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2008 - 2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2009
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace
Relations, the Honourable Julia Gillard MP)
FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2009
OUTLINE
The Fair Work (Transitional Provisions and Consequential Amendments) Bill
2009 (this Bill) is the first of two Bills which make transitional and
consequential provisions in relation to the new federal workplace relations
system set out in the Fair Work Act 2009 (the FW Act).
This Bill:
. repeals the Workplace Relations Act 1996 (WR Act) (other than
Schedules 1 and 10) and renames it the Fair Work (Registered
Organisations) Act 2009 to reflect its remaining content;
. makes transitional provisions to move employers, employees and
organisations from the old WR Act system to the new system;
. includes provisions to ensure continuity and certainty of terms and
conditions of employment for staff transferring from WR Act
institutions to the new Fair Work institutions; and
. makes consequential amendments to Commonwealth legislation that are
essential to the operation of the FW Act (e.g., the creation of the
Fair Work Divisions of the Federal Court and the Federal Magistrates
Court).
The Fair Work (State Referral and Consequential and Other Amendments) Bill
2009 deals with other consequential amendments to Commonwealth legislation
and amendments consequential on State referrals of power.
Transition to new system
Most of the FW Act will commence on a single day by proclamation
(anticipated to be 1 July 2009). However, the provisions relating to the
National Employment Standards (NES), minimum wages and modern awards will
commence on a later day (anticipated to be 1 January 2010).
This Bill makes provision for the operation of the FW Act and the continued
operation of some elements of the WR Act in the bridging period between 1
July 2009 and 1 January 2010, and for the time from 1 January 2010. An
outline of the key features of this Bill follows.
Universal application of the safety net
The NES and minimum safety net wages (e.g., wages in modern awards) will
apply to all employees from 1 January 2010, including those that are
covered by a transitional instrument (in effect, an instrument made before
1 July 2009, or ITEAs made before 31 December 2009), and will prevail over
a transitional instrument where the instrument is detrimental in
comparison.
FWA will have scope to make orders to 'phase in' increases in minimum wages
on application by an employer where it is satisfied that such measures are
necessary to ensure the ongoing viability of a business.
Take-home pay orders
FWA will be able to make take-home pay orders where one or more employees'
take-home pay (as defined) is reduced as a result of award modernisation.
Transitional instruments
Existing WR Act instruments (other than transitional awards and common
rules for excluded employers) will become transitional instruments from 1
July 2009. Transitional instruments will continue to apply to employers,
employees and organisations (where relevant) as if the WR Act had not been
repealed. For all types of collective agreements and unmodernised awards,
these instruments will also apply to new employees of an employer.
As a general rule, the content and interaction rules (including rules
dealing with the interaction of industrial instruments with State and
Territory laws) that applied under the WR Act will continue. In addition,
this Bill provides for:
. processes for variation and termination of transitional instruments,
including giving FWA power to vary instruments to resolve ambiguity
or uncertainty (including in relation to the interaction of the
instrument with the NES), and allowing an employer and an employee
to agree to terminate an individual statutory agreement in some
circumstances on condition that it is replaced by an enterprise
agreement (to enable the employee to participate in collective
bargaining) - with the termination not coming into effect until the
new enterprise agreement that applies to the employee comes into
operation;
. the cessation of unmodernised award-based instruments (including
awards, Australian Pay and Classification Scales (APCSs) and
notional agreements preserving State awards (NAPSAs) when replaced
by a modern award;
. a process for parties to enterprise awards and enterprise NAPSAs to
apply to FWA by the end of 2013 to have their instruments
modernised; and
. sunsetting, at 27 March 2011, instruments that rely on the
conciliation and arbitration power in section 51(xxxv) of the
Constitution (such as pre-reform certified agreements made under
Division 3 of Part VI of the WR Act before 27 March 2006).
Schedule 6 transitional awards and common rules
The rules in Schedule 6 to the WR Act that deal with transitional awards
are preserved, subject to necessary modifications to ensure that the
provisions operate effectively in the new framework. The existing
sunsetting arrangements for these instruments will also be retained
(27 March 2011). The Fair Work (State Referrals and Consequential and Other
Amendments) Bill 2009 contains arrangements for transitional awards and
common rules based on the current Victorian reference of powers and for
transitional awards that apply in Victoria in reliance on the conciliation
and arbitration power.
Bargaining, agreement-making and industrial action
Bargaining for enterprise agreements can take place under the FW Act from 1
July 2009. Before 1 January 2010, enterprise agreements will be assessed
by FWA against the no-disadvantage test using an appropriate reference
instrument (e.g., an unmodernised award).
ITEAs will be able to continue to be made until 31 December 2009, under
saved provisions of the WR Act.
The FW Act will introduce a framework for low paid bargaining. Consistent
with that framework, this Bill will not allow special low-paid workplace
determinations to be made if the employer is or has previously been covered
by a collective agreement-based transitional instrument. An exception to
this rule is if the agreement has ceased to operate and FWA considers it
appropriate in the circumstances to make such a determination.
This Bill will not carry over bargaining or protected industrial action
under the WR Act to bargaining under the FW Act. In effect, bargaining
participants either have to complete their bargaining under the WR Act
prior to 1 July 2009 or commence bargaining for a new enterprise agreement
or industrial action processes under the FW Act. However, the FW Act
includes provisions that require FWA to take into account the history of
the bargaining participants when exercising discretion under the bargaining
and industrial action provisions of the FW Act.
Dispute resolution
FWA will deal with disputes about matters arising under a transitional
instrument as well as the Australian Fair Pay and Conditions Standard
(AFPCS) and minimum entitlements in Part 12 of the WR Act (e.g., notice of
termination and public holidays) until the NES commences on 1 January 2010.
FWA will exercise the same powers that that the Australian Industrial
Relations Commission (AIRC) could have exercised under the WR Act in
relation to the dispute.
Transfer of business
The existing transmission of business rules in the WR Act are preserved in
relation to transmissions of business that occur before commencement of the
FW Act.
The new rules in the FW Act will apply to transfers of business that occur
on or after commencement of the FW Act. The transfer of business
provisions are extended to cover employers and employees covered by
transitional instruments. This means that transitional instruments can
'transfer' to cover a new employer in the same way as instruments made
under the FW Act and FWA's powers will apply in the same way to these
instruments.
General protections, unfair dismissal, right of entry and stand down
The general protections, unfair dismissal, right of entry and stand down
frameworks in the FW Act will commence from 1 July 2009. This Bill ensures
that the provisions of those frameworks that refer to modern awards and
enterprise agreements also pick up transitional instruments. This Bill also
ensures that the general protections provisions pick up the AFPCS and the
continued minimum entitlements in Part 12 of the WR Act during the bridging
period.
Existing right of entry permits and other right of entry instruments issued
under the WR Act will in effect be deemed to be instruments issued under
the FW Act.
Institutions
The functions of the Workplace Ombudsman (WO) will be taken over by the FWO
from 1 July 2009 and the office of the WO will cease to exist. From 1 July
2009, the FWO will also take on the general advisory function currently
performed by the Workplace Authority (WA).
The other agencies which exist under the WR Act will cease to exist at the
following times (subject to change of date by Ministerial declaration):
. The Australian Fair Pay Commission (AFPC) and its Secretariat will
cease to exist on 31 July 2009 - this will allow the AFPC to
complete its final wage review.
. The WA will cease to exist on 31 January 2010 - this will allow it
to assess collective agreements made before 1 July 2009 using the
current no-disadvantage test and ITEAs made until 31 December 2009
under saved provisions of the WR Act.
. The AIRC and the Australian Industrial Registry will cease to exist
on 31 December 2009 - this will allow the AIRC to complete matters
and processes commenced under the WR Act, including award
modernisation and existing unfair dismissal applications.
The Bill contains amendments to ensure continuity and certainty of terms
and conditions of employment of staff transferring from WR Act institutions
to the new Fair Work institutions.
This Bill also makes provision for a review of the first three years of
operation of the new unfair dismissal system by FWA.
This Bill also makes amendments to the Federal Court of Australia Act 1976
and the Federal Magistrates Act 1999 to establish Fair Work Divisions
within those Courts. The new Divisions will operate from 1 July 2009 in
relation to matters arising under this Bill, the WR Act as continued by
this Bill, and the FW Act.
Registered organisations
This Bill makes consequential amendments to Schedules 1 and 10 to the WR
Act and renames the WR Act the Fair Work (Registered Organisations) Act
2009.
This Bill also amends Schedule 1 to the WR Act to give FWA power to make a
new and additional form of representation order to settle potential
demarcation disputes. The orders will be available with respect to disputes
(including threatened, impending or probable disputes) over the eligibility
of unions to represent employees. However, unlike the existing
representation orders available under the WR Act, harm will not need to be
occurring (or likely to occur) to the business of an employer before the
new representation orders can be made by FWA.
This Bill will include new provisions that make it simpler and easier for
State and federal unions to operate across multiple jurisdictions. This
includes extending the transitional registration provisions and providing
for the reciprocal recognition of State and federal unions where the State
union has no federal counterpart and the relevant State's law has been
prescribed in the regulations.
The Bill also includes amendments that ensure that registered organisations
and peak councils can continue to represent themselves and their members in
the Fair Work Divisions of the Federal Court and the Federal Magistrates
Court.
Amendments to the FW Act
This Bill also makes a small number of amendments to the FW Act, including
insertion of an additional object in section 3 to acknowledge the special
circumstances of small and medium-sized businesses.
FINANCIAL IMPACT STATEMENT
Fair Work Australia - implementation of workplace relations legislation
|Expense ($m) |
| |2008-09 |
|AFPCS |Australian Fair Pay and Conditions Standard |
|AIRC |Australian Industrial Relations Commission |
|APCS |Australian Pay and Classification Scale |
|AWA |Australian workplace agreement |
|FW Act |Fair Work Act 2009 |
|FWA |Fair Work Australia |
|FWO |Fair Work Ombudsman |
|ITEA |individual transitional employment agreement |
|NES |National Employment Standards |
|NAPSA |notional agreement preserving State awards |
|this Bill |Fair Work (Transitional Provisions and |
| |Consequential Amendments) Bill 2009 |
|Work Choices|Amendments made by Schedule 1 to the Workplace |
|amendments |Relations Amendment (Work Choices) Act 2005 |
|WR Act |Workplace Relations Act 1996 |
Clause 1 - Short title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. The table in this clause sets out when this Bill's provisions
commence.
Clause 3 - Schedule(s)
3. This clause provides that an Act that is specified in a Schedule is
amended or repealed as set out in that Schedule, and any other item
in a Schedule operates according to its terms.
Clause 4 - Regulations
4. This clause allows the Governor-General to prescribe matters
required or permitted by this Act to be prescribed or that are
necessary or convenient to be prescribed for carrying out or giving
effect to this Bill.
Schedule 1 - Repeals
Workplace Relations Act 1996
Item 1 - Sections 3 to 18
Item 2 - Parts 2 to 23
Item 3 - Schedules 2 to 9
5. These items repeal all of the WR Act except Schedules 1 and 10.
Schedules 1 and 10 will remain part of the WR Act, and the WR Act
will be renamed the Fair Work (Registered Organisations) Act 2009
(see item 3 of Schedule 22 to this Bill).
Schedule 2 - Overarching Schedule about transitional matters
Part 1 - Interpretation of the transitional Schedules
Item 1 - What are the transitional Schedules?
Item 2 - The dictionary
Item 3 - Meaning of WR Act and FW Act
Item 4 - Expressions defined in the WR Act or the FW Act
6. These items are definitional provisions for the remainder of this
Bill.
7. The dictionary in item 2 largely provides pointer definitions to
definitions in the rest of this Bill. Widely-used phrases which are
defined in the dictionary itself are:
. bridging period - which is the period starting on the WR Act repeal
day and ending immediately before the FW (safety net provisions)
commencement day;
. FW (safety net provisions) commencement day - which is the day on
which Parts 2-2 (NES), 2-3 (Modern awards) and 2-6 (Minimum wages)
of the FW Act commence (expected to be 1 January 2010);
. WR Act repeal - which is the commencement of Schedule 1 to this Bill
(Repeals); and
. WR Act repeal day - which is the day on which the WR Act repeal
commences (expected to be 1 July 2009).
8. Subitem 3(1) defines WR Act to mean the WR Act as in force
immediately before the WR Act repeal day. Generally the WR Act is
continued by other provisions of this Bill as it was at the time of
the repeal of (most of) the WR Act.
9. However, this is subject to a contrary intention. A contrary
intention is shown by, for instance, item 11 of this Schedule which
preserves the operation of the WR Act in relation to conduct that
occurred before the WR Act repeal day. It applies the WR Act (for
instance, the unlawful termination or freedom of association
provisions) to conduct (for instance, a termination of employment)
that occurred before the WR Act repeal day, but applies the WR Act
as in force at the time of the termination of employment (which
could be different from the WR Act as in force at the WR Act repeal
day). Item 11 is intended to apply the general principle that
conduct is regulated by the law at the time of the conduct, and
shows a contrary intention to subitem 3(1).
10. Subitem 3(2) gives effect, despite the repeal of the WR Act, to
other provisions of this Bill which provide for the WR Act to
continue to apply after the WR Act repeal day.
11. Subitems 3(2) and 3(5) ensure that references to the WR Act and FW
Act in this Bill encompass regulations made under those Acts.
12. Item 4 ensures that expressions defined in the WR Act or the FW Act
and used in this Bill are given the same meaning as in the WR Act
or the FW Act. If the expression is defined in different ways in
the WR Act and the FW Act, the context is to determine which
meaning is to apply, subject to regulations and to the definitions
in the dictionary.
Item 5 - Provisions that apply repealed provisions of the WR Act
13. This item ensures that provisions of the WR Act which are continued
in operation by this Bill after the WR Act repeal day are continued
in conjunction with any regulations or other instruments made under
the WR Act that are necessary for the effectual operation of the
continued WR Act provisions. This means that, for example, the AIRC
Rules continue in operation for the purposes of AIRC proceedings
which are continued in the AIRC under, for instance, item 11 of
this Schedule.
14. Regulations can be made to vary the effect of this item.
Item 6 - Effect of Part 21 of the WR Act to be taken into account
15. This item continues the effect of the provisions of the WR Act that
were extended to Victoria by Part 21 of the WR Act in reliance on
the reference of power from Victoria to the Commonwealth. This
means, that workplace agreements made in reliance on the reference
of power are continued as transitional instruments under Schedule 3
to this Bill.
16. Regulations can be made to vary the effect of this item.
Part 2 - Regulations about transitional matters
Item 7 - General power for regulations to deal with transitional matters
Item 8 - Regulations relating to matters dealt with in the transitional
Schedules
Item 9 - Limitation on power to make regulations
Item 10 - Other general provisions about regulations
17. These items provide regulation-making powers to make transitional
provisions related to the transition from the WR Act workplace
relations system to the FW Act workplace relations system, and to
modify the transitional provisions in this Bill.
18. Item 9 ensures that any regulations made under items 7 and 8 cannot
change the right of entry regime set out in the FW Act and this
Bill or give inspectors additional compliance powers.
Part 3 - Conduct before WR Act repeal day etc.
Item 11 - Conduct before repeal - WR Act continues to apply
Item 12 - FWA to take over some processes
19. These items provide general rules in relation to the continued
application of the WR Act and the continuation of proceedings
before the AIRC and the Australian Industrial Registry.
20. These general rules are subject to the specific rules set out in
other Schedules to this Bill (see subitems 11(3) and 12(3)). The
specific rules often modify, and sometimes exclude altogether, the
general rules. For instance, Schedule 13 to this Bill contains
provisions which ensure that most industrial action processes in
train at the WR Act repeal day do not continue under the WR Act.
Also, Schedule 8 contains detailed rules, which displace the
general rules, about the continued application of the WR Act to
certain agreements made under the WR Act before the WR Act repeal
day. In effect, the general rules in items 11 and 12 apply as
default rules where the other Schedules to this Bill do not apply.
21. Item 11 provides a general rule that conduct that occurred before
the WR Act repeal day remains subject to the WR Act, and a general
rule that variations or terminations of WR Act instruments
initiated before the WR Act repeal day remain subject to the WR
Act.
22. Subitem 11(1) continues the WR Act (including all substantive,
procedural and jurisdictional provisions and associated instruments
and orders) for pre-repeal conduct which was subject to court
enforcement (e.g., breaches of the AFPCS or an industrial
instrument and breaches of the freedom of association, unlawful
termination and offence provisions).
23. Subitem 11(1) also continues the WR Act (including all substantive,
procedural and jurisdictional provisions and associated instruments
and orders) for conduct that occurred pre-repeal and which is
subject to processes in the AIRC or the Australian Industrial
Registry. For example, it continues the unfair dismissal provisions
in relation to a dismissal that occurred before the WR Act repeal
day, and dispute resolution provisions where the dispute arose
before the WR Act repeal day. It continues the jurisdiction, powers
and rules of the AIRC to deal with the dismissal or dispute (see
also item 5 of this Schedule) and any orders made by the AIRC
before the WR Act repeal day.
24. Subitem 11(1A) makes separate provision to continue the WR Act in
relation to the variation or termination of a WR Act instrument
where the variation or termination process was started before the
WR Act repeal day. A WR Act instrument is one of the instruments
listed in subitem 2(2) of Schedule 3 (such as an award, workplace
agreement or pre-reform certified agreement), all of which become
transitional instruments under Part 2 of Schedule 3 on the WR Act
repeal day. As transitional instruments, they are subject to the
variation and termination rules in Part 2 of Schedule 3. However,
subitem (1A) ensures that, if a variation or termination process
had been started before the WR Act repeal day, the WR Act rules
(rather than the Schedule 3 rules) will apply to the variation or
termination.
25. For this purpose, a process will have been started where an
application has been made to, or a notice lodged with, the AIRC or
the Workplace Authority, or some other step required by the statute
has been taken (such as gaining approval for the termination of a
pre-reform certified agreement from a valid majority of employees
under section 170MG of the pre-reform WR Act as continued by
paragraph 2(1)(k) of Schedule 7 to the WR Act).
26. Subitem 11(2) confirms that orders made under the WR Act are
continued under subitems 11(1) and (1A).
27. Where an application or process (other than an interim application
or process) has not been instituted in the AIRC or the Australian
Industrial Registry before the WR Act repeal day, item 12 provides
that the WR Act provisions continued by item 11 are to be
administered by FWA or the General Manager of FWA, rather than by
the AIRC or the Australian Industrial Registry.
28. Thus, for example, an unfair dismissal application made on or after
the WR Act repeal day in relation to a dismissal that occurred
before the WR Act repeal day is to be made and determined under the
WR Act provisions (because of item 11) but is to be lodged with FWA
not the AIRC. However, an application made before the WR Act repeal
day is to continue before the AIRC.
29. Also, if a process for varying or terminating a WR Act instrument
involves the AIRC, item 12 operates to require that any new (non-
interim) application relating to the variation or termination
(e.g., to approve or order the termination of a pre-reform
certified agreement) be made to FWA. However, if an application
relating to the variation or termination has been made to the AIRC
before the WR Act repeal day, the AIRC will continue to perform its
functions under the continued WR Act. (If a variation or
termination process involves the Workplace Authority, item 12 does
not apply and the Workplace Authority will perform its functions
under the continued WR Act.)
30. Item 12 ensures that FWA will deal with matters newly commenced on
or after the WR Act repeal day and will not take over matters
partly dealt with by the AIRC or the Australian Industrial Registry
before that day. This is because item12 operates only on an
application or process which initiates a substantive matter in the
AIRC or the Australian Industrial Registry and not on applications
made or processes that occur during the course of the conduct of
the matter (such as procedural applications and applications for
interim orders). The latter applications and processes are labelled
interim applications and processes, and are defined in subitem
12(4) of Schedule 2.
Illustrative example
An employee is dismissed on 15 June 2009 and lodges an unfair dismissal
application with the AIRC on 25 June 2009. After an unsuccessful
conciliation conference on 2 July 2009, the employer elects to challenge
the jurisdiction of the AIRC to deal with the matter because the employer
alleges that the employee was a fixed-term employee. The motion to dismiss
the application for want of jurisdiction would be made to the AIRC because
it is in the nature of an interim application.
Item 13 - Regulations - conduct before repeal
31. This item provides a regulation-making power which authorises
regulations to be made to adjust the general rule in item 11.
Schedule 3 - Continued existence of awards, workplace agreements and
certain other WR Act instruments
32. This Schedule contains provisions dealing with:
. the continued operation of certain industrial instruments made under
or given effect to by the WR Act as transitional instruments (Parts
2 and 3 of this Schedule);
. the continued operation of the AFPCS (Part 4 of this Schedule);
. interaction between transitional instruments and the NES, FW Act
instruments and other provisions of the FW Act (Part 5 of this
Schedule); and
. preservation of redundancy provisions (Part 6 of this Schedule).
Part 1 - Preliminary
Item 1 - Meanings of employee and employer
33. In this Schedule, the terms employer and employee have their
ordinary meanings. A provision in this Schedule could relate to
national system employers and their employees, or to other
employers and their employees.
. For example, a transitional instrument that is a workplace agreement
will cover or apply to (as the case may be) a national system
employer and a national system employee or employees.
34. However, some pre-reform certified agreements ('Division 3'
agreements currently preserved by Schedule 7 to the WR Act) will
only cover or apply to employers that are outside the definition of
national system employer and their employees.
Part 2 - Continued existence of WR Act instruments as transitional
instruments
35. This Part contains general rules for transitional instruments. In
particular, it sets out:
. what are transitional instruments, including when an instrument
becomes a transitional instrument;
. who the instrument covers or applies to; and
. content of the instrument and interaction rules with other
instruments and provisions of this Bill (including saved provisions
of the WR Act).
Item 2 - WR Act instruments that continue in existence as transitional
instruments
36. Subitem 2(1) provides for the continued operation of WR Act
instruments following the repeal of the WR Act.
37. Subitem 2(2) sets out which WR Act instruments are preserved as
transitional instruments from the WR Act repeal day. The
significance of an instrument being a transitional instrument is
that it is subject to the rules set out in this Bill regarding
operation, content, interaction, termination and other matters. A
legislative note (Note 4) mentions that transitional awards are not
transitional instruments for the purposes of this Schedule.
Instead, transitional awards are separately preserved in Schedule
20.
38. Subitem 2(3) provides for the point in time when a WR Act
instrument becomes a transitional instrument. WR Act instruments in
operation immediately before the WR Act repeal day become
transitional instruments on that day. In other situations, a WR Act
instrument does not become a transitional instrument until after
the WR Act repeal day. For example:
. a collective workplace agreement that is lodged before 1 July 2009
but not yet assessed, will become a transitional instrument after it
is approved by the Workplace Authority Director; and
. a workplace determination made under the WR Act might not become a
transitional instrument until after the WR Act repeal day because a
later day is specified in the determination itself.
39. ITEAs made during the bridging period will become transitional
instruments once they are made (see Division 7 of Part 2 of
Schedule 8).
40. Subitem 2(5) further categorises transitional instruments according
to whether they are award-based transitional instruments or
agreement-based transitional instruments.
Item 3 - the employees, employers etc. who are covered by a transitional
instrument and to whom it applies
41. The FW Act adopts the concepts of covers and applies in relation to
modern awards and enterprise agreements. These concepts are also
used in relation to transitional instruments in item 3, and
generally have the effect of preserving transitional instruments in
relation to those employers, employees and other persons (i.e.,
registered organisations) who were bound by the instrument
immediately before the WR Act repeal day as well as new employees
engaged by those employers after that day (in the case of awards
and collective agreement-based transitional instruments). A
transitional instrument only applies to those employees, employers
and others persons who are required to comply with, or can enforce,
the terms of the transitional instrument (see subitem 3(2)).
However, from the FW (safety net provisions) commencement day, an
award-based transitional instrument will not apply to an employee
(or to an employer, or an employee organisation, in relation to the
employee) when the employee is a high income employee (see
section 329 of the FW Act).
Item 4 - Transitional instruments continue to be subject to the same
instrument content rules
42. Item 4 preserves most of the existing content rules for
transitional instruments notwithstanding the repeal of the WR Act.
For certain agreement-based transitional instruments this includes
rules concerning prohibited content (e.g., paragraph 356(1)(a) and
section 358 of the WR Act which provide that prohibited content in
a workplace agreement is void). For award-
based transitional instruments, this item preserves the rules in
relation to allowable and non-allowable award matters (e.g.,
section 514 of the WR Act which provides that awards are taken to
include a term about the model dispute resolution process set out
in Part 13 of the WR Act and that a term providing for any other
dispute settling process or procedure is taken not to be an
allowable award matter).
43. Most of the content rules for transitional instruments are in the
WR Act.
44. A legislative note mentions that certain instrument content rules
relating to the standing down of employees do not continue to apply
in relation to transitional instruments (see item 3 of Schedule
15).
Item 5 - Transitional instruments continue to be subject to the same
instrument interaction rules
45. Subitem 5(1) preserves the existing interaction rules for the
different types of transitional instruments. These rules preserve,
for example, the ability for one type of transitional instrument to
operate again when another transitional instrument is terminated
(see subparagraphs 5(2)(a)(ii) and (b)(ii)). For example:
. section 349 of the WR Act which deals with the effect of an award
while a workplace agreement in operation; and
. clause 38A of Schedule 8 to the WR Act which deals with the
operation of NAPSAs.
46. Another example of an instrument interaction rule that is continued
in effect by this item is clause 2 of Schedule 7 to the WR Act
which preserves section 170LY of the WR Act as in force before the
commencement of the Work Choices amendments and provides that a pre-
reform certified agreement prevails over an award to the extent of
any inconsistency.
47. This item does not apply to the interaction between a transitional
instrument and an instrument made under the FW Act. These rules
are set out in Division 2 of Part 5 of this Schedule.
Item 5A - Transitional instruments continue to be subject to the same State
and Territory interaction rules
48. Subitem 5A(1) deals with the rules about the interaction of
industrial instruments with State and Territory laws.
49. The WR Act includes rules about the interaction of industrial
instruments with State and Territory laws. For example, subsection
17(1) of the WR Act provides that workplace agreements and awards
prevail over State and Territory laws and State industrial
instruments to the extent of any inconsistency. However, subsection
17(2) of the WR Act provides that workplace agreements and awards
have effect subject to State and Territory laws dealing with
matters such as occupational health and safety. (Similar rules for
pre-reform certified agreements are set out in section 170LZ of the
pre-reform WR Act, as preserved by paragraph 2(1)(g) of Schedule 7
to the WR Act.)
50. This item preserves such rules, as they applied immediately before
the WR Act repeal day, in relation to instruments that become
transitional instruments.
51. This item also inserts a note to inform the reader that most of the
State and Territory interaction rules were in the WR Act. The
reference to the WR Act includes the WR Regulations, such as
regulations 1.5 and 1.6 of Chapter 2 of the WR Regulations.
52. This item does not apply to the interaction between a transitional
instrument and an instrument made under the FW Act. These rules
are set out in Division 2 of Part 5 of this Schedule.
Item 6 - References in transitional instruments to the Australian
Industrial Relations Commission etc.
53. Where a transitional instrument confers a function or power on the
AIRC or the Australian Industrial Registry, item 6 provides for FWA
to assume these functions from the WR Act repeal day. However, this
item cannot confer additional functions on FWA that are not
provided for in this Bill or the FW Act. For example, FWA can only
deal with a dispute under a transitional instrument because
Schedule 19 of this Bill (which deals with dispute resolution)
confers this function on FWA.
Item 7 - No loss of accrued rights or liabilities when transitional
instrument terminates or ceases to apply
54. This item preserves accrued rights, liabilities and investigations
on foot when a transitional instrument terminates or ceases to
apply to an employee (e.g., when it is replaced by an enterprise
agreement made under the FW Act).
Item 8 - Certain transitional instruments displace certain Commonwealth
laws
55. This item provides for certain transitional instruments to displace
certain Commonwealth laws. The transitional instruments listed in
subitem 8(1) may, to the extent of any inconsistency, displace
prescribed conditions of employment contained in Commonwealth laws
that are prescribed in the regulations.
56. Subitem 8(2) sets out the definitions of Commonwealth law and
prescribed conditions for the purposes of this item.
57. Subitem 8(3) is intended to preserve the regulations made under
section 350 of the WR Act or that continue to apply under subclause
2(2) or 17(2) of Schedule 7 to the WR Act.
Part 3 - Variation and termination of transitional instruments
Item 9 - Transitional instruments can only be varied or terminated in
limited circumstances
58. This item sets out the limited circumstances in which a
transitional instrument can be varied or terminated. It includes
cross references to other Schedules where the mechanism for
variation or termination is not included in this Schedule. For
example, a transitional instrument can be varied under Schedule 11
which deals with transfers of business.
Item 10 - All kinds of transitional instrument: variation to remove
ambiguities etc.
59. Item 10 provides that transitional instruments can be varied to:
. resolve ambiguity or uncertainty in the instrument;
. resolve an uncertainty or difficulty relating to the interaction
between the instrument and a modern award (e.g., a pre-reform
certified agreement will interact with a modern award where a modern
award replaces an unmodernised award); or
. remove or vary provisions that are inconsistent with the general
protections framework in Part 3-1 of the FW Act.
60. A legislative note makes reference to item 26 of this Schedule
which makes provision for transitional instruments to be varied to
resolve an uncertainty or difficulty relating to the interaction
between the instrument and the NES.
61. This item also provides that variations will operate from a day
specified in the determination, and that variations may have
retrospective effect.
Item 11 - All kinds of transitional instrument: variation on referral by
HREOC
62. This item requires FWA to review a transitional instrument referred
to it by the Human Rights and Equal Opportunity Commission in
accordance with section 46PW of the Human Rights and Equal
Opportunity Commission Act 1986 (which deals with discriminatory
industrial instruments).
63. FWA must make a determination varying the transitional instrument
if it is considered that the instrument requires a person to do an
act that would be unlawful under Part II of the Sex Discrimination
Act 1984 (but for the fact it was done in direct compliance with
the transitional instrument).
Item 12 - Awards: continued application of WR Act provisions about
variation and revocation
64. The effect of this item is to provide that, in addition to rules
about variation and termination that apply to all transitional
instruments, an award can also be:
. varied to maintain minimum safety net entitlements;
. varied to bind additional employers, employees or organisations; or
. revoked where it is obsolete or no longer capable of operating.
65. However, an award cannot be varied or revoked under this item after
the end of the bridging period, except:
. to maintain minimum safety net entitlements; or
. as a result of FWA finalising a matter on foot before the end of the
bridging period.
Item 13 - Pre-reform certified agreements: continued application of WR Act
provisions about variation
Item 14 - Preserved collective State agreements: continued application of
WR Act provisions about variation
66. These items provide that during the bridging period, pre-reform
certified agreements and preserved collective State agreements can
continue to be varied or extended under the relevant preserved WR
Act rules upon application to FWA. Applications cannot be made
after the end of the bridging period.
Item 15 - Collective agreement-based transitional instruments: termination
by agreement
Item 16 - Collective agreement-based transitional instruments: termination
by FWA
67. These items provide for collective agreement-
based transitional instruments to be terminated either by agreement
or by FWA.
68. Item 15 provides that a collective agreement-
based transitional instrument can be terminated under Subdivision C
of Division 7 of Part 2-4 of the FW Act as if the instrument were
an enterprise agreement. The employer(s) and employees covered by
the instrument may jointly agree to terminate it. Any termination
needs to be approved by FWA before coming into operation (see
sections 223 and 224 of the FW Act).
69. Item 16 provides that a collective agreement-
based transitional instrument can be terminated under Subdivision D
of Division 7 of Part 2-4 of the FW Act as if the instrument were
an enterprise agreement. An employer, employee or employee
organisation covered by the instrument may apply to FWA, after the
instrument's nominal expiry date, for the termination of the
instrument. FWA must terminate the instrument if it is satisfied
that it is not contrary to the public interest to do so and that it
is appropriate to terminate the agreement taking into account all
the circumstances (see sections 226 of the FW Act).
Item 17 - Individual agreement-based transitional instruments: termination
by agreement
Item 18 - Individual agreement-based transitional instruments: termination
conditional on enterprise agreement
Item 19 - Individual agreement-based transitional instruments: unilateral
termination with FWA's approval
70. These items provide uniform rules for the termination of all
individual agreement-based transitional instruments. Under the WR
Act, different termination rules apply to ITEAs, preserved
individual State agreements, AWAs and pre-reform AWAs. It is
intended that these rules will make it simpler for employers and
employees who wish to terminate an individual agreement-
based transitional instrument.
71. Before a termination can operate under any of these items, FWA must
be satisfied that certain formal requirements have been met. As
with the approval of enterprise agreements (and variations of
enterprise agreements), it is intended that FWA will usually act
speedily and informally to approve terminations. FWA may, but need
not, hold a hearing.
72. Item 17 provides for the termination of individual agreement-based
transitional instruments by written agreement between the employer
and employee covered by the instrument. Before it can operate, a
termination agreement would need to be approved by FWA. FWA must
approve a termination agreement if it is satisfied that the formal
requirements for the termination agreement have been met and there
are no other reasonable grounds for believing that the employee has
not agreed to the termination.
73. Item 18 provides for the making of a conditional termination by
agreement between an employer and an employee. Conditional
terminations are intended to facilitate the orderly transition of
employees covered by individual agreement-
based transitional instruments to an enterprise agreement. A
conditional termination has the effect of terminating an individual
agreement-based transitional instrument if an enterprise agreement
that covers the employer and employee comes into operation. An
employee who is covered by a conditional termination can fully
participate in bargaining for an enterprise agreement whether or
not the transitional instrument to which the conditional
termination relates has passed its nominal expiry date (see item 2
in Schedule 13 which deals with bargaining and industrial action).
74. Where the transitional instrument has not passed its nominal expiry
date, a conditional termination must be signed by both the employer
and employee. Where the transitional instrument has passed its
nominal expiry date, either the employer or the employee can
unilaterally make a conditional termination.
75. When an enterprise agreement is made that covers an employee who is
also covered by a conditional termination, the conditional
termination must accompany any application to FWA for approval of
the enterprise agreement. Provided the formal requirements relating
to the conditional termination have been met, the transitional
instrument then terminates when the enterprise agreement comes into
operation.
76. Item 19 provides for individual agreement-
based transitional instruments to be terminated unilaterally by
either the employer or employee covered by the instrument provided
the instrument has passed its nominal expiry date. FWA must approve
a termination before it can have effect.
77. The employer or employee wishing to terminate the agreement must:
. make a written declaration identifying the instrument and stating
that the employer or employee wishes to terminate it;
. at least 14 days before applying to FWA for the approval of the
termination, provide a notice to the other person setting out
certain matters; and
. having provided the notice as required, apply to FWA for approval of
the termination.
78. FWA must approve the termination if it is satisfied that the
transitional instrument applies to the employer and employee and
the formal requirements have been met. If the termination is
approved, the transitional instrument terminates on the 90th day
after the day on which FWA approves the termination.
Item 20 - Sunsetting rules for various transitional instruments
79. Subitem 20(1) provides for NAPSAs (other than a notional agreement
that is an enterprise instrument) to terminate on the 4th
anniversary of the FW (safety net provisions) commencement day or
on a later date prescribed by the regulations.
80. The following kinds of transitional instruments that apply to non-
national system employers will terminate on the earlier of 27 March
2011 or the day when the circumstances provided for in the relevant
subitems occur:
. Division 3 pre-reform certified agreements;
. old IR agreements; and
. section 170MX awards.
81. However, these sunsetting rules do not apply if the relevant
employer becomes a national system employer before 27 March 2011.
Item 21 - Effect of termination
82. Once a transitional instrument terminates, it ceases to cover (and
can never again cover) any employees, employers or other persons
(but see Part 6 of this Schedule in relation to the preservation of
redundancy provisions in some circumstances where agreement-based
transitional instruments terminate).
Part 4 - Transitional instruments and the Australian Fair Pay and
Conditions Standard
83. Schedule 4 provides for the ongoing operation of non-wage minimum
entitlements under the AFPCS and some other provisions of the WR
Act during the bridging period (at which point the NES commences
operation).
84. Schedule 9 provides for the ongoing operation of minimum wage
provisions of the AFPCS.
85. Part 4 of this Schedule deals with the continued operation of AFPCS
interaction rules.
Item 22 - Same AFPCS interaction rules continue to apply
86. This item provides for the continued operation of existing AFPCS
interaction rules during the bridging period.
87. However, at the end of the bridging period, interaction rules that
provide for an instrument to prevail over the AFPCS cease to
operate. This means that provisions of the WR Act that ensured
that the AFPCS did not generally apply to agreements made before
commencement of the Work Choices amendments cease to operate at the
end of the bridging period.
88. In practice this only affects the interaction of wage rates in such
an agreement and wage rates provided by APCSs. This is because,
under Schedule 4 (see item 2), the non-wage entitlements in the
AFPCS also cease to operate at the end of the bridging period.
89. Where an APCS provides a higher rate of pay than that provided by
such an agreement, the APCS rate will prevail. Item 14 of Schedule
9 allows an employer subject to wage increases as a result of this
provision to apply to FWA for an order phasing in wage increases.
90. Note: The rules that deal with the interaction between the AFPCS
and enterprise agreements during the bridging period are provided
for in item 27 of Schedule 7.
Part 5 - Transitional instruments and the FW Act
Division 1 - Interaction between transitional instruments and the National
Employment Standards
Item 23 - The no detriment rule
91. This item provides that a term of a transitional instrument has no
effect to the extent that it is detrimental to an employee, in any
respect, when compared to an entitlement of the employee under the
NES (subitem 23(1)).
92. This provision does not have practical operation during the
bridging period, as the NES commences operation on the FW (safety
net provisions) commencement day.
93. Subitem 23(1) is not intended to affect a term of a transitional
instrument that is permitted by a provision of the NES as it has
effect under subitem 24(2). This means that terms in transitional
instruments about matters such as taking and cashing out of annual
leave and substitution of public holidays may continue to operate,
subject to the requirements of the NES.
94. Subitem 23(3) allows regulations to be made to assist in
determining whether terms of a transitional instrument are
detrimental to an employee, when compared to the NES.
95. The item ensures that, when the NES commences, an employee to whom
a transitional instrument applies retains the benefit of comparable
and more favourable terms and conditions in the transitional
instrument.
96. The no detriment test applies on a 'line by line' basis. That is,
the NES entitlement will continue to apply and prevail over the
corresponding entitlement in the transitional instrument if the
term or entitlement in the transitional instrument is detrimental
to an employee, in any respect, in comparison to the NES. This
could mean, for example, that terms in a transitional instrument
about the amount of annual leave that an employee is entitled to,
and the amount the employee is entitled to be paid while on leave,
might continue to operate, but subject to more favourable accrual
rules in the NES.
97. Item 26 allows FWA to vary transitional instruments to resolve
difficulties arising from the interaction of the NES with
transitional instruments.
Illustrative example
Under the pre-reform certified agreement that applies to her employment,
Fatima is entitled to six weeks' paid annual leave per year of service with
the leave to be paid at Fatima's ordinary rate of pay (including overtime
and allowances). Both the amount of leave and payment provisions in the
agreement would continue to operate as they are more beneficial
entitlements than the corresponding entitlements in the annual leave NES.
Item 24 - Provisions of the NES that allow instruments to contain
particular kinds of terms
98. This item ensures that certain provisions of the NES have effect as
if a reference to a modern award or enterprise agreement included a
reference to a transitional instrument. The relevant provisions of
the NES are identified in paragraphs (a) to (h) of subitem (1).
99. The intention of this item is to ensure the continued application,
subject to the no detriment test, of terms in a transitional
instrument that provide for matters that are similar to these NES
provisions.
100. Subitem 24(2) makes specific provision for how the no detriment
rule works in relation to cashing out of annual leave and
personal/carer's leave. Sections 93 and 101 of the FW Act enable
cashing out, subject to certain conditions (e.g., retention by the
employee of a minimum leave balance after cashing out). Where a
transitional instrument includes a term that provides for cashing
out of annual leave or personal/carer's leave, subitem 24(2)
ensures that the term is taken to include the additional
protections in the FW Act.
Item 25 - Shiftworker annual leave entitlement
101. This item ensures that where an employee is a shiftworker as
defined in section 228 of the repealed WR Act, and employed under a
transitional instrument, they are entitled to the shiftworker
annual leave entitlement provided under section 87 of the FW Act
(which provides five weeks of annual leave for shiftworkers, as
defined). This maintains the existing level of entitlement for
such employees.
102. Subitem 25(2) provides that this item has effect subject to
subsection 87(4) of the FW Act, which prevents an employee
qualifying for the shiftworker annual leave entitlement if they are
in a class of employees prescribed by the regulations as not being
qualified for that entitlement.
Item 26 - Resolving difficulties about application of this Division
103. This item enables a person covered by a transitional instrument to
apply to FWA to resolve any difficulties about the application of
the rules about the interaction between transitional instruments
and the NES set out in this Division.
104. Under this item, FWA may vary the instrument to resolve uncertainty
or difficulty relating to the interaction between the instrument
and the NES, or to make the instrument operate effectively with the
NES.
105. Any variation of the instrument operates from the day specified in
the determination (which may be a day before the determination is
made).
Item 27 - Division does not affect transitional instruments before NES
commencement
106. This item makes it clear that this Division (including a
determination made under item 26) does not affect the operation of
a transitional instrument at any time before the FW (safety net
provisions) commencement day.
Division 2 - Interaction between transitional instruments and FW Act modern
awards, enterprise agreements and workplace determinations
Item 28 - Modern awards and agreement-based transitional instruments
107. Subitem 28(1) provides that a modern award does not apply where a
workplace agreement, workplace determination, preserved state
agreement, AWA or pre-reform AWA applies. This preserves the
existing interaction rules between these types of instruments and
unmodernised awards. This means that the rights and obligations of
employers and employees will continue to come from these
instruments.
108. However, a legislative note (Note 1) makes it clear that a modern
award can still cover a relevant employee while these agreement-
based transitional instruments continue to apply (see subitem
28(1)). A modern award can cover an employee and employer without
it applying to the employee and employer. Where a modern award
covers but does not apply to particular persons, the rights and
obligations for those persons will not come from the modern award.
109. A further legislative note (Note 2) makes it clear that this
subitem is subject to item 13 of Schedule 9 (which requires that
the base rate of pay under an agreement-based transitional
instrument must not be less than the relevant modern award rate).
110. Subitem 28(2) provides that a modern award can apply at the same
time as a pre-reform certified agreement, an old IR agreement or a
section 170MX award. However, these agreement-
based transitional instruments prevail over the modern award, to
the extent of any inconsistency. A legislative note makes it clear
that this subitem is subject to item 13 of Schedule 9 (which
requires that the base rate of pay under an agreement-
based transitional instrument must not be less than the relevant
modern award rate).
Item 28A - Terms of modern awards about outworker conditions continue to
apply
111. Subitem 28(1) provides that where an agreement-based transitional
instrument applies to an employee, a modern award that covers the
employee does not apply.
112. Item 28A creates an exception to this rule to ensure that the
existing special rule governing agreements that apply to outworkers
is maintained.
1. Item 28A qualifies item 28 and ensures that, despite item 28 and any
terms of an agreement-based transitional instrument that are
detrimental to the employee in any respect when compared with the
terms of the modern award, outworker terms will continue to apply to
an employee, an employer and each employee organisation to which the
modern award applies.
Item 29 - Modern awards and award-based transitional instruments
113. Subitem 29(1) provides that if a modern award (other than the
miscellaneous modern award) that covers an employee, or an employer
or other person in relation to the employee, comes into operation,
then an award-based transitional instrument ceases to cover (and
can never again cover) the employee, or the employer or other
person in relation to the employee. This ensures that where a
modern award commences operation in relation to particular persons,
the award-based instruments that the modern award is intended to
replace cease to cover those persons. This item does not apply in
relation to the miscellaneous modern award, as the miscellaneous
modern award is not intended to replace award-
based transitional instruments until the award modernisation and
enterprise instrument modernisation processes have been completed.
However, once the modernisation of awards and enterprise
instruments is completed, any remaining award-
based transitional instruments will be revoked by FWA.
114. Subitem 29(2) provides that while an award-
based transitional instrument that covers an employee, or an
employer or other person in relation to the employee, is in
operation, the miscellaneous modern award does not cover the
employee, or the employer or other person in relation to the
employee. This ensures that award-based transitional instruments
are not replaced by the miscellaneous modern award during the award
modernisation and enterprise instrument modernisation processes.
115. The effect of subitems 29(3)-(5) is to provide that if a modern
award containing outworker terms that covers an outworker entity
comes into operation then outworker terms in an award-
based transitional instrument cease to cover (and can never again
cover) the outworker entity.
Item 30 - FW Act enterprise agreements and workplace determinations, and
agreement-based transitional instruments
116. Subitem 30(1) provides that FW Act enterprise agreements or
workplace determinations do not apply while an individual agreement-
based transitional instrument (e.g., a pre-reform AWA, ITEA or AWA)
applies.
117. Subitem 30(2) provides that where an enterprise agreement or
workplace determination made under the FW Act starts to apply, then
a collective agreement-based transitional instrument (e.g., a
workplace agreement, pre-reform certified agreement or preserved
collective State agreement) ceases to cover the relevant persons. A
legislative note (Note 1) makes it clear that a collective
agreement-based transitional instrument can be replaced at any time
with an enterprise agreement, regardless of whether the
transitional instrument has passed its nominal expiry date.
Item 31 - FW Act enterprise agreements and workplace determinations, and
award-based transitional instruments
118. This item provides that where an enterprise agreement or workplace
determination made under the FW Act applies to an employee, or an
employer or other person in relation to the employee, an award-
based transitional instrument ceases to apply but can continue to
cover the employee. However, the award-
based transitional instrument can again start to apply to the
employee, and the employer or other person in relation to the
employee, if the enterprise agreement or workplace determination
made under the FW Act ceases to apply to the employee.
Item 31A - Designated outworker terms of award-based transitional
instrument continue to apply
119. Item 31 provides that an award-based transitional instrument will
cease to apply to an employee, employer or other person in relation
to the employee where an enterprise agreement or a workplace
determination applies.
120. Item 31A creates an exception in relation to designated outworker
terms in an award-based transitional instrument. Item 31A ensures
that designated outworker terms in an award-based transitional
instrument continue to apply even where an enterprise agreement or
a workplace determination applies.
121. For the purposes of item 31A, the definition of designated
outworker terms in section 12 of the FW Act applies to award-based
transitional instruments.
122. This provision reflects the specific interaction rule contained in
the FW Act where an enterprise agreement contains designated
outworker terms (section 57A of the FW Act).
Division 3 - Other general provisions about how the FW Act applies in
relation to transitional instruments
Item 32 - Employee not award/agreement free if transitional instrument
applies
123. Item 32 provides that if a transitional instrument applies to an
employee, the employee is not an award/agreement-free employee for
the purposes of the FW Act.
124. The NES includes a range of provisions for award/agreement-free
employees dealing with matters that, for employees to whom a modern
award or enterprise agreement applies, are able to be dealt with in
the modern award or enterprise agreement. These provisions are not
required for employees to whom a transitional instrument applies as
the transitional instrument is able to deal with these matters. The
manner in which a transitional instrument interacts with the NES is
set out in Division 1 of this Part (see items 23-27 of this
Schedule).
125. This item also includes a regulation making power to set, for
employees to whom a transitional instrument applies, the base rate
of pay and full rate of pay either generally or for the purposes of
entitlements under the NES and may also prescribe whether such an
employee is a pieceworker for the purposes of the FW Act. This
power is necessary to ensure that the provisions of the NES, and
other provisions of the FW Act such as section 206, which rely on
these concepts operate effectively in all cases - for example,
where an employee is a commission only pieceworker, they will not
have a base rate of pay (because, as defined, 'base rate of pay'
does not include commissions or incentive-based payments).
Item 33 - Employee's ordinary hours of work
126. The concept of an employee's ordinary hours of work is central to
the accrual and payment rules for a number of entitlements under
the NES. Therefore, it is essential that rules are in place to
ensure an employee's ordinary hours of work can be identified.
127. Item 33 provides that where a transitional instrument applies to an
employee's employment, that employee's ordinary hours of work for
the purposes of the FW Act are determined by the transitional
instrument.
128. Where there are no ordinary hours specified in the transitional
instrument, the ordinary hours of work are the hours agreed between
the employee and their employer.
129. Where there is no such agreement and the employee's ordinary hours
are not specified in the transitional instrument, a full-time
employee's ordinary hours are 38 hours a week and the ordinary
hours for an employee who is not a full-time employee are either 38
hours a week or their usual weekly hours (whichever is lower).
130. If the transitional instrument does not specify an employee's
ordinary hours of work and the agreed hours for an employee who is
not a full-time employee are less than the employee's usual hours,
the ordinary hours of work for that employee shall be the lesser of
38 hours or the employee's usual weekly hours of work.
131. For an employee who is not a full-time employee and who does not
have usual weekly hours of work, the regulations can prescribe, or
provide for the determination of, hours that are taken to be the
employee's usual weekly hours of work.
Item 34 - Payment of wages
132. This item provides that Division 2 of Part 2-9 of the FW Act (which
deals with payment of wages) applies as though the term enterprise
agreement included a reference to an agreement-
based transitional instrument and the term modern award included a
reference to an award-based transitional instrument. This enables,
for example, an agreement-based transitional instrument or an award-
based transitional instrument to specify a method of payment of
wages (see paragraph 323(2)(d) of the FW Act) or to authorise
permitted deductions from wages (see paragraphs 324(b) and 324(c)
of the FW Act).
Item 35 - Guarantee of annual earnings
133. Subsection 47(2) of the FW Act provides that a modern award does
not apply to an employee who has guaranteed annual earnings that
are more than the high income threshold (defined in Division 3 of
Part 2-9 of the FW Act).
134. Subitem 6(2) of Schedule 9 and subitem 3(3) of this Schedule make
similar provision in relation to transitional APCSs and
transitional award-based instruments to ensure that a transitional
APCS and a transitional award-based instrument do not operate in
relation to an employee (or to an employer, or an employee
organisation, in relation to the employee) while the employee is a
high income employee.
135. Item 35 provides that Division 3 of Part 2-9 of the FW Act
(guarantee of annual earnings) applies as if references in that
Division to a modern award include a reference to an award-
based transitional instrument and a transitional APCS and
references to an enterprise agreement include a reference to an
agreement-based transitional instrument.
136. These provisions will operate from proclamation of the commencement
of Division 3 of Part 2-9 of the FW Act.
Item 36 - Application of unfair dismissal provisions
137. This item ensures that a person will be protected from unfair
dismissal under section 382 of the FW Act if the person is covered
by an award-based transitional instrument, or if an agreement-
based transitional instrument applies to the person in relation to
their employment.
138. This item also ensures that the requirement to consult about
genuine redundancy under subsection 389(2) of the FW Act also
applies if there is an obligation to consult about the redundancy
in an award-based transitional instrument or an agreement-based
transitional instrument.
139. The terms award and agreement-based transitional instrument are
defined in subitem 2(5) of this Schedule. Item 3 of this Schedule
outlines when a transitional instrument covers or applies to
employees and employers.
Item 37 - Regulations may deal with other matters
140. This item contains a regulation-making power to deal with matters
that may arise in relation to the interaction between transitional
instruments and the FW Act.
Part 6 - Preservation of redundancy provisions in agreements etc.
Item 38 - Preservation of redundancy provisions when agreement-based
transitional instrument terminates
Item 40 - Redundancy provisions that were already preserved as at the WR
Act repeal day
141. These items provide for the preservation of redundancy provisions
in certain agreement-based transitional instruments where the
instrument is terminated at the initiative of the employer. These
items are intended to operate in the same way as the existing
preserved redundancy provisions contained in the WR Act.
142. Item 38 provides for the preservation of any redundancy provision
contained in an agreement-based transitional instrument where that
instrument is terminated in particular circumstances during the
bridging period. This item applies in the following circumstances
where the termination takes effect during the bridging period:
. where a preserved collective State agreement or a pre-reform
certified agreement is terminated by FWA on application by the
employer as provided for by subitem 16(1) of this Schedule (which
states that Subdivision D of Division 7 of Part 2-4 of the FW Act,
including paragraph 225(a), applies to collective agreement-based
transitional instruments);
. where an individual agreement-based transitional instrument is
terminated under item 19 of this Schedule because FWA approves a
termination of the instrument by the employer.
143. Items 38 and 40 together have the effect of continuing in operation
certain redundancy provisions that were binding on persons
immediately before the WR Act repeal day. The redundancy
provisions continued in operation by these items are those from a
WR Act instrument that was terminated before the WR Act repeal day
which were preserved at that time under the WR Act (see subitem
40(1)).
144. Item 40 ensures that employees who have an existing redundancy
entitlement as at the WR Act repeal day because of the application
of the preserved redundancy provisions contained in the WR Act do
not lose the benefit of that entitlement.
145. All of these redundancy provisions are subject to rules set out in
item 38 of this Schedule that govern their continued operation.
146. Subitem 38(2) provides that any redundancy provision contained in
the terminated instrument continues to apply in relation to any
person covered by the instrument immediately before the termination
took effect. Any redundancy provision that is preserved by item 38
or by the provisions of the WR Act set out in item 40 continue to
apply for a maximum period of 24 months from the time the
termination took effect. Paragraph 40(2)(c) provides that the
maximum period of 24 months provided for in subitem 38(6) applies
as if the reference to that period were a reference to the
unexpired period of 24 months that started on the date that the WR
Act instrument was terminated. The redundancy provision ceases to
apply earlier if the employee's employment is terminated or an
enterprise agreement, workplace determination or ITEA comes into
operation in relation to the employee (see subitem 38(6)).
147. Any redundancy provision that is preserved by item 38 or by the
provisions of the WR Act set out in item 40 is taken to be a
transitional instrument of the same kind as the terminated
instrument (subitems 38(2) and (3)). This is relevant to other
provisions of this Bill dealing with, for example, transmission and
transfer of business, and the NES.
148. One effect of subitems 38(2) and (3) is that, after the end of the
bridging period (i.e., after 31 December 2009), a redundancy
provision of a terminated instrument that is preserved by item 38
or by the provisions of the WR Act set out in item 40, continues to
operate as a transitional instrument subject to the no-detriment
rule in item 23. This means that an employee is entitled to the
better of the relevant redundancy entitlement in the NES and the
preserved redundancy provision.
149. Subitems 38(2) and (3) also have the effect of ensuring that an
employee's service with the employer counts as service for the
purpose of determining their entitlement to redundancy pay under
the NES (see item 5 of Schedule 4). Subitem 5(4) of Schedule 4,
which limits the application of the general rule about counting
service for the purpose of the NES in relation to redundancy pay,
does not apply to an employee who has a redundancy entitlement
because of the application of item 38.
150. Paragraph 38(3)(a) provides that a redundancy provision that
continues to apply to a person does not apply for the purposes of
Part 2, 3, 4 and 5 of this Schedule, other than subitem 20(2) and
item 23. This means that the redundancy provisions which are
preserved by item 38 or by the provisions of the WR Act set out in
item 40 are not subject to the same rules as transitional
instruments concerning content, variation and termination.
151. The interaction rules that apply to a redundancy provision
preserved by item 38, or by the provisions of the WR Act set out in
item 40, are outlined in subitems 38(4) and (5). Subitem 38(4)
provides that a preserved redundancy provision prevails over any
other redundancy provision included in any other instrument that
would otherwise have effect. An instrument is defined in
subitem 38(7) to include an award-based transitional instrument, a
collective agreement, a collective preserved State agreement, a pre-
reform certified agreement or an old IR agreement.
152. Subitem 38(5) provides for the interaction between a redundancy
provision that continues to apply to an employee under item 38 and
an industry-specific redundancy scheme in a modern award. This
subitem is necessary because an employee to whom the scheme in a
modern award applies (see section 141 of the FW Act) is not covered
by the redundancy pay provisions that form part of the NES in Part
2-2 of the FW Act. Therefore, the no-detriment test in item 23 of
this Schedule does not apply where an employee is entitled to
redundancy pay under both item 38 and under a scheme in a modern
award. In this circumstance, subitem 38(5) provides that the
scheme in the modern award prevails over the redundancy provision
to the extent that the redundancy provision is detrimental to the
employee.
Item 39 - Notification of preservation of redundancy provisions
153. This item applies where FWA makes a decision to terminate an
agreement (which is referred to as the termination decision) on or
after the WR Act repeal day in the circumstances set out in subitem
38(1) and one or more redundancy provisions in the terminated
instrument continue to apply to affected persons in accordance with
item 38.
154. This item sets out the matters that must be included in FWA's
decision to terminate the agreement-based transitional instrument
(subitems 39(2) and (3)).
155. If the transitional instrument that is terminated is a preserved
collective State agreement or pre-reform certified agreement, FWA
must also give a copy the termination decision to the employer and
employee organisations to whom any redundancy provisions contained
in the terminated instrument continue to apply (paragraph
39(2)(b)). Once an employer has received a copy of the termination
decision, they must take reasonable steps to ensure that all
employees to whom the preserved collective State agreement or pre-
reform certified agreement applied immediately before the
termination takes effect, are given a copy of the decision within
21 days of receiving a copy of the decision (subitem 39(3)).
Subitem 39(3) is a civil remedy provision (see item 4 of Schedule
16).
Schedule 4 - National Employment Standards
Part 1 - Preliminary
Item 1 - Meanings of employee and employer
156. In this Schedule, the terms employer and employee have their
ordinary meanings. A provision in this Schedule could relate to
national system employers and their employees, or to other
employers and their employees.
157. This Schedule continues the application of provisions of the WR Act
dealing with the AFPCS, and Divisions 1 and 2 of Part 12 of the WR
Act, during the bridging period. These provisions are supported by
the corporations and other constitutional powers that are engaged
by sections 13 and 14 of the FW Act, and apply to national system
employers and their employees.
158. This Schedule also continues the operation of other minimum
entitlements set out in section 661 (and related provisions) and
Division 6 of Part 12 of the WR Act during the bridging period.
These provisions assist in giving effect to Australia's
international treaty obligations in relation to notice of
termination and related entitlements, and unpaid parental leave.
These provisions are supported by the external affairs power and
can therefore extend to employers and employees who are not within
the definitions of national system employer and national system
employee.
Part 2 - Continued application of WR Act minimum entitlements provisions
(other than wages) during bridging period
159. This Part provides for the saving of WR Act minimum entitlement
provisions during the bridging period, pending the commencement of
the NES.
Item 2 - Continued application of the Australian Fair Pay and Conditions
Standard leave and work hours provisions
160. This item provides for the ongoing operation of the AFPCS during
the bridging period, other than the wages provisions (provision for
which is made in Schedule 9).
Item 3 - Continued application of entitlements to meal breaks, public
holidays and parental leave
161. This item continues the application, during the bridging period, of
minimum entitlement provisions in Part 12 of the WR Act relating
to:
. meal breaks;
. public holidays; and
. the extended application of the parental leave entitlement to non-
national system employees.
162. Sections 615 to 618 of Division 2 of Part 12 of the WR Act have not
been saved because these provisions deal with compliance matters.
Compliance with these entitlements is instead provided for in
Schedule 16.
Item 4 - Continued application of notice of termination provisions
163. This item provides for the continued application of section 661 of
the WR Act (notice of termination), and related provisions, to
terminations of employment that occur during the bridging period or
where notice of a termination of employment is given during the
bridging period.
Item 4A - References to workplace agreements include references to
enterprise agreements
164. Part 2 of Schedule 4 continues certain WR Act minimum entitlements
provisions during the bridging period (pending commencement of the
NES).
165. Item 4A ensures that the continued provisions operate effectively
with enterprise agreements made under the FW Act during the
bridging period (this is relevant, for example, in relation to
cashing out of leave). Item 4A does this by providing that a
reference in the continued provisions to a workplace agreement
includes a reference to an enterprise agreement.
Part 3 - Operation of the National Employment Standards
Item 5 - Non-accruing entitlements: counting service before the FW (safety
net provisions) commencement day
166. Subitem 5(1) provides that, as a general rule, an employee's
service with an employer before the commencement of the NES counts
as service for the purpose of determining entitlements under the
NES.
167. This rule does not apply to paid annual leave and paid
personal/carer's leave - pre-commencement accrual of these
entitlements is dealt with in item 6. Specific provision is also
made in relation to redundancy entitlements (see subitem 5(4)).
168. A period of service will not be counted again for the purposes of
calculating a NES entitlement where an employee has already had the
benefit of an entitlement of that kind, calculated by reference to
that period of service (subitem 5(2)). This is to prevent an
employee 'double dipping'.
169. The intention of subitem 5(3) is to ensure that the rule in
subitem 5(2) does not affect an employee's entitlement to accrue
long service leave in circumstances where they have taken an
entitlement to leave after an initial qualifying period of service.
Illustrative example
Rachel is a fashion designer employed in Victoria by That Suits You Pty
Ltd. After 10 years of continuous service, in mid-2008 Rachel took her
accrued entitlement to long service leave under the Victorian Long Service
Leave Act 1992. The effect of subitem 5(3) is that Rachel's 10 years of
continuous service will count in determining her initial entitlement to
long service leave in the first place, but will not be counted in
calculating her further entitlement to long service leave under the
Victorian Act (so that she will not be entitled to accrue again the amount
of long service leave that she took in mid-2008).
170. The general rule in item 5(1) does not apply to the calculation of
redundancy pay under the NES if an employee's terms and conditions
of employment (whether under the employee's contract of employment,
a pre-reform award or another applicable transitional instrument)
immediately before the commencement of the NES did not provide any
entitlement to redundancy pay (subitem 5(4)). This is to prevent
an employer suddenly incurring a contingent liability to pay
redundancy pay when they have not previously been required to make
provision in their accounts for this entitlement.
171. This item deals with the way in which pre-commencement service is
counted for determining NES entitlements. However, no implication
should be drawn that this item limits counting pre-commencement
service for other provisions in the FW Act, including for
determining an employee's period of employment for unfair dismissal
purposes under section 384.
Item 6 - Accruing entitlements: leave accrued immediately before the FW
(safety net provisions) commencement day
172. This item provides that where an employee has accrued paid annual
leave or paid personal/carer's leave under the AFPCS, a
transitional instrument or otherwise, immediately before
commencement of the NES, the provisions of the NES relating to the
taking of the leave (including payment for the leave) and cashing
out of that leave will apply, as a minimum standard, to the leave.
173. This means that paid personal/carer's and paid annual leave that
has accrued prior to commencement is treated as if it were accrued
under the NES with the NES rules applying to that leave, as a
minimum. More favourable arrangements would continue to apply.
174. So, for example, if an employee is entitled to a higher rate of pay
than guaranteed by the NES, this would continue to apply.
175. Crediting leave in advance would also be more favourable than the
NES 'progressive accrual' rule - however, if the amount credited in
advance is less than the NES guaranteed minimum entitlement (e.g.,
8 days' personal/carer's leave instead of the 10 days guaranteed by
the NES), the shortfall would need to be made up over the course of
the year (but not so as to provide a double entitlement). This is
the effect of the NES rules applying as a minimum standard.
Item 7 - Leave that, immediately before the FW (safety net provisions)
commencement day, is being, or is to be, taken under Part 7 of the WR Act
176. An employee who is 'in the middle' of accessing a type of leave
under the AFPCS that is covered by the NES when the NES commences
is entitled to continue on the equivalent type of leave under the
NES for the remainder of the period (subitem 7(1)).
177. However, this subitem does not affect any more favourable
arrangements that were in place for the taking of such leave (e.g.,
more favourable rate of pay).
178. The amount, time and arrangements for taking that leave may be
adjusted as necessary in accordance with the provisions of the NES
(subitem 7(2)).
179. Similarly, an employee who has applied for, but not started, their
leave on commencement of the NES is taken to have applied for the
leave under the equivalent provision in the NES (subitem 7(3)).
This means, for example, that an employee who has complied with the
notice and evidence requirements in the AFPCS to take maternity
leave does not have to also comply with the notice and evidence
requirements in section 74 of the FW Act for the taking of parental
leave.
180. If an employee is deemed to have taken a step to apply for leave
under the NES due to the operation of subitem 7(3), they are
entitled to adjust this step consistently with the provisions of
the NES (subitem 7(4)). A legislative note after this subitem
provides as an example an employee varying the content of a notice
given to the employer in relation to the leave, or varying the
amount of leave they intend to take.
181. An example of the operation of subitems 7(2) and (4) is that it
would allow an employee who is absent on, or who has applied for
(but not yet started), a period of parental leave to access the
additional entitlement in the NES to request additional parental
leave under section 76 of the FW Act.
182. Subitem 7(5) allows the regulations to deal with other matters
relating to how the NES apply to leave that, immediately before
commencement of the NES is being, or is to be, taken under the
AFPCS.
Item 8 - Community service leave
183. This item applies the NES community service leave provisions to an
employee who is absent from work on or after the commencement of
the NES, even if the period of absence began before commencement
(subitem 8(1)).
184. However, a reference to the first 10 days of absence under
subsection 111(5) of the FW Act will be taken as a reference to the
first 10 days of absence on or after commencement of the NES
(subitem 8(2)).
Illustrative example
Jarrod is employed full-time as a waiter at a café in Melbourne. He is
summonsed to appear and is required to attend for jury service from 29
December 2009. The trial he is serving on ends on 20 January 2010.
From 1 January 2010 (the intended NES commencement date), Jarrod is taken
to be on community service leave under the provisions in Division 8 of the
NES. This means he is entitled to payment from his employer under
section 111 of the FW Act. Under subsection 111(2), Jarrod's employer is
required to pay him at his base rate of pay for ordinary hours of work in
the period (up to a period of 10 days), less any amount of jury service pay
he has received.
Jarrod is entitled to payment from his employer for the period from 4 to 15
January 2010 (10 working days). He is not entitled to any payment under
the NES for the days of absence before this time, as they occurred prior to
commencement of the NES (subitem 8(2)).
Item 9 - Notice of termination
185. This item provides that the NES notice of termination provisions
(Subdivision A of Division 11) apply only to terminations of
employment occurring on or after commencement of the NES (subitem
9(1)). The NES does not apply if notice of the termination was
given before the NES commenced (subitem 9(2)) - section 661 of the
WR Act continues to apply in such cases (see item 4).
186. This means that if an employee's employment is terminated, or the
employee is given notice of termination of their employment prior
to commencement of the NES (even if the actual date of termination
falls after commencement of the NES), the employer is not also
required to provide notice under the NES.
Item 10 - Redundancy pay
187. This item provides that the entitlement to redundancy pay under the
NES applies to terminations of employment due to an employee's
position being made redundant that occur on or after the
commencement of the NES, even if notice of termination was given
before that date. This means that even where an employee is given
notice of termination under the WR Act prior to commencement of the
NES, an employer will still be liable to pay redundancy pay (to an
eligible employee) if the date of termination falls after the NES
commencement date.
Item 11 - References to transfers of employment
188. The purpose of this subitem is to clarify the intended operation of
the transfer of employment provisions of the NES.
189. References to a transfer of employment in the NES, or
subsections 22(5) and (6) of the FW Act (which relate to
calculating service where there is a transfer of employment), as
they apply for NES purposes do not cover a situation where an
employee became employed by the second employer before commencement
of the NES.
Item 12 - Recognised emergency management bodies
190. Section 659 of the WR Act provides that a recognised emergency
management body does not include a body established, or continued
in existence, for purposes that include the purpose of enabling
employees to obtain the protection against unlawful termination of
employment under subsection 659(2) of the WR Act (in particular,
the protection set out in paragraph 659(2)(i)). This item
maintains that exclusion.
191. The item is necessary because the expression recognised emergency
management body is used in a different context in the FW Act and
the existing exclusion is therefore not dealt with directly in this
Act.
Item 13 - Fair Work Information Statement
192. This item is intended to make it clear that there is no obligation
to provide the Fair Work Information Statement to employees who
were employed by the employer before the NES commences. The
obligation on an employer to give a new employee the Statement
under section 125 of the FW Act only applies to employees who
commence employment with the employer on or after commencement of
the NES.
Item 14 - Regulations
193. This item allows regulations to be made that provide for how the
NES apply to, or are affected by, things done or matters occurring
before the commencement of the NES.
Schedule 5 - Modern awards (other than enterprise awards)
Part 1 - Preliminary
Item 1 - Meanings of employee and employer
194. In this Schedule, the terms employee and employer mean
national system employee and national system employer respectively
(as defined in sections 13 and 14 of the FW Act). The rights and
obligations of employers and employees set out in this Schedule
apply only to the employment relationships within the scope of the
corporations and other constitutional powers that are engaged by
sections 13 and 14 of the FW Act.
Part 2 - The WR Act award modernisation process
195. This Part provides for the continuation of the award modernisation
process, despite the repeal of Part 10A of the WR Act, and for
revocation and coverage variation of award-
based transitional instruments and relevant APCSs to reflect the
outcomes of modernisation.
196. FWA is given powers to review awards ahead of the first 4 yearly
review.
Item 2 - AIRC to continue and complete the award modernisation process
197. This item provides for the AIRC to continue and complete award
modernisation, in accordance with the award modernisation request,
despite the repeal of the WR Act. This is necessary as the WR Act
is to be repealed before award modernisation is scheduled to be
completed.
198. In addition, the AIRC must continue to have regard to the state of
the national economy and the likely effects on the national economy
of any modern award that it is considering or proposing to make.
This reflects the current obligation that the AIRC has under
section 103 of the WR Act.
199. Despite the continued operation of Part 10A, the AIRC will not be
able to vary modern awards under Part 10A once they have started
operating. Variations to modern awards will be undertaken by FWA
in accordance with the provisions of the FW Act.
Item 3 - Variation and termination of certain transitional instruments etc.
to take account of Part 10A award modernisation process
200. This item requires FWA to terminate any award-
based transitional instruments and transitional APCSs (modernisable
instruments) that it considers are completely replaced by a modern
award made under the Part 10A award modernisation process.
201. Where it considers that a modern award only partially replaces a
modernisable instrument, FWA is required to vary the coverage of
the instrument so that it does not cover those who are covered by
the modern award.
202. These provisions do not apply to enterprise instruments.
Provisions relating to the termination and variation of
modernisable instruments to take account of the enterprise
instrument modernisation process are contained in item 9 of
Schedule 6.
203. FWA can establish a decision-making process to terminate or vary
modernisable instruments, and may also advise any persons or bodies
about the proposed process in any way it considers appropriate.
The President of FWA may delegate FWA's powers to advise persons or
bodies about the proposed decision-making process under the
extended operation of section 625 of the FW Act.
Item 4 - How the FW Act applies to modern awards made in the Part 10A award
modernisation process
204. This item provides that Part 10A modernised awards are taken to be
modern awards for the purposes of Part 2-3 of the FW Act from the
latter of the day on which the award is made or the day on which
the FW (safety net provisions) commence (subitem (1)).
205. Taking Part 10A modernised awards to be modern award made under
Part 2-3 of the FW Act ensures that:
. Part 10A modernised awards are taken to have complied with all of
the FW Act's requirements applying to the making of modern awards;
and
. Part 10A modernised awards are enforceable and can be varied or
revoked in the same way as modern awards made under Part 2-3 of the
FW Act.
206. Modern awards come into operation on the day that they are
expressed to commence, in accordance with section 576Y of the WR
Act (rather than under section 49 of the FW Act - which provides a
default commencement of the next 1 July) (subitem (2)).
207. Subitem (3) allows regulations to be made to deal with other
matters relating to the way in which the FW Act applies to Part 10A
modern awards.
Item 5 - Variations to deal with minor problems attributable to award
modernisation starting before enactment of FW Act
208. This item allows FWA to make a determination that varies a modern
award, but only if the variation is minor or technical in nature
and addresses a problem related to the fact that the modern award
was made under a process that began before the FW Act was enacted.
This enables an award to be varied to rectify incorrect references
to provisions of the NES, or to reflect changes in concepts in the
FW Act as enacted.
209. Determinations made under this item can be made on application or
on FWA's own initiative.
Item 6 - Review of all modern awards (other than modern enterprise awards)
after first 2 years
210. This item requires FWA to conduct a review of modern awards after 2
years.
. This review will not consider modern enterprise awards, which will
be reviewed as they are modernised by FWA (see Schedule 6 - Modern
enterprise awards).
211. FWA will be required to review each award, although this will not
prevent it considering more than one award at the same time.
212. The review will be required to examine whether modern awards:
. are achieving the modern awards objective set out in the FW Act; and
. are operating effectively, without anomalies or technical problems
arising from the award modernisation process.
213. In considering whether modern awards are achieving the modern
awards objective, FWA would consider a range of issues, including,
for example, the need to encourage collective bargaining and the
principle of equal remuneration for work of equal or comparable
value.
214. The interim review will enable FWA to examine individual
flexibility clauses in modern awards to ensure they are being used
for the purpose intended and not to alter industry standards on
hours and shift patterns.
215. FWA would have the power to vary a modern award in a way that it
considers appropriate to remedy any issues identified, although the
limits in Part 2-3 of the FW Act as to the matters that may (or may
not) be included in awards will apply.
216. The modern awards objective applies to any variations under this
item and if the variation affects minimum wages, then the minimum
wages objective also applies.
217. FWA may advise persons or bodies about the review in any manner it
considers appropriate. The President can delegate this function.
Item 7 - Review of transitional arrangements included in modern awards
218. This item allows FWA to review transitional arrangements that have
been included in modern awards as part of award modernisation, but
only if the power to do so is included in a modern award.
219. If such a term is included in a modern award, subitem (1)
authorises FWA to review the modern award in accordance with the
review terms and to vary the modern award to give effect to the
review.
220. Subitem (2) provides that review terms are taken to be permitted in
modern awards by Subdivision B of Division 3 of Part 2-3 of the FW
Act.
Part 3 - Avoiding reductions in take-home pay
221. This Division makes clear that the award modernisation process is
not intended to result in a reduction in the take-home pay of
employees, and provides a mechanism for obtaining remedial orders
(take-home pay orders) if there is such a reduction. The scope for
take-home pay orders is tightly constrained. The intention is that
orders can only be made where:
. there is an actual reduction in take-home pay - if award rates
decrease, but an employee's pay does not decline (because pay is
maintained by their employer), an order cannot apply;
. award modernisation is the operative or immediate reason for a
reduction in take-home pay.
222. These provisions are not intended to allow FWA to review
entitlements in modern awards generally. Rather, the intention is
to allow FWA to deal with cases in which an employee suffers a
reduction in their take-home pay, for working the same hours or
performing the same quantity of work, due to the award
modernisation process.
Item 8 - Part 10A award modernisation process is not intended to result in
reduction in take-home pay
223. This item provides that the award modernisation process is not
intended to result in a reduction in the take-home pay of employees
or outworkers.
224. An employee or outworker's take-home pay is defined as the pay that
the employee or outworker actually receives (including not only
wages and incentive-based payments, but other payments such as
penalty rates and allowances). The effect of any deduction from
wages (such as might occur under a salary sacrifice arrangement) is
disregarded when assessing take-home pay.
225. An order can be sought (under item 9) in respect of a modernisation-
related reduction in take-home pay. An employee suffers such a
reduction if, and only if:
. the modern award starts to apply to the employee when it commences
operation - that is, the orders are only available in respect of
current award covered employees;
. the employee is employed in the same position (or a position that is
comparable to) the position they were employed in immediately before
the modern award came into operation. This makes clear that the
provision is designed purely to ensure a fair transition from the
old award to the new - it is not intended that this provision apply
where employees change jobs, or where working arrangements change;
. the employee's take-home pay for working particular hours (including
a particular shift pattern or spread of hours) or for a particular
quantity of work is less than it would have been immediately before
the modern award came into operation; and
. the reduction is attributable to the modernisation process - the
intention is that orders can only be made where modernisation is the
operative or immediate reason for a reduction in take-home pay.
226. Equivalent provision is made in relation to non-employee
outworkers.
227. It is not intended that the take-home pay orders should prevent an
employer from taking action (e.g., reorganising roster
arrangements) that would otherwise be lawful.
Item 9 - Orders remedying reductions in take-home pay
228. This item allows an application for a take-home pay order to be
made by: an employee or outworker who has suffered a reduction in
take-home pay; an organisation entitled to represent the industrial
interests of such an employee or outworker, or a person acting on
behalf of a class of such employees or outworkers.
229. An application for an order will be able to be made in respect of
an individual employee or outworker or a group of employees or
outworkers.
230. It is not intended that there be a time limit on the making of an
application, however, it is expected that the ability to draw a
connection between a reduction in take-home pay and the award
modernisation process will diminish over time.
231. It is intended, however, that repeat applications should be
avoided. FWA can dismiss an application in whole or in part if it
considers that the circumstances of an employee or outworker have
already been considered as part of an earlier application (e.g., as
part of an application relating to a group or class of employees or
outworkers, or the employee or outworker has previously made an
application).
232. In considering whether to make an order, FWA is to look at the
circumstances of the individual or group of individuals to
determine whether there has been a reduction in take-home pay and
whether award modernisation is a direct and operative reason for
any reduction.
233. If FWA is satisfied that there has been a reduction in take-
home pay due to award modernisation, FWA has the power to make a
take-home pay order - such orders may only relate to the payment of
money.
234. As take-home pay orders operate separately from modern awards, any
increases in annual wage reviews will not flow into these orders
(i.e., they are not instruments that can be varied to reflect
annual wage review outcomes).
Item 10 - Ensuring that take-home pay orders are confined to the
circumstances for which they are needed
235. Subitem (1) provides that FWA must not make a take-home pay order
in relation to an individual or a class where the reduction in take-
home pay is minor or insignificant, or where the affected employees
or outworkers have been adequately compensated for the reduction in
other ways.
236. The provisions regarding take-home pay orders are intended to
ensure that an employee or outworker is not disadvantaged in his or
her take-home pay in the transition from the old system to the new
modern award. Accordingly, subitem (2) provides that a take-
home pay order is to be expressed so that:
. it does not apply to an employee or outworker unless they have
actually suffered a reduction in their take home pay due to award
modernisation. This means that if pay rates decrease in the award,
but an employee or outworker's pay does not decline (e.g., because
the pre-modernisation rate of pay is maintained), an order will not
apply;
. future wage increases from annual wage reviews are absorbed into any
amounts payable under a take-home pay order.
Item 11 - Take-home pay order continues to have effect so long as modern
award continues to cover the employee or employees
237. This item provides that a take-home pay order continues to have
effect in relation to an employee or class of employees (subject to
the terms of the order) while the modern award covers the employee
or employees, even if it stops applying because an enterprise
agreement starts to apply. This ensures that an employee does not
lose the benefit of a take-home pay order when an enterprise
agreement starts to apply.
Item 12 - Inconsistency with modern awards and enterprise agreements
238. This item provides that a term of a modern award or enterprise
agreement has no effect to the extent that it is less beneficial
than a term in the take-home pay order.
Item 13 - Application of provisions of FW Act to take-home pay orders
239. This item ensures that take-home pay orders are treated in the same
way as similar types of orders (such as equal remuneration orders)
in subsections 675(2) or 706(2) of the FW Act.
Schedule 6 - Modern enterprise awards
Part 1 - Preliminary
Item 1 - Meanings of employee and employer
240. In this Schedule, the terms employee and employer mean national
system employee and national system employer respectively (as
defined in sections 13 and 14 of the FW Act). The rights and
obligations of employers and employees set out in this Schedule
apply only to the employment relationships within the scope of the
corporations and other constitutional powers that are engaged by
sections 13 and 14 of the FW Act.
Part 2 - The enterprise instrument modernisation process
241. This Part provides for the modernisation of enterprise instruments.
242. Enterprise awards and NAPSAs that were derived from a State
enterprise award are excluded from the award modernisation process
that is being undertaken by the AIRC. This Part provides for the
integration of those awards into the new workplace relations
system.
243. This Part also provides for the modernisation of certain preserved
State agreements.
244. In exercising its functions and powers under this Schedule, FWA
must consider specified criteria.
245. The modern awards objective and the minimum wages objective (see
sections 134 and 284 of the FW Act) also apply to enterprise
instrument modernisation (see item 6). This ensures that FWA
considers the broader issues included in those objectives.
246. However, in considering these objectives, FWA must recognise the
particular role and nature of enterprise awards (see item 6).
247. FWA is able to inform itself as it sees fit in conducting the
modernisation process (see Schedule 2). This enables FWA to seek
and consider submissions not only from those with a direct interest
in the award, but also other interested parties (e.g., other
employers in the relevant industry).
Division 1 - Enterprise instruments
Item 2 - Enterprise instruments
248. This item defines relevant terms.
249. The term enterprise instrument is defined as an enterprise award-
based instrument or an enterprise preserved collective State
agreement.
250. An enterprise award-based instrument is defined as:
. an award that covers employees in a single enterprise or part of a
single enterprise only; or one or more enterprises, if the employers
all carry on similar business activities under the same franchise
and are: franchisees of the same franchisor, related bodies
corporate of the same franchisor, or any combination of the two.
. a NAPSA that includes terms derived from a State award that meets
these requirements.
251. The terms single enterprise and part of a single enterprise are
defined in item 3.
252. A franchise is defined in section 12 of the FW Act and has the
meaning given by section 9 of the Corporations Act 2001.
253. The term franchisor is intended to have its ordinary meaning and
includes the following:
. a person who grants a franchise;
. a person who otherwise participates in a franchise as a franchisor;
and
. a subfranchisor in its relationship with a subfranchisee.
254. The term franchisee is also intended to have its ordinary meaning
and includes the following:
. a person to whom a franchise is granted;
. a person who otherwise participates in a franchise as a franchisee;
and
. a subfranchisee in its relationship with a subfranchisor.
255. An enterprise preserved collective State agreement is a
transitional instrument that is a preserved collective State
agreement where, on the day before the commencement of the Work
Choices amendments, a State or Territory law had the effect of
converting a State or Territory enterprise award into an enterprise
agreement.
Item 3 - Meaning of single enterprise and part of a single enterprise
256. This item defines single enterprise and part of a single enterprise
for the purposes of Schedule 6.
Division 2 - The enterprise instrument modernisation process
Item 4 - The enterprise instrument modernisation process
257. This item enables FWA to receive an application to make a modern
enterprise award.
258. An application to modernise an enterprise instrument can be made
any time between WR Act repeal day and the end of 31 December 2013
(paragraph (3)(b)). No new enterprise awards will be able to be
made by FWA outside this enterprise instrument modernisation
process.
259. If an application to modernise an enterprise instrument has not
been received by FWA by the end of 31 December 2013, the enterprise
instrument will cease to operate. Employers and employees would at
that point become covered by any relevant modern award.
260. The modernisation of enterprise instruments is intended to produce
a new self-contained modern award that can operate effectively in
the new workplace relations system. These new instruments are
modern awards for the purposes of the FW Act.
261. Prior to a decision being made about whether or not to make a
modern enterprise award (or, if no application is made, until the
end of 2013), existing enterprise instruments will continue and the
parties covered by the instrument will retain their existing
entitlements and obligations.
262. Existing rates of pay under APCSs continue to apply (this is the
effect of Schedule 9).
263. Terms drawn from another federal award also continue in force
(these awards are preserved as transitional award-based instruments
- see Schedule 3).
264. Schedule 5 ensures that, where a modern industry or occupation
based award is made, FWA does not revoke transitional instruments
that still apply to employers and employees covered by an
enterprise award.
265. Subitem (5) lists the factors that FWA must take into account when
deciding whether or not to modernise an enterprise instrument.
266. These criteria are broad and require FWA to consider and balance
all relevant matters in deciding whether to make a modern
enterprise award.
. For example, the criteria require FWA to consider the circumstances
that led to the making of the enterprise instrument and the extent
to which the instrument provides enterprise specific terms and
conditions of employment.
267. However, FWA is required to assess these matters in light of the
content of any relevant modern award that would otherwise apply
(which would allow consideration of whether the relevant modern
award provides terms and conditions that should be included in the
modern enterprise award as an appropriate safety net), and the
views of the persons covered by the enterprise instrument.
268. Paragraph (5)(f) also provides that FWA must have regard to the
competitive position of both the enterprise covered by an
enterprise instrument and of the enterprises covered by a modern
award which, but for the enterprise instrument, would otherwise
apply to that enterprise.
269. This means, for example, that FWA is to give consideration to
whether an enterprise instrument should be modified if it would
otherwise provide the enterprise covered by it with a significant
cost advantage (or disadvantage) compared to other employers in the
industry and so lessen the competitiveness of that enterprise or of
other enterprises in the industry.
270. As noted above, FWA must also consider the broader factors listed
in the modern enterprise awards objective, and the modern awards
and minimum wages objectives.
271. The criteria reflect the fact that an application for a modern
enterprise award may occur during the bridging period (i.e., before
the award modernisation process is complete), by requiring FWA to
consider:
. if there is no relevant modern award, whether one is likely to be
made; and
. the content, or likely content, of such an award including
variations to the relevant award that are likely as part of the
award modernisation process (e.g., a variation to reflect the final
AFPC wage decision, or to include transitional arrangements in the
modern award).
272. Other matters relating to the enterprise instrument modernisation
process may be dealt with by regulation (subitem (6)).
273. If FWA decides to make a modern enterprise award, the award comes
into operation on the day on which it is expressed to commence (see
item 17 of this Schedule). However, this cannot be before FW
(safety net provisions) commencement day - which is when the modern
award system commences (subitem (5A)).
Item 5 - Enterprise instruments: termination by FWA
274. This item allows a person covered by an enterprise instrument to
apply to FWA to terminate an existing enterprise instrument.
275. An application can only be made during the period starting on the
WR Act repeal day and ending at the end of 31 December 2013.
276. Where FWA receives an application to terminate an enterprise
instrument, it will be open for FWA to:
. decide to terminate the enterprise instrument;
. decide not to terminate the enterprise instrument (meaning that it
remains on foot in its present form); or
. decide to deal with the question of whether a modern enterprise
award should be made to replace the enterprise instrument.
277. Where FWA decides to terminate an existing enterprise instrument,
the termination takes effect from the date specified in the
termination decision. However, a decision to terminate an
enterprise instrument may not come into effect before FW (safety
net provisions) commencement day - which is when the modern award
system commences.
278. The factors and objectives guiding FWA in exercising its powers
under the item reflect those outlined in item 4 above.
Item 6 - The modern enterprise awards objective
279. This item extends the operation of the modern awards objective and
the minimum wages objective to FWA's making of modern enterprise
awards. This means that FWA takes into account the same social and
economic factors in making modern enterprise awards as when making
other modern awards. These factors include, for example, the
impact on business, including business competitiveness and
viability (see paragraphs 134(1)(f) and 284(1)(a) of the FW Act).
280. As well as applying the modern awards objective and the minimum
wages objective to the making of modern enterprise awards, FWA is
also required to apply the modern enterprise awards objective.
281. The modern enterprise awards objective requires FWA to recognise
that modern enterprise awards may provide tailored terms and
conditions of employment that reflect arrangements that have
developed in relation to specific enterprises.
282. The intention of this item is that the factors listed in paragraphs
134(1)(a)-(h) and 284(1)(a)-(e) of the FW Act relating to the
modern awards objective and minimum wages objective respectively
should apply to the making of modern enterprise awards, as they do
to the making of modern awards generally. However, the minimum
terms and conditions for a modern enterprise award may not
necessarily be the same as those that apply to an industry or
occupation-based modern award.
283. An enterprise may have developed employment arrangements over a
period of time that meet the particular needs of that enterprise
and reflect the way in which the enterprise operates. The criteria
that FWA will apply in deciding whether to make a modern enterprise
award require FWA to consider any enterprise specific arrangements
that apply in a particular enterprise. FWA will be able to
maintain any enterprise specific arrangements in a modern
enterprise award where it considers that this is appropriate to do
so.
284. FWA will be able to inform itself in such manner as it considers
appropriate, in accordance with section 590 of the FW Act, in
exercising its functions in relation to modern enterprise awards.
This will allow FWA to consult with and receive submissions from
persons other than those covered by an enterprise instrument where
appropriate. For example, when considering whether to modernise an
enterprise instrument and, if so, the terms that it may include in
a modern enterprise award, FWA may consider it appropriate to
consult with and receive submissions from other businesses
operating in the same industry.
Illustrative example
Wrenview Island Resort operates a remote island resort. The Wrenview
Island Resort Enterprise Award includes a number of enterprise-specific
arrangements that suit the needs of the business.
For example, under the Wrenview Island Resort Enterprise Award, a maximum
of 10 ordinary hours may be worked per day within a spread of 16 hours per
day from starting time, inclusive of meal breaks. The rates of pay for all
employees covered by the enterprise award have been annualised to
incorporate compensation for employees working 15 weekends and six public
holidays per year.
Wrenview and its employees are keen for these working arrangements to
remain in the new system and are able to make submissions to FWA that the
enterprise award be modernised, taking into account these longstanding
enterprise-specific arrangements.
285. In setting the terms and conditions, it is intended that FWA will
take into account the employment arrangements that have been
developed for the enterprise and which are reflected in the
enterprise award. This is not intended, however, to impose an
obligation on FWA to only include tailored terms in modern
enterprise awards. Rather, the item is designed to ensure that FWA
has regard to the fact that an enterprise instrument may contain
tailored terms because they have been developed to meet the needs
of a particular enterprise.
Item 7 - Terms of modern enterprise awards
286. This item provides that the terms which may be included in modern
enterprise awards are the same as for modern awards generally.
287. Subitem (2) provides that if the making of a modern enterprise
award results in an increase in an employee's entitlements, the
modern enterprise award may provide for the increases to be phased
in. The phase in power is intended to moderate the impact on
employers of any increase in the level of employee entitlements
that results from the modernisation process.
288. Subitem (3) allows FWA to include in a modern enterprise award an
industry-specific redundancy scheme that has been included in the
relevant modern award.
Item 8 - Coverage terms
289. Subitem (1) provides that a modern enterprise award must include
coverage terms which set out the enterprise or enterprises to which
the modern enterprise award relates as well as the employer or
employers, employees and organisations that are covered.
290. Subitem (2) provides that a modern enterprise award must be
expressed to relate to:
. a single enterprise (or part of a single enterprise); or
. one or more enterprises, if the employers all carry on similar
business activities under the same franchise and are franchisees of
the same franchisor, related bodies corporate of the same franchisor
or a combination of the two.
291. It is intended that the coverage terms of a modern enterprise award
be able (if appropriate) to be framed so that the award will extend
to new franchisees of a franchisor.
292. Subitem (3) provides that modern enterprise awards must be
expressed to cover specified employers and employees.
293. Subitem (4) provides that a modern enterprise award may be
expressed to cover one or more specified organisations in relation
to all or specified employees or employers covered by the award.
294. Subitem (5) provides that a modern enterprise award must not be
expressed to cover outworker entities.
295. Subitems (6) and (7) contain provisions regarding the way in which
coverage is to be expressed in modern enterprise awards.
296. Subitem (8) provides that modern enterprise awards must not be
expressed to cover employees who have not traditionally been
covered by awards. This the position for modern awards generally
(see subsection 143(8) of the FW Act).
Item 9 - Variation and termination of certain transitional instruments etc.
to take account of enterprise instrument modernisation process
297. Subitem (1) provides that an enterprise preserved State collective
agreement terminates when a modern enterprise award replacing it
comes into operation.
298. Subitem (2) requires that, as soon as practicable after it makes a
modern enterprise award to relace an enterprise instrument, FWA
must terminate the enterprise instrument, and vary or terminate any
other award-based transitional instruments and any transitional
APCSs so that these other instruments no longer cover the employees
who are now covered by the modern enterprise award.
299. If FWA decides not to make a modern enterprise award to replace an
enterprise instrument, the enterprise instrument terminates when
that decision comes into operation (subitem 9(3)). This may not be
before the FW (safety net provisions) commencement day - which is
when the modern award system commences (subitem 9(3A).
300. An enterprise instrument also terminates if no application has been
made to FWA to modernise or terminate that instrument by the end of
31 December 2013 (subitem 9(4)).
301. Once all modern enterprise awards made in the enterprise instrument
modernisation process have come into operation, FWA must terminate
any remaining award-based transitional instruments and any
remaining APCSs (subitem 9(5)).
Item 10 - Notification of the cut-off for the enterprise instrument
modernisation process
302. As noted above, an enterprise instrument will terminate if no
application has been made to FWA to modernise or terminate that
instrument by the end of 31 December 2013.
303. To ensure that those covered by such instruments make an informed
decision about whether to seek a modern enterprise award, item 10
requires FWA to advise those covered by unmodernised enterprise
instruments 6 months before 31 December 2013 of the deadline for
making an application, and the consequences for the enterprise
instrument if they do not do so (i.e., termination).
304. FWA has discretion to advise parties to unmodernised awards by any
means it considers appropriate.
305. The ability of the President of FWA to delegate functions and
powers (provided by section 625 of the FW Act) extends to functions
and powers under this item.
Division 3 - Avoiding reductions in take-home pay
306. This Division makes clear that the enterprise instrument
modernisation process is not intended to result in a reduction in
the take-home pay of employees, and provides a mechanism for
obtaining remedial orders (take-home pay orders) if there is such a
reduction. The scope for take-home pay orders is tightly
constrained. The intention is that orders can only be made where:
. there is an actual reduction in take-home pay - if award rates
decrease, but an employee's pay does not decline (because pay is
maintained by their employer), an order cannot apply; and
. enterprise award modernisation is the operative or immediate reason
for a reduction in take-home pay.
307. These provisions are not intended to allow FWA to review
entitlements in modern enterprise awards generally. Nor is it
intended that such orders should be available to constrain an
employer from taking action (e.g., reorganising roster
arrangements) that would otherwise be lawful.
308. Rather, the intention is to allow FWA to deal with cases in which
an employee suffers a reduction in their take-home pay, for working
the same hours or performing the same quantity of work, due to the
enterprise instrument modernisation process.
Item 11 - Enterprise instrument modernisation process is not intended to
result in reduction in take-home pay
309. This item provides that the enterprise instrument modernisation
process is not intended to result in a reduction in the take-
home pay of employees.
310. An employee's take-home pay is defined as the pay that the employee
actually receives (including not only wages, but other payments
such as penalty rates and allowances). The effect of any deduction
from wages (such as might occur under a salary sacrifice
arrangement) is disregarded when assessing an employee's take-home
pay.
311. An order can be sought (under item 12) in respect of a
modernisation-related reduction in take-home pay. An employee
suffers such a reduction if, and only if:
. the modern enterprise award starts to apply to the employee when it
commences operation - that is, the orders are only available in
respect of current award covered employees;
. the employee is employed in the same position (or a position that is
comparable to) the position they were employed in immediately before
the modern enterprise award came in to operation. This makes clear
that the provision is designed purely to ensure a fair transition
from the old award to the new - it is not intended that this
provision apply where employees change jobs, or where working
arrangements change;
. the employee's take home pay for working particular hours (including
a particular shift pattern or spread of hours) or for a particular
quantity of work is less than it would have been immediately before
the modern enterprise award came into operation; and
. the reduction is attributable to the modernisation process - the
intention is that orders can only be made where modernisation is the
operative or immediate reason for a reduction in take-home pay.
312. It is not intended that the take-home pay orders should prevent an
employer from taking action (e.g., reorganising roster
arrangements) that would otherwise be lawful.
Item 12 - Orders remedying reductions in take-home pay
313. Subitems (1) - (3) allow an application for a take-home pay order
to be made by: an employee who has suffered a reduction in take-
home pay; an organisation entitled to represent the industrial
interests of such an employee; or a person acting on behalf of a
class of such employees.
314. An application for an order will be able to be made in respect of
an individual employee or a group of employees.
315. It is not intended that there be a time limit on the making of an
application, however, it is expected that the ability to draw a
connection between a reduction in take-home pay and the enterprise
award modernisation process will diminish over time.
316. It is intended, however, that repeat applications should be
avoided. FWA can dismiss an application in whole or in part if it
considers that an employee's circumstances have already been
considered as part of an earlier application (e.g., the employee's
circumstances were considered as part of an application relating to
a group or class of employees, or the employee has previously made
an application).
317. In considering whether to make an order, FWA will look at the
circumstances of the individual or group of individuals to
determine whether there has been a reduction in take-home pay and
that enterprise award modernisation is a direct and operative
reason for that reduction.
318. If FWA is satisfied that there has been a reduction in take-
home pay due to enterprise award modernisation, FWA will have the
power to make a take-home pay order - such orders may only relate
to the payment of money.
319. As take-home pay orders operate separately from modern enterprise
awards, any increases in annual wage reviews will not flow into
these orders (i.e., they are not instruments that can be varied to
reflect annual wage review outcomes).
Item 13 - Ensuring that take-home pay orders are confined to the
circumstances for which they are needed
320. Subitem (1) provides that FWA must not make a take-home pay order
in relation to an employee or class of employees where the
reduction in take-home pay is minor or insignificant, or where the
employee or group of employees have been adequately compensated for
the reduction in other ways.
321. The provisions regarding take-home pay orders are intended to
ensure that an employee is not disadvantaged in his or her take-
home pay in the transition from the old system to the new modern
enterprise award. Accordingly, subitem (2) provides that a take-
home pay order be expressed so that:
. it does not apply to an employee unless the employee has actually
suffered a reduction in their take home pay due to the enterprise
award modernisation process. This means that if pay rates in the
award decrease, but an employee's pay does not decline (because pay
is maintained by their employer), an order will not apply; and
. future wage increases from annual wage reviews are absorbed into any
amounts payable under a take-home pay order.
Item 14 - Take-home pay order continues to have effect so long as modern
enterprise award continues to cover the employee or employees
322. This item provides that a take-home pay order continues to have
effect in relation to an employee or class of employees (subject to
the terms of the order) while the modern enterprise award covers
the employee or employees, even if it stops applying because an
enterprise agreement starts to apply. This ensures that an
employee does not lose the benefit of a take-home pay order when an
enterprise agreement starts to apply.
Item 15 - Inconsistency with modern enterprise awards and enterprise
agreements
323. This item provides that a term of a modern enterprise award or
enterprise agreement has no effect to the extent that it is less
beneficial than a term in the take-home pay order.
Item 16 - Application of provisions of FW Act to take-home pay orders
324. This item ensures that take-home pay orders will be treated in the
same way as similar types of orders (such as equal remuneration
orders) in subsections 675(2) or 706(2) of the FW Act.
Division 4 - Application of the FW Act
Item 16A - How the FW Act applies to modernisation process before FW
(safety net provisions) commencement day
325. This item provides that certain provisions of the FW Act are taken
to apply as if they had already commenced for the purpose of making
a modern enterprise award before the FW (safety net provisions)
commencement day. These provisions include the modern awards
objective and the minimum wages objective as well as the provisions
that set out the award content rules.
326. The provisions listed in item 16A are necessary for the process of
considering whether to make a modern award and the content of such
an award.
327. Item 16A is necessary because an application for a modern
enterprise award can be made from the WR Act repeal day, which is
before the relevant provisions commence on the FW (safety net
provisions) commencement day.
Item 17 - How the FW Act applies to modern awards made in the enterprise
instrument modernisation process
328. The effect of this item is that modern enterprise awards are
generally taken to be modern awards for the purposes of the FW Act
from the day on which the modern enterprise award is made.
However, subitem (2) ensures that modern enterprise awards come
into operation on the day on which it is expressed to commence
(rather than on 1 July, as would be the effect of section 49 of the
FW Act).
329. Subitem (3) provides that the regulations may deal with other
matters relating to how the FW Act applies in relation to modern
enterprise awards.
Part 3 - Amendments
Fair Work Act 2009
330. This part makes a number of amendments to the FW Act that are
consequential upon the enterprise instrument modernisation process.
Item 18 - Section 12 (definition of award modernisation process)
Item 19 - Section 12 (definition of coverage terms)
331. These items amend existing definitions:
. the current definition of award modernisation process is replaced
with a definition that accounts for both the continuation of Part
10A of the WR Act by Schedule 5 of this Bill, and the enterprise
instrument modernisation process.
. the existing definition of coverage terms is amended to include a
reference to modern enterprise award coverage terms.
Item 20 - Section 12
Item 21 - Section 12
Item 22 - Section 12
Item 23 - Section 12
332. These items insert pointers to definitions of modern enterprise
award (and the related terms part of a single enterprise and single
enterprise) (in new section 168A) and modern enterprise awards
objective (in new section 168B).
Item 24 - Section 132
333. This item amends the Guide at the commencement of Part 2-3 of the
FW Act to reflect the inclusion of additional provisions relating
to modern enterprise awards (see Division 7 of Part 2 of Schedule
6).
Item 25 - At the end of section 143
334. This item inserts two new subsections 143(8) and 143(9) in the FW
Act to ensure that modern awards are expressed not to cover
employees who are covered by a modern enterprise award, enterprise
award-based instrument or enterprise preserved collective State
agreement.
335. This item also makes an amendment to the heading of section 143
which is consequential on the other amendments in item 25.
Item 26 - After section 143
336. This item inserts a new section 143A which contains rules regarding
the coverage terms of modern enterprise awards.
Item 27 - At the end of Part 2-3
337. This item inserts a new Division 7 of Part 2-3 which contains
additional provisions relating to modern enterprise awards.
338. New section 168A defines a modern enterprise award as an award that
regulates terms and conditions of employment in:
. a single enterprise or part of a single enterprise; or
. one or more enterprises, if the employers carry on similar business
activities under the same franchise.
339. New section 168B contains the modern enterprise awards objective,
and explains when that objective is to apply.
340. The modern enterprise awards objective reflects the objective in
item 6, described above.
341. New section 168C provides that FWA may not make new modern
enterprise awards under this Part. Modern enterprise awards can
only be made through the enterprise instrument modernisation
process in Division 2 of Schedule 6 of this Bill.
342. New section 168C also ensures that coverage of a modern enterprise
award cannot be varied so that the award ceases to be an enterprise
award.
343. A modern enterprise award can be revoked if the award is obsolete,
or if FWA is satisfied that a modern award (other than the
miscellaneous modern award) that is appropriate will apply to the
employees upon revocation.
344. In deciding whether to revoke a modern enterprise award, FWA must
take account of specified factors. These factors reflect those
that apply to the making or revoking of enterprise instruments
during the modernisation process.
345. These criteria are broad and require FWA to consider and balance
all relevant matters in deciding whether to revoke a modern
enterprise award.
346. For example, the criteria require FWA to consider the circumstances
that led to the making of the enterprise instrument and the extent
to which the instrument provides enterprise specific terms and
conditions of employment. FWA is also required to consider the
content of any relevant modern award that would otherwise apply,
the views of the persons covered by the modern enterprise award,
and the competitive position of both the enterprise covered by the
modern enterprise award and the enterprises covered a modern award
which, but for the enterprise award, would otherwise apply to that
enterprise.
347. New section 168D provides that FWA is not permitted to extend the
coverage of a modern enterprise award if the effect of the
variation would be that the instrument ceases to be a modern
enterprise award. The factors outlined above also guide FWA in
determining whether to change the coverage of a modern enterprise
award.
Item 28 - Subsection 292(1)
348. Subsection 292(1) of the FW Act requires FWA to publish varied
modern award wage rates by 1 July each year.
349. This item substitutes existing subsection 292(1) and replaces it
with new subsection 292(1). Because of the potentially large number
of modern enterprise awards, and the fact that those covered by
such awards will be familiar with their contents, the new provision
requires FWA to publish the wage rates in a modern enterprise award
as soon as practicable after they are varied as part of an annual
wage review. This different publication requirement does not
affect when wage variations come into effect (which is dealt with
in section 287) or the enforceability of such rates.
Schedule 7 - Enterprise agreements and workplace determinations made under
the FW Act
350. Schedule 7 sets out modifications and transitional provisions
relating to enterprise agreements and workplace determinations made
and varied in accordance with the FW Act during and after the
bridging period. The modifications are necessary because the NES
and modern awards will not operate until 1 January 2010.
351. In particular, the Schedule provides for:
. the making and variation of enterprise agreements during the
bridging period, which must pass the no-disadvantage test rather
than the better off overall test - see Part 2;
. modifications of certain provisions of the FW Act in relation to
enterprise agreements, variations of enterprise agreements and
workplace determinations made during the bridging period - see Parts
3 and 5;
. transitional provisions relating to the application of the better
off overall test should the award modernisation process not be
completed at the end of the bridging period - see Part 4; and
. transitional provisions in relation to the application of the AFPCS
during the bridging period - see Part 6.
Part 1 - Preliminary
Item 1 - Meanings of employer and employee
352. In this Schedule, the terms employee and employer mean national
system employee and national system employer respectively (as
defined in sections 13 and 14 of the FW Act). The rights and
obligations of employers and employees set out in this Schedule
apply only to the employment relationships within the scope of the
corporations and other constitutional powers that are engaged by
sections 13 and 14 of the FW Act.
Part 2 - Transitional provisions relating to the application of the no-
disadvantage test to enterprise agreements made and varied during bridging
period
Division 1 - Enterprise agreements and variations made during bridging
period must pass no-disadvantage test
Item 2 - Approval of agreement or variation by FWA - passing the no-
disadvantage test
353. This item provides that the no-disadvantage test (as set out in
Division 2 of this Schedule) applies to enterprise agreements and
variations to enterprise agreements made during the bridging period
instead of the better off overall test. The better off overall test
operates from 1 January 2010 when modern awards and the NES
commence operation.
Division 2 - The no-disadvantage test
Item 3 - Definitions
354. This item defines a number of terms used in this Division and
explains how the Division applies to variations and prospective
employees.
Item 4 - When does an agreement pass the no-disadvantage test?
355. This item provides that an enterprise agreement made during the
bridging period must pass the no-disadvantage test. An enterprise
agreement passes the no-disadvantage test if FWA is satisfied that
an enterprise agreement would not result, on balance, in a
reduction in the employees' overall terms and conditions of
employment under any reference instrument relating to one or more
employees. A reference instrument is defined in subitem 5(1). This
is the same test that applied to the approval of workplace
agreements under Division 5A of Part 8 of the WR Act.
356. Subitem 4(2) provides that in relation to long service leave, a
reference instrument includes a relevant State or Territory law
that applied to an employee immediately before an application was
made to FWA for approval of the enterprise agreement. If the only
reference instrument relating to the employees is a designated
award, the award is to be disregarded to the extent that it
provides for long service leave. The note under subitem 4(2) makes
clear that an enterprise agreement made during the bridging period
prevails over a State or Territory law to the extent of any
inconsistency relating to long service leave (see item 17).
357. Subitem 4(3) provides that if there is no reference instrument in
relation to any of the employees covered by the enterprise
agreement, the enterprise agreement is taken to pass the no-
disadvantage test
358. Subitem 4(4) provides that if a reference instrument only relates
to some of the employees covered by the enterprise agreement and
FWA is satisfied that the agreement passes the no-disadvantage test
in relation to those employees, the agreement is taken to pass the
test in relation to all employees. However, if the agreement does
not pass the no-disadvantage test in relation to one or more
employees covered by the agreement, it does not pass the test in
relation to any employees. The effect of this is that an
enterprise agreement either passes the no-disadvantage test in
relation to all employees for which is a reference instrument or
not at all.
359. Subitem 4(5) requires FWA to disregard any individual flexibility
arrangement that has been agreed to by the affected employee and
employer when it is determining whether an enterprise agreement as
proposed to be varied passes the no-disadvantage test.
Item 5 - Reference instruments etc.
360. The no-disadvantage test requires FWA to assess an enterprise
agreement against any reference instrument relating to one or more
employees (item 4).
361. Subitem 5(1) defines reference instrument in relation to employees
who are covered by an enterprise agreement as any relevant general
instrument for one or more of the employees or if there is no
relevant general instrument - a designated award.
362. A relevant general instrument is an award-
based transitional instrument that:
. regulates, or would but for an enterprise agreement or another
industrial instrument having come into operation regulate, any term
or condition of employment of persons engaged in the same kind of
work to be performed by an employee under the enterprise agreement;
and
. applied, or would but for an enterprise agreement or another
industrial instrument having come into operation have applied, to
the employee's employer immediately before the day on which the
application for FWA approval of the agreement was made.
Item 6 - Enterprise agreement to be tested as at test time
363. This item provides that, for the purpose of applying the no-
disadvantage test, FWA must consider an enterprise agreement as it
was at the time the bargaining representative made an application
for FWA approval under section 185 of the FW Act.
Item 7 - Designated awards - before application for FWA approval
364. This item enables FWA to designate an award in relation to an
employee or class of employees before an application for FWA
approval is made under section 185 of the FW Act. An enterprise
award cannot be a designated award.
Item 8 - Designated awards - after application for FWA approval
365. This item enables FWA to designate an award in relation to an
employee or class of employees after an application for FWA
approval is made under section 185 of the FW Act. An enterprise
award cannot be a designated award.
Item 9 - Effect of State awards etc.
366. This item makes clear that FWA may determine that an award is a
designated award where the terms and conditions of the kind of work
performed or to be performed by an employee were (or would have
been but for an industrial instrument or a State employment
agreement having come into operation) regulated by a State award
immediately before 27 March 2006.
Item 10 - Matters taken into account when testing agreement etc.
367. This item outlines the matters that FWA may to take into account
when:
. deciding whether or not an agreement passes the no-disadvantage
test; and
. determining an award is a designated award.
368. When performing these functions, FWA may inform itself in any way
it considers appropriate. This includes (but is not limited to)
contacting the employer, one or more employees, or if applicable, a
bargaining representative in relation to the agreement.
Part 3 - Other requirements and modifications applying to making and
varying enterprise agreements during the bridging period
Division 1 - Requirements relating to approval
Item 11 - Approval of agreement by FWA - interaction with the National
Employment Standards
369. This item provides that paragraph 186(2)(c) of the FW Act (the
requirement that the agreement does not contravene the NES) does
not apply in relation to an enterprise agreement, or a variation to
an enterprise agreement made during the bridging period because the
NES do not commence operation until 1 January 2010.
Item 12 - Approval of agreement by FWA - term about settling disputes
370. This item modifies the requirement that an enterprise agreement
must have a term about settling disputes in relation to the NES to
reflect that the NES do not come into operation until 1 January
2010.
Item 13 - Approval of agreement by FWA - requirements relating to
particular kinds of employees
371. This item deals with the application of provisions in the FW Act
relating to particular employees (shift workers, pieceworkers,
school-based apprentices and trainees and outworkers) to enterprise
agreements and variations made during the bridging period.
372. Subitem 13(1) provides that subsection 187(4) of the FW Act (which
deals with requirements relating to the kinds of employees listed
above) generally does not apply in relation to an enterprise
agreement, or a variation to an enterprise agreement, made during
the bridging period. This is because these provisions rely on
modern awards being in operation. Until that time, the no-
disadvantage test will provide protection for these employees.
However, FWA must still be satisfied that the requirements in
relation to outworkers are met (see section 200 of the FW Act).
373. Subitem 13(2) modifies the application of section 200 of the FW Act
(which deals with requirements relating to outworkers) in relation
to agreements or variations made during the bridging period. The
modifications to section 200 for the purposes of this item are
that:
. references to a modern award are taken to be references to an award
or a NAPSA; and
. references to outworker terms are taken to be references to
outworker terms that are (or would be, if the terms where included
in an award) outworker terms as defined in section 564 of the WR
Act.
Division 2 - Base rates of pay
Item 14 - Base rate of pay under enterprise agreements
374. This item provides that section 206 of the FW Act (which deals with
base rates of pay under enterprise agreements) does not apply
during the bridging period. The AFPCS applies to employees covered
by an enterprise agreement during the bridging period ensuring that
minimum safety net wages are not undercut (see Part 6 of this
Schedule).
Division 3 - No extensions of time
Item 15 - No extension of time to apply for approval of agreement made in
final 14 days of bridging period
Item 16 - No extension of time to apply for approval of variation of
agreement made in final 14 days of bridging period
375. These items provide that paragraphs 185(3)(b) and 210(3)(b) of the
FW Act (which deal with extending the period within which an
application must be made to FWA for approval of an enterprise
agreement or a variation of an enterprise agreement) do not apply
in relation to an enterprise agreement or variation made during the
period of 14 days before the end of the bridging period. If a
bargaining representative does not make an application for FWA
approval of an agreement or variation made during the bridging
period within 14 days of the making of the agreement or variation,
FWA is unable to approve the agreement or variation. In this
circumstance, the employer and employees may make another agreement
or variation in accordance with Part 2-4 of the FW Act.
Division 4 - State and Territory laws dealing with long service leave
Item 17 - Enterprise agreement made during the bridging period prevails
over State and Territory laws dealing with long service leave
376. This item provides that despite subsection 29(2) of the FW Act
(which deals with the interaction of enterprise agreements and
State and Territory laws), an enterprise agreement made during the
bridging period prevails over a State or Territory law dealing with
long service leave to the extent of any inconsistency. The note to
this item makes clear that a term of an enterprise agreement made
during the bridging period operates subject to State or Territory
laws referred to in paragraphs 29(2)(a) or 29(2)(b) of the FW Act.
Part 4 - Transitional provisions to apply the better off overall test after
end of bridging period if award modernisation not yet completed
377. It is intended that award modernisation will be substantially
completed by the end of 2009 and that modern awards will operate
from 1 January 2010. These provisions cater for the possibility
that award modernisation may not have been completed and also have
application to employers and employees covered by enterprise award-
based transitional instruments.
Item 18 - Application of better off overall test to making of enterprise
agreements that cover unmodernised award covered employees
378. This item applies in relation to an enterprise agreement made after
the end of the bridging period if at least one of the employees
covered by the agreement is covered by an unmodernised award (an
unmodernised award covered employee - see definition in subitem
20(1)).
379. Subitems 18(2) and 18(3) provide that despite section 193 of the FW
Act, enterprise agreements only pass the better off overall test
if FWA is satisfied that:
. the requirements in subsection 193(1) (non-greenfields agreements)
or subsection 193(3) (greenfields agreements) of the FW Act have
been satisfied in relation to the agreement; and
. as at test time, each unmodernised award covered employee, and each
prospective unmodernised award coved employee, would be better off
overall if the enterprise agreement applied to them than if the
relevant award-based transitional instrument and transitional APCS
applied to them.
Item 19 - Application of better off overall test to variation of enterprise
agreements that cover unmodernised award covered employees
380. This item applies in relation to a variation of an enterprise
agreement made after the end of the bridging period if at least one
of the employees covered by the agreement is covered by an
unmodernised award (an unmodernised award covered employee - see
definition in subitem 20(1)).
381. Subitem 19(3) stipulates two conditions of which FWA must be
satisfied in order for a variation to an enterprise agreement to
pass the better off overall test:
. each award covered employee and each prospective award covered
employee (within the meaning of subsections 193(4) and (5) of the FW
Act) must be better off overall if the enterprise agreement applied
to them than if the relevant modern award applied to them; and
. each unmodernised award covered employee and each prospective
unmodernised award covered employee must be better off overall if
the enterprise agreement applied to them than if the relevant award-
based transitional instrument and transitional APCS applied to them.
Item 20 - Definitions
382. This item defines a number of terms used in this Part.
383. Key definitions are explained below:
. prospective unmodernised award covered employee means a person who,
if he or she were employed at the test time, would be covered by an
enterprise agreement and would be covered by the relevant award-
based transitional instrument that is in operation and covers the
employer. The relevant award-based transitional instrument must
cover the person in relation to the work that he or she would
perform under the agreement.
. test time:
(a) for the purposes of item 18 - means the time the
application for approval of the agreement by FWA was made under
section 185 of the FW Act; and
(b) for the purposes of item 19 - means the time the
application for approval of the variation of the enterprise
agreement by FWA was made under section 210 of the FW Act.
. unmodernised award covered employee means an employee who, at the
test time, is covered by an enterprise agreement and is covered by
the relevant award-based transitional instrument that is in
operation and covers the employer. The relevant award-
based transitional instrument must cover the person in relation to
the work that he or she is to perform under the agreement.
Part 5 - Transitional provisions relating to workplace determinations made
under the FW Act
Item 21 - Application made during bridging period for special low-paid
workplace determination - general requirement relating to minimum safety
net
384. This item modifies the application of subsection 262(3) of the FW
Act in relation to an application for a special low-paid workplace
determination made during the bridging period because the new
safety net provisions will not commence operation until
1 January 2010. This item provides that the words 'awards together
with the Australian Fair Pay and Conditions Standard' replace the
words 'modern awards together with the National Employment
Standards' in subsection 262(3) of the FW Act.
Item 22 - Special low-paid workplace determination - employer must not
previously have been covered by agreement-based transitional instrument
385. Subitem 22(1) provides that subsection 263(3) of the FW Act (which
deals with additional requirements for making special low-paid
workplace determinations) applies in relation to a special low-
paid workplace determination made under the FW Act as if the
reference to an enterprise agreement included a reference to a
collective agreement-based transitional instrument. That is, an
employer must not be covered by, or previously have been covered
by, an enterprise agreement or collective agreement-
based transitional instrument in relation to the work to be
performed by the employees who will be covered by the special low-
paid workplace determination. This requirement is modified by
subitem 22(2).
386. Subitem 22(2) provides that FWA may, where it considers it
appropriate to do so, make a special low-paid workplace
determination if the collective agreement-based transitional
instrument has ceased to operate.
387. In deciding whether it is appropriate to make a special low-paid
workplace determination, subitem 22(3) requires FWA to take into
account the objects set out in section 241 of the FW Act in
relation to low-paid bargaining.
388. Where an employer and employees were once covered by a collective
agreement-based transitional instrument that has ceased operation,
FWA would be required to consider, for example, constraints on
their ability to bargain at the enterprise level, including
constraints relating to a lack of skills, resources, bargaining
strength or previous bargaining experience (see paragraph 241(c) of
the FW Act). This will involve an examination of the history of
bargaining between these parties.
389. FWA must also be satisfied that the other requirements for making a
special low-paid workplace determination in sections 262 and 263 of
the FW Act are met.
390. This item will continue to apply to special low-paid workplace
determinations made after the bridging period.
Item 23 - Core terms of workplace determinations - assessment of
determination made during bridging period against the no disadvantage test
391. This item modifies the application of subsection 272(4) of the FW
Act (which deals with workplace determinations passing the better
off overall test) in relation to workplace determinations made
during the bridging period. It makes clear that the no-
disadvantage test applies to workplace determinations made during
the bridging period instead of the better off overall test.
Item 24 - Core terms of workplace determinations - assessment of
determination made after bridging period that covers unmodernised award
covered employees against the better off overall test
392. This item provides that where a workplace determination made after
the bridging period covers one or more unmodernised award covered
employees (within the meaning of Part 4 of this Schedule),
subsection 272(4) of the FW Act is modified in the same way as
item 23.
Item 25 - Core terms of workplace determinations - safety net requirements
393. This item provides that subsection 272(5) of the FW Act (which
deals with terms relating to safety net requirements) does not
apply in relation to workplace determinations made during the
bridging period. Despite this, no workplace determination can
include a term which would contravene section 200 of the FW Act
(which deals with requirements relating to outworkers) if the
workplace determination were an enterprise agreement. The same
modifications apply in relation to section 200 of the FW Act as
those set out under item 13.
Item 26 - Mandatory terms of workplace determinations - term about settling
disputes
394. This item makes two modifications to the application of section 273
of the FW Act in relation to workplace determinations made during
the bridging period:
. paragraph 273(2)(b) reads as if the words 'apply after the end of
the bridging period' were added after 'National Employment
Standards'; and
. subsection 273(3) applies as if the reference to paragraph 186(6)(a)
of the FW Act were a reference to that paragraph in its application
to an enterprise agreement made during the bridging period (see item
12).
Part 6 - Interaction with Australian Fair Pay and Conditions Standard
during bridging period
Item 27 - Interaction between Australian Fair Pay and Conditions Standard
during bridging period
395. This item provides for the interaction between the AFPCS and
enterprise agreements and workplace determinations (made under the
FW Act) during the bridging period.
396. Subitem 27(1) makes clear that the AFPCS, in its application during
the bridging period, prevails over an enterprise agreement or a
workplace determination that applies to an employee to the extent
to which the AFPCS provides a more favourable outcome for the
employee in a particular respect.
397. Subitem 27(2) provides that any dispute about the application of
the AFPCS (including disputes about the operation of subitem 27(1))
is to be resolved using the model dispute resolution process set
out in Part 13 of the WR Act. References in Divisions 2 and 3 of
Part 13 of the WR Act to the AIRC or the Industrial Registrar are
taken to be references to FWA for the purpose of resolving disputes
about the application of the AFPCS.
398. Note that item 12 provides that terms dealing with settling
disputes in relation to the NES only apply after the end of the
bridging period.
399. Subitem 27(4) provides that the fact that the model dispute
resolution process applies in relation to the dispute does not
affect any right of a party to the dispute to take court action to
resolve it.
400. Subitem 27(6) provides that during the bridging period references
to workplace agreements in regulations made for the purposes of
subsection 172(4) of the WR Act are to be read as references to
enterprise agreements and workplace determinations.
401. Subitem 27(7) provides that any term of an enterprise agreement or
workplace determination is invalid to the extent to which it
purports to exclude the AFPCS.
Schedule 8 - Workplace agreements and workplace determinations under the WR
Act
402. Schedule 8 sets out transitional and consequential provisions
relating to workplace agreements and workplace determinations made
under the WR Act. It includes:
. provisions allowing for the lodgment of workplace agreements (and
variations of workplace agreements) made before the WR Act repeal
day, their assessment against the no-disadvantage test and continued
operation - see Divisions 1, 2, 4 and 5 of Part 2;
. provisions relating to the termination of workplace agreements where
some, but not all, of the steps relating to termination occurred
before the WR Act repeal day - see Divisions 3 and 6 of Part 2;
. provisions allowing for the making and lodgment of ITEAs during the
bridging period - see Division 7 of Part 2;
. provisions dealing with the way in which the no-disadvantage test
operates in relation to workplace agreements that operate from
lodgment if there is a transmission of business or transfer of
business - see Division 8 of Part 2; and
. provisions relating to the continued application and termination of
workplace determinations made under the WR Act - see Part 3.
Part 1 - Preliminary
Item 1 - Meanings of employer and employee
403. In this Schedule, the terms employee and employer mean national
system employee and national system employer respectively (as
defined in sections 13 and 14 of the FW Act). The rights and
obligations of employers and employees set out in this Schedule
apply only to the employment relationships within the scope of the
corporations and other constitutional powers that are engaged by
sections 13 and 14 of the FW Act.
Part 2 - Transitional provisions relating to workplace agreements
Division 1 - Transitional provisions relating to collective agreements made
before the WR Act repeal day
Division 2 - Transitional provisions relating to variations of collective
agreements made before the WR Act repeal day
Item 2 - Division applies to collective agreements made before WR Act
repeal day
Item 6 - Division applies to variations of collective agreements made
before WR Act repeal day
404. These items provide that Divisions 1 and 2 respectively apply to
collective agreements and variations of collective agreements made
before the WR Act repeal day. 'Made' is defined in item 2 of
Schedule 2 to this Bill.
Item 3 - General rule - continued application of lodgment provisions, no-
disadvantage test and prohibited content rules, etc.
Item 4 - Modification - unlodged collective agreements must be lodged
within 14 days
Item 7 - General rule - continued application of lodgment provisions and no-
disadvantage test to ordinary variations
Item 8 - Modification - unlodged variations must be lodged within 14 days
405. These items preserve and modify various provisions of Part 8 of the
WR Act that allow for the lodgment of collective agreements and
variations of collective agreements and their assessment against
the no-disadvantage test. The rules governing the content of
collective agreements are preserved by these items and item 5 of
Schedule 3 to this Bill.
406. These items generally provide that where a collective agreement or
variation of a collective agreement has been made but not lodged as
at the WR Act repeal day, it may still be lodged with the Workplace
Authority following that day.
407. However, the following agreements and variations are made and then
approved at different points in time:
. union collective agreements (see sections 333 and 340 of the WR Act);
and
. variations of union collective agreements and union greenfields
agreements (see sections 368 and 373 of the WR Act).
408. A union collective agreement is made or varied when the employer
and union agree on terms of the agreement or variation (sections
333 and 368 of the WR Act). A union collective agreement (or a
variation of a union collective agreement or union greenfields
agreement) must then be approved by a majority of employees, as
required by sections 340 and 373 of the WR Act.
409. One of the effects of items 4 and 8 is that:
. a union collective agreement; or
. a variation of a union collective agreement or union greenfields
agreement;
must be both made and approved before the WR Act repeal day and lodged
within 14 days of the day on which it was approved in order to come into
operation.
410. For other collective agreements (i.e., employee collective
agreements) and variations of such agreements that are made at the
time when the agreement or variation is approved, those agreements
or variations of them must be made (as defined in sections 333 and
368 of the WR Act) before the WR Act repeal day and lodged within
14 days of being made in order to come into operation.
411. Where an agreement or variation is lodged within 14 days of being
made, the Workplace Authority Director must consider whether the
agreement or agreement as varied passes the no-disadvantage test.
The no-disadvantage test is dealt with in (preserved) Division 5A
of Part 8 of the WR Act (as modified by items 5 and 9).
412. If the agreement or variation is not lodged within this time, the
Workplace Authority Director must not consider whether the
agreement or the agreement as varied passes the no-disadvantage
test. However, late lodgment will not give rise to a civil remedy.
In this circumstance, if the employer(s) and employees covered by
the collective agreement or the agreement as varied wished still to
implement the agreement or variation, they would need to make an
enterprise agreement under the FW Act.
Item 5 - Modification - limits on variation of a collective agreement that
operates from approval for the purpose of passing the no-disadvantage test
Item 9 - Modification - limits on varying variations for the purpose of
passing the no-disadvantage test
413. Under the (preserved) provisions of Division 5A of Part 8 of the WR
Act (which deal with the no-disadvantage test), where a collective
agreement that operates from approval (or a collective agreement as
varied) fails the no-disadvantage test, an employer may lodge a
variation of the agreement (or the agreement as varied) to try to
pass the test. The types of collective agreements that operate from
approval are union collective agreements or employee collective
agreements (or multiple-business agreements that would be one of
those types of agreements but for subsection 331(1) of the WR Act).
414. These items amend the provisions governing such variations by
setting a time limit within which a variation must be lodged,
namely within 37 days from the later of the WR Act repeal day or
the date specified in the notice issued under subsection 346M(2) of
the WR Act in relation to the agreement. The specified period of
37 days is calculated by reference to a period of 7 days after the
date specified in the notice plus an additional 30 days to allow
the parties to make a variation for the purposes of passing the no-
disadvantage test.
415. This ensures that employers have sufficient time to lodge a
variation for the purposes of passing the no-disadvantage test
where, for example, the Workplace Authority Director issued the
notice shortly before the WR Act repeal day but a variation for the
purpose of passing the no-disadvantage test has not been made (or
lodged).
416. The provisions of Division 5A of Part 8 of the WR Act governing the
variation of collective agreements that operate from lodgment are
not affected by this modification. They are preserved and continue
to operate.
Division 3 - Transitional provisions relating to pre-WR Act repeal day
terminations of collective agreements
417. This Division applies to pre-WR Act repeal day terminations of
collective agreements. It preserves and modifies various provisions
of Part 8 of the WR Act that allow for the termination of
collective agreements either through lodgment of terminations with
the Workplace Authority or by application to the AIRC.
Item 10 - Termination by approval general rule - continued application of
lodgment provisions
Item 11 - Modification - unlodged terminations must be lodged within 14
days
418. These items provide that where a collective agreement has been
terminated as at the WR Act repeal day but the termination has not
been lodged, it may still be lodged with the Workplace Authority
following the WR Act repeal day. However, it must be lodged before
the end of the period of 14 days after the termination was
approved.
419. If the termination is not lodged within this time it cannot come
into operation. However, late lodgment does not give rise to a
civil remedy. In this circumstance, if the employer(s) and
employees covered by the collective agreement still wished to
implement the termination, they would need to do so in accordance
with the termination provisions that apply under Schedule 3.
Item 12 - Unilateral termination of collective agreement in manner provided
for in agreement general rule - continued application of lodgment
provisions
Item 13 - Termination by the Commission - Commission may continue to deal
with applications made before the WR Act repeal day
420. These items preserve provisions of Part 8 of the WR Act that allow
for the termination of collective agreements in the following
circumstances:
. where a person lodges a declaration to unilaterally terminate a
collective agreement in a manner provided for in the agreement
before the WR Act repeal day;
. where a person specified in subsection 397A(2) of the WR Act has
made an application to the AIRC before the WR Act repeal day to
terminate a collective agreement (in this case, the AIRC may
terminate the agreement if it is satisfied that it would not be
contrary to the public interest to do so).
Division 4 - Transitional provisions relating to ITEAs made before the WR
Act repeal day
Division 5 - Transitional provisions relating to variations of ITEAs made
before the WR Act repeal day
Item 14 - Continued application of Part 8 to ITEAs made before the WR Act
repeal day
Item 16 - General rule - continued application of lodgment provisions and
no-disadvantage test to ordinary variations
421. These items preserve various provisions of Part 8 of the WR Act in
relation to ITEAs and variations of ITEAs made before the WR Act
repeal day. The preserved provisions relate to the lodgment of
ITEAs and variations to ITEAs, the no-disadvantage test and
prohibited content.
Item 15 - Modification - limits on variation of an ITEA that operates from
approval for the purpose of passing the no-disadvantage test
Item 17 - Modification - limits on varying variations for the purpose of
passing the no-disadvantage test
422. These items provide that where an ITEA made before the WR Act
repeal day that operates from approval (i.e., an ITEA to which
preserved subparagraph 326(2)(b)(ii) of the WR Act applies) or a
variation of an ITEA does not pass the no-disadvantage test, the
employer can lodge a variation of the ITEA to pass the no-
disadvantage test, subject to the same modifications as set out in
relation to item 5.
Division 6 - Transitional provisions relating to pre-WR Act repeal day
terminations of ITEAs
Item 18 - Termination by approval - continued application of lodgment
provisions
423. This item preserves various provisions of Part 8 of the WR Act in
relation to a termination of an ITEA, if the termination is
approved before the WR Act repeal day but not lodged by that time.
Item 19 - Unilateral termination of ITEAs in manner provided for in
agreement - continued application of lodgment provisions
Item 20 - Continued application of lodgment provisions where termination by
written notice is given before the WR Act repeal day and lodged within
120 days
424. These items preserve and modify various provisions of Part 8 of the
WR Act that allow for the termination of ITEAs in the following
circumstances:
. where a person lodges a declaration to unilaterally terminate an
ITEA in a manner provided for in the ITEA before the WR Act repeal
day (item 19);
. where a person gives notice that they are intending to lodge a
declaration to unilaterally terminate in accordance with subsection
393(4) of the WR Act (item 20) - note that subitem 20(3) provides
that the declaration must be lodged within 120 days of the WR Act
repeal day.
Division 7 - Transitional provisions relating to making ITEAs during the
bridging period
Item 21 - General rule - continued application of Part 8 to making of ITEAs
425. This item provides that ITEAs can be made during the bridging
period. This item preserves various provisions of Part 8 of the WR
Act in relation to ITEAs made during the bridging period.
426. ITEAs cannot be lodged after the end of the bridging period
(subitem 21(3)). If an employer lodges an ITEA after the end of
the bridging period, the ITEA cannot come into operation.
Item 22 - Modification - enterprise agreements and workplace determinations
are taken to be instruments
427. This item modifies provisions of Part 8 of the WR Act that are
preserved under item 21. This item provides that enterprise
agreements and workplace determinations made under the FW Act are
taken to be instruments for the following purposes:
. applying the no-disadvantage test to ITEAs made during the bridging
period;
. determining the instrument that will cover the employer and employee
where an ITEA ceases to operate because it does not pass the no-
disadvantage test.
Item 23 - Modification - limits on variation of an ITEA that operates from
approval for the purpose of passing the no-disadvantage test
428. This item provides that where an ITEA made during the bridging
period that operates from approval (i.e., an ITEA to which
subparagraph 326(2)(b)(ii) of the WR Act applies) does not pass the
no-disadvantage test an employer can lodge a variation to enable it
to pass the no-disadvantage test, subject to the same modifications
as set out in relation to item 5.
Item 24 - Modification - subsection 400(5)
429. Item 24 preserves the operation of subsection 400(5) of the WR Act,
which prohibits a person applying duress to an employer or employee
in connection with an ITEA.
Item 25 - Effect of section 342 of the FW Act during the bridging period
430. Item 25 provides that despite section 342 of the FW Act, an
employer who refuses to employ a person because they refuse to make
an ITEA does not contravene the prohibition on taking adverse
action in subsection 340(1), unless the new employee would
otherwise be a transferring employee of the new employer in a
transmission of business under the WR Act or transfer of business
under the FW Act.
Division 8 - Applying the no-disadvantage test where there is a
transmission or transfer of business
Item 26 - Applying the no-disadvantage test where there is a transmission
or a transfer of business
Item 27 - Employment arrangements if there is a transfer of business and a
workplace agreement ceases to operate because it does not pass the no-
disadvantage test
431. These items preserve and modify provisions of Division 7A of Part
11 of the WR Act which deal with the application of the no-
disadvantage test to workplace agreements that operate from
lodgment where there is a transmission of business or transfer of
business while the agreement is still to be assessed against the no-
disadvantage test.
432. The items provide that Division 7A of Part 11 of the WR Act
continues to apply. However, modifications are made to that
Division so that it also applies to transfers of business and it
reflects the new instruments that may be made under the FW Act or
created under this Bill.
433. Where there is a transmission or transfer of business and a
workplace agreement which operates from lodgment (certain ITEAs and
greenfields agreements) ceases to operate because the Workplace
Authority Director decides that it does not pass the no-
disadvantage test, the instrument that covers the new employer and
the transferring employee or employees is the instrument that is
capable of covering the new employer and that would have covered
the old employer and the transferring employee or employees
immediately before the termination of employment of the
transferring employee or employees with the old employer. An
instrument is defined in subitem 27(5). If there is no such
instrument, the designated award (within the meaning of Division 5A
of Part 8 of the WR Act) covers the new employer and the
transferring employee or employees.
434. A redundancy provision that is preserved under item 9 of Schedule
11 to this Bill continues to apply to a transferring employee if a
workplace agreement that operates from lodgment subsequently fails
the no-disadvantage test and ceases to operate (subitem 27(3)).
Division 9 - Miscellaneous
Item 28 - References to variations under Division 8
Item 29 - Documents taken to be workplace agreements etc
435. These items make clear that:
. a reference in this Part to a variation under Division 8 of Part 8
of the WR Act does not include a reference to a variation made for
the purposes of passing the no-disadvantage test; and
. certain provisions of the WR Act (which deal with documents that are
taken to be workplace agreements, variations and terminations)
continue in operation for the purposes of a provision of the WR Act
that is preserved by this Part.
Item 28A - Variations to pass no-disadvantage test after WR Act repeal day
436. The effect of this item is that from the WR Act repeal day an
employer can only lodge one variation for the purposes of passing
the no-disadvantage test regardless of how many of those variations
they have lodged before the WR Act repeal day.
437. If the Workplace Authority Director decides that an agreement as
varied (for the purposes of passing the no-disadvantage test) does
not pass the no-disadvantage test, the employer and its employees
will be required to bargain for an enterprise agreement under the
FW Act.
Part 3 - Transitional provisions relating to workplace determinations made
under the WR Act
Item 30 - Continued application of WR Act prohibited content provisions
438. This item provides that a workplace determination made under the WR
Act before the WR Act repeal day continues to be subject to the
provisions of the WR Act dealing with prohibited content (except
section 358 of the WR Act) after the WR Act repeal day.
Item 31 - Termination by approval general rule - continued application of
lodgment provisions
Item 32 - Modification - unlodged terminations must be lodged within 14
days
439. These items preserve provisions of the WR Act in relation to the
termination of a workplace determination that is approved before
the WR Act repeal day but not lodged before that day. If, as at
the WR Act repeal day, a termination of a workplace determination
has been approved but not lodged, it may still be lodged with the
Workplace Authority following the WR Act repeal day. However, it
must be lodged before the end of the period of 14 days after it is
approved.
440. If the termination is not lodged within this time it cannot come
into operation. However, late lodgment does not give rise to a
civil remedy. In this circumstance, if the employer(s) and
employees covered by the workplace determination wished to
implement the termination, they would need to do so in accordance
with the termination provisions that apply under Schedule 3.
Item 33 - Termination by the Commission - Commission may continue to deal
with applications made before the WR Act repeal day
441. This item preserves subsections 381(2) and 397(1) and (3) of the WR
Act that allow for the termination of a workplace agreement where a
person specified in subsection 397A(2) of the WR Act has made an
application to the AIRC before the WR Act repeal day (in this case,
the AIRC may terminate the workplace determination if it is
satisfied that it would not be contrary to the public interest to
do so).
Item 34 - Documents taken to be workplace determinations
442. This item makes clear that section 381A of the WR Act (which deal
with documents that are taken to be terminations) continues in
operation for the purposes of a provision of the WR Act that is
preserved by this Part.
Schedule 9 - Minimum wages
Part 1 - Preliminary
Item 1 - Meanings of employee and employer
443. In this Schedule, the terms employee and employer mean national
system employee and national system employer respectively (as
defined in sections 13 and 14 of the FW Act). The rights and
obligations of employers and employees set out in this Schedule
apply only to the employment relationships within the scope of the
corporations and other constitutional powers that are engaged by
sections 13 and 14 of the FW Act.
Part 2 - Special provisions relating to FWA's first annual wage review
Item 2 - Period to which first annual wage review relates
444. This item provides that FWA's first annual wage review is to be
conducted and completed within a period that starts on the FW
(safety net provisions) commencement day and finishes at the end of
the following 30 June.
445. This timeframe applies even if the period does not amount to a full
financial year. For example, if the FW (safety net provisions)
commencement day is 1 January 2010, FWA's first annual wage review
would need to be conducted and completed in the six months between
that date and 30 June 2010. Item 3 is designed to assist FWA meet
this obligation.
Item 3 - Exercise of powers in advance of first annual wage review period
446. This item allows FWA to start gathering information for the purpose
of conducting its first annual wage review before the FW (safety
net provisions) commencement day.
447. As part of FWA's information-gathering process, FWA may exercise
various powers including inviting persons or bodies to make written
submissions and undertaking or commissioning research to assist
with the review.
Item 4 - First national minimum wage order does not have to set full range
of special national minimum wages
448. This item provides that, in conducting its first annual wage
review, FWA does not have to establish special national minimum
wages for all classes of employees referred to in paragraph
294(1)(b) of the FW Act. However, it must do so if there was a
special federal minimum wage for those employees under the WR Act
immediately before the FW (safety net provisions) commencement day.
449. The classes of employees referred to in paragraph 294(1)(b) of the
FW Act are:
. junior employees;
. employees to whom training arrangements apply; and
. employees with a disability.
450. The AFPC set special federal minimum wages for employees with a
disability in its 2006 wage-setting decision. However, it has not
set special federal minimum wages for junior employees or employees
to whom training arrangements apply. FWA is required to set
special national minimum wages for these employees as part of its
first annual wage review.
451. As the setting of special national minimum wages for junior
employees and employees to whom training arrangements apply is
likely to be a substantial task, FWA is not required to set minimum
wage rates for these employees until FWA's second annual wage
review.
452. If FWA does not set special minimum wages for junior employees and
employees to whom training arrangements apply in its first annual
wage review, the President of FWA is required to set in train a
process for the setting of these special national minimum wages in
FWA's second annual wage review. FWA can advise persons or bodies
of the process in any way it considers appropriate.
Part 3 - Continued application of WR Act provisions about minimum wages
Division 1 - General provisions
Item 5 - Continuation of Australian Fair Pay and Conditions Standard wages
provisions
453. Subitem (1) provides for the continued operation of the wages
provisions in the AFPCS following the repeal of the WR Act.
454. Subitem (2) explains when various wage provisions cease to operate
- for example:
. provisions relating to federal minimum wages and casual loadings
cease to apply at the end of the bridging period (because, under
item 12, a national minimum wage order to the same effect is then
taken to have been made);
. provisions authorising the AFPC to do something cease to have effect
when the AFPC ceases to exist;
. the frequency of payment guarantee is not preserved, because the FW
Act already provides for this (Division 2 of Part 2-9).
455. Subitem (3) provides for the continuation of APCSs, the standard
federal minimum wage, special federal minimum wages and the default
casual loading. These instruments will continue to exist after the
WR Act repeal day as transitional minimum wage instruments.
456. The effect of these provisions is to preserve existing obligations
to pay employees these minimum rates of pay for as long as those
instruments continue to cover those employees. Provisions
explaining when employees are covered by transitional minimum wage
instruments are located at item 6.
. This differs from the rule that applies to the remainder of the AFPCS.
The entitlements in the APFCS about hours of work, annual leave,
personal/carer's leave and parental leave cease to operate at the end
of the bridging period. This is because the NES then applies.
. Minimum wage rates in APCSs, however, continue to be relevant until
replaced by a modern award (see item 11). (While award
modernisation is expected to be substantially completed by the end
of the bridging period, some awards may not have been modernised.
APCSs will also continue to be relevant for employees covered by
enterprise instruments).
457. Rules dealing with the interaction between transitional instruments
and the AFPCS will continue to apply during the bridging period
(see item 22 of Schedule 3). However, after the bridging period,
interaction rules that result in an instrument applying instead of
the APFCS (e.g., agreements made before the commencement of the
Work Choices amendments that deal with the same matter) will cease
to operate.
458. In practice, this means that if a transitional APCS that covers an
employee provides a higher rate of pay than the instrument, the
APCS rate applies (see subitems 22(2)-(4) of Schedule 3). Item 14
allows an employer subject to wage increases as a result of this
provision to apply to FWA for an order to phase in wage increases.
459. The transitional standard federal minimum wage, transitional
special federal minimum wage and the default casual loading will
cease to cover any employees after the end of the bridging period
(see item 12). At the end of the bridging period, FWA will be
taken to have made a transitional national minimum wage order
determining:
. the national minimum wage;
. for each transitional special federal minimum wage that was in
existence immediately before the FW (safety net provisions)
commencement day - a special national minimum wage; and
. a casual loading for award and agreement-free employees.
460. All rates in the transitional national minimum wage order will be
the same as the rates in the corresponding transitional minimum
wage instrument immediately before the FW (safety net provisions)
commencement day.
Item 5A - References to workplace agreements include references to
enterprise agreements
461. Item 5 sets out how the wage provisions of the WR Act continue to
apply, and when they cease to operate.
462. To ensure that the provisions continue to operate as intended with
new system agreements, item 5A provides that a reference in the
continued provisions to a workplace agreement includes a reference
to an enterprise agreement.
Item 6 - The employees who are covered by transitional minimum wage
instruments
463. Item 6 contains rules for determining when an employee is covered
by a transitional minimum wage instrument.
464. Subitem (2) provides that a transitional APCS does not cover an
employee, or an employer or employee organisation in relation to
the employee, if the employee is a high income employee within the
meaning of section 329 of the FW Act.
Item 7 - Transitional minimum wage instruments can only be varied or
terminated in limited circumstances
465. This item describes the circumstances in which transitional minimum
wage instruments can be varied or terminated.
466. Transitional minimum wage instruments can only be varied by the
following bodies and in the following circumstances:
. the AFPC - as part of its final wage review under the WR Act; and
. FWA - as part of an annual wage review.
467. A transitional minimum wage instrument can also be varied or
terminated as a result of the Part 10A award modernisation process
(see item 3 of Schedule 5) or the enterprise instrument
modernisation process (see item 9 of Schedule 6).
Item 8 - Effect of termination
468. This item provides that when a transitional minimum wage instrument
terminates it ceases to cover any employees and can never cover any
employees again.
Item 9 - No loss of accrued rights or liabilities when transitional minimum
wage instrument terminates or ceases to cover an employee
469. This item preserves accrued rights and liabilities when
transitional minimum wage instruments terminate or cease to cover
employees.
Division 2 - Special provisions about transitional APCSs
Item 10 - Variation of transitional APCS in annual wage reviews under the
FW Act
470. This item allows FWA to vary a transitional APCS as part of an
annual wage review.
471. With the exception of section 292 (which relates to publication of
varied wage rates), all of Division 3 of Part 2-6 of the FW Act
applies to a review of a transitional APCS in the same way as it
applies to a modern award.
Item 11 - Transitional APCS ceases to cover an employee if a modern award
starts to cover the employee
472. This item provides that a transitional APCS ceases to cover an
employee when a modern award covering that employee comes into
operation. This might occur, for example, when an enterprise
instrument is terminated.
473. FWA is required to revoke transitional APCSs when they no longer
cover any employees (see item 3 of Schedule 5).
Division 3 - Special provisions about the FMW, special FMWs and the default
casual loading
Item 12 - Cessation of coverage of transitional standard FMW etc.
474. This item provides that on the FW (safety net provisions)
commencement day, the transitional standard federal minimum wage,
any transitional special federal minimum wages, the transitional
default casual loading and subsections 182(3) and (4) and section
185 of the continued AFPCS wages provisions cease to cover any
employees.
475. At this time, FWA is taken to have made a transitional national
minimum wage order determining:
. the national minimum wage;
. for each transitional special federal minimum wage that was in
existence immediately before the FW (safety net provisions)
commencement day - a special national minimum wage; and
. a casual loading for award and agreement-free employees.
476. All rates in the transitional national minimum wage order will be
the same as the rates in the corresponding transitional minimum
wage instrument immediately before the FW (safety net provisions)
commencement day. The effect of this is to maintain existing
minimum wage rates, but ensure that they continue to operate within
the new framework.
477. All employers to whom the national minimum wage order applies will
be required to pay their employees a base rate of pay and/or casual
loading that at least equals the relevant rate in the national
minimum wage order.
Part 4 - Universal application of minimum wages to employees
Item 13 - Base rate of pay under agreement-based transitional instrument
must not be less than the modern award rate or the national minimum wage
order rate etc.
478. This item (together with the continued AFPCS interaction rules in
item 22 of Schedule 3, described earlier) ensure that, on or after
FW (safety net provisions) commencement day all employees are
entitled to at least the relevant safety net minimum wage - from
either the relevant modern award, transitional APCS or, if the
employee is award/agreement free, the national minimum wage order.
479. If an agreement-based transitional instrument provides a lesser
base rate of pay, the relevant safety net minimum wage applies.
. This rule reflects section 206 of the FW Act. Item 15 provides an
equivalent rule where a new enterprise agreement is made and applies
to an employee covered by a transitional minimum wage instrument.
Item 14 - FWA may make determinations to phase in the effect of rate
increases resulting from item 13 etc
480. This item provides that employers to whom a transitional instrument
applies can make an application to FWA for an order that allows
them to phase in increases to base rates of pay where the increases
are the result of the operation of item 13 or subitem 22(2) of
Schedule 3 and where the phasing-in of the increases is necessary
to ensure the ongoing viability of the employer's enterprise.
Item 15 - Enterprise agreement base rate of pay not to be less than
transitional minimum wage instrument rate
481. This item provides that where a transitional minimum wage
instrument covers an employee and an enterprise agreement applies
to the employee, the base rate of pay payable to the employee under
an enterprise agreement must not be less than the base rate of pay
that is payable to the employee under the transitional minimum wage
instrument.
482. If the agreement rate is less than the instrument rate, the
enterprise agreement has effect in relation to the employee as if
the agreement rate were equal to the instrument rate.
Schedule 10 - Equal remuneration
483. This Schedule provides transitional arrangements for equal
remuneration orders made under the WR Act, and makes necessary
transitional provision for the making and operation of equal
remuneration orders under Part 2-7 the FW Act.
Part 1 - Preliminary
Item 1 - Meanings of employee and employer
484. In this Schedule, the terms employee and employer mean national
system employee and national system employer respectively (as
defined in sections 13 and 14 of the FW Act). The rights and
obligations of employers and employees set out in this Schedule
apply only to the employment relationships within the scope of the
corporations and other constitutional powers that are engaged by
sections 13 and 14 of the FW Act.
Part 2 - Equal remuneration orders under the FW Act
Item 2 - FWA must take into account AFPC's final wage review
485. Under Part 2-7 of the FW Act, when deciding whether to make an
equal remuneration order, FWA must take account of orders and
determinations made by the Minimum Wage Panel and the reasons for
the orders and determinations.
486. The Minimum Wage Panel's first annual wage review decision will not
come into effect until 1 July 2010.
487. This item provides that, in the period between commencement of Part
2-7 and the first annual wage review decision, FWA must instead
take account of the AFPC's final wage review decision under the WR
Act.
Item 3 - Inconsistency with certain instruments and orders
488. The FW Act (like the WR Act) ensures primacy of equal
remuneration orders over other instruments. This item and item 5
ensure that equivalent transitional rules govern the interaction of
equal remuneration orders and instruments irrespective of whether
the order and instrument were made under the FW Act or the WR Act.
489. Item 3 provides that a term of an equal remuneration order made
under the FW Act prevails over a term of:
. a transitional instrument;
. an order of the AIRC made under the WR Act; or
. a transitional APCS,
to the extent that the instrument or order is less beneficial to an
employee.
Part 3 - Equal remuneration orders under the WR Act
Item 4 - Continued effect of equal remuneration orders
490. This item allows FWA to vary or revoke an equal remuneration order
that was made under the WR Act (in force from time to time), as if
it were an order made under the FW Act.
Item 5 - Inconsistency with certain instruments and orders
491. The WR Act (like the FW Act) ensures primacy of equal remuneration
orders over other instruments. This item and item 3 ensure that
equivalent transitional rules govern the interaction of equal
remuneration orders and instruments irrespective of whether the
order and instrument were made under the FW Act or the WR Act.
492. Item 5 provides that a term of an equal remuneration order made
under the WR Act prevails over a term of a WR Act or FW Act
instrument or order that is listed in subitem 5(2) to the extent
that it is less beneficial to the employee than a term of an equal
remuneration order made under the WR Act that applied to that
employee immediately before WR Act repeal day.
2. Schedule 11 - Transfer of business
493. Schedule 11 sets out transitional and consequential provisions
relating to transmissions of business and transfers of business.
The provisions of the Schedule generally:
. allow for the continued application of the WR Act where
transmissions of business occur before the WR Act repeal day, with
certain modifications;
. provide for the application of the transfer of business provisions
in Part 2-8 of the FW Act to transfers of business that occur on or
after the WR Act repeal day; and
. allow, during the bridging period, for the transfer of entitlements
under the AFPCS and preserved redundancy provisions.
Part 1 - Preliminary
Item 1 - Meanings of employee and employer
494. In this Schedule, the terms employer and employee have their
ordinary meanings. Generally, references in this Schedule to
employee and employer are references to national system employee
and national system employer respectively (as defined in sections
13 and 14 of the FW Act). However, paragraph 3(2)(b) of this
Schedule deals with transitional instruments that apply in relation
to employers and their employees who are not within the definitions
of national system employer and national system employee.
Part 2 - Transmissions of business occurring before WR Act repeal day
495. This Part deals with transmissions of business that occur where a
new employer becomes the successor, transmittee or assignee of the
whole, or a part, of a business of the old employer and the time of
transmission (as defined under Part 11 of the WR Act) was before
the WR Act repeal day. It provides general rules for the continued
application of the transmission of business provisions of the WR
Act as well as specific rules dealing with:
. the period for which certain instruments and other entitlements
cover or apply to new employers; and
. applications to the AIRC in relation to the transmission of certain
transitional instruments.
Item 2 - General rule - continued application of WR Act
496. This item outlines the circumstances in which Part 2 applies. It
provides that despite the repeal of Part 11 of the WR Act, some
provisions contained in that Part continue to apply in relation to
transmissions of business that occurred before the WR Act repeal
day, as if they had not been repealed. In this way, the item
preserves and modifies various provisions of Part 11 of the WR Act.
497. Under Part 11 of the WR Act, the time at which a transmission of
business occurs is called the time of transmission (see subsection
580(3)). However, a person can be a transferring employee in
relation to that transmission of business if they are employed by
the new employer up to two months after the time of transmission.
Part 11 of the WR Act may therefore have application where a person
is employed by the new employer after the WR Act repeal day if the
time of transmission occurred before the WR Act repeal day.
Illustrative example
On 25 June 2009, Whizz Bang Apparel Limited (WBA) acquires all of the
business of Jocks 'n' Socks Pty Ltd (JnS). WBA is bound by a collective
agreement that covers all of its employees. The sale is a transmission of
business under Part 11 of the WR Act and 25 June 2009 is the time of
transmission under subsection 580(3) of that Act. WBA does not engage any
of JnS's employees at the time of transmission because it is still
ascertaining whether it requires any of JnS's employees to work in the
acquired business.
WR Act repeal day occurs on 1 July 2009. On 6 July 2009, WBA offers
employment to Sam, who was marketing manager of JnS before the sale; he
accepts the job. The effect of item 2 is that Part 11 of the WR Act (as
modified) continues to apply because the time of transmission occurred
prior to the WR Act repeal day. Sam would therefore become a transferring
employee (see section 581 of the WR Act) and the collective agreement would
bind WBA (see subsection 585(1) of the WR Act).
498. Subitem 2(3) is intended to operate in the same manner as provided
in subitem 2(2) in relation to Schedule 9 to the WR Act.
Item 3 - Period for which transmitted transitional instrument etc.
continues to cover or apply to new employer
499. This item sets out the period for which a new employer remains
covered by certain transitional instruments in relation to a
transferring employee because of a provision of Part 11 of, or
Schedule 9 to, the WR Act.
500. The general rule about the period for which a new employer is
covered by a transitional instrument (as defined in item 2 of
Schedule 2) is set out at subitem 3(1). A new employer will remain
covered by a transitional instrument until one of the following
first occurs:
. the instrument is terminated;
. the transmission period ends (as defined in subsection 580(4) of,
and subclause 4(4) of Schedule 9 to, the WR Act). This period does
not apply in relation to certain pre-reform certified agreements
(referred to in subitem 3(2));
. the instrument otherwise ceases to cover the new employer in
relation to the transferring employee.
501. The circumstances in which an instrument might cease to cover the
new employer in relation to the transferring employee include where
the instrument is (in effect) replaced by a new FW Act instrument
(see Division 2 of Part 5 of Schedule 3).
502. The item also provides specific rules in relation to the coverage
and application of a transitional APCS and preserved redundancy
provisions. The effect of these rules is to provide for the
continued application of Division 6 of Part 11 of the WR Act in the
case of a transitional APCS, where a transferring employee's
employment with the new employer remains covered by the APCS.
503. In the case of preserved redundancy provisions, subitem 3(4)
provides that if a redundancy provision applies to a new employer
and a transferring employee because of the continued application of
Division 6A of Part 11 of, or Part 5A of Schedule 9 to, the WR Act,
the transferring employee's transmitted redundancy provisions
prevail over any of the new employer's existing industrial
instruments until one of the events as set out in paragraphs
3(4)(a)-(c) occurs.
Item 4 - Effect of industry-specific redundancy scheme in modern award in
relation to preserved redundancy provisions
504. This item provides an exception to the rule in subitem 3(4) that a
preserved redundancy provision continues to apply to a new
employer. The exception provides that an industry specific
redundancy scheme in a modern award prevails over another
redundancy provision that applies to a new employer and a
transferring employee because of Division 6A of Part 11 of, or Part
5A of Schedule 9 to, the WR Act if the other redundancy provision
is detrimental to the transferring employee.
Item 5 - Modification - applications to Commission in relation to
transmission of certain transitional instruments
505. This item provides that the rules in items 2 and 3 (governing the
continued operation of Part 11 of, and Schedule 9 to, the WR Act)
are subject to any order of the AIRC.
506. The item maintains, with some modifications, the powers of the AIRC
for transmissions of business that occur before the WR Act repeal
day. The effect of this item is to enable the AIRC to make orders
in relation to the following instruments:
. transitional instruments that are collective agreements;
. transitional instruments that are awards;
. transitional instruments that are pre-reform certified agreements;
. transitional instruments that are State transitional instruments.
507. Subitems 5(5) and (6) modify the time within which an application
may be made to the AIRC for an order within 90 days after the WR
Act repeal day.
Item 6 - Modification - civil remedy provisions
508. This item modifies the legislative notes to certain provisions of
Part 11 of, and Schedule 9 to, the WR Act that refer the reader to
the civil penalty provisions contained in section 605 of, and
clause 31 of Schedule 9 to, the WR Act respectively.
509. The legislative notes refer the reader to the civil penalty
provisions contained in item 11 of Schedule 16 to this Bill.
Part 3 - Transfers of business occurring on or after WR Act repeal day
510. This Part deals with transfers of business that occur on or after
the WR Act repeal day. It provides, among other things, for the
application of Part 2-8 of the FW Act to transitional instruments
(as defined in Schedule 3), with some modifications. The Part also
provides transitional provisions for the transfer of preserved
redundancy provisions and entitlements under the AFPCS during the
bridging period.
Division 1 - General
Item 7 - Application of FW Act in relation to transferring employees
covered by transitional instrument
511. This item provides for the application of the transfer of business
provisions in Part 2-8 of the FW Act in relation to transferring
employees covered by transitional instruments.
512. Part 2-8 of the FW Act applies where there is a transfer of
business within the meaning of subsection 311(1) of the FW Act and
the connection between the old employer and the new employer
referred to in paragraph 311(1)(d) of that Act occurs on or after
the WR Act repeal day.
513. The item makes clear that Part 2-8 of the FW Act applies regardless
of whether:
. the transferring employee's employment was terminated by the old
employer before, on or after the WR Act repeal day; or
. the transferring employee was employed by the new employer before,
on or after the WR Act repeal day.
514. This contemplates that Part 2-8 of the FW Act will apply, for
example, where a transferring employee's employment is terminated
and the employee becomes employed by the new employer before the WR
Act repeal day but the connection between the old employer and the
new employer under paragraph 311(1)(d) does not occur until after
the WR Act repeal day.
Illustrative example
In May 2009, Geraldton Electric Pty Ltd (Geraldton) enters into an
arrangement with Ingham Business Machines (Ingham) under which Ingham will
buy Geraldton's business. The arrangement provides that Geraldton's
employees will be offered employment by Ingham effective 27 June 2009.
However, because the sale cannot complete until certain leasehold consents
are obtained, completion will not occur until 15 July 2009. On completion,
the ownership of Geraldton's business assets will transfer to Ingham.
Item 7 has the effect that the transfer of business provisions of Part 2-8
of the FW Act will apply to this transaction because there is a transfer of
business as described in subsection 311(1) of the FW Act and the connection
between Geraldton and Ingham occurs after the WR Act repeal day. Item 7
applies regardless of the fact that the termination of the transferring
employees' employment and their subsequent employment with Ingham occurred
before the WR Act repeal day.
Item 8 - Modification - application of FW Act in relation to transitional
instruments
515. This item modifies the application of Part 2-8 of the FW Act to
make clear that the definition of transferable instrument in
subsection 312(1) of the FW Act is extended to cover transitional
instruments, other than workplace agreements and workplace
determinations that have not yet come into operation. This means
that where a transfer of business occurs and the old employer was
covered by a transitional instrument in relation to a transferring
employee, the transitional instrument covers the new employer and
the transferring employee.
516. The item further provides that, subject to certain exceptions in
subitems 8(3)-(5), a reference in Part 2-8 to an enterprise
agreement or a modern award is taken to include a reference to an
agreement-based transitional instrument or an award-based
transitional instrument respectively.
Division 2 - Transfer of preserved redundancy provisions during bridging
period
517. This Division sets out the provisions relating to the transfer of
preserved redundancy provisions during the bridging period.
Item 9 - Transfer of preserved redundancy provisions
518. This item sets out the general application of the Division. It
also sets out the definitions of key terms that are used in the
item.
519. The item provides that a redundancy provision applies to a new
employer and the transferring employee after the time the employee
becomes employed by the new employer, if the following
circumstances are satisfied:
. there is a transfer of business from an old employer to a new
employer within the meaning of subsection 311(1) of the FW Act; and
. the connection between the old employer and the new employer occurs
during the bridging period; and
. immediately before the termination of an employee's employment with
the old employer, a redundancy provision applied to the old employer
and the employee because of a preservation item (as defined in
subitem 9(7)) or a previous application of this item; and
. the employee is a transferring employee in relation to the transfer
of business.
520. The item makes clear that a redundancy provision applies regardless
of whether the transferring employee's employment was terminated by
the old employer before, on or after the WR Act repeal day or
whether the transferring employee was employed by the new employer
before, on or after the WR Act repeal day.
521. Subitem 9(4) provides a general rule that, to the extent of any
inconsistency, a redundancy provision prevails over any other
redundancy provision included in any other instrument that would
otherwise have effect, even if the provisions in that other
instrument are more beneficial to the transferring employee.
522. This general rule is subject to an exception contained in subitem
9(5) which provides that an industry-specific redundancy scheme
prevails over another redundancy provision if that provision is
detrimental to the transferring employee.
523. Subitem 9(6) provides that the redundancy provision continues to
apply to a new employer and a transferring employee until the first
of the following occurs:
. the end of the period of 24 months from the time that the agreement
that contained the redundancy provision ceased operating. (This
means that the date that the redundancy provisions cease to apply to
the new employer is the same date that the provisions would have
ceased to apply to the old employer. The intention is that the new
employer's obligations with respect to the redundancy provisions
match the old employer's. The obligations do not start afresh on a
transfer of business.);
. the transferring employee ceases to be employed by the new employer;
or
. an enterprise agreement, workplace determination or ITEA starts to
apply to the transferring employee.
Item 10 - Notification of transfer of preserved redundancy provisions
Item 11 - Lodging copy of notice about preserved redundancy provisions with
FWA
Item 12 - FWA must issue receipt for lodgement
524. These items create notification obligations for new employers in
respect of transferred preserved redundancy provisions. The effect
of the provisions is to require the new employer to inform the
transferring employee about the continued operation of the
preserved redundancy provision, and to lodge the relevant notice
with FWA.
Division 3 - Transfer of entitlements under the AFPCS during bridging
period
Item 13 - Transfer of entitlements under the AFPCS
525. This Division provides for the transfer of entitlements under the
AFPCS during the bridging period. The intention is that, despite
the repeal of the provisions of Division 7 of Part 11 of the WR
Act, the Division will continue to apply to transfers of business
in the bridging period, subject to the modifications set out in
subitem 13(3).
526. The item applies if there is a transfer of business from an old
employer to a new employer within the meaning of subsection 311(1)
of the FW Act and the connection between the old employer and the
new employer occurs during the bridging period.
527. The item makes clear that (subject to the provisions of Division 7
of Part 11 of the WR Act) entitlements under the AFPCS can transfer
regardless of whether the transferring employee's employment was
terminated by the old employer before, on or after the WR Act
repeal day or whether the transferring employee was employed by the
new employer before, on or after the WR Act repeal day.
Schedule 12 - General protections
Item 1 - Meaning of employee and employer
528. In this Schedule, the terms employer and employee have their
ordinary meanings. This is because the only references in the
Schedule to 'employer' and 'employee' are to employers and
employees to whom transitional instruments apply. Transitional
instruments can apply to national system employers and employees,
or to other employers and employees.
. For example, a transitional instrument that is a workplace agreement
will apply to a national system employer and a national system
employee or employees.
. However, some pre-reform certified agreements ('Division 3'
agreements currently preserved by Part 2 of Schedule 7 to the WR
Act) will only apply to employers that are outside the definition of
national system employer and their employees.
Item 2 - Application in relation to Australian Fair Pay and Conditions
Standard
Item 3 - Application in relation to award-based transitional instruments
and agreement-based transitional instrument
529. These items ensure that the general protections provisions in Part
3-1 of the FW Act provide comprehensive protection from 1 July 2009
by providing that:
. during the bridging period, a reference in that Part to the NES is
taken to include a reference to the AFPCS (item 2); and
. a reference to a modern award or an enterprise agreement is taken to
include a reference to an award-based transitional instrument or an
agreement-based transitional instrument respectively (item 3).
530. The amendments in subitem 3(1) ensure that the prohibition on undue
influence or pressure in paragraph 344(b) operates effectively
during the bridging period in relation to terms specified in
transitional instruments.
Schedule 13 - Bargaining and industrial action
531. This Schedule provides for the transitional and consequential
arrangements in respect to the bargaining and industrial aspects of
the new workplace relations system. With the repeal of the WR Act,
those involved in bargaining for a collective agreement will
generally need to start the bargaining and industrial action
processes afresh under the FW Act in relation to an enterprise
agreement. The items in this Schedule cover the situations that
differ from this general rule as well making provision for
transitional instruments as they affect bargaining and industrial
action.
Part 1 - Preliminary
Item 1 - Meanings of employee and employer
532. In this Schedule, the terms employee and employer mean national
system employee and national system employer respectively (as
defined in sections 13 and 14 of the FW Act). The rights and
obligations of employers and employees set out in this Schedule
relate principally to the employment relationships within the scope
of the corporations and other constitutional powers that are
engaged by sections 13 and 14 of the FW Act.
533. The exception is that the Schedule deals with the effect of orders
made under subsection 496(3) of the WR Act in relation to non-
federal system employers and employees. However, the relevant
provisions do not use the terms employer and employee and there is
no need to apply the ordinary meaning of those terms in those
provisions.
Part 2 - Bargaining
534. Part 2 deals with how the bargaining laws in the FW Act operate in
relation to employees covered by individual agreement-
based transitional instruments. It also limits when applications
may be made for bargaining orders where certain collective
agreement-based transitional instruments have not passed their
nominal expiry date.
Item 2 - Employee covered by individual agreement-
based transitional instrument is taken not to be an employee who will be,
or who is, covered by enterprise agreement in certain circumstances
535. If an employee is covered by an individual agreement-
based transitional instrument, then subitem 2(2) provides that the
employee is only taken to be an employee that will be covered by a
proposed enterprise agreement if the nominal expiry date of the
individual agreement-based transitional instrument has passed or a
conditional termination of the instrument has been made under
subitem 18(2) of Schedule 3. Subitem 18(2) of Schedule 3 sets out
the process for making conditional terminations and the effect of
these terminations.
536. The legislative note to subitem 2(2) explains the main effects of
this subitem are that such an employee cannot:
. be represented in bargaining;
. vote on an enterprise agreement;
. be in a group of employees covered by a protected action ballot
order in relation to the enterprise agreement; or
. have the enterprise agreement apply to them,
unless either the nominal expiry date of the individual agreement-
based transitional instrument has passed or a conditional termination has
been made in respect to the instrument.
537. Subitem 2(3) provides that despite subitem 2(2), an employer is
still required to give an employee a notice of employee
representational rights under section 173 of the FW Act if the
employer would otherwise have been required to give such a notice.
This ensures the employee is aware that bargaining is taking place
for an enterprise agreement but, as is required to be explained in
the notice, a person can only become the employee's bargaining
representative after either the nominal expiry date of the
individual agreement-based transitional instrument has passed or a
conditional termination of the instrument is made.
538. An employer may issue the same notice of employee representational
rights to its employees, regardless of the type of instrument that
covers an employee (e.g., an individual agreement-
based transitional instrument or an enterprise agreement) so long
as the notice includes the information prescribed in section 174 of
the FW Act as well as in subitem 2(3).
Item 3 - Application for bargaining order where certain collective
agreement-based transitional instruments have not passed nominal expiry
date
539. This item provides that the same time limitations apply to making
applications for bargaining orders where certain collective
agreement-based transitional instruments apply as apply to
enterprise agreements generally, as specified in subsection 229(3)
of the FW Act. Therefore, if such a transitional instrument
applies to an employee then an application for a bargaining order
in respect to a proposed enterprise agreement may only be made if
it is more than 90 days before the nominal expiry date of the
transitional instrument, or after an employer has agreed to bargain
or has initiated bargaining (e.g., by asking employees to approve a
proposed enterprise agreement).
Part 3 - Industrial action
540. This Part deals with the transitional and consequential provisions
for industrial action. In particular, this Part:
. provides that industrial action must not be taken before the nominal
expiry date of an agreement-based transitional instrument;
. sets out rules relating to applications, orders and injunctions
under sections 496 and 497 of the WR Act, after the WR Act repeal
day;
. specifies that any applications or reviews relating to bargaining
periods or orders suspending or terminating bargaining periods that
have not been dealt with are of no effect after the WR Act repeal
day. The only exception to this rule is if an order terminating a
bargaining period was made under either section 430 or 498 of the WR
Act, then FWA may make a workplace determination (under the
provisions of the FW Act) in relation to the collective agreement;
and
. makes clear that notices of industrial action issued under the WR
Act are of no effect after the WR Act repeal day.
Item 4 - Industrial action must not be taken before the nominal expiry date
of transitional instrument
541. This item applies section 417 and item 14 of the table in
subsection 539(2) of the FW Act after the WR Act repeal day in
relation to agreement-based transitional instruments. This ensures
that an employee who is covered by such an instrument cannot
organise or engage in industrial action until after the nominal
expiry date of the instrument has passed. Subitem 4(2) provides
that this rule does not apply if an employer and employee covered
by an individual agreement-based transitional instrument have made
a conditional termination in relation to the instrument.
Item 5 - Applications on foot under sections 496 and 497 of the WR Act
542. Despite the repeal of sections 496 and 497 of the WR Act, this item
requires the AIRC or Court to consider applications made under
these sections but not finally dealt with as at the WR Act repeal
day in accordance with the WR Act. However, subitem 5(2) makes it
clear that if the AIRC or the Court does not make an order or grant
an injunction to stop industrial action that is alleged to be
unprotected, this will not affect whether or not the industrial
action is protected under the FW Act.
Item 6 - Continuation of section 496 and 497 orders and injunctions
543. This item ensures that despite the repeal of sections 496 and 497
of the WR Act, any orders made or injunctions granted under those
provisions continue in operation after the WR Act repeal day and
also that no persons may breach these orders or injunctions after
that date.
Item 7 - Civil remedy provisions of FW Act apply to section 496 orders
544. This item applies the civil remedy provisions of the FW Act to a
breach of an order under section 496 of the WR Act that occurs
after the WR Act repeal day.
Item 8 - Effect of orders terminating bargaining periods upon industrial
action related workplace determinations
545. If an order is made terminating a bargaining period on a ground
referred to in subsection 430(3) of the WR Act or the Minister
makes a declaration under section 498 of the WR Act terminating a
bargaining period, either may result in the making of a workplace
determination under the WR Act. Item 8 ensures that if an order
terminating a bargaining period under either of those provisions is
in force immediately before the WR Act repeal day, then FWA may
make an industrial action related workplace determination in
relation to that proposed collective agreement in accordance with
sections 266, 267 and 268 of the FW Act, as if that proposed
collective agreement were an enterprise agreement.
Item 9 - Commission must not deal further with applications, appeals or
reviews relating to bargaining periods
546. This item provides that if the AIRC has not finally dealt with an
application for the suspension or termination of a bargaining
period under Division 2 of Part 9 of the WR Act before the WR Act
repeal day, the AIRC must not after that day deal with the
application or any appeal or review relating to the application.
Item 10 - Effect of suspension or termination orders on or after the WR Act
repeal day
547. This item makes it clear that an order suspending or terminating a
bargaining period under Division 2 of Part 9 of the WR Act is of no
effect after the WR Act repeal day, other than as referred to in
item 8.
Item 11 - Notices of industrial action of no effect on or after WR Act
repeal day
548. This item provides that any notices of intention to take industrial
action issued under section 441 of the WR Act before the WR Act
repeal day cease to have effect on or after that day.
Part 4 - Protected action ballots
549. The key provision of this Part is that protected action ballot
orders under the WR Act are of no effect after the WR Act repeal
day. This means that, even if protected industrial action has
taken place prior to the WR Act repeal day, bargaining
representatives will need to apply afresh for protected action
ballots after that day. This Part deals with technical
transitional issues relating to protected action ballots, for
example, record keeping requirements and liability for the costs of
protected action ballots under the WR Act. This Part also restricts
when applications for protected action ballots may be made if
certain agreement-based transitional instruments cover the
employees. Further technical transitional matters relating to
protected action ballots are addressed in Schedule 16 (Compliance).
Item 12 - Commission must not deal further with application, appeal or
review relating to ballot order
550. This item provides that the AIRC must not, on or after the WR Act
repeal day, deal with any application, appeal or review relating to
a ballot order.
Item 13 - Ballot orders and authorisations have no effect on or after WR
Act repeal day
551. This item provides that any ballot order under subsection 451(1) of
the WR Act, or a ballot or authorisation under such an order, is of
no effect after the WR Act repeal day. This means that no
protected action ballots can be conducted or continued after this
date and that any nomination in a ballot order of a person as an
authorised ballot agent or as an independent advisor will also be
of no effect. This item is subject to item 15.
Item 14 - Continuation of sections 476, 477 and 479 of the WR Act for
protected action ballots completed before WR Act repeal day
552. This item continues in operation section 476, subsections 477(1) to
(6) and section 479 of the WR Act in relation to ballots completed
before the WR Act repeal day. This ensures that:
. authorised ballot agents are still required to declare the results
of these ballots (section 476) and comply with the reporting
obligations (section 477) even if it is after the WR Act repeal day;
and
. the Industrial Registrar must publish the results of the ballot
(section 479).
Item 15 - Continuing liability for cost of protected action ballot
553. This item ensures that the WR Act provisions (sections 482 and 483)
relating to the costs of conducting a protected action ballot
continue to apply after the WR Act repeal day in relation to
ballots ordered under the WR Act.
Item 16 - Record-keeping requirements relating to protected action ballot
conducted under WR Act
554. If a protected action ballot is conducted before the WR Act repeal
day, then the authorised ballot agent must keep the roll of voters
and all ballot papers, envelopes and other documents relevant to
the ballot for one year after the day the ballot is closed.
Item 17 - Restriction on when protected action ballot orders may be made -
certain agreement-based transitional instruments cover employees who will
be covered by proposed enterprise agreement
555. This item provides that if employees to be covered by a proposed
enterprise agreement are covered by one of the agreement-
based transitional instruments listed in subitem 17(1), then an
application for a protected action ballot order must not be made
under subsection 438(1) of the FW Act earlier than 30 days before
the latest nominal expiry date of those transitional instruments.
Part 5 - Effect of conduct engaged in while bargaining for WR Act
collective agreement
Item 18 - FWA may take into account conduct engaged in by bargaining
representatives while bargaining for WR Act collective agreement
556. This item allows FWA to take into account the conduct engaged in by
bargaining representatives when bargaining for a collective
agreement before the WR Act repeal day when making certain
decisions under the FW Act. For this item to apply, subitem 18(1)
requires that the employees and employer who are to be covered by
the proposed enterprise agreement would have been, respectively,
subject to and bound by the prior proposed collective agreement had
it come into operation.
557. Subitem 18(2) lists the circumstances when FWA may take into
account the pre-WR Act repeal day conduct, namely in deciding:
. whether it is reasonable in the circumstances to make a bargaining
order or scope order;
. which terms to include in a workplace determination that relates to
a proposed enterprise agreement;
. under Part 3-3 of the FW Act (Industrial Action), whether a
bargaining representative is genuinely trying to reach an agreement;
and
. under subsection 423(4) of the FW Act, whether protected industrial
action is causing, or threatening to cause, significant economic
harm.
Part 6 - Payments relating to periods of industrial action
558. This Schedule provides transitional arrangements for payments
relating to periods of industrial action (strike pay). In general,
Division 9 of Part 3-3 of the FW Act regulates strike pay
(including related contravening conduct) in relation to periods of
industrial action engaged in on and after the WR Act repeal day.
This Schedule deals with strike pay (including related contravening
conduct) in relation to a period of industrial action taken before
that day.
559. This Schedule also makes provision in relation to certain
transitional instruments.
Item 19 - Payments relating to pre-commencement periods of industrial
action etc.
560. This item provides that Division 9 of Part 9 of the WR Act
continues to apply (under this Schedule) in relation to industrial
action engaged in before the WR Act repeal day.
561. This item also makes clear that Division 9 of Part 9 of the WR Act
applies in relation to a period of industrial action that spans the
commencement of Division 9 of Part 3-3 of the FW Act (subitem
19(2)).
562. In other words, where industrial action is commenced before the WR
Act repeal day, the employer is required to withhold pay for the
period of industrial action as follows:
. where the duration of the industrial action is less than 4 hours - 4
hours;
. where the duration of the industrial action is more than 4 hours -
the duration of the action on that day.
563. This also means that the WR Act provisions apply to contravening
conduct in relation to such industrial action (e.g., the payment of
strike pay) whether that contravening conduct occurs before or
after the WR Act repeal day.
564. This item also ensures that there is no overlap with Part 3-1 of
the FW Act (General Protections) by making clear that Part 3-1 has
no operation to the extent that Division 9 of Part 9 of the WR Act
has operation under this Schedule. This is necessary because
sections 348 and 349 of the FW Act would otherwise also apply to
the contravening conduct. Section 348 prohibits a person taking
adverse action against another person for refusing to pay strike
pay, and section 349 prohibits misrepresentations about the payment
of strike pay.
Item 20 - Application of Division 9 of Part 3-3 of the FW Act
565. This item ensures that the strike pay provisions apply to award and
agreement-based transitional instruments in the same way as they
apply to corresponding fair work instruments.
566. In particular, the provisions deem a reference to a modern award
(in paragraph 470(4)(c), subsection 471(2) and paragraph 474(2)(c)
of the FW Act) to include a reference to an award-
based transitional instrument. Similarly a reference in those
provisions to an enterprise agreement is deemed to include a
reference to an agreement-based transitional instrument.
567. This means that:
. an award or agreement-based transitional instrument has effect
subject to the strike pay rules under the FW Act; and
. in relation to protected overtime bans - the strike pay rules under
the FW Act do not apply if an employee's refusal to work overtime
does not contravene the employee's obligations under an award or
agreement-based transitional instrument. This clarifies that an
employee may refuse to work overtime under a transitional instrument
(e.g., in accordance with a term in that instrument that allows an
employee to refuse to work overtime on the basis of family
responsibilities) while protected bans are in place.
Schedule 14 - Transitional provisions relating to right of entry
Item 1 - Entry Permits
568. This item ensures that permits in force under Part 15 of the WR Act
before its repeal are treated as entry permits in force under the
FW Act. This will avoid existing permit holders having to re-apply
for new permits and enable FWA to be able to deal with these
permits using all of the powers available under the FW Act. The
permits will maintain their original expiry dates and be subject to
any limiting terms and conditions that were imposed under the WR
Act.
569. This item would also deal with any permits under the WR Act that
come into force after repeal day to ensure that any permits issued
or conditions imposed on a permit will be taken to be permits or
conditions imposed under the FW Act.
Item 2 - Entry Notices and Exemption Certificates
570. This item deals with entry notices or exemptions certificates that
have been issued before the WR Act repeal day but where entry has
not yet occurred.
571. It provides that an entry notice that complies with the
requirements of the WR Act has effect as if the notice had been
given under the FW Act and that an exemption certificate properly
issued by a Registrar will have effect as if it had been issued by
FWA.
Item 3 - Contravention of Acts etc.
572. Subsections 481(1) and 483A(1) of the FW Act allow entry onto
premises to investigate a suspected contravention of the Act or a
term of a fair work instrument. Subsection 483A(1) relates
specifically to suspected contraventions concerning textile
clothing and footwear outworkers.
This item provides that these subsections will also apply to suspected
contraventions of:
. the WR Act, as in force from time to time, or regulations made under
that Act, as in force from time to time;
. an instrument made under the WR Act; and
. a transitional instrument (as defined in item 2 of Schedule 3).
Item 4 - Notice to produce documents
573. This item relates to inspection of member records. Where a permit
holder gave notice under subsection 748(5) of the WR Act of their
intention to inspect member records at a later time that is after
the repeal of that Act, this item ensures that the notice will have
effect after the repeal as though it was given under
subsection 483(1) of the FW Act.
Item 6 - Suspending or revoking entry permits
574. This item relates to the provisions under the FW Act where FWA is
required to suspend or revoke an entry permit held by a permit
holder. It requires FWA to apply section 510 of the FW Act as if
references to a specified FW Act provision include references to
specified equivalent provisions in the WR Act. This will ensure
that relevant conduct that occurred under the WR Act can continue
to be considered under section 510 of the FW Act.
Item 7 - Continued application of WR Act
575. This item addresses the bridging period after the repeal of the WR
Act in which both WR Act institutions and FWA will deal with right
of entry matters. Item 11 of Schedule 2 of this Bill provides that
the WR Act continues to apply in relation to conduct that occurred
before the WR Act repeal day.
576. Subitem 7(1) provides that an instrument does not cease to have its
effect under the WR Act when it is deemed by this Schedule to have
effect under the FW Act. The instrument will have concurrent effect
under both the WR Act and the FW Act in relation to conduct that
occurred before the WR Act repeal day.
577. Subitem 7(2) provides that the suspension, revocation or imposition
of a condition on an entry permit under the WR Act provisions after
the repeal of that Act is deemed to have occurred under the FW Act.
578. Subitems 7(3) and 7(4) displace the operation of item 11 of
Schedule 2 as far as it could relate to disputes about the
operation of the right of entry provisions in Part 15 of the
WR Act. Such disputes may only be dealt with by FWA under
section 505 of the FW Act. Subitem 7(4) gives FWA the power to deal
with disputes about the operation of Part 15 of the WR Act in the
same manner as it deals with disputes about the operation of Part 3-
4 of the FW Act.
Schedule 15 - Stand down
579. This Schedule deals with the interaction between stand down
provisions under the FW Act, and stand down provisions under a
transitional instrument. It also ensures that provisions in
transitional instruments that provide for third-party
authorisations of stand downs have effect from and after the WR Act
repeal day.
Item 1 - Meanings of employee and employer
580. In this Schedule, the terms employee and employer mean national
system employee and national system employer respectively (as
defined in sections 13 and 14 of the FW Act). The rights and
obligations of employers and employees set out in this Schedule
apply only to the employment relationships within the scope of the
corporations and other constitutional powers that are engaged by
sections 13 and 14 of the FW Act.
Item 2 - Application of FW Act - stand down under transitional instruments
581. This item provides that arrangements for stand downs under
transitional instruments are treated in the same way as for
enterprise agreements under subsection 524(2) of the FW Act. This
means that a stand down provision in a transitional instrument
generally continues to apply from and after the WR Act repeal day.
582. However, the default stand down provision under subsection 524(1)
of the FW Act applies if a transitional instrument does not deal
with a circumstance allowing stand down under the FW Act, or does
not deal with stand down at all.
Item 3 - Transitional instruments providing for authorisation by third
party
583. This item ensures that provisions of a transitional instrument
requiring an employer to apply to a third party for authorisation
to stand down employees in certain circumstances have effect on and
after the WR Act repeal day. Such provisions have effect despite
item 4 of Schedule 3, as subsection 691A(5) of the WR Act does not
continue to apply in relation to them.
Schedule 16 - Compliance
584. This Schedule sets out civil remedies for specified contraventions
occurring after the WR Act repeal day.
Item 1 - meanings of employee and employer
585. In this Schedule, the terms employer and employee have their
ordinary meanings. This is because this Schedule deals with matters
that are incidental to other Schedules of this Bill. A provision
in this Schedule could relate to national system employers and
their employees, or to other employers and their employees,
depending on the Schedule that creates the substantive right or
obligation.
586. For example, this Schedule applies to a contravention of:
. an award-based transitional instrument by a national system
employer;
. a continuing Schedule 6 instrument by a non-national system
employer;
. the AFPCS and the Federal Minimum Wage by a national system employer
during the bridging period; and
. the parental leave provisions of Part 7 of the WR Act, as extended
by Division 6 of Part 12, by a non-national system employer during
the bridging period.
Item 2 - Compliance with transitional instruments
Item 3 - Compliance with obligations relating to conditional terminations
of individual agreement-based transitional instruments
Item 4 - Compliance with obligation to notify employees about preserved
redundancy provisions
Item 5 - Compliance with transitional APCSs, the transitional FMW and
transitional special FMWs
Item 6 - Compliance with minimum entitlements
Item 7 - Compliance with take-home pay orders
Item 8 - Compliance with continued provisions relating to workplace
agreements
Item 9 - Compliance with continued provisions relating to workplace
agreements
Item 10 - Compliance with WR Act equal remuneration orders
Item 11 - Transfer of business - compliance with notice requirements
Item 12 - Non-disclosure obligation - information acquired under FW Act
that identifies an employee as an employee to whom an individual agreement-
based transitional instrument applies
Item 13 - Non-disclosure obligation - protected ballot information acquired
under the WR Act
Item 14 - Compliance with continued provisions relating to protected action
ballots
Item 15 - Compliance with continuing Schedule 6 instruments
587. Items 2 to 8 and items 10 to 15 set out civil remedy provisions for
specified contraventions of this Bill, and provisions of the WR Act
that are preserved by this Bill (e.g., compliance with transitional
instruments).
588. Item 9 preserves Subdivision C of Division 11 of Part 8 of the WR
Act in relation to certain contraventions of the WR Act that are
preserved by Schedule 8 to this Bill. Subdivision C of Division 11
of Part 8 of the WR Act provides that the Federal Court or Federal
Magistrates Court may make certain orders in relation to
contraventions of workplace agreement related civil remedy
provisions.
589. The effect of this provision is that the Federal Court and Federal
Magistrates Court will retain powers under the WR Act after its
repeal in relation to the contraventions specified in this item in
addition to the powers it has under Part 4-1 of the FW Act (see,
for example, section 545). The provisions listed in item 9 are
also civil remedy provisions for the purposes of this Schedule, and
the FW Act compliance framework (see item 8).
Item 16 - Application of FW Act to civil remedy provisions under this Act
590. Item 16 provides that proceedings in relation to civil remedy
provisions in this Schedule are subject to rules regarding
standing, jurisdiction and maximum penalties set out in a table
contained in this Schedule, as if these rules were included as part
of the table in subsection 539(2) of the FW Act.
591. This means that, subject to modifications set out in this Schedule,
Part 4-1 of the FW Act applies to the civil remedy provisions
contained in this Schedule in the same way that it applies to civil
remedy provisions contained in the FW Act.
592. For example:
. an employee who has applied for an order from a magistrates court or
the Federal Magistrates Court about an amount that an employer was
required to pay to them under a transitional instrument is able to
elect to have their proceeding dealt with as small claims
proceedings as set out in section 548 of the FW Act;
. contraventions of a civil remedy provision in this Schedule can be
taken to be a part of a course of conduct for the purposes of
section 557 of the FW Act;
. the costs rule in section 570 of the FW Act applies to proceedings
in relation to contraventions of civil remedy provisions in this
Schedule.
593. Item 16 ensures that outworker terms in collective agreement-based
instruments can be enforced by an employee organisation even if the
agreement does not apply to the organisation.
Item 17 - No injunctions in relation to certain contraventions
594. This item provides that notwithstanding subsection 545(2) of the FW
Act, the Federal Court and the Federal Magistrates Court cannot
order an injunction in relation to a contravention, or a proposed
contravention of a transitional instrument, a continuing Schedule 6
instrument or any of the following provisions of the WR Act as
preserved by this Bill:
. any of subsections 182(1) to (4);
. section 185;
. section 661.
Item 18 - Application of safety net contractual entitlements
595. This item is an avoidance of doubt provision that provides that
provisions in the FW Act about safety net contractual entitlements
have no effect until the FW (safety net provisions) commencement
day. Safety net contractual entitlements are statutory
entitlements that mirror common law rights.
596. The intention is that a person does not have the new statutory
right until the FW (safety net provisions) commencement day.
Consequently, breaches of this statutory entitlement can only be
investigated and enforced on and after the FW (safety net
provisions) commencement day in relation to breaches occurring on
or after the FW (safety net provisions) commencement day.
However, nothing in this Schedule is intended to derogate from, or
otherwise affect, existing common law contractual entitlements.
Item 19 - Regulations dealing with civil penalties
597. This item permits the regulations to provide for civil penalties
for contravention of this Act or of the WR Act as it continues to
apply because of this Act.
598. The penalties for a contravention of a civil remedy provision under
the regulations must not be more than 20 penalty units for an
individual or 100 penalty units for a body corporate.
Schedule 17 - Amendments relating to the Fair Work Divisions of the Federal
Court and the Federal Magistrates Court
599. This Schedule contains amendments relating to the creation of the
Fair Work Divisions of the Federal Court and the Federal
Magistrates Court. The Fair Work Divisions of the Federal Court
and Federal Magistrates Court will specialise in workplace
relations matters and complement the work of FWA.
. Part 4-2 of the FW Act confers on the Federal Court and the Federal
Magistrates Court a general jurisdiction in matters arising under
the FW Act, and generally requires that jurisdiction to be exercised
in the Fair Work Divisions of those courts.
. Jurisdiction is also conferred on the Federal Court and the Federal
Magistrates Court in relation to matters arising under this Bill,
the WR Act as continued by this Bill and the proposed Fair Work
(Registration of Organisations) Act 2009. Jurisdiction arising under
these Acts is also required to be exercised in the Fair Work
Divisions of the Courts (see Part 5 of this Schedule and items 45
and 46 of Schedule 22).
Part 1 - Amendments to the Federal Court of Australia Act 1976
600. This Part amends the Federal Court of Australia Act 1976 (the
Federal Court Act) to establish two Divisions of the Federal Court,
a Fair Work Division and a General Division.
Federal Court of Australia Act 1976
Item 1 - Section 4
601. This item inserts a new definition of Division in the Federal Court
Act. The Federal Court will have two Divisions, a General Division
and a Fair Work Division.
Item 2 - Section 4 (definition of Full Court)
602. This item makes a consequential amendment to the definition of Full
Court for the purposes of the Federal Court Act. A Full Court must
be constituted in a Division of the Court and comprise Judges who
are entitled to exercise jurisdiction in that Division.
Item 3 - New section 6A
603. This item inserts a new section 6A to deal with the assignment of
Judges (other than the Chief Justice) to the Divisions of the
Court.
604. Judges may be assigned to either the Fair Work Division or the
General Division. A Judge that is not assigned to a Division will
be able to hear and determine matters in both Divisions (see item 7
- new subsection 15(1C)).
605. The Governor-General may assign a Judge to a Division of the Court
as part of their initial commission to the Court, or at a later
time with the consent of the Judge.
606. The assignment of a Judge may also be varied at a later date with
the consent of the Judge.
607. All Judges who are appointed to the Court at the time these
amendments commence are taken not to be assigned to a particular
Division and will be able to hear and determine matters in both
Divisions of the Court, unless they consent to being assigned to a
particular Division after commencement (see subitem 19(2)).
608. The Chief Justice of the Court cannot be assigned to a Division of
the Court as he or she is responsible for the overall management of
the Court and, consistent with this, must be able to exercise
jurisdiction in both the General and Fair Work Divisions of the
Court.
Item 4 - Section 7
Item 5 - Section 7
609. Together these items amend section 7 of the Federal Court Act to
provide that a Judge who is, for the time being, exercising powers
as the Acting Chief Justice of the Court, is taken not to be
assigned to either Division of the Court. This is consistent with
the position that the actual Chief Justice of the Court may not be
assigned to either Division.
Item 6 - After section 12
610. This item inserts a new section 13, and provides that the Federal
Court comprises two Divisions, a General Division and a Fair Work
Division. Proceedings in the Court must be instituted, heard and
determined in one of these Divisions.
611. New subsections 13(3) and 13(4) set out the jurisdiction of the
Divisions.
612. The Fair Work Division will hear and determine matters that are
required by another Act to be heard and determined in the Fair Work
Division.
. For example, the FW Act confers jurisdiction on the Federal Court in
relation to matters arising under the FW Act, and generally requires
this jurisdiction to be exercised in the Fair Work Division of that
Court.
. Matters arising under this Bill, the WR Act as continued in
operation by this Bill and the proposed Fair Work (Registered
Organisations) Act 2009 are also required to be heard in the Fair
Work Divisions (see item 21 of this Schedule).
613. The Fair Work Division can also exercise jurisdiction that is
incidental to jurisdiction required to be exercised in the Fair
Work Division. Conversely, the General Division will hear and
determine all matters where jurisdiction is not required by another
Act to be exercised in the Fair Work Division, and any jurisdiction
that is incidental to that jurisdiction
614. A single proceeding may give rise to various issues, some of which
are required to be dealt with in the Fair Work Division, and some
of which are required to be dealt with in the General Division.
These issues must be dealt with together in one Division. New
subsection 13(5) gives the Chief Justice the discretion to
determine in which Division of the Court the proceeding will be
instituted, heard and determined. In allocating matters to a
Division, the Chief Justice shall have regard to the predominant
issue or issues that are apparent at the time the matters are
instituted.
615. The Chief Justice's directions under subsection 13(5) may be
specific as to the allocation of a particular proceeding, or
general as to the allocation of proceedings of a particular kind.
616. The Chief Justice may issue a direction at any time during the
proceeding and may transfer proceedings between the Divisions to
ensure that they are dealt with in the most appropriate way.
Item 7 - After subsection 15(1)
617. This item inserts new subsections (1A) to (1D) in section 15 of the
Federal Court Act.
618. New subsection (1A) provides that where a Judge is assigned to a
Division, he or she can only exercise the powers of the Court in
that Division. A Judge may be assigned to a Division by the
Governor-General as part of their initial commission to the Court,
or at a later date with the consent of the Judge concerned (see
item 3 - new section 6A).
619. The Chief Justice can arrange for a Judge that is assigned to a
particular Division to deal with a matter in the other Division, if
he or she considers it desirable to do so, consistent with the
Chief Justice's overall responsibility for ensuring the orderly and
expeditious discharge of the business of the Court.
620. This provision complements the existing powers of the Chief Justice
in subsection 15(1), to make arrangements as is appropriate and
practical as to the Judge or Judges who are to constitute the Court
in particular matters or classes of matters, in consultation with
those Judges.
621. New subsection (1C) makes it clear that a Judge who is not assigned
to either Division of the Court may exercise jurisdiction in both
the Fair Work Division and the General Division of the Court.
622. New subsection (1D) makes it clear that an exercise of the Court's
power is not invalid, and cannot be challenged, on the ground that
a proceeding was instituted, heard and determined in the wrong
Division of the Court.
623. The note at the end of the items indicates that two further new
subheadings will be inserted in section 15 to assist the reader.
Item 8 - At the end of Division 1 of Part IIA
624. This item inserts a new section 18BA that enables the Chief Justice
to enter into an arrangement with the chief executive officer
(however described) of another agency or organisation for an
employee or employees of the agency or organisation to receive
documents or perform other non-judicial functions on behalf of the
Court.
. For example, the Chief Justice will be able to enter into an
arrangement with the General Manager of FWA for FWA to receive
documents, or perform other non-judicial functions, on behalf of the
Fair Work Division of the Court.
625. A similar arrangement can be entered into by the Chief Federal
Magistrate under section 91 of the Federal Magistrates Act 1999
(Federal Magistrates Act).
Item 9 - Subsection 43(1)
626. This item makes a consequential amendment to subsection 43(1) to
make it clear that the general costs provisions contained in that
section do not apply to proceedings in relation to a matter arising
under the FW Act.
627. In a proceeding where the Court is exercising jurisdiction under
the FW Act, the Federal Court may only order a party to pay costs
in accordance with section 570 of the FW Act.
628. The ability of the courts to awards costs in workplace relations
matters has been limited since 1904 and is consistent with
discouraging legalism in proceedings before industrial courts.
Part 2 - Amendments to the Federal Magistrates Act 1999
629. This Part amends the Federal Magistrates Act to establish two
Divisions within the Federal Magistrates Court, a Fair Work
Division and a General Division.
Federal Magistrates Act 1999
Item 10 - Section 4
630. This item amends the simplified outline to the Federal Magistrates
Act to note that jurisdiction of the Federal Magistrates Court is
to be exercised in either the General Division or the Fair Work
Division of the Court.
Item 11 - Section 5
631. The item inserts a definition of Division for the purposes of the
Federal Magistrates Act. The Federal Magistrates Court will have
two Divisions, a General Division and a Fair Work Division.
Item 12 - After section 10
632. This item inserts new section 10A, and provides that the Federal
Magistrates Court is to comprise two Divisions, a General Division
and a Fair Work Division. Proceedings in the Court must be
instituted, heard and determined in one of these Divisions.
633. New subsections (3) and (4) set out the jurisdiction of the
Divisions.
634. The Fair Work Division will hear and determine matters that are
required by another Act to be heard and determined in the Fair Work
Division.
. For example, the FW Act confers jurisdiction on the Federal
Magistrates Court in relation to matters arising under the FW Act,
and generally requires this jurisdiction to be exercised in the Fair
Work Division of that Court.
. Matters arising under this Bill, the WR Act as continued in
operation by this Bill and the proposed Fair Work (Registered
Organisations) Act 2009 are also required to be heard in the Fair
Work Divisions (see item 21 of this Schedule).
635. The Fair Work Division can also exercise jurisdiction that is
incidental to jurisdiction required to be exercised in the Fair
Work Division. Conversely, the General Division will hear and
determine all matters where jurisdiction is not required by another
Act to be exercised in the Fair Work Division, and any jurisdiction
that is incidental to that jurisdiction.
636. A single proceeding may give rise to various issues, some of which
are required to be dealt with in the Fair Work Division, and some
of which are required to be dealt with in the General Division.
These issues must be dealt with together in one Division. New
subsection 10A(5) gives the Chief Federal Magistrate the discretion
to determine in which Division of the Court the proceeding will be
instituted, heard and determined. In initially directing matters
to a Division, the Chief Federal Magistrate shall have regard to
the predominant issue or issues that are apparent at the time the
matters are instituted.
637. The Chief Federal Magistrate's directions under subsection 10A(5)
may be specific as to the allocation of a particular proceeding, or
general as to the allocation of proceedings of a particular kind.
638. The Chief Federal Magistrate may issue a direction at any time
during the proceeding and may transfer proceedings between the
Divisions to ensure that they are dealt with in the most
appropriate way.
Item 13 - After subsection 12(3)
639. This item inserts new subsections (3A) to (3D) in section 12 of the
Federal Magistrates Act.
640. New subsection (3A) provides that where a Federal Magistrate is
assigned to a Division, he or she can only exercise the powers of
the Court in that Division. A Federal Magistrate may be assigned
to a Division by the Governor-General as part of their initial
appointment, or at a later date with the consent of the Federal
Magistrate concerned.
641. The Chief Federal Magistrate can arrange for a Federal Magistrate
that is assigned to a particular Division to deal with a matter in
the other Division, if he or she considers it desirable to do so,
consistent with the Chief Federal Magistrate's overall
responsibility for ensuring the orderly and expeditious discharge
of the business of the Court.
642. New subsection (3C) makes it clear that a Federal Magistrate who is
not assigned to either Division of the Court may exercise
jurisdiction in both the Fair Work Division and the General
Division of the Court.
643. New subsection (3D) makes it clear that an exercise of the Court's
power is not invalid, and cannot be challenged, on the ground that
a proceeding was instituted, heard and determined in the wrong
Division of the Court.
644. The note at the end indicates that three new subheadings will be
inserted in section 12 to assist the reader.
Items 14 - Subsection 79(1)
Item 15 - Subsection 79(1) (at the end of the note)
645. Together these items make consequential amendments to subsection
79(1) to make it clear that the general costs provisions contained
in that section do not apply to proceedings in relation to a matter
arising under the FW Act.
646. In a proceeding where the Court is exercising jurisdiction under
the FW Act, the Court may only order a party to pay costs in
accordance with section 570 of the FW Act.
647. The ability of the courts to awards costs in workplace relations
matters has been limited since 1904 and is consistent with
discouraging legalism in proceedings before industrial courts.
Item 16 - After clause 1 of Schedule 1
648. This item inserts new clause 1A in Schedule 1 and deals with the
assignment of Federal Magistrates (other than the Chief Federal
Magistrate) to the Divisions of the Court.
649. Federal Magistrates may be assigned to either the Fair Work
Division or the General Division. A Federal Magistrate who is not
assigned to a Division will be able to hear and determine matters
in both Divisions (see item 13 - new subsection 12(3C)).
650. The Governor-General may assign a Federal Magistrate to a Division
of the Court as part of their initial commission to the Federal
Magistrates Court, or at a later time with the consent of the
Federal Magistrate.
651. The assignment of a Federal Magistrate may also be varied at a
later date with the consent of the Federal Magistrate.
652. All Federal Magistrates who are appointed to the Court at the time
these amendments commence are taken not to be assigned to a
particular Division and will be able to hear and determine matters
in both Divisions of the Court, unless they consent to being
assigned to a particular Division after commencement (see item
20(2)).
653. The Chief Federal Magistrate cannot be assigned to a Division of
the Court as he or she is responsible for the overall management of
the Court and, consistent with this, must be able to exercise the
jurisdiction of both the General and Fair Work Divisions of the
Court.
Item 17 - At the end of clause 10 of Schedule 1
654. This item provides that a Federal Magistrate who is, for the time
being, exercising powers as the Acting Chief Federal Magistrate is
taken not to be assigned to either Division of the Court. This is
consistent with the position that the actual Chief Federal
Magistrate may not be assigned to either Division.
Part 3 - Other amendments
Administrative Decisions (Judicial Review) Act 1977
Item 18 - Paragraph (a) of Schedule 1
655. This item contains amendments to Schedule 1 of the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act) that are
consequential upon the repeal of the WR Act.
656. Schedule 1 of the ADJR Act excludes certain classes of decisions
from administrative review under the ADJR Act. This currently
includes decisions under the Conciliation and Arbitration Act 1904,
the WR Act and the Building and Construction Industry Improvement
Act 2005.
657. This item:
. removes the reference to decisions made under the Conciliation and
Arbitration Act 1904, as this Act was repealed in 1988; and
. includes references to decisions made under the FW Act, the Fair
Work (Registered Organisations) Act 2009 and this Bill.
658. Decisions of FWA and the FWO will, however, be subject to judicial
review by means of prerogative writ.
Part 4 - Application and transitional provisions
659. This Part provides for the application of amendments in Parts 1 and
2 of this Schedule to proceedings on foot immediately prior to
commencement, and proceedings commenced after that time.
660. Proceedings on foot as at commencement of the Fair Work Divisions
involving the exercise of jurisdiction under the WR Act will be
required to be heard and determined in the Fair Work Divisions of
the Courts (item 21), unless the Chief Justice or Chief Federal
Magistrate (as appropriate) directs that the matter be heard in the
General Division (see item 6, new subsection 13(5) of the Federal
Court Act, and item 12, new subsection 10A(5) of the Federal
Magistrates Act).
661. This Part also makes it clear that existing Judges and Federal
Magistrates are taken not to be assigned to the Divisions of the
Federal Court and Federal Magistrates Court. In practice, this
means that existing Judges and Federal Magistrates will be able to
hear and determine matters in both Divisions of the respective
Court, unless they consent to being assigned to a particular
Division after commencement.
Item 19 - Application of Part 1
662. Subitem (1) provides that, from the commencement of Part 1, the
amendments made by that Part to the Federal Court Act apply to all
proceedings commenced after that Part commences, and to proceedings
pending in the Federal Court immediately before the commencement of
Part 1.
663. Subitem (2) makes it clear that Judges that are currently appointed
to the Federal Court will continue to be able to exercise
jurisdiction in both the General Division and the Fair Work
Division of the Federal Court when the Divisions are established.
664. A Judge may agree to be assigned to a particular Division of the
Federal Court in accordance with new section 6A (see item 3).
Item 20 - Application of Part 2
665. Subitem (1) provides that, from the commencement of Part 2 of this
Schedule, the amendments made by that Part to the Federal
Magistrates Act apply to all proceedings commenced after that Part
commences, and to proceedings pending in the Federal Magistrates
Court immediately before the commencement of Part 2.
666. Subitem (2) makes it clear that Federal Magistrates that are
currently appointed to the Federal Magistrates Court will continue
to be able to exercise jurisdiction in both the General Division
and the Fair Work Division of the Federal Magistrates Court when
the Divisions are established.
667. A Federal Magistrate may agree to be assigned to a particular
Division of the Court in accordance with new clause 1A of Schedule
1 (see item 16).
Part 5 - Jurisdiction of courts
668. This Part confers on the Federal Court and the Federal Magistrates
Court a general jurisdiction in matters arising under this Bill and
the WR Act as continued in operation by this Bill, and requires
this jurisdiction to be exercised in the Fair Work Divisions of the
Courts.
669. This Part also deals with the general powers of the Federal Court
and the Federal Magistrates Court, and the conferral on the Federal
Court of a general appellate jurisdiction from decisions of
eligible State and Territory courts exercising jurisdiction under
this Bill, or the WR Act as continued in operation by this Bill.
Item 21 - Conferring jurisdiction on the Federal Court
670. This item confers original jurisdiction on the Federal Court in
relation to any civil or criminal matter arising under this Bill or
the WR Act as continued in operation by this Bill.
671. This Bill is not intended to limit the Federal Court's jurisdiction
to hear a case stated or question of law reserved to it by a single
judge under subsection 25(6) of the Federal Court Act.
Item 22 - Exercising jurisdiction in the Fair Work Division of the Federal
Court
672. This item requires the jurisdiction conferred on the Federal Court
by item 21 to be exercised by the Fair Work Division of the Federal
Court in certain circumstances, including where:
. an application is made (or a prosecution is instituted) under this
Bill or the WR Act as continued in operation by this Bill;
. a writ of mandamus or prohibition or an injunction is sought against
a person holding office under this Bill or the WR Act as continued
in operation by this Bill;
. a declaration or injunction is sought in relation to a matter
arising under this Bill or the WR Act as continued in operation by
this Bill;
. an appeal is instituted in the Federal Court from a judgment of the
Federal Magistrates Court or a court of a State or Territory in a
matter arising under this Bill or the WR Act as continued in
operation by this Bill; or
. a matter arising under this Bill or the WR Act as continued in
operation by this Bill is transferred to the Federal Court from the
Federal Magistrates Court, or remitted to the Federal Court by the
High Court, or involves a case stated or a question reserved for the
consideration of the Federal Court (including by the President of
FWA under section 608 of the FW Act).
Item 23 - No limitation on Federal Court's powers
673. For the avoidance of doubt, this item provides that nothing in this
Bill limits the Federal Court's powers (including its powers to
grant injunctions and make declarations) under sections 21, 22, or
23 of the Federal Court Act.
674. This item is intended to address authorities which have held that
federal industrial laws exhaustively contain the remedies available
to enforce those laws.
Item 24 - Appeals from eligible State or Territory courts
675. This item provides that the Federal Court has jurisdiction to hear
an appeal from a decision of an eligible State or Territory court
exercising jurisdiction under this Bill or the WR Act as continued
in operation by this Bill. It is not necessary for a party to
obtain leave of the Federal Court to hear the appeal. The Federal
Court's appellate jurisdiction will be exclusive. No appeal will
lie to other State and Territory courts, or to the High Court, from
an eligible State or Territory court exercising jurisdiction under
this Bill or the WR Act as continued in operation by this Bill.
676. Where the eligible State or Territory court is a court of summary
jurisdiction (e.g., a magistrates court), a single judge will be
able to exercise the Federal Court's appellate jurisdiction (see
subsection 25(5) of the Federal Court Act).
677. The item does not limit the Federal Court's appellate jurisdiction
under section 24 of the Federal Court Act (including its
jurisdiction to hear appeals from the Federal Magistrates Court).
Item 25 - Conferring jurisdiction on the Federal Magistrates Court
678. This item confers jurisdiction on the Federal Magistrates Court in
relation to all civil matters arising under this Bill or the WR Act
as continued in operation by this Bill.
679. The Federal Magistrates Court will not have jurisdiction in
criminal matters arising under this Bill or the WR Act as continued
in operation by this Bill, appeals from decisions of State or
Territory courts under item 24 or references from FWA on questions
of law. These will be dealt with exclusively by the Federal Court.
Item 26 - Exercising jurisdiction in the Fair Work Division of the Federal
Magistrates Court
680. This item requires the jurisdiction conferred on the Federal
Magistrates Court by item 25 to be exercised by the Fair Work
Division of the Federal Magistrates Court in certain circumstances,
including where:
. an application is made under this Bill or the WR Act as continued in
operation by this Bill;
. a declaration or injunction is sought in relation to a matter
arising under this Bill or the WR Act as continued in operation by
this Bill; or
. a matter arising under this Bill or the WR Act as continued in
operation by this Bill is transferred to the Federal Magistrates
Court from the Federal Court, or remitted to the Federal Magistrates
Court by the High Court.
Item 27 - No limitation on Federal Magistrates Court's powers
681. For the avoidance of doubt this item provides that nothing in this
Bill limits the Federal Magistrates Court's powers (including its
powers to grant injunctions and make declarations) under sections
14, 15 or 16 of the Federal Magistrates Act. As with item 23
above, this item is intended to address authorities which have held
that federal industrial laws exhaustively contain the remedies
available to enforce those laws.
3. Schedule 18- Institutions
Part 1 - Initial appointment of FWA Members
682. This Part appoints all primary AIRC members as initial members of
FWA. Until the AIRC is abolished, these members will hold dual
appointments to the AIRC and FWA.
Item 1 - Appointments to Fair Work Australia
683. This item provides that:
. the President of the AIRC is taken to be appointed as the President
of FWA at the time that Part 5-1 of the FW Act commences; and
. all other Presidential Members and Commissioners of the AIRC (other
than acting members of the AIRC and members of a prescribed State
industrial authority who hold secondary appointments as members of
the AIRC) are taken to be appointed as Deputy Presidents and
Commissioners of FWA, respectively, by subsequent proclamation.
684. Subitem (3) enables the initial members of FWA to hold dual
appointments as members of the AIRC notwithstanding the provisions
of the WR Act (including sections 66, 69 and 83) or the FW Act
(including subsection 628(2) and sections 632 and 633).
Item 2 - Terms and conditions
685. This item provides that the terms and conditions of the initial
members of FWA continue to be governed by the WR Act rather than
the FW Act. This ensures that:
. a single set of terms and conditions (e.g., remuneration and leave)
apply to dual appointees; and
. the terms and conditions of former AIRC members are preserved.
686. In particular, the following terms and conditions of former AIRC
members are preserved:
. FWA Members who were Presidential Members of the AIRC retain the
same rank, status and precedence as a Judge, and the entitlement to
be styled 'The Honourable';
. an FWA Member previously entitled to the designation as a Judge of
the Federal Court is entitled to retain that designation;
. arrangements made between the President of the AIRC and a former
AIRC member in relation to outside employment are preserved; and
. the Judges' Pensions Act 1968 continues to apply to those FWA
Members taken to have been appointed to FWA under item 1, to whom
that Act applied as a member of the AIRC.
687. The WR Act terms and conditions continue to apply even after the
provisions have been repealed.
Item 3 - Protection of members of the Commission and FWA
688. Section 97 of the WR Act confers on members of the AIRC the same
protection and immunity as a Judge of the Federal Court. This item
maintains that protection and immunity for the initial members of
FWA following the repeal of section 97 of the WR Act, and extends
the protection to their activities as FWA Members.
Item 4 - Seniority of FWA Members
689. As the initial Deputy Presidents and Commissioners of FWA are all
taken to have been appointed at the same time, this item preserves
the relative seniority those members enjoyed as members of the AIRC
under section 65 of the WR Act.
Item 5 - Procedural rules
690. This item permits the President of FWA to make procedural rules
prior to the appointment of any other FWA Members notwithstanding
the consultation requirement in proposed subsection 609(1) of the
FW Act.
Item 6 - Directions by the President
691. This item enables the President of the AIRC to direct a person who
holds concurrent appointments to both the AIRC and FWA as to the
performance of his or her functions as a member of the AIRC. This
provision mirrors section 582 of the FW Act which enables the
President of FWA to direct FWA Members as to the performance of
their powers and functions as members of FWA.
692. For the avoidance of doubt, subitem (4) clarifies that a direction
given in writing is not a legislative instrument within the meaning
of section 5 of the Legislative Instruments Act 2003. This
provision is declaratory of the law and does not amount to an
exemption from the Legislative Instruments Act 2003.
Part 2 - WR Act bodies and offices
693. This Part deals with the continuation and cessation of the AIRC;
the Australian Industrial Registry; the AFPC and AFPC Secretariat;
the Workplace Authority; and their respective statutory office
holders.
Item 7 - Continuation and cessation
694. Despite the repeal of the WR Act, this item preserves the operation
of the WR Act bodies and offices specified in columns 1 and 2 of
the table until the default cessation time specified in column 3 of
the table, or a different time determined by the Minister in
writing.
695. These WR Act bodies and offices are preserved to enable the
completion of matters that are underway at the time of
commencement, such as award modernisation, concluding part-heard
proceedings (including appeals) and the assessment of ITEAs. The
note following subitem (1) alerts the reader to the fact that FWA
will take over some of the work of WR Act bodies and offices before
their cessation times.
696. Any appointment made to a WR Act body or office before the repeal
of the WR Act continues in force after the repeal in accordance
with the terms of the appointment until the cessation time for that
body.
697. For the avoidance of doubt, subitem (4) clarifies that a
Ministerial determination specifying a different cessation time for
a WR Act body or office is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003. This
provision is declaratory of the law and does not amount to an
exemption from the Legislative Instruments Act 2003.
Item 8 - Transfer of assets and liabilities
698. This item requires:
. the Director of the AFPC Secretariat and the Industrial Registrar to
transfer their assets and liabilities to FWA; and
. the Workplace Authority Director and the Workplace Ombudsman to
transfer their assets and liabilities to the Office of the FWO.
699. Assets and liabilities would be transferred on a specified default
date, expected to be the WR Act repeal day. However, the Minister
may, before that date, determine that some or all assets and
liabilities are to be transferred to a different body, or on a
different day or according to regulations made for the purposes of
this item.
700. For the avoidance of doubt, subitem (3) clarifies that a
Ministerial determination specifying a different cessation time for
a WR Act body or office is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003. This
provision is declaratory of the law and does not amount to an
exemption from the Legislative Instruments Act 2003.
701. Subitem (4) clarifies that records or any other information in the
custody or control of a WR Act body will transfer to FWA or the
Office of the FWO in accordance with the asset transfer rules.
702. The General Manager of FWA will be empowered to enter into
arrangements with the Industrial Registrar, the Workplace Authority
Director and the Director of the AFPC Secretariat to provide
assistance to those office holders in the period between the WR Act
repeal day and the cessation time for the body or office - see item
10.
Item 9 - Information acquired under WR Act
703. Section 655 of the FW Act authorises the President to disclose, for
certain purposes, information acquired by FWA, or a member of the
staff of FWA, in the course of performing functions or exercising
powers as FWA. This item ensures that section 655 also applies to
any information acquired by FWA from a WR Act body.
Item 10 - Staffing arrangements
704. This item empowers:
. the General Manager of FWA to enter into arrangements with, and
provide assistance to, the Australian Industrial Registry, Workplace
Authority and the AFPC Secretariat in the period between the WR Act
repeal day and their cessation times; and
. the FWO to enter into arrangements with, and provide assistance to,
the Workplace Authority in the period between the WR Act repeal day
and its cessation time.
Item 11 - Transfer of functions to FWA at cessation time
705. This item provides that after the cessation time for a WR Act body
or office, the powers, functions and duties are to be exercised and
performed by FWA or any other body determined by the Minister in
writing.
706. For the avoidance of doubt, subitem (4) clarifies that a
Ministerial determination specifying a different body or person to
exercise the powers, functions and duties of a WR Act body after
cessation time is not a legislative instrument within the meaning
of section 5 of the Legislative Instruments Act 2003. This
provision is declaratory of the law and does not amount to an
exemption from the Legislative Instruments Act 2003.
707. Notwithstanding anything to the contrary in a transitional
instrument, FWA is not able to deal with a dispute in a manner that
is inconsistent with the WR Act, the FW Act or an instrument made
or given effect to by or under either this Bill or the FW Act that
applies to the parties. Any law of the Commonwealth relating to a
WR Act body or office is to be read as if a reference to the body
or office were a reference to FWA.
708. Subitem (5) requires FWA or any other body or office that continues
to deal with a matter that was being dealt with by a WR Act body or
office holder to take into account everything previously done in
relation to the matter.
Item 11A - Workplace inspectors to become Fair Work Inspectors
709. This item is intended to facilitate a smooth transition of
inspectors by ensuring that the appointments of workplace
inspectors can continue under the FW Act for the remainder of the
term of their appointments under the WR Act, or until the inspector
can be appointed as a Fair Work Inspector (FW Inspector).
710. It is intended that the appointment of a workplace inspector that
was in force immediately prior to the WR Act repeal day continue in
force for any unexpired period of the appointment, as if the person
had been appointed as a FW Inspector. It is intended that an
identity card issued under the WR Act be treated as though it was
an identity card issued under the FW Act.
711. It is not intended that this saving provision should preclude
revocation or suspension of that person's appointment by the FWO
where necessary (see subsection 33(4) of the Acts Interpretation
Act 1901).
Part 3 - Transitional role for Fair Work Ombudsman and Inspectors
712. Part 3 of this Schedule sets out the role of the FWO and Fair Work
Inspectors (FW inspectors) in relation to conduct that occurred
before the WR Act repeal day or in relation to instruments or
provisions of the WR Act that are saved by this Bill.
Item 12 - No continued operation for Parts 5A and 6 of WR Act
713. This item provides that there is no continued role for the
Workplace Ombudsman or workplace inspectors once the WR Act is
repealed.
Item 13 - Conduct before WR Act repeal
Item 14 - Conduct after WR Act repeal - application of Part 5-2 of the FW
Act
714. Contraventions of the WR Act that occur before the WR Act repeal
day will be enforced under the provisions of the WR Act whether or
not a proceeding was commenced before the WR Act repeal day
(subject to contrary intention in this Bill). This means that the
repeal of the WR Act will not prevent the enforcement of
entitlements that arose under the WR Act before its repeal (see
item 11 of Schedule 2).
715. To ensure continuation and completion of investigations and legal
proceedings under the WR Act, item 13 of this Schedule provides
that an application that could have been made or continued by a
workplace inspector in relation to conduct that occurred before the
WR Act repeal may be made or continued, after repeal, by a FW
inspector. This item is intended to give FW inspectors standing to
bring or continue proceedings in relation to breaches of the WR Act
under the WR Act notwithstanding its repeal.
716. Items 13 and 14 provide that, from the WR Act repeal day, Part 5-2
of the FW Act applies to conduct that occurred before or after the
WR Act repeal day. This means that:
. FW inspectors are able to exercise the compliance powers contained
in Part 5-2 of the FW Act; and
. the Office of the FWO is able to perform its functions under Part 5-
2 of the FW Act;
in relation to conduct that occurred before or after the WR Act repeal day.
717. FW inspectors are able to exercise compliance powers in the FW Act
in relation to conduct that occurred before the WR Act repeal day
that is investigated after WR Act repeal day whether or not an
investigation was commenced before the WR Act repeal day.
Similarly, FW inspectors are able to exercise compliance powers in
relation to transitional instruments, transitional minimum wage
instruments and continuing Schedule 6 instruments.
718. Examples of the powers that may be exercised for these purposes
are:
. entry to premises in accordance with the rules set out in section
708 of the FW Act;
. inspection and copying of documents that are kept on premises or
that are accessible from a computer that is kept on premises in
accordance with the rules set out in section 709 of the FW Act;
. taking an assistant onto premises to help investigate breaches of
the WR Act and the FW Act in accordance with section 710 of the FW
Act; and
. the FWO accepting an enforceable undertaking in relation to
contravention of a civil remedy or civil penalty provision under the
WR Act or the FW Act in accordance with section 715 of the FW Act.
719. However, FW inspectors are not able to issue a compliance notice in
relation to contraventions of the WR Act or a WR Act instrument
that occur before the WR Act repeal day.
720. Paragraph 14(e) extends the operation of subsection 706(2) of the
FW Act to specified instruments that are given effect to by this
Bill, including transitional instruments and minimum wage
entitlements. This means that FW inspectors are able to
investigate breaches of a safety net contractual entitlement where
they reasonably believe that a person has contravened a
transitional instrument or minimum wage entitlement. However, FW
inspectors are not able to investigate or enforce safety net
contractual entitlements until the NES and modern awards commence.
This is because the provisions that establish safety net
contractual entitlements in the FW Act will not operate until the
FW (safety net provisions) commencement day (see item 18 of
Schedule 16).
Item 15 - Directions of Workplace Ombudsman
721. This item preserves directions given to one or more inspectors by
the Workplace Ombudsman.
Item 16 - Disclosure of information acquired by workplace inspectors
722. This item provides that the rules regarding the disclosure of
information by the Office of the FWO contained in section 718 of
the FW Act apply to information acquired before the WR Act repeal
day, by a member of the Office of the Workplace Ombudsman in the
course of exercising powers, or performing functions, as such a
member. This means that information obtained by a member of the
Office of the Workplace Ombudsman can only be disclosed by the FWO
in accordance with the rules set out in the FW Act.
Part 4 - Miscellaneous
Item 17 - FWA annual report - operations of FWA
Item 18 - Annual report - operations of the Office of the Fair Work
Ombudsman
723. These items require that the annual report on the operations of FWA
and the Office of the FWO for the year 1 July 2009 to 30 June 2010
must include any period during which FWA or the Office of the FWO
is in existence prior to 1 July 2009. This avoids the need for FWA
and the Office of the FWO to produce annual reports for what are
likely to be short periods during which they would not be
performing substantive functions.
Item 19 - Annual report - operations of the Office of the Workplace
Ombudsman
724. This item provides that responsibility for the preparation of the
annual report on the operations of Office of the Workplace
Ombudsman for the year 1 July 2008 to 30 June 2009 will lie with
the FWO.
Item 20 - Report about developments in making agreements
725. This item provides that, despite the repeal of the WR Act, section
844 of that Act continues to apply for a specified period as if
that repeal had not happened. This means that the Minister must
still cause a person to review and report on developments in
bargaining for the making of agreements under the WR Act for the
period beginning 1 January 2007 and ending on the day the office of
the Workplace Authority Director, and the Workplace Authority,
cease to exist.
Item 20A - Report about unfair dismissal
726. This item requires the General Manager of FWA to prepare a written
report dealing with the experiences of employers (in particular
small and medium-sized enterprise employers) and employees of the
new unfair dismissal system.
727. The report is to be about the first 3 years of operation of the
unfair dismissal system.
728. In preparing the report, the General Manager may do such things as
seek public submissions, conduct surveys of employers, employees
and any other persons affected by, or who have had experience with,
the unfair dismissal system, hold public hearings and gather
information in any other way he or she thinks fit.
729. The General Manager must provide the Minister with a written report
of the review as soon as practicable, but no later than 6 months
after the end of the period to which the report relates. The
Minister must ensure a copy of the report is tabled in each House
of the Parliament within 15 sitting days of the Minister receiving
the report.
Item 20B - Transferred employees
730. This item relates to the transfer of staff from the WR Act
institutions to FWA and the Office of the FWO. The purpose of the
item is to provide continuity and certainty in relation to the
terms and conditions of employment of transferring staff.
731. Staff will be transferred from the WR Act institutions to the new
FW Act institutions under section 72 of the Public Service Act 1999
which deals with the transfer of employees arising from machinery
of government changes. This will ensure that an employee's annual
salary will not be reduced from those provided immediately before
the transfer.
732. In addition, subitems 20B(1) and (2) preserve the operation of all
existing statutory workplace agreements (collective agreements,
AWAs and pre-reform AWAs) that apply to staff in the WR Act
institutions until the new Agency Head is able to negotiate a new
enterprise agreement with employees in the new Agency.
733. For new employees, subitem 20B(3) allows the Agency Head of the new
Agency to nominate which preserved collective agreement will apply
to the employment of new employees.
734. Subitem 20B(4) enables regulations to be made in relation to the
transfer of employees from the old Agency to the new Agency to
address any other unforeseen issues associated with the transfer of
staff.
Fair Work Act 2009
Item 21 - Section 574A
Item 22 - Schedule 1 to the Act
735. These items repeal section 574A and Schedule 1 to the FW Act. The
items of Schedule 1 are replicated in Schedule 18 to this Bill (see
items 1, 2, 4, 5, 8 and 10).
Item 21A - Paragraph 575(2)(d)
Item 21B - Paragraph 622(2)(a)
736. These items amend paragraphs 575(2)(d) and 622(2)(a) of the FW Act,
which deal with the Minimum Wage Panel.
737. Paragraph 575(2)(d) currently provides that FWA consists of a
minimum of 4, and no more than 6, Minimum Wage Panel Members. Item
21A reduces the minimum number of Minimum Wage Panel Members
required to be appointed to FWA from 4 to 3. This will ensure a
balance between specialist and generalist expertise on the Minimum
Wage Panel.
738. Paragraph 622(2)(a) of the FW Act currently provides that where a
FWA Member becomes unavailable, the Minimum Wage Panel may continue
to deal with a matter so long as the Minimum Wage Panel still
consists of the President and at least 3 Minimum Wage Panel
Members. Item 21B reduces the number of Minimum Wage Panel Members
required to remain on the Minimum Wage Panel from 3 to 2.
Item 21C - Before section 630
739. This item inserts new section 629A into the FW Act, which provides
that the President has the same status as a Judge of the Federal
Court. The amendment ensures that the FW Act operates in
conjunction with the Judges' Pensions Act 1968 and Judges (Long
Leave Payments) Act 1979.
Item 21D - Subparagraph 654(2)(a)(i)
Item 21E - Subparagraph 654(2)(2)(ii)
Item 21F - Paragraph 654(2)(b)
740. Subsection 654(2) of the FW Act currently permits the regulations
to prescribe information or documents relating to a decision of FWA
made under the FW Act, or a notice, notification or application
that is made or given to FWA under the FW Act.
741. These items expand the matters that can be prescribed to all
decisions of FWA and notices, notifications and applications made
or given to FWA, whether under the FW Act or under another Act.
Item 21G - After section 796
742. This item inserts a new section into the FW Act, which allows
regulations to be made that confer functions on FWA or the General
Manager of FWA.
Schedule 19 - Dealing with disputes
Item 1 - Continued application of WR Act
Item 2 - Disputes to be dealt with by FWA
743. Item 1 provides for the continued application of the WR Act after
its repeal for the purposes of dealing with disputes in relation
to:
. matters arising under a transitional instrument (including a WR Act
instrument that becomes a transitional instrument);
. the AFPCS, other than in relation to wages, including as it
continues to apply during the bridging period because of Schedule 4
(which is about transitional arrangements for the NES);
. Division 1, 2 or 6 of Part 12 of the WR Act, including as they
continue to apply during the bridging period because of Schedule 4.
744. Item 2 provides that where an application has been made to the AIRC
in relation to the dispute before the WR Act repeal day and the
AIRC is dealing with, or has dealt with, the dispute the AIRC will
continue to deal with that matter.
745. However, on and after the WR Act repeal day, an application in
relation to a dispute that could have been made to the AIRC may be
made only to FWA and anything that could, or would, have been done
by, or in relation to, the AIRC or the Industrial Registrar because
of the continued application of these provisions may only be done
by, or in relation to, FWA.
746. These items mean that, when dealing with a dispute in relation to a
matter arising under a transitional instrument or this Schedule,
FWA may exercise any powers that the AIRC could have exercised in
relation to that dispute prior to the WR Act repeal day.
747. For example, if FWA is dealing with a dispute that arises under a
workplace agreement it is to apply the rules that applied under
Part 13 of the WR Act. This means that:
. FWA has the powers and functions conferred upon it by the workplace
agreement or as otherwise agreed between the parties but is not be
able to make orders (see section 711 of the WR Act); and
. FWA must refuse to conduct a dispute resolution process if any of
the steps that were required to be taken under the agreement before
it could be referred to the AIRC had not been taken (see section 710
of the WR Act).
748. Similarly, where a person other than the AIRC (e.g., an alternative
dispute resolution (ADR) provider) can currently deal with a
dispute under the WR Act, that person may continue to deal with the
dispute despite the repeal of the WR Act. The person is able to
exercise any powers that they could have exercised under the WR Act
before the WR Act repeal day.
749. Parties to a dispute will have to take the preliminary steps
required by the WR Act before FWA or an ADR provider can deal with
the dispute, as if the WR Act had continued in force. For example,
where there is a dispute about an entitlement to annual leave under
the AFPCS, FWA is to deal with the dispute in accordance with the
model dispute resolution procedure that is set out in Part 13 of
the WR Act. The model dispute resolution procedure provides that
parties to a dispute are required to genuinely try to resolve the
dispute at a workplace level before using an ADR process to resolve
the matter (see sections 695 and 696 of the WR Act).
750. Parties to preserved individual State agreements, preserved
collective State agreements and NAPSAs can continue to confer
functions or powers on the AIRC to deal with disputes (due to the
continued application of subclauses 7(2), 15(2) and 35(2) of
Schedule 8 to the WR Act). Such agreements between the parties to
confer functions or powers on the AIRC continue to operate.
However, the applications in relation to disputes under these
agreements after the WR Act repeal day have to be made to FWA and
the AIRC has no power to deal with these matters after the WR Act
repeal day.
Schedule 20 - WR Act transitional awards etc.
Item 1 - Schedule 6 to the WR Act
751. This item provides for the continued operation of Schedule 6 to the
WR Act on and after the WR Act repeal day.
752. Schedule 6 continues to apply as continued Schedule 6.
Transitional awards continue as continuing Schedule 6 instruments.
The Fair Work (State Referrals and Consequential and Other
Amendments) Bill 2009 contains arrangements for transitional awards
and common rules based on the current Victorian reference of powers
and for transitional awards that apply in Victoria in reliance on
the conciliation and arbitration power.
Item 2 - General modification of references to the Australian Industrial
Relations Commission etc.
4. Item 2 makes a number of changes to terms and references used in
continued Schedule 6 to reflect the FW Act and institutional framework
established by the FW Act.
753. Regulations may make additional modifications to continued Schedule
6 (see item 7 of Schedule 2).
Item 3 - Modifications relating to how FWA is to perform functions under
continued Schedule 6
754. Item 3 modifies the application of section 578 of the FW Act to
ensure that FWA gives effect to the objects of continued Schedule
6.
755. This item also provides that certain provisions of the FW Act,
relating to the conduct of matters before FWA, are not to apply.
The application of these provisions is not required as continued
Schedule 6 already sets out how continued Schedule 6 matters are to
be dealt with.
Item 4 - Modifications relating to transmission of business
756. Item 4 modifies and removes certain clauses in continued Schedule 6
to the WR Act that relate to transmission of business to ensure
that the provisions operate consistently with the new framework.
Item 5 - Modifications relating to general protections
757. Item 5 ensures that Part 3-1 of the FW Act (which relates to
general protections) applies to continued Schedule 6, rather than
Part 16 of the WR Act.
Item 6 - Modifications relating to meaning of industrial action
758. This item amends the definition of industrial action in clause 3 of
continued Schedule 6 to align it with the definition of that term
under the FW Act (section 19).
Item 7 - Modifications relating to secret ballots
759. This item confers certain functions relating to secret ballots on
presidential members of FWA (these functions are conferred on
presidential members of the AIRC under the WR Act). It also
extends the compliance regime that applies in relation to protected
action ballots under the WR Act to secret ballots and related
orders made under continued Schedule 6.
760. Note: continued Schedule 6 compliance provisions are at item 15 of
Schedule 16.
Item 8 - Modifications relating to right of entry
761. Item 8 ensures that Part 3-4 of the FW Act (which relates to right
of entry) applies to continued Schedule 6, rather than Part 15 of
the WR Act.
Item 9 - Modifications relating to employee records etc.
762. Item 9 provides for sections 535 and 536 of the FW Act, relating to
employee records, to apply to continued Schedule 6, rather than
section 836 of the WR Act.
Item 10 - Modifications relating to compliance
763. Item 10 omits clauses 106 and 107 relating to compliance.
Compliance with continuing Schedule 6 instruments is separately
provided for in item 15 of Schedule 16 of this Bill.
Item 11 - Regulations may deal with other matters
764. Item 11 allows regulations to deal with other matters relating to
how the FW Act applies in relation to continuing Schedule 6
instruments.
Schedule 21 - Clothing Trades Award 1999
Item 1 - Status of the Clothing Trades Award 1999
765. The Clothing Trades Award 1999 includes a range of terms to ensure
that the employment conditions for outworkers are fair and
reasonable in comparison with employees who perform the same kind
of work at an employer's business or commercial premises. This
amendment is intended to put beyond doubt that the outworker terms
in this award are valid and enforceable.
766. Subitem (1) ensures that terms relating to outworkers in the
Clothing Trades Award 1999, including any variation of those terms,
are taken to have always been made in accordance with Part VI of
the WR Act (which was in force before the commencement of the Work
Choices amendments).
767. Subitem (2) provides that those terms, as varied from time to time,
are taken always to have been terms about allowable matters under
paragraph 513(1)(o) of the WR Act (in force after the commencement
of the Work Choices amendments).
Schedule 22 - Registered organisations
768. This Schedule makes amendments to Schedules 1 and 10 of the WR Act
which will create a stand alone Act, the Fair Work (Registered
Organisations) Act 2009 (FW(RO) Act), containing provisions dealing
with registered organisations and State-registered associations.
769. Although registered or recognised and regulated under the FW(RO)
Act, organisations and recognised State associations will also have
rights and obligations arising under the FW Act. Consequently,
there is considerable overlap between the two pieces of
legislation, which rely on many uniform concepts and approaches.
770. Part 1 of this Schedule makes the more complex amendments to the
existing provisions in Schedule 1 to the WR Act, to bring it into
conformity with the new federal workplace relations framework that
is created by the FW Act.
771. Part 2 of this Schedule creates a new Schedule 2 to the FW(RO) Act,
which will deal with the recognition of State-registered
associations and their relationship with federal organisations.
772. Part 3 of this Schedule deals with representation orders. It will
introduce a new Part that will enable FWA to make orders about the
representation rights of organisations of employees with respect to
employees who are members of a workplace group.
773. Part 4 of this Schedule replaces references to 'this Schedule' (a
reference to Schedule 1 to the WR Act) in Schedules 1 and 10 to the
WR Act.
774. Part 5 of this Schedule replaces references to 'the Workplace
Relations Act 1996' in Schedules 1 and 10 to the WR Act.
775. Part 6 of this Schedule replaces references to 'the Commission' in
Schedules 1 and 10 to the WR Act.
776. Part 7 of this Schedule replaces references to the 'Registrar' and
the 'Industrial Registry' in Schedules 1 and 10 to the WR Act.
777. Part 8 to this Schedule replaces references to 'awards' and
'collective agreements' in Schedules 1 and 10 to the WR Act.
778. Part 9 of this Schedule adds a new Part to the FW(RO) Act that
ensures that all rights, responsibilities and instruments that
existed under Schedule 1 to the WR Act are maintained during the
transitional period.
Part 1 - Main amendments
779. Part 1 of this Schedule makes the more complex amendments to the
existing provisions in Schedule 1 to the WR Act, to bring it into
conformity with the new federal workplace relations framework
created by the FW Act.
Item 1 - Title
780. This item amends the long title of the WR Act.
Item 2 - Part 1 (heading)
781. This item repeals the heading of Part 1 to the WR Act and
substitutes a new heading for Chapter 1 of the FW(RO) Act.
Item 3 - Section 1
782. This item amends the short title of the WR Act.
Item 4 - Schedule 1 (heading)
Item 5 - Chapter 1 of Schedule 1 (heading)
Item 6 - Section 1 of Schedule 1
783. These items repeal headings and provisions that will be redundant
after the amendments to Schedule 1 to the WR Act made by this
Schedule.
Item 7 - New section 5B of Schedule 1
784. This item inserts new section 5B, which gives effect to Schedule 1
to the FW(RO) Act. Schedule 1 to the FW(RO) Act will relate to
transitionally recognised associations.
Item 8 - Section 6 of Schedule 1
Item 9 - Section 6 of Schedule 1 (definition of award)
Item 10 - Section 6 of Schedule 1 (definition of collective agreement)
Item 11 - Section 6 of Schedule 1 (definition of Commission)
Item 12 - Section 6 of Schedule 1
Item 13 - Section 6 of Schedule 1 (definition of Deputy Industrial
Registrar)
Item 14 - Section 6 of Schedule 1
Item 15 - Section 6 of Schedule 1
Item 16 - Section 6 of Schedule 1
Item 17 - Section 6 of Schedule 1
Item 18 - Section 6 of Schedule 1
Item 19 - Section 6 of Schedule 1
Item 20 - Section 6 of Schedule 1 (definition of industrial action)
Item 21 - Section 6 of Schedule 1 (definition of Industrial Registrar)
Item 22 - Section 6 of Schedule 1 (definition of Industrial Registry)
Item 23 - Section 6 of Schedule 1
Item 24 - Section 6 of Schedule 1 (definition of prescribed)
Item 25 - Section 6 of Schedule 1 (definition of Presidential member)
Item 26 - Section 6 of Schedule 1
Item 27 - Section 6 of Schedule 1 (definition of Registrar)
Item 28 - Section 6 of Schedule 1 (definition of registry)
Item 29 - Section 6 of Schedule 1 (definition of Registry official)
Item 30 - Section 6 of Schedule 1 (definition of State award)
Item 31 - Section 6 of Schedule 1
Item 32 - Section 6 of Schedule 1 (definition of this Schedule)
Item 33 - Section 6 of Schedule 1 (definition of workplace inspector)
Item 34 - Section 6 of Schedule 1 (definition of Workplace Relations Act)
785. These items amend section 6 of Schedule 1 to the WR Act. The items
repeal certain defined terms no longer used by the Schedule and
inserts meanings of new terms where necessary. These items also
ensure that the terms are consistent with concepts used in the FW
Act.
Item 11A - Section 6 of Schedule 1 (definition of constitutional trade or
commerce)
Item 14A - Section 6 of Schedule 1 (definition of designated Commonwealth
authority)
Item 14B - Section 6 of Schedule 1 (definition of employee)
Item 14C - Section 6 of Schedule 1 (definition of employer)
Item 16A - Section 6 of Schedule 1 (paragraphs (a) and (b) of the
definition of federal system employee)
Item 16B - Section 6 of Schedule 1 (paragraph (c) of the definition of
federal system employee)
Item 16C - Section 6 of Schedule 1 (definition of federal system employer)
Item 16D - Section 6 of Schedule 1 (definition of flight crew officer)
Item 22A - Section 6 of Schedule 1 (definition of maritime employee)
Item 32A - Section 6 of Schedule 1 (definition of waterside worker)
786. Items 14B, 14C, 16A and 16B amend section 6 of Schedule 1 to the WR
Act to insert new definitions of employee, employer, federal system
employee and federal system employer. These amendments are
intended to ensure that the coverage of the FW Act and the proposed
FW(RO) Act is consistent. These amendments largely achieve this by
adopting the national system employer, national system employee
concepts and the ordinary meanings of employer and employee
contained in the FW Act.
787. The other items repeal existing definitions that are no longer
required as a result of the amendments made by items 14B, 14C, 16A
and 16B.
Item 35 - Section 6A of Schedule 1
788. This item repeals section 6A of Schedule 1 to the WR Act, which
relates to references to provisions in Schedule 1 to the WR Act.
Item 36 - Section 7 of Schedule 1
789. This item repeals section 7 of Schedule 1 to the WR Act, which
provides the meaning of industrial action. A new definition of
industrial action is inserted by item 20 of this Schedule.
Item 37 - Section 14 of Schedule 1
790. This item repeals section 14 of Schedule 1 to the WR Act, which
gives the President of the AIRC the power to establish
Organisations Panels. Despite the repeal of section 14, the
President of FWA will be able to establish an Organisations Panel
under the FW Act.
Item 37A - Subparagraph 18C(3)(c)(i) of Schedule 1
Item 37B - Paragraph 18D(1)(a) of Schedule 1
Item 37C - Paragraph 18D(3)(a) of Schedule 1
Item 37D - Paragraph 18D(3A)(a) of Schedule 1
791. These items make consequential amendments to sections 18C and 18D
of Schedule 1 that are a result of amendments to the meanings of
federal system employee and federal system employer.
Item 37E - New section 26A of Schedule 1
792. This item inserts new section 26A. Section 26A addresses the
uncertainty regarding the registration of certain associations
under the WR Act in light of the decision of the Full Federal Court
in Australian Education Union v Lawler [2008] FCFCA 135 (Lawler).
This decision held that if an association did not include in its
rules a provision removing from membership people who were no
longer eligible to be members of the association, then that
association was not validly registered under the WR Act.
793. The Government considers that this decision could have significant
ramifications for federal organisations that were registered
without the ability to 'purge' members who are no longer eligible
to be members of the association under the WR Act. The decision
enables the validity of those registrations to be called into
question. Similarly, any instruments (for example, agreements or
awards) to which such organisations are a party or action the
organisation has taken in reliance on its registered status could
also be questioned.
794. To avoid these potential ramifications, new section 26A will
validate the registration of any association whose purported
registration as an organisation would be invalid because the
association's rules did not have the effect of terminating the
membership of people who were not of a particular kind.
795. Section 26A will validate the federal registration of associations
that were invalidly registered as an employer organisation, an
employee organisation or an enterprise association. From the
commencement of section 26A, the registration of these associations
will be taken to be valid and to have always been valid. However,
section 26A will not validate the registration of an association
that was invalid for any other reason than that specified in
paragraph 26A(b).
Item 38 - Paragraphs 28(1)(b) and (c) of Schedule 1
796. This item amends paragraphs 28(1)(b) and (c) of Schedule 1 to the
WR Act to insert '(other than protected industrial action)' after
'industrial action'. This amendment confines the circumstances in
which the Federal Court may cancel the registration of an
organisation for the reasons in paragraphs 28(1)(b) and (c) to
industrial action that is not protected or authorised. This
recognises that organisations should not face cancellation of
registration for engaging in behaviour that is lawful.
Item 39 - Subparagraph 73(2)(c)(ii) of Schedule 1
797. This item repeals subparagraph 73(2)(c)(ii) and inserts new
subparagraphs 73(2)(c)(ii) and (iii). These subparagraphs relate
to amalgamations of organisations taking effect. The new
subparagraphs replace references to provisions and instruments that
are no longer relevant under the new framework.
Item 40 - Paragraph 94(1)(c) of Schedule 1
798. This item repeals paragraph 94(1)(c) of Schedule 1 to the WR Act,
which relates to applications to the AIRC for ballots, and inserts
a new paragraph. The new paragraph provides that applications for
withdrawal from an amalgamation must be made within 5 years of the
amalgamation.
Item 40A - New section 171A of Schedule 1
Item 40B - Paragraph 230(2)(b) of Schedule 1
799. These items are related to amendments proposed in item 37E of this
Schedule.
800. Item 40A inserts new section 171A into Schedule 1 to the WR Act.
Section 171A is intended to ensure that an organisation does not
have as members people who would cause an organisation to not be
federally registrable within the meaning of sections 18A, 18B or
18C of Schedule 1 to the WR Act. Section 171A will have the effect
of terminating a person's membership of a registered organisation
if the person is not or is no longer a person of a kind mentioned
in:
. Paragraphs 18A(3)(a), (b), (c) or (d);
. Paragraphs 18B(3)(a), (b), (c) or (d); or
. Paragraphs 18C(3)(a), (b), (c) or (d).
801. This new section will ensure that organisations cannot have as
members people who would cause the organisation to not be federally
registrable. Section 171A will operate, in effect, as a
legislative 'purging' rule and will apply despite anything in the
rules of the organisation.
802. Item 40B makes a minor consequential amendment to paragraph
230(2)(b) of Schedule 1 to the WR Act as a result of item 40A. The
effect of this amendment is that an organisation must remove from
its register of members the name and address of any person who has
ceased to be a member of the organisation because of the operation
of new section 171A of Schedule 1 to the WR Act within 28 days of
the person ceasing to be a member.
Illustrative example
A union has a number of members who have just retired from their
employment. These members have no intention of re-entering the workforce
at any time in the future. Because of the decision in Lawler, the retired
members no longer fall within the meaning of 'employee' as defined by
section 6 (see item 14B).
As the retired members are no longer 'employees', they cease to be persons
mentioned within paragraph 18B(3)(a) of the Schedule. Unless the retired
members are also a class of persons mentioned in paragraphs 18B(3)(b), (c)
or (d), these new provisions will operate to require the union to cancel
the memberships of the members. The union would have 28 days in which to
remove their names and addresses from the union's register of members (see
paragraph 230(2)(b)).
Item 41 - Subparagraph 337A(b)(ii) of Schedule 1
Item 42 - Subparagraph 337A(b)(v) of Schedule 1
803. These items repeal subparagraphs 337A(b)(ii) and (v) of Schedule 1
to the WR Act and insert new subparagraphs. The new subparagraphs
provide protection for disclosures under section 337A that have
been made to an FWA member or a member of the staff of FWA or to a
member of the staff of the Office of the FWO (in addition to the
existing bodies in section 337A). These provisions maintain the
existing protections in section 337A within the new institutional
framework.
Item 43 - Section 337E of Schedule 1
804. This item repeals section 337E of Schedule 1 to the WR Act. That
section has been made redundant by paragraph 576(2)(d) of the FW
Act, which provides that FWA has any function conferred on it by a
law of the Commonwealth.
Item 44 - Subsection 337K(5) of Schedule 1
805. This item repeals subsection 337K(5) of Schedule 1 to the WR Act
and inserts a new subsection that will give the General Manager of
FWA the power to issue the orders of a member of FWA in cases where
the member has ceased to be a member after the order is made but
before the order has been put into writing and signed. This item
replicates similar powers of the General Manager in the FW Act.
Item 45 - Section 338 of Schedule 1
806. This item repeals section 338 of Schedule 1 to the WR Act, which
relates to the jurisdiction of the Federal Court, and inserts a new
subsection that confers jurisdiction on the Federal Court for any
matter arising under the FW(RO) Act.
Item 46 - New section 339A of Schedule 1
807. This item will insert new section 339A. Section 339A lists the
circumstances in which the jurisdiction conferred on the Federal
Court under Part 5 of the FW(RO) Act must be exercised in the Fair
Work Division of the Federal Court. This item replicates similar
provisions of the FW Act.
Item 47 - Section 340 of Schedule 1
Item 48 - Section 340 of Schedule 1
808. These items insert new subsections 340(5) and 341(3), which make
clear that sections 340 and 341 apply in addition to, and do not
alter the effect of, new section 339A inserted by item 46.
Item 49 - New section 343A of Schedule 1
809. This item inserts a new provision in Chapter 11 of the FW(RO) Act,
which allows the General Manager to delegate certain of his or her
powers or functions under the FW(RO) Act. Amendments made by Part
7 of this Schedule will confer on the General Manager of FWA all
powers that were previously exercised by the Industrial Registrar,
Registry and Registry Officials under the WR Act. Conferring all
Registry functions on a single officer of FWA with specified powers
to delegate some functions is consistent with the approach adopted
under the FW Act.
810. Despite the general power to delegate under subsection 343A(1),
subsection 343A(2) sets out the functions and powers of the General
Manager that cannot be delegated. Subsection 343A(3) sets out the
functions and powers of the General Manager that can only be
delegated to a member of the staff of FWA who is an SES employee or
who is in a class prescribed by the Regulations.
Item 50 - New section 351A of Schedule 1
811. This item inserts new section 351A, which allows the Minister to
intervene on behalf of the Commonwealth in proceedings before a
court in relation to a matter arising under the FW(RO) Act if the
Minister believes it is in the public interest to do so. If the
Minister intervenes in a matter under section 351A, the court may
make an order as to costs against the Commonwealth. This
replicates provisions that appeared in Part 20 of the WR Act that
are to be repealed by Item 3 of Schedule 1 (Repeals) to this Bill.
Item 50A - After section 353 of Schedule 1
812. This item inserts new section 353A into Schedule 1 to the WR Act,
which makes it clear that in proceedings in the Fair Work Divisions
of the Federal Court and Federal Magistrates Court, in addition to
any other means of representation allowed by those courts:
. an organisation may be represented by an officer or employee of that
organisation, or an officer or employee of a peak council to which
the organisation is affiliated; and
. a party that is not an organisation may be represented by an officer
or employee of an organisation of which the party is a member, or an
officer or employee of a peak council to which an organisation of
which the party is a member is affiliated.
813. The effect of this item is to ensure that organisations continue to
have a right to appear before federal courts to represent
themselves or their members.
814. However, consistent with the position under the WR Act, this item
also provides that these additional representation rights do not
apply:
. in relation to appeals from State or Territory courts under section
565 of the FW Act, or to proceedings in relation to offences; and
. in proceedings relating to the determination of a question of law
referred to the Federal Court by FWA under section 608 of the FW
Act, unless the relevant court gives leave.
Item 51 - Subsection 359(2) of Schedule 1 (note)
815. This item repeals the note to subsection 359(2) of Schedule 1 to
the WR Act and inserts a new note that makes clear that regulations
made under the Fair Work Act may also be relevant to the operation
of the FW(RO) Act.
Item 52 - Schedule 10
816. This item renumbers Schedule 10 to the WR Act as Schedule 1 to the
FW(RO) Act.
Item 53 - Schedule 10 (note to heading)
817. This item replaces the reference to 'section 9' and substitutes a
reference to section 5B of the FW(RO) Act. Section 5B will give
effect to Schedule 1 to the FW(RO) Act (former Schedule 10 to the
WR Act - see item 52).
Part 2 - State and federal organisations
818. Part 2 amends Schedule 1 to the WR Act to provide for a period of
transitional recognition of State-registered associations and also
to create a new Schedule (Schedule 2 to the FW(RO) Act) dealing
with recognised State-registered associations (RSRAs).
819. These provisions are intended to allow certain State-registered
associations to be recognised and to participate in the federal
workplace relations system as though they were an organisation
registered under the FW(RO) Act. FWA may only grant ongoing
recognition in the federal system to associations that have no
federal counterpart (that is, they have no equivalent federal
organisation) and that are registered in States whose industrial
laws have been prescribed in regulations made under the FW(RO) Act.
820. Recognition in the federal system as a transitionally recognised
association (TRA) will continue to be available to all State
unions. However, the legislation will cease to provide
transitional recognition on the 5 year anniversary of the
commencement of this Part or a later date as prescribed. After the
5 year period has expired, TRAs will have to gain full registration
(if they have no federal counterpart), become an RSRA (if they have
no federal counterpart) or arrange with their federal counterpart
for the federal counterpart to represent members in the federal
system. TRAs will not be recognised in the federal system at the
end of the 5 years unless their transitional recognition is
extended by FWA on application by a TRA. These applications will
be decided by FWA on a case-by-case basis.
821. In contrast, RSRAs will be recognised on an ongoing basis in the
federal system (subject to the deregistration provisions). This
means that an RSRA can be registered under the relevant State
industrial law, but have the full rights of an organisation to
operate in the federal system. Despite this recognition, an RSRA
will not be recognised by the federal system outside the State in
which it is registered.
822. Part 2 also reduces the complexity for organisations and State
associations that have multiple legal entities registered in both
federal and State workplace relations systems. Under the new
provisions, an organisation that is a federal counterpart to a
State association can extend its rules to pick up the coverage of
its State counterpart to ensure the continued representation of the
members of the State association in the federal system. These
amendments allow organisations and State associations to arrange
their internal affairs in a way that removes the need for separate
entities in each of the States and at the federal level.
823. The provisions of this Part are explained in detail below.
Workplace Relations Act 1996
Item 54 - Before section 6 of Schedule 1
824. This item inserts section 5C, which gives effect to Schedule 2 to
the FW(RO) Act.
Item 56 - Section 6 of Schedule 1
Item 57 - Section 6 of Schedule 1
Item 58 - Section 6 of Schedule 1 (definition of transitionally registered
association)
825. These items amend section 6 of Schedule 1 to the WR Act by
inserting new definitions of recognised State-registered
association and transitionally recognised association, and
repealing the definition of transitionally registered association.
Item 55 - Section 6 of Schedule 1
Item 58A - New section 9A of Schedule 1 (Meaning of federal counterpart)
826. These items amend section 6 and insert new section 9A, which
creates a new definition of federal counterpart.
827. New subsection 9A(1) provides that a federal counterpart of a State-
registered association is a federally registered organisation that
is prescribed by the regulations.
828. If an organisation is not prescribed by the regulations, new
subsection 9A(2) provides that an organisation will be the federal
counterpart of a State-registered association where the
organisation has a branch in that State or Territory and that
branch has, or purports to have:
. substantially the same eligibility rules as the association; and
. a history of integrated operations with the association.
829. Where these criteria cannot be met, an organisation will be a
federal counterpart of a State-registered association where the
association has purported to function as a branch of the
organisation.
830. For the purposes of new subsection 9A(2), it is not necessary that
a State association is identical to its federal counterpart.
However, there must be considerable similarity between the
eligibility rules of the association and the organisation in
addition to a history of integrated dealings (this could include,
for example, reciprocal membership arrangements, shared financial
arrangements, cooperative policy making functions or shared office
holders). An organisation will be the federal counterpart of a
State association where the State association is identical to a
branch, division or constituent part of the organisation, but also
where there are differences between the two.
Illustrative examples
The South Australian Union of Lighthouse Keepers (SAULK) is a State-
registered association. By regulations made under this Act, the Federal
Lighthouse Keepers Union (FLKU) has been prescribed as the federal
counterpart of the SAULK. As a result, the FLKU would satisfy the
definition of federal counterpart under subsection 9A(1) of Schedule 1 to
the WR Act.
Where an organisation is not prescribed in the regulations, the criteria
specified in subsection 9A(2) of Schedule 1 must be satisfied if an
organisation is to be the federal counterpart to an association.
The Artists and Journalists Union (AJU) is a federally registered
organisation. It has separate divisions that represent artist and
journalists. Each of these divisions has a State branch structure. The
Regulations do not prescribe the AJU to be a federal counterpart to any
State registered associations.
In Queensland, there are separate unions for both artists and journalists
registered in the State system. Each of these State unions has
substantially the same eligibility rules as the artists and journalists
divisions of the AJU in the State. In addition, the State unions have a
long history of managing their affairs in conjunction with the State
divisions of the AJU.
The AJU would be the federal counterpart for both the State artists and
journalists unions. This is because the State unions both have
substantially the same eligibility rules as, and a history of integrated
operations with, a particular branch of the AJU. This is the case even
though the AJU represents a broader class of workers in the federal system
than either of the individual State unions represents in Queensland.
Item 59 - Section 19 of Schedule 1
831. This item amends section 19 of Schedule 1 by adding a new
subsection. Section 19 sets out the criteria for registration as
an organisation in the federal system. The new subsection will
require FWA to reject an application for registration as an
organisation by an association registered under the law of a State
or Territory if that association has a federal counterpart. This
provision is intended to reduce the duplication in the federal
system of organisations that are essentially the same body.
Item 60 - Subsection 138A(1) of Schedule 1
Item 61 - Subsection 138A(1) of Schedule 1
Item 64 - Schedule 10 (heading)
Item 66 - Subclause 2(1) of Schedule 10
Item 67 - Subclause 2(6) of Schedule 10
Item 69 - Clause 3 of Schedule 10
Item 71 - Subclause 4(1) of Schedule 10
Item 72 - Subclause 5(1) of Schedule 10
Item 73 - Subclause 5(1) of Schedule 10
Item 75 - Subclause 5(3) of Schedule 10
Item 76 - Subclause 5(5) of Schedule 10
Item 77 - Subclause 5(5) of Schedule 10
Item 78 - Subclause 5(6) of Schedule 10
Item 79 - Subclause 5(6) of Schedule 10
Item 80 - Clause 6 of Schedule 10
Item 81 - Clause 6 of Schedule 10
Item 83 - Clause 7 of Schedule 10
832. These items omit references in Schedule 10 to 'registered' and
'registration' in respect of TRAs and substitute references to
'recognised' and 'recognition'. These amendments will account for
the use of transitionally recognised association and the repeal of
transitionally registered association throughout the FW(RO) Act.
Item 62 - New Subdivision BA of Division 4 of Part 2 of Chapter 5 of
Schedule 1
833. This item inserts Subdivision BA which deals with branches of
organisations. This new Subdivision enables an organisation to
maintain the structure and autonomy of a State branch, particularly
in matters concerning the representation of the State system
members of the branch and its financial arrangements. Under such
an arrangement, the branch would be able to hold assets and make
its own decisions on operational matters.
834. New section 154A allows organisations to make provision in their
rules for the autonomy of a branch in matters affecting only the
members of the branch and for matters concerning the participation
of the branch in a State workplace relations system. New section
154B allows an organisation to make provision in its rules for the
fund of a branch that will be managed and controlled through the
rules of the branch. Subclause 154B(2) lists the items that may
make up the branch fund.
Item 63 - Subsection 158(5) of Schedule 1
835. This item repeals subsection 158(5) of Schedule 1, which deals with
alterations of the eligibility rules of an organisation, and
inserts a new subsection. The new subsection retains the existing
power in paragraph 158(5)(a) for FWA to authorise an amendment to
eligibility rules after accepting an undertaking from the
organisation that FWA considers appropriate to avoid demarcation
disputes that may arise because of the alteration. However,
subsection 158(5) will give FWA a further power to authorise an
amendment to an organisation's eligibility rules in circumstances
where:
. the alteration will not extend the eligibility rules of the
organisation beyond those of its counterpart State association;
. the alteration will not apply outside the limits of the State or
Territory in which the association is registered; and
. the State association has been actively representing the members who
are covered by the rules relevant to the alteration.
836. This discretion is intended to allow an organisation to expand
State eligibility rules to pick up the coverage of its counterpart
State association.
837. Subsection 158(5A) lists the matters that FWA may consider in
determining whether the State association has been actively
representing the relevant members. These matters include but are
not limited to the extent to which the association has:
. sought award variations on behalf of the members;
. exercised rights of entry in relation to the members;
. sought to bargain on behalf of the members; and
. sought to expand its membership among persons to whom the relevant
eligibility rules (subject to the alteration) apply.
838. The requirement that a State association be actively representing
its members that are covered by the rules relevant to the
alteration is intended to prevent organisations expanding their
coverage in the federal system where the State counterpart has
never used that wider coverage to recruit members or otherwise
actively represent employees in those sectors or occupations.
Illustrative example
The NSW Union of Astronauts (NSWUA) is a State-registered association. The
NSWUA primarily represents people employed as astronauts within NSW. For
historical reasons, the eligibility rules of the NSWUA also give the union
coverage of deep sea divers. However, the NSWUA has not made any attempt
to bargain or vary an award on behalf of deep sea divers for over 20 years.
The NSWUA and its federal counterpart, the Federal Astronauts Union (FAU),
wish to centralise representation for federal system members with the
federal union (i.e., the FAU). The eligibility rules of the NSWUA allow it
to cover a broader class of workers, including but not limited to deep sea
divers, in NSW. For this reason, the FAU has made an application to FWA
under section 158 of the FW(RO) Act to amend its eligibility rules in order
to pick up the coverage of the NSWUA members.
Under section 158 of the FW(RO) Act, the FAU can amend its rules to pick up
the broader coverage of the NSWUA. However, the FAU will not be able to
include coverage of deep sea divers in its amended rules because the NSWUA
has not been actively representing that class of workers. The part of the
NSWUA rules that allows membership by deep sea divers could not be
replicated in the rules of the FAU.
Item 65 - Subclause 1(1) of Schedule 10 (definition of transitionally
registered association)
839. This item repeals the definition of transitionally registered
associations in clause 1 of Schedule 10 to the WR Act.
Item 68 - Clause 3 of Schedule 10
Item 70 - Clause 3 of Schedule 10
840. Item 70 inserts a new subclause at the end of clause 3 of Schedule
10 to the WR Act. Clause 3 of Schedule 10 provides for the
application of the FW(RO) Act to transitionally recognised
associations. The new subclause makes clear that the provisions of
the FW(RO) Act do not confer on a transitionally recognised
association a separate legal identity that it would not otherwise
have, or the right to represent its members' industrial interests
outside of the State in which the transitionally recognised
association is registered. This means that a transitionally
recognised association has full representation rights in the
federal system as if it were a registered organisation but that
these rights can only be exercised within the State in which the
transitionally recognised association is registered.
841. Item 68 amends the structure of clause 3 of Schedule 10 as a result
of the amendments made by item 70.
Item 74 - Paragraphs 5(1)(b) and (c) of Schedule 10
842. This item amends paragraphs 5(1)(b) and (c) of Schedule 10 to the
WR Act to insert '(other than protected industrial action)' after
'industrial action'. This amendment confines cancellation of TRA
registration for the reasons in paragraphs 5(1)(b) and (c) to
industrial action that is not protected or authorised.
Item 79A - Clause 6 of Schedule 10
Item 82 - Subparagraphs 6(c)(i) and (ii) of Schedule 10
843. Item 82 repeals subparagraphs 6(c)(i) and (ii) and inserts new
subparagraphs. Clause 6 deals with the point at which recognition
of a TRA expires. New subparagraph 6(1)(c)(i) provides that the
recognition of all TRAs will end on the 5 year anniversary of the
commencement of this Part unless FWA grants an extension to the TRA
under subsection 6(2) or (3). The lengthening of the current
transitional provisions in the WR Act is intended to provide
adequate time for State associations and federal organisations to
adjust to the new registration and accountability framework and
make necessary alterations to their affairs.
844. Subparagraphs 6(2) and (3) will allow FWA to extend the recognition
of TRAs on a case-by-case basis where those bodies can demonstrate
that they have made progress towards restructuring their internal
affairs to integrate with those of their federal counterpart. If
satisfied of these matters, FWA may grant an initial extension for
12 months. Where a TRA seeks a further 12 month extension of its
transitional recognition, FWA must be satisfied that the TRA has
made further progress towards becoming a federally registered
organisation or rationalising its internal affairs with its federal
counterpart before granting such an extension. In addition, FWA
must be satisfied that there are extenuating circumstances
justifying the further extension.
845. Item 79A makes a consequential amendment as a result of item 82
that creates a new subsection under clause 6 of Schedule 10 to the
WR Act.
Item 84 - New Schedule 2
846. This item creates Schedule 2 to the FW(RO) Act. Schedule 2 deals
with the recognition of State associations as RSRAs.
847. New clause 1 allows State-registered associations to make an
application to the General Manager of FWA for recognition in the
federal system as an RSRA. The General Manager can only grant
recognition under Schedule 2 if:
. the State registered association has no federal counterpart; and
. the association is registered in a State whose industrial relations
legislation has been prescribed in the regulations.
848. Subclause 1(2) allows regulations to be made prescribing the
industrial laws of a State for the purposes of an application under
subclause 1(1).
849. State-registered associations are taken to be recognised under
Schedule 2 from the time the General Manager grants the application
(subclause 1(7)). While the grant of recognition must be in
writing (subclause 1(4)), it is not a legislative instrument.
Subclause 1(5) has been included to assist readers and highlight
that the instrument granting the application issued by the General
Manager is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003 (LIA). Subclause
1(4) of Schedule 2 to the FW(RO) Act is not an exemption from the
LIA.
850. New clause 2 of Schedule 2 makes clear that the provisions of the
FW Act and Part 3 of Chapter 4 of the FW(RO) Act apply in relation
to an RSRA in the same way that they apply to a registered
organisation and as if the RSRA were a person. However,
subclause 2(1) makes clear that these provisions do not confer on a
State-registered association a separate legal identity that it
would not otherwise have, or the right to represent its members'
industrial interests outside of the State in which the association
is registered. This means that an RSRA has full representation
rights in the federal system as if it were a registered
organisation but that these rights can only be exercised within the
State in which the RSRA is registered.
851. New section 3 of Schedule 2 will define the grounds on which an
RSRA may have its federal recognition cancelled by the Federal
Court, by FWA or by the General Manager of FWA. In terms of
cancellation of recognition by the Federal Court, the grounds in
subclause 3(1) are based on the existing grounds for cancellation
of the registration of a federal organisation.
852. Similarly, the grounds on which FWA may cancel the federal
recognition of an RSRA in subclause 3(5) mirror the existing
provisions that allow the AIRC to cancel the registration of a TRA
in Schedule 10 to the WR Act. FWA may cancel the recognition of a
RSRA under subparagraph 3(5)(b)(iii) on the additional ground that
the RSRA has been found by the industrial commission of the
relevant State to have contravened a State industrial law, and that
contravention constitutes serious misconduct.
853. Under subclause 3(6), if a RSRA ceases to exist the General Manager
of FWA may, by written instrument, cancel its recognition.
Subclause 3(7) has been included to assist readers and highlight
that the cancellation instrument issued by the General Manager is
not a legislative instrument within the meaning of section 5 of the
LIA. Subclause 3(6) of Schedule 2 to the FW(RO) Act is not an
exemption from the LIA.
854. An RSRA will also have its federal recognition cancelled in
circumstances where the State law under which the association is
registered is no longer prescribed by the regulations (subclause
3(8)).
Part 3 - Representation orders
855. This Part creates a new type of representation order. These orders
are intended to address any potential demarcation disputes that may
arise as a result of the removal of the requirement that a union be
bound to an award or agreement to exercise a right of entry or
changes to the bargaining framework proposed under the FW Act.
These orders will be available when there is a dispute about
whether an organisation is entitled to represent the industrial
interests of a workplace group under the FW Act or the FW(RO) Act.
856. The amendments are explained in detail below.
Workplace Relations Act 1996
Item 85 - Section 6 of Schedule 1
Item 86 - Section 6 of Schedule 1
857. These items will insert new definitions of peak council and
workplace group into Section 6 of Schedule 1.
858. Peak council has the same meaning as in the FW Act.
859. The definition of workplace group defines the class of employees to
whom a representation order may be made under proposed section 137A
(see item 89).
Item 87 - Section 132 of Schedule 1
Item 88 - Subsection 133(1) of Schedule 1
860. These items amend current sections 132 and 133(1) of Schedule 1 to
the WR Act. They are consequential amendments resulting from the
insertion of the new Part discussed in item 89.
Item 89 - New Parts 3 and 4 of Chapter 4 of Schedule 1
861. This item inserts a new Part into Chapter 4 of Schedule 1. Under
the Part, an employer, an organisation or the Minister could apply
to FWA for an order that an organisation of employees does or does
not have the right to represent members of a workplace group. FWA
is only able to make an order where there is a dispute (including a
threatened, impending or probable dispute) regarding that
organisation's entitlement to represent members of a workplace
group (section 137A) in circumstances where more than one
organisation is entitled to represent members of a workplace group.
The intention of section 137A is that an applicant should be able
to point to a genuine disagreement between organisations that
either has the real potential to materialise or is already
occurring. However, it is not necessary for an applicant to
demonstrate that real, threatened or impending harm has occurred or
is likely to occur to a business concerned as a result of the
dispute.
862. Before making an order under new subsection 137A(1), FWA is
required to consider the range of factors set out in new section
137B. These factors are designed to ensure that organisations with
a history of representing a workplace group should be able to
continue to represent those employees. Conversely, organisations
that have not been active in representing people within the
coverage of their eligibility rules should generally not be able to
obtain a representation order that would prevent other unions from
representing the workplace group.
863. In line with this aim, it is intended that in considering new
paragraph 137B(1)(c), FWA could have regard to the extent to which
the organisation is 'recognised' in the workplace as a
representative body, taking into account such things as an active
delegate structure or a presence on consultative committees at the
workplace. This assessment will be made by FWA with reference to
the totality of the circumstances and no particular factor should
be assigned more weight than any other. FWA may also receive
submissions from peak councils on the matters contained in section
137B (see sections 137A and 137C).
864. Where an order is sought under this Part relating to a genuine new
enterprise (within the meaning of the FW Act) that does not yet
have any employees, new subsection 137B(2) requires FWA to have
regard to the same matters as it would for an established site to
the greatest extent practicable. This would require FWA to
consider the factors set out in new subsection 137B(1) with
reference to persons who are likely to make up the workplace group.
This is necessary as without this provision many of the factors
would not be capable of consideration by FWA as they are framed
with reference to an existing workplace group and so would not
apply where a workplace group does not yet exist.
865. Under subsection 137A(2), a person or organisation who would have
been eligible to make an application under subsection 137A(1) may
apply to FWA for an interim representation order in relation to an
application under subsection 137A(1) of the FW(RO) Act. FWA must
not grant an interim representation order if the order would be
unfair to a person or organisation other than the applicant.
866. FWA must not make an order under subsections 137A(1) and (2) that
is inconsistent with an order already in force under section 133.
However, FWA will have the ability to amend any order made under
this Part that would be inconsistent with a section 133 order
(subsections 137A(5)-(7)).
867. Sections 137D and 137E provide that FWA may place conditions or
limitations on an order made under this Part and that the Federal
Court would be empowered to make any order it thinks fit to ensure
compliance with an order made by FWA under the Part.
868. A note under this Part would make clear that these representation
orders can apply to TRAs (see clause 3 of Schedule 1) and RSRAs
(see clause 2 of Schedule 2).
Illustrative example
Brett is an official of the Bicycle Manufacturing Union (the BMU) which has
a long history of representing a large number of its members employed at
the Spokey Dokes manufacturing plant. The BMU has an active delegate
structure at the site and always receives a warm response from its members
for the work it does representing them. The BMU's eligibility rules give
it coverage of manufacturing workers employed in the bicycle and bicycle
accessory industries.
Aidan is an official of the Plastic Accessories Union (PAU). The PAU's
eligibility rules give it coverage of manufacturing workers making plastic
products. The employees of Spokey Dokes have not expressed any interest in
the PAU and the union has not been party to the collective agreement
covering the site or exercised a right of entry in relation to any of the
20 employees who are eligible to be members. However, the PAU has
indicated that it now wishes to take a more active role at the workplace.
There is longstanding enmity between the BMU and the PAU. Brett has told
Parvinder (the owner of Spokey Dokes) that the BMU will not tolerate the
PAU representing employees at the factory as it would breach an informal
agreement made between the two unions in the 1980s. Brett has told
Parvinder that "she'll regret it" if she deals with the PAU.
Parvinder does not want any conflict between the two unions to disrupt
Spokey Dokes' operations. In order to avoid the probable dispute,
Parvinder makes an application to FWA for a representation order for this
workplace group.
The BMU would be able to demonstrate that it has actively represented the
workplace group through its history of agreement making (paragraph
137B(1)(a)), the support of a large number of members employed at the site
(paragraph 137B(1)(b)), the informal agreement between the unions about the
BMU's right to represent the workers (paragraph 137B(1)(d)) and an active
delegate structure (paragraph 137B(1)(c)). On this basis, it is likely to
gain a representation order under section 137A.
Item 90 - Section 138 of Schedule 1
869. This item amends section 138 of FW(RO) Act to ensure that
applications for both representation orders under section 133 and
new section 137A of the Act can only be heard by the Full Bench of
FWA.
Item 91 - Clause 3 of Schedule 10
870. This item is a consequential amendment to clause 3 of Schedule 10
resulting from the insertion of the new Part explained in item 89.
Part 4 - References to Schedules to the Workplace Relations Act 1996
871. This Part amends Schedules 1 and 10 to the WR Act by omitting all
references to 'this Schedule' (a reference to Schedule 1 of the WR
Act) and substituting references to 'this Act'. These amendments
will account for the transition of Schedule 1 to the FW(RO) Act.
Part 5 - References to the Workplace Relations Act 1996 etc.
872. This Part amends Schedules 1 and 10 to the WR Act and the FW Act by
omitting all references to the 'Workplace Relations Act' and
substituting 'the Fair Work Act'. This Part also changes
references to 'this Act' in current Schedule 10 to 'the Fair Work
Act'. These changes are a result of the creation of stand alone
legislation to deal with registered organisations.
873. Where the existing provisions make reference to particular
provisions of the WR Act, this Part will substitute the
corresponding reference to provisions of the FW Act. For example,
Part 3 will substitute all references to sections 508 - 509 of the
WR Act with references to Part 3-1 (General protections) of the FW
Act. These changes will ensure that the provisions of the FW(RO)
Act remain consistent with the existing provisions in Schedule 1
and Schedule 10 of the WR Act.
Part 6 - References to the Commission etc.
874. The replacement of the AIRC with FWA necessitates changes to the
body on which the powers and functions with respect to registered
organisations are conferred. This Part amends the WR Act by
conferring on FWA powers that are currently exercised by the AIRC.
875. This Part also provides that the powers previously only exercised
by specific members of the AIRC, for example, a Presidential
member, will now only be exercised by specified members of FWA. It
does this by replacing all references to 'Presidential Member' with
references to 'the President or a Deputy President'. These changes
are necessary to conform to the new structure of FWA. Positions
that previously existed within the AIRC, such as Presidential
Member, will no longer exist in the new system.
Part 7 - References to Registrar etc.
876. The transition to FWA requires all the powers that were previously
exercised by the Industrial Registrar, Registrars and Registry
officials under the WR Act be conferred upon the General Manager of
FWA. This Part therefore replaces all references in the WR Act to
the 'Industrial Registrar', a 'Registrar' or a 'Registry official'
with a reference to the 'General Manager'. As discussed above,
item 49 inserts a new provision in Chapter 11 of the FW(RO) Act,
which allows the General Manager to delegate his or her powers or
functions under the FW(RO) Act. Further, all references to the
'Industrial Registry' and the 'registry' are replaced with a
reference to 'FWA'.
877. This Part also amends section 576 of the FW Act to insert a note in
that provision, which sets out the powers and functions of FWA,
indicating that other functions and powers are conferred on FWA by
the FW(RO) Act (item 405).
Part 8 - References to awards and collective agreements
878. This Part amends the WR Act by omitting references to an 'award'
and substituting references to a 'modern award'. The Part also
omits references to a 'collective agreement' and replaces them with
references to an 'enterprise agreement'. These consequential
amendments will bring the terminology of the FW(RO) Act into line
with that used in the FW Act.
879. This Part (see items 582 and 583) also amends the provisions of the
FW Act that set out when a modern award and enterprise agreement
cover an employer, employee, organisation or an outworker entity.
These items provide that in addition to modern awards and
enterprise agreements covering these entities where they are
expressed to do so, they will also cover them if a provision of the
FW(RO) Act (in addition to the FW Act) makes provision for this.
This amendment ensures that, for example, modern awards and
enterprise agreements can be made to cover new organisations formed
via amalgamation under Parts 2 and 3 of Chapter 3 of the FW(RO)
Act.
Part 9 - Transitional provisions etc.
880. These provisions ensure that in the transitional period all the
rights, responsibilities and instruments that existed under the
terms of Schedule 1 to the WR Act will continue to apply under the
terms of the FW(RO) Act.
Item 621 - Things done before the commencement of this Schedule
881. This item provides a table setting out persons and bodies under the
WR Act and the corresponding persons or bodies under the FW Act and
the FW(RO) Act. This item ensures that something that was done by,
or in relation to, a person or body under the WR Act (if it remains
in force), will be taken to have been done by or in relation to the
corresponding person or body under the FW Act or the FW(RO) Act.
Item 622 - Instruments made under, or for the purposes of, a provision of
Schedule 1 to the WR Act
882. This item applies to instruments made under, or for the purposes
of, a provision of Schedule 1 to the WR Act that are still in force
immediately before the commencement of this item. This item sets
out that a reference in such instruments to a provision of Schedule
1 to the WR Act must be construed, after the commencement of this
item, as a reference to the same provision of the FW(RO) Act.
Item 623 - Award-based transitional instruments and agreement-based
transitional instruments
883. This item ensures that references in the FW(RO) Act to modern
awards and enterprise agreements will be read as including
references to award-based transitional instruments and agreement-
based transitional instruments. These terms are defined in item 2
of Schedule 3 to this Bill. This item is necessary to ensure that
references to instruments made under the WR Act are not lost as a
result of the new terminology adopted by the FW Act.
Item 624 - Register of organisations kept under paragraph 13(1)(a) of
Schedule 1 to the WR Act
884. This item ensures that the register of organisations that was kept
by the Industrial Registry under paragraph 13(1)(a) of Schedule 1
to the WR Act immediately before the commencement of the item is
taken to be the register of organisations kept by FWA under the
same provision of the FW(RO) Act. This item maintains the existing
register.
Item 625 - Application of paragraph 73(2)(c) of Schedule 1 to the WR Act
885. This item inserts a new transitional provision that ensures that,
for the purposes of considerations under paragraph 73(2)(c) (which
relates to amalgamations of organisations taking effect), breaches
of the WR Act that occurred before the commencement of this
Schedule continue to be relevant to an assessment of whether a
proposed amalgamation may take effect.
Item 626 - Application of section 337A of Schedule 1 to the WR Act
886. This item ensures for the purposes of paragraph 337A(b) of the
FW(RO) Act that a disclosure of information under the whistleblower
protections that was made before the commencement of the item or
before the cessation time of the relevant body continues to be
deemed a disclosure to which paragraph 337A(b) applies.
Item 627 - Transitionally registered associations
887. This item provides that State-registered associations that were
transitionally registered associations before the commencement of
this item are taken to be transitionally recognised associations on
commencement. It ensures that transitionally registered
associations remain recognised under the FW(RO) Act.
Schedule 23 - Other amendments to the Fair Work Act
888. Schedule 23 makes a number of miscellaneous amendments to the
FW Act.
Item 1 - At the end of section 3
889. This item adds an additional object to section 3 of the FW Act to
acknowledge the special circumstances of small and medium-sized
businesses.
Item 2 - section 12 (definition of civil remedy provision)
Item 17 - at the end of section 539
890. Item 17 amends Part 4-1 of the FW Act to extend the compliance
framework in the FW Act to contraventions of civil penalties
contained in the regulations. It is intended that Part 4-1 of the
FW Act apply to a civil remedy provision in the regulations in the
same way that it applies to a civil remedy provision in the Act.
. For example, section 550 of the FW Act would operate so that a
person who is involved in a contravention of a civil remedy
provision in the regulations will be taken to have contravened that
provision.
891. A legislative note refers the reader to section 798 of the FW Act
which limits the penalties that can be set for contravention of
civil penalties provided for by the regulations.
892. Item 2 is a consequential amendment to the definition of civil
remedy provision in section 12 of the FW Act.
Item 3 - Section 63
Item 4 - Section 63 (note)
Item 5 - Section 64
Item 6 - Section 64 (note)
893. These items amend the FW Act to clarify the operation of the
maximum hours of work provisions in the NES.
894. Section 62 of the FW Act provides that an employer must not request
or require an employee to work more than a specified number of
hours in a week, unless the additional hours are reasonable. The
specified hours are 38 hours (for a full time employee) or the
lesser of 38 hours and the employee's ordinary hours of work in a
week (for an employee who is not a full time employee). Section 62
includes a non-exhaustive list of factors that must be taken into
account in determining whether additional hours are reasonable or
unreasonable.
895. Section 63 of the FW Act permits a modern award or enterprise
agreement to include terms providing for the averaging of hours
over a specified period. The average weekly hours must not exceed
38 hours (for a full time employee), or the lesser of 38 hours or
the employee's ordinary hours of work in a week (for an employee
other than a full time employee). Section 64 makes equivalent
provision for award/agreement free employees.
896. The amendments made by these items clarify the interaction between
the reasonable additional hours requirements in section 62 and the
averaging of hours provisions in sections 63 and 64.
897. The amendments made by these items make clear that an averaging
arrangement in a modern award or enterprise agreement (under
section 63) or a written agreement for an award/agreement free
employee (under section 64) can provide for average weekly hours in
excess of 38, provided that the additional hours are reasonable in
accordance with section 62.
898. This means that a roster cycle could provide for an average of more
than 38 per week. The additional hours would need to be reasonable
in accordance with section 62.
Item 7 - At the end of subsection 140(1)
899. This item amends the FW Act by inserting a note under subsection
140(1).
900. Subsection 140(1) authorises the inclusion of outworker terms in a
modern award. Outworker terms may relate to the conditions under
which an employee outworker may be employed, or the conditions
under which an outworker entity may arrange for the performance of
work by contract outworkers.
901. The new note reminds readers that a person who is an employer may
also be an outworker entity. The note is included to avoid doubt,
and reflects the fact that a person who is a national system
employer may also be an outworker entity when operating in a
capacity other than in their capacity as a national system
employer.
Item 8 - Subsection 312(2)
902. Item 8 repeals and substitutes subsection 312(2) of the FW Act.
Subsection 312(2) amends the definition of named employer award to
make clear that it also includes a modern enterprise award that is
expressed to cover one or more specified classes of employers, but
not a modern enterprise award that relates to one or more
enterprises as described in paragraph 168A(2)(b).
903. The legislative note under subsection 312(2) makes clear that
paragraph 168A(2)(b) deals with employers that carry on similar
business activities under the same franchise.
904. The effect of this item is that a named employer award that is
expressed to cover one or more named employers or one or more
employers by class will be capable of transferring on a transfer of
business.
Item 9 - Part 2-9 (heading)
905. This item corrects the heading to Part 2-9.
Item 10 - Paragraph 411(c)
Item 11 - Paragraph 411(d)
Item 12 - At the end of Subdivision C of Division 2 of Part 3-3 of Chapter
3
906. Item 11 repeals paragraph 411(d) of the FW Act which provides that
employer response action is protected industrial action if it does
not affect the continuity of employees' employment in the
circumstances prescribed in the regulations. Item 10 is
consequential to item 11.
907. Item 12 of Schedule 23 amends the FW Act to insert new section
416A. New section 416A deems that a consequence of employer
response action is that the continuity of employees' employment is
not affected, for the purposes prescribed in the regulations.
Following consultation with employer and employee stakeholders, it
was concluded that the more appropriate policy outcome is to deem
the continuity of employees' employment when an employer engages in
protected action (new section 416A) rather than have it as a
prerequisite for the protected action (the effect of
paragraph 411(d)).
Item 13 - Subsection 539(2) (cell at table item 2, column headed "Civil
remedy provision")
Item 14 - Subsection 539(2) (cell at table item 3, column headed "Civil
remedy provision")
908. These items ensure that items 2 and 3 of the table in section 539
of the FW Act apply to both contraventions and proposed
contraventions of a term of a modern award.
Item 15 - Subsection 539(2) (cell at table item 4, column headed "Civil
remedy provision")
Item 16 - Subsection 539(2) (after table item 4)
Item 18 - Subsection 540(2)
Item 19 - Subsection 540(3)
Item 20 - Subsection 540(4)
909. These items ensure that a contravention or a proposed contravention
of an outworker term in an enterprise agreement may be enforced by
an employee organisation with representation rights whether or not
the enterprise agreement applies to that employee organisation.
910. This means that outworker protections in enterprise agreements can
be enforced in the same way as outworker protections in modern
awards, and alleviates difficulties with compliance. This reflects
the special vulnerability of outworkers.
911. These items also ensure that where there is a contravention or
proposed contravention of an outworker term, an employee
organisation will be able to seek to enforce the term, provided the
organisation is entitled to represent the industrial interests of
an outworker to whom the term relates.
Item 21 - subsection 558(2)
Item 22 - subsections 799(3) and (4)
912. Item 21 amends subsection 558(2) of the FW Act to clarify that the
maximum penalty that can be set out in an infringement notice is
1/10th of the penalty that a court could impose if it were
satisfied that a person (either an individual or a body corporate)
had contravened the obligation.
913. For example, the maximum penalty that could be set out in an
infringement notice for an alleged contravention of the record-
keeping obligations in section 535 of the FW Act would be:
. 3 penalty units for an individual; or
. 15 penalty units for a body corporate.
914. The maximum penalty that could be set out in an infringement notice
for an alleged contravention of a civil remedy provision in the
regulations would be:
. 2 penalty units for an individual; or
. 10 penalty units for a body corporate.
915. This is because the maximum penalty that a court could impose for a
contravention of the regulations is 20 penalty units for an
individual and 100 penalty units for a body corporate (see section
798 of the FW Act).
916. Item 22 is a consequential amendment that repeals subsections
799(3) and (4) of the FW Act. These subsections deal with
infringement notices for civil penalties in the regulations and are
no longer necessary.
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