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2002
THE PARLIAMENT OF AUSTRALIA
HOUSE
OF REPRESENTATIVES
WORKPLACE RELATIONS LEGISLATION AMENDMENT
BILL 2002
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments to be moved on behalf of the
Government
(Circulated by the authority of the Minister for
Employment and Workplace Relations, the Honourable Tony Abbott, MP)
Workplace Relations Legislation Amendment Bill
2002
(Amendments to be moved on behalf of the
Government)
OUTLINE
The amendments will
(a) modernise the
National Labour Consultative Council Act 1977 to ensure its relevance and
durability by renaming the National Labour Consultative Council the National
Workplace Relations Consultative Council, updating the purpose and membership
provisions, clarifying the travelling allowance provisions and enabling
regulations to be made for the purposes of the Act;
(b) clarify the intention
that an ex-Australian Defence Force (ex-ADF) member be able to be appointed to
the Defence Force Remuneration Tribunal while being a member of the Reserves,
clarify the scope of the acting member provisions, and remove sexist language
from Division 2 of Part IIIA of the Defence Act 1903;
(c) correct
unintended and unforeseen consequences arising from the enactment of the
Employment, Workplace Relations and Small Business Legislation Amendment
(Application of Criminal Code) Act 2001;
(d) insert a new definition of
‘responsible Minister’ in the Equal Employment Opportunity
(Commonwealth Authorities) Act 1987;
(e) insert a new definition of
‘higher education institution’ in the Equal Opportunity for Women
in the Workplace Act 1999;
(f) amend the Remuneration Tribunal Act
1973 and the Workplace Relations Act 1996 (the WR Act) to transfer
power to the Remuneration Tribunal to determine the rates of travelling
allowance for travel within Australia by presidential members and Commissioners
of the Australian Industrial Relations Commission (the Commission) – the
rates are currently prescribed in the AIRC (Allowances) Regulations 2001
under the Workplace Relations Act 1996 (the WR Act);
(g) insert
additional objects for the WR Act to require the Commission to take into account
the circumstances of employers and employees in small business in the exercise
of its powers, including through appropriate changes to its principles,
procedures and rules;
(h) allow the Commission to deal with applications for
orders for equal remuneration during a bargaining period;
(i) allow the Full
Bench or the President of the Commission to deal with certain applications
arising outside the context of an industrial dispute;
(j) clarify that
public sector employment includes employment of, or service by, a person under
the Parliamentary Service Act 1999;
(k) require the Rules of the
Commission to allow for electronic lodgement of applications under Part VIB of
the WR Act, including applications for certification of
agreements;
(l) require the President of the Commission to provide
information and documents, as specified in the Regulations, to the
Minister;
(m) make the Industrial Relations Court of South Australia a court
of competent jurisdiction for the purposes of Division 1 of Part VIII of the WR
Act;
(n) clarify imprecise references in the Workplace Relations
Legislation Amendment (Registration and Accountability of Organisations)
(Consequential Provisions) Act 2002; and
(o) correct a number of minor
typographical or drafting errors.
FINANCIAL IMPACT
STATEMENT
The amendments proposed to the Bill are not expected to
have any impact on Commonwealth expenditure.
REGULATION IMPACT
STATEMENT
Amend the Objects of the Workplace Relations Act
1996 to Take Account of the Circumstances of Small Business
Employers
Time for Business, the 1996 report of the Small Business
Deregulation Task Force, identified that small business found that the
Australian Industrial Relations Commission (the Commission) was not user
friendly and that its rules and procedures were not responsive to its needs.
The formal nature of the Commission’s practices, proceedings and
documentation made it difficult for small business to participate in the
Commission’s processes. In addition, little or no account was taken of
the circumstances in which small businesses found themselves as employers.
Unlike large employers, they did not generally have regular access to legal
expertise in fields ranging from common law to workers’ compensation when
dealing with employment related matters in the workplace.
This lack of
access is partly because many small businesses are not members of registered
employer organisations. Thus, they are not represented in the
Commission’s hearings and cases. They also do not receive the assistance
that employer organisations provide, for example, assistance with the
requirements for agreement-making, advising of award variations and assistance
in interpreting awards. As a result, many small businesses do not have the
knowledge or opportunity to adapt award provisions to the circumstances of their
business and are not able to influence Commission proceedings.
The Commission is not required to specifically take into account the
needs and circumstances of small business in its hearings or in establishing its
rules and procedures. This situation is compounded by the absence of an
organisation representing the specific views/interests of small business in
Commission cases which are of particular importance to small business such as
award Safety Net Adjustment (SNA) cases, other test cases and certain roping-in
cases.
Objectives:
The Government’s objective is
to increase the extent to which the Commission takes into account the
circumstances of small business in its decisions and in its rules and
procedures.
The proposed amended objects address the widespread
recognition that the Commission needs to be more widely accessible and easier to
use by all participants, especially in the small business sector.
Amend the principal object of the Workplace Relations Act 1996
(the WR Act) and the objects of particular parts of the Act, for example Part VI
‘Dispute Prevention and Settlement’, to include references to the
special circumstances of small business, and in
particular:
• require the Australian
Industrial Relations Commission to take into account the circumstances of
employers and employees in small business in performing its functions and in
exercising its powers under the Act (including through appropriate changes to
its principles, procedures and rules).
The objects, as proposed to be amended, would encourage the Commission to
take account of the circumstances of small business employers and employees in
the exercise of its powers (including where appropriate modifying its practices
and procedures to make them less burdensome and complex for small business
employers) but how best this objective is to be fulfilled in particular
instances and in relation to particular issues, such as measures to make
small businesses more aware of Commission decisions and procedures, would
primarily be a matter for the Commission’s own
judgment.
(a) Effect on employers
The proposal is targeted
at small businesses in the federal jurisdiction. It is estimated that this
constitutes approximately 180 000 small businesses.
The proposal should
assist small business as a result of the Commission’s taking more account
of small business circumstances in its decisions, rules and procedures. The
Commission would also need to review its rules and procedures where appropriate
to assist small businesses involved in Commission proceedings. They would also
require the Commission to take more account of small business needs in test
cases and Safety Net Adjustment Cases. This may assist in gaining small
business exemptions such as occurred in the Termination, Change and Redundancy
test case in 1984 or in gaining Commission acceptance of arguments to amend the
Incapacity to Pay Principle in Safety Net Adjustment Cases. This should have
indirect, beneficial effects on small business activity.
For example,
at present the only formal mechanism available to ameliorate the adverse labour
cost effects of arbitrated Safety Net Adjustments on small businesses is the
Australian Industrial Relations Commission’s economic Incapacity to Pay
wage fixing principle. Since the introduction of this principle in 1986
employers have had only very limited success in gaining relief from arbitrated
labour cost increases, causing the Government to support the modification of the
principle in three successive Safety Net Review submissions after 1996. For the
1999 Safety Net Review decision, the Commonwealth indicated that some 21.2 per
cent of firms employing fewer than twenty persons were operating at a loss and
that safety net adjustments impacted heavily on businesses in this category.
The Commonwealth proposed modifications to the incapacity to pay principle for
respondents or groups of respondents who were experiencing hardship but who in
the past had considered the tests specified in the principle to be set at a
level which did not warrant the considerable expense associated with mounting a
case.
In its decision (Print R1999) the Commission decided not to modify
the Incapacity to Pay principle as suggested by the Commonwealth. However, the
Commission amended the principle to recognize that the impact of an increase in
labour costs on employment at the enterprise level is a significant factor to be
taken into account in assessing the merit of any application. However, it is
the understanding of the Department of Employment and Workplace Relations (DEWR)
that there has not been an economic incapacity case pursued in the federal
jurisdiction since this decision. In the Safety Net Review 2002 (PR 002002),
the Commonwealth again made submissions supporting amendments to the Incapacity
to Pay principle but the Commission decided not to modify the
principle.
The Commonwealth remains of the view that the hurdles set by
the Commission in considering incapacity to pay applications are set too high.
Amending the objects of the WR Act to encourage the Commission to take account
of the circumstances of small business employers would serve a useful purpose if
it made the Commission more likely to consider modifying the Incapacity to Pay
principle to make it more accessible to applications from small businesses.
(b) Effect on employees
This proposal would potentially
impact on the employees of small businesses in the federal jurisdiction. It is
estimated that around 35 per cent of employees in businesses with less than 20
employees are covered by the federal system (around 770 000 employees in
1999-2000).
For employees, there are some possible consequences of the
Commission taking more account of the circumstances of small business. There
might be an increase in exemptions such as occurred in the Termination, Change
and Redundancy test case or there might be more successful use of incapacity to
pay arguments in Safety Net Adjustment cases. To that extent,
employees in financially vulnerable small businesses may find it harder to
access standard redundancy pay provisions and safety net wage increases provided
for other employees. The overriding intent of such exemptions, however, would
be to protect the employment of the workers concerned.
As indicated
above, the Commission’s wage principles now formally recognise that the
impact of an increase in labour costs on employment at the enterprise level is a
significant factor to be taken into account in assessing the merit of an
incapacity to pay application in relation to Safety Net Adjustment cases. The
Commission’s Termination, Change and Redundancy Test Case standard was
framed with a view to minimising any differential cost impact on individual
enterprises with consequent adverse effects on employment and the viability of
vulnerable companies. In relation to redundancy pay, the Commission in 1984
provided scope for employers to apply for exemption on the grounds of their
employing less than 15 employees. Employers who employed more than 15 employees
could gain a variation in the general severance pay prescription provided they
fulfilled an incapacity to pay test.
(c) Effect on consumers and Australian economy
No direct
effects on consumers. Any indirect beneficial effects on small business
activity would also be beneficial to the Australian
economy.
Consultation:
No specific consultation on the
above option has occurred.
Implementation and
Review:
The option would require amendments to the WR Act. DEWR and
the Australian Industrial Registry would monitor and evaluate the effect of such
legislative change.
NOTES ON AMENDMENTS
Amendment No. 1 – clause 2,
page 2 (at the end of the table)
Clause 2 of the Bill sets out a table
that provides for the commencement of the proposed provisions. Amendment no. 1
adds provision number 6 to the table which provides that the amendments at
proposed Schedule 2 to the Bill, concerning the National Labour Consultative
Council, will commence on the day on which the Act receives Royal
Assent.
Amendment No. 2 – clause 2, page 2 (at the end of
the table, after proposed item 6)
This amendment adds extra items to the
table dealing with commencement of the provisions proposed by the
amendments.
The amendments at Schedule 3, items 15 to 17, dealing with
the amendments to the Employment, Workplace Relations and Small Business
Legislation Amendment (Application of Criminal Code) Act 2001 and at
Schedule 3, items 53 to 55, dealing with the amendments to the Workplace
Relations Legislation Amendment (Registration and Accountability of
Organisations) (Consequential Provisions) Act 2002 are proposed to have a
retrospective or possible retrospective commencement. Further explanation for
these commencement provisions can be found at items 15, 16 and 17 of Schedule 3
and items 53, 54 and 55 of Schedule 3 below.
The commencements for other
new items are routine.
Amendment No. 3 – clause 2, page 2
(line 7)
Subclause 2(3) provides that for items in the table due to
commence on a day fixed by Proclamation, if they have not commenced within 6
months of Royal Assent, they then commence. This amendment adds references into
subclause 2(3) to the new items proposed for insertion in the commencement
table, which would be commenced by Proclamation, and thus be covered by
subclause 2(3).
Amendment No. 4 – page 6, after line 3, at
the end of the Bill. This amendment inserts a new Schedule containing 18 new
items.
New Schedule 2 — Changing the name of the National Labour Consultative Council, and other matters relating to the Council
Part 1 — Main amendments
National Labour Consultative Council Act 1977
The
purpose of the amendments in Part 1 of this Schedule is to modernise the Act to
ensure its relevance and durability by renaming the National Labour Consultative
Council the National Workplace Relations Consultative Council, updating the
purpose and membership provisions, clarifying the travelling allowance
provisions, and enabling regulations to be made for the purposes of the
Act.
Item 1 - Title
The short title is to be amended to
omit “Labour” and substitute “Workplace
Relations”.
Item 2 - Section 1
Section 1
providing the short title is to be amended from the National Labour
Consultative Council Act 1977 to the National Workplace Relations
Consultative Council Act 2002. The short title is to incorporate the
year in which these amendments are proposed to be made notwithstanding that the
Act was made in 1977. This is a drafting decision. If the Bill does not pass
until 2003 the title will be amended, as a matter of drafting practice, to
reflect that.
Item - 3 Section 3 (definition of
Council)
Section 3 is to be amended to omit
“Labour” and substitute “Workplace Relations”. The
intention is to update this provision to reflect the Government’s
workplace relations policies.
Item - 4 Section 4
Section 4
is to be amended to omit “Labour” and substitute “Workplace
Relations”. A Note is to be added to the effect that this same change is
to be made to the heading to section 4. The intention is to update this
provision to reflect the Government’s workplace relations
policies.
Item 5 - Subsection 5(1)
Subsection 5(1) sets out
the purpose of the Council. The proposed amendments to this provision, to refer
to consultations on “workplace relations matters” of national
concern and to omit the reference to “manpower matters”, also
reflect the Government’s workplace relations policies.
Item 6 -
Paragraph 6(1)(d)
The proposed amendment of paragraph 6(1)(d) is to
delete the reference to “the Australian Chamber of Manufactures” as
this organisation no longer exists. The Business Council of Australia is to be
the replacement organisation.
Item 7 - Paragraph
6(1)(e)
The proposed amendment of paragraph 6(1)(e) is to delete the
reference to “the Metal Trades Industry Association of Australia”
and substitute “the Australian Industry Group” to reflect the fact
that the latter organisation is the legal successor to the MTIA, which no longer
exists.
Item 8 - After subsection 6(1)
Proposed new
subsections (1A), (1B) and (1C) to be inserted after subsection 6(1), which
deals with the membership of the Council, are intended to provide greater
flexibility in accommodating changes in member organisations without the need to
amend the Act in each case.
Proposed subsection (1A) is to enable
regulations to be made to specify another member organisation if the Minister is
satisfied that an organisation has changed its name or merged with another
organisation or been succeeded by another organisation.
Proposed
subsection (1B) is to enable regulations to be made to specify a new member
organisation if the Minister is satisfied, after consulting members of the
Council, that a member organisation has ceased to exist and has not merged with
or been succeeded by another organisation and there is another organisation that
performs a broadly similar role.
Proposed subsection (1C) requires the
Minister to consult members of the Council before deciding there is another
organisation that performs a broadly similar role for the purposes of proposed
subsection (1B). This requirement is intended to ensure that consideration by
the Minister in these circumstances is undertaken in full collaboration with all
Council members.
A Note is to be added after proposed subsection (1C) to
explain that it is not intended to limit by implication the matters the Minister
may take into account for the purposes of subsection (1A) or
(1B).
Item 9 - Subsection 6(4)
Subsection 6(4) of the Act
is to be repealed as it has ceased to operate and is now obsolete. Section 6,
which deals with membership, was repealed and remade in 1995 so subsection 6(4)
operated at that time to terminate the appointments of existing Council members
while confirming their eligibility to be re-appointed to the newly revamped
Council.
Item 10 - Section 7
The proposed amendment of
section 7 is for the purpose of removing sexist language. This is a drafting
decision.
Item 11 - At the end of section 8
Proposed
subsection (2) is to be added at the end of section 8 to require the Minister to
terminate the appointment of any member nominated by an organisation under
subsection 6(1) that has ceased to exist and has not merged with or been
succeeded by another organisation. This provision is intended to facilitate the
replacement of such a member without the need for the member to resign in
writing, as this technical requirement has resulted in delay in the
past.
Item 12 – Section 9
New section 9 –
Travelling allowance for members
The proposed repeal of section 9 and
the substitution of a new provision is intended to simplify the approach to the
setting of travelling allowance rates for members by providing a
regulation-making power to enable an appropriate rate of travelling allowance to
be prescribed by regulation.
The current reference in section 9 to
payment of travelling allowance to members “at a rate equal to the highest
rate of travelling allowance payable to persons engaged under the Public
Service Act 1999” is no longer appropriate given the removal of the
setting of service-wide rates of travelling allowance and the devolution of this
function to agencies. Accordingly proposed section 9 will enable regulations to
be made for the payment of travelling allowance to a member that could, for
example, incorporate by reference the rate of travelling allowance determined by
the Remuneration Tribunal for comparable office holders as in force from time to
time. The current rate set by the Tribunal is Tier 2, which may be considered
an appropriate benchmark. The intention is therefore to provide greater
flexibility and certainty in the application of this provision.
A Note is
to be added at the end of proposed subsection 9(2) to explain that it is not
intended to be an exhaustive statement of the ways in which a rate could be
identified.
Item 13 - Subsection 11(4)
The proposed
amendment of subsection 11(4) is for the purpose of removing sexist language.
This is a drafting decision.
Item 14 - Subsection 11(4)
The
proposed amendment of subsection 11(4) is for the purpose of removing sexist
language. This is a drafting decision.
Item 15 - Subsection
12(2)
The proposed repeal of subsection 12(2) and proposed
subsections (2), (3) and (4) mirror the above changes to section 9 (which
applies to a member) as they apply to a member of a committee.
A Note
is to be added at the end of proposed subsection 12(3) to explain that it is not
intended to be an exhaustive statement of the ways in which a rate could be
identified.
Item 16 - At the end of the Act
New section
13 - Regulations
The proposed addition of section 13 at the end of
the Act is to enable the Governor-General to make regulations prescribing
matters required or permitted by the Act to be prescribed, or necessary or
convenient for carrying out or giving effect to the Act. This is a standard
provision that would have been included in the Act were it being drafted today,
and is intended to make the Act more contemporary and flexible.
Part 2 — Consequential amendments
Administrative Decisions (Judicial Review) Act
1977
Item 17 - Paragraph (l) of Schedule 1
The
renaming of the Council will require the consequential amendment of paragraph
(l) of Schedule 1 to the Administrative Decisions (Judicial Review)
Act 1977 to omit “National Labour Consultative Council” and
substitute “National Workplace Relations Consultative
Council”.
Freedom of Information Act
1982
Item 18 - Part 1 of Schedule 2
The renaming of
the Council will require the consequential amendment of Part 1 of Schedule 2 to
the Freedom of Information Act 1982 to omit “National Labour
Consultative Council” and substitute “National Workplace Relations
Consultative Council”.
Amendment No. 5 – page 6. at
the end of the Bill (after proposed Schedule 2)
This amendment inserts a
new schedule containing 61 items.
New Schedule 3 — Other amendments
Part 1 — Amendments
Defence Act 1903
The purposes of these amendments
are to clarify the intention that an ex-ADF member is able to be appointed to
the Defence Force Remuneration Tribunal while being a member of the Reserves, to
clarify the scope of the acting member provisions, and to remove sexist language
from Division 2 of Part IIIA of the Act.
Item 1 - Section 58F
(paragraph (d) of the definition of relevant allowances)
The
proposed amendment of paragraph (d) of the definition of relevant
allowances is for the purpose of removing sexist language. This is a
drafting decision.
Item 2 - Paragraph 58G(2)(c)
The
proposed repeal of paragraph 58G(2)(c) and the substitution of a new paragraph
is to make it clear that the Tribunal must include a person who has been
formerly, but is no longer, a member of the Permanent Forces although the person
may be a member of the Reserves.
A Note is to be added at the end of
the new paragraph to explain that the Permanent Forces are made up of the
Permanent Navy, the Regular Army and the Permanent Air Force as established
respectively by the Naval Defence Act 1910, the Defence Act 1903
and the Air Force Act 1923. Those Acts also establish the Naval Reserve,
the Army Reserve and the Air Force Reserve, which together make up the Reserves.
The explicit inclusion of reference to membership of the Reserves in proposed
paragraph 58G(2)(c) is to reflect Government policy that such members not be
precluded from other forms of government service where there is no real or
perceived conflict of interest involved.
Item 3 - Subsection 58G(5)
Relatedly, the proposed repeal of subsection 58G(5) and the
substitution of a new subsection is to make it clear that a person must not be
appointed as a member of the Tribunal if he or she has at any time during the
year preceding the appointment been a member of the Permanent Forces.
The above two proposed amendments are in tandem intended to preserve the
existing prohibition on the appointment of a person as a member of the Tribunal
if he or she has at any time during the year preceding the appointment been a
member of the Permanent Forces, while at the same time clearly distinguishing
between non-membership of the Permanent Forces in that year and ongoing
membership of the Reserves in the consideration of a person for appointment to
the Tribunal.
The proposed amendment of subsection 58G(5) is also for the
purpose of removing sexist language. This is a drafting
decision.
Item 4 - Subsection 58H(13)
Item 5 - Subsections
58K(1) and (3)
The proposed amendments of subsections 558H(13),
58K(1) and (3) are for the purpose of removing sexist language. This is a
drafting decision.
Item 6 - Subsection 58L(2)
As a
corollary to the proposed changes to section 58G, subsection 58L(2) is to be
repealed and a new subsection substituted to clarify that a person must not
continue to hold office as a member of the Tribunal if he or she becomes a
member of the Permanent Forces although he or she may become a member of the
Reserves.
At the end of proposed subsection 58L(2), the same Note is to
be added as at the end of proposed paragraph 58G(2)(c) to explain the
composition of the Permanent Forces and the Reserves.
The proposed
amendments to paragraphs 58L(2)(b) and (c) are also for the purposes of removing
sexist language. This is a drafting decision.
Item 7 - Section
58M
Item 8 - Paragraph 58P(1)(b)
Item 9 - Subsection
58P(2)
Item 10 - Subsection 58P(6)
Item 11 - Subsection
58P(7)
Item 12 - Subsection 58P(7)
These proposed
amendments are for the purpose of removing sexist language. This
is a drafting decision.
Item 13 - Subsection 58P(8)
The
proposed amendments to subsection 58P(8) are to clarify that a reference in
sections 58KA, 58KC and 58U to the President or a member of the Tribunal
includes a reference to an acting President or acting member of the Tribunal.
The addition of references to sections 58KA and 58KC is to ensure the inclusion
of proceedings and review proceedings respectively conducted by a single
Tribunal member. The additional reference to section 58U is to clarify that a
person who becomes an acting member of the Tribunal is no longer able to hold
the office of Defence Force Advocate.
Item 14 - Subsection
58Q(2)
The proposed amendment of subsection 58Q(2) is
for the purpose of removing sexist language. This is a drafting
decision.
Employment, Workplace Relations and Small Business
Legislation Amendment (Application of Criminal Code) Act
2001
Certain clauses of the Employment, Workplace Relations
and Small Business Legislation Amendment (Application of Criminal Code) Act
2001 (the Criminal Code Application Act) used the term ‘....omit all
the words after ....’. It was the intention of these words to omit all
the words within the section or subsection after the particular named words but
not to omit any words after the section or subsection. In particular, it was
not the intention to omit any penalty at the foot of the section or subsection.
If a penalty at the foot of a section or subsection is omitted then the relevant
provision is no longer a criminal offence – it is the presence of the
penalty that creates the offence. This is expressly provided for in subsection
4D(1) of the Crimes Act 1914.
It appears that the use of the term
‘... omit all the words after...’ may, however, have had the effect
of repealing any and all words that follow, including penalties and notes found
at the feet subsection 21(1), section 56 and section 80B of the Industrial
Chemicals (Notification and Assessment) Act 1989, which was amended by the
Criminal Code Application Act.
Item 15 - At the end of item 17 of
Schedule 1
Item 16 - At the end of item 28 of Schedule
1
Item 17 - At the end of item 41 of Schedule 1
These items
will insert the words ‘(but not the penalty)’ or ‘(but not the
penalty or the note)’ into the relevant amendments that were made in
Schedule 1 to the Criminal Code Application Act, to negate any interpretation
that the penalties were meant to be repealed.
This revised wording in the
amending provisions will ensure that the provisions remain as offence creating
provisions. It will also provide certainty of interpretation.
The
amendments at items 15, 16 and 17 of Schedule 3 are proposed to commence
immediately before the commencement of the relevant provisions of the Criminal
Code Application Act (which commenced on 2 October 2001) – in other words
retrospectively. The reason that retrospectivity is proposed in this case is
because it was never intended that the amendments would decriminalise the
provisions – they were always meant to operate as criminal offences. This
is clearly demonstrated by the restatement of the words omitted as an exception
to the offence in a separate subsection. The possible deletions of the
penalties (and decriminalisation of the provisions) arose from a drafting error
and it is proposed that this error be corrected to ensure an outcome which was
clearly intended from the time that the original amendments were
made.
Equal Employment Opportunity (Commonwealth Authorities) Act
1987
Item 18 - Subsection 3(1) (definition of responsible
Minister)
This item proposes to insert a new definition of
‘responsible Minister’ in the Equal Employment Opportunity
(Commonwealth Authorities) Act 1987. The Act requires relevant authorities
to report to the responsible Minister with respect to development and
implementation of equal opportunity programs. The new definition will allow
authorities established under the Corporations Act to report to an appropriate
Minister.
Equal Opportunity for Women in the Workplace Act
1999
Item 19 - Subsection 3(1) (definition of higher
education institution)
This item proposes to repeal the existing
definition of higher education institution and insert a new definition,
removing a reference to repealed legislation. The new definition is not
intended to alter the effect and coverage of the legislation.
Remuneration Tribunal Act 1973
Item 20 - After
subsection 7(4A)
The purpose of the amendments to the Act proposed in
items 20, 21 and 22 is to the transfer power to the Remuneration Tribunal for
determining the rates of travelling allowance for travel within Australia by
presidential members and Commissioners of the Australian Industrial Relations
Commission (the Commission). These rates are currently prescribed in the
AIRC (Allowances) Regulations 2001 under the Workplace Relations Act
1996.
Changes are also required to the Workplace Relations Act
(see items 25 to 27 of this Schedule).
The proposed addition of
paragraph 7(4B) is to expressly empower the Tribunal to inquire into and
determine the rates of travelling allowances to be paid to members of the
Commission established under section 8 of the Workplace Relations Act, namely,
the President, Vice Presidents, Senior Deputy Presidents, Deputy Presidents and
Commissioners of the Commission.
Item 21 - At the end of paragraphs
7(9)(a) to (ad)
The proposed addition of “and” at the end
of paragraphs 7(9)(a) to (ad) is to clarify that these provisions are cumulative
in effect and to accommodate the insertion of proposed paragraph 7(9)(af).
Item 22 - After paragraph 7(9)(ae)
The proposed insertion
of paragraph 7(9)(af) is to provide, in relation to travelling allowances
payable to a member of the Commission, that such allowances are be paid in
accordance with the determination out of funds that are lawfully available under
section 358 of the Workplace Relations Act (see item 52 of this Schedule).
Workplace Relations Act 1996
Item 23 - After
paragraph 3(h)
The proposed amendment will insert a new paragraph
3(h)(a) in the principal object of the Workplace Relations Act 1996 (the
Act), requiring the Australian Industrial Relations Commission (the Commission)
to take into account the circumstances of employers and employees in small
business in performing its functions and in exercising its powers under the
Act, including through making appropriate changes to its principles,
procedures and rules. It is anticipated that a review of the Rules would occur
at the same time as the Rules are being reviewed pursuant to the proposed
amendments in items 29 and 30 of this Schedule.
Item 24 - Subsection
4(1) (paragraph(a) of the definition of public sector
employment)
The proposed amendment will clarify that public
sector employment includes employment of, or service by, a person under the
Parliamentary Service Act 1999. This corrects an oversight that occurred
when references to the Public Service Act 1922 (the 1922 Act) were
replaced with references to the Public Service Act 1999. The
Parliamentary Departments had been covered by the 1922 Act prior to its repeal
and replacement with the Public Service Act 1999 and the Parliamentary
Service Act 1999.
While a reference to the Parliamentary Service
Act 1999 is not currently contained in the definition of public sector
employment, persons engaged under that Act are still considered to be in public
sector employment by virtue of section 84 of the Parliamentary Service Act
1999. Consequently, the proposed amendment will not extend the definition
of public sector employment but will rather make it clear to a reader of the WR
Act that it extends to employment under the Parliamentary Service Act
1999.
Item 25 - Paragraph 12(2C)(b)
The purpose of the
amendments to the Act proposed in items 25, 26 and 27 is to transfer to the
Remuneration Tribunal the power to determine the rates of travelling allowance
for travel within Australia by presidential members and Commissioners of the
Commission. Changes are also required to the Remuneration Tribunal Act
1973 (see items 20 to 22 of this Schedule).
The amendments will
empower the Tribunal to determine the rates of travelling allowance from time to
time for travel within Australia by presidential members of the Commission
(namely, the President, Vice Presidents, Senior Deputy Presidents and Deputy
Presidents) and Commissioners. Regulations will be able to prescribe other
allowances for presidential members and Commissioners.
These rates are
currently prescribed in the AIRC (Allowances) Regulations 2001 under the
Act.
The intention in transferring this power directly to the Tribunal
is to enable it to determine the appropriate rates of travelling allowance for
presidential members and Commissioners without the need to amend the AIRC
(Allowances) Regulations each time the Tribunal determines an increase for
comparable statutory office holders in order to flow on the increase to
presidential members and Commissioners.
Accordingly, the proposed repeal
of paragraph 12(2C)(b) and the substitution of a new paragraph is to transfer to
the Remuneration Tribunal the power to determine the rates of travelling
allowances from time to time for travel within Australia by a member of the
Commission performing duties on a part-time basis.
Item 26 -
Paragraphs 21(1)(b), (2)(b), (2A)(b) and (2B)(b)
The proposed repeal
of paragraphs 21(1)(b), (2)(b), (2A)(b) and (2B)(b) and the substitution of new
paragraphs are mirror changes to that proposed in item 25 to enable the Tribunal
to determine the rate of travelling allowances from time to time for travel
within Australia in relation to the offices respectively of the President, Vice
President, Senior Deputy President and Deputy President of the Commission.
Regulations will continue to prescribe other allowances for presidential
members.
Item 27 - Paragraph 23(1)(b)
The proposed
amendment of paragraph 23(1)(b) in relation to the office of Commissioner is a
mirror change to those proposed in item 26.
Regulations will continue to
prescribe other allowances for Commissioners.
Item 28 - Paragraph
45(1)(ed)
Paragraph 45(1)(ed) currently provides that an appeal lies
to a Full Bench of the Commission, subject to the leave of the Full Bench,
against a decision to vary, or not to vary, an award that has been referred to
the Commission under section 46PW of the Human Rights and Equal Opportunity
Commission Act 1986. The paragraph should refer to referral of awards
and to referral of certified agreements, in accordance with processes set
out in s46PW of the Human Rights and Equal Opportunity Commission Act 1986.
The proposed amendment is made for the removal of doubt and to correct this
oversight.
Item 29 - After subsection 48(1)
Proposed item
29 inserts new subsections 48(1A) and 48(1B) after subsection 48(1) of the Act.
Section 48 of the Act relates to the rules of the Commission.
New
subsection 48(1A) would require the Commission’s rules to allow
applications under Part VIB of the Act, and any ancillary documents
relating to those applications, to be made or given to the Commission in
electronic form. Part VIB of the Act relates to certified agreements.
If
a document cannot be ‘made’ in electronic form, a copy of the
document can be given to the Commission in electronic form.
New
subsection 48(1B) would enable the Commission’s rules to allow the
Commission to require the original paper application or ancillary document to be
produced to the Commission, if that document has previously been given to the
Commission in electronic form.
Item 30 - After section
48
Proposed item 30 inserts new section 48A
New section 48A
– President must provide certain information etc. to the
Minister
New subsection 48A(1) would require the President of the
Commission to provide certain information and copies of documents relating to
the Commission’s proceedings and actions to the Minister as prescribed by
regulations.
New subsection 48A(2) would require the President to provide
the information or the copies by the time, and in the form, for example
electronic form, prescribed by the regulations.
This provision would
ensure the provision of appropriate information to the Minister, generally of an
aggregate or like nature, concerning matters within the jurisdiction of the
Commission to assist in the Government’s on-going oversight of the
operation of the workplace relations system.
Item 31 - Subsection
83BE(3)
The proposed amendment will correct a drafting error in
subsection 83BE(3) by fixing an incorrect cross-reference. The subsection
currently refers to non-existent paragraphs 83BB(a), (b) or (c). This will be
replaced by the correct reference to paragraphs 83BB(1)(a), (b) or
(c).
Item 32 - At the end of paragraph 88A(d)
This proposed
amendment inserts a new object for Part VI of the Act, which deals with Dispute
Prevention and Settlement. It will require the Commission, in performing and
exercising its functions and powers in relation to making and varying awards, to
take into account the circumstances of employers and employees in small
business.
Item 33 - After subsection 170BI(2)
Division 2
of Part VIA, which provides for the making of equal remuneration orders in
appropriate cases, is expressed as giving effect to a number of international
instruments.
Section 170BI provides for the additional operation of this
Division, based on the conciliation and arbitration power under the
Constitution.
This item proposes to insert a subsection allowing the
Commission to deal with an application for an order for equal remuneration
notwithstanding section 170N of the Act.
Section 170N prevents the
Commission from exercising arbitration powers under Part VI of the Act during a
bargaining period.
Section 170N would limit the power of the Commission
to deal with an application for an equal remuneration order to the extent it is
being dealt with under subsection 170BI(2) (that is as an exercise of the
conciliation and arbitration power).
This amendment removes this
limitation.
This proposed amendment inserts a new subsection in section 170CA to
require that the Commission take into account the circumstances of employers and
employees in small business in performing its functions, and in exercising its
powers, under Division 3 of Part VIA (termination of employment) of the
Act.
Item 35 - Subsection 170CD (paragraph (a) of the definition of
Commonwealth public sector employee)
As with item 24, this
amendment clarifies that a ‘Commonwealth public sector employee’
includes a person in employment under the Parliamentary Service Act
1999.
Item 36 - Section 170FD
This item inserts references
to section 108 in section 170FD – specifying that sections 107 and 108 do
not apply to orders for application under section 170FA.
Section 108
allows the President to deal with industrial disputes or refer matters to a Full
Bench on his or her own motion. Section 170FD provides that section 108 applies
to certain applications, even though they are not industrial disputes.
This will become unnecessary, as a result of amendments proposed by
item 40 – inserting new sections 170JAB and 170JEC – to provide an
equivalent though broader mechanism.
Item 37 - At the end of section
170FD
This item proposes to add a Note after section 170FD, referring to
the fact that the Full Bench and the President may deal with certain
applications under sections 170JEB and 170JEC.
Item 38 - Section
170GD
This item inserts reference to section 108 in section 170GD. Refer
to the explanation at item 36 above.
Item 39 - At the end of section
170GD
This item proposes to add a Note after section 170GD, to the same
effect as referred to in item 37 above.
Item 40 - After section
170JEA
This item proposes to insert new sections 170JEB and 170JEC
into the Act, which will allow applications for orders under Division 2 and
Subdivisions D and E of Division 3 of Part VIA to be referred to a Full Bench or
be handled by the President of the Commission on his or her own motion. These
new sections are modelled on sections 107 and 108 respectively, but refer to
matters arising outside of the context of an industrial dispute.
New
section 170JEB – Reference of applications to Full Bench
This
new section would provide for the reference to a Full Bench of applications for
orders under Division 2 and Subdivisions D and E of Division 3 of Part VIA.
This new section has been modelled on section 107 (which provides for reference
of industrial disputes to a Full Bench), but has been adapted to take account of
the differences between applications under Part VIA and industrial
disputes.
It is intended that the process for handling references under
proposed section 170JEB should be broadly the same as that for industrial
disputes under section 107.
New section 170JEC – President may
deal with certain applications
This new section provides for the
President, on his or her own initiative, to deal with applications for orders
under Division 2 and Subdivisions D and E of Division 3 of Part VIA. The new
section has been modelled on section 108 (which allows the President to deal
with dispute matters on his or her own motion). However, the provision has been
adapted to take into account the differing constitutional bases of applications
under Part VIA and industrial disputes which are handled by the Commission under
the conciliation and arbitration power.
It is intended that the manner
in which the President can deal with applications under proposed section 170JEC
should be broadly the same as that for industrial disputes under section 108
(except in relation to the reference of agreements to a Full Bench under
subsection 108(7)).
Item 41 - After subsection
170LA(1)
This item inserts a new subsection 170LA(1A), which requires
the Commission, when performing its functions under Part VIB of the Act
(Certified Agreements), to take into account the circumstances of employers and
employees in small business.
Paragraph 170LU(2)(c) provides that the Commission must refuse to certify
an agreement if the Commission thinks that a provision of the agreement is
inconsistent with ‘an injunction granted, or any other order made, by the
Court under that Division’. This reference to ‘the Court’ is
limited, by virtue of the definition in section 4 of the Act, to the Federal
Court. The proposed amendment will replace this with a reference to ‘a
court’, to reflect the fact that orders with respect to unlawful
termination may be made by courts other than the Federal Court.
Item
43 - At the end of section 170N
This item proposes to add a Note
after section 170N, referring to proposed subsection 170BI(2A) (see item 33
above) which will allow the Commission to arbitrate an application for an order
for equal remuneration notwithstanding section 170N.
This amendment makes clear that a Secretary of a Department (within the
meaning of the Parliamentary Service Act 1999) may act on behalf of the
Commonwealth in relation to AWAs with persons in the Department who are engaged
under the Parliamentary Service Act 1999. While a Secretary of a
Department may already act on behalf of the Commonwealth in relation to AWAs, by
virtue of section 21 of the Parliamentary Service Act 1999, the amendment
will make this clear to a reader of the WR Act.
Item 45 - Section 177A
(at the end of the definition of court of competent
jurisdiction)
The proposed amendment would include the Industrial
Relations Court of South Australia in the definition of court of competent
jurisdiction in section 177A. This will enable employers or employees to take
action under the provisions of Division 1 of Part VII of the Act in that Court
such as seeking the imposition and recovery of penalties for breaches of an
award or certified agreement or for an employee to take action for underpayment
of wages under an award, order or certified agreement. The amendment would also
provide for any other State or Territory court to be prescribed by the
regulations as a court of competent jurisdiction. It is anticipated that this
regulation making power would only be used in circumstances where a State or
Territory requests that this occur.
Item 46 - Subsection 178(1)
The Workplace Relations and
Other Legislation Amendment Act 1996 was supposed to remove all references
to ‘ban clauses’. However, the reference in subsection 178(1) was
overlooked. The proposed amendment will correct this oversight. As ‘bans
clauses’ no longer exist under the Act, it will have no practical
effect.
Item 47 - Paragraph 298G(2)(a)
The proposed
amendment will correct a typographical error by replacing ‘this’
with ‘the’.
Item 48 - Paragraph 298R(d)
The
proposed amendment will correct the grammar of the provision. At present the
provision reads that, ‘[a] n industrial association ... must not impose
... a penalty ... on a member of the association:. ...(d) has participated in
... a secret ballot ordered by an industrial body under an industrial
law.’ The amendment would make clear that the industrial association must
not impose a penalty on the member of the association ‘because the
member has participated in’ a secret ballot.
Item 49 -
Paragraph 317(2)(c)
Item 50 - At the end of paragraph
317(2)(g)
Item 51 - Paragraph 317(2)(h)
Proposed items 49
to 51 would amend section 317 of the Act. These amendments address unforseen
consequences of the Criminal Code Application Act.
The Criminal Code
Application Act deleted the proviso 'without lawful authority or excuse' from
section 317 of the Act, which deals with offences in relation to ballots
involving registered organisations. Instead, the general defence of
‘lawful authority’ now applies to all offence provisions under
Commonwealth law. Section 10.5 of the Criminal Code provides
that:
A person is not criminally responsible for an offence if the
conduct constituting the offence is justified or excused by or under a
law.
With a general defence in place, words in legislation to the same
effect became redundant and thus references to ‘lawful authority’
and ‘lawful excuse’ were deleted from each provision in portfolio
legislation by the Criminal Code Application Act.
Most of the provisions
of subsection 317(2) relate to unlawful conduct, such as impersonating a voter
or recording a vote the person is not entitled to record. However the removal
of the proviso, and reliance on the relevant defence in the Criminal
Code, has the unintended consequence of prima facie criminalising
certain conduct that is meant to be lawful, such as putting a ballot paper in a
ballot box. Proposed items 49 to 51 would clarify the relevant elements of
these offences.
Unlike the amendments proposed at item 15, 16 and 17, to
the Criminal Code Application Act, no element of retrospectivity is proposed for
these amendments – they will commence the day after the present Bill
receives Royal Assent. These proposed amendments do not correct a drafting
error – they will, rather, ensure that the provisions operate logically
and appropriately.
Item 52 - Section 358
Section 358
provides for the appropriation for payment of certain salaries and allowances
and is proposed to be amended to include a reference to ‘travelling
allowance’.
This amendment is a corollary to the amendments
proposed in items 20 to 22 and 25 to 27 of this Schedule to transfer to the
Remuneration Tribunal the power to determine the rates of travelling allowance
for travel within Australia by presidential members and Commissioners of the
Commission. These rates are currently prescribed in the AIRC (Allowances)
Regulations 2001 under the Act, and will continue to be paid in accordance
with funds that are lawfully available under section 358 so that the funding of
costs (if any) arising from this transfer of power to the Tribunal will be
provided from existing Commission appropriations.
Workplace
Relations Legislation Amendment (Registration and Accountability of
Organisations)(Consequential Provisions) Act 2002
Item 53 -
Item 38 of Schedule 3
Item 54 - Item 39 of Schedule 3
Item
55 - Item 40 of Schedule 3
Proposed items 53 to 55 would amend items
38 to 40 of Schedule 3 to the Workplace Relations Legislation Amendment
(Registration and Accountability of Organisations) (Consequential Provisions)
Act 2002 (the RAOCP Act) to clarify imprecise cross references in that Act.
Items 38 to 40 of Schedule 3 to the RAOCP Act make consequential amendments to
the Criminal Code Act 1995 arising from the amendment of the Workplace
Relations Act 1996 (WR Act) by the Workplace Relations Amendment
(Registration and Accountability of Organisations) Act 2002.
Items 53
to 55 would commence immediately before the commencement of items 38 to 40 of
Schedule 3 to the RAOCP Act so that the references in the Criminal Code Act
1995 are correct from the commencement of those items of the RAOCP Act.
This may mean that the amendments proposed at items 53 to 55 commence
retrospectively, depending on the date on which the RAOCP Act commences.
Part 2 – Application provisions
Item 56 - Application of items 23, 32, 34 and 41
This item
provides that the amendments made by items 23, 32, 34 and 41, which amend the
principal object of the WR Act and additional objects in particular parts of the
WR Act, will apply in relation to any proceedings before the Commission, whether
instituted before, on or after the commencement of those items.
This item provides that the amendment made by item 28 will apply in
relation to any decisions of the Commission whether made before, on or after the
commencement of item 28, to vary or not to vary an agreement referred to it
under section 46PW of the Human Rights and Equal Opportunity Commission Act
1986.
This item provides that the amendments made by items 33 and 43 will apply
in relation to applications for orders for equal remuneration made before, on or
after the commencement of those items.
This item provides that the amendments made by items 36 to 40 will apply
in relation to applications for orders under Division 2 and Subdivision D and E
of Division 3 of Part VIA made before, on or after the commencement of those
items.
This item provides that the amendment made by item 42 will apply in
relation to applications for certification of an agreement made before, on or
after the commencement of item 42.
This item provides that the amendment made by item 45, making the
Industrial Relations Court of South Australia a court of competent jurisdiction
for the purposes of Division 1 of Part VII of the WR Act, will apply in relation
to any breach of a term of an award, order or agreement, whether committed
before, on or after the commencement of that item.