms if it considers this would be consistent with the
minimum standards objective.
1391. Subsection (2) is intended to complement (and apply in addition to) section 599 of the
FW Act, which provides that the FWC is not required to make a decision in relation to
an application in the terms apply for.
1392. Subsection (3) would allow the FWC to make a determination varying the minimum
standards guidelines to remove an ambiguity or uncertainty or correct an error.
1393. Subsection (4) would provide that the FWC could vary or revoke MSGs on its own
initiative or on application under section 536L.
1394. Subsection (5) would require that where the FWC makes an MSO that covers the same
regulated workers and the same regulated businesses in relation to the same matters as
MSGs, the MSGs must be revoked from the day which the MSO comes into operation.
This would prevent both being in force at the same time, which could create confusion.
The intention is for MSOs to effectively replace relevant MSGs.
1395. Subsection (6) would require that where the FWC makes an MSO that covers the some
or all of the same regulated workers and the same regulated businesses in relation to
some or all of the same matters as are in MSGs, the FWC must vary the MSGs so that it
does not cover the same regulated workers, regulated businesses or matters. The
intention of this subsection is to address situations where the contents and coverage of
MSGs and an MSO are not identical but have some overlap. The FWC would
essentially be required to vary the MSGs to remove this overlap.
536L Applications to vary or revoke minimum standards guidelines
1396. This section would set out that the following may apply to the FWC for variation or
revocation of MSGs:
• an organisation that is entitled to represent the industrial interests of one or more
regulated workers that is or would be covered by the MSGs;
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• an organisation that is entitled to represent the industrial interests of one or more
regulated businesses that is or would be covered by the MSGs;
• a regulated business that is or would to be covered by the MSGs; and
• the Minister.
1397. 'Organisation' is defined in section 12 of the FW Act as an organisation registered
under the RO Act. As such, only registered organisations would be able to make an
application. This is broadly consistent with applications for the making or variation of
modern awards.
Division 5--Merits review of minimum standards orders
536LA Regulations may be made for internal merits review of road transport minimum
standards orders
1398. The purpose of this section would be to provide for a mechanism, subject to regulations
being made, to allow for the internal review of a FWC decision to make or vary an
RTMSO in certain circumstances. This would reflect the fact that RTMSOs when made
by the FWC are binding on the parties, and can only be varied or revoked by
application consistent with the requirements of Part 3A-2. The alternative would be to
apply to a court for injunctive relief, which would be unnecessarily confrontational and
potentially longer and more expensive.
1399. Taking a future-focused approach, there may be circumstances where a particular party
considers that the FWC has erred in its decision-making and, subject to the parameters
set by regulation, apply for a reconsideration, confirmation, revocation, variation or set
aside/substitution of a decision before it comes into, or soon after comes into, force.
1400. As this is a novel jurisdiction and there is no precedent for internal review for the
decisions of an Expert Panel or Full Bench under the FW Act, it is to be determined
whether internal review is necessary, and if so, what shape it should take. Enabling
regulations to provide for this would mean that any internal review mechanism, if
established, would be fit for purpose and responsive to emerging issues.
1401. Subsection (1) would provide that the regulations may empower the FWC to review the
decision to make or vary an RTMSO.
1402. Subsection (2) would provide that without limiting subsection (1), the regulations could
empower the FWC to: reconsider, confirm, revoke or vary the decision; or set the
decision aside and substitute a new decision.
1403. Subsection (3) would provide that without limiting subsection (1), the regulations could
provide that a reconsideration, confirmation, revocation or variation of a decision or
setting aside of a decision and substitution of a new decision may have the effect that:
• the RTMSO is suspended from operating for a definite or indefinite period;
• the RTMSO is revoked;
• that the day the RTMSO commences is varied;
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• that the operation of one or more of the terms of the RTMSO is suspended for a
definite or indefinite period.
1404. Subsection (4) would provide that without limiting subsection (1), the regulations could
provide for the following in respect of a decision to make or vary and RTMSO:
• the circumstances in which an application for review of the decision can be made;
• the people who may apply for review of the decision;
• timeframes for applications and decisions on applications for review the decision;
• the enforcement of decisions made on review;
• the circumstances in which the decision mentioned in subsection (2) may have an
effect set out in subsection (3);
• matters consequential on decision made on review; and
• how the FWC is constituted for the review - for example, the regulations could
provide that the internal review must be performed by an Expert Panel that includes
different members to those who made the original decision to ensure an
independent review process.
1405. The regulations would provide for internal review only (rather than external review) to
promote consistency with the role and structure of the FWC and because of the unique
expertise that the FWC would have compared to another review body.
Part 3A-3--Unfair deactivation or unfair termination of regulated workers
1406. Part 3A-3 would be about:
• unfair deactivation from digital labour platforms of employee-like workers; and
• unfair termination of the services contracts of regulated road transport contractors.
1407. This Part would set out:
• when a person is protected from unfair deactivation or unfair termination;
• when a person is taken to have been deactivated or terminated, and the factors the
FWC must consider in deciding whether a deactivation or termination is harsh;
• the remedies the FWC may grant for unfair deactivation or unfair termination; and
• the procedural matters of an unfair deactivation or unfair termination application.
Division 1--Introduction
536LB Guide to this Part
1408. New section 536LB would provide a guide to Part 3A-3.
536LC Object of this Part
1409. Subsection (1) would set out the objects of Part 3A-3. The principal aim of this
framework would be to create new protections for employee-like workers and road
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transport contractors against unfair deactivation and unfair termination respectively,
while balancing the needs of the regulated businesses and regulated workers.
1410. The object of Part 3A-3 would also be to establish quick, flexible and informal
procedures for the resolution of unfair deactivation and termination claims that address
the needs of both the regulated businesses and regulated workers. In addition to the
rules set out in Part 3A-3, the rules of natural justice would apply. Paragraph (1)(c)
would highlight that reactivation or reinstatement would be the primary remedy for
unfair deactivation or termination respectively.
1411. Subsection (2) would provide that the procedures and remedies referred to in
subsection (1), and the manner of deciding on and working out such remedies, are
intended to ensure that a 'fair go all round' is provided to both regulated businesses and
regulated workers. A note would refer to the fact that the expression 'fair go all round'
was used by Sheldon J in re Loty and Holloway v Australian Workers' Union [1971]
AR (NSW) 95. This is the same test used in relation to Part 3A-5 (Unfair contract terms
of services contracts).
Division 2--Protection from unfair deactivation or unfair termination
536LD When a person is protected from unfair deactivation
1412. Section 536LD would outline when a person is protected from unfair deactivation. This
expression is subsequently used in section 536LP as a condition that is necessary before
the FWC may order a remedy for unfair deactivation, and section 538LW, as a matter
which the FWC must consider before considering the merits of an application for a
remedy for unfair deactivation.
1413. A person would be 'protected from unfair deactivation' at a time if:
• the person is an employee-like worker (see section 15P);
• the person:
o performs work through or by the means of a digital labour platform
operator (see section 15M); or
o perform work under a services contract arranged or facilitated by a digital
labour platform (see sections 15H and 15L) operated by a digital labour
platform operator; and
• the person had been performing digital platform work through or by means of that
digital labour platform (see sections 15N and 15L), or under a contract, or a series
of contracts, arranged or facilitated through or by means of the digital labour
platform, on a regular basis for a period of at least six months.
1414. Definitions of 'services contract', 'employee-like worker', 'digital labour platform',
'digital labour platform operator' and 'digital platform work' would be set out in new
Division 3A of Part 1-2.
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536LE When a person is protected from unfair termination
1415. Section 536LE would outline when a person is protected from unfair termination. This
expression is subsequently used in section 536LR as a condition that is necessary
before the FWC may order a new contract or compensation as a remedy for unfair
termination, and section 536LW as a matter which the FWC must consider before
considering the merits of an application for a remedy for unfair termination.
1416. A person would be 'protected from unfair termination' at a time if:
• the person is a regulated road transport contractor (see section 15Q);
• a road transport business receives services under a services contract under which
the person performs work in the road transport industry (see sections 15H, 15R and
15S); and
• the person has been performing work in the road transport industry under a services
contract for a road transport business for at least 12 months.
1417. Definitions of 'services contract' 'regulated road transport contractor', 'road transport
business' and 'road transport industry' would be set out new Division 3A of Part 1-2.
Division 3--What is an unfair deactivation or unfair termination
Subdivision A--What is an unfair deactivation
536LF What is an unfair deactivation?
1418. New section 536LF would set out when a person has been unfairly deactivated, being
when the FWC is satisfied that:
• the person has been deactivated from a digital labour platform (see section 536LG);
• the deactivation was unfair (see section 536LH); and
• the deactivation was not consistent with the Digital Labour Platform Deactivation
Code (being the code made by the Minister under section 536LJ).
536LG Meaning of deactivated
1419. Section 536LG would set out the circumstances in which a person is taken to be
'deactivated' from a digital labour platform. A person would be deactivated if:
• the person performed digital platform work through or by means of the digital
labour platform (see sections 15L and 15N);
• the digital labour platform operator (see section 15M) modifies, suspends, or
terminates the person's access to the digital labour platform; and
• the person is no longer able to perform work under an existing or prospective
services contract (see section 15H), or their ability to do so is significantly altered
that in effect the person is no longer able to perform such work.
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536LH Criteria for considering whether a deactivation was unfair etc.
1420. Subsection (1) would be central to the unfair deactivation provisions as it sets out the
factors the FWC must take into account when considering whether a person's
deactivation was unfair, including:
• whether there was a valid reason for deactivation related to the person's capacity or
conduct;
• whether any relevant processes specified in the Digital Labour Platform
Deactivation Code were followed (being the code made by the Minister under
section 536LJ); and
• any other matters the FWC considers relevant.
1421. Subsection (2) would provide that deactivation that occurs because of serious
misconduct of the person who was deactivated is not unfair. 'Serious misconduct' is
already defined in section 12 of the FW Act and has the meaning prescribed by the
regulations. Examples of serious misconduct would include, but not be limited to:
• criminal conduct, including theft, fraud, assault, sexual harassment; and
• causing serious and imminent risk to the health and safety of another person, or to
the reputation or profits of the digital labour platform.
1422. Subsection (3) would provide that, despite subsection 536LH(1) and any other
provision of Part 3A-3, a deactivation is not unfair if:
• the deactivation is constituted by the modification or suspension of the person's
access to the digital labour platform for a period of not more than 7 business days;
and
• the FWC is satisfied that the digital labour platform operator concerned believes on
reasonable grounds that one or more of the matters in subsection (4) is applicable.
1423. Subsection (4) would provide that those matters include that:
• the deactivation of the person is necessary to protect the health and safety of a user
of the digital labour platform or member of the community;
• the person has engaged in fraudulent or dishonest conduct;
• the person has not complied with applicable licencing and accreditation
requirements imposed by or under law of the Commonwealth, a State or a Territory,
whether the requirements relate to the licensing or accreditation of:
o the person; or
o the digital labour platform operator, and the person's conduct causes, or
may cause, the digital labour platform operator to breach the requirements;
• the deactivation is necessary to enable the digital labour platform operator to
conduct an investigation into a matter referred to in paragraphs (a), (b) or (c) or
refer the matter to a law enforcement agency.
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536LJ Minister to make a Digital Labour Platform Deactivation Code
1424. Subsection (1) would require the Minister to, by legislative instrument, make a Digital
Labour Platform Deactivation Code.
1425. Without limiting the matters covered by the Digital Labour Platform Deactivation
Code, subsection (2) would require the code to deal with at least the following:
• the circumstances in which work is performed on a regular basis;
• matters that constitute or may constitute a valid reason for deactivation;
• rights of response to deactivations;
• the internal processes of digital labour platform operators in relation to deactivation;
• communication between the employee-like worker and the digital labour platform
operator in relation to deactivation;
• the accessibility in practice of the internal processes of digital labour platform
operators in relation to deactivation; and
• the treatment of data relating to the work performed by employee-like workers.
1426. Subsection (3) would provide that a person's deactivation is 'consistent with the Digital
Labour Platform Deactivation Code' if the actions of the digital labour platform
operator at the time of deactivation were consistent with the code in relation to the
deactivation.
Subdivision B--What is an unfair termination
536LK What is an unfair termination
1427. New section 536LK would set out when a person has been unfairly terminated, being
when the FWC is satisfied that:
• the person was performing work in the road transport industry (see section 15S);
• the person was terminated (see section 536LL);
• the termination was unfair (see section 536LM); and
• the termination was not consistent with the Road Transport Industry Termination
Code (being the code made by the Minister under section 536LN).
536LL Meaning of terminated
1428. New section 536LL would set out the circumstances in which a person is taken to be
terminated, being if:
• the person performed work as a regulated road transport contractor under a services
contract (see sections 15Q and 15H);
• the road transport business received services under the services contract (see
section 15R); and
235
• the services contract was terminated by, or as a result of, conduct, the road transport
business.
1429. A person would not be terminated if the services contract entered into with a road
transport business contains a term which specifies the duration of a contract, and the
duration of the contract has expired and is not renewed by the road transport business.
536LM Criteria for considering whether a termination was unfair etc.
1430. Subsection (1) would be central to the unfair termination provisions as it sets out the
factors the FWC must take into account when considering whether a termination was
unfair, including:
• whether there was a valid reason for the termination related to the person's capacity
or conduct;
• whether any relevant processes specified in the Road Transport Industry
Termination Code were followed (being the code made by the Minister under
section 536LN); and
• any other matters the FWC considers relevant.
1431. Subsection (2) would provide that termination that occurs because of serious
misconduct of the person who was terminated is not unfair. 'Serious misconduct' is
already defined in section 12 of the FW Act and has the meaning prescribed by the
regulations. Examples of serious misconduct would include, but not be limited to:
• criminal conduct, including theft, fraud, assault, sexual harassment, and
• causing serious and imminent risk to the health and safety of another person, or to
the reputation or profits of the road transport business.
536LN Minister to make a Road Transport Industry Termination Code
1432. Subsection (1) would require the Minister to, by legislative instrument, make a Road
Transport Industry Termination Code.
1433. Without limiting the matters covered by the Road Transport Industry Termination
Code, subsection (2) would require the code to deal with at least the following:
• matters that constitute or may constitute a valid reason for termination;
• rights of response to terminations;
• the internal processes of road transport businesses in relation to the termination; and
• communication between the regulated road transport contractor and the road
transport business in relation to the termination.
1434. Subsection (3) would provide that a person's termination is 'consistent with the Road
Transport Industry Termination Code' if the actions of the road transport business that
terminated the services contract, or as a result of whose conduct the services contract
was terminated, complied with the Road Transport Industry Termination Code.
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Division 4--Remedies
Subdivision A--Remedies for unfair deactivation
536LP When the FWC may order remedy for unfair deactivation
1435. New subsection (1) would provide the FWC may order a person's reactivation if:
• the FWC is satisfied that the person was protected from unfair deactivation (see
section 536LD) at the time of being deactivation; and
• the person has been unfairly deactivated (see Division 2).
1436. Subsection (2) would provide the FWC can only make the order if the person has
applied under new section 536LU.
1437. However, the FWC would not be confined to ordering the remedy the applicant has
specifically applied for. Section 599 of the FW Act provides that the FWC does not
have to make an order in the terms applied for.
1438. Consistently with reactivation being the primary remedy, subsection (3) would prevent
the FWC from ordering the payment of compensation to the person.
1439. A note would refer the reader to Division 5 of this Part, which deals with procedural
matters such as applications for remedies for unfair deactivation.
536LQ Remedy - reactivation etc.
1440. Reactivation: Subsection (1) would provide that an order for reactivation must be that
the digital labour platform operator who operated the digital labour platform at the time
of the deactivation take measures to restore the person to the position they would have
been in but for the deactivation, including to, as relevant:
• remove the suspension of the person's access to the digital labour platform;
• reinstate the person's access to the digital labour platform;
• modify the person's access to the digital labour platform to way it was before
deactivation took place.
1441. If the digital labour platform from which the person was deactivated no longer exists
(the 'original digital labour platform') and a similar digital labour platform is operated
by an associated entity of the operator of the original digital labour platform (the
'second digital labour platform'), the FWC may make an order that the associated
entity provide access to the second digital labour platform on terms and conditions no
less favourable than those immediately before the person's access to the original digital
labour platform was terminated or suspended. 'Associated entity' is defined in
section 12 of the FW Act.
1442. Order to restore lost pay: In addition to making an order under subsection (1), should
the FWC consider it appropriate to do so, subsection (3) would permit it to also make
an order for the digital labour platform to pay the person an amount for remuneration
lost, or likely to have been lost, because of the deactivation.
237
1443. In making such an order, subsection (4) would require the FWC to take into account
any remuneration the person has earned, or is likely to earn, from any other work
between the time of deactivation and the actual reactivation.
1444. As these orders would only be intended to compensate for lost remuneration, they
cannot extend to include any component by way of compensation for shock, distress or
humiliation caused by the manner of the person's deactivation.
Subdivision B--Remedies for unfair termination
536LR When the FWC may order remedy for unfair termination
1445. New subsection (1) would provide the FWC may order a remedy for unfair termination
if:
• the FWC is satisfied that the person was protected from unfair termination (see
section 536LE) at the time of being terminated; and
• the person has been unfairly terminated (see Division 3 of this Part).
1446. Subsection (2) would provide the FWC can only make the order if the person has
applied under new section 536LU.
1447. However, the FWC would not be confined to ordering the remedy the applicant has
specifically applied for. Section 599 of the FW Act provides that the FWC does not
have to make an order in the terms applied for.
1448. Consistent with ordering the parties enter into a new services contract being the primary
remedy, subsection (3) would provide the FWC must not order compensation unless it
is satisfied that entering into a new services contract would be inappropriate, and it
considers compensation is appropriate in all circumstances if the case.
1449. A note would refer the reader to Division 5 of this Part, which deals with procedural
matters such as applications for remedies for unfair termination.
536LS Remedy - new contract, etc.
1450. Reinstatement: Subsection (1) would provide that an order for a new contract must be
an order that the road transport business enter into a new contract in the same terms as
the services contract at the time of the termination, with such variations as the FWC
considers appropriate.
1451. Subsection (2) would further provide that if the original road transport business the
person used to work for no longer exists, the FWC may order that an associated entity
of the former that is a road transport business, enter into a new contract with the person
on terms and conditions no less favourable than those immediately before the
termination, with such variations as the FWC considers appropriate. 'Associated entity'
is defined in section 12 of the FW Act.
1452. Order to restore lost pay: In addition to making orders under subsection (1), should
the FWC consider it appropriate to do so, subsection (3) would permit it to also make
an order for the road transport business to pay the person an amount for remuneration
lost, or likely to have been lost, as a result of the termination.
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1453. In making such an order, subsection (4) would require the FWC to take into account
any remuneration the person has earned, or is likely to earn, from any other work
between the time of the termination and the new services contract being entered into.
1454. As these orders would only be intended to compensate for lost remuneration, they
cannot extend to include any component by way of compensation for shock, distress or
humiliation caused by the manner of the person's termination.
536LT Remedy - compensation
1455. Compensation: Subsection (1) would provide that an order for the payment of
compensation must be in lieu of entering into a new services contract.
1456. Criteria for deciding amounts: New subsection (2) would require the FWC to take
into account all of the circumstances of the case in determining the amount of
compensation, including:
• the effect of the order on the viability of the road transport business;
• the remuneration that the person would have received, or would have been likely to
receive, if the person had not been terminated;
• the efforts of the person (if any) to mitigate the loss suffered by the person because
of the termination;
• the amount of any remuneration earned by the person from other work during the
period between the termination and the making of the order for compensation;
• the amount of any income reasonably likely to be so earned by the person during
the period between the making of the order for compensation and the actual
compensation; and
• any other matter that the FWC considers relevant.
Illustrative example: Circumstances the FWC must consider in determining the amount
of compensation
The FWC is deciding the amount of compensation to order for a tipper truck driver, Ewin. In
addition to the matters listed in section 536LT, the FWC can consider Ewin's conduct
following the termination of his contract, such as his social media posts about the incident. It
can also consider costs that Ewin has not had to bear during this time - which are likely to be
primarily variable rather than fixed costs. An example of a variable cost borne by Ewin is the
cost of diesel to operate the tipper truck.
1457. Misconduct reduces amount: Subsection (3) would provide that the FWC must reduce
the amount of compensation it would otherwise order if it is satisfied that the person's
misconduct contributed to the road transport business's decision to dismiss the person.
1458. Shock, distress etc. disregarded: Under subsection (4), any compensation ordered by
the FWC must not include a component by way of compensation for shock, distress of
humiliation, or other analogous hurt resulting from the termination.
239
1459. Compensation cap: New subsection (5) would provide that there is a cap on the
compensation the FWC can order to a person. The compensation cap is the lesser of the
amount worked out in subsection (6) or half the amount of the 'contractor high income
threshold' immediately before the termination. The 'contractor high income threshold'
is defined at section 15C, and will be prescribed by, or worked out in a manner
prescribed by, regulations.
1460. Subsection (6) would outline the amount is the total remuneration received by the
person or to which the person was entitled to (whichever is higher) for any period the
person performed work under the services contract during the 26 weeks immediately
before the termination.
Division 5--Procedural matters
536LU Application for unfair deactivation or unfair termination remedy
1461. Subsection (1) would set out when a person who has been deactivated or terminated
may apply to the FWC under Division 4 of Part 3A-3 for a remedy.
1462. Note 1 to this section would refer the reader to Division 4, which sets out when the
FWC may order a remedy for unfair deactivation or unfair termination.
1463. Note 2 to this section would provide that application fees are set out in section 536LV.
1464. Note 3 to this section would alert the reader that Part 6-1 (Multiple actions) may
prevent an application being made under this Part if another application or complaint
has been made in relation to the deactivation or termination.
1465. Subsection (2) would apply the contractor high income threshold; providing that an
application for an unfair deactivation or unfair termination remedy must not be made
unless in the year the application was made, the sum of the person's annual rate of
earnings, and any other relevant amounts worked out in accordance with the
regulations, is less than the contractor high income threshold. The 'contractor high
income threshold' is defined at section 15C.
1466. Subsection (3) would provide that an application must be made within 21 days of a
deactivation or termination taking effect. However, subsection (4) would give the FWC
discretion to extend the timeframe for making an unfair deactivation or unfair
termination application if it is satisfied that there are exceptional circumstances, taking
into account:
• the reason for the delay; and
• whether the person first became aware of the deactivation or termination after it had
taken effect; and
• any action taken by the person to dispute the deactivation or termination; and
• prejudice to the regulated business (including prejudice caused by the delay); and
• the merits of the application; and
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• fairness as between the person and other regulated workers in a similar position;
and
• any processes specified in the Digital Labour Platform Deactivation Code or the
Road Transport Industry Termination Code.
536LV Application fees
1467. Subsection (1) would require applicants to pay any prescribed fee at the time of making
their application.
1468. Paragraphs (2)(a), (b) and (c) would provide that the application fee, a method for
indexing the fee, and the circumstances in which all or part of the fee may be waived or
refunded, may be prescribed by regulation.
1469. The intent is that the FWC would be a low-cost jurisdiction for unfair deactivation and
unfair termination applications.
536LW Initial matters to be considered before merits
1470. New section 536LW would require the FWC to decide certain matters before it
considers the merits of a deactivation or unfair termination application. These matters
are whether:
• the application was made within 21 days as specified in subsection 536LU(3);
• the person was protected from unfair deactivation (section 536LD) or unfair
termination (section 536LE); and
• the deactivation or termination was consistent with the Digital Labour Platform
Deactivation Code (section 536LJ) or the Road Transport Industry Termination
Code (section 536LN).
536LX Matters involving contested facts
1471. New section 536LX would provide that, where an unfair deactivation or unfair
termination matter involves contested facts, the FWC must conduct a conference or
hold a hearing in relation to the matter. However, the FWC's ability to conduct a
hearing would be limited by section 536LZ.
536LY Conferences
1472. Subsection (1) would set out that this provision only applies where the FWC holds a
conference in relation to the unfair deactivation or unfair termination matter.
1473. Subsection (2) would provide that where a conference is held it must be undertaken in
private. This section would act as an unfair deactivation and unfair termination specific
limitation on the FWC's discretion in subsection 592(3), which would otherwise enable
the person conducting the conference to direct it be held in public. This subsection is
analogous with subsection 398(2), which applies in relation to unfair dismissal
proceedings.
1474. Subsection (3) would require the FWC to take into account any difference in the
circumstances of the parties when considering the application and informing itself in
relation to the application.
241
1475. Subsection (4) would require the FWC to take into account the wishes of the parties
when considering and informing itself in relation to an application in a conference
situation.
1476. Subsections (3) and (4) relate to how the FWC considers a matter in a procedural sense
in the context of a conference, for instance, where it holds the conference or the method
of conducting it. It does not mean that FWC should take into account the
circumstances and wishes of the parties when making a substantive decision in relation
to the matter, for example, when deciding whether the deactivation or termination was
unfair or when making a resulting order.
1477. Sections that are relevant to the holding of unfair deactivation and unfair termination
conferences are also located in Part 5-1 (Fair Work Commission). Subsection 592(1)
has the effect of empowering the FWC to direct people to attend an unfair deactivation
or termination conference at a time and place specified by the FWC.
1478. Subsection 592(2) has the effect that responsibility for conducting unfair deactivation
or termination conferences rests with an FWC Member, or a delegate of the FWC.
1479. Section 609 also enables the President of the FWC to make procedural rules in relation
to the manner in which conferences are to be conducted.
536LZ Hearings
1480. This section would limit the FWC's discretion under paragraph 590(2)(i) to inform
itself by holding a hearing under section 593.
1481. Subsection (1) would provide that the FWC must not hold a hearing in relation to a
matter arising under Part 3A-3 unless it considers it is appropriate to do so, taking into
account the views of the parties and whether a hearing would be the most effective and
efficient way to resolve the matter.
1482. Subsection (2) would provide the FWC with flexibility to hold a hearing in relation to
all, or only part of, a matter arising under this Part. For instance, the FWC may decide
that one element of an unfair deactivation or unfair termination claim is best dealt with
in a formal hearing because it involves a complex legal issue but that the remaining
elements would be better dealt with in a more informal conference.
1483. Subsection (3) would provide the FWC with flexibility to decide whether to hold a
hearing in relation to a matter arising under this Part at any time, including before,
during or after a conference.
536M Dismissing applications
1484. Subsection (1) would enable the FWC to dismiss an unfair deactivation or unfair
termination application if it is satisfied the application has acted unreasonably:
• failed to attend a conference or hearing held by the FWC in relation to the
application; or
• failed to comply with a direction or order of the FWC relating to the application; or
242
• failed to discontinue the application after a settlement agreement has been
concluded.
1485. The power to dismiss an unfair deactivation or unfair termination application in these
circumstances is not intended to prevent an applicant from robustly pursuing a
legitimate claim. Rather, it is intended to address circumstances in which applicants
seek to pursue claims in an improper or unreasonable manner.
1486. Note 2 to subsection (1) would draw the reader's attention to the FWC's capacity to
make an order for costs under new section 536MB if satisfied that the applicant's
failure caused the other party to the matter to incur costs.
1487. Subsection (2) would provide that the power to dismiss applications is only exercisable
on application by a regulated business.
1488. Subsection (3) and Note 1 to subsection (1) would make clear new subsection (2) is not
intended to limit the FWC's general power to dismiss applications on grounds such as
where the application is frivolous or vexatious or has no reasonable prospects of
success under section 587.
536MA Appeal rights
1489. The primary provisions dealing with appeals of decisions are contained in Division 3 of
Part 5-1 of the FW Act (Fair Work Commission). The appeal rights for unfair dismissal
provisions are contained in section 400 of the FW Act. These provisions broadly
replicate those provisions.
1490. The effect of this section would be to make the process for permitting appeals for unfair
deactivation and unfair termination decisions different from the general grounds in
section 604 in two respects.
1491. First, subsection (1) would prevent the FWC from granting permission to appeal a
decision under Part 3A-3 (in relation to unfair deactivation and unfair termination)
unless satisfied that it is in the public interest to do so. This replicates the appeal rights
in subsection 400(1).
1492. Secondly, subsection (2) would limit appeals based on a question of fact to only be
made where the decision involved a significant error of fact. This is intended to limit
the FWC's discretion to permit an appeal under subsection 604(1). This mirrors
subsection 400(2).
536MB Costs orders against parties
1493. New subsection (1) would allow the FWC to make costs orders against a party to a
matter arising under Part 3A-3 where the FWC is satisfied costs were incurred because
of an unreasonable act or omission of a party in connection with conduct or
continuation of the matter.
1494. Subsection (2) would provide that, in order for the FWC to make a costs order against a
party, an application by the person seeking the costs order needs to have been made
under new section 536MD.
243
1495. This section is designed to deter parties from bringing speculative unfair deactivation or
unfair termination claims, particularly claims they know have no reasonable prospects
of success, or to unreasonably defend a claim or make a jurisdictional argument where
there is no prospect of the argument succeeding.
1496. Subsection (3) would make clear that it does not limit the FWC's power to order costs
under current section 611 in the circumstances where:
• a person made an application, or responded to an application, vexatiously or
without reasonable cause; or
• a person made an application, or responded to an application, and it should have
been reasonably apparent to the person that their application, or response to an
application, had no reasonable prospects of success.
1497. Not complying with a costs order would expose a person to a civil penalty, by virtue of
section 536MG which provides that a person must not contravene a term of an order
made Part 3A-3.
536MC Costs orders against lawyers and paid agents
1498. Subsection (2) would allow the FWC to make costs orders against a lawyer or paid
agent where the representative caused those costs to be incurred because:
• the representative encouraged the person to start, continue or respond to the matter
even though it had no reasonable prospect of success; or
• of an unreasonable act or omission by the representative in connection with the
ongoing matter.
1499. This section is designed to deter lawyers and paid agents from encouraging others to
bring speculative unfair deactivation or unfair termination claims, particularly claims
they know have no reasonable prospects of success, or to unreasonably encourage a
party to defend a claim or make a jurisdictional argument where there is no prospect of
the argument succeeding.
1500. Subsection (3) would clarify the power in this section would operate in addition to and
does not limit section 611. Section 611 provides the FWC with a general power to
make costs orders against a person in the following circumstances:
• where a person made an application, or responded to an application, vexatiously or
without reasonable cause; or
• where a person made an application, or responded to an application, and it should
have been reasonably apparent to the person that their application, or response to an
application, had no reasonable prospects of success.
1501. Not complying with a costs order would expose a person to a civil penalty, by virtue of
section 536MG, which would provide that a person must not contravene a term of an
order made under the Part.
244
536MD Application for costs orders
1502. Section 536MD would provide that an application for costs, either under general costs
provisions in section 611 in relation to this Part, or under new sections 536MB or
536MC, must be made within 14 days after the FWC determines the matter or it is
discontinued.
1503. Sections relevant to the discontinuation of matters are contained in Part 5-1 (Fair Work
Commission). Section 588 allows a person who has applied to the FWC to discontinue
the application in accordance with the procedural rules, whether or not the matter has
been settled.
536ME Schedule of costs
1504. New subsection (1) would allow for the prescription of a schedule of costs to items of
expenditure likely to be incurred in relation to matters covered by an order under
• section 611 in relation to a matter arising under Part 3A-3; or
• under new sections 536MB or 536MC.
1505. The term costs is intended to have its ordinary meaning, namely legal and professional
costs, disbursements and expenses of witnesses (see Cachia v Hanes (1994) 179 CLR
403; Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184). The purpose of this
section would be to expand the FWC's capacity to award legal and professional costs
and disbursements to include expenses arising from the representation of a party by a
person or organisation other than on a legal professional basis.
1506. Subsection (2) would provide that if a schedule of costs is prescribed, the FWC is not
restricted in its award of costs to the items of expenditure listed in the schedule.
However, if an item of expenditure appears in the schedule, the FWC cannot make an
award of costs above the rate or amount specified.
536MF Security for costs
1507. Section 536MF would allow the FWC to make procedural rules for the furnishing of
security of costs in respect of matters arising under Part 3A-3.
536MG Contravening orders under this Part
1508. Section 536MG would provide that where an order made by the FWC under
Part 3A3 applies to a person, that person must not contravene the order.
1. This section would be a civil remedy provision under Part 4-1 of the FW Act. As such,
civil remedies may be sought in relation to contravention.
Part 3A-4--Collective agreements for regulated workers
1509. Part 3A-4 would provide for a new consent-based collective agreement making
framework covering regulated workers and regulated businesses (that is, digital labour
platform operators and road transport businesses). Key elements of the agreement-
making framework would include that:
• agreement-making is achieved by consent of both parties to the agreement;
245
• collective agreements are about the terms and conditions under which regulated
workers perform work, and how agreements operate, and have no effect to the
extent that they are about other matters;
• collective agreements are intended to operate in addition to (but not override) any
mandatory terms under a law of the Commonwealth, a State or Territory or orders
made by the FWC or a tribunal of a State or Territory;
• the framework reflects the status of regulated workers as independent contractors
and the arrangements whereby a regulated business agrees to terms and conditions
of engagement through the services contracts they make with regulated workers
from time to time; and
• the FWC must register new collective agreements, vary eligible collective
agreements and register notices of termination.
Division 1--Introduction
536MH Guide to this Part
1510. New section 536MH would provide a Guide to Part 3A-4.
536MJ Object of this Part
1511. This section would set out the object of Part 3A-4. The object of this Part would be to
provide a simple, flexible and fair framework that enables collective agreements to be
made by consent for employee-like workers and regulated road transport contractors.
Division 2--Regulated workers and regulated businesses may make collective agreements
536MK Making a collective agreement
1512. New subsection (1) would provide that this section enables the making of an agreement
(a collective agreement) between a regulated business and an organisation that is
entitled to represent the industrial interests of one or more regulated workers. Only one
regulated business will be able to make a collective agreement with one relevant
organisation who will act on behalf of a particular class of regulated workers proposed
to be covered by the agreement. This Part would not permit collective agreements to be
made between multiple regulated businesses and an organisation.
1513. New subsection (2) would describe the entities that can make a collective agreement for
employee-like workers and the content the agreement may contain. A collective
agreement may be made between a digital labour platform operator and an organisation
that is entitled to represent the industrial interests of one or more employee-like
workers about the following matters:
• the terms and conditions on which employee-like workers covered by the collective
agreement perform digital platform work:
o under a services contract to which the digital labour platform operator is a
party; or
246
o under a services contract arranged or facilitated through or by means of the
digital labour platform operated by the digital labour platform operator;
and
• how the collective agreement will operate.
1514. A note to subsection (2) would cross-reference new section 536JM which describes
when a collective agreement covers a digital labour platform operator, an employee-
like worker or an organisation.
1515. New subsection (3) would similarly describe the entities that may make a collective
agreement for regulated road transport contractors and the content the agreement may
contain. A collective agreement may be made between a road transport business and an
organisation entitled to represent the industrial interests of one or more regulated road
transport contractors about:
• the terms and conditions on which regulated road transport contractors covered by
the collective agreement perform work under services contracts to which the road
transport business is a party, and
• how the collective agreement will operate.
1516. A note to new subsection (3) would again cross-reference new section 536JM which
would describe when a collective agreement covers a road transport business, a
regulated road transport contractor or an organisation.
1517. A term of a collective agreement will have no effect to the extent that it is about a
matter not mentioned in subsection (2) or (3) (see section 536MX below).
1518. New subsections (4)-(5) would provide that a collective agreement referred to in
subsection (2) is an 'employee-like worker collective agreement', and a collective
agreement referred to in subsection (3) is a 'road transport collective agreement'.
536ML Notice of consultation period for a proposed collective agreement
1519. This section would set out the entities that may initiate a consultation period for a
proposed collective agreement by giving a consultation notice, and what the
consultation notice must specify.
1520. New subsection (1) would provide that either a regulated business that will be covered
by the proposed collective agreement, or an organisation that is entitled to represent the
industrial interests of one or more regulated workers who will be covered by the
proposed collective agreement, may initiate a consultation period by giving a notice
under this section (a 'consultation notice').
1521. New subsection (2) would list the matters required to be specified in a consultation
notice. These are:
• that the entity giving the notice (the 'notifying entity') proposes to try to make a
collective agreement under this Part;
247
• the name of the organisation to which the consultation notice is given (if the
notifying entity is a regulated business), or that is giving the consultation notice;
• the matters that are to be dealt with by the proposed collective agreement;
• the regulated business that will be covered by the proposed collective agreement;
and
• the class of regulated workers who will be covered by the proposed collective
agreement.
536MM Consultation notice to be given to FWC, etc.
1522. This section would outline when a notifying entity must give a consultation notice to
the other entity proposed to be covered by the collective agreement and to the FWC.
Giving a consultation notice would formally indicate to the regulated business or
organisation that the notifying entity wishes to commence negotiations for a collective
agreement that will cover it, the entity receiving the notice and a specified class of
regulated workers. The requirement to also provide the consultation notice to the FWC
alerts the FWC to the fact that negotiations for a proposed collective agreement will
occur, enabling the FWC to maintain broad oversight of the process if required.
1523. New subsection (1) would provide that a consultation notice for a proposed collective
agreement must be given on the same day to the FWC, and depending on the notifying
entity, either the regulated business or organisation entitled to represent the industrial
interests of the regulated workers who will be covered by the proposed collective
agreement.
1524. New subsection (2) would provide the notifying entity, and the entity to which the
consultation notice is given, are the 'negotiating entities' for the proposed collective
agreement.
1525. New subsection (3) would require the FWC publish a copy of the consultation notice on
its website.
536MN Notice to be given to regulated workers
1526. New subsection (1) sets out a process for the notification of regulated workers. It would
provide that, after a consultation notice has been given for a proposed collective
agreement, either negotiating entity must, with the other negotiating entity's consent,
make reasonable efforts to give a notice to either:
• each eligible employee-like worker for a proposed employee-like worker collective
agreement; or
• each eligible regulated road transport contractor for a proposed road transport
collective agreement.
1527. New subsection (2) would outline the matters that must be specified in a notice. These
are:
• the regulated business that will be covered by the proposed collective agreement;
248
• the class of regulated workers that will be covered by the proposed collective
agreement, and that the regulated worker to whom the notice is given is included in
that class;
• the organisation that will sign the proposed collective agreement on behalf of the
regulated workers; and
• the matters proposed to be dealt with in the proposed collective agreement.
1528. New subsection (3) would define an 'eligible employee-like worker' for a proposed
employee-like collective agreement. This refers to an employee-like worker who, at any
time in the 28 days prior to the giving of a consultation notice by the notifying entity
under new subsection 536ML(1)), was performing work under a services contract:
• through or by means of a digital platform operated by a digital platform operator
that will be covered by the proposed collective agreement, or
• arranged or facilitated through by means of a digital platform operated by a digital
platform operator that will be covered by the proposed collective agreement.
1529. New subsection (4) would similarly define an 'eligible regulated road transport
contractor' for a proposed road transport collective agreement. This refers to a
regulated road transport contractor who, at any time in the 28 days prior to the giving of
a consultation notice under new subsection 536ML(1), was performing work under a
services contract to which a road transport business covered that will be covered by the
proposed collective agreement is a party.
1530. The 28 day period prior to the giving of a consultation notice for eligibility will focus
efforts to notify on regulated workers with a current or recent connection to the
regulated business and ensure the obligation on notifying entities is manageable.
536MP Application for the FWC to deal with a dispute
1531. New subsection (1) would provide that if the negotiating entities for a proposed
collective agreement are unable to resolve a dispute about the making of the agreement,
either negotiating entity may, with the consent of the other entity, apply to the FWC for
the FWC to deal with the dispute. The FWC must then deal with the dispute (other than
by arbitration).
1532. This recognises that while a collective agreement is to be made by consent of both
negotiating entities, disagreements during the negotiation process may arise requiring
resolution by the FWC as an independent third party. It is intended this dispute
resolution mechanism would only be relied on by the parties during negotiations for the
proposed collective agreement, prior to the agreement being made.
536MQ Negotiating entity may request that other negotiating entity sign a proposed
collective agreement
1533. New subsection (1) would provide that a negotiating entity may request the other
negotiating entity for a proposed agreement to sign the agreement.
249
1534. New subsection (2) would introduce a time limit for when such a request to sign a
proposed agreement may take place, that being no earlier than 30 days after the last day
on which a notice was given to the employee-like worker or regulated road transport
contractor under subsection 536MN(1) in relation to the proposed agreement. The
minimum 30-day timeframe commencing on the day after the last notice was given to a
relevant regulated worker about the proposed agreement is intended to provide the
relevant regulated workers sufficient opportunity to consult with the organisation and
the business on the proposed terms and conditions of the agreement that will cover
them, prior to it being signed.
1535. Subsection (3) would provide that the collective agreement is made when both
negotiating parties sign the agreement. At this point, the collective agreement would
commence to cover the relevant regulated business, regulated workers and organisation.
Division 3--Registration of collective agreements by the FWC
536MR Application to the FWC to register a collective agreement
1536. New subsection (1) would permit a negotiating entity who has signed the agreement,
with consent of the other negotiating entity, to apply to the FWC register the
agreement. If the other negotiating entity does not consent to the first negotiating entity
applying to the FWC to register the agreement, the agreement cannot commence
operation. New subsection 536JN(1) would provide that a collective agreement comes
into operation on the day that it is registered under subsection 536MS(1), or on a later
day specified in the agreement.
1537. New subsections (2)-(3) would describe the material that must accompany the
application. The application must be accompanied by a signed copy of the collective
agreement which must identify the regulated business, the organisation and the class of
regulated workers covered by the collective agreement.
1538. The application must also be accompanied by a declaration signed by the regulated
business and the organisation covered by the collective agreement which must:
• state that the regulated business and the organisation explained the terms of the
agreement and their effect to the regulated workers covered by the agreement, and a
description of the explanation;
• state the regulated business or the organisation, as required, made reasonable efforts
to give a notice under paragraph 536MN(1)(a) or (b) to the regulated workers
referred to in whichever of those paragraphs is applicable. Paragraph 536MN(1)(a)
and (b) require either negotiating entity to the proposed collective agreement, with
the other's consent, to make reasonable efforts to notify the relevant regulated
workers that a collective agreement that will over them is proposed to be made;
• state that neither the regulated business, organisation or a relevant regulated worker
who was notified of the collective agreement, were subject to any form of duress in
relation to the making the collective agreement; and
250
• if an MSO currently is in operation that covers the same class of regulated workers
as the collective agreement covers, specify:
o the MSO; and
o in relation to each matter dealt with by both the collective agreement and
the MSO - how the term of the collective agreement is more beneficial to
the regulated workers than the term of the order in relation to that matter.
Relevantly, new subsection 536JN(4) would in effect provide that a term
of a collective agreement may only supplement a term of an MSO that
deals with the same matter. The term of a collective agreement will have
no effect in relation to a regulated worker in respect of a matter to the
extent that the term is detrimental to the worker in any respect, when
compared to an applicable MSO or a State or Territory law that deals with
that matter.
1539. The regulated business and the organisation must ensure that the content of the
declaration is true and correct. If the information in the declaration is false or
misleading, that may amount to a contravention of the Criminal Code.
1540. New subsection (4) would provide that the application must be accompanied by any
other declaration required by the procedural rules.
536MS FWC must register collective agreement
1541. New subsection (1) would provide that if an application is made under
subsection 536MR(1), the FWC must register the collective agreement if all the
requirements under section 536MR and subsection (2) are met in relation to the
agreement.
1542. New subsection (2) would provide that the FWC must be satisfied that the collective
agreement includes a dispute settlement term that requires or allows the FWC, or
another person independent of the persons covered by the agreement, to settle disputes
about any matters arising under the collective agreement. The term must also allow for
regulated workers covered by the agreement to be represented for the purposes of that
dispute resolution procedure.
1543. New subsection (3) would provide that the FWC must be satisfied that the collective
agreement includes:
• a term that provides for its period of operation; and
• a term that provides for requirements in relation to terminating the collective
agreement before the end of that period.
1544. In effect, the collective agreement would automatically terminate and no longer operate
once the period of operation has concluded. However, persons covered by the
agreement would be able terminate the collective agreement at an earlier time by
following the agreed termination procedure required to be in the agreement under
paragraph (3)(b).
251
1545. New subsection (4) would require the FWC to publish a copy of the collective
agreement and declaration referred in new subsection 536MR(3) on the FWC's
website.
Division 4--Variation of collective agreements
536MT Application for variation of a collective agreement
1546. New subsection (1) would provide that either a regulated business or organisation
covered by the collective agreement may apply for a variation of a collective agreement
that is in operation. New section 536MT merely stipulates the administrative steps that
must occur for a variation agreed to by both the regulated business and organisation to
be registered. Negotiations for any variation and the timing of these negotiations will
otherwise be left to the discretion of the regulated business, the organisation and the
regulated workers.
1547. New subsections (2)-(3) would set out the material that must accompany the
application for variation. The application must be accompanied by a signed copy of the
collective agreement as proposed to be varied which must identify the regulated
business and organisation covered by the agreement, and the class of regulated workers
covered by the collective agreement as proposed to be varied.
1548. New subsection (3) would provide that the application must be accompanied by a
declaration signed by the regulated business and organisation covered by the agreement
which must:
• state that the regulated business and the organisation explained the terms of the
agreement and their effect to the regulated workers covered by the agreement as
proposed to be varied. The declaration must also provide a description of the
explanation;
• if an MSO currently is in operation that covers the same class of regulated workers
covered by the collective agreement as proposed to be varied, specify:
o the MSO; and
o in relation to each matter dealt with by a term of the collective agreement
as proposed to be varied that is also dealt with by a term of the MSO--
how the term of the collective agreement as proposed to be varied is more
beneficial to the regulated workers covered by the collective agreement as
proposed to be varied, in relation to that matter, than the term of the order
in relation to that matter. Relevantly, new subsection 536JN(4) would in
effect provide that a term of a collective agreement may only supplement a
term of an MSO that deals with the same matter. The term of a collective
agreement will have no effect in relation to a regulated worker in respect
of a matter to the extent that the term is detrimental to the worker in any
respect, when compared to an applicable MSO or a State or Territory law
that deals with that matter.
252
• that no regulated worker, regulated business or organisation covered by the
collective agreement as proposed to be varied was subject to any form of duress in
relation to the proposed variation.
1549. The regulated business and the organisation must ensure that the content of the
declaration is true and correct. If the information in the declaration is false or
misleading, that may amount to a contravention of the Criminal Code.
1550. New subsection (4) would provide that the application must be accompanied by any
other declaration required by the procedural rules.
536MU FWC must vary collective agreement
1551. New subsection (1) would provide that if an application for a variation of a collective
agreement is made under subsection 536MT(1), the FWC must register the agreement
as varied if the requirements of section 536MT (which set out the requirements for
making an application for a variation) are met in relation to the variation.
1552. New subsection (2) would require the FWC to publish a copy of the collective
agreement as varied and the declaration referred to in subsection 536MT(3) on the
FWC's website.
1553. New subsection (3) would provide that the variation comes into operation when the
agreement as varied is registered by the FWC.
Division 5--Termination of collective agreements
536MV FWC must be notified of termination
1554. New section (1) would apply if a collective agreement has been terminated in
accordance with the termination process specified in the agreement before the end of its
period of operation. New paragraph 536MS(3)(b) would require the FWC to be
satisfied that the collective agreement includes a procedure enabling the organisation
and regulated business covered by the agreement to terminate the agreement prior to the
end of its period of operation.
1555. New subsection (2) would require the regulated business or organisation covered by the
collective agreement to, with the consent of the other, notify the FWC of the
termination on the date the agreement is terminated.
1556. New subsection (3) would provide that the notification to the FWC under subsection (2)
must be accompanied by a declaration signed by the regulated business and the
organisation covered by the collective agreement. The declaration must state that the
collective agreement has been terminated in accordance with the process stipulated in
the agreement; and specify the date of effect of the termination. The regulated business
and the organisation must ensure that the content of the declaration is true and correct.
If the information in the declaration is false or misleading, the entities may contravene
the Criminal Code.
1557. New subsection (4) would provide that the notice must be accompanied by any other
declaration required by the procedural rules. Procedural rules are made by the President
under section 609.
253
536MW FWC must register termination notice
1558. New subsection (1) would provide that if a notice is given to the FWC under subsection
536MV(2) in relation to the collective agreement (that is, a notification that a collective
agreement has been terminated in accordance with the agreed termination procedure
specified in the agreement), the FWC must publish a notice on the FWC's website:
• stating that the collective agreement has been terminated; and
• specifying the date of effect of the termination specified in the declaration under
paragraph 536MV(3)(b).
1559. New subsection (2) would provide that the collective agreement ceases to operate on
the date of effect of the termination specified in the declaration under
paragraph 536MV(3)(b).
Division 6--Other matters
536MX--Terms of a collective agreement that are of no effect
1560. New subsection (1) would provide that a term of a collective agreement has no effect to
the extent that it is a term about a matter other than a matter mentioned in
subsection 536MK(2) or (3). These subsections would stipulate that a collective
agreement may be made in respect of the terms and conditions on which regulated
workers covered by the collective agreement perform work; and how the agreement
will operate.
1561. New subsection (2) would provide that a term of a collective agreement has no effect to
the extent that it deals with matters that are primarily of a commercial nature that do not
affect the terms and conditions of engagement of regulated workers covered by the
agreement. The intention is that a collective agreement would only include terms and
conditions relating to the engagement of the relevant class of regulated workers and the
operation of the agreement.
1562. New subsection (3) would provide that if a collective agreement includes a term that
has no effect because of subsections (1) and (2), the inclusion of the term does not
prevent the agreement from being a collective agreement. This would allow a collective
agreement to include other matters by consent, but they are not enforceable under the
FW Act.
Illustrative example: Agreement-making framework
Platform A is a digital labour platform operator that engages delivery partners under services
contracts to perform parcel delivery services via its digital labour platform. The Delivery
Network is an organisation entitled to represent the industrial interests of one or more of the
delivery partners engaged via the Platform A digital labour platform. The delivery partners
are employee-like workers.
The Delivery Network gives a consultation notice to Platform A in accordance with
section 536ML to negotiate an employee-like worker collective agreement. Platform A agrees
to negotiate a collective agreement covering its delivery partners, and The Delivery Network
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provides the consultation notice to the FWC, which in turn publishes the notice on its website
(section 536MM).
With the agreement of The Delivery Network, Platform A provides a notice under
section 536MN about the proposed collective agreement to its delivery partners that have
performed work in the last 28 days. Platform A is best placed to give the notice via its digital
labour platform in the most efficient and accurate manner. Delivery partners engage with
Platform A and The Delivery Network over the proposed terms and implications of the
collective agreement.
After three months of negotiation, The Delivery Network requests Platform A sign the
collective agreement. Once both parties have signed the agreement, it is made.
The Delivery Network, with the consent of Platform A, applies to the FWC to register the
agreement. The application is accompanied by a signed copy of the collective agreement and
a signed declaration of both parties covered by the agreement declaring that the delivery
partners have had the terms of the agreement explained to them, that the parties made
reasonable efforts to give a notice to eligible delivery partners, and that no party was subject
to any form of duress in relation to the making of the agreement.
The declaration also specifies the relevant minimum standards order in operation. The
declaration details in relation to each matter dealt with by a term of the collective agreement
that is also dealt with by the minimum standards order, how the term of the collective
agreement is more beneficial to the delivery partners covered by the agreement than the terms
of the minimum standards order.
Upon receiving the application and declaration, the FWC registers the agreement and
publishes it on its website. The collective agreement comes into operation.
The collective agreement would continue to operate for as long as parties agreed it to operate,
unless the agreement is varied (and registered by the FWC) or is terminated in accordance
with the provisions providing for its termination, and the termination is registered by the
FWC.
If a delivery partner or The Delivery Network commences action under the FW Act to
enforce a term of the collective agreement, it can only do so in relation to terms that relate to
the terms and conditions of engagement of the delivery partners, or how the agreement is to
operate. Any other term of the agreement, including any that deal with matters that are
primarily of a commercial nature cannot be enforced under the civil penalty framework of the
FW Act.
Part 3A-5--Unfair contract terms of services contracts
1563. Part 3A-5 would empower the FWC to deal with disputes about UCTs in services
contracts.
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Division 1--Introduction
536MY Guide to this Part
1564. New section 536MY would provide a guide to Part 3A-5.
536MZ Meaning of employee and employer
1565. This section would provide that in Part 3A-5 the terms 'employee' and 'employer' have
their ordinary meanings.
Division 2--Object of Part
536N Object of Part
1566. New subsection (1) would set out the object of Part 3A-5, which would be to:
• establish a framework for dealing with UCTs of services contracts that:
• balances the needs of principals and independent contractors;
o addresses the need for a level playing field between independent
contractors and principals by creating disincentives to include UCTs in
services contracts;
o recognises and protects the freedom of independent contractors to enter
into services contracts;
• establish procedures for dealing with UCTs that are quick, flexible and informal and
that address the needs of principals and independent contractors;
• provide appropriate remedies if a term of a services contract is found to be unfair.
1567. Subsection (2) would provide that the procedures and remedies referred to in
subsection (1), and the manner of deciding on and working out such remedies, are
intended to ensure that a 'fair go all round' is provided to both independent contractors
and principals. A note would refer to the fact that the expression 'fair go all round' was
used by Sheldon J in re Loty and Holloway v Australian Workers' Union [1971] AR
(NSW) 95.
Division 3--Orders in relation to unfair contract terms of services contracts
536NA When the FWC may make an order in relation to an unfair contract term of a services
contract
1568. Subsections (1) and (2) would set out when the FWC may make an order in relation to
an UCT of a services contract, being if:
• the FWC is satisfied that a services contract includes one or more UCTs which, in
an employment relationship, would relate to workplace relations matters (see
section 536JQ); and
• an application has been made under section 536ND (by a person who is a party to
the services contract or an organisation that represents their industrial interests).
1569. Subsection (3) would require the FWC to take into account fairness between parties
concerned in deciding whether to make an order, and what kind of order to make.
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536NB Matters to be considered in deciding whether a term of a services contract is an
unfair contract term
1570. Subsection (1) would list certain matters the FWC may consider when determining
whether a term of a services contract is an UCT. These include:
• the relative bargaining power of the parties;
• whether the services contract displays a significant imbalance between the rights
and obligations of the parties;
• whether the contract term is reasonably necessary to protect the legitimate interests
of a party to the contract;
• whether the contract term imposes a harsh, unjust or unreasonable requirement on a
party to the contract;
• whether the services contract as a whole provides total remuneration for performing
work less than regulated workers performing the same or similar work would
receive under an MSO or MSG, or less than employees performing the same or
similar work would receive; and
• any other matter the FWC considers relevant.
1571. The concepts of 'harsh', 'unjust' and 'unreasonable' would take their common law
meanings.
1572. It is intended that total remuneration would include all payments and income paid to an
independent contractor. New subsection (2) would require that the matters described
above, except for the relative bargaining power of the parties, are to be assessed at the
time the FWC considers the application.
Illustrative example: FWC assessment at time it considers application
Thanh works as an independent contractor providing graphic design services to businesses.
One of his clients, PriceCo, is a large retail business with stores across Australia. At the time
Thanh first entered into the services contract with PriceCo, it was a small business with only
one store. The contract sets out Thanh's terms and conditions of engagement, including
PriceCo's ability to unilaterally vary certain terms.
One day PriceCo informs Thanh that it will vary a term in his contract. Thanh applies to the
FWC for an UCT remedy on the basis that the contract term allowing PriceCo to unilaterally
vary the contract is unfair.
In determining whether the contract term is unfair, the FWC may take into account matters
such as whether the contract term is reasonably necessary to protect PriceCo's legitimate
interests and whether the contract term would impose a harsh, unjust or unreasonable
requirement on Thanh. As the FWC is required to consider the contract at the time of the
application rather than at its commencement when determining whether the term is unfair,
PriceCo's current business size and circumstances will be relevant to the FWC's
consideration.
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536NC Remedy - order to set aside etc. contract
1573. Section 536NC would empower the FWC to make the following orders:
• setting aside all or part of a services contract which, in an employment relationship,
would relate to a workplace relations matter (the term workplace relation matter is
defined in section 536JQ); or
• amending or varying all part of a services contract which, in an employment
relationship, would relate to a workplace relations matter.
Division 4--Procedural matters
536ND Application for unfair term remedy
1574. Subsection (1) would outline the parties that can apply to the FWC for a remedy on the
basis that the services contract contains a term that is unfair (these are a person party to
the contract or an organisation that represents their industrial interests).
1575. Subsection (2) would introduce the contractor high income threshold; providing that an
application for an UCT remedy must not be made unless in the year the application was
made, the sum of the person's annual rate of earnings, and any other relevant amounts
worked out in accordance with the regulations, is less than the contractor high income
threshold. The 'contractor high income threshold' is defined at section 15C.
1576. A note refers the reader to Division 3, which would set out when the FWC may order a
remedy for an UCT.
Illustrative example: Contractor high income threshold
Teresa is a construction worker who provides her services as an independent contractor.
Teresa makes an application to the FWC to dispute a contract term. However, the FWC finds
that her rate of earnings in the year of her application was more than the contractor high
income threshold, making her ineligible to access the FW Act UCT protections. Teresa
decides to apply to a Court for a review of her contract under the IC Act instead.
536NE Application fees
1577. Subsection (1) would require applicants to pay any prescribed fee at the time of making
their application.
1578. Paragraphs (2)(a), (b) and (c) would provide that the application fee, a method for
indexing the fee, and the circumstances in which all or part of the fee may be waived or
refunded, may be prescribed by regulation.
1579. The intent is that the FWC would be a low-cost jurisdiction for parties dealing with
UCTs.
536NF Conferences
1580. Subsection (1) would set out that this provision only applies where the FWC holds a
conference.
1581. Subsection (2) would provide that where a conference is held it must be undertaken in
private. This subsection would act as an UCT specific limitation on the FWC's
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discretion in subsection 592(3), which would otherwise enable the member conducting
the conference to direct it to be held in public. This subsection is consistent with the
unfair dismissal provision in subsection 398(2).
1582. Subsection (3) would require the FWC to take into account any differences in the
circumstances of the parties when considering and informing itself in relation to an
application for unfair contract terms remedy.
1583. Subsection (4) would similarly require the FWC to take into account the wishes of the
parties when considering and informing itself in relation to an application.
1584. Subsections (3) and (4) relate to how the FWC considers a matter in a procedural sense
in the context of a conference, for instance where it holds the conference or the method
of conducting it. It does not mean that FWC should take into account the
circumstances and wishes of the parties when making a substantive decision in relation
to the matter, for example when deciding whether a term of the contract is an UCT or
when making a resulting order.
536NG Hearings
1585. This section would limit the FWC's discretion under paragraph 590(2)(i) to inform
itself by holding a hearing under section 593.
1586. Subsection (1) would provide that the FWC must not hold a hearing in relation to a
matter arising under this Part 3A-5 unless it considers it is appropriate to do so, taking
into account the views of the parties and whether a hearing would be the most effective
and efficient way to resolve the matter.
1587. Subsection (2) would provide the FWC with flexibility to hold a hearing in relation to
all, or only part of, a matter arising under this Part. For instance, the FWC may decide
that one element of an UCT claim is best dealt with in a formal hearing because it
involves a complex legal issue but that the remaining elements would be better dealt
with in a more informal conference.
1588. Subsection (3) would provide the FWC with flexibility to decide whether to hold a
hearing in relation to a matter arising under this Part at any time, including before,
during or after a conference.
536NH Dismissing applications
1589. Subsection (1) would enable the FWC to dismiss an UCT application where the FWC is
satisfied the applicant has unreasonably:
• failed to attend a conference or hearing conducted by the FWC in relation to the
application;
• failed to comply with a direction or order of the FWC relating to the application; or
• failed to discontinue the application after a settlement was reached between the
parties.
1590. The power to dismiss an UCT application in these circumstances is not intended to
prevent an applicant from robustly pursuing a legitimate claim. Rather, it is intended to
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address any circumstances in which applicants seek to pursue claims in an improper or
unreasonable manner.
1591. Subsection (2) would provide that the power to dismiss applications is exercisable on
application by a party to the matter or an organisation entitled to represent the industrial
interests of a party (the same entities that may apply for an UCT remedy).
1592. Subsection (3) and a note to subsection (1) would make clear new subsection (2) is not
intended to limit the FWC's general power to dismiss applications on grounds such as
where the application is frivolous or vexatious or has no reasonable prospects of
success under section 587.
536NJ Appeal rights
1593. The primary provisions dealing with appeals of FWC decisions are contained in
Division 3 of Part 5-1 of the FW Act. The appeal rights for unfair dismissal provisions
are contained in section 400 of the FW Act. These provisions broadly replicate those
provisions.
1594. First, subsection (1) would prevent the FWC from granting permission to appeal a
decision under Part 3A-5 (in relation to UCT) unless satisfied that it is in the public
interest to do so. This replicates the appeal rights in subsection 400(1).
1595. Secondly, subsection (2) would limit appeals based on a question of fact to only be
made where the decision involved a significant error of fact. This is intended to limit
the FWC's discretion to permit an appeal under subsection 604(1). This mirrors
subsection 400(2).
1596. The intent of these provisions to improve the opportunity for applicants to appeal an
unfair contracts matter due to the lower cost and accessibility of applying to the FWC
compared to the Federal Court of Australia.
536NK Contravening orders under this Part
1597. Section 536NK would provide that where an order made by the FWC under Part 3A-5
applies to a person, that person must not contravene the order.
1598. This section would be a civil remedy provision under Part 4-1 of the FW Act. As such,
civil remedies may be sought in relation to contravention.
Division 4--Consequential amendments
Amendments to the Fair Work Act 2009
1599. This division would make consequential amendments to the Fair Work Act that are
required a result of the changes that would be made by Part 16.
Item 250: After paragraph 3(c)
1600. This item would amend section 3, which provides the object of the FW Act, to insert
new paragraphs (3)(ca) and (cb). This would have the effect that the object of the FW
Act would include providing a balanced framework for cooperative and productive
workplace relations that promotes national economic prosperity and social inclusion of
all Australians by:
260
• ensuring safety net of fair, relevant and enforceable minimum terms and conditions
regulated workers through MSOs and related measures; and
• providing appropriate remedies in relation to unfair terms of services contracts.
1601. These new additions would broadly reflect the purpose of the new provisions of the FW
Act that would be inserted by Part 16.
Item 251: After paragraph 4(1)(b)
1602. This item would amend the Guide to the Act to insert new paragraphs 4(1)(ba) and
(bb), to state the FW Act also:
• provides for minimum terms and conditions for regulated workers; and
• sets out measures to deal with unfair terms of services contracts.
Item 252: At the end of subsection 4(2)
1603. This item would amend subsection 4(2) to insert new paragraph 2(c). This would alert
the reader to the fact that Chapter 1 also includes new Part 1-4--Road transport
industry objective and advisory group into the FW Act.
Item 253: After section 6
2. This item would insert a new section 6A to set out the key elements of Chapter 3A.
Item 254: Section 12 (after paragraph (b) of the definition of applies)
1604. This item would insert the following paragraphs into the definition of 'applies' in the
Dictionary in section 12:
• in relation to a minimum standards order - see section 536JD; and
• in relation to a collective agreement - see section 536JL.
Item 255: Section 12
1605. This item would insert the following signpost definitions into the Dictionary at
section 12 of the FW Act:
• 'collective agreement' would be defined in section 15B;
• 'consistent with the Digital Labour Platform Deactivation Code' would be defined
in subsection 536LJ(3);
• 'consistent with the Road Transport Industry Termination Code' would be defined
in subsection 536LN(3);
• 'consultation notice' for a collective agreement would be defined in
subsection 536ML(1);
• 'contractor high income threshold' would be defined in section 15C.
Item 256: Section 12 (after paragraph (c) of the definition of covers)
1606. This item would insert the following paragraphs into the definition of 'covers' in the
Dictionary in section 12
• in relation to a minimum standards order - see section 536JE; and
261
• in relation to minimum standards guidelines - see section 536JG; and
• in relation to a collective agreement - see section 536JM.
Item 256A: Section 12
1607. This item would insert the following signpost definitions into the Dictionary at
section 12 of the FW Act:
• 'deactivated' would be defined in section 536LG;
• 'digital labour platform' would be defined in section 15L;
• 'Digital Labour Platform Deactivation Code' would mean the code made under
subsection 536LJ(1);
• 'digital labour platform operator' would be defined in section 15M;
• 'digital platform work' would be defined in section 15N;
• 'employee-like worker' would be defined in section 15P;
• 'employee-like worker collective agreement' would be defined in
subsection 536MK(4);
• 'employee-like worker guidelines' would be defined in subsection 536KR(2);
• 'employee-like worker minimum standards order' would be defined in
subsection 536JY(2).
Item 257: Section 12 (paragraph (d) of the definition of fair work instrument)
1608. This item would amend paragraph (d) of the definition of 'fair work instrument' in the
Dictionary in section 12 to provide that the reference to an FWC order in that
paragraph:
• would include an MSO - this is included for the avoidance of doubt;
• would not include an MSG - this would ensure that even where guidelines are made
by order in accordance with subsection 598(4) of the FW Act, the guidelines would
not be a fair work instrument.
Item 258: Section 12
1609. This item would insert the following signpost definitions into the Dictionary at
section 12 of the FW Act:
• 'minimum standards guidelines' would be defined in section 15D;
• 'minimum standards objective' would be defined in section 536JX;
• 'minimum standards order' would be defined in section 15E;
• 'protected from unfair deactivation' would be defined in section 536LD;
• 'protected from unfair termination' would be defined in section 536LE;
• 'regulated business' would be defined in section 15F;
262
• 'regulated road transport contractor' would be defined in section 15Q;
• 'regulated worker' would be defined in section 15G;
• 'Road Transport Advisory Group' would be defined in section 40E;
• 'road transport business' would be defined in section 15R;
• 'road transport industry' would be defined in section 15S;
• 'road transport collective agreement' would be defined in subsection 536MK(5);
• 'road transport guidelines' would be defined in subsection 536KR(3);
• 'road transport minimum standards order' would be defined in
subsection 536JY(3);
• 'services contract' would be defined in section 15H;
• 'Road Transport Industry Termination Code' would mean the code made under
subsection 536LN(1);
• 'terminated' would be defined in section 536LL;
• 'unfairly deactivated' would be defined in section 536LF;
• 'unfairly terminated' would be defined in section 536LK;
• 'unfairness ground' would be defined in section 536JR.
Item 259: Section 12 (paragraph (b) of the definition of workplace instrument)
1610. This item would amend the definition of 'workplace instrument' in the Dictionary in
section 12 to provide that 'workplace instrument' would also mean an instrument that
concerns the relationship between:
• digital labour platform operators and employee-like workers; and
• road transport businesses and regulated road transport contractors.
1611. Instruments that concern these relationships would include MSOs, MSGs and collective
agreements.
1612. 'Workplace instrument' is relevant to the general protections provided in Part 3-1 of the
FW Act. Expanding this definition would mean that certain general protections relating
to workplace instruments in Part 3-1 are expanded to cover those that would be covered
by new Chapter 3A.
Item 260: After section 19
1613. This item would insert new section 19A, which would provide the meaning of
industrial action in relation to regulated workers and regulated businesses.
1614. This definition would have consequences for the application of existing and proposed
new provisions of the FW Act, including the definition of 'engages in industrial
activity' in existing subsection 347(f).
263
1615. Subsection (1) would provide that new section 19A would apply to a regulated worker
and regulated business if:
• the regulated worker is covered by an MSO, or is mentioned in the application for
an MSO as a regulated worker that would be covered by the MSO if it is made; and
• the regulated business is covered by is covered by the same MSO, or is mentioned
in application for the same MSO as a regulated business that would be covered by
the MSO if it is made; and
• if the regulated business is a digital labour platform operator:
o the regulated worker is an employee-like worker from whom the digital
labour platform operator receive services under a services contract; or
o the regulated worker is an employee-like worker who perform services
under a services contract arranged or facilitated through or by means of the
digital labour platform operator's digital labour platform; and
• if the regulated business is a road transport business, the regulated road transport
contractor performs work under the services contract for the regulated business.
1616. Subsection (2) would provide that industrial action, in relation to a regulated worker
and regulated business, includes action of any of the following kinds:
• the performance of work by a regulated worker in a manner different from that in
which it is customarily performed, or the adoption of a practice in relation to work
by a regulated worker, the result of which is a restriction or limitation on, or a delay
in, the performance of the work;
• a ban, limitation or restriction on the performance of work by a regulated worker or
on the acceptance of or offering for work by a regulated worker;
• a failure or refusal by regulated worker to attend for work or a failure or refusal to
perform any work at all by regulated contractors who attend for work;
• the lockout of regulated worker by the regulated business (see subsection (4)).
1617. Subsection (3) would provide that the action referred to in subsection (2) must be
directed against the regulated business, whether or not regulated business is a party to
the services contract.
1618. Subsection (4) would provide that industrial action does not include the following:
• action by regulated workers that is authorised or agreed to by a regulated business
covered by the same MSO as the regulated workers;
• lockout of the regulated workers by the regulated business if it is authorised or
agreed to by, or on behalf of, regulated workers who are covered by the same MSO
as the regulated business;
264
• action by regulated worker if:
o the action was based on a reasonable concern of the regulated worker
about an imminent risk to their health or safety; and
o the regulated worker did not unreasonably fail to comply with a direction
of the regulated business that engaged the regulated worker to perform
other available work, whether at the same or another workplace, that was
safe and appropriate for the regulated worker to perform.
1619. Subsection (5) would provide that the regulated business 'locks out' a regulated worker
if:
• the regulated business prevents the regulated worker from performing work under a
services contracts without terminating that services contract; or
• if the regulated business is a digital labour platform operator and it modifies, limits
or suspends the employee-like workers' access to the digital labour platform it
operates.
Item 261: Subsection 134(2) (note)
1620. Consequential to the amendment proposed by item 262 below, this item would omit the
word 'Note' and substitute 'Note 1'.
Item 262: At the end of subsection 134(2)
3. Subsection 134(2) provides that the modern awards objective applies to the performance
or exercise of the FWC's modern award powers. This item would insert a second note
under subsection (2) to make clear that the FWC must take into account the road
transport objective when performing certain functions (see new section 40D and
subsection 617(10B)).
Item 263: After section 338
1621. This item would insert new section 338A, which would provide that a reference in
Part 3-1 to an independent contractor includes a reference to a regulated worker. This is
to ensure, for the avoidance of doubt, that relevant provisions in Part 3-1 would apply
to regulated workers (which are a subset of independent contractors).
1622. The note would explain that a regulated worker must be an individual and refers the
reader to section 15G and related definitions. This is because 'regulated worker' would
be defined to mean a person who is an 'employee-like worker' or 'regulated road
transport contractor'. Both these terms would require a person to be an individual (see
sections 15G and 15Q).
Item 264: Subsection 342(1) (after table item 3)
Item 265: Subsection 342(1) (after table item 4)
265
Item 266: Subsection 342(1) (after table item 6)
Item 267: Subsection 342(1) (at the end of the table)
1623. These items would insert new table items 3A, 4A, 6A and 8 in the table in
subsection 342(1). The table in subsection 342(1) sets out circumstances in which a
person takes adverse action against another person for the purposes of certain
protections in Part 3-1. The new table items would set out additional circumstances
where conduct would constitute adverse action.
1624. Existing table items 3, 4, 6 and 7 of the table would already capture action taken by or
against many regulated businesses and regulated workers. However, they may not
capture all digital labour platform operators because certain digital labour platforms
operate to facilitate services contracts between an employee-like worker and an
individual rather than directly entering into a contract for services with an employee-
like worker. As such, these items are intended to mirror the concepts in existing table
items 3, 4, 6 and 7 but in relation to 'horizontal' arrangements between digital labour
platform operators and the employee-like workers that use the digital labour platform
they operate to perform work as appropriate.
Item 268: After subsection 350(2)
1625. This item would insert new subsection (2A) in existing section 350.
1626. Section 350 currently prohibits an employer from inducing an employee to take, or
propose to take, membership action. It similarly prevents a person who has entered into
a contract for services from inducing the independent contractor to take, or propose to
take, membership action (subsection 350(2)).
1627. While subsection (2) would apply to most regulated businesses and regulated workers,
it would not necessarily apply to those digital labour platforms that do not directly enter
into a contract for services with an independent contractor. As such, new
subsection (2A) would ensure these digital labour platform operators are covered. A
note would explain that the new subsection 350(2A) is a civil remedy provision and
refer the reader to Part 4-1.
Item 269: At the end of section 354
1628. This item will insert new subsection (3), which would provide that a person must not
discriminate against a regulated business because:
• regulated workers in relation to the regulated business are covered, or not covered,
by a particular type of workplace instrument (including a particular kind of
workplace instrument within a type of workplace instrument); or
• it is proposed regulated workers in relation to the regulated business are covered, or
not covered, by a particular type of workplace instrument (including a particular
kind of workplace instrument within a type of workplace instrument).
1629. A note would explain that new subsection (3) would be a civil remedy provision and
refer the reader to Part 4-1.
266
Item 270: Subsection 539(2) (table item 11, column 1)
Item 271: Subsection 539(2) (table item 11, column 1)
1630. These items would amend table item 11, column 1 in the table in subsection 539(2) to
include reference to:
• new subsection 350(2A) (see item 268);
• new subsection 354(3) (see item 269).
1631. Table item 11 relates to certain general protections provisions that are civil remedy
provisions. The above-mentioned subsections would be new general protections
provisions.
Item 272: Subsection 539(2) (after table item 29AA)
1632. This item would insert new table item 29AB into the table in existing
subsection 539(2), which would relate to section 536JB. Section 536JB would provide
that a person must not contravene a term of an MSO.
1633. The following would have standing to apply for an order in relation to a contravention
of section 536JB:
• a regulated worker covered by the MSO;
• a regulated business covered by the MSO;
• an organisation;
• an inspector.
1634. An application for an order in relation to a contravention of section 536JB could be
made to the following courts:
• the Federal Court;
• the Federal Circuit and Family Court of Australia (Division 2);
• an eligible State or Territory Court.
1635. The maximum penalty that a court could impose for a contravention of section 536JB
would be 600 penalty units for a serious contravention, or otherwise 60 penalty units.
1636. This item would insert new table item 29AC into the table in existing
subsection 539(2), which would relate to section 536MG. Section 536MG would
provide that a person must not contravene an order under new Part 3A-3 (Unfair
deactivation or unfair termination of regulated workers) if it applies to them.
1637. The following would have standing to apply for an order in relation to a contravention
of section 536MG:
• a party to the relevant services contract;
• an organisation;
• an inspector.
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1638. An application for an order in relation to a contravention of section 536MG could be
made to the following courts:
• the Federal Court;
• the Federal Circuit and Family Court of Australia (Division 2);
• an eligible State or Territory Court.
1639. The maximum penalty that a court could impose for a contravention of section 536MG
would be 60 penalty units.
1640. This item would insert new table item 29AD into the table in existing
subsection 539(2), which would relate to section 536JJ. Section 536JJ would provide
that a person must not contravene a term of a collective agreement.
1641. The following would have standing to apply for an order in relation to a contravention
of section 536JJ:
• a regulated worker covered by the collective agreement;
• a regulated business covered by the collective agreement;
• an organisation.
1642. An application for an order in relation to a contravention of section 536JJ could be
made to the following courts:
• the Federal Court;
• the Federal Circuit and Family Court of Australia (Division 2);
• an eligible State or Territory Court.
1643. The maximum penalty that a court could impose for a contravention of section 536JJ
would be 600 penalty units for a serious contravention, or otherwise 60 penalty units.
1644. This item would insert new table item 29AE into the table in existing
subsection 539(2), which would relate to section 536NK. Section 536NK would
provide that a person must not contravene an order under new Part 3A-5 (relating to
unfair contract terms of service contracts).
1645. The following would have standing to apply for an order in relation to a contravention
of section 536NK:
• a party to the relevant services contract;
• an organisation;
• an inspector.
1646. An application for an order in relation to a contravention of section 536NK could be
made to the following courts:
• the Federal Court;
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• the Federal Circuit and Family Court of Australia (Division 2);
• an eligible State or Territory Court.
1647. The maximum penalty that a court could impose for a contravention of section 536NK
would be 60 penalty units.
Item 273: After subsection 540(7)
1648. This item would insert new subsection (7A), which would provide that regulated
workers and regulated businesses may only apply for an order under Division 2 of
Part 4-1 of the FW Act in relation to a contravention or proposed contravention of a
civil remedy provision if they are affected by the contravention, or will be affected by
the proposed contravention.
1649. This item would also insert new subsection (7B), which would provide that a person
who is a party to a services contract to which an order under Division 4 of Part 3A-5
relates may only apply for an order under Division 2 of Part 4-1 of the FW Act in
relation to a contravention or proposed contravention of a civil remedy provision if they
are affected by the contravention, or will be affected by the proposed contravention.
Item 274: After paragraph 557(2)(oa)
1650. Subsection (1) provides that where the same person commits two or more
contraventions of a civil remedy provision referred to in subsection 557(2), arising out
of a course of conduct by that person, the contraventions are to be taken to constitute a
single contravention for the purposes of Part 4-1.
1651. This item would insert a new paragraphs into subsection (2) so that subsection (1)
applies to section 536JB (which would deal with contraventions of MSOs),
section 536JJ (which would deal with contraventions of collective agreements) and
section 536NK (which would deal with contraventions of orders regarding unfair
contract terms of services contracts).
Item 275: After paragraph 576(1)(m)
1652. This item would insert additional paragraphs in existing subsection (1) to provide that
the FWC also has functions conferred by the FW Act in relation to minimum standards
for regulated workers, unfair deactivation or unfair termination, collective agreements
for regulated workers and unfair contract terms of services contracts.
Item 276: After paragraph 581(b)
1653. This item would insert new subsection (c) to provide that the President is also
responsible for ensuring that the FWC performs its functions and exercises powers in a
manner that adequately serves the needs of persons that would be covered by new
Chapter 3A.
Item 277: After paragraph 582(4)(ab)
1654. Existing subsection (4) lists some of the kinds of directions that the President can give
under existing subsection 582(2).
1655. This item would insert new paragraph (4)(ac), which would provide that, without
limiting the President's power to give directions, a direction under subsection (2) may
269
be a direction about the exercise of powers under new Part 3A-2, which would relate to
minimum standards for regulated workers.
Item 278: Paragraph 582(4)(c)
1656. Existing subsection (4) lists some of the kinds of directions that the President can give
under existing subsection (2).
1657. This item would amend paragraph (4)(c) to add 'one or more Expert Panels'. This
would emphasise that, without limiting the President's power to give directions, a
direction under subsection (2) may be a direction that two or more matters be dealt with
jointly by one or more single FWC Members, one or more Full Benches or one or more
Expert Panels.
Item 279: Before subsection 582(5)
1658. This item would insert new subsections (4D) and (4E).
1659. New subsection (4D) would require the President to give a direction as to how the FWC
would be required to prioritise its work under new Part 3A-2. This could include
prioritising specified cohorts of workers.
1660. New subsection (4E) would require the FWC to publish the direction relating to
prioritisation as soon as reasonably practical after the President gives the direction.
Item 280: Subsection 587(2)
1661. Subsection (1) allows the FWC to dismiss an application if it:
• is not made in accordance with the requirements of the FW Act;
• is frivolous or vexatious; or
• has no reasonable prospects of success.
1662. This item would amend subsection (2) to insert a reference to new section 536LU. New
section 536LU would enable a person who has been deactivated or terminated to make
an application to the FWC. The amendment would provide about the FWC must not
dismiss an application under new section 536LU on the grounds of the application is
frivolous or vexatious or has no reasonable prospects of success. This is consistent with
the treatment of applications to relating to dismissal disputes for employees.
Item 281: Subsection 602(1)
Item 282: At the end of subsection 602(1)
1663. These items would amend subsection (1) to provide that the FWC's power under
section 602 to correct any obvious error, defect or irregularity does not apply to MSOs
or MSGs. This is because, as would be made clear by new note 3, the FWC would
correct MSOs and MSGs under new subsections 536KQ(3) and 536KZ(3) respectively.
Item 283: After paragraph 603(3)(g)
1664. This item would insert new paragraphs under subsection (3) to provide that the FWC
must not use its power to vary or revoke a decision under section 603 to:
• vary or revoke a decision under new Part 3A-2;
270
• vary or revoke a collective agreement under new Part 3A-4.
1665. This is because varying or revoking decisions under new Part 3A-2 and varying or
revoking a collective agreement under Part 3A-4 would be covered by other provisions
(see sections 536KQ, 536KZ and 536MU).
Item 284: Subsection 604(2) (note)
1666. This item would amend the note to make it clear that subsection (2) does not apply in
relation to an application for unfair deactivation or an unfair termination (see
section 536MA).
Item 285: Subsection 616(1)
Item 286: Subsection 616(3B)
Item 287: Subsections 616(3C) and (3D)
1667. These items would amend subsections (1), (3B), (3C) and (3D) and the note after
subsection (3B) to provide that the requirements in these subsections for certain
functions to be performed by a Full Bench would be subject to new
subsection 617(10B). These subsections relate to the making or varying of modern
awards. New subsection 617(10B) would require the Expert Panel for the road transport
industry to make, vary or revoke modern awards that the President considers may relate
to the road transport industry. This would mean that the requirement for the Expert
Panel to perform this function to exercise these powers would supplement the existing
requirements that a Full Bench must perform the relevant functions or exercise the
relevant powers in relation to modern awards.
Item 288: After subsection 616(4)
1668. This item would insert new subsection (4A), which would provide that the following
decisions must be made by a Full Bench (subject to new subsections 582(4A) and
617(10D)):
• an ELMSO;
• a determination varying or revoking an ELMSO under subsection 536KQ(1);
• ELGs;
• a determination varying or revoking ELGs under subsection 536KZ(1).
1669. Note 1 would explain that a determination under subsections 536KQ(3) or 536KZ(3)
(which would deal with minor technical variations) would not need to be made by a
Full Bench.
1670. Note 2 would explain that new subsection 617(10D) would enable the President to
direct that certain matters that relate to the road transport industry be dealt with by the
Expert Panel for the road transport industry. In this case, an Expert Panel for the road
transport industry would make these decisions instead of a Full Bench.
Item 289: Paragraph 622(2)(aa)
Item 290: Subparagraph 622(2)(aa)(ii)
271
Item 291: Subsection 622(4)
Item 292: Subsection 622(4)
1671. These items would amend paragraph (2)(aa), subparagraph 622(2)(a)(ii) and
subsection 622(4) to insert references to new subsection 620(1E) (which would provide
for the constitution of an Expert Panel for the road transport industry) and new
paragraph 620(1E)(b) (which would require an Expert Panel for the road transport
industry to have a least one Expert Panel member or other FWC Member who has
knowledge of, or experience in, the road transport industry).
1672. These amendments would ensure that where an FWC Member is part of an Expert
Panel for the road transport industry and the FWC Member becomes unavailable to
continue dealing with the matter, the Expert Panel could continue to deal with the
matter if the Expert Panel consists of at least three FWC Members, of whom:
• at least one FWC Member is the President, Vice President or Deputy President; and
• a majority of the FWC Members have knowledge of, or experience in, the road
transport industry.
1673. Such a reconstitution may result in a minority of members of the Expert Panel having
the requisite knowledge or experience. This would not affect the capacity of an Expert
Panel constituted under new proposed subsection 620(1E) to make any of the orders,
determinations or instruments listed in new subsection 617(10A).
Item 293: At the end of subsection 627(4)
1674. This item would insert new paragraph (4)(k) so that road transport would be included as
one of the fields the Minister must be satisfied that a person has knowledge of, or
experience in, before the Governor-General appoints the person as an Expert Panel
member.
Item 294: After paragraph 675(2)(k)
1675. This item would insert new paragraph (2)(l), which would provide that it would not be
an offence for a person to engage in conduct that would contravene an MSO.
1676. This item would also insert new paragraph (2)(m), which would provide that it would
not be an offence for a person to engage in conduct that would contravene an order
made under regulation under new section 40J (which would deal with the road transport
industry contractual chain).
Item 295: Paragraph 682(1)(a)
1677. This item would amend paragraph (1)(a) to include reference to regulated workers and
regulated businesses. This would mean that the FWO's functions would be expanded to
include providing education, assistance and advice to regulated workers and regulated
businesses.
Item 296: Paragraph 682(1)(f)
1678. This item would amend paragraph (1)(f) to include reference to regulated workers. This
would mean that the FWO's functions would be expanded to include representing
regulated workers who are, or may become, a party to proceedings in a court, or a party
272
to a matter before the FWC, under the FW Act or a fair work instrument (which would
include an MSO - see item 257).
Item 297: At the end of section 682
1679. This item would insert new subsection (3). This would provide that the FWO's
functions include providing education, assistance and advice, and producing best
practice guides, in relation to MSGs.
Item 298: After subparagraph 712AA(1)(a)(vii)
1680. This item would insert new subparagraphs under paragraph 712AA(1)(a).
1681. Section 712AA provides that the FWO may apply to a nominated AAT presidential
member for the issue of an FWO notice if the FWO believes on reasonable grounds that
a person has information or documents relevant to an investigation by an inspector into
a suspected contravention that relates, directly or indirectly, to the matters listed in
paragraph 712AA(1)(a).
1682. The new subparagraphs would provide that the FWO may apply for an FWO notice in
relation to the underpayment of monetary entitlements under an MSO, the unfair
deactivation of an employee-like worker or unfair termination of a regulated road
transport contractor.
1683. This is consistent with the treatment of underpayments for employees and unfair
dismissals of employees, and would ensure the FWO's coercive powers continue to
only be used for the intended purpose of facilitating investigations into the exploitation
of vulnerable workers, specifically in relation to underpayments and entitlements.
Item 299: After paragraph 716(1)(fa)
1684. This item would insert a new paragraph in subsection (1) which would have the effect
that an inspector could give a person a compliance notice if the inspector reasonably
believes the person has contravened a term of an MSO. As outlined in the explanatory
memorandum to the Fair Work Bill 2008, the ability to issue a compliance notice is
restricted to what would be considered an 'entitlement provision'. A term of an MSO
would fall into this category. This is also consistent with the treatment of modern
awards.
Item 299A: At the end of Part 6-1
1685. This item would add new Subdivision E into existing Part 6-1 (Multiple actions).
1686. Within new Subdivision E, new subsection 734C(1) would provide that an application
to review a services contract under Division 4 of new Part 3A-5 (unfair contract terms)
must not be made if other review proceedings have commenced in relation to the
services contract. The exceptions to this would be where the other review proceedings
have been discontinued by the person who commenced them or failed for want of
jurisdiction.
1687. New subsection 734C(1) would provide that a person must not commence other review
proceedings in relation to a service contract if an application to review the contract has
been made under Division 4 of new Part 3A-5 (unfair contract terms). The exceptions
273
to this would be where the application has been discontinued by the person who
commenced them or proceedings in relation to the application failed for want of
jurisdiction.
1688. New subsection 734C(1) would define 'other review proceedings' as:
• proceedings under a provision of a law of a State or Territory that makes provision
as mentioned in new paragraph 536JP(1)(c) (that is, it provides for a court,
commission or tribunal to do certain things in relation to services contracts on an
unfairness ground) and is not affected by the exclusion provisions; or
• proceedings in relation to services contract under provision of another law that is
specified in the regulations.
1689. The intention is that new section 734C would prevent 'double dipping' by pursuing
multiple remedies under different laws in relation to the same services contract.
1690. It is not intended that 'other review proceedings' would include proceedings that may
be available at common law or equity in relation to a 'services contract' under a State
or Territory law that makes provision as mentioned in new paragraph 536JP(1)(c).
Item 300: Section 735
Item 301: Section 735
1691. These items would amend the Guide to Part 6-2. This would outline that this Part also
deals with disputes between regulated workers and regulated businesses. It would also
outline that the FWC has the power to deal with disputes about instruments made under
new Chapter 3A.
Item 302: After paragraph 738(b)
1692. This item would insert new subsections under section 738. Section 738 provides that
Division 2 of Part 6-2 of the FW Act (which relates to dealing with disputes) applies
where certain instruments include terms for dealing with disputes.
1693. The new subsections would have the effect that Division 2 of Part 6-2 would apply if an
MSO or collective agreement includes a term that provides a procedure for dealing with
disputes.
Item 303: At the end of subsection 738
1694. This item would insert a new subsection under section 738. Section 738 provides that
Division 2 of Part 6-2 of the FW Act (which relates to dealing with disputes) applies
where certain instruments include terms for dealing with disputes.
1695. The new subsection would have the effect that Division 2 of Part 6-2 would apply if an
order made under regulations under new section 40J (which would deal with the road
transport industry contractual chain) includes a term that provides a procedure for
dealing with disputes.
Item 304: Section 796A
1696. This item would amend section 796A to provide that the regulations may confer
powers, in addition to functions, on the FWC and general manager. This would ensure
274
that the regulations made under section 40J (which would deal with the road transport
industry contractual chain) could give the FWC and general manager additional
powers, which may be required to give effect to dealing with the road transport industry
contractual chain.
Item 305: At the end of section 798
1697. Existing section 798 enables the regulations to provide for civil penalties for
contravention of the regulations. Subsection (2) limits the maximum penalty for
contraventions to 20 penalty units for an individual and 100 penalty units for a body
corporate.
1698. This item would add new subsection (3) which would provide that subsection 798(2)
would not apply to civil penalties for contravention of regulations under new
section 40J (which would deal with the road transport industry contractual chain), or an
order made under regulations under new section 40J. This would enable the regulations
to prescribe a higher civil penalty amount for contravention, as would be provided for
in new paragraph 40J(2)(f), for example, to provide for penalties for contraventions of
road transport contractual chain orders to match penalties for MSOs (60 penalty units
and 600 penalty units for serious contraventions).
1699. As outlined in the explanatory memorandum to the Fair Work Bill 2008, the limit set in
subsection (2) was set based on 'the nature of the regulations that could be made'.
Because the regulations under new section 40J have a different nature to the regulations
that could be made under the original Fair Work Bill 2008, this limit is not appropriate
in this instance.
Division 5--Amendments of the Independent Contractors Act 2006
Amendments to the Independent Contractors Act 2006
Item 306: After subsection 12(2)
1700. This item would insert new subsection (2A) into the IC Act. This would provide an
application must not be made in relation to a services contract unless, the sum of the
independent contractor's annual rate of earnings, and such other amounts (if any)
worked out in relation to the person in accordance with the regulations, is more than the
contractor high income threshold within the meaning of the FW Act.
1701. This would give effect to the intention that high income earners would be covered by
the IC Act's unfair contract regime, and that people who are not high income earners
would be covered by the FW Act's unfair contract regime.
1702. New section 15C of the FW Act would define the contractor high income threshold.
Under new subsection 536ND(2) of the FW Act, a person could not make an
application for an unfair contract term remedy unless the sum of the person's annual
rate of earnings, and such other amounts (if any) worked out in relation to the person in
accordance with regulations made under new subsection 536ND(2), is less than the
contractor high income threshold within the meaning of the FW Act.
275
1703. A new note would indicate that new Division 3 of Part 3A-5 of the FW Act would set
out when the FWC may order a remedy for unfair contract term.
276
Part 17--Technical amendment
Amendments to the Fair Work Act 2009
1704. This Part would make a technical amendment to repeal a sunsetted clause.
Item 307: Clause 27 of Schedule 1
1705. This item is a technical amendment which would repeal clause 27 of Schedule 1 to the
FW Act. Schedule 1 to the FW Act contains application, saving and transitional
provisions relating to amendments to the FW Act. Subclause 27(3) of Schedule 1
provides that the clause ceased to have effect on 1 January 2020. The item would
therefore remove from the FW Act a clause that no longer has any effect.
277
Part 18--Application and transitional provisions
Amendments to the Fair Work Act 2009
1706. Part 18 would amend the FW Act to provide consequential application and transitional
clauses arising from the amendments made by the Bill.
Item 308: At the end of Schedule 1
1707. Item 308 would insert new Part 15 at the end of Schedule 1 (Application, saving and
transitional provisions relating to amendments to this Act) of the FW Act.
Part 15--Main amendments made by the Fair Work Legislation Amendment (Closing
Loopholes) Act 2023
Division 1--Definitions
Clause 91: Definitions
1708. New clause 91 would insert two new definitions that apply to new Part 15:
• 'amended Act' would mean the FW Act as amended by the Fair Work Legislation
Amendment (Closing Loopholes) Act 2023; and
• 'amending Act' would mean the Fair Work Legislation Amendment (Closing
Loopholes) Act 2023.
Division 2--Amendments made by Part 1 of Schedule 1 to the amending Act
Clause 92: Resolving uncertainties and difficulties about interaction between fair work
instruments and the definition of casual employee and employee choice
1709. Clause 92 would empower the FWC to make a determination varying a fair work
instrument that was made before the commencement of clause 92 on application, or on
its own initiative if the fair work instrument is a modern award.
1710. An employer, employee or employee organisation covered by an enterprise agreement
or workplace determination has standing to make an application for a variation to
resolve an interaction issue (paragraph 92(1)(a)).
1711. An employer or employee organisation entitled to represent the industrial interests of an
employee or employer covered by a modern award has standing to make an application
to vary that modern award (paragraph 92(1)(b)).
1712. An order could be made to resolve an uncertainty or difficulty arising from the
interaction between certain fair work instruments that were on foot prior to
commencement of this clause and the definition of 'casual employee' as amended by
this Bill, or to make the instrument operate effectively with the amended provisions
(subclause 92(2)).
1713. A variation of this kind would operate from the day specified in the determination -
including where the date specified is a day before the determination is made
(subclause 92(3)).
278
1714. If a determination relates to a modern award, the FWC would be required to publish the
varied award as soon as practicable on its website, or by other means it considers
appropriate (subclause 92(4)).
Clause 93: Application of amendments
1715. This clause would provide for the application of amendments in Part 1 of Schedule 1 -
Casual employment.
1716. For employment relationships entered into before, on or after 1 July 2024, the amended
definition of 'casual employee' in new section 15A would apply on and after that date
(subclause 93(1)).
1717. For the purposes of employment relationships entered into prior to 1 July 2024, conduct
by the employer that occurred before that date is not relevant to either:
• the application of the considerations at new subsection 15A(2); or
• the application of the avoidance of doubt provisions at new subsection 15A(3)
in relation to the employee (paragraph 93(2)(a)).
1718. Similarly, any period of employment as a casual employee that occurred before that
date is not counted for the purposes of calculating the periods relevant to the giving of
an employee notification under new paragraphs 66AAB(c) and (d) (subclause 93(6)).
1719. An employee engaged as a casual employee prior to 1 July 2024 would be taken to be
casual within the meaning of new section 15A after that date and employers of those
employees would be required to provide the Casual Employment Information
Statement to those employees within 3 months of commencement of these provisions
(subclauses 93(3) and (4)).
1720. For an employee engaged as a casual employee on a fixed term contract on or before
commencement, they can remain employed on that basis, despite new
subsection 15A(4) for the remainder of the term of that contract (paragraph 93(2)(b)).
The effect of this is that fixed term contracts on foot will not be disrupted by the
commencement of these amendments.
1721. Subclause 93(6) provides that for employment relationships that are entered into prior
to the commencement of Division 4A of Part 2-2, any period of employment that
occurred before commencement will not count for the purposes of determining whether
an employee has met the eligibility requirements at paragraphs 66AAB(c) and (d)
concerning service accrued with a small business employer.
1722. Subclause 93(6A) would provide that section 66F, the provision for requesting casual
conversion, will continue to apply to employment relationships entered into prior to the
commencement of Division 4A of Part 2-2 as amended by the Bill, for a period of
12 months from commencement for small business employers or 6 months from
commencement for all other employers.
1723. Subclause 93(6B) would provide that sections 66G to 66J, which set out the
requirements for responding to a request for casual conversion under section 66F, will
279
continue to apply after commencement in relation to requests made before
commencement of Division 4A of Part 2-2 as amended by the Bill, and to requests
made after commencement by an employee under section 66F as that section continues
to apply because of subclause 93(6A).
1724. Subclause 93(7) would provide that sections 66M and 739, which set out dispute
resolution processes, will continue to apply after commencement in relation to disputes
relating to Division 4A of Part 2-2 that arose before commencement of Division 4A of
Part 2-2 as amended by the Bill, and to disputes that arise after commencement relating
to the operation of sections 66F to 66J as those sections continue to apply because of
subclauses 93(6A) and 93(6B).
1725. The provisions would preserve the right to request casual conversion for employees
who are engaged as casual employees at commencement. The intention is to ensure that
existing casual employees retain a mechanism in the FW Act to request conversion to
full-time or part-time employment, until such time as they are able to access the new
employee choice pathway. The employee choice pathway will become available
6 months after commencement of the Bill, or 12 months for casual employees
employed by a small business.
Clause 94: Transitional provision
1726. This item would insert clause 94 to provide that for the purposes of the anti-avoidance
provisions that would be inserted by Items 13 and 14 of Part 1 of Schedule 1, references
to 'this Division' in those provisions are to be taken to include a reference to
Division 4A Part 2-2 as amended by Part 1 of Schedule 1.
1727. This is intended to ensure that an employer could not engage in conduct including
reducing or varying an employee's hours of work, changing an employee's pattern of
work or terminating an employee's employment in order to avoid any right or
obligation that would arise under Division 4A Part 2-2 between the introduction of the
Bill and the commencement of Part 1 of Schedule 1 to the Bill, in order to defeat the
intended effect of the Bill.
Division 3--Amendments made by Part 2 of Schedule 1 to the amending Act
Clause 95: Application--section 121
1728. This clause would ensure that despite the operation of new paragraph 121(4)(d), the
amendments to section 121 will only apply to employees whose employment has been
terminated post-commencement and where the insolvent employer downsizing to
become a small business employer occurred post-commencement.
Division 4--Amendments made by Part 4 of Schedule 1 to the amending Act
Clause 96: Replacement agreements
1729. New subclause 96(1) would make clear that new subsections 58(4) and (5) apply in
relation to single-enterprise agreements made after commencement, whether the
relevant single interest employer agreement or supported bargaining agreement was
made before or after commencement.
280
1730. New subclause 96(2) would make clear that new section 180B and new
subsection 240A(4) apply to proposed single-enterprise agreements from
commencement, whether or not the related single interest employer agreement or
supported bargaining agreement was made before or after commencement.
1731. New subclause 96(3) would make clear that new subsections 236(1B) and 238(2) apply
from commencement to prohibit majority support determination applications and scope
order applications being made in relation to a proposed single-enterprise agreement that
would replace a single interest employer agreement or a supported bargaining
agreement, whether the single interest employer agreement or supported bargaining
agreement was made before or after commencement.
Clause 97: Variation of supported bargaining authorisations
1732. This clause would provide that new subsection 245(2) applies, after commencement, in
relation to enterprise agreements and workplace determinations that come into
operation before or after commencement. This would provide consistency in the
operation of the legislation, to ensure employees to whom a single interest employer
agreement or supported bargaining agreement applies are not prevented from making a
single-enterprise agreement whether or not all employees specified on the supported
bargaining authorisation are covered by an agreement or workplace determination.
Clause 98: Application of better off overall test to replacement agreements
1733. This clause is a transitional provision which would provide that sections 193 and 193A
as amended by Part 4 would apply to a single-enterprise agreement made after
commencement which, if it were to come into operation, would replace a single interest
employer agreement or supported bargaining agreement made before or after
commencement. This would allow the amended BOOT to apply to all new agreements
made on and after commencement.
Division 5--Amendments made by Part 5 of Schedule 1 to the amending Act
Clause 99: Model terms and enterprise agreements
1734. New subclause 99(1) would provide that the amendments made by Part 5 of Schedule 1
to the amending Act do not apply to an enterprise agreement where, prior to the
commencement of Part 5, an employer that will be covered by the proposed agreement
asks its relevant employees to vote on the agreement, the employees by that vote
(which may be before or after commencement) approve the agreement and the
agreement is made, and the agreement is later approved by the FWC.
1735. New subclause 99(2) would provide that, after the commencement of Part 5 of that
Schedule, the FWC is not to consider the amendments made by Part 5, including the
model terms determined by the FWC, when deciding whether to approve an enterprise
agreement covered by subclause 99(1).
Clause 100: Model terms and copied State instruments
1736. This clause would provide that where a model term has been taken to be a term of a
copied State instrument prior to commencement of Part 5 of that Schedule, existing
281
section 768BK continues to apply in relation to that model term as if the amendments
made to that section by Part 5 had not been made.
Clause 101: Disallowance--model terms made before commencement
1737. This clause would provide that a determination made by the FWC before the
commencement of Part 5 under new subsections 202(5), 205(3), 737(1) or 768BK(1A)
is a legislative instrument to which section 42 of the Legislation Act (disallowance)
does not apply.
1738. The effect is that a model term determined by the FWC between the passage and
commencement of Part 5 in reliance on subsection 4(1) of the AI Act (as in force on
25 June 2009) would not be disallowable, consistently with the approach to terms made
after commencement as described above.
1739. This exemption from disallowance is appropriate to avoid the commercial uncertainty,
and potential impact on bargaining and enterprise agreement approval processes, that
would arise if FWC model terms were disallowed in circumstances where no such
terms were prescribed by the FW Regulations.
1740. The model terms may only be determined by the FWC after taking into account 'best
practice' workplace relations and following public consultation, ensuring widespread
opportunity for input into and comment on the making of the terms, and as such do not
require Parliamentary scrutiny. It is appropriate that the FWC determine the model
terms, as Australia's expert and independent industrial relations tribunal, and given the
limited capacity of the model terms to create or vary rights and obligations.
1741. Relying on subsection 4(1) of the AI Act as in force on 25 June 2009, this clause would
make clear that a model term determined by the FWC between Royal Assent and the
commencement of Part 5 would not be disallowable.
1742. The FWC has been provided 12 months to make the model terms to accommodate the
public consultation required, however it is possible that the FWC will conclude the
determination of the model terms prior to commencement. It is in the public interest
that terms made prior to commencement be treated consistently and that the FWC not
be required to delay making model terms in order to avoid potential disallowance.
Division 5A--Amendments made by Part 5A of Schedule 1 to the amending Act
Clause 101A: Application of amendments--intractable bargaining workplace determinations
1743. New clause 101A would provide that new section 270A and subsection 274(3) as
amended apply in relation to intractable bargaining workplace determinations made on
or after commencement. However, new subclause 101A(3) would provide that those
provisions also apply to intractable bargaining workplace determinations made before
commencement in the circumstances specified in clause 101B, which provide for the
FWC to vary an existing determination in certain circumstances.
282
Clause 101B: Application of amendments to intractable bargaining workplace
determinations made before commencement
1744. New clause 101B applies in relation to an intractable bargaining workplace
determination that is made before the commencement of Part 5A of Schedule 1 (the
original determination). It requires the FWC to vary the original determination, where
required, to give effect to new section 270A and subsection 274(3) as amended, where
an application is made by an employee, employee organisation or employer covered by
the determination. Existing paragraph 603(3)(c) does not apply to a variation of this
kind. An application would need to be made within 12 months of commencement. A
variation would be required to be made by a Full Bench of the FWC. A variation would
be required to specify a date from which the variation operates, which could be the date
the variation is made or a later date.
Division 6--Amendments made by Part 6 of Schedule 1 to the amending Act
Clause 102: Application of amendments--regulated labour hire arrangement orders
1745. This clause would provide transitional arrangements for new Part 2-7A, which relates
to regulated labour hire arrangement orders. It would provide that any obligations on an
employer to pay a regulated employee at the protected rate of pay would apply on and
after 1 November 2024 in relation to labour hire arrangements entered into at any time
before, on or after that day.
1746. The anti-avoidance provisions in Division 4 of Part 2-7A would apply in relation to
conduct on or after the day the Bill is introduced to Parliament. This will minimise the
risk of businesses seeking to change their arrangements between introduction and Royal
Assent to avoid being caught by the measure.
Division 7--Amendments made by Part 7 of Schedule 1 to the amending Act
Clause 103: Application of section 149E of amended Act
1747. This clause provides that new section 149E would apply in relation to a modern award
that is in operation on or after 1 July 2024. This would capture all modern awards that
are presently in operation, and not revoked before 1 July 2024, and all new modern
awards that might come into operation after that day.
1748. This clause also provides that the failure of a modern award to comply with new
section 149E would not affect the validity of that modern award.
Clause 104: FWC to vary certain modern awards
1749. This clause would require the FWC to vary all modern awards that are be in effect on
1 July 2024 to include terms that deal with delegates' rights (as required by new
section 149E) by 30 June 2024. This clause provides that determinations made as part
of this process will only come into effect from 1 July 2024.
1750. This clause would also require the FWC to publish the varied award as soon as
practicable, consistent with the general publication requirements on the FWC contained
in existing section 168 of the FW Act.
283
Clause 105: Application of section 205A of amended Act
1751. This clause provides transitional arrangements for enterprise agreement compliance
with new section 205A. Under subitem (1), new section 205A would not apply to an
enterprise agreement if, before 1 July 2024, the employer concerned requests the
relevant employees to approve the agreement by voting for it, those employees vote to
approve the agreement and the agreement is approved by the FWC. Only the first step
in this process (that is, the employer must have requested the relevant employees vote
to approve the agreement) would need to have occurred prior to 1 July 2024.
1752. This would avoid the amendments applying to an enterprise agreement that had been
substantially progressed prior to the requirement to comply with new section 205A
coming into effect. Enterprise agreements which did not require a delegates' rights term
to be included at the time the employer asked the employees to vote can still be
approved by the FWC, provided that it has been voted on and approved by the
employees of the workplace and the agreement would not otherwise be refused by the
FWC.
1753. However, if an enterprise agreement was voted upon but rejected by employees, or not
approved by the FWC due to another condition not being met, any future agreement
that is subject to further workplace bargaining would be required to contain a delegates'
rights term in compliance with new section 205A.
1754. Under subclause (2), the FWC must disregard the new section 205A in deciding after
1 July 2024 whether to approve an enterprise agreement mentioned in subitem (1).
1755. This item also means that new section 205A would not apply in relation to enterprise
agreements approved by the FWC before 1 July 2024.
Clause 106: Application of subsections 273(6) and (7) of amended Act
1756. This clause provides that workplace determinations made on or after 1 July 2024 must
include a delegates' rights term for the workplace delegates to whom the determination
applies.
1757. A delegates' rights term in a workplace determination made on or after 1 July 2024
must not be less favourable than the delegates' rights term in any modern award that
covers a workplace delegate to whom the determination applies.
1758. However, a workplace determination will not be invalid on or after 1 July 2024 only
because it does not include a delegates' rights term. This ensures that the amendments
do not affect the validity of workplace determinations made before 1 July 2024.
Division 8--Amendments made by Part 9 of Schedule 1 to the amending Act
Clause 107: Application of amendments
1759. This clause would provide that section 357, as amended by Part 9 of Schedule 1 of this
Act, would apply only in relation to representations made on or after the
commencement of Part 9 of Schedule 1 to this Act.
284
Division 9--Amendments made by Part 10 of Schedule 1 to the amending Act
Clause 108: Application of amendments--right of entry
1760. This clause would provide that the amendment to subsection 510(1) of the FW Act
empowering the FWC to impose conditions on an entry permit as an alternative to
suspending or revoking the entry permit when required to take action under that
subsection (see item 118) would apply to entry permits held by a permit holder whether
issued before, on or after the commencement of Part 10 of Schedule 1.
Division 10--Amendments made by Part 11 of Schedule 1 to the amending Act
Clause 109: Penalties for contravention of civil remedy provisions
1761. This clause sets out application provisions for the proposed civil pecuniary penalty
increases, proposed changes to the 'serious contraventions' regime, and the
introduction of 'amount of the underpayment' civil penalties under this Part. The
provisions apply where there is a single course of (contravening) conduct, with some of
the conduct occurring before, and some after, commencement.
1762. The overarching principle is that the changes apply prospectively; that is, in relation to
conduct that occurs after commencement of the relevant provisions. For the relevant
provisions (as described in subclauses 109(1) and (3)), conduct engaged in before the
relevant commencement cannot constitute the same course of conduct as conduct
engaged in after that commencement. This approach ensures that the proposed higher
penalties, new kinds of penalties, or new rules for establishing 'serious contraventions'
cannot apply retrospectively to any relevant conduct that occurred before
commencement of the relevant new provisions.
1763. While the proposed application provisions would have the effect of dividing any 'single
course of conduct' into 2, so that 2 rather than one penalty applies. However, the courts
will apply the 'totality' principle in sentencing. The 'totality' principle, requires the
courts to look at the entirety of the contraventions and determine the most appropriate
sentence for all the contraventions taken together. In effect, it is an important safeguard
against 'double punishment'.
Division 11--Amendments made by Part 14 of Schedule 1 to the amending Act
Clause 110: Offence relating to failure to pay certain amounts as required
1764. This clause would make clear that the new offence for wage theft (in new
section 327A) would apply prospectively, that is, in relation to conduct that occurs after
commencement. If part of a single course of conduct occurs before, and some after,
commencement, only conduct that occurs afterwards may be subject to prosecution.
Division 12--Amendments made by Part 14A of Schedule 1 to the amending Act
Clause 111: Application of amendments
1765. Subclause 111(1) would apply the amendment of subsection 409(6A) to employee
claim action to the extent that the action occurs, or is to occur, on or after the
commencement of Part 14A.
285
1766. Subclause 111(2) would provide that the amendment does not apply in relation to
certain conduct undertaken before commencement in relation to employee claim action,
even if the action occurs, or was to occur, on or after that commencement.
1767. Subclause 111(3) would provide that for the purposes of subsection 409(6A), as
amended by Part 14A, it does not matter whether a contravention of an order made
under section 448A of the FW Act occurred before, on or after the commencement of
that Part.
1768. The intention is to ensure the amendment of subsection 409(6A) applies prospectively
in relation to conduct engaged in on or after commencement and does not affect the
legal status of past conduct.
Part 16--Amendments made by Part 15 of Schedule 1 to the Fair Work Legislation
Amendment (Closing Loopholes) Act 2023
Division 1--Definitions
Clause 112: Definitions
1769. This clause would insert four new definitions that apply to new Part 16:
• 'amended Act' would mean the FW Act as amended by the Fair Work Legislation
Amendment (Closing Loopholes) Act 2023;
• 'amending Act' would mean the Fair Work Legislation Amendment (Closing
Loopholes) Act 2023;
• 'commencement' would mean the commencement of item 237 of Part 15 of
Schedule 1 to the amending Act;
• 'old Act' would mean the FW Act as in force immediately before commencement.
Division 2--Transitional provisions
Clause 113: Relationships in existence as at commencement or entered into on or after
commencement
1770. This clause contains an application provision for new section 15AA.
1771. Subclause 113(1) would provide that section 15AA of the amended Act applies on or
after commencement to a relationship between an individual and a person entered into:
• before commencement that is in existence as at commencement;
• on or after commencement.
1772. New subclause 113(2) would provide that despite section 40A of the FW Act, section 7
of the AI Act, as in force from time to time, applies in relation to the amendment made
by item 237 of Part 15 of Schedule 1 to the amending Act. Section 40A of the FW Act
provides that the AI Act as in force on 25 June 2009 applies to the FW Act, and that
amendments of the AI Act made after that day do not apply to the FW Act. Existing
section 7 of the AI Act, which is concerned with the effect of repeal or amendment of
an Act, was inserted into the AI Act by amendments made after 25 June 2009. Existing
286
subsection 7(2) of the AI Act preserves the previous operation of the affected Act or
part of the Act, as well as accrued rights, privileges, obligations, or liabilities beyond
the repealing of the Act, or the part of the Act, under which they arose.
1773. New subclause 113(2) would therefore mean that any rights, privileges, obligations, or
liabilities accrued by an individual before commencement of new section 15AA would
continue in effect after commencement.
1774. A legislative note under new subclause 113(2) would clarify the scope of section 7 of
the AI Act.
Clause 114: References to employees etc. in fair work instruments made before
commencement
1775. This clause would ensure that a reference in a fair work instrument made before
commencement and in operation on or after commencement to an employee or an
employer is taken, on and after commencement, to include a reference to an employee
or an employer within the meaning of new section 15AA.
1776. This provision would clarify that individuals and persons who become employees or
employers by operation of new section 15AA are covered by a modern award,
enterprise agreement, workplace determination or FWC order made before
commencement and in operation on or after commencement that is otherwise expressed
to cover them. The intention is to avoid a situation where a fair work instrument
continues to cover individuals who are employees within the common law meaning of
that term, but does not also cover individuals who are employees by operation of new
section 15AA.
Illustrative example: A new employee being covered by an enterprise agreement
Hamish is a security guard who has worked with the same security firm, Protect Pty Ltd
(Protect), for the past four years. Hamish is engaged as an independent contractor, and the
agreement between the two parties describes him as such.
Protect also employs 55 security guards who are covered by the Protect and United Workers'
Union Enterprise Agreement 2022 (Protect EA). The Protect EA was approved on
1 December 2022 and is expressed to cover all employees of Protect who are employed as
security guards. The nominal expiry date for the Protect EA is 1 December 2025.
On commencement of new section 15AA, Hamish becomes an employee of Protect. Despite
the relationship being described as one of principal and contractor in the written agreement
governing the relations between Hamish and Protect, various factors suggest that the
relationship is one of employment. Among other things, Hamish is required to wear Protect
branded attire, Protect tell him when and where he is required to work and Hamish has no
capacity to delegate the services that he performs for Protect.
If Hamish becomes an employee of Protect because of the operation of new section 15AA, he
will be covered by the Protect EA.
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Clause 115: Entitlements determined by reference to length of a period of employment etc.
1777. This clause would provide that for the purposes of determining whether an individual
who becomes an employee because of the operation of new section 15AA has a right or
entitlement under the amended Act or under a fair work instrument calculated by
reference to the individual's length of service or a minimum period of employment, the
nature of the relationship in respect of a period or periods before commencement is to
be ascertained in accordance with the FW Act as in force immediately before
commencement.
1778. This clause would ensure that new section 15AA operates prospectively and any rights
or entitlements accrued by an individual before commencement of new section 15AA
would continue in effect after commencement.
Illustrative example: Recognising length of service
Sharon is a personal trainer and engaged as an independent contractor at a large gym
franchise. She was engaged as an independent contractor on 1 April 2023.
Following commencement of new section 15AA, Sharon talks to the gym that engages her
and they both agree she is better characterised as an employee under the new provisions.
Sharon has an eight year old daughter and wishes to enter into a flexible work arrangement so
she can take her daughter to school three days a week. Under the FW Act, permanent
employees who have worked for the same employer for at least 12 months can formally
request flexible working arrangements in specified circumstances - including where they are
a parent, or have the responsibility for the care, of a child who is school-aged or younger. The
employer must follow certain procedures, and the employee has the right to dispute resolution
if the employers does not agree.
Sharon makes the request on 1 August 2024. Although Sharon has worked at the gym since
1 April 2023, a period of 16 months, she only became an employee on 1 July 2024.
Therefore, Sharon will need to wait until 1 July 2025 before she is eligible to request a
flexible working arrangement under the formal processes in the FW Act. This does not
prevent Sharon and her employer from negotiating a flexible working arrangement earlier.
Clause 116: Old Act applies to proceedings on foot as at commencement
1779. Despite the amendments made by item 237 of Part 15 of Schedule 1, this clause would
provide that the old Act continues to apply, on and after commencement, in relation to:
• an application made, or proceedings on foot, as at commencement (other than an
application or proceeding prescribed by the regulations);
• an application for review of, or an appeal relating to, an application made or
proceedings on foot at commencement (whether the application for review was
made, or the appeal proceedings were brought, before, on or after commencement).
288
1780. Subclause 116(2) would make it clear that an application or proceedings will be
considered on foot until all rights of review and appeal in relation to the application or
proceedings have expired or have been exhausted.
Illustrative example: Unfair dismissal proceedings on foot
Henry was a cook engaged as an independent contractor to provide services to an off-site
catering business. Henry began work in February 2022 and on 15 May 2024 had his services
contract terminated.
On 1 June 2024, Henry applied to the Fair Work Commission (FWC) for an unfair dismissal
remedy alleging that he was an employee of the catering business, not an independent
contractor, and therefore protected from unfair dismissal. The respondent business objected
to the FWC dealing with the application, contending that Henry was not a person protected
from unfair dismissal on the basis that he was not an employee.
The FWC begins to deal with the application in June 2024, but the matter is still on foot on
1 July 2024 when the amendments commence.
As Henry lodged his application before the commencement of the amendments to the FW
Act, the FWC must determine whether Henry was an employee within the meaning of that
term according to the FW Act as in force immediately before commencement of the
amendments until the matter is determined to finality. This is also the case if either party
decides to appeal the single member decision to a Full Bench of the FWC.
Clause 117: FWC power to deal with uncertainties or difficulties arising from the operation
of section 15AA of the amended Act
1781. This clause would empower the FWC to vary a fair work instrument to resolve
uncertainty or difficulty arising as a result of, or in connection with, the amendment
made by item 237 or Part 15 of Schedule 1 to the amending Act.
1782. By new subclause 117(2), the FWC would be able to make a determination varying a
modern award on its own initiative, or on application by a specified party. It is intended
that the standing requirements under new subclause 117(2) are consistent with those in
existing section 160 of the FW Act.
1783. By new subclause 117(3), the FWC would be able to make a determination varying an
enterprise agreement or a workplace determination on its own initiative, or on
application by a specified party. It is intended that the standing requirements under new
subclause 117(3) are consistent with those in existing section 218A of the FW Act.
1784. By new subclause 117(4), the FWC would be able to make a determination varying a
FWC order on its own initiative, or on application by a specified party.
1785. New subclause 117(5) would specify that a variation under this clause operates from
the day specified in the determination, which may be a day before the determination
was made.
289
1786. It is intended that this process may be utilised where a fair work instrument is
attempting to define 'employee', 'employer' or 'employment' in a way that may not
align with the principle of interpretation in new section 15AA. New clause 117 would
complement the FWC's existing powers to vary fair work instruments.
1787. New subclause 117(6) would provide a regulation making power which would enable
regulations prescribing that clause 117 applies, or does not apply, to a specified:
• fair work instrument;
• class of fair work instrument;
• uncertainty or difficulty;
• class of uncertainty or difficulty.
1788. This regulation making power is necessary to deal with any unforeseen issues that may
arise as a result of the amendments to the Fair Work framework. Any regulations would
be subject to scrutiny by both Houses of Parliament and subject to disallowance.
Division 3--Regulations about transitional matters
Clause 118: General power for regulations to deal with transitional etc. matters
1789. This clause would include a regulation-making power which would enable regulations
of a transitional, application or saving nature in relation to a person becoming an
employer or an individual becoming an employee because of the amendments made by
item 237 of Part 15 of Schedule 1. Any regulations would be subject to scrutiny by both
Houses of Parliament and subject to disallowance.
Clause 119: Other general provisions about regulations
1790. This item would provide that subsection 12(2) of the Legislation Act does not apply to
regulations made for the purposes of Part 16. Subsection 12(2) of the Legislation Act
ensures against legislative instruments retrospectively adversely affecting rights.
1791. The ability to make regulations with retrospective application is necessary to provide
the Minister with the discretion and flexibility to deal with any unforeseen
developments that could require immediate or prompt changes. This is particularly
important to ensure a smooth transition between the old Act and the operation of
provisions under the amended Act. Any regulations would be subject to disallowance
under the Legislation Act and therefore subject to Parliamentary scrutiny.
1792. While regulations under Part 16 could be made with retrospective application,
subclause 119(3) would make it clear that a person could not be convicted of an offence
or ordered to pay a pecuniary penalty for contravening a provision of the FW Act in
relation to conduct before the registration date. As such, the rules would not be able to
detrimentally affect any persons due to their retrospective application.
1793. Pursuant to table item 27(e) in section 12 of the Legislation (Exemptions and Other
Matters) Regulation 2015 (Exemption Regulations), any regulations made pursuant to
this clause will not be subject to ordinary sunsetting processes. The Legislation
(Exemptions and Other Matters) Amendment (2019 Measures No. 1) Regulations 2019
290
(Fair Work Exemption Amendment) amended the Exemption Regulations to include as
exempt from sunsetting, among other things, a regulation made under the FW Act. The
Explanatory Statement to the Fair Work Exemption Amendment contains the
justification as to why regulations made under the FW Act should be exempt from
sunsetting. In short, regulations and other like instruments made under the FW Act are
exempt from sunsetting because they form part of an intergovernmental scheme.
Part 17--Amendments made by Part 16 of Schedule 1 to the Fair Work Legislation
Amendment (Closing Loopholes) Act 2023
Division 1--Definitions
Clause 120: Definitions
1794. New clause 120 would insert four new definitions that apply to this Part:
• 'amended Act' would mean the FW Act as amended by the Fair Work Legislation
Amendment (Closing Loopholes) Act 2023;
• 'amending Act' would mean the Fair Work Legislation Amendment (Closing
Loopholes) Act 2023;
• 'commencement' would mean the commencement of item 238 of Part 16 of
Schedule 1 to the amending Act;
• 'old Act' would mean the FW Act as in force immediately before commencement.
Division 2--Transitional provisions
Clause 121: Unfair deactivation and unfair termination
1795. Subclause (1) is a transitional provision that would provide that Part 3A-3 (Unfair
deactivation or unfair termination of regulated workers) applies to a deactivation or
termination that occurs after commencement.
1796. New subclause (2) would provide that for the purposes of determining under paragraph
536LD(c) whether an employee-like worker has been performing work for a period of
at least six months, a period or periods before commencement are not to be counted.
Meeting that six month threshold is a requirement for a person to be protected from
unfair deactivation under paragraph 536LD(c).
1797. New subclause (3) would provide that for the purposes of determining under
paragraph 536LE(c) whether a regulated road transport contractor has been performing
work for a period of at least 12 months, a period or periods before commencement are
not to be counted. Meeting that 12 month threshold is a requirement for a person to be
protected from unfair termination under section 536LE.
Clause 122: New applications relating to unfair contracts
1798. Clause 122 would provide that an application to the FWC for an unfair contract terms
remedy in relation to a services contract may be made under section 536ND only if the
contract was entered into on or after the commencement of item 122.
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Clause 123: Services contracts entered into before commencement
1799. Subclause (1) would confirm that this section applies to a services contract entered into
before commencement.
1800. Subclause (2) would provide for the continued application of the IC Act in relation to
services contracts entered into prior to commencement, despite the amendments of the
IC Act made by the Amending Act.
292
SCHEDULE 2--AMENDMENT OF THE ASBESTOS SAFETY AND ERADICATION
AGENCY ACT 2013
Part 1--Main amendments
Amendments to the Asbestos Safety and Eradication Agency 2013
1801. The increase in silicosis and other silica-related diseases is deeply concerning and has
raised the need for urgent coordinated national action to reduce rates of silica-related
diseases and to support affected workers and their families. The amendments in
Schedule 2 would expand the functions of the well-respected ASEA to include
coordinating action on silica safety and silica-related diseases. This includes
developing, promoting and reporting on a Silica National Strategic Plan which will
coordinate and track the progress of jurisdictions against nationally agreed targets.
ASEA would be renamed the Agency to reflect these changes.
1802. Establishing and appropriately resourcing the renamed Agency as a national
coordination mechanism for action on silica-related diseases acts on the
recommendations of the NDDT. The NDDT was established in 2019, and in June 2021
submitted a final report to the then Minister for Health and Aged Care recommending a
national approach to the prevention, early identification, control and management of
silicosis and other occupational dust diseases in Australia. An All of Governments
response to the NDDT's Final Report was published in April 2022.
1803. This Bill would amend the ASEA Act to broaden ASEA's functions which are
currently confined to asbestos. The renamed Agency's functions would include
responsibility for silica coordination, awareness raising, research, reporting and
providing advice to the government on silica.
1804. The Bill would also expand the membership of the current ASEC to include appropriate
representation from employee and employer representatives and an expert in asbestos
or silica-related matters. Eligibility would be broadened to allow for persons with lived
experience to be appointed to the Council. ASEC would be renamed the Asbestos and
Silica Safety and Eradication Council to reflect these changes.
1805. The amendments would complement the establishment of the NORDR, which will
require reporting of silicosis and is aimed at improving national data. There are links
between the NORDR Bill and this Bill, but they are distinct as NORDR will remain the
responsibility of the Department of Health and Aged Care. The amendments would
move responsibility for the Silica National Strategic Plan from the Department of
Health and Aged Care to the Agency.
1806. The amendments would not duplicate or undermine the role of other agencies, such as
Safe Work Australia, the national work health and safety policy body that is currently
undertaking a range of work related to respirable crystalline silica and silica-related
diseases. Safe Work Australia is responsible for national work health and safety policy
and the model work health and safety laws.
1807. It is intended that the Agency would work in lock step with other government
departments and agencies. The Government believes there is value in identifying a
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national coordination body, and for this body to focus on preventing silica-related
diseases as a priority. The Agency is unique because it would report to both health
ministers and work health and safety ministers in relation to silica and asbestos.
1808. The Statement of Compatibility with Human Rights outlines how these amendments
would implement the NDDT's recommendations to promote safe and healthy working
conditions for Australian workers.
Item 1: Title
1809. Item 1 would remove the word 'Asbestos' and substitute the words 'Asbestos and
Silica' to amend the name of the ASEA Act to 'Asbestos and Silica Safety and
Eradication Agency Act 2013'.
1810. This amendment would reflect the expansion of functions related to silica. The addition
of functions related to the prevention of silica-related diseases is not intended to divert
attention or resources away from ASEA's important work on eradicating asbestos from
the built environment.
Item 2: Section 1
1811. Item 2 would amend the short title of the ASEA Act to reflect the new name.
Item 3: Section 2A
1812. Item 3 would repeal and replace the 'Objects' provision in the ASEA Act.
1813. New section 2A would add references to silica safety and silica-related diseases to
reflect the broader remit. It would also implement Recommendation 3 of the 2019
ASEA Review, which identified inconsistencies in how ASEA's role is described. This
amendment would clarify and strengthen the Agency's purpose and provide guidance
on how it is to perform its existing asbestos-related functions alongside the new silica-
related functions.
Item 4: Section 3 (definition of Agency)
Item 5: Section 3
1814. Section 3 of the ASEA Act contains definitions. Items 4 and 5 would amend section 3
to include three new terms which streamline existing provisions and reflect the
amendments which would be made in this Schedule.
1815. Item 4 would repeal and replace the existing definition of 'Agency' to reflect the new
name.
1816. Item 5 would add new definitions for:
• 'Asbestos and Silica Safety and Eradication Agency' with a cross reference to new
section 6 to reflect the new name.
• 'Asbestos and Silica Safety and Eradication Council' with a cross reference to new
section 28 to reflect the new name of the Council. A new definition is included
because the existing ASEA Act is inconsistent in the way it refers to the ASEC
where some provisions only use the term 'Council' and not its full name.
• 'Asbestos National Strategic Plan' with a cross reference to new section 5A.
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Item 6: Section 3 (definition of Asbestos Safety and Eradication Council)
Item 8: Section 3
1817. Item 6 would repeal the existing definition of ASEC.
1818. Item 8 would update the way this body is referred to in the ASSEA Act. Rather than
spelling out the name in full, it would be referred to as the 'Council' which is defined to
mean the 'Asbestos and Silica Safety and Eradication Council'. The ASEC would be
renamed to reflect the expanded remit of the Agency.
Item 7: Section 3 (definition of Chair)
Item 9: Section 3 (definition of Council member)
1819. Items 7 and 9 would update definitions of 'Chair' and 'Council member'. The new
definition of Council means that the name does not need to be spelt out in full.
Item 10: Section 3 (definition of National Strategic Plan)
1820. Item 10 would repeal the existing definition of 'National Strategic Plan' which refers to
the current asbestos plan (new section 5A). This Bill would provide for a new 'Silica
National Strategic Plan' and the asbestos plan name needs to be updated to clearly
distinguish the two.
Item 11: Section 3
1821. Item 11 would insert a new definition of 'National Strategic Plans' to provide for two
separate national strategic plans for asbestos and silica. Throughout the ASSEA Act,
where both plans are referred to, they would be referred to as the 'National Strategic
Plans'.
1822. Item 11 would also insert a new definition 'Silica National Strategic Plan' which would
be defined in new section 5B.
1823. Item 11 would also insert a new, non-exhaustive definition of 'silica safety' which is
similar to the existing definition of 'asbestos safety'. Silica safety would include a
broad range of matters including matters relating to awareness, education and
information sharing in relation to respirable crystalline silica. This is intended to cover
the full life cycle of silica products, including the manufacture, supply, use and disposal
where appropriate. Not all forms of silica or silica products are hazardous. Although the
definition of 'silica safety' is broad, it is not intended that the Agency would have a role
in relation to silica which does not pose a risk to human health.
Item 12: Part 1A
1824. Item 12 would repeal and replace existing Part 1A of the ASEA Act, which would be
renamed 'National Strategic Plans'. The Bill provides for two similar but distinct plans-
the Asbestos National Strategic Plan which already exists in the 'National Strategic
Plan' and a new plan for silica-related diseases.
Asbestos National Strategic Plan
1825. Item 12 would insert a new definition of 'Asbestos National Strategic Plan' which is
less prescriptive than the existing section 5A to provide flexibility in the future, where
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priorities and actions can be changed as needed without being restricted by the ASSEA
Act. This amendment would implement recommendation 2 of the 2019 ASEA Review,
which identified that while some prescription is useful to guide the development of a
National Strategic Plan, the legislation needs to provide sufficient flexibility to address
emerging issues and new priorities.
1826. The new definition would reflect and expand the existing Asbestos National Strategic
Plan which would be renamed shortly after commencement of this Bill. The aim of the
Asbestos National Strategic Plan would be to eliminate asbestos-related diseases in
Australia by preventing exposure to asbestos fibres and to support workers and others
who are affected by asbestos-related diseases.
1827. New paragraph 5A(1)(b) would set out the matters which must be addressed in the plan
to ensure there is a nationally consistent and coordinated approach to improving
asbestos removal, national data and awareness about asbestos safety and asbestos-
related diseases and facilitating international collaboration.
1828. New subsection 5A(2) would require a two-thirds majority of jurisdictions to agree to
the Asbestos National Strategic Plan for it to be a valid plan. The current plan has been
agreed to by all governments and this provision is included for clarity. It would provide
a clear threshold for when a plan has sufficient support to be valid.
1829. On commencement the existing Asbestos National Strategic Plan would meet the
requirements of new section 5A because it has been agreed to by governments and
addresses the matters set out in new subparagraph 5A(1)(b).
Silica National Strategic Plan
1830. New section 5B 'Silica National Strategic Plan' would be similar to the definition of
the Asbestos National Strategic Plan in new section 5A. The plan would aim to
eliminate silica-related diseases by preventing exposure to respirable crystalline silica
and supporting workers and others who are affected by silica-related diseases. New
paragraph 5B(1)(b) would set out the matters which must be addressed in the plan,
including eliminating or minimising exposure to respirable crystalline silica in
workplaces, and improving research and national data.
1831. New subsection 5B(2) would require a two-thirds majority of jurisdictions to agree to
the to the Silica National Strategic Plan for it to be a valid plan. This would recognise
that the successful implementation of the plan requires commitment by the majority of
governments.
1832. The Lung Foundation Australia is currently developing a Silica National Strategic Plan
pursuant to Recommendation 3(a) of the 2021 NDDT's Final Report to the Minister for
Health and Aged Care. This work would provide an important foundation upon which
the first Silica National Strategic Plan would be built.
1833. Responsibility for implementing the NDDT's recommendations in relation to the
development of a National Silicosis Prevention Strategy and associated National Action
Plan, and a national coordination mechanism for action on silica-related diseases.
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Item 13: Part 2 (heading)
1834. Item 13 would repeal the existing heading for this part and substitute a new heading
'Asbestos and Silica Safety and Eradication Agency' to reflect the new name.
Item 14: Section 6
1835. Item 14 would repeal section 6 of the ASEA Act, which establishes ASEA. The new
section 6 would provide for the continuation of the body under a new name: the
Asbestos and Silica Safety and Eradication Agency.
Item 15: Subsection 8(1)
1836. Section 8 of the ASEA Act sets out the functions of the Agency.
1837. Item 15 would repeal existing subsection 8(1) and substitute a new provision, which
would build on and clarify the existing functions of ASEA. This reflects the proposed
expanded remit of the Agency and would implement relevant recommendations of the
2019 ASEA Review. In particular:
• New paragraph 8(1)(c) would allow the Agency to provide advice to the Minister at
any time and not only when requested.
• New paragraph 8(1)(d) would refer to the Agency's function to collaborate, rather
than merely liaise with, other governments, agencies, and bodies and expressly
refers to international governments. This would better reflect ASEA's current
collaborative approach. For example, the Agency would be able to collaborate with
Safe Work Australia about the development and implementation of the Silica
National Strategic Plan.
• New paragraph 8(1)(e) would provide for the Agency to conduct, as well as
commission, research about asbestos safety, asbestos-related diseases, silica safety
and silica-related diseases.
• New paragraphs (8)1(f) to (h) would incorporate section 5 of the Asbestos Safety
and Eradication Agency Rule 2022 with modifications to include silica safety and
silica-related diseases. These functions would relate to awareness raising and
promoting consistent messages around asbestos safety, asbestos-related diseases,
silica safety and silica-related diseases.
Item 16: Subsection 8(3)
1838. Item 16 would omit the words 'performing it' and substitute 'performing its' to correct
a grammatical error in the existing provision.
Item 17: Subsection 8(3)
Item 30: Paragraphs 29(1)(c) and (d)
Item 52: Subsection 42(3)
1839. These items would make technical amendments to remove the words 'National
Strategic Plan' and substitute 'National Strategic Plans' to reflect the change in the
number of plans as there will be a separate National Strategic Plan for asbestos and
silica.
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Item 17A: At the end of section 8
1840. Item 17A would clarify the relationship between the new functions which will be
conferred on ASEA and the Commonwealth's powers under the Financial Framework
(Supplementary Powers) Act 1997. It is a technical amendment.
Item 18: After section 8
1841. Item 18 would insert new section 8A and require the Agency to report on both asbestos
and silica national strategic plans. This would be a key part of the Agency's
coordination function providing a national snapshot on progress to the relevant
Commonwealth and State and Territory ministers.
1842. The content of the reports would be flexible but is intended to cover progress in
implementing the national strategic plans and achieving national targets, as well as any
relevant activities that a jurisdiction is undertaking.
1843. The asbestos report would be provided to ministers with interest in work health and
safety, health and environmental protection. For silica, the report would be provided to
ministers with interest in work health and safety and health.
1844. New subsections 8A(3) and (5) would provide that reports must be prepared before
31 December in each financial year and must be made publicly available.
Item 19: Section 12 (heading)
Item 20: Subsections 12(1), (1A) and (2)
Item 23: Paragraph 24(1)(b)
Item 25: Division 1 of Part 5 (heading)
Item 27: Section 29 (heading)
Item 28: Paragraph 29(1)
Item 31: Subsections 29(2), (2A) and (3)
Item 32: Section 30 (heading)
Item 33: Subsections 30(1) and (2)
Item 34: Subsections 30A(1), (2) and (3)
Item 35: Division 2 of Part 5 (heading)
Item 36: Section 31
Item 41: Paragraph 40(d)
Item 42: Division 4 of Part 5 (heading)
Item 43: Section 41 (heading)
Item 44: Subsection 41(1)
Item 45: Subsection 41A(1)
Item 47: Paragraph 41A(2)(a)
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Item 48: Sections 41B, 41C, 41D and 41E
Item 49: Subparagraph 41F(a)(ii)
Item 51: Subparagraph 41F(e)(iii)
1845. These items would be consequential amendments to Item 8.
1846. Since all references to the full name of ASEC would need to be amended to reflect the
new functions related to silica, these amendments would remove the words 'Asbestos
Safety and Eradication' and streamline the legislation by using the term Council instead
of spelling out its full name.
Item 21: At the end of Division 1 of Part 3
1847. Item 21 would insert a new section 14A to allow the CEO to request information from a
person in certain circumstances and an express permission for a person to provide the
requested information. Information that may be disclosed could include personal
information.
1848. It is appropriate provide for the collection of personal information for the following
reasons:
• New paragraph 14A(1)(b) would provide that the CEO may request information
where the information is necessary to perform certain functions and is not otherwise
available. For example, the CEO could not request information which is publicly
available.
• New subsections 14A(5) and (6) would provide an express permission that a person
can rely on to provide the requested information, if they consider the disclosure to
the Agency is appropriate. This express permission would not compel a person to
provide information upon request.
• New subsection 14A(6) would provide that a person may disclose information to
the Agency in response to a request despite anything in a law of the Commonwealth
(other than the proposed ASSEA Act) or a law of a State or Territory. This means a
non-disclosure provision in other legislation that would otherwise prevent
information being disclosed to the Agency, does not prevent its disclosure. The
purpose of the amendment is to ensure information necessary to support the
Agency's research, data and reporting functions can be collected. Silica issues are
complex and require coordination and information sharing across portfolios as well
as jurisdictions. This amendment is intended to facilitate information sharing
between government agencies and bodies. New section 14A is framed broadly to
provide flexibility for the future. For example, ASEA is very cooperative and in the
future the Agency may form partnerships with non-Governmental organisations and
request information from such bodies as well.
• Tracking progress against the national strategic plans and developing evidence-
based research relies on input from a range of sources including all State and
Territory governments. The amendments will ensure that persons with relevant
information are able to provide that information to the Agency.
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• The Agency's coordination, advice and reporting roles would rely on input from a
range of sources including all State and Territory governments. The amendments
would ensure persons with relevant information are able to provide that information
to the Agency. This would involve for example, data on number of diagnosed cases
of silicosis or other silica-related diseases in each State and Territory. It would not
include for example, a person's medical record as that would not be necessary for
the performance of the Agency's functions. Failing to fulfil a request would not be
an offence and broad discretion will be retained by the person holding information.
There could be a range of legitimate reasons why a request may not be fulfilled,
including if, for example, providing the information requested would cause
unnecessary duplication of work and create an administrative burden on the person.
1849. The new Agency would be subject to a range of obligations to ensure that the
information it obtains is handled appropriately:
1850. Personal information collected by the Agency is subject to the requirements of the
Privacy Act 1988 which governs its collection, use, disclosure, storage and disposal.
1851. As Australian Public Service (APS) employees, the Agency's employees would be
bound by the APS Code of Conduct, including regulation 2.1 (duty not to disclose
information) which applies to information obtained by the Agency related to the
performance of its statutory functions. A breach of the Code of Conduct by an APS
employee may lead to the imposition of sanctions up to and including termination of
employment.
1852. The Criminal Code contains offences relating to the unauthorised disclosure of
information by current (and former) Commonwealth officers, including APS
employees, punishable by terms of imprisonment (of between two and seven years
depending on the circumstances of the offence).
Item 22: Subsection 23A(1)
1853. Item 22 would provide that the CEO cannot delegate the new function under new
section 14A to obtain information. Section 23A of the ASEA Act currently allows the
CEO's functions or powers to be delegated to any ASEA staff member. Due to the
small size of ASEA there are no senior executives who could be delegated to and
allowing for delegation beyond senior executives would be inappropriate for this
function.
Item 26: Section 28
1854. Existing section 28 of the ASEA Act establishes ASEC.
1855. Item 26 would provide that ASEC would continue to exist as the Asbestos and Silica
Safety and Eradication Council. This will ensure continuity for the Council in its work
relating to asbestos.
Item 29: Paragraph 29(1)(b)
1856. Item 29 would insert the words 'asbestos-related diseases, silica safety and silica-
related diseases' after the word 'safety' to reflect the remit of the Agency.
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Item 37: Paragraph 31(d)
1857. Item 37 would remove the words '1 member' and substitute '2 members' to increase
the membership of the Council and provide for an additional member representing the
interests of workers. Silica-related diseases are occupational in nature and greater
representation from those representing workers is required.
Item 38: Paragraph 31(e)
1858. Item 38 would remove the words '1 member' and substitute '2 members' to increase
the membership of the Council and provide for an additional member representing the
interests of employers. Silica-related diseases are occupational in nature and greater
representation from those representing employers is required.
Item 39: After paragraph 31(e)
1859. Item 39 would insert a new paragraph 31(ea) to provide that the Council must include a
member with expertise relevant to asbestos safety, asbestos-related diseases, silica
safety or silica-related diseases. This amendment would ensure the work of the Council
is informed by a person who is an expert in relevant areas, for example an
epidemiologist, occupational physician, respiratory physician, or occupational
hygienist.
Item 40: Subsection 32(3)
1860. Item 40 would repeal the existing subsection 32(3) of the ASEA Act and substitute a
new provision. This new provision would replicate some of the eligibility criteria in the
existing subsection and add additional criteria.
1861. New paragraph 32(3)(a) would expand the eligibility for appointment as a Council
member to include knowledge or experience in silica safety, silica-related diseases or
representation of, or providing support to persons with silica-related diseases and their
families.
1862. New paragraph 32(3)(b) would expand the eligibility for appointment to the Council as
a non-government representative to include a person who has or has had asbestos or
silica-related diseases or has lived experience as a family member of a person who is or
has been affected by asbestos or silica-related diseases.
1863. There is some overlap between the new subparagraphs 32(3)(a)(iv) and (vii) and
32(3)(b)(ii) and (iv). New subparagraphs 32(3)(a)(iv) and (vii) would not require lived
experience. A person with professional experience in victim advocacy or undertaking
support groups for affected workers or their families would also be eligible. The new
subparagraphs 32(3)(b)(ii) and (iv) in contrast require lived experience supporting an
affected family member or as a carer or advocate. Persons with lived experience have a
unique perspective and the amendments would make it clear that they are eligible to be
appointed and contribute to the work of the Council as a member.
Item 46: Paragraph 41A(1)(b)
1864. Item 46 would remove the number '4' and substitute '6' to increase the number of other
Council members that would be required to constitute a quorum of the Council. This
would reflect the increase to Council numbers.
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Item 50: Paragraph 41F(b)
1865. Item 50 would remove the word 'Asbestos' and substitute 'Asbestos and Silica' to
reflect the new name of the Council.
Item 52: Subsection 42(3)
1866. Item 52 would remove the words 'the National Strategic Plan' and substitute 'either of
the National Strategic Plans' to reflect the change in the number of plans as there would
be a separate National Strategic Plan for asbestos and silica.
Item 53: At the end of section 42
1867. Section 5A of the ASEA Act currently provides that the Asbestos National Strategic
Plan is taken to be a corporate plan for the purposes of the Public Governance,
Performance and Accountability Act 2013. This section would be repealed and replaced
by the Bill and Item 53 would add a new subsection 42(4) to the ASSEA Act to provide
that the annual operational plan is taken to be a corporate plan for the purposes of the
Public Governance, Performance and Accountability Act 2013.
1868. The National Strategic Plans set out what actions all governments will take and are not
appropriate as a corporate plan. In contrast, the annual operational plan would set out
the activities to be undertaken by the Agency and is a more appropriate plan to specify.
Item 54: Section 47
1869. Item 54 would repeal section 47 of the ASEA Act and substitute a new provision.
1870. This amendment would provide for a review of the Agency's role and functions to be
conducted five years after commencement of the amendment and completed within six
months. The new provision would have the same terms as the previous review
requirement. A review of the ASEA's role and functions was previously completed in
2019.
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Part 2--Application, saving and transitional provisions
Item 55: Definitions
1871. Item 55 sets out three definitions used in Part 2:
• 'amended Act' means the Asbestos Safety and Eradication Agency Act 2013, as in
force after the commencement day;
• 'Commencement day' means the day this Part commences (day after Royal Assent);
• 'Silica Plan agreement day' means the day after the day the Silica National
Strategic Plan has been agreed to by at least 6 of the governments of the
Commonwealth and each State or Territory.
Item 56: Functions of the Agency - Silica National Strategic Plan
Item 60: Functions of the CEO of the Agency - annual operational plan
Item 61: Functions of the Council - Silica National Strategic Plan
1872. These items would provide that plan related functions of the new Agency, the CEO and
the Council do not have effect until the Silica National Strategic Plan has been agreed
upon by a two-thirds majority of jurisdictions.
1873. These transitional provisions do not have a sunsetting date because it is expected that a
Silica National Strategic Plan would be finalised and agreed to within one to two years
at most. There is strong and unified commitment by governments to address this issue.
In the unlikely event that a plan was not agreed to in a timely manner, the review of the
Agency's functions required in item 54 would provide an opportunity to review the
insertion of silica-related functions. Such a review would need to consider whether it is
appropriate to remove the additional functions and reconsider the purpose of the
Agency.
Item 57: Functions of the Agency -annual report relating to implementation of Asbestos
National Strategic Plan
1874. Item 57 would prescribe the timing for the first annual report relating to the Asbestos
National Strategic Plan after commencement. This report would be due before the
report relating to the National Silica Strategic Plan because there is already a
well-established asbestos plan in existence. The current asbestos plan has been agreed
to by all governments.
Item 58: Functions of the Agency - annual report relating to implementation of Silica
National Strategic Plan
1875. Item 58 would prescribe the timing for the first annual report relating to the Silica
National Strategic Plan after commencement. Annual reports are tied to financial years
and there are two different dates contemplated to ensure that the content of the first
report is provided as soon as practicable but is also sensible given plans will be in their
very early stages.
1876. If the Silica National Strategic Plan is agreed to by the requisite number of Australian
governments (the Silica Plan agreement day, see item 55) on a day in the first half of a
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financial year, the first report would be due before the end of 31 December in the
following year. The report would have to include information relating to matters
covered by the Silica National Strategic Plan, for example, preventing exposure to
respirable crystalline silica in the workplace and activities undertaken by governments
in the period between the plan start date and the end of the first financial year (that is,
30 June the following year). This report would be a snapshot of activities already
underway in jurisdictions and a benchmark which could be used to inform future
reports. Because the plan would be in its very early days at this time there may be
limited progress to report on and separate arrangements for the first report are
necessary.
1877. If the Silica National Strategic Plan is agreed to by the requisite number of Australian
governments (the Silica Plan agreement day, see item 55) on a day in the second half of
a financial year, the first report would also be due before the end of 31 December in the
following year. The content of the report would be different though and would be
required to relate to progress made by governments in implementing the Silica National
Strategic Plan. This could cover, for example, how governments have begun to set up
monitoring and have begun implementing measures to meet targets.
Item 59: CEO of the Agency
Item 62: Members of the Council
1878. These items would preserve the appointments of the CEO and members of the Council.
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SCHEDULE 3--AMENDMENT OF THE SAFETY, REHABILITATION AND
COMPENSATION ACT 1988
Amendments to the Safety, Rehabilitation and Compensation Act 1988
1879. Schedule 3 would amend the SRC Act to introduce a rebuttable presumption that
post--traumatic stress disorder suffered by specified first responders was contributed to,
to a significant degree, by their employment.
Item 1: Before subsection 7(8)
1880. This item would introduce a heading before subsection 7(8) indicating that
subsections 7(8)-(10) relate to 'diseases suffered by firefighters'.
1881. This heading is to provide for consistency in section 7 and is not intended to alter the
operation of subsections 7(8)-(10).
Item 2: At the end of section 7
1882. Subsection 7(11) would provide that unless the decision-maker is satisfied to the
contrary, post-traumatic stress disorder suffered by specified first responders is to be
taken to have been contributed to, to a significant degree, by their employment.
1883. Paragraph 7(11)(a) would specify that for the presumption to apply, the decision-maker
must be satisfied that the employee's post-traumatic stress disorder was suffered in
accordance with a legislative instrument determined in accordance with new
subsection 7(12).
1884. Subsection 7(12) would enable the Minister to make a legislative instrument specifying
the circumstances in which an employee is taken to have suffered, or be suffering from,
post-traumatic stress disorder. As paragraph 7(11)(a) requires that the post-traumatic
stress disorder must have been suffered in accordance with such an instrument, an
instrument would be required in order for the presumption to operate.
1885. Subsection 7(13) would provide an exhaustive list of 'first responders' to whom the
presumption in subsection 7(11) would apply. Under new subsection 7(11), a person
must have been employed as a first responder prior to the symptoms of post-traumatic
stress disorder first becoming apparent. Subsection 7(13) would specify that a person,
being an 'employee' within the meaning provided by existing section 5, was a first
responder if they were:
• the Commissioner of the Australian Federal Police, a Deputy Commissioner of the
Australian Federal Police, or an AFP employee (all within the meaning of the
Australian Federal Police Act 1979);
• employed as a firefighter;
• employed as an ambulance officer or paramedic;
• employed as an emergency services communications operator; or
• a member of an emergency service within the meaning of the Emergencies Act 2004
(ACT).
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1886. New paragraph 7(14) would confirm that the presumption in new paragraph 7(11) does
not limit, and is not limited by, the pre-existing presumptions in subsections 7(1) and
(2).
Item 3: Application of amendments
1887. Item 3 specifies that the amendments to the SRC Act would apply to post-traumatic
stress disorder sustained after the commencement of the amendments. The date on
which diseases are taken to have been sustained is determined in accordance with
existing subsection 7(4).
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SCHEDULE 4--AMENDMENT OF THE WORK HEALTH AND SAFETY ACT 2011
Overview
1888. Schedule 4 would strengthen the offences and penalties framework in the WHS Act. A
new offence of industrial manslaughter would be introduced. This would align
Commonwealth WHS laws with the model Act which was recently amended to provide
for industrial manslaughter within the model framework. The model Act does not
prescribe the exact provisions of the model offence to enable each jurisdiction to
implement (or maintain) an offence tailored to the criminal law framework of the
jurisdiction. However, the model Act provides for an industrial manslaughter offence
via a jurisdictional note and accompanying model penalties for the offence. The offence
in this Bill reflects recommendations 23b of the Boland Review and 13 of the Senate
Inquiry.
1889. The existing Category 1 offence and State and Territory general manslaughter offences
may also apply when a worker or other person is killed at a workplace. A specific
industrial manslaughter offence responds to genuine community concern that the WHS
framework requires stronger penalties for the most egregious breaches of WHS duties
that result in workplace fatalities.
1890. Schedule 4 would also:
• repeal and replace provisions dealing with criminal liability for bodies corporate,
the Commonwealth, and public authorities. These amendments reflect recent
changes to the model Act, with appropriate modifications and additional provisions
where necessary;
• clarify that the Category 1 offence applies to officers of PCBUs;
• significantly increase Category 1 penalties;
• increase all penalties in the WHS Act by 39.03 per cent and provide for future
indexing (giving effect to recommendation 22 of the Boland Review).
• provide for a Family and Injured Workers Advisory Committee in the WHS Act.
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Part 1--Industrial manslaughter
Amendments to the Work Health and Safety Act 2011
Item 1: After section 30
1891. The Bill would insert new section 30A into the WHS Act providing for an industrial
manslaughter offence. The new offence would apply to 'officers' and PCBUs whose
negligent conduct or recklessness causes the death of an individual.
Core elements of new offence
1892. New subsection 30A(1) would provide for when a person commits an offence of
industrial manslaughter, with each paragraph outlining one element of the offence.
1893. New paragraph 30A(1)(a) would require that a person either be a PCBU (as defined in
section 5 of the WHS Act) or an officer of a PCBU (officer is defined in section 4 of
the WHS Act). The new offence would apply to PCBUs and officers because of their
elevated responsibilities within the workplace.
1894. Due to the operation of subsection 12F(2) of the WHS Act, strict liability applies to this
element. Strict liability is appropriate for this element as the element is analogous to a
jurisdictional element - that is, the element does not go to the substance of the offence.
New paragraph 30A(1)(a) would ensure the offence only captures those within the
Commonwealth's WHS jurisdiction.
1895. The application of strict liability to a particular element means that the prosecution is
not required to prove fault in relation to that matter. However, as per
paragraph 6.1(2)(b) of the Criminal Code, the defence of mistake of fact under
section 9.2 of the Criminal Code would be available in relation to these elements. This
means where the accused produced evidence of an honest and reasonable, but mistaken,
belief in the existence of certain facts which, if true, the conduct would not have
constituted the offence, it will be incumbent on the prosecution to establish that there
was not an honest and reasonable mistake of fact.
1896. New paragraph 30A(1)(b) would require that the person has a health and safety duty.
Due to the operation of subsection 12F(2) of the WHS Act, strict liability applies to this
element. As with paragraph 30A(1)(a), this element is analogous to a jurisdictional
element as it does not go to the substance of the offence, but ensures the offence only
captures those subject to the Commonwealth's WHS jurisdiction.
1897. New paragraph 30A(1)(c) would require that the person intentionally engages in
conduct. This would require that the person intentionally engaged in the conduct that
constitutes the offence. As per the wording of the paragraph, intention (as defined in the
Criminal Code) is the applicable fault element. Due to the operation of
subsection 12F(2) of the WHS Act it is necessary to explicitly include 'intentionally',
otherwise strict liability would apply to the paragraph. The new criminal responsibility
provisions contained in Parts 3, 4 and 5 of Schedule 4 to the Bill deal with how
intention can be proven in relation to bodies corporate, the Commonwealth, and public
authorities (respectively).
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1898. New paragraph 30A(1)(d) would require the conduct to have breached the health and
safety duty. Due to the operation of subsection 12F(2) of the WHS Act, strict liability
applies to this element. While breach of duty is central to the offence, it would not be
appropriate to apply a fault element to this element. Most offences in the WHS Act,
including the Category 2 and Category 3 offences are strict liability.
1899. Including strict liability as a feature of offences was carefully considered when the
WHS Act was first introduced as the presumption of innocence can be seen to be
impinged by removing the requirement for the prosecution to prove fault in relation to
one or more physical elements of an offence. WHS offences arise in a regulatory
context where, for reasons such as public safety, and the public interest in ensuring that
regulatory schemes are observed, the sanction of criminal penalties is justified. The
offences also arise in a context where a defendant can reasonably be expected, because
of their professional involvement, to know what the requirements of the law are, and
the mental, or fault, element can be justifiably excluded. The rationale is that people
who owe WHS duties such as employers, persons in control of aspects of work, and
designers and manufacturers of work structures and products, as opposed to members
of the general public, can be expected to be aware of their duties and obligations to
workers and the wider public. The industrial manslaughter offence would apply to
PCBUs, and 'officers' (the most senior persons in an organisation).
1900. Other elements which interact closely with this element (specifically the requirement to
intentionally engage in the conduct (paragraph 30A(1)(c)) and the requirement that the
person was reckless or negligent as to whether the conduct would cause the death
(paragraph 30A(1)(f)), provide sufficient application of fault to the offence.
1901. New paragraph 30A(1)(e) would require that the conduct caused the death of an
individual. 'Causes' is defined in new subsection 30A(2) (see below). Causing the
death of a person is central to this offence and the reason for the high penalties (see
below).
1902. New paragraph 30A(1)(f) would provide that the relevant fault elements for
paragraph 30A(1)(e) are that the person was reckless or negligent as to whether their
conduct would cause the death of an individual. Recklessness and negligence are
defined in the Criminal Code. Parts 3, 4 and 5 of Schedule 4 to the Bill deal with how
negligence and recklessness can be proven in relation to bodies corporate, the
Commonwealth, and public authorities (respectively).
1903. The Criminal Code definition of negligence reflects what is commonly referred to as
'gross negligence'. A person would be negligent in respect to causing a death if their
conduct involves such a great falling short of the standard of care that a reasonable
person would exercise in the circumstances and such a high risk that the conduct
warrants criminal punishment.
Negligence as a fault element
1904. The application of negligence as a fault element to industrial manslaughter has been
carefully considered. Negligence was recently inserted into section 31 of the WHS Act.
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This change lowered the threshold for prosecution and gave effect to
recommendation 23b of the Boland Review. Recommendation 23b arose because it was
considered that the threshold to prove the fault element of recklessness was too high
and difficult to establish in a WHS context, meaning the offence was failing to meet its
objective of ensuring compliance through deterrence.
1905. Including negligence as a fault element is consistent with the Guide, which notes the
use of negligence is supported where the context of negligence is a well-established
indication of liability. The Guide expressly references WHS laws as an example
because WHS duties require the proactive identification and management of risks.
WHS breaches can result in substantial harm to workers including serious injury, illness
or death.
Penalties
1906. New subsection 30A(1) would prescribe the penalties for an industrial manslaughter
offence. The new penalties are a maximum of 25 years imprisonment for individuals
and a fine of $18 million for bodies corporate or the Commonwealth. The maximum
penalty for individuals found guilty of industrial manslaughter (25 years'
imprisonment) reflects manslaughter penalties in the Criminal Code. This is consistent
with the Guide which states that where an offence is comparable to an offence in the
Criminal Code, the penalty under the Criminal Code should be adopted.
1907. The maximum monetary penalty of $18 million reflects the seriousness of the offence
and is consistent with the penalty for industrial manslaughter in the model Act. This
penalty provides a clear and effective punishment that acts as a deterrent against
breaching WHS duties.
Causation
1908. New subsection 30A(2) would define 'causes' for the purpose of subsection 30A(1).
Under this definition a person's conduct is taken to have caused a death if the conduct
substantially contributes to the death. This ensures for example, that where a worker is
seriously injured at a workplace and later dies in hospital, the death can be prosecuted
as industrial manslaughter if other elements are made out. Where conduct is found to
have substantially contributed to a workplace death, that is sufficient to satisfy
paragraph 30A(1)(e) - the conduct need not be the sole cause of death. Egregious WHS
failings are often a consequence of various elements, such as a failure of workplace
management to provide and maintain effective WHS supervision and protections and
the direct conduct of individuals.
1909. New subsection 30A(3) would disapply subsection 4B(2) of the Crimes Act which
would otherwise allow a court to substitute a pecuniary penalty for a term of
imprisonment. The intention of this subsection is to ensure that the deterrent effect of a
maximum penalty of 25 years' imprisonment for individuals cannot be diluted.
Alternative verdicts
1910. New subsection 30A(4) would allow a court to find the defendant guilty of either a
Category 1 or Category 2 offence should they be unsatisfied that the defendant is guilty
of industrial manslaughter. This would be caveated by the requirement that the court
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may only find the person guilty of the alternative offence if they have been accorded
procedural fairness.
1911. New subsection 30A(5) would provide that any limitation period which would have
applied to the alternative offence of which the accused is found guilty would not apply.
This would mean that if the prosecution commenced industrial manslaughter
proceedings outside the limitation period that applied to, for example, a Category 2
offence (two years after the offence first comes to the notice of the regulator or one
year after a coronial finding - see section 232 of the WHS Act), it would not impact the
ability of a court to find the accused guilty of a Category 2 offence in the alternative.
Item 2: Subsection 216(2)
Item 3: At the end of subsection 216(2)
1912. Item 2 would amend subsection 216(2) to align the language used in the rest of the
section for clarity .
1913. Item 3 would amend subsection 216(2) to ensure that a WHS undertaking cannot be
accepted in relation to an industrial manslaughter offence. Industrial manslaughter
would be the most serious WHS offence and it would be inappropriate to allow
enforceable undertakings in these circumstances. Existing section 216 provides that
WHS undertakings are not available for an alleged contravention which is a Category 1
offence.
Item 4: Subparagraphs 231(1)(a)(i) and (ii)
Item 5: Subsection 231(3)
1914. Section 231 of the WHS Act would be amended to allow a person who reasonably
believes an industrial manslaughter (or Category 1 or Category 2) offence has been
committed but no prosecution has been brought to ask the regulator, in writing, to bring
a prosecution. The existing procedure would not change.
Item 6: Before subsection 232(2)
Item 7: After subsection 232(2)
Item 8: Before subsection 232(3)
1915. Items 6 to 8 would amend section 232 of the WHS Act to ensure that no limitation
period would apply to an industrial manslaughter prosecution and would also provide a
clear categorisation of the definitions in this section. Because of the seriousness of the
industrial manslaughter offence a limitation period is considered inappropriate.
Item 9: Application provision
1916. Item 9 would provide that the new offence in section 30A applies to conduct engaged in
on or after the commencement of the Part.
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Part 2--Category 1 offence
Amendments to the Work Health and Safety Act 2011
1917. Part 2 would make a technical change to paragraph 31(1)(b) of the WHS Act to clarify
that an officer may commit a Category 1 offence. Officers are senior persons in an
organisation who make decisions that affect the whole or a substantial part of the
business or undertaking - for example, a CEO (see section 4 of the WHS Act). It has
always been understood that these persons, like any duty holder, are liable for a
Category 1 offence. The amendment would make this clear.
1918. New paragraph 31(1)(b) raises two scrutiny issues which have previously been
explained in explanatory materials but are set out again here for clarity .
Negligence as a fault element
1919. A recent change to the Category 1 offence added negligence as a fault element in
section 31 of the WHS Act (Work Health and Safety Amendment Act 2023). This
change lowered the threshold for prosecution and gave effect to recommendation 23b
of the Boland Review. This recommendation arose because it was considered that the
threshold to prove the fault element of recklessness was to too high and difficult to
establish, meaning the offence was failing to meet its objective of ensuring compliance
through deterrence.
1920. Including negligence is consistent with considerations outlined in the Guide, which
notes the use of negligence is supported where the context of negligence is a well-
established indication of liability. The Guide expressly references WHS laws as an
example because WHS duties require the proactive identification and management of
risks. The Category 1 offence has significant penalties (which would be increased by
Part 6 of this Schedule). A Category 1 breach can result in substantial harm to workers
including serious injury, illness or death.
Reasonable excuse
1921. The Category 1 offence is drafted to align with the model Act which includes a
'reasonable excuse' defence in paragraph 31(1)(b). The Guide cautions against the use
of 'reasonable excuse' defences in Commonwealth laws and prefers to rely on the
Criminal Code or specific defences. In this case, alignment with the model laws which
furthers the harmonisation of WHS laws in Australia is preferred. For completeness, in
these circumstances it is considered appropriate to impose the evidential burden
associated with the 'reasonable excuse' defence on the defendant because the existence
of an excuse would be peculiarly within the knowledge of the defendant.
Item 10: Paragraph 31(1)(b)
1922. An officer's duty in section 27 of the WHS Act is expressed as being owed to a PCBU
(to ensure the PCBU's compliance with its WHS duties), rather than to an individual
(as required by existing section 31). However, the penalties for a breach of section 31
include a penalty for a breach of the duty by an officer of a PCBU.
1923. This amendment would clarify that an officer may commit a Category 1 offence under
section 31 of the WHS Act by specifying that the offence is committed if the officer of
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a PCBU exposes an individual (to whom the PCBU owes a health and safety duty) to a
risk of death or serious illness or injury.
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Part 3--Corporate criminal liability
Amendments to the Work Health and Safety Act 2011
1924. A body corporate is an artificial entity that can only act and make decisions through
individuals. Corporate criminal responsibility for WHS offences is currently dealt with
in Part 2.5 of the Criminal Code, as noted in existing section 244 of the WHS Act.
1925. Part 3 of this Schedule would adopt recent amendments to the model Act, with minor
modifications to ensure the provisions work alongside the Criminal Code which
provides relevant definitions and a broader criminal law framework. This approach
would depart from existing section 244 which allows the existing corporate criminal
responsibility provisions in the Criminal Code to apply, rather than adopt the model
provisions for bodies corporate.
1926. The model amendments are based on Part 2.5 of the Criminal Code, with modifications
to adopt relevant recommendations of the Australian Law Reform Commission
Report 136 (Corporate Criminal Responsibility). In particular, Part 3 of this Schedule
includes a definition of 'authorised person' which allows for the conduct of officers,
employees and agents acting within their actual or apparent authority to be attributed to
a body corporate. This is broader than the approach in the Criminal Code which
provides for attribution of the actions of 'high managerial agents' to a body corporate.
A high managerial agent is a senior person within an organisation whose conduct could
be fairly assumed to represent the body corporate's policy (section 12.4 Criminal
Code).
1927. Part 3 of this Schedule also includes a provision based on section 12.4 of the Criminal
Code to ensure that the WHS Act deals with how negligence can be proven in relation
to a body corporate. Negligence is not dealt with in the model provisions but has been
included to maintain parity with the Criminal Code which would otherwise apply to a
body corporate.
1928. Part 3 would repeal section 244 of the WHS Act and insert new sections 244A-244D.
Sections 244A and 244B would set out the circumstances in which the physical and
fault elements of an offence are attributed to a body corporate.
1929. New sections 244A and 244B would also allow for aggregation of conduct. This
enables the conduct of authorised persons within a body corporate to be considered as a
whole in determining whether the body corporate has committed an offence with the
relevant state of mind for that offence. This means the same individual would not need
to have engaged in the relevant conduct and also hold the relevant state of mind (fault
element) in order to prove an offence against a body corporate.
Item 11: Section 4
1930. Item 11 would insert four new definitions into existing section 4. These defined terms
are used in provisions inserted by Part 3. The definitions of 'fault element' and
'physical element' are used in provisions inserted by Part 4 as well:
• 'authorised person' - would be given the meaning in new section 244;
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• 'board of directors' - would be given the meaning in new section 244;
• 'fault element', in relation to an offence, would be defined to have the same
meaning as in the Criminal Code;
• 'physical element', in relation to an offence, would be defined to have the same
meaning as in the Criminal Code.
Item 12: Before subsection 12F(1)
Item 13: Before subsection 12F(2)
1931. Items 12 and 13 would insert subheadings into existing section 12F.
Item 14: At the end of section 12F
1932. Item 14 would insert new subsection 12F(4). Subsection 12F(4) would provide that
Part 2.5 of the Criminal Code, which currently applies to offences committed by a body
corporate against the WHS Act, does not apply to an offence against the WHS Act. The
Criminal Code needs to be disapplied because it applies by default to Commonwealth
offences due to section 2.2 of the Criminal Code. As set out above, the provisions in
this Bill would insert a 'modified' Criminal Code approach to establishing fault for
bodies corporate. The rationale for applying WHS specific provisions instead of
Part 2.5 is alignment with the model work health and safety laws.
Item 15: Section 244
1933. Item 15 would insert new sections 244-244E. These provisions are based on the model
Act amendments, with some modifications where noted.
1934. New section 244 would define two terms used throughout the new sections:
• 'authorised person' for a body corporate would be defined to mean an officer,
employee or agent of the body corporate acting within the officer's, employee's or
agent's actual or apparent authority. The definition of 'authorised person'
incorporates the common law doctrine of actual and apparent authority. A person's
actual or apparent authority may extend beyond the actual or apparent scope of his
or her employment. Actual authority derives from the relationship between the
principal and the agent (Freeman and Lockyer v Buckhurst Park Properties
(Mangal) Ltd [1964] 2 QB 480 [502]). Apparent authority is created by the
relationship between the principal and the third party: An 'apparent' or 'ostensible'
authority, on the other hand, is a legal relationship between the principal and the
contractor created by a representation, made by the principal to the contractor,
intended to be and in fact acted upon by the contractor, that the agent has authority
to enter on behalf of the principal into a contract of a kind within the scope of the
'apparent' authority, so as to render the principal liable to perform any obligations
imposed upon him by such contract (Freeman and Lockyer v Buckhurst Park
Properties (Mangal) Ltd [1964] 2 QB 480 [502]);
• 'board of directors' would be defined to mean the body, whatever it is called,
exercising the executive authority of the body corporate.
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1935. New section 244A would provide the situations in which the conduct of an offence
would be attributed to a body corporate. Section 244A would provide that the conduct
constituting the physical elements of an offence would be taken to have been
committed by a body corporate if the conduct is committed by:
• the body corporate's board of directors; or
• one or more authorised persons for the body corporate; or
• one or more persons acting at the direction of or with the express or implied
agreement or consent of:
o an authorised person for the body corporate; or
o the body corporate's board of directors.
1936. New section 244B would provide how the fault elements of an offence are attributed to
a body corporate for fault elements other than negligence.
1937. Where it is necessary to establish a state of mind (fault element) of a body corporate in
relation to the commission of the physical element of an offence, new
subsection 244B(1) would provide that it is sufficient to show that:
• the body corporate's board of directors:
o engaged in the conduct constituting the offence and had that state of mind
in relation to that physical element; or
o expressly, tacitly or impliedly authorised or permitted the conduct
constituting the offence; or
• an authorised person for the body corporate:
o engaged in the conduct constituting the offence and had that state of mind
in relation to that physical element of the offence; or
o expressly, tacitly or impliedly authorised or permitted the conduct
constituting the offence; or
• a corporate culture existed within the body corporate that directed, encouraged,
tolerated or led to the conduct constituting the offence.
1938. New subsection 244B(3) would set out factors that are relevant to determining whether
a corporate culture existed for the purposes of paragraph 244B(1)(c). These factors are
not meant to be exhaustive.
1939. New subsection 244B(2) would create specific defences that provide
paragraphs 244B(1)(b) and (c) do not apply if the body corporate proves it took
reasonable precautions to prevent the conduct, authorisation or permission of the
conduct. Subsection 244B(2) requires the defendant to discharge the legal burden in
relation to that matter, that is, they must positively prove that such reasonable
precautions were taken. Section 13.5 of the Criminal Code provides that a legal burden
imposed on the defendant must be discharged on the balance of probabilities. This
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reversal of the burden of proof is justifiable because the of steps taken to prevent WHS
breaches are peculiarly within the knowledge of the defendant. Also, the inside access
to specialised information and corporate knowledge available to the body corporate as
to the actual steps taken, and the context for those choices, would mean that it would be
significantly more difficult and costly for the prosecution to disprove than for the
defendant to establish the matter.
1940. Additionally, the Guide provides that casting a matter as a defence is more readily
justified if the conduct proscribed by the offence poses a grave danger to public health
or safety. Conduct constituting a WHS breach often poses a such danger.
1941. Subsection 244B(4) would define 'corporate culture' and 'corporate officer' for the
purpose of section 244B. Corporate culture is defined similarly to subsection 12.3(6) of
the Criminal Code to mean one or more attitudes, policies, rules, courses of conduct or
practices existing within the body corporate generally or in the part of the body
corporate in which the relevant activity takes place. Corporate officer is defined by
reference to section 9 of the Corporations Act.
1942. New section 244BA would provide that the test of negligence for a body corporate is
that set out in section 5.5 of the Criminal Code. It would also replicate section 12.4 of
the Criminal Code to explain how negligence is attributed to a body corporate. In a
body corporate negligence often occurs across multiple layers of the organisation and in
the actions of multiple persons. New section 244BA would provide that fault may exist
where no individual employee, agent or officer of the body corporate has that state of
mind but the body corporate's conduct is negligent when viewed as a whole. This
allows the conduct of multiple individuals to be aggregated and attributed to the body
corporate.
1943. New subsection 244BA(2) would provide that negligence may be evidenced by the fact
that the prohibited conduct was substantially attributable to:
• inadequate management, control or supervision of the conduct of one or more of the
body corporate's employees, agents or officers; or
• failure to provide adequate systems for conveying relevant information to relevant
persons in the body corporate.
1944. New section 244C would provide a mechanism by which a body corporate can rely on
the defence of mistake of fact, if mistake of fact is relevant to determining liability for
an offence. A body corporate may rely on mistake of fact only if:
• the employee, agent or officer of the body corporate who engaged in the conduct
constituting the offence was under a mistaken but reasonable belief about facts that,
had they existed, would have meant the conduct would not have constituted the
offence; and
• the body corporate proves it took reasonable precautions to prevent the conduct.
The rationale for a reverse onus is explained in relation to new section 244B which
is similar.
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1945. New section 244D would set out factors that may be used to establish that a body
corporate failed to take reasonable precautions, in relation to subsection 244B(2) and
section 244C. A failure to take reasonable precautions may be evidenced by the fact
that the conduct constituting the offence was substantially attributable to:
• inadequate management, control or supervision of the conduct of one or more of the
body corporate's employees, agents or officers; or
• failure to provide adequate systems for conveying relevant information to relevant
persons in the body corporate.
1946. New section 244E is not a model Act provision. The section would provide that if a
body corporate is a public authority, the Division applies in relation to the body
corporate in accordance with new section 251.
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Part 4--Commonwealth criminal liability
Amendments to the Work Health and Safety Act 2011
1947. Part 4 of the Schedule is mirrored on new Part 3, with necessary modifications to
reflect the nature of the Commonwealth. This approach would allow criminal liability
to be attributed to the Commonwealth in a similar way to a body corporate. The
Commonwealth as a PCBU undertakes its work and activities though agencies. Without
these provisions, the prosecution of the Commonwealth as a large, dispersed entity
would be very difficult.
1948. Currently, criminal liability for the Commonwealth is set out in section 245 of the WHS
Act and reflects the model Act provisions which apply to the Crown. Part 4 would
repeal and replace those provisions, to align with the approach to corporate criminal
liability in the model Act. As explained above, this approach is based on Part 2.5 of the
Criminal Code, with modifications.
No Crown immunity from criminal prosecution
1949. The Crown cannot be held criminally responsible unless legislation provides to the
contrary. The Guide provides that for the Crown to be bound by the provisions of a
statute, there must be clear words or a necessary implication that the Crown is so
bound. Section 10 of the WHS Act explicitly binds the Commonwealth.
1950. Commonwealth WHS duties are enforced by criminal offences because they can result
in significant physical or psychological harm to persons and impact the community
more generally. Other WHS jurisdictions, both domestic and international, do not
include Crown immunity in their laws. The National Review into Model Occupational
Health and Safety Laws - First Report which informed development of the model Act,
noted this had not caused any difficulty. It is intended the Commonwealth would
remain subject to the WHS Act in its entirety and that no Crown immunity exception
would exist.
Item 16: Section 4
1951. Item 16 would insert two new definitions:
• 'authorised person' - see new section 245 below.
• 'executive' of an agency of the Commonwealth - see new section 245 below.
Item 17: Section 4 (definition of officer)
1952. Item 17 would repeal and replace the existing definition of 'officer'. Minor changes
would be made to the definition which do not affect the meaning of the existing term.
Item 18: Section 245
1953. Item 18 would repeal existing section 245 which sets out criminal liability and replace
it with new sections 245-245E.
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1954. New section 245 would insert three definitions which are used in the new Part:
• 'authorised person', for the Commonwealth would be defined to mean an officer,
employee or agent of the Commonwealth acting within their actual or apparent
authority;
• 'executive' of an agency of the Commonwealth, would be defined to mean the
person or body, whatever the person or body is called, exercising the executive
authority of the agency. This is intended to operate similarly to the definition of
'board of directors' in relation to a body corporate. It would cover for example, the
executive board of an agency;
• 'officer' of an agency of the Commonwealth would be defined to mean a person
who makes, or participates in making, decisions that affect the whole or a
substantial part of the business or undertaking of the agency. A definition is
required for this Part because of the way the corporate criminal liability provisions
have been used as a base for provisions.
1955. New sections 245A-D are modelled on new sections 244A-D. Detailed explanations
on those sections are set out above. The sections have been adapted to refer to the
Commonwealth instead of a corporation and to the definition of executive rather than
board of directors. Other minor modifications are made, for example the definition of
'corporate culture' refers to the culture within an agency of the Commonwealth.
1956. New section 245E would replicate existing subsection 245(1) which provides that the
applicable penalty to the Commonwealth is the penalty applicable to a body corporate.
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Part 5--Criminal liability of public authorities
Amendments to the Work Health and Safety Act 2011
Item 19: Section 251
1958. Part 5 deals with criminal responsibility for public authorities. Item 19 would repeal
existing section 251 of the WHS Act and provide that Division 4 of Part 13 of the WHS
Act (corporate criminal responsibility) applies to a public authority. The amendments to
Division 4 are set out above.
1959. The existing definition of 'public authority' in section 4 of the WHS Act covers
different bodies corporate, for example a body corporate established under a
Commonwealth law.
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Part 6--Penalties
Amendments to the Work Health and Safety Act 2011
1960. This Part would increase penalties for all Commonwealth WHS offences. It consists of
three measures: a general increase to all penalties that would give effect to
Recommendation 22 of the Boland Review to update the penalty levels in the model
Act, a significant increase to the penalty for the Category 1 offence to reflect the
seriousness of the offence, and a mechanism for future indexing of penalties to ensure
penalties remain effective and appropriate.
1961. The general 39.03 per cent increase in monetary penalties represents the average
increase in penalty units for non-WHS offences across all jurisdictions since 2011
(when the model Act was introduced).
1962. The significant increase to penalties for the Category 1 offence in this Part exceeds the
similar increase in the recent amendments to the model Act. The decision to depart
from the model Act was made to ensure the coherence of the Commonwealth WHS
offence penalty scheme. Workplace fatalities could be prosecuted as either an industrial
manslaughter offence or a Category 1 offence. Adopting the model penalty for
Category 1 would conflict with the principle set out in the Guide which holds that a
penalty should be consistent with penalties of a similar kind or of a similar seriousness.
1963. The significant increase to penalties for the Category 1 offence in this Part exceeds the
similar increase in the recent amendments to the model Act. The decision to depart
from the model Act was made to ensure the coherence of the Commonwealth WHS
offence penalty scheme. Workplace fatalities could be prosecuted as either an industrial
manslaughter offence or a Category 1 offence. Adopting the model penalty for
Category 1 would conflict with the principle set out in the Guide which holds that a
penalty should be consistent with penalties of a similar kind or of a similar seriousness.
1964. Given the number of individual penalty provisions and the introduction of annual
indexation to adjust penalty amounts for changes in the national CPI, it was considered
impractical to modify each penalty provision annually. Each offence penalty is
currently expressed in a dollar figure which would require that after each annual
indexation occurred hundreds of amendments would be required to update those figures
in each provision. This would be unduly burdensome. To account for this, the following
items would replace each individual penalty amount with a reference to the relevant
penalty tier set out in new Schedule 4. Indexation will be applied to the penalty tier
amounts set out in new Schedule 4 and as a result apply automatically to each provision
that specifies that penalty tier as the maximum penalty amount for that offence or civil
penalty provision.
1965. There would be three kinds of penalty tiers:
• Category penalties would be the penalties set for the three category offences in
Part 2 of the WHS Act (sections 31-33).
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• There would be nine different monetary penalty tiers used for the general offences
in the WHS Act and Regulations reflecting the nine different penalty levels used in
the WHS Act and Regulations.
• There would be four WHS civil penalty provision tiers for the four different civil
penalty amounts used in Part 7 of the WHS Act.
1966. Penalties in this Bill and in the WHS Act are not expressed in penalty units which
conflicts with the general principle set out in the Guide. However, the Guide also
provides that in limited circumstances (including in the case of a national uniform
scheme like the WHS scheme), penalties should be expressed in dollars rather than
penalty units. This is supported by the Protocol on Drafting National Uniform
Legislation which recommends that offences in such laws should also express penalties
in dollars rather than penalty units to ensure uniformity.
1967. The method of indexation is also different to that provided by subsection 4AA(3) of the
Crimes Act. To promote harmonisation of WHS laws and penalties across jurisdictions,
a deliberate choice has been made to align with model penalty increases rather than
Commonwealth penalty increases.
Division 1--Definitions
Item 20: Section 4
1968. This item would amend section 4 of the WHS Act to create new definitions for each of
the penalty provision tiers. The new definitions take their meaning from the relevant
clause of new Schedule 4, which is also where the monetary value of those penalties
would be set out.
Division 2--Categorised monetary penalties for offences
Item 21: Subsection 31(1) (penalty)
1969. This item would amend subsection 31(1) to repeal the current penalty. It would set the
new penalty for a Category 1 offence to the Category 1 monetary penalty (defined in
new Schedule 4, see Item 72) or 15 years imprisonment or both for individuals, and the
Category 1 monetary penalty (defined in new Schedule 4, see Item 72) for body
corporates and the Commonwealth.
1970. This penalty is significant as the Guide specifies that offences should have penalties
that are adequate to deter and punish a worst-case offence. Higher maximum penalties
are justified where there are strong incentives to commit the offence, or where its
consequences are particularly dangerous or damaging. The Category 1 offence and
corresponding penalty are intended to capture some of the most egregious WHS
breaches the consequences of which can be catastrophic - for example, where a
person's reckless conduct causes death.
1971. Following the decision of WHS Ministers to significantly increase the Category 1
penalty, the Commonwealth elected to further raise the penalty from that agreed by
SWA members on the basis that to do so would provide a more coherent
Commonwealth WHS penalty scheme (discussed above).
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Item 22: Section 32 (penalty)
1972. This item would amend section 32 to remove the current Category 2 penalty and set the
new penalty as the Category 2 monetary penalty defined in new Schedule 4.
Item 23: Section 33 (penalty)
1973. This item would amend section 33 to remove the current Category 3 penalty and set the
new penalty as the Category 3 monetary penalty defined in new Schedule 4.
Division 3--Tier A monetary penalties for offences
Item 24: Subsections 104(1), 107(1), 108(1) and 109(1) (penalty)
Item 25: Section 197 (penalty)
1974. These items would amend subsections 104(1), 107(1), 108(1), 109(1) and section 197
to remove the current penalty and set the new penalty as the tier A monetary penalty
defined in new Schedule 4.
Division 4--Tier B monetary penalties for offences
Item 26: Section 41 (penalty)
Item 27: Subsection 99(2) (penalty)
Item 28: Section 190 (penalty)
Item 29: Section 193 (penalty)
Item 30: Subsection 200(1) (penalty)
Item 31: Section 219 (penalty)
Item 32: Subsection 242(1) (penalty)
1975. These items would amend section 41, subsection 99(2), sections 190 and 193,
subsection 200(1), section 219 and subsection 242(1) to remove the current penalty and
set the new penalty as the tier B monetary penalty defined in new Schedule 4.
Division 5--Tier C monetary penalties for offences
Item 33: Subsections 42(1) and (2), 43(1) and (2) and 44(1) and (2) (penalty)
Item 34: Section 45 (penalty)
Item 35: Section 46 (penalty)
Item 36: Subsection 47(1) (penalty)
1976. These items would amend subsections 42(1) and (2), 43(1) and (2), and 44(1) and (2),
sections 45 and 46, and subsection 47(1) to remove the current penalty and set the new
penalty as the tier C monetary penalty defined in new Schedule 4.
Division 6--Tier D monetary penalties for offences
Item 37: Subsections 38(1) and 39(1) (penalty)
Item 38: Subsection 52(5) (penalty)
Item 39: Subsection 56(2) (penalty)
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Item 40: Subsection 61(4) (penalty)
Item 41: Subsections 70(1) and (2), 71(2) and 72(7) (penalty)
Item 42: Subsections 79(1), (3) and (4) (penalty)
Item 43: Subsection 155(5) (penalty)
Item 44: Subsection 165(2) (penalty)
Item 45: Subsections 171(6) and 177(2) and (6) (penalty)
Item 46: Subsection 185(4) (penalty)
Item 47: Sections 188 and 189 (penalty)
Item 48: Subsections 271(2) and (4) (penalty)
1977. These items would amend subsections 38(1), 39(1), 52(5), 56(2) 61(4), 70(1) and (2),
71(2), 72(7), 79(1) and (3) and (4), 155(5), 165(2), 171(6), 177(2) and (6), 185(4) and
sections 188 and 189, and subsections 271(2) and (4) to remove the current penalty and
set the new penalty as the tier D monetary penalty defined in new Schedule 4.
Division 7--Tier F monetary penalties for offences
Item 49: Subsection 38(7) (penalty)
Item 50: Subsection 75(1) (penalty)
Item 51: Subsections 97(1) and (2) (penalty)
Item 52: Subsections 210(1) and (2) (penalty)
Item 53: Section 273 (penalty)
1978. These items would amend subsections 38(7), 75(1), 97(1) and (2), 210(1) and (2) and
section 273 to remove the current penalty and substitute the tier F monetary penalty
defined in new Schedule 4.
Division 8--Tier H monetary penalties for offences
Item 54: Subsections 53(1) and (2) (penalty)
Item 55: Subsections 57(1) and (2) (penalty)
Item 56: Subsection 74(1) (penalty)
1979. These items would amend subsections 53(1) and (2), 57(1) and (2) and 74(1) to remove
the current penalty and set the new penalty as the tier H monetary penalty defined in
new Schedule 4.
Division 9--Penalties for WHS civil penalty provisions
Item 57: Subsection 118(3) (penalty)
Item 58: Section 123 (penalty)
Item 59: Sections 124 to 126, 128 and 129 (penalty
Item 60: Section 143 (penalty)
Item 61: Subsection 144(1) (penalty)
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Item 62: Sections 145 and 146 (penalty)
Item 63: Subsection 147(1) (penalty)
Item 64: Section 148 (penalty)
Item 65: Subsection 149(1) (penalty)
Item 66: Section 150 (penalty)
1980. These items would amend provisions to remove the current penalty and set the new
penalty as either a tier 1, 2, 3 or 4 WHS civil penalty provision penalty as defined in
new Schedule 4.
1981. Section 123 would be amended to include a tier 1 WHS civil penalty provision penalty.
1982. Subsection 118(3), sections 124, 125, 126, 128, 129, 143, subsection 144(1),
sections 145 and 146, subsection 147(1) and section 128 would be amended to include
a tier 2 WHS civil penalty provision penalty.
1983. Section 150 would be amended to include a tier 3 WHS civil penalty provision penalty.
1984. Subsection 149(1) would be amended to include a tier 4 WHS civil penalty provision
penalty.
Item 67: Paragraphs 254(1)(a) and (2)(a)
Item 68: Subsection 259(2)
1985. These items would amend paragraphs 254(1)(a) and (2)(a) and subsection 259(2) to
make minor technical amendments consequential to other Division 9 amendments.
Item 69: Application provision
1986. This item would provide that Division 9 would only apply in relation to contraventions
of WHS civil penalty provisions that occur on or after the commencement of the
Division.
Division 10--Penalties prescribed by the regulations
Item 70: Paragraph 276(3)(h)
1987. This item would make a minor technical amendment to the Governor General's
regulation-making powers provisions to account for the changes to penalty indexing.
The regulations currently allow the Governor-General to make regulations which
prescribe a penalty for any contravention not exceeding $30,000. This item would
replace the monetary figure of $30,000 with the following penalty tiers which may be
prescribed as the penalty for an offence under regulations:
• a tier E monetary penalty;
• a tier F monetary penalty;
• a tier G monetary penalty;
• a tier H monetary penalty;
• a tier I monetary penalty.
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Item 71: Transitional provision--existing penalty provisions
1988. This item is a transitional provision which would apply to provisions in the WHS
Regulations which prescribe a monetary penalty for an offence. It would allow
monetary penalty provisions to remain in force after the commencement of Division 10
despite the changes which would be made to regulation making powers by item 70.
1989. Subitem 71(3) would allow an existing penalty provision to be repealed or amended by
regulations made under section 276 of the WHS Act.
Division 11--Penalty amounts
Item 72: At the end of the Act
1990. This item would introduce a new Schedule 4 to the WHS Act setting out monetary
penalties for Categories 1 to 3, tiers A to I and the WHS civil penalty provisions tiers 1
to 4. The penalty amounts would be subject to indexation which is set out in clause 4 of
the Schedule.
1991. Clause 1 would establish the maximum monetary penalties for offences under the WHS
Act where a Category 1, 2 or 3 monetary penalty is specified. The maximum monetary
penalty is set out in the table to clause 1 as indexed under clause 4 and rounded under
clause 5.
1992. For categories 1 to 3 there are different maximum monetary penalties for an individual
(as a PCBU or as an officer of a PCBU), an individual (otherwise) and a body corporate
or the Commonwealth. The penalty amounts in the table to clause 1 include the
39.03 per cent increase to monetary penalties for Category 2 and 3 offences (which
represents the average increase in penalty units for non-WHS offences across all
jurisdictions since the introduction of the model Act in 2011), and the significant
increase for Category 1 offences.
1993. Clause 2 would establish the maximum penalty for offences under the WHS Act and
Regulations where a tier A, B, C, D, E, F, G, H or I monetary penalty is specified. The
maximum penalty is set out in the table to clause 2 as indexed under clause 4 and
rounded under clause 5.
1994. Clause 3 would establish the maximum penalty for WHS civil penalty provisions under
Part 7 of the WHS Act where a tier 1, 2, 3, or 4 monetary penalty is specified. The
maximum penalty is set out in the table to this subclause as indexed under clause 4 and
rounded under clause 5.
1995. Clause 4 would provide for the indexation of penalty amounts in the WHS Act to
reflect increases in CPI (discussed above). This is achieved by introducing an
indexation formula to be applied annually to all monetary penalties in the WHS Act and
Regulations.
1996. Subclause 4(1) would establish that each monetary penalty set out in clauses 1-3 must
be indexed for the year commencing on 1 July 2024 and each subsequent year in
accordance with clause 4.
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1997. Subclause 4(2) would contain the formula for calculating the maximum amount of each
monetary penalty that will apply in each year. This formula is adapted from the
indexation formula used in subsection 242B(1) of the Work Health and Safety Act 2011
(NSW).
1998. The denominator year of 2022 would apply because the calculation of the one-off
increase (of 39.03 per cent) was for the period from the commencement of the model
WHS law in 2011 until 2021.
1999. Subclause 4(3) would provide that if the maximum amount of a monetary penalty
calculated for a year is less than the amount that applied in the previous year, then the
amount for the previous year continues to apply. This ensures that penalty levels do not
decrease.
2000. Clause 5 would specify that for penalties under $10,000 and which are not a multiple of
$100, the maximum monetary penalty would be rounded down to the nearest $100.
Where the amount is a multiple of $50 it is to be rounded down. For penalties more
than $10,000 and not a multiple of $1000, the maximum amount of the penalty would
be rounded to the nearest $1000 and a multiple of $500 would be rounded down.
2001. Clause 6 would provide that as soon as practicable after publication by the Australian
Statistician of the CPI number for the March quarter each year, the regulator must give
notice of the maximum amount of each monetary penalty calculated under Schedule 4
by notifiable instrument.
2002. Clause 7 defines 'CPI number' and 'year' for the purpose of Schedule 4.
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Part 7--Tied amendments
Amendments to the Work Health and Safety Act 2011
2003. This item would amend the WHS Act and replace the referenced penalty provision to
align it with the newly introduced tiered monetary penalty system.
Item 73: Subsections 272A(1) and 272B(1) (penalty)
2004. This item would amend the reference of maximum penalties available for these two
offences to be a tier B monetary penalty.
2005. The offences in subsections 272A(1) and 272B(1) will be inserted by the Work Health
and Safety Amendment Act 2023 when it commences (which will occur no later than
21 September 2023). Item 73, which would commence after the commencement of that
Act, would amend subsections 272A(1) and 272B(1) to ensure the new method of
categorisation and indexation of penalties also applies to them.
329
Part 8--Family and Injured Workers Advisory Committee
2006. This Part would amend the WHS Act to provide for a Family and Injured Workers
Advisory Committee (the Advisory Committee). The Advisory Committee would
provide a representative forum for people with lived experience of serious workplace
incidents to share their perspectives, give advice and make recommendations to the
Minister about the needs of persons affected by serious work-related incidents. The
Advisory Committee would also give advice to Commonwealth WHS regulators
(Comcare, AMSA and NOPSEMA). Advice to regulators would be about their
engagement with persons affected by serious work related incidents, and the
development of relevant policies and strategies.
2007. This Part would complement other measures in Schedule 4 to the Bill by ensuring the
voices of those with relevant lived experience inform the policies and supports for those
who are affected by serious work-related incidents.
2008. The establishment of the Committee aligns with the National Principles to support
families following an industrial death developed by SWA, which include the principle
that 'bereaved families and seriously injured workers and their families should have the
opportunity to give feedback to government, and advocate for change or reform to meet
the needs of those significantly impacted by industrial death or serious injury'.
2009. This Part also responds to the 2018 Senate Education and Employment References
Committee Report Senate Inquiry which identified critical issues in the prevention,
investigation and prosecution of workplace deaths, and made recommendations,
including improving support for families affected by a workplace fatality. In particular,
recommendation 27 of the Senate Inquiry that each jurisdiction 'establish advisory
committees designed to give advice and make recommendations to the relevant minister
about the information and support needs of persons who have been affected directly or
indirectly by a workplace incident that involves a death, serious injury or serious
illness'.
Item 74: After Part 3 of Schedule 2
2010. This item would insert a new Part 3A to Schedule 2 to the WHS Act providing the
legislative framework to establish the Advisory Committee. The Advisory Committee
would be primarily comprised of members with lived experiences of serious work-
related incidents. The unique perspectives of lived experience members would inform
the advice and recommendations the Advisory Committee gives to the Minister and
Commonwealth WHS regulators (Comcare, NOPSEMA, AMSA) on policies,
procedures and strategies concerning serious work-related incidents.
Clause 3A: Definitions for this part
2011. This clause would insert 6 new definitions for the purposes of new Part 3A.
2012. The definition of 'serious work-related incident' would mean the death of a person, or a
serious injury or illness of a person, arising out of the conduct of a business or
undertaking. Whether the death, illness or injury meets this definition would be a
330
question of fact and in this context 'serious injury or illness' has its ordinary meaning.
This is unlike Part 3 of the WHS Act which defines 'serious injury or illness' in
section 36 for the purposes of incident notification.
2013. A death, serious injury or illness would need to have a sufficient connection to the
conduct of an undertaking (or multiple undertakings) but would not need to be a
specific 'incident' such as an accident. This would ensure that having a long latency
disease such as silicosis or mental illness, which can develop over time, would make a
person eligible to be a member of the Advisory Committee.
Clause 3B: Establishment of the Family and Injured Workers Advisory Committee
2014. This clause would establish an advisory committee titled the Family and Injured
Workers Advisory Committee, which would need to be established within 12 months of
Part 3A commencing.
2015. Deferring establishment of the Advisory Committee would provide the opportunity for
appointments to be made, stakeholder consultation and drafting necessary legislative
instruments to support the Advisory Committee's functions.
Clause 3C: Functions of the Advisory Committee
2016. This clause would set out the functions of the Advisory Committee, which would be to
give advice to government and relevant regulators. The Advisory Committee would:
• give advice and make recommendations to the Minister who administers the WHS
Act about the needs of persons affected by serious work-related incidents;
• give advice to Comcare, and contribute to the development and review of,
Comcare's policies, practices and strategies for liaising with, and providing
information to persons affected by serious work-related incidents;
• give advice to AMSA, and contribute to the development and review of, AMSA's
policies, practices and strategies for liaising with, and providing information to
persons affected by serious work-related incidents that arise on a prescribed ship
(within the meaning of the OHS(MI) Act or a prescribed unit (within the meaning
of that Act) that is engaged in trade or commerce of the kind referred to in
subsection 6(1) of that Act; and
• give advice to NOPSEMA, and contribute to the development and review of, their
policies, practices and strategies for liaising with, and providing information to
persons affected by serious work-related incidents on a facility in the
Commonwealth offshore area, or out of the conduct of a business or undertaking in
the Commonwealth offshore area.
2017. Comcare, AMSA and NOPSEMA are the main Commonwealth WHS regulators.
• Comcare's jurisdiction under the WHS Act extends to the Commonwealth, public
authorities, and non-Commonwealth licensees, which are a small number of large
companies.
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• AMSA is the relevant inspectorate under the OHS(MI) Act and is responsible for,
among other things, ensuring obligations under the OHS(MI) Act are complied with
(section 82 of the OHS(MI) Act).
• NOPSEMA is the regulator of occupational health and safety for persons engaged
in offshore petroleum operations or offshore greenhouse gas storage operations
under the Offshore Petroleum and Greenhouse Gas Storage Act 2006. It also
performs the function of the Offshore Infrastructure Regulator under the Offshore
Energy Infrastructure Act 2021 with WHS inspectorate functions in relation to
offshore infrastructure activities as defined.
Clause 3D: Membership of the Advisory Committee members
2018. This clause would provide that the Advisory Committee consists of 2 Co-Chairs and at
least 3 other members. The number of Committee members could exceed the 5
prescribed under this clause subject to the discretion of the Minister and needs of the
Committee.
2019. The roles of the Co-Chairs would not be provided for in the WHS Act to provide
flexibility and to ensure that the Advisory Committee can grow and adapt over time. It
is envisaged that the first Co-Chair would represent the lived experience members of
the Committee. The second Co-Chair would have skills and experience in facilitating
meetings and could take on administrative tasks within the Committee. The roles would
complement each other.
Clause 3E: Appointment of Advisory Committee Members
2020. Subclauses 3E(1) and 3E(2) would provide that Advisory Committee members are
appointed by the Minister by written instrument, on a part time basis. The instrument
appointing a member to the Advisory Committee is required to specify whether the
member is appointed as the first Co-Chair or second Co-Chair.
2021. Subclauses 3E(3) and 3E(4) deal with the period of appointment for members.
Subclause 3E(3) would specify that a member's initial appointment term must not
exceed 3 years. Subclause 3E(4) would provide that members are eligible for
reappointment but must not hold office for a total of more than 9 years.
2022. Subclause 3E(5) would prescribe eligibility criteria for the appointment of the first
CoChair and other lived experience members. To be eligible for appointment under
subclause 3E(5) the Minister must be satisfied that:
• the person has, or has had, a serious injury or illness that arose out of the conduct of
a business or undertaking; or
• the person has lived experience as a family member or carer of another person who:
o has died, if the person's death arose out of the conduct of a business or
undertaking; or
332
o has, or has had, a serious injury or illness that arose out of the conduct of a
business or undertaking; or
• the person has been affected, directly or indirectly, by a serious work-related
incident suffered by another person.
2023. The note to paragraph 3E(5)(c) specifies that examples of persons who might qualify
for membership under that paragraph are friends and co-workers. It is not intended to
include persons with a professional connection to a serious work-related incident such
as an inspector, lawyer, or union representative.
2024. To be eligible for appointment as first Co-Chair a person would have to meet the
criteria for appointment under subclause 3E(5).
2025. Subclause 3E(6) would set out the criteria for appointment as the second Co-Chair. A
person may be appointed as the second Co-Chair if the Minister is satisfied they have
relevant skills and experience in trauma and group facilitation. This person could also
qualify under the criteria in subclause 3E(5), but does not need to for appointment
under subclause 3E(6).
2026. The second Co-Chair's skill and experience in relation to managing trauma and group
facilitation would be necessary to ensure the effectiveness and functionality of the
Advisory Committee and to help manage the risk of re-traumatisation and vicarious
trauma for the Advisory Committee members and others who engage with the Advisory
Committee.
2027. Subclause 3E(7) would provide a discretionary power for the Minister to appoint an
additional Advisory Committee member with relevant skills and experience in relation
to trauma and grief. This person would not need to meet the eligibility criteria under
subclause 3E(5) and could be appointed only once the Advisory Committee already has
at least 5 members (including both the first and second Co-Chairs). The additional
member would not be intended to provide counselling or personal support to members.
Their role would be to provide another perspective to the Committee's advocacy and
work.
Clause 3F: Invited participants
2028. Subclause 3F(1) would permit either Co-Chair, having consulted the other members of
the Advisory Committee, to invite a person, body or organisation to participate in a
committee meeting. The purpose of this would be to encourage committee members to
engage with external stakeholders with expertise in the matters discussed by the
Advisory Committee to assist in executing its functions. Subclause 3F(6) would
provide that the WHS Regulations may provide for or in relation to persons invited to
participate in a meeting.
2029. Subclause 3F(2) would allow either Co-Chair to terminate the invitation of an invited
participant at any time, including during a meeting.
2030. Subclause 3F(3) would clarify that the participation of an invited participant does not
make them a member of the Advisory Committee.
333
2031. Subclause 3F(4) would provide that an invited participant is entitled to be paid a travel
allowance as prescribed by the WHS Regulations and that they must comply with any
requirements imposed by the WHS Regulations in relation to that entitlement. For
example, it is envisaged that an invited participant would be bound by any
confidentiality requirements applying to members under the WHS Regulations.
Subclause 3F(5) would clarify that regulations made in relation to the travel allowance
referred to in subclause 3F(4) may identify an applicable rate of allowance payable to a
class of office holders under a Remuneration Tribunal determination. The note to
subclause 3F(5) would clarify that the rate of travel allowance could also be determined
in other ways.
Clause 3G: Acting appointments
2032. Subclause 3G(1) would allow the Minister to appoint an Advisory Committee member
(other than the second Co-Chair) to act as the first Co-Chair during a vacancy in their
office or when the first Co-Chair is absent from duty, overseas or unable to perform the
duties of the office.
2033. Subclause 3G(2) would allow the Minister to appoint an Advisory Committee member
(other than the first Co-Chair) or any other person to act as the second Co-Chair during
a vacancy in their office or when the second Co-Chair is absent from duty, overseas or
unable to perform the duties of the office. Subclause 3G(3) would provide that a person
is only eligible for an acting appointment as the second Co-Chair if they meet the
eligibility criteria for that position set out by subclause 3E(6).
2034. Subclause 3G(4) would allow the Minister to appoint a person to act as an Advisory
Committee member (other than a Co-Chair) during a vacancy in a committee member's
office or when the member is absent from duty, overseas or unable to perform the
duties of the office. Subclause 3G(5) would clarify that a person is only eligible for
appointment as an acting Advisory Committee member if they meet the eligibility
criteria for that position set out by subclause 3E(5).
2035. Notes in subclauses 3G(1), (3) and (5) draw attention to sections 33AB and 33A of the
Acts Interpretation Act 1901. Section 33AB has the effect that anything done by or in
relation to a person purporting to act under an appointment (including an acting
appointment) is not invalid just because the appointment was not valid. Section 33A
sets out the general rules that apply where a provision of an Act confers on a person or
body, power to act in a particular office.
Clause 3H: Remuneration and allowances
2036. Subclause 3H(1) would provide that the remuneration and allowances to be paid to
Advisory Committee members is to be determined by the Remuneration Tribunal.
Subclause 3H(2) would provide that if no Remuneration Tribunal determination is in
effect, the WHS Regulations would prescribe the amount to be paid.
334
Clause 3J: Leave of absence
2037. Subclause 3J(1) would provide for the Minister to grant a leave of absence to a Co-
Chair of the Advisory Committee on the terms and conditions the Minister determines.
2038. Subclause 3J(2) would provide that a Co-Chair of the Advisory Committee may grant a
leave of absence to Advisory Committee members on the terms and conditions that a
CoChair determines.
Clause 3K: Disclosure of interests to the Minister
2039. This clause would require any Advisory Committee member to give written notice to
the Minister of all interests, pecuniary or otherwise, that the Advisory Committee
member has or acquires and that conflict, or could conflict, with the proper
performance of the Advisory Committee's functions. This would promote the integrity
of the Advisory Committee and ensure its advice is as independent, impartial, and free
from conflict as possible.
2040. The interest disclosed could be either pecuniary or otherwise in nature - for example, a
member of the Advisory Committee may be involved in, or a member of, another
support group that the Advisory Committee promotes.
Clause 3L: Disclosure of interests to the Advisory Committee
2041. This clause would require committee members to disclose any interest (pecuniary or
otherwise) in a matter that being considered or will be considered, by the Advisory
Committee as soon as possible at an Advisory Committee meeting, and record in the
meeting minutes. The WHS Regulations or the Advisory Committee itself may provide
additional requirements in relation to how interests will be managed.
Clause 3M: Resignation
2042. This clause would provide that an Advisory Committee member may resign their
appointment by providing the Minister a written notice of resignation. This resignation
will take effect on the day it is received by the Minister, or at a later date specified in
the written notice.
Clause 3N: Termination of appointment
2043. This clause would provide for circumstances in which the Minister has discretion to
terminate the appointment of an Advisory Committee member. Grounds for termination
would include misbehaviour, bankruptcy, unauthorised extended leave, or the
member's inability to perform the duties of their office. An Advisory Committee
member's appointment may also be terminated should they fail (without reasonable
excuse) to disclose a relevant interest to the Minister or Advisory Committee under
clause 3K or 3L.
2044. Subclause 3N(3) requires the Minister to terminate a member's appointment if they are
absent, except on leave of absence, from 3 consecutive Advisory Committee meetings.
335
Clause 3P: Other terms and conditions
2045. This clause would provide that, in relation to matters not covered by this Bill, Advisory
Committee members hold office on the terms and conditions that are to be determined
by the Minister.
Clause 3Q: Meetings and procedures
2046. Subclause 3Q(1) would provide a non-exhaustive list of matters which regulations may
be made in relation to. This includes:
• convening meetings;
• quorums;
• selecting an Advisory Committee member to act as a Co-Chair at a meeting in a Co-
Chair's absence;
• resolving questions;
• inviting experts to attend meetings; and
• minute keeping.
2047. Subclause 3Q(2) would specify that a resolution is taken to have been passed at a
meeting if a majority of Advisory Committee members indicate agreement using an
agreed method and all Advisory Committee members were informed of the proposed
resolution (or reasonable efforts had been made to ensure that occurred).
Subclause 3Q(3) clarifies that this method for determining a resolution would only
apply if the Advisory Committee determines that it does and determines the method of
indicating agreement with regard to a matter.
Clause 3R: Administrative support
2048. The Secretary of the Department which administers the WHS Act would be required to
ensure that the Advisory Committee has the necessary administrative and other support
to enable the committee to perform its functions efficiently and effectively.
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SCHEDULE 5--AMENDMENT OF THE COAL MINING INDUSTRY (LONG
SERVICE LEAVE) ADMINISTRATION ACT 1992
Amendments to the Coal Mining Industry (Long Service Leave) Administration Act 1992
2049. Schedule 5 would amend the legislation establishing the Coal LSL Corporation, which
administers the portable long service leave scheme for the black coal mining industry.
2050. As a result of an order made by the Federal Court on 20 November 2023 in proceeding
number NSD 1120/2023, the M&E Division will withdraw from the CFMMEU and
become a new registered organisation registered under the RO Act from 1 December
2023 called the MEU.
Item 1: Subsection 13(4)
2051. Item 1 would amend subsection 13(4) to allow the Minister to appoint 2 Directors to
represent the new MEU. This would transfer existing Board positions from the former
M&E Division to the new MEU.
Item 2: Subsection 13(7)
2052. Item 2 would repeal subsection 13(7), which currently preserves the operation of the
provisions establishing the Board of Directors if the M&E Division changes its name or
merges with another Division of the CFMMEU. Subsection 13(7) is no longer
necessary given existing subsection 13(8) preserves the operation of the provisions
dealing with the Board of Directors if a registered organisation represented on the
Board changes its name, mergers with another organisation or is succeeded by another
organisation. As the MEU will be a registered organisation following the demerger,
existing subsection 13(8) will apply to it in relation to any future changes.
Item 3: Savings provision--appointments of directors
2053. Item 3 is a savings provision. It would preserve the appointments of existing Directors
representing the M&E Division until the expiry of their term.
337
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