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, a pre-reform AWA or an Individual Transitional Employment
Agreement;
"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, a pre-reform AWA or an Individual Transitional Employment
Agreement;
"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 day but not approved by Fair Work
Australia by that day; and
(b) Fair
Work Australia then approves the federal enterprise agreement under the
Commonwealth Act on or after the designated day,
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.