An Act to amend the Workplace Relations Act 1996, and for
related purposes
[Assented to 11 December 2006]
The Parliament of Australia
enacts:
1 Short title
This Act may be cited as the
Workplace Relations Legislation Amendment (Independent Contractors) Act 2006.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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11 December 2006
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2. Schedule 1
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Immediately after the commencement of the provision(s)
covered by table item 3.
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1 March 2007
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3. Schedule 2
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At the same time as Part 2 of the Independent
Contractors Act 2006 commences.
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1 March 2007
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4. Schedules 3, 4, 5 and 6
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The day after this Act receives the Royal Assent.
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12 December 2006
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Note: This table
relates only to the provisions of this Act as originally passed by the
Parliament and assented to. It will not be expanded to deal with provisions
inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Sham arrangements
Part 1—General provisions
Workplace Relations Act 1996
1 After Part 21
Insert:
Part 22—Sham arrangements
900
Misrepresenting an employment relationship as an independent contracting
arrangement
(1) A person contravenes this subsection if:
(a) the person is a party to a
contract with an individual; and
(b) the person makes a representation
to the individual that the contract is a contract for services under which the
individual performs work, or is to perform work, for the person as an independent
contractor; and
(c) the contract, as in force at the
time of the representation, is a contract of employment under which the person
is the employer of the individual, rather than a contract for services under
which the individual performs work as an independent contractor.
Note: In this subsection, employer and
employment have the meanings given by subsections 6(1) and 7(1)
respectively.
(2) A person does not contravene
subsection (1) if the person proves that, at the time the person made the
representation concerned, the person did not know that, and was not reckless as
to whether, the contract was a contract of employment rather than a contract
for services.
Note: In this subsection, employment
has its ordinary meaning—see paragraph 4(2)(pa) of Schedule 2.
(3) Subsection (1) is a civil remedy
provision.
Note: Division 3 of Part 14 contains other
provisions relevant to civil remedies.
901
Misrepresenting a proposed employment relationship as a proposed independent
contract arrangement
(1) A person contravenes this subsection if:
(a) the person offers to enter into a
contract with an individual; and
(b) the person makes a representation
to the individual that the contract, if entered into, would be a contract for
services under which the individual would perform work for the person as an independent
contractor; and
(c) the contract, if entered into,
would be a contract of employment under which the person would be the employer
of the individual, rather than a contract for services under which the
individual would perform work as an independent contractor.
Note: In this subsection, employer and
employment have the meanings given by subsections 6(1) and 7(1)
respectively.
(2) A person does not contravene
subsection (1) if the person proves that, at the time the person made the
representation concerned, the person did not know that, and was not reckless as
to whether, if the contract were entered into, the contract would be a contract
of employment rather than a contract for services.
Note: In this subsection, employment
has its ordinary meaning—see paragraph 4(2)(pb) of Schedule 2.
(3) Subsection (1) is a civil remedy
provision.
Note: Division 3 of Part 14 contains other
provisions relevant to civil remedies.
902
Dismissal etc. for purpose of engaging certain persons as independent
contractors
(1) An employer contravenes this subsection
if:
(a) the employer dismisses, or
threatens to dismiss, an individual who:
(i) is an employee of the
employer; and
(ii) performs particular
work for the employer; and
(b) the employer’s sole or dominant purpose
in dismissing or threatening to dismiss the individual is to engage the
individual as an independent contractor to perform the same work, or
substantially the same work, under a contract for services.
(2) Subsection (1) is a civil remedy
provision.
Note: Division 3 of Part 14 contains other
provisions relevant to civil remedies.
(3) In proceedings alleging a contravention
of subsection (1) it is presumed, other than in relation to the granting
of an interim injunction, that the employer’s sole or dominant purpose was the
purpose referred to in paragraph (1)(b), unless the employer proves
otherwise.
Note: Subsection 904(2A) permits the Court to grant
an injunction for a breach of this section, and section 838 deals with
interim injunctions.
903
Prohibited conduct for purpose of engaging certain persons as independent
contractors
(1) A person who employs, or has at any time
employed, an individual to perform particular work contravenes this subsection if:
(a) the person makes a statement that
the person knows is false; and
(b) the person’s intention in making
the statement is to persuade or influence the individual to enter into a
contract for services under which the individual will perform, as an
independent contractor, the same work, or substantially the same work, for the
person.
(2) Subsection (1) is a civil remedy
provision.
Note: Division 3 of Part 14 contains other
provisions relevant to civil remedies.
904 Penalty
for contravention
(1) The Court may, on application by an
eligible person, make an order imposing a pecuniary penalty on a person who has
contravened subsection 900(1), 901(1), 902(1) or 903(1).
(2) The maximum penalty that may be imposed
under subsection (1) is:
(a) 60 penalty units for an
individual; or
(b) 300 penalty units for a body
corporate.
(2A) If a person has contravened subsection
902(1), the Court may, on application by an eligible person, grant an
injunction and make any other orders that the Court considers necessary to stop
the contravention or remedy its effects.
(2B) Other orders the Court may make under
subsection (2A) include (but are not limited to):
(a) if the contravention was
constituted by dismissing an employee—an order to reinstate the person
dismissed to the position that the person occupied immediately before the
dismissal or to a position no less favourable than that position; and
(b) in any case—to pay to the person
dismissed, or threatened with dismissal, compensation for loss suffered as a
result of the dismissal or threatened dismissal.
(2C) The Court may make orders under
subsection (2A) in addition to, or instead of, imposing a pecuniary
penalty.
(3) Each of the following is an eligible
person for the purposes of this section:
(a) a workplace inspector;
(b) an individual affected by the contravention;
(c) an organisation of employees of
which the individual affected by the contravention is (or has applied to
become) a member, if it is acting with the written consent of the individual.
905
Meaning of Court
In this Part:
Court means the Federal Court of Australia or
the Federal Magistrates Court.
2 After paragraph 4(2)(p) of Schedule 2
Insert:
(pa) subsection 900(2);
(pb) subsection 901(2);
Part 2—Provision relating to Victoria
Workplace Relations Act 1996
3 After Division 11 of Part 21
Insert:
Division 11A—Sham arrangements
886A
Additional effect of Act—sham arrangements
Without affecting its operation apart
from this section, section 902 also has effect in relation to the
dismissal, or threatened dismissal, by an employer of an employee in Victoria,
and for this purpose:
(a) each reference in that section to
an employer (within the meaning of that section) is to be read as a reference
to an employer (within the meaning of this Division) in Victoria; and
(b) each reference in that section to
an employee (within the meaning of that section) is to be read as a reference
to an employee (within the meaning of this Division) in Victoria.
Schedule 2—Consequential amendments and transitional provisions
Part 1—Consequential amendments and transitional provisions relating
to TCF outworkers
Workplace Relations Act 1996
1 Subparagraph 169(1)(a)(v)
Omit “(other than section 905)”.
2 Subsection 819(1)
Omit “or subparagraph 906(2)(b)(iv), paragraph 906(2)(c) or
subsection 906(4)”.
3 Part 22
Repeal the Part.
5 Saving—investigations and proceedings under the Workplace
Relations Act 1996 in progress at the reform commencement
(1) This item applies to an investigation or proceeding
in relation to a breach, or suspected breach, of subsection 905(1) of the Workplace
Relations Act 1996 as in force before the reform commencement that:
(a) was commenced before the reform
commencement under Part 22 of the Workplace Relations Act 1996; and
(b) was not completed or finally
determined, as the case requires, before the reform commencement.
(2) Despite the repeal of Part 22 of the Workplace
Relations Act 1996 by item 3 of this Schedule, that Part continues to
apply to the investigation or proceeding mentioned in subitem (1) after
the reform commencement as if the Part had not been repealed.
(3) In this item:
reform commencement means the
commencement of Part 2 of the Independent Contractors Act 2006.
Part 2—Consequential amendments relating to unfair contracts
Building and Construction Industry
Improvement Act 2005
6 Section 47
Repeal the section.
6A Subsection 75(2)
Repeal the subsection.
Workplace Relations Act 1996
7 Sections 832 to 834
Repeal the sections.
Note: Section 40 of the Independent
Contractors Act 2006 is a transitional provision relating to this item.
Part 3—Consequential amendments relating to building contractors
Building and Construction Industry
Improvement Act 2005
8 Subsection 4(1) (paragraph (a) of the definition of designated
building law)
After “this Act”, insert “, the Independent Contractors Act
2006”.
9 Subparagraph 10(a)(i)
After “this Act”, insert “, the Independent Contractors Act
2006”.
10 Subparagraph 10(b)(i)
After “this Act,”, insert “the Independent Contractors Act
2006,”.
11 Paragraph 10(d)
After “this Act”, insert “, the Independent Contractors Act
2006”.
12 Paragraph 10(e)
After “this Act” (wherever occurring), insert “, the Independent
Contractors Act 2006”.
13 Paragraph 10(f)
After “this Act,”, insert “the Independent Contractors Act
2006,”.
14 Paragraph 67(c)
Before “Workplace”, insert “Independent Contractors Act 2006
or the”.
15 Paragraph 71(1)(b)
Before “Workplace”, insert “Independent Contractors Act 2006
or the”.
16 Subsection 73(3)
Omit “subsection 84(5)”, substitute “subsection 167(7)”.
Note: This item updates a cross‑reference.
17 After section 73
Insert:
73A
ABC Commissioner or ABC Inspector may institute proceedings under the Independent
Contractors Act 2006
(1) If a provision of the Independent
Contractors Act 2006, or of an instrument under that Act, authorises a
workplace inspector (within the meaning of that Act) to make an application to,
or otherwise institute proceedings in, a court, the provision is also taken to
authorise the ABC Commissioner or an ABC Inspector to make such an application,
or institute such proceedings, in any case where the application or proceedings
relate to a matter that involves:
(a) a building industry participant;
or
(b) building work.
(2) If the ABC Commissioner or an ABC
Inspector makes such an application, or institutes such proceedings, the Independent
Contractors Act 2006 and any such instrument have effect, in relation to
the application or proceedings, as if the ABC Commissioner or the ABC Inspector
were a workplace inspector (within the meaning of that Act).
(3) Directions under subsection 167(7) of the
Workplace Relations Act do not apply to the ABC Commissioner or an ABC
Inspector in relation to such an application or such proceedings.
18 Paragraph 77(1)(b)
Before “Workplace”, insert “Independent Contractors Act 2006
or the”.
19 Subparagraph 78(2)(d)(i)
After “this Act”, insert “, the Independent Contractors Act
2006”.
Schedule 3—Amendments relating to protecting redundancy entitlements
Workplace Relations Act 1996
1 At the end of subsection 347(7)
Add:
Note: However, a redundancy provision that was
included in a workplace agreement that has ceased operating might be preserved
for a period of up to 12 months (see section 399A).
2 Paragraph 393(4)(b)
After “by the agreement”, insert “, or is a bargaining agent
doing so at the request of the employer bound by the agreement”.
3 At the end of subsection 393(5)
Add:
; and (e) if the person giving the notice is
the employer bound by the agreement, or is a bargaining agent doing so at the
request of the employer bound by the agreement—state whether the parties to the
workplace agreement will, under section 399A, continue to be bound by one
or more redundancy provisions included in the workplace agreement; and
(f) if the parties to the workplace
agreement will continue to be so bound—include an annexed copy of the provision
or the provisions.
4 Paragraph 394(5)(a)
After “lodges”, insert “, or a bargaining agent lodges at the
request of the employer,”.
5 Paragraph 394(5)(c)
Repeal the paragraph, substitute:
(c) a copy of the undertakings was not
annexed to the declaration.
6 At the end of subsection 395(1)
Add:
; and (c) if the employer in relation to the
agreement, or a bargaining agent at the request of the employer in relation to
the agreement, lodges the declaration to terminate the agreement under
section 393—the declaration states whether the parties to the agreement
will, under section 399A, continue to be bound by one or more redundancy
provisions included in the agreement.
7 Subsection 395(2)
Repeal the subsection, substitute:
(2) If the employer in relation to the
agreement, or a bargaining agent at the request of the employer in relation to
the agreement, lodges the declaration to terminate the agreement under
section 393, undertakings are lodged in relation to the termination if a
copy of the undertakings is annexed to the declaration.
8 After subsection 396(1)
Insert:
(1A) If the employer in relation to a workplace
agreement, or a bargaining agent at the request of the employer in relation to
a workplace agreement, lodged a declaration under subsection 395(1) to
terminate the agreement under section 393, the receipt must state whether:
(a) the declaration so lodged states
that the parties to the workplace agreement will continue to be bound by one or
more redundancy provisions included in the workplace agreement that was
terminated; and
(b) a copy of the provision or
provisions was annexed to the declaration.
9 At the end of Division 9 of Part 8
Add:
399A
Preservation of redundancy provisions in certain circumstances
(1) This section applies if a workplace
agreement is terminated unilaterally, in accordance with section 393, by
the employer in relation to the agreement or by a bargaining agent at the
request of the employer in relation to the agreement.
(2) Any party who was bound by the workplace
agreement immediately before it ceased operating continues to be bound,
immediately after that time, by any redundancy provision that was included in
the workplace agreement as if the workplace agreement had continued operating.
(2A) Parts 6 and 14 of this Act apply to a
redundancy provision referred to in subsection (2) as if the provision was
a workplace agreement in operation.
(3) A party continues to be bound by a
redundancy provision referred to in subsection (2), in relation to an
employee who is bound by the redundancy provision, until the earliest of the
following:
(a) the end of the period of 12 months
from the time that the workplace agreement ceased operating;
(b) the time when the employee ceases
to be employed by the employer;
(c) the time when another workplace
agreement comes into operation in relation to the employee and the employer.
(4) In this section:
redundancy provision means any of the
following kinds of provisions:
(a) a provision relating to redundancy
pay in relation to a termination of employment;
(b) a provision that is incidental to
a provision relating to redundancy pay in relation to a termination of
employment;
(c) a machinery provision that is in
respect of a provision relating to redundancy pay in relation to a termination
of employment;
where the termination is at the initiative of the employer
and on the grounds of operational requirements, or because the employer is
insolvent.
10 After Division 6 of Part 11
Insert:
Division 6A—Transmission of preserved redundancy provisions from
workplace agreements
598A
Transmission of preserved redundancy provisions from workplace agreements
(1) If:
(a) immediately before the time of
transmission:
(i) the old employer; and
(ii) an employee;
were bound, under
section 399A or because of a previous application of this section, by a
redundancy provision that was previously included in a workplace agreement that
was terminated; and
(b) the employee is a transferring
employee;
the new employer is bound by the redundancy provision in
relation to the transferring employee by force of this section.
Note: The new employer must notify the transferring
employee and lodge a copy of the notice with the Employment Advocate (see
sections 603A and 603B).
(2) Subject to subsection (3), the
redundancy provision prevails over any other redundancy provision included in
any other instrument that would otherwise have effect, to the extent of any
inconsistency.
Period for which new employer remains bound
(3) The new employer remains bound by the
redundancy provision in relation to the transferring employee, by force of this
section, until the earliest of the following:
(a) the end of the period of 12 months
from the time that the workplace agreement referred to in paragraph (1)(a)
ceased operating;
(b) the time when the transferring
employee ceases to be employed by the new employer;
(c) the time when another workplace
agreement comes into operation in relation to the new employer and the
transferring employee.
Old employer’s rights and obligations that arose before
time of transmission not affected
(4) This section does not affect the rights
and obligations of the old employer that arose before the time of transmission.
Definitions
(5) In this section:
instrument means any of the following:
(a) a workplace agreement;
(b) a pre‑reform certified
agreement (within the meaning of Schedule 7);
(c) a preserved State agreement;
(d) a notional agreement preserving
State awards;
(e) an award.
redundancy provision means any of the
following kinds of provisions:
(a) a provision relating to redundancy
pay in relation to a termination of employment;
(b) a provision that is incidental to
a provision relating to redundancy pay in relation to a termination of
employment;
(c) a machinery provision that is in
respect of a provision relating to redundancy pay in relation to a termination
of employment;
where the termination is at the initiative of the employer
and on the grounds of operational requirements, or because the employer is
insolvent.
11 After section 603
Insert:
603A
Informing transferring employees about transmission of preserved redundancy
provisions
(1) This section applies if an employer is
bound, by force of section 598A, by one or more redundancy provisions
(within the meaning of that section) in relation to a transferring employee.
(2) Within 28 days after the transferring
employee starts being employed by the employer, the employer must take
reasonable steps to give the transferring employee a written notice that
complies with subsection (3).
Note: This is a civil remedy provision, see
section 605.
(3) The notice must:
(a) identify the redundancy provision
or redundancy provisions; and
(b) state that the employer is bound
by the provision or provisions; and
(c) specify the date that is 12 months
after the time that the workplace agreement that included the provision or
provisions ceased operating; and
(d) state that the employer will
remain bound by the provision or provisions until that date, or an earlier date
in accordance with subsection 598A(3).
(4) Subsection (2) does not apply if a
workplace agreement comes into operation in relation to the employer and the
transferring employee within 14 days of the time of transmission.
603B
Lodging copy of notice about preserved redundancy provisions with Employment
Advocate
(1) If an employer gives a notice under
section 603A to a transferring employee, the employer must lodge a copy of
the notice with the Employment Advocate within the period specified in
subsection (2). The copy must be lodged in accordance with
subsection (3).
Note 1: This is a civil remedy provision, see
section 605.
Note 2: Sections 137.1 and 137.2 of the Criminal
Code create offences for providing false or misleading information or
documents.
(2) The notice must be lodged within 14 days
after the day specified in paragraph (a) or (b):
(a) if the employer gives a notice to
an employee in respect of a redundancy provision that was included in an AWA—the
day on which that notice is given; or
(b) if the employer gives one or more
notices to one or more employees in respect of a redundancy provision that was
included in a collective agreement—the earliest day on which a notice was
given.
Lodgment with Employment Advocate
(3) A notice is lodged with the Employment
Advocate in accordance with this subsection only if it is actually received by
the Employment Advocate.
Note: This means that section 29 of the Acts
Interpretation Act 1901 (to the extent that it deals with the time of
service of documents) does not apply to lodgment of a notice.
12 Subsection 604(1)
After “603”, insert “or 603B”.
13 Subsection 604(2)
After “603”, insert “or 603B (as the case requires)”.
14 Subsection 604(3)
After “603”, insert “or 603B”.
15 At the end of subsection 605(1)
Add:
; (d) subsection 603A(2);
(e) subsection 603B(1).
16 Subsection 605(5)
After “an instrument”, insert “, or in relation to a preserved
redundancy provision that was previously included in an instrument,”.
17 Subsection 605(5) (table item 2)
After “bound by the agreement”, insert “or the redundancy
provision”.
17A Section 717
(note 1 to the definition of applicable provision)
Before “This”, insert “Preserved redundancy provisions are
treated as if they were workplace agreements (see for example
section 399A).”.
18 At the end of subclause 3(4) of Schedule 7
Add:
Note: However, a redundancy provision that was
included in a pre‑reform certified agreement that has ceased operating
might be preserved for a period of up to 12 months (see clause 6A).
19 After clause 6 of Schedule 7
Insert:
6A
Preservation of redundancy provisions in certain circumstances
(1) This clause applies if a pre‑reform
certified agreement is terminated, on application by the employer in relation
to the agreement, by the Commission in accordance with subsection 170MH(3) of
the pre‑reform Act.
Note: Subsection 170MH(3) of the pre‑reform
Act continues to apply because of paragraph 2(1)(k) of this Schedule.
(2) Any party who was bound by the pre‑reform
certified agreement immediately before it ceased operating continues to be
bound, immediately after that time, by any redundancy provision that was
included in the pre‑reform certified agreement as if the pre‑reform
certified agreement had continued operating.
(2A) Parts 6 and 14 of this Act apply to a
redundancy provision referred to in subclause (2) as if the provision was
a pre‑reform certified agreement in operation.
(3) Subject to subclause (4), a
redundancy provision referred to in subclause (2) prevails over any other
redundancy provision included in any other instrument that would otherwise have
effect.
(4) A party continues to be bound by a
redundancy provision referred to in subclause (2), in relation to an
employee who is bound by the redundancy provision, until the earliest of the
following:
(a) the end of the period of 12 months
from the time that the pre‑reform certified agreement ceased operating;
(b) the time when the employee ceases
to be employed by the employer;
(c) the time when a workplace
agreement comes into operation in relation to the employee and the employer.
(5) In this clause:
instrument means either of the following:
(a) a preserved State agreement;
(b) a notional agreement preserving
State awards;
(c) an award;
(d) a transitional award (within the
meaning of Schedule 6).
redundancy provision means any of the
following kinds of provisions:
(a) a provision relating to redundancy
pay in relation to a termination of employment;
(b) a provision that is incidental to
a provision relating to redundancy pay in relation to a termination of
employment;
(c) a machinery provision that is in
respect of a provision relating to redundancy pay in relation to a termination
of employment;
where the termination is at the initiative of the employer
and on the grounds of operational requirements, or because the employer is
insolvent.
6B
Notification of preservation of redundancy provisions
(1) This clause applies if the parties to a
pre‑reform certified agreement will, under clause 6A, continue to be
bound by one or more redundancy provisions included in the agreement.
(2) The Commission must issue a copy of the
order terminating the agreement to:
(a) the employer who will be bound by
the redundancy provision or the redundancy provisions; and
(b) any organisation of employees that
will be bound by the redundancy provision or the redundancy provisions.
(3) The order must:
(a) identify the redundancy provision
or the redundancy provisions; and
(b) state that the parties to the
agreement will be bound by the provision or provisions; and
(c) specify the date that is 12 months
after the time that the order terminating the agreement takes effect; and
(d) state that the parties will remain
bound by the provision or provisions until that date, or an earlier date in
accordance with subclause 6A(4).
6C
Employer must notify employees of preserved redundancy provisions
(1) An employer that has, under
clause 6B, received a copy of an order terminating a pre‑reform
certified agreement must take reasonable steps to ensure that all employees who
are bound by the agreement immediately before the agreement ceases operating
are, within 21 days of the employer receiving a copy of the order, given a copy
of the order.
(2) Subclause (1) is a civil
remedy provision for the purpose of this clause.
Note: Division 3 of Part 14 contains other
provisions relevant to civil remedies.
(3) The Court may order a person who has
contravened the civil remedy provision to pay a pecuniary penalty.
Note: Division 3 of Part 14 contains other
provisions relevant to civil remedies.
(4) The penalty cannot be more than 300
penalty units for a body corporate or 60 penalty units in other cases.
(5) An application for an order under
subclause (3) in relation to a pre‑reform certified agreement may be
made by the following persons:
(a) an employee who is bound by the
agreement immediately before the agreement ceases operating;
(b) an organisation of employees that
is bound by the agreement immediately before the agreement ceases operating;
(c) an organisation of employees that
is entitled, under its eligibility rules, to represent the industrial interests
of an employee referred to in paragraph (a) and has been requested by the
employee to apply for the order on the employee’s behalf;
(d) a workplace inspector.
20 At the end of subclause 18(3) of Schedule 7
Add:
Note: However, a redundancy provision that was
included in a pre‑reform AWA that has ceased operating might be preserved
for a period of up to 12 months (see clause 20A).
21 After clause 20 of Schedule 7
Insert:
20A
Preservation of redundancy provisions in certain circumstances
(1) This clause applies if a pre‑reform
AWA is terminated, on application by the employer in relation to the AWA, by
the Commission in accordance with subsection 170VM(3) of the pre‑reform
Act.
Note: Subsection 170VM(3) of the pre‑reform
Act continues to apply because of paragraph 17(1)(c) of this Schedule.
(2) The employer and the employee in relation
to the pre‑reform AWA continue to be bound, immediately after the pre‑reform
AWA ceases operating, by any redundancy provision that was included in the pre‑reform
AWA as if the pre‑reform AWA had continued operating.
(2A) Parts 6 and 14 of this Act apply to a
redundancy provision referred to in subclause (2) as if the provision was
a pre‑reform AWA in operation.
(3) Subject to subclause (4), a
redundancy provision referred to in subclause (2) prevails over any other
redundancy provision included in any other instrument that would otherwise have
effect.
(4) The employer continues to be bound by a
redundancy provision referred to in subclause (2), in relation to the
employee, until the earliest of the following:
(a) the end of the period of 12 months
from the time that the pre‑reform AWA ceases operating;
(b) the time when the employee ceases
to be employed by the employer;
(c) the time when a workplace
agreement comes into operation in relation to the employee and the employer.
(5) In this clause:
instrument means any of the following:
(a) a collective agreement;
(b) a pre‑reform certified
agreement;
(c) a notional agreement preserving
State awards;
(d) an award.
redundancy provision means any of the
following kinds of provisions:
(a) a provision relating to redundancy
pay in relation to a termination of employment;
(b) a provision that is incidental to
a provision relating to redundancy pay in relation to a termination of
employment;
(c) a machinery provision that is in
respect of a provision relating to redundancy pay in relation to a termination
of employment;
where the termination is at the initiative of the employer
and on the grounds of operational requirements, or because the employer is
insolvent.
20B
Notification of preservation of redundancy provisions
(1) This clause applies if the employer and
the employee in relation to a pre‑reform AWA will, under clause 20A,
continue to be bound by one or more redundancy provisions included in the pre‑reform
AWA.
(2) The determination issued by the
Commission under subsection 170VM(4) of the pre‑reform Act must:
(a) identify the redundancy provision
or the redundancy provisions; and
(b) state that the employer and the
employee in relation to the pre‑reform AWA will be bound by the provision
or provisions; and
(c) specify the date that is 12 months
after the time that the determination terminating the pre‑reform AWA
takes effect; and
(d) state that the employer and the
employee will remain bound by the provision or provisions until that date, or
an earlier date in accordance with subclause 20A(4).
22 After clause 21 of Schedule 8
Insert:
21A
Preservation of redundancy provisions in preserved collective State agreements
in certain circumstances
(1) This clause applies if a preserved
collective State agreement is terminated, on application by the employer in
relation to the agreement, by the Commission in accordance with subsection
170MH(3) of the pre‑reform Act.
Note: Subsection 170MH(3) of the pre‑reform
Act applies because of subclause 21(2) of this Schedule and paragraph 2(1)(k)
of Schedule 7.
(2) Any party who was bound by the preserved
collective State agreement immediately before it ceased operating continues to
be bound, immediately after that time, by any redundancy provision that was
included in the agreement as if the agreement had continued operating.
(2A) Parts 6 and 14 of this Act apply to a
redundancy provision referred to in subclause (2) as if the provision was
a preserved collective State agreement in operation.
(3) Subject to subclause (4), a redundancy
provision referred to in subclause (2) prevails over any other redundancy
provision included in any other instrument that would otherwise have effect.
(4) A party continues to be bound by a
redundancy provision referred to in subclause (2), in relation to an
employee who is bound by the redundancy provision, until the earliest of the
following:
(a) the end of the period of 12 months
from the time that the preserved collective State agreement ceased operating;
(b) the time when the employee ceases
to be employed by the employer;
(c) the time when a workplace
agreement comes into operation in relation to the employee and the employer.
(5) In this clause:
instrument means any of the following:
(a) a pre‑reform certified
agreement (within the meaning of Schedule 7);
(b) a notional agreement preserving
State awards;
(c) an award.
redundancy provision means any of the
following kinds of provisions:
(a) a provision relating to redundancy
pay in relation to a termination of employment;
(b) a provision that is incidental to
a provision relating to redundancy pay in relation to a termination of
employment;
(c) a machinery provision that is in
respect of a provision relating to redundancy pay in relation to a termination
of employment;
where the termination is at the initiative of the employer
and on the grounds of operational requirements, or because the employer is
insolvent.
21B
Notification of preservation of redundancy provisions in preserved collective
State agreements
(1) This clause applies if the parties to a
preserved collective State agreement will, under clause 21A, continue to
be bound by one or more redundancy provisions included in the agreement.
(2) The Commission must issue a copy of the
order terminating the agreement to:
(a) the employer who will be bound by
the redundancy provision or the redundancy provisions; and
(b) any organisation that will be
bound by the redundancy provision or the redundancy provisions.
(3) The order must:
(a) identify the redundancy provision
or the redundancy provisions; and
(b) state that the parties to the
agreement will be bound by the provision or provisions; and
(c) specify the date that is 12 months
after the time that the order terminating the agreement takes effect; and
(d) state that the parties will remain
bound by the provision or provisions until that date, or an earlier date in
accordance with subclause 21A(4).
21C
Employer must notify employees of preserved redundancy provisions in preserved
collective State agreements
(1) An employer that has, under
clause 21B, received a copy of an order terminating a preserved collective
State agreement must take reasonable steps to ensure that all employees who are
bound by the agreement immediately before the agreement ceases operating are,
within 21 days of the employer receiving a copy of the order, given a copy of
the order.
(2) Subclause (1) is a civil
remedy provision for the purpose of this clause.
Note: Division 3 of Part 14 contains other
provisions relevant to civil remedies.
(3) The Court may order a person who has
contravened the civil remedy provision to pay a pecuniary penalty.
Note: Division 3 of Part 14 contains other
provisions relevant to civil remedies.
(4) The penalty cannot be more than 300
penalty units for a body corporate or 60 penalty units in other cases.
(5) An application for an order under
subclause (3) in relation to a preserved collective State agreement may be
made by the following persons:
(a) an employee who is bound by the
agreement immediately before the agreement ceases operating;
(b) an organisation of employees that
is bound by the agreement immediately before the agreement ceases operating;
(c) an organisation of employees that
is entitled, under its eligibility rules, to represent the industrial interests
of an employee referred to in paragraph (a) and has been requested by the
employee to apply for the order on the employee’s behalf;
(d) a workplace inspector.
21D
Preservation of redundancy provisions in preserved individual State agreements
in certain circumstances
(1) This clause applies if a preserved
individual State agreement is terminated, on application by the employer in
relation to the agreement, by the Commission in accordance with subsection
170VM(3) of the pre‑reform Act.
Note: Subsection 170VM(3) of the pre‑reform
Act applies because of subclause 21(3) of this Schedule and paragraph 17(1)(c)
of Schedule 7.
(2) The employer and the employee in relation
to the preserved individual State agreement continue to be bound, immediately
after the agreement ceases operating, by any redundancy provision that was
included in the agreement as if the agreement had continued operating.
(2A) Parts 6 and 14 of this Act apply to a
redundancy provision referred to in subclause (2) as if the provision was
a preserved individual State agreement in operation.
(3) Subject to subclause (4), a
redundancy provision referred to in subclause (2) prevails over any other
redundancy provision included in any other instrument that would otherwise have
effect.
(4) The employer continues to be bound by a
redundancy provision referred to in subclause (2), in relation to the
employee, until the earliest of the following:
(a) the end of the period of 12 months
from the time that the preserved individual State agreement ceases operating;
(b) the time when the employee ceases
to be employed by the employer;
(c) the time when a workplace
agreement comes into operation in relation to the employee and the employer.
(5) In this clause:
instrument means any of the following:
(a) a pre‑reform certified
agreement (within the meaning of Schedule 7);
(b) a notional agreement preserving
State awards;
(c) an award.
redundancy provision means any of the
following kinds of provisions:
(a) a provision relating to redundancy
pay in relation to a termination of employment;
(b) a provision that is incidental to
a provision relating to redundancy pay in relation to a termination of
employment;
(c) a machinery provision that is in
respect of a provision relating to redundancy pay in relation to a termination
of employment;
where the termination is at the initiative of the employer
and on the grounds of operational requirements, or because the employer is
insolvent.
21E
Notification of preservation of redundancy provisions
(1) This clause applies if the employer and
the employee in relation to a preserved individual State agreement will, under
clause 21D, continue to be bound by one or more redundancy provisions
included in the agreement.
(2) The determination issued by the
Commission under subsection 170VM(4) of the pre‑reform Act must:
(a) identify the redundancy provision
or the redundancy provisions; and
(b) state that the employer and the
employee in relation to the preserved individual State agreement will be bound
by the provision or provisions; and
(c) specify the date that is 12 months
after the time that the determination terminating the agreement takes effect;
and
(d) state that the employer and the
employee will remain bound by the provision or provisions until that date, or
an earlier date in accordance with subclause 21D(4).
23 After Part 5 of Schedule 9
Insert:
Part 5A—Transmission of preserved redundancy provisions
27A
Transmission of preserved redundancy provisions
(1) If:
(a) immediately before the time of
transmission:
(i) the old employer; and
(ii) an employee;
were bound, under clause 6A
or 20A of Schedule 7, clause 21A or 21D of Schedule 8, or
because of a previous application of this clause, by a redundancy provision
that was previously included in an agreement that was terminated; and
(b) the employee is a transferring
employee;
the new employer is bound by the redundancy provision in
relation to the transferring employee by force of this clause.
Note: The new employer must notify the transferring
employee and lodge a copy of the notice with the Employment Advocate (see
clauses 29A and 29B).
(2) Subject to subclause (3), the
redundancy provision prevails over any other redundancy provision included in
any other instrument that would otherwise have effect, to the extent of any
inconsistency.
Period for which new employer remains bound
(3) The new employer remains bound by the
redundancy provision in relation to the transferring employee, by force of this
clause, until the earliest of the following:
(a) the end of the period of 12 months
from the time that the agreement referred to in paragraph (1)(a) ceased
operating;
(b) the time when the transferring
employee ceases to be employed by the new employer;
(c) the time when a workplace
agreement comes into operation in relation to the new employer and the
transferring employee.
Old employer’s rights and obligations that arose before
time of transmission not affected
(4) This clause does not affect the rights
and obligations of the old employer that arose before the time of transmission.
Definitions
(5) In this clause:
instrument means any of the following:
(a) a workplace agreement;
(b) a pre‑reform certified
agreement (within the meaning of Schedule 7);
(c) a preserved State agreement;
(d) a notional agreement preserving
State awards;
(e) an award;
(f) a transitional award (within the
meaning of Schedule 6).
redundancy provision means any of the
following kinds of provisions:
(a) a provision relating to redundancy
pay in relation to a termination of employment;
(b) a provision that is incidental to
a provision relating to redundancy pay in relation to a termination of
employment;
(c) a machinery provision that is in
respect of a provision relating to redundancy pay in relation to a termination
of employment;
where the termination is at the initiative of the employer
and on the grounds of operational requirements, or because the employer is
insolvent.
24 After clause 29 of Schedule 9
Insert:
29A
Informing transferring employees about transmission of preserved redundancy
provisions
(1) This clause applies if an employer is
bound, by force of clause 27A, by one or more redundancy provisions
(within the meaning of that clause) in relation to a transferring employee.
(2) Within 28 days after the transferring employee
starts being employed by the employer, the employer must take reasonable steps
to give the transferring employee a written notice that complies with
subclause (3).
Note: This is a civil remedy provision, see
clause 31.
(3) The notice must:
(a) identify the redundancy provision
or the redundancy provisions; and
(b) state that the employer is bound
by the provision or provisions; and
(c) specify the date that is 12 months
after the time that the agreement that included the provision or provisions
ceased operating; and
(d) state that the employer will
remain bound by the provision or provisions until that date, or an earlier date
in accordance with subclause 27A(3).
(4) Subclause (2) does not apply if a
workplace agreement comes into operation in relation to the employer and the
transferring employee within 14 days of the time of transmission.
29B
Lodging copy of notice about preserved redundancy provisions with Employment
Advocate
(1) If an employer gives a notice under
clause 29A to a transferring employee, the employer must lodge a copy of
the notice with the Employment Advocate within the period specified in
subclause (2). The copy must be lodged in accordance with
subclause (3).
Note 1: This is a civil remedy provision, see
clause 31.
Note 2: Sections 137.1 and 137.2 of the Criminal
Code create offences for providing false or misleading information or
documents.
(2) The notice must be lodged within 14 days
after the day specified in paragraph (a) or (b):
(a) if the employer gives a notice to
an employee in respect of a redundancy provision that was included in a pre‑reform
AWA or a preserved individual State agreement—the day on which that notice is
given; or
(b) if the employer gives one or more
notices to one or more employees in respect of a redundancy provision that was
included in a pre‑reform certified agreement or a preserved collective
State agreement—the earliest day on which a notice was given.
Lodgment with Employment Advocate
(3) A notice is lodged with the Employment
Advocate in accordance with this subclause only if it is actually received by
the Employment Advocate.
Note: This means that section 29 of the Acts
Interpretation Act 1901 (to the extent that it deals with the time of
service of documents) does not apply to lodgment of a notice.
25 Subclause 30(1) of Schedule 9
After “29”, insert “or 29B”.
26 Subclause 30(2) of Schedule 9
After “29”, insert “or 29B (as the case requires)”.
27 Subclause 30(3) of Schedule 9
After “29”, insert “or 29B”.
28 At the end of subclause 31(1) of Schedule 9
Add:
; (c) subclause 29A(2);
(d) subclause 29B(1).
29 Subclause 31(4) of Schedule 9
After “an instrument”, insert “, or in relation to a preserved
redundancy provision that was previously included in an instrument,”.
30 Subclause 31(4) of Schedule 9 (table items 2
and 4)
After “bound by the agreement”, insert “or the redundancy
provision”.
31 Application
The amendments made by this Schedule apply to agreements that are
terminated after this item commences.
Schedule 4—Amendments relating to stand downs
Workplace Relations Act 1996
1 Subsection 4(1)
Insert:
authorised stand down means a stand down of
an employee that is authorised as mentioned in subsection 691B(1).
2 Subsection 13(1) (after table item 6)
Insert:
|
6A
|
Division 7 of Part 12
|
Stand downs
|
Section 691C
|
3 At the end of paragraph 183(1)(b)
Add:
(iv) any hours in the week
when the employee is stood down (but only if the stand down is an authorised
stand down);
4 At the end of Part 12
Add:
Division 7—Stand downs
691A
Employer may stand down employees in certain circumstances
(1) This section applies if:
(a) an employee employed by an
employer cannot usefully be employed during a period because of a particular
circumstance; and
(b) that circumstance is:
(i) a strike; or
(ii) a breakdown of
machinery; or
(iii) a stoppage of work for
any cause for which the employer cannot reasonably be held responsible; and
(c) either:
(i) there is no contract
of employment, and no industrial instrument, that binds the employer in respect
of the employment of the employee and that contains provision for the standing
down of the employee during that period because of that circumstance; or
(ii) a contract of
employment, or industrial instrument, that binds the employer in respect of the
employment of the employee contains provision for the standing down of the
employee during that period because of that circumstance, but the employer’s
right to stand down the employee is dependent on the employer having to apply
to the Commission, a State industrial authority or another person or body for
an order or determination (however described) authorising the employer to stand
down the employee.
(2) If this section applies, the employer:
(a) may stand down the employee during
the period referred to in paragraph (1)(a) because of the circumstance
referred to in that paragraph; and
(b) if the employer stands down the
employee under paragraph (a) of this subsection—may deduct payment for the
period during which the employee is stood down.
(3) A period during which an employee is
stood down under subsection (2) does not break the employee’s continuity
of service.
(4) A period during which an employee is
stood down under subsection (2) counts as service for all purposes.
(5) A provision of a contract of employment
or an industrial instrument that provides as mentioned in
subparagraph (1)(c)(ii) has no effect. However, this section does not
otherwise affect the operation of any provision of a contract of employment or
industrial instrument that provides for the standing down of employees.
(6) In this section:
industrial instrument means any of the
following:
(a) a workplace agreement;
(b) an award;
(c) a pre‑reform AWA;
(d) a pre‑reform certified
agreement (within the meaning of Schedule 7);
(e) a preserved State agreement;
(f) a notional agreement preserving
State awards;
(g) a workplace determination;
(h) an employment agreement (within
the meaning of Division 12 of Part 21);
(i) an exceptional matters order
(within the meaning of Schedule 7);
(j) a section 170MX award
(within the meaning of Schedule 7);
(k) an old IR agreement (within the
meaning of Schedule 7).
691B
Prohibition of unauthorised stand downs
(1) An employer must not stand down an
employee from his or her employment if the stand down is not authorised by:
(a) subsection 691A(2); or
(b) a provision of a contract of
employment, or an industrial instrument (within the meaning of
section 691A), that is binding on the employer in respect of the
employment of the employee (other than a provision that is rendered of no
effect by subsection 691A(5)).
Note 1: Compliance with this subsection is dealt with
as follows:
(a) the model dispute resolution process applies
(see subsection (2));
(b) the Court may grant an injunction (see subsection (3));
(c) the compliance provisions of Part 14
apply.
Note 2: If the standing down of an employee is not
authorised as mentioned in this subsection, the employee may recover any lost
wages by taking appropriate enforcement action (whether under this Act or
otherwise).
(2) The model dispute resolution process
(other than section 697) applies to a dispute under subsection (1).
Note: The model dispute resolution process is set
out in Part 13.
(3) The Court, or the Federal Magistrates
Court, on application by an employee who has been stood down or by an
inspector, may grant an injunction requiring the employer of the employee to
cease contravening (or not to contravene) subsection (1).
691C
Extraterritorial extension
(1) This Division, and the rest of this Act
so far as it relates to this Division, extend:
(a) to an employee outside Australia
who meets any of the conditions in this section; and
(b) to the employee’s employer
(whether the employer is in or outside Australia); and
(c) to acts, omissions, matters and
things relating to the employee or the employee’s employment (whether those
acts, omissions, matters or things are in or outside Australia).
Note: In this context, Australia
includes the Territory of Christmas Island, the Territory of Cocos (Keeling)
Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts
Interpretation Act 1901.
Employee in Australia’s exclusive economic zone
(2) One condition is that the employee is in
Australia’s exclusive economic zone and either:
(a) is an employee of an Australian
employer and is not prescribed by the regulations as an employee to whom this
subsection does not apply; or
(b) is an employee prescribed by the
regulations as an employee to whom this subsection applies.
Note: The regulations may prescribe the employee by
reference to a class. See subsection 13(3) of the Legislative Instruments
Act 2003.
On Australia’s continental shelf outside exclusive
economic zone
(3) Another condition is that the employee:
(a) is outside the outer limits of
Australia’s exclusive economic zone, but is in, on or over a part of
Australia’s continental shelf prescribed by the regulations for the purposes of
this subsection, in connection with the exploration of the continental shelf or
the exploitation of its natural resources; and
(b) meets the requirements that are
prescribed by the regulations for that part.
Note: The regulations may prescribe different
requirements relating to different parts of Australia’s continental shelf. The
regulations may need to do so to give effect to Australia’s international
obligations.
Outside Australia’s exclusive economic zone and
continental shelf
(4) Another condition is that the employee:
(a) is neither in Australia’s
exclusive economic zone nor in, on or over a part of Australia’s continental
shelf described in paragraph (3)(a); and
(b) is an Australian‑based
employee of an Australian employer; and
(c) is not prescribed by the
regulations as an employee to whom this subsection does not apply.
(5) In this section:
this Act includes the Registration and
Accountability of Organisations Schedule and regulations made under it.
5 Section 717 (at the end of the definition of applicable
provision)
Add:
; and (e) subsection 691B(1) (prohibition of
unauthorised stand downs).
6 Subsection 718(1) (at the end of the table)
Add:
|
8
|
subsection 691B(1) (prohibition of unauthorised stand
downs)
|
(a) an employee to whom subsection 691B(1) applies;
(b) an inspector
|
7 Subsection 718(2)
Omit “and 7”, substitute “, 7 and 8”.
8 After Division 7 of Part 21
Insert:
Division 7A—Stand downs
880A
Additional effect of Act—stand downs
Without affecting its operation apart
from this section, Division 7 of Part 12 also has effect in relation
to the employment of any employee in Victoria, and for this purpose:
(a) each reference in that Division to
an employer (within the meaning of that Division) is to be read as a reference
to an employer (within the meaning of this Division) in Victoria; and
(b) each reference in that Division to
an employee (within the meaning of that Division) is to be read as a reference
to an employee (within the meaning of this Division) in Victoria; and
(c) each reference in that Division to
employment (within the meaning of that Division) is to be read as a reference
to the employment of an employee (within the meaning of this Division) in
Victoria.
9 Section 891
Repeal the section.
10 After paragraph 89(1)(a) of Schedule 6
Insert:
(aa) section 691A (as applied by
section 880A); and
11 After paragraph 95(a) of Schedule 6
Insert:
(aa) section 691A (as applied by
section 880A); and
12 After paragraph 102(a) of Schedule 6
Insert:
(aa) section 691A (as applied by
section 880A); and
Schedule 5—Amendments relating to the Australian Fair Pay and
Conditions Standard
Workplace Relations Act 1996
1 Subsection 189(1)
Repeal the subsection, substitute:
APCS applies and contains frequency of payment
provisions
(1) If:
(a) the employment of an employee is
covered by an APCS; and
(b) the APCS contains frequency of
payment provisions that apply in relation to the employee’s employment;
then:
(c) if a workplace agreement that
covers the employment of the employee contains frequency of payment provisions:
(i) that apply in relation
to the employee’s employment; and
(ii) that provide for
payments in respect of periods of one month or less;
the employer must comply with
those provisions in relation to the employee; or
(d) if paragraph (c) does not
apply, and the employee’s contract of employment contains frequency of payment
provisions:
(i) that apply in relation
to the employee’s employment; and
(ii) that provide for
payments in respect of periods of one month or less;
the employer must comply with
those provisions in relation to the employee; or
(e) if neither paragraph (c) nor
(d) applies—the employer must comply with the frequency of payment provisions
of the APCS in relation to the employee.
2 After subsection 226(1)
Insert:
(1A) An employer only contravenes
subsection (1) if the employer requests or requires an employee to
work more than the hours mentioned in subsection (1), and the employee
works those hours.
3 Section 228
Before “In”, insert “(1)”.
4 Section 228 (at the end of the definition of shift
worker)
Add:
Note: Subsection (2) enables regulations to be
made providing that an employee belonging to a specified class is not a shift
worker.
5 At the end of section 228
Add:
(2) The regulations may provide that an
employee:
(a) who is covered by
paragraph (a) or (b) of the definition of shift worker in
subsection (1); and
(b) who belongs to a class
specified in the regulations;
is not a shift worker for the purposes of this Division.
(3) Without limiting the way in which a class
of employees may be described for the purposes of regulations made under
subsection (2), the class may be described by reference to one or more of
the following:
(a) a particular industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular type of shift work
(whether described by reference to the organisation or allocation of shifts or
otherwise).
6 Paragraph 229(1)(a)
Repeal the paragraph, substitute:
(a) start with:
(i) the specified number
of hours; or
(ii) if the specified
number of hours is more than 38 hours—38 hours;
7 After subsection 229(4)
Insert:
Certain types of leave not to count as service
(4A) For the purposes of
subparagraphs (1)(b)(i) and (4)(a)(ii), a period of authorised unpaid
leave or unauthorised leave does not count as service in relation to an
employee except:
(a) as expressly provided by:
(i) a term or condition of
the employee’s employment; or
(ii) a law, or an
instrument in force under a law, of the Commonwealth, a State or a Territory;
or
(b) as prescribed by the regulations.
Note: For whether leave guaranteed under this Part
counts as service, see subsections 238(2) (annual leave), 260(2) (paid personal
leave), 261(2) (unpaid carer’s leave) and 316(2) (parental leave).
8 Subsection 229(5) (note 3)
Repeal the note.
9 Paragraph 233(1)(c)
Omit all the words after “no less than”, substitute “the rate
that, at the time the election is made, is the employee’s basic periodic rate
of pay (expressed as an hourly rate); and”.
10 Subsection 235(1)
Omit all the words after “a period,”, substitute “the employee
must be paid a rate for each hour (pro‑rated for part hours) of annual
leave taken that is no less than the rate that, immediately before the period
begins, is the employee’s basic periodic rate of pay (expressed as an hourly
rate).”.
11 Subsection 235(2)
Omit all the words after “a particular time,”, substitute “the
employee must be paid a rate for each hour (pro‑rated for part hours) of
the employee’s untaken accrued annual leave that is no less than the rate that,
immediately before that time, is the employee’s basic periodic rate of pay
(expressed as an hourly rate).”.
12 At the end of section 236
Add:
Entitlement to leave for all nominal hours in a day
also extends to other hours on that day
(7) If:
(a) an employee to whom subparagraph
229(1)(a)(ii) applies is entitled to take annual leave on a particular day; and
(b) the entitlement covers all the
hours (or part hours) on that day that would count towards the nominal hours
worked by the employee in the week that includes that day;
the employer is taken to have authorised the employee to
be absent from work for any other hours (or part hours) on that day that the
employee would otherwise have worked.
Example: Bianca is employed by BBB Bakers Pty Ltd. She
works 40 hours per week (consisting of 38 hours plus 2 reasonable additional
hours).
Under subsection 232(2), Bianca is
entitled to accrue paid annual leave of 1/13 of her nominal hours worked for
each completed 4 week period of continuous service with BBB Bakers. Because of
subparagraph 229(1)(a)(ii), Bianca’s nominal hours worked in a week are capped
at 38 hours. If Bianca works her normal hours for a 12 month period, she will
accrue 152 hours of paid annual leave.
The above subsection ensures that Bianca
will be able to be absent from work for 4 full 40 hour weeks. Bianca’s absence
for the additional 8 hours will not be paid leave, and will not count as
service, but it will not break her continuity of service (see
subsection (8)).
(8) An absence that is taken by
subsection (7) to have been authorised:
(a) is not annual leave; and
(b) does not break the employee’s
continuity of service; and
(c) does not otherwise count as
service.
(9) For the purposes of subsection (7),
if a shift (or other period of work) occurs partly on 1 day and partly on the
next day, the shift (or other period of work) is taken to be a day and the
remaining parts of the days are taken not to be part of the day.
(10) For the purposes of subsection (7),
the regulations may make provision for either or both of the following:
(a) determining what hours (or part
hours) on a particular day would count towards the nominal hours worked by an
employee in a week;
(b) determining what other hours (or
part hours) on a particular day would be hours (or part hours) that an employee
would otherwise have worked.
13 Section 240
Insert:
basic periodic rate of pay has the meaning
given by section 178.
Note: See also section 243.
14 Paragraph 241(1)(a)
Repeal the paragraph, substitute:
(a) start with:
(i) the specified number
of hours; or
(ii) if the specified
number of hours is more than 38 hours—38 hours;
15 After subsection 241(4)
Insert:
Certain types of leave not to count as service
(4A) For the purposes of
subparagraphs (1)(b)(i) and (4)(a)(ii), a period of authorised unpaid leave
or unauthorised leave does not count as service in relation to an employee
except:
(a) as expressly provided by:
(i) a term or condition of
the employee’s employment; or
(ii) a law, or an
instrument in force under a law, of the Commonwealth, a State or a Territory;
or
(b) as prescribed by the regulations.
Note: For whether leave guaranteed under this Part
counts as service, see subsections 238(2) (annual leave), 260(2) (paid personal
leave), 261(2) (unpaid carer’s leave) and 316(2) (parental leave).
16 Subsection 241(5) (note 3)
Repeal the note.
17 Section 243
Repeal the section, substitute:
243
Regulations may prescribe different definitions for piece rate employees
The regulations may prescribe:
(a) a different definition of basic
periodic rate of pay for the purposes of the application of this
Division in relation to piece rate employees; and
(b) a different definition of nominal
hours worked for the purposes of the application of this Division in
relation to piece rate employees.
18 After section 245
Insert:
245A
Entitlement to cash out an amount of paid personal/carer’s leave
(1) This section applies to an employee if
more than the protected amount of paid personal/carer’s leave is credited to
the employee.
(2) The employee is entitled to forgo an
entitlement to take any or all of the amount of paid personal/carer’s leave
credited to the employee that exceeds the protected amount of paid
personal/carer’s leave if:
(a) a provision in a workplace
agreement binding the employee and the employer entitles the employee to forgo
the entitlement to the amount of paid personal/carer’s leave; and
(b) the employee gives the employer a
written election to forgo the amount of paid personal/carer’s leave; and
(c) a provision in a workplace
agreement binding the employee and the employer entitles the employee to
receive pay in lieu of the amount of paid personal/carer’s leave at a rate that
is no less than the rate that, at the time the election is made, is the
employee’s basic periodic rate of pay (expressed as an hourly rate); and
(d) the employer authorises the
employee to forgo the amount of paid personal/carer’s leave.
Note: If, under this section, an employee forgoes an
entitlement to take an amount of paid personal/carer’s leave, the employee’s
employer may deduct that amount from the amount of accrued paid
personal/carer’s leave credited to the employee.
(3) For the purposes of subsections (1)
and (2), the protected amount of paid personal/carer’s leave for
the employee is 3/52 of the number of nominal hours worked by the
employee for the employer during:
(a) a continuous period of 12 months
of service with the employer ending immediately before the day on which the
employee makes an election under paragraph (2)(b); or
(b) a sequence of periods totalling 12
months of service with the employer, the last of which ends immediately before
the day on which the employee makes an election under paragraph (2)(b).
Note: The protected amount of paid personal/carer’s
leave for an employee whose nominal hours worked for an employer each week over
a continuous period of 12 months service with the employer are 38 hours would
be 114 hours (which would be equivalent to 15 days of paid personal/carer’s
leave for that employee).
(4) An employer must not:
(a) require an employee to forgo an
entitlement to take an amount of paid personal/carer’s leave; or
(b) exert undue influence or undue
pressure on an employee in relation to the making of a decision by the employee
whether or not to forgo an entitlement to take an amount of paid
personal/carer’s leave.
(5) If, under this section, an employee
forgoes an entitlement to take an amount of paid personal/carer’s leave, the
employer must, within a reasonable period, give the employee the amount of pay
that the employee is entitled to receive in lieu of the amount of paid
personal/carer’s leave.
19 Section 247
Omit all the words after “a period,”, substitute “the employee
must be paid a rate for each hour (pro‑rated for part hours) of paid
personal/carer’s leave taken that is no less than the rate that, immediately
before the period begins, is the employee’s basic periodic rate of pay
(expressed as an hourly rate).”.
20 After section 247
Insert:
247A
Entitlement to leave for all nominal hours in a day also extends to other hours
on that day
(1) If:
(a) an employee to whom subparagraph
241(1)(a)(ii) applies is entitled to take paid personal/carer’s leave on a
particular day; and
(b) the entitlement covers all the
hours (or part hours) on that day that would count towards the nominal hours
worked by the employee in the week that includes that day;
the employer is taken to have authorised the employee to
be absent from work for any other hours (or part hours) on that day that the
employee would otherwise have worked.
Example: Tina is employed by Terrific Videos Pty Ltd. She
works 8 hours a day for 5 days a week, giving a weekly total of 40 hours per
week (consisting of 38 hours plus 2 reasonable additional hours).
Under subsection 246(2), Tina is entitled
to accrue paid personal/carer’s leave of 1/26
of her nominal hours worked for each completed 4 week period of continuous
service with Terrific Videos. Because of subparagraph 241(1)(a)(ii), Tina’s
nominal hours worked in a week are capped at 38 hours. If Tina works her normal
hours for a 12 month period, she will accrue 76 hours of paid personal/carer’s
leave.
The above subsection ensures that Tina
will be able (subject to the requirements of this Division relating to
entitlement to paid personal/carer’s leave) to be absent from work for 10 full
8 hour days. Tina’s absence for the additional 4 hours over those 10 days will
not be paid leave, and will not count as service, but it will not break her
continuity of service (see subsection (2)).
(2) An absence that is taken by
subsection (1) to have been authorised:
(a) is not paid personal/carer’s
leave; and
(b) does not break the employee’s
continuity of service; and
(c) does not otherwise count as
service.
(3) For the purposes of subsection (1),
if a shift (or other period of work) occurs partly on 1 day and partly on the
next day, the shift (or other period of work) is taken to be a day and the
remaining parts of the days are taken not to be part of the day.
(4) For the purposes of subsection (1),
the regulations may make provision for either or both of the following:
(a) determining what hours (or part
hours) on a particular day would count towards the nominal hours worked by an
employee in a week;
(b) determining what other hours (or
part hours) on a particular day would be hours (or part hours) that an employee
would otherwise have worked.
21 Section 259
Omit all the words after “a period,”, substitute “the employee
must be paid a rate for each hour (pro‑rated for part hours) of
compassionate leave taken that is no less than the rate that, immediately
before the period begins, is the employee’s basic periodic rate of pay
(expressed as an hourly rate).”.
22 Section 262
Before “This”, insert “(1)”.
23 At the end of section 262
Add:
(2) This Division establishes minimum
entitlements and so is intended to supplement, and not to override,
entitlements under other Commonwealth legislation.
24 Section 263
Insert:
basic periodic rate of pay has the meaning
given by section 178.
Note: See also section 264A.
25 Section 263 (definition of employee)
Omit “section 262”, substitute “subsection 262(1)”.
26 Section 263
Insert:
piece rate employee means an employee who is
paid a piece rate of pay within the meaning of section 178.
27 At the end of Subdivision A of Division 6 of
Part 7
Add:
264A
Regulations may prescribe different definition for piece rate employees
The regulations may prescribe a
different definition of basic periodic rate of pay for the
purposes of the application of this Division in relation to piece rate
employees.
28 At the end of subsection 268(2)
Add:
Note: An employer may ask an employee to give the
employer a statement from a medical practitioner as to the employee’s fitness
to work (see subsections 274(2) and (2A)).
29 Subsection 268(3)
Omit all the words after “a period,”, substitute “the employee
must be paid a rate for each hour (pro‑rated for part hours) of paid
leave taken that is no less than the rate that, immediately before the period
begins, is the employee’s basic periodic rate of pay (expressed as an hourly
rate).”.
30 After subsection 274(2)
Insert:
(2A) If the employee takes paid leave under
subparagraph 268(2)(b)(i) or (ii) during the period of 6 weeks before the
expected date of birth, the employer may, at any time during the period of
leave, ask the employee to give the employer a medical certificate from a
medical practitioner containing a statement of the medical practitioner’s
opinion of whether the employee is fit to work.
31 At the end of subsection 318(3)
Add:
Note: For the purposes of subsection (3), employer,
employee and employment have their ordinary
meaning. See sections 5, 6 and 7 and Schedule 2.
32 After paragraph 2(1)(g) of Schedule 2
Insert:
(ga) a reference in Division 7 of
Part 7 so far as the reference relates to Division 6 of Part 7
as applied by section 689.
33 After paragraph 3(1)(c) of Schedule 2
Insert:
(ca) a reference in Division 7 of
Part 7 so far as the reference relates to Division 6 of Part 7
as applied by section 689.
34 After paragraph 4(1)(c) of Schedule 2
Insert:
(ca) a reference in Division 7 of
Part 7 so far as the reference relates to Division 6 of Part 7
as applied by section 689.
35 Saving provision—annual leave
The amendment of the Workplace Relations Act 1996 made by
item 6 does not affect any entitlement to annual leave that an employee
had accrued before the commencement of that item.
36 Saving provision—paid personal/carer’s leave
The amendment of the Workplace Relations Act 1996 made by
item 14 does not affect any entitlement to paid personal/carer’s leave
that an employee had accrued before the commencement of that item.
Schedule 6—Other amendments
Workplace Relations Act 1996
1 Paragraph 165(1)(e)
After “purposes of” (first occurring), insert “this paragraph
or”.
2 After subsection 165(1)
Insert:
(1A) To avoid doubt, a disclosure in accordance
with subsection (1) of personal information (within the meaning of the Privacy
Act 1988) is taken, for the purposes of that Act, to be authorised by law.
3 At the end of section 170
Add:
(5) To avoid doubt, a disclosure in
accordance with this section of personal information (within the meaning of the
Privacy Act 1988) is taken, for the purposes of that Act, to be
authorised by law.
4 Subsection 337(5)
Repeal the subsection, substitute:
(5) If a waiver has been made under
section 338 in relation to the workplace agreement:
(a) subsection (1) and
paragraph (3)(b) do not apply if, before the time the waiver was made, the
employer had taken reasonable steps to ensure that all eligible employees in
relation to the agreement (as at that time) either had, or had ready access to,
the agreement in writing; and
(b) subsection (2) does not apply
if, before the time the waiver was made, the employer had taken reasonable
steps to ensure that all eligible employees in relation to the agreement (as at
that time) had been given an information statement in relation to the agreement
that complies with subsection (4).
5 At the end of section 338
Add:
Note: For the effect of the waiver, see subsection 337(5).
Note: The heading to section 338 is replaced by
the heading “Employees may waive 7‑day period”.
6 At the end of Division 5 of Part 8
Add:
346A
Employer to provide copy of lodged AWA to employee
(1) As soon as practicable after an employer
lodges an AWA with the Employment Advocate, the employer must give a copy of
the AWA to the employee whose employment is subject to the AWA.
(2) Subsection (1) is a civil remedy
provision.
Note: See Division 11 for provisions on
enforcement.
7 After subsection 347(2)
Insert:
(2A) If:
(a) an employer and an employee or
employees of the employer, or an organisation of employees, make a workplace
agreement (within the meaning of section 333); and
(b) the employer does not lodge that
workplace agreement (the unlodged agreement), but subsequently
lodges a declaration under subsection 344(2); and
(c) the declaration purports to
identify as parties to a workplace agreement:
(i) the employer who
lodged the declaration; and
(ii) at least one employee,
class of employees or organisation; and
(d) the employer and the other parties
identified in the declaration are parties to the unlodged agreement; and
(e) a document that is different from
the unlodged agreement is attached to the declaration;
then:
(f) the unlodged agreement comes into
operation as a workplace agreement at the time the declaration is lodged; and
(g) the document that is attached to
the declaration does not come into operation as a workplace agreement.
8 Subsection 370(5)
Repeal the subsection, substitute:
(5) If a waiver has been made under
section 371 in relation to the variation to the workplace agreement:
(a) subsection (1) and
paragraph (3)(b) do not apply if, before the time the waiver was made, the
employer had taken reasonable steps to ensure that all eligible employees in
relation to the agreement (as at that time) either had, or had ready access to,
the variation in writing; and
(b) subsection (2) does not apply
if, before the time the waiver was made, the employer had taken reasonable
steps to ensure that all eligible employees in relation to the agreement (as at
that time) had been given an information statement in relation to the variation
that complies with subsection (4).
9 At the end of section 371
Add:
Note: For the effect of the waiver, see subsection
370(5).
Note: The heading to section 371 is replaced by
the heading “Employees may waive 7‑day period”.
10 After paragraph 392(2)(b)
Insert:
(ba) in the case of an AWA—the employee
whose employment is subject to the agreement;
11 After paragraph 393(2)(b)
Insert:
(ba) in the case of an AWA—the employee
whose employment is subject to the agreement;
12 After paragraph 407(2)(j)
Insert:
(ja) for subsection 346A(1)—30 penalty
units;
13 At the end of subsection 482(1)
Add “, whether or not the ballot is completed”.
14 At the end of subsection 482(2)
Add “, whether or not the ballot is completed”.
15 Subsection 482(3)
Omit “have effect”, substitute “are, in relation to completed
ballots,”.
16 After paragraph 483(1)(a)
Insert:
(aa) the ballot has been completed; and
Note: The heading to section 483 is altered by
inserting “completed” after “of”.
17 Section 611 (after paragraph (a) of the
definition of public holiday)
Insert:
(aa) a day that, under (or in
accordance with a procedure under) a law of a State or Territory, is
substituted for a day referred to in paragraph (a); and
18 Section 611 (subparagraph (b)(i) of the
definition of public holiday)
Repeal the subparagraph.
19 At the end of section 710
Add:
; or (c) the matter is the subject of
proceedings or has already been settled as a result of proceedings, whether
before a court or another body, under a law of the Commonwealth or of a State
or Territory relating to the prevention of discrimination or to equal
opportunity.
20 Subparagraph 846(2)(g)(i)
Omit “5”, substitute “10”.
21 Subparagraph 846(2)(g)(ii)
Omit “25”, substitute “50”.
22 Paragraph 864(1)(b)
Repeal the paragraph, substitute:
(b) is:
(i) of a rate provision;
or
(ii) of a casual loading
provision; or
(iii) of a frequency of
payment provision.
23 Subsection 864(4)
Insert:
frequency of payment provision has the same
meaning as in Division 2 of Part 7.
24 After paragraph 3(1)(h) of Schedule 2
Insert:
(ha) a reference in Division 2 of
Part 4 of Schedule 7.
25 Paragraph 72H(2)(c) of Schedule 6
Omit all the words after “apply”, substitute “according to its
terms, to the transferring transitional employee’s employment with the new
transitional employer;”.
26 Subclause 72H(2) of Schedule 6
Omit “the transmitted award, to the extent to which it relates to
the transferring transitional employee’s employment with the new transitional
employer, prevails over that certified agreement to the extent of any
inconsistency with that certified agreement.”, substitute “the certified
agreement does not apply to the transferring transitional employee.”.
27 Paragraph 77(3)(a) of Schedule 6
Repeal the paragraph, substitute:
(a) the matter referred to in
paragraph (1)(g) does not include one or both of the following:
(i) special maternity
leave (within the meaning of section 265);
(ii) the entitlement under
section 268 to transfer to a safe job or to take paid leave; and
28 Paragraph 97(4)(a) of Schedule 6
Repeal the paragraph, substitute:
(a) the matter referred to in paragraph (2)(ac)
does not include one or both of the following:
(i) special maternity
leave (within the meaning of section 265);
(ii) the entitlement under
section 268 to transfer to a safe job or to take paid leave; and
29 Clause 1 of Schedule 7
Insert:
transitional award has the same meaning as in
Schedule 6.
30 At the end of clause 2 of Schedule 7
Add:
Note: Clause 5 of this Schedule,
section 16 and Schedule 8 may also affect the terms and conditions of
employment of an employee in relation to whom a pre‑reform certified
agreement is in operation.
31 Subclause 5(1) of Schedule 7
Repeal the subclause, substitute:
(1) While a pre‑reform certified
agreement is in operation, it prevails, to the extent of any inconsistency,
over:
(a) a preserved State agreement; or
(b) a notional agreement preserving
State awards.
32 At the end of clause 17 of Schedule 7
Add:
Note: Clause 19 of this Schedule,
section 16 and Schedule 8 may also affect the terms and conditions of
employment of an employee in relation to whom a pre‑reform AWA is in
operation.
33 Paragraph 19(d) of Schedule 7
Repeal the paragraph, substitute:
(d) to the extent of any
inconsistency, a notional agreement preserving State awards;
34 Before clause 22 of Schedule 7
Insert:
Division 1—Continuing operation of section 170MX awards
35 Clause 22 of Schedule 7
Repeal the clause, substitute:
22
Application of Division
This Division applies to a
section 170MX award if:
(a) the employer in relation to the
section 170MX award:
(i) is an employer (within
the meaning of subsection 6(1)) at the reform commencement; or
(ii) becomes such an
employer during the transitional period; and
(b) the section 170MX award:
(i) was in force just
before the reform commencement; or
(ii) was made after the
reform commencement because of Part 8 of this Schedule.
36 Subclause 23(1) of Schedule 7
Omit “the award”, substitute “a section 170MX award to which
this Division applies”.
37 Clause 24 of Schedule 7
Omit “the award”, substitute “a section 170MX award to which
this Division applies”.
38 Clause 25 of Schedule 7
After “section 170MX award” (wherever occurring), insert “to
which this Division applies”.
39 Subclause 26(1) of Schedule 7
After “section 170MX award”, insert “to which this Division
applies”.
40 At the end of Part 4 of Schedule 7
Add:
Division 2—Special rules for section 170MX awards that bind
excluded employers
26A
Application of Division
(1) This Division applies to a
section 170MX award if:
(a) the employer in relation to the
section 170MX award is an excluded employer at the reform commencement;
and
(b) the section 170MX award:
(i) was in force just
before the reform commencement; or
(ii) was made after the
reform commencement because of Part 8 of this Schedule.
(2) This Division applies to the
section 170MX award while the employer remains an excluded employer during
the transitional period.
26B
Cessation of section 170MX award
(1) A section 170MX award to which this
Division applies ceases to be in operation:
(a) at the end of the transitional
period; or
(b) when it has been replaced by a
State employment agreement.
(2) To avoid doubt, this clause does not
affect any rights accrued or liabilities incurred under a section 170MX
award to which this Division applies before it ceases to be in operation.
(3) To avoid doubt, if the employer in
relation to a section 170MX award to which this Division applies becomes
an employer (within the meaning of subsection 6(1)) at a time before the end of
the transitional period, subclause (1) does not apply after that time.
Note: On and after that time, Division 1 of
this Part applies to the section 170MX award.
(4) Once a section 170MX award to which
this Division applies has ceased operating, it can never operate again.
26C
Continuing operation of section 170MX awards—under old provisions
(1) Subject to this Schedule, provisions of
the pre‑reform Act (including regulations made under that Act) relating
to section 170MX of the pre‑reform Act continue to apply in relation
to a section 170MX award to which this Division applies, despite the
repeals and amendments made by the Workplace Relations Amendment (Work
Choices) Act 2005.
(2) Subclause (1) does not apply in
relation to the following provisions of the pre‑reform Act:
(a) section 170MN;
(b) subsections 170MZ(4) and (5);
(c) paragraph 170MZ(6)(b);
(d) subsections 170MZ(7) and (8).
26D
Continuing operation of section 170MX awards—under new provisions
Subject to this Schedule, the following
provisions of this Act apply in relation to a section 170MX award to which
this Division applies as if it were a workplace determination:
(a) Part 6;
(b) section 494;
(c) subsection 451(2);
(d) Part 14;
(e) Part 15.
26E
Interaction of section 170MX awards with other instruments
While a section 170MX award to
which this Division applies is in operation, it prevails over a transitional
award to the extent of any inconsistency.
41 Clause 30 of Schedule 7
Repeal the clause, substitute:
30
Relationships between pre‑reform agreements etc. and Australian Fair Pay
and Conditions Standard
(1) The Australian Fair Pay and Conditions
Standard does not apply to an employee in relation to a matter if the
employee’s employment is subject to any of the following instruments that deals
with that matter in relation to the employee:
(a) a pre‑reform certified
agreement;
(b) a pre‑reform AWA;
(c) a section 170MX award.
(2) In this clause:
matter
means a matter referred to in subsection 171(2).
Note: This means that if a pre‑reform
certified agreement, a pre‑reform AWA or a section 170MX award deals
with basic rates of pay and casual loadings, maximum ordinary hours of work,
annual leave, personal leave or parental leave and related entitlements in
respect of an employee, the Australian Fair Pay and Conditions Standard will
not apply to the employee in respect of that matter.
However, if a pre‑reform certified
agreement, a pre‑reform AWA or a section 170MX award does not deal
with basic rates of pay and casual loadings, maximum ordinary hours of work,
annual leave, personal leave or parental leave and related entitlements in
respect of an employee, the Australian Fair Pay and Conditions Standard will
apply to the employee in respect of that matter.
42 At the end of clause 35 of Schedule 7
Insert:
Note: Section 898 may also affect the terms and
conditions of employment of an employee in relation to whom a Victorian
reference certified agreement is in operation.
43 At the end of clause 36 of Schedule 7
Insert:
Note: Section 898 may also affect the terms and
conditions of employment of an employee in relation to whom a Victorian
reference Division 3 pre‑reform certified agreement is in operation.
44 At the end of clause 37 of Schedule 7
Insert:
Note: Section 898 may also affect the terms and
conditions of employment of an employee in relation to whom a Victorian
reference AWA is in operation.
45 Clause 15E of Schedule 8
Repeal the clause, substitute:
15E
Relationship between preserved State agreements and Australian Fair Pay and
Conditions Standard
(1) The Australian Fair Pay and Conditions
Standard does not apply to an employee in relation to a matter if the
employee’s employment is subject to a preserved State agreement that deals with
that matter in relation to the employee.
(2) In this clause:
matter means a matter referred to in
subsection 171(2).
Note: This means that if a preserved State agreement
deals with basic rates of pay and casual loadings, maximum ordinary hours of
work, annual leave, personal leave or parental leave and related entitlements
in respect of an employee, the Australian Fair Pay and Conditions Standard will
not apply to the employee in respect of that matter.
However, if a preserved State agreement
does not deal with basic rates of pay and casual loadings, maximum ordinary
hours of work, annual leave, personal leave or parental leave and related
entitlements in respect of an employee, the Australian Fair Pay and Conditions
Standard will apply to the employee in respect of that matter.
46 Clause 44 of Schedule 8
After “for a matter”, insert “in relation to an employee”.
47 Clause 44 of Schedule 8
After “also deals with that matter”, insert “in relation to the
employee”.
48 Paragraph 20(2)(b) of Schedule 9
Repeal the paragraph.
Workplace Relations Amendment (Work
Choices) Act 2005
49 Paragraph 5A(a) of Schedule 4
After “meaning of”, insert “paragraph 513(4)(b) of”.
50 At the end of item 5A of Schedule 4
Add “, to the extent that the term requires the payment of
redundancy pay within the meaning of paragraph 513(4)(b) of the amended Act”.
51 Application of items 4 and 5
The amendments made by items 4 and 5 of this Schedule apply
only in relation to waivers under section 338 of the Workplace
Relations Act 1996 made on or after the commencement of this item.
52 Application of item 7
(1) The amendment of the Workplace Relations Act
1996 made by item 7 of this Schedule applies, and is taken always to
have applied, on and from the reform commencement to an unlodged agreement,
within the meaning of paragraph 347(2A)(b) of the Workplace Relations Act 1996,
in relation to which a declaration was lodged on or after the reform
commencement.
(2) In this item:
reform commencement means the commencement of
Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005.
53 Application of items 8 and 9
The amendments made by items 8 and 9 apply only in relation
to waivers under section 371 of the Workplace Relations Act 1996
made on or after the commencement of this item.
54 Application of items 13 to 16
The amendments made by items 13 to 16 apply to a ballot in
respect of which a ballot order is made under section 462 of the Workplace
Relations Act 1996 on or after the commencement of this item.
55 Transitional provision—items 13 to 16
(1) This item applies to a ballot in respect of which a
ballot order was made under section 462 of the Workplace Relations Act
1996 before the commencement of this item if:
(a) the authorised ballot agent for
the ballot was the Australian Electoral Commission; and
(b) the Australian Electoral
Commission certifies that the ballot had not been completed at the commencement
of this item.
(2) After the commencement of this item,
section 483 of the Workplace Relations Act 1996 is taken to apply
to the incomplete ballot as if the ballot had been completed at the time of the
certification referred to in paragraph (1)(b), so far as section 483
relates to costs:
(a) incurred by the Australian
Electoral Commission; and
(b) in respect of which, had the
applicant been liable for the costs of the incomplete ballot, the applicant’s liability
would have been able to have been discharged under subsections 483(5) and (6).
(3) To avoid doubt, this item does not affect any
liability of the applicant in relation to the cost of holding the incomplete
ballot and, in particular, does not impose any additional liability upon the
applicant.
56 Application of items 25 and 26
(1) The amendments of the Workplace Relations Act
1996 made by items 25 and 26 of this Schedule apply, and are taken
always to have applied, on and from the reform commencement, in relation to a
transferring transitional employee.
(2) In this item:
reform commencement means the commencement of
Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005.
transferring transitional employee has the same
meaning as in clause 72H of Schedule 6 to the Workplace Relations
Act 1996.
57 Application of items 24, 29 and 34 to 40
(1) The amendments of the Workplace Relations Act
1996 made by items 24, 29 and 34 to 40 of this Schedule apply, and are
taken always to have applied, on and from the reform commencement, in relation
to a section 170MX award (within the meaning of the Workplace Relations
Act 1996).
(2) However, subitem (1) does not authorise the
imposition of a civil penalty under Part 14 of the Workplace Relations
Act 1996 for a breach that occurred before the commencement of this item.
(3) In this item:
reform commencement means the commencement of
Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005.
58 Application of
items 31 and 33
(1) The amendments of the Workplace Relations Act
1996 made by items 31 and 33 of this Schedule apply, and are taken
always to have applied, on and from the reform commencement, in relation to a
pre‑reform certified agreement, a preserved State agreement, a notional agreement
preserving State awards or a pre‑reform AWA that is in operation on the
reform commencement, whether or not the pre‑reform certified agreement,
the preserved State agreement, the notional agreement preserving State awards
or the pre‑reform AWA is in operation at the commencement of this item.
(2) However, subitem (1) does not authorise the
imposition of a civil penalty under Part 14 of the Workplace Relations
Act 1996 for a breach that occurred before the commencement of this item.
(3) In this item:
reform commencement means the commencement
of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act
2005.
59 Application of
items 41 and 45
(1) The amendments of the Workplace Relations Act
1996 made by items 41 and 45 of this Schedule apply, and are taken
always to have applied, on and from the reform commencement, in relation to an
employee (including, but not limited to, for the purposes of Division 7 of
Part 7 of that Act).
(2) However, subitem (1) does not authorise the
imposition of a civil penalty under Part 14 of the Workplace Relations
Act 1996 for a breach that occurred before the commencement of this item.
(3) In this item:
reform commencement means the commencement of
Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005.
60 Application of items 46 and 47
(1) The amendments of the Workplace Relations Act
1996 made by items 46 and 47 of this Schedule apply, and are taken
always to have applied, on and from the reform commencement, in relation to an
employee.
(2) However, subitem (1) does not authorise the
imposition of a civil penalty under Part 14 of the Workplace Relations
Act 1996 for a breach that occurred before the commencement of this item.
(3) In this item:
reform commencement means the commencement of Schedule 1
to the Workplace Relations Amendment (Work Choices) Act 2005.
61 Application of item 48
(1) The amendment of the Workplace Relations Act
1996 made by item 48 of this Schedule applies, and is taken always to
have applied, on and from the reform commencement, in relation to a
transferring employee.
(2) However, subitem (1) does not authorise the
imposition of a civil penalty under Part 14 of the Workplace Relations
Act 1996 for a breach that occurred before the commencement of this item.
(3) In this item:
reform commencement means the commencement of
Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005.
transferring employee has the same meaning as in
clause 20 of Schedule 9 to the Workplace Relations Act 1996.
62 Application of
items 49 and 50
(1) The amendments of the Workplace Relations
Amendment (Work Choices) Act 2005 made by items 49 and 50 of this
Schedule apply, and are taken always to have applied, on and from the reform
commencement, in relation to a pre‑reform award or a transitional award
within the meaning of the Workplace Relations Act 1996.
(2) In this item:
reform commencement means the commencement of
Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005.