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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (National Industrial Relations System)
Bill 2009
A BILL FOR
An Act to amend various Acts to facilitate the integration of State and
federal workplace relations systems and processes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Construction Industry Long
Service Leave Act 1987
4 Amendment of
section 4—Interpretation
Part 3—Amendment of Equal Opportunity
Act 1984
5 Amendment of section
85F—Exemptions
6 Amendment of section 100—Proceedings under
Fair Work Act 1994
Part 4—Amendment of Fair Work
Act 1994
7 Amendment of section 3—Objects of
Act
8 Amendment of section 4—Interpretation
9 Amendment of section
29—The President
10 Amendment of section 37—Concurrent
appointments
11 Amendment of section 79—Approval of enterprise
agreement
12 Amendment of section 92—Retrospectivity
13 Amendment of
section 100—Adoption of principles affecting determination of remuneration
and working conditions
14 Amendment of section 119—Eligibility for
registration
15 Amendment of section 122—Registration of
associations
16 Amendment of section 125—Alteration of rules of
registered association
17 Amendment of section 131—Eligibility for
registration
18 Amendment of section
135—De-registration
19 Amendment of section
136—Federation
20 Amendment of section 140—Powers of officials of
employee associations
21 Amendment of section 141—Register of members
and officers of associations
22 Amendment of section 167—Extension of
time
23 Amendment of section 185—Costs
24 Amendment of
section 210—Powers on appeal
25 Amendment of section
215—Co-operation between industrial authorities
26 Amendment of section
216—Reference of industrial matters to Fair Work Australia
27 Repeal of
section 222
28 Amendment of
section 237—Regulations
29 Amendment of Schedule
1—Transitional provisions
18 National industrial
relations system
30 Insertion of Schedules 2 and 2A
Schedule 2—Continuity of industrial arrangements—government
business
enterprises
1 Preliminary
2 Operation
of federal industrial instruments
3 Ability to carry
over matters
Schedule 2A—Continuity of industrial arrangements—local
government
sector
1 Preliminary
2 State
industrial instruments
3 Federal industrial
instruments—immediate changeover
4 Federal
enterprise agreements—later changeover
5 Ability
to carry over matters
Part 5—Amendment of Housing and Urban Development
(Administrative Arrangements) Act 1995
31 Amendment of
section 17—Staff
Part 6—Amendment of Local Government
Act 1999
32 Insertion of section
302A
302A Local government sector employees
Part 7—Amendment of Long Service Leave
Act 1987
33 Amendment of
section 3—Interpretation
34 Amendment of
section 13—Failure to grant leave
35 Amendment of
section 16—Act not to apply to certain workers
Part 8—Amendment of Motor Accident Commission
Act 1992
36 Amendment of section 29A—Staff
Part 9—Amendment of Occupational Health, Safety and
Welfare Act 1986
37 Amendment of
section 4—Interpretation
Part 10—Amendment of Petroleum (Submerged Lands)
Act 1982
38 Amendment of Schedule 7—Occupational
health and safety
Part 11—Amendment of Public Corporations
Act 1993
39 Insertion of section
38B
38B Exclusion of operation of Commonwealth industrial
relations legislation in specified cases
Part 12—Amendment of Rail Safety
Act 2007
40 Amendment of section
4—Interpretation
Part 13—Amendment of South Australian Forestry
Corporation Act 2000
41 Amendment of section
15—Staff
Part 14—Amendment of South Australian Water
Corporation Act 1994
42 Amendment of section 17—Staff
of Corporation
Part 15—Amendment of Stamp Duties
Act 1923
43 Amendment of Schedule 2—Stamp duties
and exemptions
Part 16—Amendment of State Lotteries
Act 1966
44 Amendment of section 13—Powers and
functions of Commission
Part 17—Amendment of Superannuation Funds
Management Corporation of South Australia
Act 1995
45 Amendment of section 31—Staff of
Corporation
Part 18—Amendment of West Beach Recreation Reserve
Act 1987
46 Amendment of section 15—Officers and
employees
Part 19—Amendment of WorkCover Corporation
Act 1994
47 Insertion of section
22A
22A Exclusion of operation of Commonwealth industrial
relations legislation
Part 20—Amendment of Workers Rehabilitation and
Compensation Act 1986
48 Amendment of
section 3—Interpretation
Schedule 1—Transitional
provisions
1 Transitional provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (National Industrial
Relations System) Act 2009.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the Acts Interpretation Act 1915 does
not apply to this Act or to a provision of this Act.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Construction Industry Long Service Leave
Act 1987
4—Amendment of
section 4—Interpretation
(1) Section 4(1), definition of agreement—delete the
definition and substitute:
agreement means—
(a) an enterprise agreement under the Fair Work Act 1994;
or
(b) an enterprise agreement under the Fair Work Act 2009 of
the Commonwealth; or
(c) an agreement given continuing effect under the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 of the
Commonwealth;
(2) Section 4(1), definition of award, (b)—delete
paragraph (b) and substitute:
(b) an award, determination or order of Fair Work Australia under the
Fair Work Act 2009 of the Commonwealth;
(c) an award or determination given continuing effect under the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009 of
the Commonwealth;
Part 3—Amendment
of Equal Opportunity
Act 1984
5—Amendment of
section 85F—Exemptions
Section 85F(4)—delete subsection (4) and substitute:
(4) This Division does not render unlawful—
(a) acts done in order to comply with the provisions of—
(i) an award or enterprise agreement under the Fair Work
Act 1994; or
(ii) a fair work instrument under the Fair Work Act 2009 of
the Commonwealth; or
(iii) an award or determination given continuing effect under the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009 of the
Commonwealth; or
(b) a decision to offer employment only to a young person, or the
employment of a young person, where the rate of pay for that employment is a
rate less than that applicable to an adult, fixed by or in accordance with the
provisions of—
(i) an award or enterprise agreement under the Fair Work
Act 1994; or
(ii) a fair work instrument under the Fair Work Act 2009 of
the Commonwealth; or
(iii) an award or determination given continuing effect under the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009 of the
Commonwealth.
6—Amendment of
section 100—Proceedings under Fair Work
Act 1994
(1) Section 100(2)—delete subsection (2) and
substitute:
(2) If a person brings proceedings under—
(a) Chapter 3 Part 6 of the Fair Work Act 1994; or
(b) Part 3-2 of the Fair Work Act 2009 of the
Commonwealth,
in respect of dismissal from employment, and those proceedings are
determined, that person cannot institute or prosecute proceedings under this Act
in respect of that dismissal.
(2) Section 100(3)—delete "the proceedings under the Fair Work
Act 1994" and substitute:
the proceedings under the Fair Work Act 1994 or the Fair
Work Act 2009 of the Commonwealth
Part 4—Amendment
of Fair Work
Act 1994
7—Amendment of
section 3—Objects of Act
Section 3(1)—after paragraph (o) insert:
and
(p) to facilitate the establishment and operation of a national industrial
relations system based on co-operative federalism through—
(i) the use of dual appointments to Commonwealth and State industrial
authorities; and
(ii) the promotion and facilitation of other arrangements that assist in
integrating State and federal workplace relations systems and
processes.
8—Amendment of
section 4—Interpretation
(1) Section 4(1), definition of association,
(b)—delete "the Commonwealth Act" and substitute:
the Commonwealth (Registered Organisations) Act
(2) Section 4(1), definition of Commonwealth
Act—delete the definition and substitute:
Commonwealth Act means the Fair Work Act 2009 of
the Commonwealth;
Commonwealth (Registered Organisations) Act means the Fair
Work (Registered Organisations) Act 2009 of the Commonwealth;
(3) Section 4(1), definition of Commonwealth
Commission—delete the definition
(4) Section 4(1)—after the definition of examinable
arrangements insert:
Fair Work Australia means Fair Work Australia established
under the Commonwealth Act (or an industrial authority that takes the place of
Fair Work Australia under Commonwealth law);
(5) Section 4(1), definition of industrial authority,
(b)—after "conciliation" insert:
, determination
(6) Section 4(1), definition of industrial instrument,
(b)—delete paragraph (b) and substitute:
(b) a fair work instrument under the Commonwealth Act; or
(c) an instrument (but not an Australian workplace agreement) given
continuing effect under the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 of the Commonwealth;
(7) Section 4(1), definition of Industrial Registrar or
Registrar (b)—delete "an officer" and substitute:
a person
(8) Section 4(1), definition of organisation—delete
"the Commonwealth Act" and substitute:
the Commonwealth (Registered Organisations) Act
9—Amendment of
section 29—The President
(1) Section 29—after subsection (4) insert:
(4a) The President must perform his or her functions, and exercise his or
her powers, in a manner that facilitates and encourages co-operation between the
Commission and Fair Work Australia or other prescribed Commonwealth industrial
authorities.
(4b) Without limiting subsection (4a), the President
may—
(a) consult with the heads and principal officers of prescribed
Commonwealth industrial authorities; and
(b) exchange information and discuss matters of mutual interest in
relation to workplace relations with the heads and principal officers of
prescribed Commonwealth industrial authorities; and
(c) take steps to encourage and facilitate the assigning of matters of
mutual interest or relevance under this Act and the Commonwealth Act to persons
who hold appointments under both Acts.
(2) Section 29—after subsection (5) insert:
(6) In this section—
prescribed Commonwealth industrial authority means a
Commonwealth board, court, tribunal or other body prescribed by the regulations
for the purposes of this definition;
principal officer, in relation to a prescribed Commonwealth
industrial authority, means a registrar, general manager or other chief officer
of the prescribed Commonwealth industrial authority.
10—Amendment of
section 37—Concurrent appointments
Section 37—after subsection (3) insert:
(3a) In conjunction with the making of a concurrent appointment under
subsection (3)—
(a) the requirements of section 34(2) will not apply in relation to
the appointment; and
(b) the member of the Commission appointed under that subsection will not
be taken into account for the purposes of section 34(3).
11—Amendment of
section 79—Approval of enterprise agreement
(1) Section 79(1)(e)(iii)—delete "or the Commonwealth Act"
(2) Section 79(5)(e)—delete "or the Commonwealth Act"
12—Amendment of
section 92—Retrospectivity
(1) Section 92(2)(b)(ii)—delete "an award or agreement" and
substitute:
a fair work instrument
(2) Section 92(2)(c)—delete "or declaration of the Commonwealth
Commission" and substitute:
or determination of Fair Work Australia
13—Amendment of
section 100—Adoption of principles affecting determination of remuneration
and working conditions
Section 100(1)—delete "or declaration of the Commonwealth Commission"
and substitute:
or determination of Fair Work Australia
14—Amendment of
section 119—Eligibility for registration
Section 119(2)—delete "the Commonwealth Act" and
substitute:
the Commonwealth (Registered Organisations) Act
15—Amendment of
section 122—Registration of associations
Section 122(1)(f)—delete "the Commonwealth Act" and
substitute:
the Commonwealth (Registered Organisations) Act
16—Amendment of
section 125—Alteration of rules of registered
association
Section 125(5)(b)—delete "the Commonwealth Act" and
substitute:
the Commonwealth (Registered Organisations) Act
17—Amendment of
section 131—Eligibility for registration
Section 131(1)—delete "the Commonwealth Act" and
substitute:
the Commonwealth (Registered Organisations) Act
18—Amendment of
section 135—De-registration
(1) Section 135(4)—delete "the Commonwealth Act" and
substitute:
the Commonwealth (Registered Organisations) Act
(2) Section 135(5)—delete "the Commonwealth Act" and
substitute:
the Commonwealth (Registered Organisations) Act
19—Amendment of
section 136—Federation
Section 136(1)—delete "the Commonwealth Act" and
substitute:
the Commonwealth (Registered Organisations) Act
20—Amendment of
section 140—Powers of officials of employee
associations
Section 140(5)—delete subsection (5)
21—Amendment of
section 141—Register of members and officers of
associations
Section 141(7)—delete "the Commonwealth Act" and
substitute:
the Commonwealth (Registered Organisations) Act
22—Amendment of
section 167—Extension of time
Section 167(3)(a)—delete "the Commonwealth Commission" and
substitute:
Fair Work Australia
23—Amendment of
section 185—Costs
Section 185—after its present contents (now to be designated as
subsection (1)) insert:
(2) In connection with the operation of
subsection (1)(b)—
(a) costs need not be awarded so as to follow the event; and
(b) the Court, in considering whether to award costs and, if so, the
extent of the award, must take into account—
(i) the conduct of the parties; and
(ii) the relative positions and circumstances of the appellant and the
respondent (and of the successful and unsuccessful parties); and
(iii) the nature of the question in dispute and whether the proceedings
have a broader impact than simply inter-parte proceedings between individual
parties,
and may take into account such other matters as the Court thinks fit to
ensure a just outcome in the circumstances of the case.
24—Amendment of
section 210—Powers on appeal
Section 210—after subsection (2) insert:
(3) In connection with the operation of
subsection (2)—
(a) costs need not follow the event; and
(b) the Full Commission, in considering whether to award costs and, if so,
the extent of the award, must take into account—
(i) the conduct of the parties; and
(ii) the relevant positions and circumstances of the appellant and the
respondent (and of the successful and unsuccessful parties); and
(iii) the nature of the question in dispute and whether the proceedings
have a broader impact than simply inter-parte proceedings between individual
parties,
and may take into account such other matters as the Full Commission thinks
fit in order to ensure a just outcome in the circumstances of the
case.
25—Amendment of
section 215—Co-operation between industrial
authorities
(1) Section 215(3)—delete "the Commonwealth Commission" and
substitute:
Fair Work Australia
(2) Section 215(4)—delete "the Registrar of the Commonwealth
Commission" and substitute:
the General Manager of Fair Work Australia
(3) Section 215(4)—after "the Registrars" insert:
and senior officials
26—Amendment of
section 216—Reference of industrial matters to Fair Work
Australia
(1) Section 216(1)—delete subsection (1) and substitute:
(1) The President of the Commission may, on his or her own initiative,
request the President of Fair Work Australia to nominate a member of Fair Work
Australia to deal with the whole or a part of an industrial matter.
(2) Section 216(2)—delete "the Commonwealth Commission" and
substitute:
Fair Work Australia
(3) Section 216(3)—delete "the Commonwealth Commission" and
substitute:
Fair Work Australia
(4) Section 216(4)—delete "the Commonwealth Commission" and
substitute:
Fair Work Australia
(5) Section 216(5)—delete "the Commonwealth Commission" and
substitute:
Fair Work Australia
Section 222—delete the section
28—Amendment of
section 237—Regulations
(1) Section 237(1)—delete subsection (1) and
substitute:
(1) The Governor may make such regulations as are contemplated by this Act
or as are necessary or expedient for the purposes of this Act.
(1a) Without limiting the generality of subsection (1), regulations
may make provision for any matter, including matters of a saving or transitional
nature, relevant to the interaction between this Act and an Act of the
Commonwealth.
(2) Section 237—after subsection (2) insert:
(3) A regulation under this Act—
(a) may make different provision according to the matters or circumstances
to which they are expressed to apply;
(b) may be of general or limited application;
(c) may provide that any matters or thing is to be determined, dispensed
with, regulated or prohibited according to the discretion of the Minister or any
other person or body prescribed by the regulations.
29—Amendment of
Schedule 1—Transitional provisions
Schedule 1—after clause 17 insert:
18—National industrial relations
system
(1) In this clause—
designated day means the day on which a Commonwealth law in
the terms, or substantially in the terms, set out in the tabled text under the
Fair Work (Commonwealth Powers) Act 2009 comes into operation.
(2) This Act will operate in relation to—
(a) any matter arising under this Act before the designated day (including
a matter that is not in the nature of a right or that is procedural in nature);
and
(b) any matter arising, directly or indirectly, out of such a
matter,
insofar as the matter is not dealt with under the Fair Work
Act 2009 of the Commonwealth on or after the designated day.
(3) Nothing in this clause is intended to limit or affect the operation of
this Act—
(a) in relation to industrial or other matters that are not affected by a
law of the Commonwealth relating to matters referred to the Parliament of the
Commonwealth under the Fair Work (Commonwealth Powers) Act 2009;
or
(b) in any other respect (except to the extent that this Act cannot apply
by virtue of a law of the Commonwealth).
30—Insertion of
Schedules 2 and 2A
After Schedule 1 insert:
Schedule 2—Continuity of industrial
arrangements—government business enterprises
1—Preliminary
In this Schedule—
federal industrial instrument means any award, agreement
determination, order or other form of instrument that relates to 1 or more
industrial matters under the National Fair Work legislation, other than an
Australian workplace agreement or a pre-reform AWA;
GBE means an agency or instrumentality of the Crown declared
by proclamation to be a government business enterprise for the purposes of this
Schedule;
GBE employee means a person employed or appointed by a
GBE;
National Fair Work legislation means—
(a) the Commonwealth Act; or
(b) the Fair Work (Transitional and Consequential Amendments) Act
2009 of the Commonwealth;
relevant day means, in relation to each GBE, a day fixed by
the Governor by proclamation as being the relevant day for the purposes of the
application of this Schedule to the GBE.
2—Operation of federal industrial
instruments
(1) A federal industrial instrument that, on the relevant day in relation
to a particular GBE, relates (or purports to relate) to the GBE employees of
that GBE (being a federal industrial instrument in operation (or purportedly in
operation) immediately before the relevant day), will, on the relevant day, be
taken to be an award or enterprise agreement (as the case may require in order
to achieve the greatest degree of correspondence) under this Act (insofar as it
relates to those employees and any other relevant parties)—
(a) with the same terms and provisions as the relevant instrument under
the relevant Act of the Commonwealth; but
(b) subject to any modification or exclusion prescribed by regulations
made for the purposes of this subclause and subject to the operation of
subclauses (2), (3), (4) and (5).
(2) The regulations may prescribe rules that are to be applied for the
purposes of achieving the greatest degree of correspondence envisaged by
subclause (1).
(3) If an award or enterprise agreement is taken to exist under this Act
by virtue of the operation of subclause (1)—
(a) the award or enterprise agreement will be taken to be made or approved
under this Act on the relevant day; and
(b) this Act will apply in relation to the award or enterprise agreement
subject to such modifications or exclusions as may be prescribed by regulations
made for the purposes of this subclause; and
(c) the Commission may, on application by the Minister, or on application
by a person or body recognised by regulations made for the purposes of this
subclause, vary or revoke any term or provision of the award or enterprise
agreement if the Commission is satisfied that it is fair and reasonable to do so
in the circumstances.
(4) The Commission may, in varying an award or enterprise agreement under
subclause (3)(c) (after taking into account what is fair and reasonable in
the circumstances), confer an exemption from the operation of any provision of
this Act (being an exemption that has effect subject to such conditions (if any)
as the Commission thinks fit to impose).
(5) Despite a preceding subclause, if an award or enterprise agreement
taken to exist under this clause would, but for this subclause, provide for
remuneration or other conditions of employment that are inferior to the
standards that apply under Chapter 3 Part 1 Division 2, the award
or enterprise agreement will be taken to be modified to the extent necessary to
meet those standards.
(6) An award or enterprise agreement taken to exist under this clause
will, unless it has been superseded or rescinded in the meantime, expire at the
end of the period of 2 years from the relevant day.
3—Ability to carry over
matters
The Commission may, in connection with the operation of this Schedule, or
any matter arising, directly or indirectly, out of the operation of this
Schedule—
(a) accept, recognise, adopt or rely on any step taken under, or for the
purposes of, the National Fair Work legislation; and
(b) accept or rely on any matter or thing (including in the nature of
evidence presented for the purposes of any proceedings) that has been presented,
filed or provided under, or for the purposes of, the National Fair Work
legislation; and
(c) give effect in any other way to any other thing done under, or for the
purposes of, the National Fair Work legislation.
Schedule 2A—Continuity of industrial
arrangements—local government sector
1—Preliminary
In this Schedule—
designated day means the day on which this Schedule comes
into operation;
federal enterprise agreement means an enterprise agreement
under the Commonwealth Act;
federal industrial instrument means any award, agreement
determination, order or other form of instrument that relates to 1 or more
industrial matters under the National Fair Work legislation, other than an
Australian workplace agreement or a pre-reform AWA;
local government sector employee has the same meaning as in
the Fair Work (Commonwealth Powers) Act 2009;
National Fair Work legislation means—
(a) the Commonwealth Act; or
(b) the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 of the Commonwealth;
State industrial instrument means—
(a) an enterprise agreement approved (or purportedly reached) under this
Act; or
(b) an agreement reached (or purportedly approved) as a result of a
referral of a matter to the Commission under Schedule 1 of the
Commercial Arbitration and Industrial Referral Agreements
Act 1986.
2—State industrial instruments
A State industrial instrument—
(a) that relates (or purports to relate) to local government sector
employees; and
(b) that is in operation (or purportedly in operation) immediately before
the designated day,
is to be taken to be, and to have always been, valid and effectual for the
purposes of the law of the State.
3—Federal industrial instruments—immediate
changeover
(1) A federal industrial instrument—
(a) that relates (or purports to relate) to local government sector
employees; and
(b) that is in operation (or purportedly in operation) immediately before
the designated day; and
(c) in the case of an award—that is brought within the ambit of this
clause by proclamation,
will, on the designated day, be taken to be an award or enterprise
agreement (as the case may require in order to achieve the greatest degree of
correspondence) under this Act (insofar as it relates to those employees and any
other relevant parties)—
(d) with the same terms and provisions as the relevant instrument under
the relevant Act of the Commonwealth; but
(e) subject to any modification or exclusion prescribed by regulations
made for the purposes of this subclause and subject to the operation of
subclauses (2), (3), (4) and (5).
(2) The regulations may prescribe rules that are to be applied for the
purposes of achieving the greatest degree of correspondence envisaged by
subclause (1).
(3) If an award or enterprise agreement is taken to exist under this Act
by virtue of the operation of subclause (1)—
(a) the award or enterprise agreement will be taken to be made or approved
under this Act on the designated day; and
(b) this Act will apply in relation to the award or enterprise agreement
subject to such modifications or exclusions as may be prescribed by regulations
made for the purposes of this subclause; and
(c) the Commission may, on application by the Minister, or on application
by a person or body recognised by regulations made for the purposes of this
subclause, vary or revoke any term or provision of the award or enterprise
agreement if the Commission is satisfied that it is fair and reasonable to do so
in the circumstances.
(4) The Commission may, in varying an award or enterprise agreement under
subclause (3)(c) (after taking into account what is fair and reasonable in
the circumstances), confer an exemption from the operation of any provision of
this Act (being an exemption that has effect subject to such conditions (if any)
as the Commission thinks fit to impose).
(5) Despite a preceding subclause, if an award or enterprise agreement
taken to exist under this clause would, but for this subclause, provide for
remuneration or other conditions of employment that are inferior to the
standards that apply under Chapter 3 Part 1 Division 2, the award
or enterprise agreement will be taken to be modified to the extent necessary to
meet those standards.
(6) An award or enterprise agreement taken to exist under this clause
will, unless it has been superseded or rescinded in the meantime, expire at the
end of the period of 2 years from the designated day.
4—Federal enterprise agreements—later
changeover
(1) If—
(a) an application for approval of a federal enterprise agreement that
relates to local government sector employees has been made under
section 185 of the Commonwealth Act before the designated date but not
approved by Fair Work Australia by that date; and
(b) Fair Work Australia then approves the federal enterprise agreement
under the Commonwealth Act on or after the designated date,
then the federal enterprise agreement will, on its approval by Fair Work
Australia, be taken to be an enterprise agreement that has been approved by this
Act—
(c) with the same terms and provisions as the federal enterprise
agreement; but
(d) subject to any modification or exclusion prescribed by regulations
made for the purposes of this subclause and subject to the operation of
subclauses (2), (3) and (4).
(2) If an enterprise agreement is taken to be approved under this Act by
virtue of the operation of subclause (1)—
(a) this Act will apply in relation to the enterprise agreement subject to
such modifications or exclusions as may be prescribed by regulations made for
the purposes of this subclause; and
(b) the Commission may, on application by the Minister, or on application
by a person or body recognised by regulations made for the purposes of this
subclause, vary any term or provision of the enterprise agreement if the
Commission is satisfied that it is fair and reasonable to do so in the
circumstances.
(3) The Commission may, in varying an enterprise agreement under
subclause (2)(b) (after taking into account what is fair and reasonable in
the circumstances), confer an exemption from the operation of any provision of
this Act (being an exemption that has effect subject to such conditions (if any)
as the Commission thinks fit to impose).
(4) Despite a preceding subclause, if an enterprise agreement taken to be
approved under this clause would, but for this subclause, provide for
remuneration or other conditions of employment that are inferior to the
standards that apply under Chapter 3 Part 1 Division 2, the
enterprise agreement will be taken to be modified to the extent necessary to
meet those standards.
(5) An enterprise agreement taken to be approved under this clause will,
unless it has been superseded or rescinded in the meantime, expire at the end of
the period of 2 years from the date of approval of the federal enterprise
agreement.
5—Ability to carry over
matters
The Commission may, in connection with the operation of this Schedule, or
any matter arising, directly or indirectly, out of the operation of this
Schedule—
(a) accept, recognise, adopt or rely on any step taken under, or for the
purposes of, the National Fair Work legislation; and
(b) accept or rely on any matter or thing (including in the nature of
evidence presented for the purposes of any proceedings) that has been presented,
filed or provided under, or for the purposes of, the National Fair Work
legislation; and
(c) give effect in any other way to any other thing done under, or for the
purposes of, the National Fair Work legislation.
Part 5—Amendment
of Housing and Urban Development (Administrative
Arrangements) Act 1995
31—Amendment of
section 17—Staff
Section 17—after subsection (3) insert:
(4) HomeStart Finance (a statutory corporation under this Act) is
declared not to be a national system employer for the purposes of the Fair
Work Act 2009 of the Commonwealth.
(5) The Governor may, by proclamation, fix a day on which
subsection (4) will expire.
Part 6—Amendment
of Local Government
Act 1999
After section 302 insert:
302A—Local government sector
employees
(1) A local government sector employer is declared not to be a national
system employer for the purposes of the Fair Work Act 2009 of the
Commonwealth.
(2) In this section—
local government sector employer means—
(a) a council; or
(b) a subsidiary or a regional subsidiary; or
(c) any other entity established under this Act; or
(d) the LGA; or
(e) any other entity established by a body referred to in a preceding
paragraph.
Part 7—Amendment
of Long Service Leave
Act 1987
33—Amendment of
section 3—Interpretation
(1) Section 3(1), definition of agreement,
(b)—delete paragraph (b) and substitute:
(b) an enterprise agreement under the Fair Work Act 2009 of the
Commonwealth; or
(c) an agreement given continuing effect under the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 of the
Commonwealth;
(2) Section 3(1), definition of award, (b)—delete
paragraph (b) and substitute:
(b) an award, determination or order of Fair Work Australia under the
Fair Work Act 2009 of the Commonwealth; or
(c) an award or determination given continuing effect under the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009 of
the Commonwealth;
(3) Section 3(1), definition of enterprise
agreement—delete the definition and substitute:
enterprise agreement means an enterprise agreement under the
Fair Work Act 1994;
(4) Section 3(1), definition of inspector—delete
"Industrial and Employee Relations Act 1994" and
substitute:
(5) Section 3(1), definition of registered
association—delete the definition and substitute:
registered association means—
(a) an association registered under the Fair Work Act 1994;
or
(b) an organisation registered under the Fair Work (Registered
Organisations) Act 2009 of the Commonwealth;
(6) Section 3(1), definition of related corporations,
(a)—delete "the Corporations Law" and substitute:
the Corporations Act 2001 of the Commonwealth
34—Amendment of
section 13—Failure to grant leave
Section 13(5)—delete "Industrial and Employee Relations
Act 1994" and substitute:
35—Amendment of
section 16—Act not to apply to certain workers
Section 16(b)—delete paragraph (b) and substitute:
(b) under a fair work instrument under the Fair Work Act 2009 of
the Commonwealth; or
(c) under an instrument given continuing effect under the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 of the
Commonwealth.
Part 8—Amendment
of Motor Accident Commission
Act 1992
36—Amendment of
section 29A—Staff
Section 29A—after subsection (2) insert:
(3) The Commission is declared not to be a national system employer for
the purposes of the Fair Work Act 2009 of the Commonwealth.
Part 9—Amendment
of Occupational Health, Safety and Welfare
Act 1986
37—Amendment of
section 4—Interpretation
Section 4(1), definition of registered association,
(a)—delete paragraph (a) and substitute:
(a) an association registered under the Fair Work Act 1994 or
an organisation registered under the Fair Work (Registered Organisations) Act
2009 of the Commonwealth; or
Part 10—Amendment
of Petroleum (Submerged Lands)
Act 1982
38—Amendment of
Schedule 7—Occupational health and safety
(1) Schedule 7, clause 3, definition of registered
organisation—delete the definition and substitute:
registered organisation means an organisation registered
under the Fair Work (Registered Organisations) Act 2009 of the
Commonwealth;
(2) Schedule 7, clause 3, definition of reviewing
authority—delete the definition and substitute:
reviewing authority means Fair Work Australia;
Part 11—Amendment
of Public Corporations
Act 1993
After section 38A insert:
38B—Exclusion of operation of Commonwealth
industrial relations legislation in specified cases
(1) The following entities are declared not to be national system
employers for the purposes of the Fair Work Act 2009 of the
Commonwealth:
(a) the Adelaide Convention Centre Corporation;
(b) the Adelaide Entertainments Corporation;
(c) the Land Management Corporation.
(2) The Governor may, by proclamation, fix a day on which a paragraph
under subsection (1) will expire.
Part 12—Amendment
of Rail Safety
Act 2007
40—Amendment of
section 4—Interpretation
Section 4—definition of registered association,
(a)—delete paragraph (a) and substitute:
(a) an association registered under the Fair Work Act 1994 or
an organisation registered under the Fair Work (Registered Organisations) Act
2009 of the Commonwealth; or
Part 13—Amendment
of South Australian Forestry Corporation
Act 2000
41—Amendment of
section 15—Staff
Section 15—after subsection (4) insert:
(5) The Corporation is declared not to be a national system employer for
the purposes of the Fair Work Act 2009 of the
Commonwealth.
Part 14—Amendment
of South Australian Water Corporation
Act 1994
42—Amendment of
section 17—Staff of Corporation
Section 17—after subsection (3) insert:
(4) The Corporation is declared not to be a national system employer for
the purposes of the Fair Work Act 2009 of the
Commonwealth.
Part 15—Amendment
of Stamp Duties
Act 1923
43—Amendment of
Schedule 2—Stamp duties and exemptions
(1) Schedule 2, clause 3(2), item 5—delete "under Schedule 1 of
the Workplace Relations Act 1996" and substitute:
of 2 or more organisations under the Fair Work (Registered
Organisations) Act 2009
(2) Schedule 2, clause 4(2), item 4—delete "under
Schedule 1 of the Workplace Relations Act 1996" and
substitute:
of 2 or more organisations under the Fair Work (Registered
Organisations) Act 2009
Part 16—Amendment
of State Lotteries
Act 1966
44—Amendment of
section 13—Powers and functions of Commission
Section 13—after subsection (3) insert:
(4) The Commission is declared not to be a national system employer for
the purposes of the Fair Work Act 2009 of the
Commonwealth.
Part 17—Amendment
of Superannuation Funds Management Corporation
of South Australia Act 1995
45—Amendment of
section 31—Staff of Corporation
Section 31—after subsection (2) insert:
(3) The Corporation is declared not to be a national system employer for
the purposes of the Fair Work Act 2009 of the
Commonwealth.
Part 18—Amendment
of West Beach Recreation Reserve
Act 1987
46—Amendment of
section 15—Officers and employees
Section 15—after subsection (3) insert:
(4) The Trust is declared not to be a national system employer for the
purposes of the Fair Work Act 2009 of the Commonwealth.
Part 19—Amendment
of WorkCover Corporation
Act 1994
After section 22 insert:
22A—Exclusion of operation of Commonwealth
industrial relations legislation
The Corporation is declared not to be a national system employer for the
purposes of the Fair Work Act 2009 of the Commonwealth.
Part 20—Amendment
of Workers Rehabilitation and Compensation
Act 1986
48—Amendment of
section 3—Interpretation
Section 3(1), definition of industrial association,
(b)—delete paragraph (b) and substitute:
(b) an organisation registered under the Fair Work (Registered
Organisations) Act 2009; or
Schedule
1—Transitional provisions
(1) A reference in any Act or statutory instrument to the Australian
Industrial Relations Commission will be taken to be a reference to Fair Work
Australia.
(2) A reference in an Act or statutory instrument to the Industrial
Relations Act 1988 or the Workplace Relations Act 1996 of the
Commonwealth, insofar as the reference relates to associations or organisations
registered under either Act, will, unless the contrary intention appears, be
construed as a reference to the Fair Work (Registered Organisations) Act
2009 of the Commonwealth.