South Australian Numbered Acts

INDUSTRIAL LAW REFORM (FAIR WORK) ACT 2005 (NO 3 OF 2005) - SECT 31

31—Insertion of sections 72A and 72B

After section 72 insert:

72A—Minimum standards—additional matters

        (1)         The Full Commission may, on application by a peak entity, establish a standard relating to paid parental leave that, subject to this section, is also to apply as a minimum standard to all employers and employees.

        (2)         A contract of employment is to be construed as if it incorporated any minimum standard established under subsection (1) unless—

            (a)         the provisions of the contract are more favourable to the employee; or

            (b)         the provisions of the contract are in accordance with an award or enterprise agreement.

        (3)         The Full Commission may, when substituting or establishing a standard under this Division, exclude an award from the ambit of the standard (or a part of the standard).

        (4)         Subject to subsections (5) and (6), a standard substituted or established by the Full Commission under this Division prevails over a preceding award to the extent that the standard is more favourable to employees than any standard prescribed by the particular award.

        (5)         A party to an award may, within 28 days after a standard is set by the Full Commission under this Division, apply to the Full Commission to have the award excluded from the ambit of the standard (or a part of the standard).

        (6)         The Full Commission may grant an application under subsection (5) if (and only if) the Full Commission is satisfied that there are cogent reasons for doing so taking into account matters or conditions that specifically apply or prevail in the relevant industry or industries.

        (7)         The Full Commission may grant an application under subsection (5) on such conditions as the Full Commission thinks fit.

        (8)         The Full Commission, in acting under this Division—

            (a)         must ensure that each peak entity is notified of the relevant proceedings and allowed a reasonable opportunity to make representations; and

            (b)         may (as it thinks fit) receive and take into account oral or written representations (or both) from any other person or persons who have, in the opinion of the Full Commission, a proper interest in the matter.

72B—Special provision relating to severance payments

        (1)         The Full Commission must establish a minimum standard for severance payments on termination of employment for redundancy that will apply in the manner contemplated by subsection (5).

        (2)         The Full Commission may thereafter, on application by a peak entity—

            (a)         review the minimum standard for severance payments on termination of employment for redundancy in force under this section; and

            (b)         if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard.

        (3)         An application under subsection (2) must not be made within 2 years after the completion of previous proceedings to establish or review the standard by the Full Commission.

        (4)         The Full Commission, in acting under this section—

            (a)         must ensure that each peak entity is notified of the relevant proceedings and allowed a reasonable opportunity to make representations; and

            (b)         may (as it thinks fit) receive and take into account oral or written representations (or both) from any other person or person who have, in the opinion of the Full Commission, a proper interest in the matter.

        (5)         The Commission may, on application by—

            (a)         an employee (or a group of employees); or

            (b)         a registered association acting on behalf of an employee or a group of employees,

make an order applying the minimum standard for severance payments in such manner as the Commission thinks fit.

        (6)         An application may be made under subsection (5) if (and only if)—

            (a)         —

                  (i)         the relevant employee or employees have been given notice of a pending redundancy or redundancies; or

                  (ii)         the employment of the relevant employee or employees has been terminated for redundancy; and

            (b)         the application is made within 21 days after the notice is given or the employment is terminated.

        (7)         An order under subsection (5)—

            (a)         need not be made by the Full Commission; and

            (b)         may provide for the variation of the minimum standard for severance payments in the circumstances of the particular case; and

            (c)         may be made on such conditions as the Commission thinks fit.

        (8)         The Commission must only act under subsection (7)(b) if satisfied that there are cogent reasons for doing so.