Fair Work Amendment (Protecting Take Home Pay of All Workers) Bill 2017 [2017] AUSStaCSBSD 237 (9 August 2017)

• Fair Work Amendment (Protecting Take Home Pay of All Workers) Bill 2017
• Retrospective application 2

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Fair Work Amendment (Protecting Take Home Pay of All Workers) Bill 2017

Purpose	This bill seeks to amend the Fair Work Act 2009 to protect the take home pay of employees who are affected by proposed changes to award penalty rates
Sponsor	Mr George Christensen MP
Introduced	House of Representatives on 19 June 2017
Scrutiny principle	Standing Order 24(1)(a)(i)

Retrospective application ^[2]

1.5 Proposed subsection 135A(2) provides that a determination of the Fair Work Commission made on or after 22 February 2017 that would reduce a penalty rate in a modern award so that the penalty rate would be lower than that in force under the award on 30 June 2017 has no effect. This provision therefore will operate retrospectively in relation to any determination that is made after 22 February 2017 but prior to commencement.

1.6 The committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.7 The committee notes that while the retrospective application of this law could operate beneficially (in relation to employees who may be retrospectively entitled to higher levels of pay), it could also have a detrimental effect on others (employers who may be required to provide back-pay from the date of passage of the bill to the date of any determination). Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected. In this instance, the explanatory memorandum provides that the amendment will ensure that overall take-home pay of employees is not reduced by either the Fair Work Commission decision handed down in February 2017 or by future enterprise agreements.^[3] It does not set out whether any person may be detrimentally affected by applying the provisions retrospectively.

1.8 The committee notes that, in general, it considers laws should only operate prospectively (not retrospectively), particularly where legislation may have a detrimental effect on individuals. The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of applying the amendments retrospectively.

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[2] Schedule 1, item 1, proposed subsection 135A(2) of the Fair Work Act 2009. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(i) of the committee’s terms of reference.

[3] Explanatory memorandum, p. 2.