Chapter 1 Preliminary
1.1 Name of Regulations [see Note 1]
These Regulations are the
Workplace Relations Regulations 2006.
1.2 Commencement [see Note 1]
These Regulations
commence on the commencement of Schedule 5 to the Workplace Relations
Amendment (Work Choices) Act 2005.
Note Schedule 5 renumbers the Workplace
Relations Act 1996 so that the amended Act is sequentially numbered from
section 1.
1.3 Definitions
In these Regulations, unless the contrary
intention appears:
Act:
(a) means the Workplace Relations Act 1996;
but
(b) does not include Schedule 1 to the Workplace
Relations Act 1996 or regulations made under that Schedule.
approved form means a form approved by the President for the purposes of
the provision in which the expression is used.
Form means a form set out in Schedule 1.
pre‑reform Act means the Act as in force just before the reform
commencement.
pre‑reform
Regulations means the Workplace
Relations Regulations 1996 as in force just before the reform commencement.
section 717 court means an eligible court
mentioned in section 717 of the Act.
Note Section
717 of the Workplace Relations Act 1996 contains the following
definition:
eligible court
means:
(a) the Court; or
(b) the Federal Magistrates Court; or
(c) a District, County or Local Court; or
(d) a magistrate’s court; or
(e) the Industrial Relations Court of South Australia; or
(f) any other State or Territory court that is prescribed
by the regulations.
transitional award has the meaning given by subclause 2 (1) of Schedule 6
to the Act.
transitional employee has the meaning given by subclause 2 (1) of
Schedule 6 to the Act.
Work Choices Act means the Workplace Relations Amendment (Work Choices)
Act 2005.
Workplace Relations
Minister means the Minister
administering Part 1 of the Workplace Relations Act 1996.
Note A number of words and expressions used in
these Regulations have the meanings given by section 4 of the Act, including reform
commencement.
1.4 Definition of employing authority in
subsection 4 (1) of the Act — prescribed persons and bodies
For the purposes of the
definition of employing authority in subsection 4 (1) of the
Act, each of the persons or bodies specified in column 3 of an item in Schedule
2 is prescribed as the employing authority in relation to the class of
employees specified in column 2 of that item.
1.5 Definition of public sector employment in
subsection 4 (1) of the Act — prescribed laws and persons
(1) For paragraph (g) of the definition
of public sector employment in subsection 4 (1) of the Act,
each of the following laws is prescribed:
(a) Naval Defence Act 1910;
(b) Supply and
Development Act 1939;
(c) Australian Federal Police Act 1979;
(d) Governor‑General Act 1974.
(2) For paragraph (h) of the definition of public
sector employment in subsection 4 (1) of the Act, each of the
following classes of persons is prescribed:
(a) members of the
Defence Force;
(b) members of the Police Force of the Northern
Territory;
(c) persons employed by, or in the service of:
(i) a
Commonwealth authority referred to in Schedule 3; or
(ii) a body
that is a subsidiary of a Commonwealth authority referred to in Schedule 3 in
which body the Commonwealth authority has a controlling interest;
(d) persons who hold an
office established under a law of the Commonwealth or of a Territory, other
than persons who, otherwise than in their capacity as the holder of such an
office, are employed or serve in a capacity described in paragraphs (a) to (g)
of that definition of public sector employment.
Example
An example of a person who would
fall within the exception to paragraph (d) is an APS employee who also
holds a part‑time statutory office, or who is granted leave without pay
from his or her APS employment in order to take up a full‑time statutory
office.
(3) For paragraph (i) of the
definition of public sector employment in subsection 4 (1)
of the Act, the Prisons (Correctional Services) Act 1980 of the Northern
Territory is prescribed.
1.6 Repeal of Workplace Relations Regulations
1996
The Workplace
Relations Regulations 1996 are repealed.
Chapter 2 General
regulations for the Workplace Relations Act 1996
Part 1 Preliminary
Division 1 Exclusion of persons insufficiently connected with Australia
1.1 Crew
members of commercial vessels
(1) For subsection 12 (1) of the Act, a provision
of the Act specified in an item of Table 1.1 does not apply to a person or
entity specified in the item.
Table 1.1
|
Item
|
These provisions …
|
do not apply to …
|
|
1
|
All provisions of the Act, other than:
(a) section 16; and
(b) any definition of general application in section 4,
or another provision, that relates to section 16
|
A person who:
(a) is a non‑citizen; and
(b) is a member of the crew performing duties on a
permit ship
|
|
2
|
All provisions of the Act, other than:
(a) section 16; and
(b) any definition of general application in section 4,
or another provision, that relates to section 16
|
A foreign corporation in the capacity as the employer of a
person who:
(a) is a non‑citizen; and
(b) is a member of the crew performing duties on a
permit ship
|
(2) In Table 1.1:
non‑citizen has the same meaning as in
the Migration Act 1958.
permit ship means a ship:
(a) to which a permit has been granted under
section 286 of the Navigation Act 1912 for a single voyage or as a
continuing permit; and
(b) for which the permit is in force.
Division 2 Act excludes some State and Territory laws
1.2 State
and Territory laws that are not excluded by the Act — general
(1) For paragraph 16 (2) (b) of the Act,
subsection 16 (1) of the Act does not apply to a law of a State or
Territory of a kind that is mentioned in this regulation.
Note Under subsection 16 (1) of the
Act, the Act is intended to apply to the exclusion of specified laws of a State
or Territory so far as they would otherwise apply in relation to an employee or
employer. The subsection lists the kinds of laws that are excluded.
However, subsection 16 (1) does not apply to a law of a
State or Territory so far as the law is prescribed by the regulations as a law
to which the subsection does not apply.
Rights and obligations — general
(2) Subsection 16 (1) does not apply to a law of a
State or Territory (including a law relating to appeals) to the extent to which
it relates to compliance with an obligation:
(a) under:
(i) that law; or
(ii) another law of a State or
Territory;
which would otherwise be excluded by
subsection 16 (1) of the Act; and
(b) in respect of an act or omission which
occurred prior to the reform commencement.
Rights and obligations — injunctions
(3) However, subregulation (2) does not apply to the
extent to which that law of a State or Territory, or another law, provides for
the granting of an injunction in relation to conduct that has not yet occurred.
Note The effect of subregulation (3) is
that subsection 16 (1) of the Act will apply to a law of a State or
Territory to the extent to which it deals with injunctions about rights or
obligations in relation to future conduct, and the Act will apply to the
exclusion of that law of the State or Territory.
Termination of employment
(4) Subsection 16 (1) does not apply to a law of a
State or Territory (including a law relating to appeals) to the extent to which
it relates to a termination of employment that occurred before the reform
commencement.
Unfair contracts
(5) Subsection 16 (1) does not apply to a law of a
State or Territory (including a law relating to appeals) to the extent to which
it:
(a) relates to proceedings that commenced before
the reform commencement; and
(b) provides for the variation or setting aside
of rights and obligations arising under:
(i) a contract of employment; or
(ii) another arrangement for
employment;
that a court or tribunal finds is unfair.
Succession, transmission or assignment of business
(6) Subsection 16 (1) does not apply to a law of a
State or Territory (including a law relating to appeals) to the extent to which
it relates to a succession, transmission or assignment of a business, or a part
of a business, that occurred before the reform commencement.
Training arrangements
(7) Subsection 16 (1) does not apply to a State or
Territory industrial law to the extent that the law provides a remedy that
arises from the suspension, cancellation or termination of a training contract
or agreement in circumstances that are contrary to a law of a State or
Territory relating to training arrangements.
Note Training arrangement is
defined in section 4 of the Act.
(8) However, subregulation (7)
does not apply to a State or Territory industrial law described in that
subregulation to the extent that it relates to the termination of employment
that may be harsh, unjust or unreasonable.
1.3 State
and Territory laws that are not excluded by the Act — specified laws
Industrial Relations Act 1999 of Queensland
For paragraph 16 (2) (b) of the Act:
(a) paragraph 73 (2) (f) of the Industrial
Relations Act 1999 of Queensland is prescribed to the extent to which that
paragraph provides a remedy for the dismissal of a person for the making by
anyone, or a belief that anyone has made or may make:
(i) a public interest disclosure under
the Whistleblowers Protection Act 1994 of Queensland; or
(ii) a complaint under the Health
Rights Commission Act 1991 of Queensland; and
(b) a provision of the Industrial Relations
Act 1999 of Queensland is prescribed to the extent to which the provision
facilitates or otherwise gives effect to paragraph 73 (2) (f);
and
(c) a provision of the Industrial Relations
Act 1999 of Queensland is prescribed to the extent to which the provision
facilitates or otherwise gives effect to section 174 of the Workplace
Health and Safety Act 1995 of Queensland.
1.4 Exclusion
of prescribed State and Territory laws
Contracts Review Act of New South Wales
(1) For subsection 16 (4) of the Act, the Contracts
Review Act 1980 of New South Wales is prescribed to the extent to
which that Act applies to:
(a) a contract that:
(i) involves an employer and an
employee; and
(ii) deals with their employment
relationship; and
(b) a matter that occurred after the reform
commencement.
Note Subsection 16 (4) of the Act
provides that the Act is intended to apply to the exclusion of a law of a State
or Territory that is prescribed by the regulations for the purposes of the
subsection.
(2) In subregulation (1):
employee has the meaning given by subsection
5 (1) of the Act.
employer has the meaning given by subsection
6 (1) of the Act.
Division 3 Awards, agreements and Commission orders prevail over State
and Territory law etc
1.5 Laws about training arrangements
(1) For subsection 17 (2) of the Act, the laws of a State or Territory set out in
this regulation are prescribed as laws to which awards and workplace agreements
are not subject.
Note Under subsection 17 (2) of the
Act, a term of an award or workplace agreement dealing with:
(a) occupational health and
safety; or
(b) workers compensation; or
(c) training arrangements; or
(d) a matter prescribed by the
regulations;
has effect subject to a law of a State
or Territory dealing with the matter, except a law that is prescribed by the
regulations as a law to which awards and workplace agreements are not subject.
Monetary allowances and benefits
(2) A law of a State or Territory is prescribed to the
extent to which it:
(a) relates to
training arrangements; and
(b) deals with, or allows arrangements to be
made for:
(i) remuneration,
including basic rates of pay; or
(ii) any
other payment of an amount of money to an employee.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Non‑monetary allowances and
benefits
(3) A law of a State or
Territory is prescribed to the extent to which it:
(a) relates to
training arrangements; and
(b) deals with, or allows arrangements to be made
for, an allowance or benefit that is not made available as money.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Example
The provision of uniforms, tools
or meals.
Leave
(4) A law of a State or Territory is prescribed to the
extent to which it:
(a) relates to training
arrangements; and
(b) deals with, or allows arrangements to be
made for:
(i) leave
(whether paid or unpaid); or
(ii) leave
loadings.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Example
The provision of:
(a) annual leave; or
(b) long service leave; or
(c) personal leave (including
sick leave and carer’s leave); or
(d) bereavement leave; or
(e) leave without pay.
Public holidays
(5) A law of a State or Territory is prescribed to the
extent to which it:
(a) relates to training
arrangements; and
(b) deals with, or
allows arrangements to be made for, the observance of:
(i) days
declared by or under a law of the State or Territory to be observed generally
within that State or Territory, or a region of that State or Territory, as
public holidays by employees who work in that State, Territory or region, and
entitlements of employees to payment in respect of those days; and
(ii) days to
be substituted for, or a procedure for substituting, days mentioned in
subparagraph (i).
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Hours of work
(6) A law of a State or Territory is prescribed to the
extent to which it:
(a) relates to
training arrangements; and
(b) deals with, or allows arrangements to be
made for:
(i) ordinary
time hours; or
(ii) the time
within which ordinary time hours are
performed; or
(iii) overtime
or additional hours; or
(iv) rest
breaks; or
(v) notice
periods; or
(vi) variations
to working hours; or
(vii) rostering
arrangements.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Types of employment
(7) A law of a State or Territory is prescribed to the
extent to which it:
(a) relates to
training arrangements; and
(b) deals with, or allows arrangements to be made
for, types of employment.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Examples
Full‑time employment,
casual employment, regular part‑time employment and shift work.
Probationary employment
(8) A law of a State or Territory is prescribed to the
extent to which it:
(a) relates to
training arrangements; and
(b) deals with, or allows arrangements to be made
for, probationary employment.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Termination of employment
(9) A law of a State or Territory:
(a) is prescribed to the extent to which it
relates to training arrangements and deals with, or allows arrangements to be
made for:
(i) the way
in which employment is terminated; or
(ii) the
entitlements that may apply if employment is terminated; or
(iii) the
remedies available to a person whose employment is terminated; but
(b) is not prescribed to the extent to which:
(i) it deals
with, or allows arrangements to be made for, the termination of a training
contract or a training agreement by a State or Territory training authority;
and
(ii) it
provides a remedy that arises from that termination of the training contract or
training agreement otherwise than by the State or Territory training authority.
Note State or Territory training
authority is defined in section 4 of the Act.
Stand down
(10) A law of a State or Territory is prescribed to the
extent to which it:
(a) relates to
training arrangements; and
(b) deals with, or allows arrangements to be made
for, the standing down of employees.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Jury service
(11) A law of a State or
Territory is prescribed to the extent to which it:
(a) relates to
training arrangements; and
(b) deals with, or allows arrangements to be made
for, jury service.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Superannuation
(12) A law of a State or Territory is prescribed to the
extent to which it:
(a) relates to
training arrangements; and
(b) deals with, or allows arrangements to be made
for, superannuation.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Dispute resolution
(13) A law of a State or Territory:
(a) is prescribed to the extent to which it:
(i) relates
to training arrangements; and
(ii) deals
with, or allows arrangements to be made for, dispute resolution and dispute
resolution processes; but
(b) is not prescribed
to the extent to which it deals with, or allows arrangements to be made for,
dispute resolution processes about matters arising under a training contract or
a training agreement.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Training qualifications
(14) A law of a State or Territory:
(a) is prescribed to the extent to which it:
(i) relates
to training arrangements; and
(ii) deals
with, or allows arrangements to be made for, the performance, conduct and
discipline of an employee; but
(b) is
not prescribed to the extent to which it deals with, or allows arrangements to
be made for, the award of training qualifications.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Outworkers
(15) A law of a State or Territory is prescribed to the
extent to which it:
(a) relates to
training arrangements; and
(b) deals with, or allows arrangements to be made
for, the conditions (other than pay) of an outworker.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
Other conditions
(16) A law of a State or Territory is prescribed to the
extent to which it:
(a) deals with any
matter that could be included in an award; and
(b) deals with, or allows arrangements to be made
for, any term or condition of employment not mentioned in subregulations (2) to
(15) in relation to a training arrangement.
Note Training arrangement is
defined in subsection 4 (1) of the Act.
1.6 Laws
about prevailing awards, agreements and Commission orders
(1) For paragraph 17 (2) (d) of the Act, the
following matters are prescribed:
(a) child labour;
(b) discrimination;
(c) EEO.
(2) For subsection
17 (2) of the Act, the following laws are prescribed as laws to which
awards and workplace agreements are not subject:
(a) a State or Territory industrial law to the
extent to which it relates to the prevention of discrimination;
(b) a State or Territory industrial law to the
extent to which it relates to the promotion of EEO.
Note Under subsection 17 (2) of the
Act, a term of an award or workplace agreement dealing with:
(a) occupational health and
safety; or
(b) workers compensation; or
(c) training arrangements; or
(d) a matter prescribed by the
regulations;
has effect subject to a law of a State
or Territory dealing with the matter, except a law that is prescribed by the
regulations as a law to which awards and workplace agreements are not subject.
Part 3 Australian Industrial Relations Commission
Division 1 Establishment
of Commission
3.1 Prescribed State industrial authorities —
section 67 and subsections 71 (2) and 696 (1), (2) and (5)
of the Act
For the purposes of section 67 and subsections
71 (2) and 696 (1), (2) and (5) of the Act, each of the
following State industrial authorities is prescribed:
(a) the Industrial
Relations Commission of New South Wales;
(b) the Queensland Industrial Relations
Commission;
(c) the Western Australian Industrial Relations
Commission;
(d) the Industrial Relations Commission of South
Australia;
(e) the Tasmanian Industrial Commission.
3.2 Prescribed tribunals — subsections
69 (1), 69 (2) and 79 (5) of the Act
For the purposes of subsections 69 (1),
69 (2) and 79 (5) of the Act:
(a) each of the following tribunals is a
prescribed Commonwealth tribunal:
(i) Defence
Force Remuneration Tribunal;
(ii) Pharmaceutical
Benefits Remuneration Tribunal;
(iii) Administrative
Appeals Tribunal;
(iv) Security
Appeals Tribunal;
(v) National
Native Title Tribunal; and
(b) each of the following tribunals is a
prescribed Territory tribunal:
(i) the
Industrial Appeals Tribunal established by the Industrial Relations
Ordinance 1976 of the Territory of Christmas Island;
(ii) the
Prison Officers Arbitral Tribunal established by the Prisons (Arbitral
Tribunal) Act of the Northern Territory;
(iii) the
Police Arbitral Tribunal established by the Police Administration Act of the
Northern Territory.
Division 3 Representation
and intervention
3.3 Representation of employing authorities before
the Commission or Court
For the purposes of subsections 100 (5) and
854 (4) of the Act, each of the following persons is a prescribed person
in relation to an employing authority:
(a) if the employing
authority in relation to a class of persons specified in column 2 of item 1 in
Schedule 2 is the Minister administering the enactment by or under which the
Commonwealth authority employing persons in that class was established — a
person who is an officer or employee of that Commonwealth authority;
(b) if the employing authority in relation to a
class of persons specified in column 2 of item 1 in Schedule 2 is the principal
executive officer of the Commonwealth authority employing persons in that
class — a person who is:
(i) an
officer or employee of that Commonwealth authority; or
(ii) an APS
employee or Parliamentary Service employee;
(c) if the employing
authority in relation to a class of persons specified in column 2 of item 1 in
Schedule 2 is the Workplace Relations Minister — an APS employee or
Parliamentary Service employee;
(d) if the employing authority in relation to a
class of persons specified in column 2 of item 2 in Schedule 2 is the principal
executive officer of the Commonwealth authority employing persons in that
class — a person who is an officer or employee of that Commonwealth
authority;
(e) if:
(i) the employing authority in
relation to a class of persons specified in column 2 of item 2 in
Schedule 2 is the principal executive officer of the Commonwealth
authority employing persons in that class; and
(ii) that Commonwealth authority
consents to being represented by an APS employee or Parliamentary Service
employee;
a person who is an
officer of the Australian Public Service;
(f) if the employing authority in relation to a
class of persons specified in column 2 of item 2 in Schedule 2 is the Minister
administering the enactment by or under which the Commonwealth authority
employing persons in that class was established — an officer or employee
of that Commonwealth authority;
(g) if:
(i) the
employing authority in relation to a class of persons is a Minister of the
Northern Territory and the persons included in that class are employed by a
Northern Territory authority; or
(ii) the
employing authority is a Northern Territory authority (being a body corporate
of the kind referred to in paragraph (a) of the definition of Northern
Territory authority in subsection 4 (1) of the Act); or
(iii) the
employing authority is the principal executive officer of a Northern Territory
authority (being a body corporate of the kind referred to in paragraph (b)
of the definition of Northern Territory authority in subsection
4 (1) of the Act);
a person who is:
(iv) an
officer or employee of the Northern Territory authority; or
(v) an
officer or employee of the Public Service Commissioner for the Northern
Territory;
(h) if:
(i) the
employing authority in relation to a class of persons is a Minister of the
Northern Territory and the persons included in that class are employed by the
Northern Territory; or
(ii) the
employing authority is the Public Service Commissioner for the Northern
Territory;
a person who is
an officer or employee of the Public Service Commissioner for the Northern
Territory;
(i) if the employing authority in relation to
a class of persons specified in column 2 of item 14 in Schedule 2 is:
(i) the
Minister administering the Australian Federal Police Act 1979; or
(ii) the Commissioner
within the meaning of that Act;
a person who is:
(iii) an
officer appointed under section 25 or 26 of that Act; or
(iv) an APS
employee or Parliamentary Service employee;
(j) if the employing
authority for staff employed under the Legislative Assembly (Members’ Staff)
Act 1989 of the Australian Capital Territory is the Chief Minister for that
Territory — an officer or employee within the meaning of the Public
Sector Management Act 1994 of the Territory (the ACTPS Act);
(k) if the employing authority for officers and
employees within the meaning of the ACTPS Act (ACTPS staff) of a
government agency, or an autonomous instrumentality, within the meaning of that
Act, is:
(i) the
Chief Minister for the Australian Capital Territory; or
(ii) the Minister
within the meaning of the Australian Capital Territory (Self‑Government)
Act 1988 (the Self‑Government Act) who administers the
government agency or the Act under which the autonomous instrumentality is
established; or
(iii) the
Minister, within the meaning of that Act, who is responsible for exercising the
power of the Australian Capital Territory Executive in relation to industrial
relations (the ACT industrial relations Minister);
an officer or
employee within the meaning of the ACTPS Act;
(l) if the employing authority for staff of a
body corporate (except a Territory instrumentality within the meaning of the
ACTPS Act) that is incorporated under a law of the Australian Capital Territory
(an ACT law), and in which the Territory has a controlling
interest, is the principal executive officer (however described) of the body
corporate or the ACT industrial relations Minister:
(i) a member
of the staff of the body corporate; or
(ii) an
officer or employee within the meaning of the ACTPS Act;
(m) if the employing authority for ACTPS staff
is the Chief Executive Officer of Calvary Hospital A.C.T. Incorporated, the
Minister (within the meaning of the Self‑Government Act) who is
responsible for exercising the power of the Australian Capital Territory Executive
in relation to public health or the ACT industrial relations Minister:
(i) a member
of the staff of Calvary Hospital A.C.T. Incorporated; or
(ii) an
officer or employee within the meaning of the ACTPS Act;
(n) if the employing authority for staff of a
body corporate, or an authority, that is established by or under an ACT law, and
to which paragraph (j), (k), (l) or (m) does not apply, is the principal
executive officer (however described) of the body or authority, the Minister
administering the ACT law or the ACT industrial relations Minister:
(i) a member
of the staff of the body corporate or authority; or
(ii) an
officer or employee within the meaning of the ACTPS Act;
(o) in the case of any
other employing authority — an APS employee or Parliamentary Service
employee.
3.4 Representation of certain persons by
unregistered associations
(1) If a party to a proceeding
before the Commission is an employer who is a member of an association of
employers, being an association that is not registered under the Act, the party
may be represented by an officer or employee of that association.
(2) If a party to a proceeding
before the Commission is an employee who is a member of the Australian
International Flight Engineers’ Association, being an association that is not
registered under the Act, the party may be represented by an officer or
employee of that Association.
Division 4 General
matters relating to the powers and procedures of the Commission
3.5 Compulsory conferences
(1) Subject to subregulation (2), a person directed to
attend a compulsory conference under section 115 of the Act must be paid by the
Commonwealth:
(a) such allowances as the Minister determines;
and
(b) the amount of any salary, wages or other
earnings actually lost by the person during the time spent in travelling and
attending the conference; and
(c) the amount of any travelling expenses
actually and properly incurred by the person.
(2) A payment must not be made under subregulation (1)
unless certified by a Registrar.
3.6 Power to override certain laws affecting public
sector employment
For paragraph (b) of
the definition of relevant law in subsection 116 (2) of the
Act, the following laws are prescribed:
(a) Superannuation (Productivity Benefit) Act
1988;
(b) Prisons (Arbitral Tribunal) Act of the
Northern Territory;
(c) Police Administration Act of the Northern
Territory.
Division 6 Miscellaneous
3.7 President must provide certain information etc
to the Minister
(1) For subsections 125 (1) and (2) of the Act:
(a) information, or
copies of documents, of the kind mentioned in an item of Part 1 of Schedule 4
must be given to the Minister by the time mentioned in the item; and
(b) the information, and the copies of
documents, may be given to the Minister:
(i) in paper form; or
(ii) in electronic form, in accordance
with any particular information technology requirements notified to the
President by the Secretary.
(2) Paragraph (1) (b) does not prevent the
President from including other relevant information with information given to
the Minister in electronic form.
Note Information prescribed in Schedule 4
is minimum information only.
(3) For subsection 125 (2) of the Act:
(a) copies of documents that are given to the
Minister in paper form must be posted to the address notified to the President
by the Secretary for this paragraph; and
(b) information, and copies of documents, that
are given to the Minister in electronic form must be sent to the e‑mail
address notified to the President by the Secretary for this paragraph; and
(c) the President must ensure that:
(i) all copies of documents that are
to be given to the Minister in paper form during a week are given at the same
time in that week; and
(ii) all information, or copies of
documents, of a particular kind that are to be given to the Minister in
electronic form during a week are given at the same time in that week.
3.8 Power of Commission to waive procedural
requirements and effect of non‑compliance
(1) Subject to the Act, the Commission may:
(a) in relation to any proceeding before the
Commission; and
(b) in special circumstances; and
(c) absolutely or subject to conditions;
exempt a person from compliance with any procedural requirement of
these Regulations.
(2) Subject to the Act, non‑compliance with any of
these Regulations does not render void any proceedings before a Commission.
(3) However, for subregulation (2), the proceedings may
be:
(a) set aside, either wholly or in part, as
irregular; or
(b) amended; or
(c) otherwise dealt with in such manner and upon
such terms as the Commission thinks fit.
Part 4 Australian Industrial Registry
4.1 Office hours
(1) Each registry of the Industrial Registry must be
open on ordinary working days between the hours of 9 am and 5 pm.
(2) If:
(a) an act is to be done at a registry; and
(b) the time for doing the act expires on a day
on which that registry is not open; and
(c) for that reason that act cannot be done on
that day;
that act is taken to have been done within that time if it is done
on the next day on which the registry is open.
(3) If:
(a) a proceeding is to be taken at a registry;
and
(b) the time for taking the proceeding expires on
a day on which that registry is not open; and
(c) for that reason the proceeding cannot be
taken, on that day;
the proceeding is taken to have been taken within that time if it
is taken on the next day on which the registry is open.
4.2 Lodgment of documents in Industrial Registry
A document that is required under Part 15 of the
Act or Part 15 of these Regulations to be lodged in the Industrial
Registry may be lodged by:
(a) leaving it with a Registrar; or
(b) properly addressing, prepaying and posting
the document; or
(c) electronic means prescribed by
Rules of the Commission made under section 124 of the Act; or
(d) another means authorised in writing by the
Commission.
4.3 Endorsement of documents
(1) A document that is lodged in connection with a
matter before a Registrar must be endorsed with:
(a) the name of the party lodging it; and
(b) the party’s address for service.
(2) However, subregulation (1) does not apply if other
arrangements are required by:
(a) a form prescribed under the Act or these
Regulations; or
(b) regulations made under the Act; or
(c) Rules of the Commission made under section
124 of the Act.
4.4 Inspection of documents
(1) A document lodged in the Industrial Registry under
Part 15 of the Act or under Part 15 of these Regulations may be inspected, upon
giving reasonable notice, at a registry during the hours of opening mentioned
in subregulation 4.1 (1).
(2) A person may, on application, obtain an office copy
or a certified copy of the document.
4.5 Power to waive procedural requirements and
effect of non‑compliance
(1) Subject to the Act, a Registrar may:
(a) in relation to any proceeding before the
Registrar; and
(b) in special circumstances; and
(c) absolutely or subject to conditions;
exempt a person from compliance with any procedural requirement of
these Regulations.
(2) Subject to the Act, non‑compliance with any of
these Regulations does not render void any proceedings before a Registrar.
(3) However, for subregulation (2), the proceedings may
be:
(a) set aside, either wholly or in part, as
irregular; or
(b) amended; or
(c) otherwise dealt with in such manner and upon
such terms as the Registrar thinks fit.
4.6 Use of previous evidence
(1) Subject to subregulations (2) and (3), any evidence
given (whether orally, by statutory declaration or otherwise) in the course of
proceedings before the Court, the Commission or a Registrar (in this regulation
called the first proceedings) may, in the discretion of a
Registrar and subject to such terms and conditions as he or she determines, be
used in any subsequent proceedings before that Registrar.
(2) A person who is a party to subsequent proceedings
referred to in subregulation (1) may object to the use in those proceedings of
any evidence given in the course of the first proceedings if the person was not
a party to those first proceedings.
(3) The Registrar, in exercising his or her discretion
under subregulation (1) and in determining under that subregulation the terms
and conditions, if any, to which the use of such evidence is subject, must have
regard to any objection made by a person under subregulation (2).
(4) If evidence has been given orally, this regulation
does not authorise its use in subsequent proceedings before a Registrar unless:
(a) a written record of the evidence is
available for the use of the Registrar; and
(b) the Registrar is satisfied that that record
is a true record of the evidence.
4.7 Recovery of cost of providing copies of
documents
(1) This regulation applies if a Registrar provides a
copy or copies of a document to a person (whether in the form of photocopies,
facsimile transmissions, electronic data, printed documents or otherwise).
(2) The person must pay to the Registrar in advance an
amount that:
(a) the Registrar requires to be paid in
relation to a copy or copies in the form provided; and
(b) the Registrar has determined, on reasonable
grounds, to be equal to the costs that will be incurred by the Registry in
providing a copy or copies in a particular form.
4.8 Custody and use of seals of the Industrial
Registry
The seal mentioned in subsection 131 (1) of
the Act, and the duplicate of the seal kept at each registry in accordance with
subsection 131 (2) of the Act:
(a) must be kept in custody in the way that the
Industrial Registrar directs; and
(b) must be used in accordance with the
directions of the Industrial Registrar.
4.9 General powers of Registrar
(1) For the purpose of giving effect to the Act, the
Registrar may, in relation to any application or proceeding with which the
Registrar is authorised to deal:
(a) require a person, by summons served on the
person, to appear before the Registrar:
(i) to give evidence; and
(ii) to produce such books, documents
or things as are referred to in the summons for inspection by the Registrar or
by such party as the Registrar determines;
(b) take evidence on oath; and
(c) adjourn any matter or hearing; and
(d) amend or give leave to amend any application,
notice or other document; and
(e) extend the time fixed by these Regulations
for the lodging of any document or the doing of any act (whether that time has
expired or not); and
(f) give directions to any party in relation to
the service of documents and the manner of service of documents; and
(g) order any party to pay any other party such
reasonable sum for costs as he or she thinks just.
(2) A person must not refuse or fail to comply with a
summons served on him or her for the purposes of paragraph (1) (a).
(3) Strict liability applies to the physical elements in
subregulation (2).
Note For strict liability,
see section 6.1 of the Criminal Code.
(4) If a power is exercised under subregulation (1) on
the application of a party, it may be exercised on such terms, as to payment of
fees and costs and otherwise, as the Registrar thinks just.
(5) Subregulation (2) is
a civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
4.10 Signing of documents etc on behalf of persons,
organisations etc
(1) This regulation applies if:
(a) a document is required by the Act or these
Regulations to be taken out, made or signed; or
(b) a document may, under the Act or these
Regulations, be taken out, made or signed; or
(c) a step is required to be taken, or may be
taken by any person, organisation, branch, company or committee of management;
in relation to any
application or proceeding with which the Registrar is authorised
to deal.
(2) Subject to the Act, the document may be taken out,
made or signed, or the step taken, on behalf of that person, organisation,
branch, company or committee of management:
(a) in the case of a person — by that
person or by any other person authorised by him in writing; and
(b) in the case of an organisation or
branch — by a person authorised by, or in accordance with the rules of,
the organisation or branch; and
(c) in the case of a company not being an
organisation — by an officer or person duly authorised under the seal of
the company to represent it under the Act, or in the proceedings; and
(d) in the case of a committee of management of
an organisation or branch — by a person authorised by the committee.
4.11 Application of the Criminal Code to civil
remedy provisions
Unless the contrary
intention appears in the Act or these Regulations, Chapter 2 of the Criminal
Code (other than section 13.2 and Part 2.7) applies to civil remedy
provisions in this Part as if those provisions were offences.
Part 5 Workplace Authority Director
Division 2 Remuneration
and allowances of Workplace Authority Director
5.2 Remuneration
and allowances
For subsection 151B (2) of the Act, the Workplace
Authority Director is to be paid the allowances payable to an SES employee
(within the meaning given by section 34 of the Public Service Act 1999).
Division 3 Disclosure of identity of parties to ITEA
5.3 Identity
of parties to ITEA not to be disclosed — exception relating to analyses
and reports
(1) For subsection 164A (5) of the Act, a disclosure by
a person (the entrusted person) to an authorised person of
protected information that the entrusted person knows, or has reasonable
grounds to believe, will identify another person as being, or having been, a
party to an ITEA is permitted if the disclosure of the protected information is
for the purpose of:
(a) providing analyses
of trends in agreement making; or
(b) preparing reports on enterprise bargaining
for the purposes of section 844 of the Act.
(2) In subregulation (1):
authorised person
means:
(a) for paragraph (1) (a):
(i) the Workplace
Authority Director; or
(ii) a person
authorised in writing by the Workplace Authority Director; and
(b) for paragraph (1) (b):
(i) the Workplace
Authority Director; or
(ii) a person
authorised in writing by the Workplace Authority Director; or
(iii) a
person authorised in writing by the Minister.
protected information has the same meaning as in subsection 165 (2) of
the Act.
Division 4 Disclosure of information by workplace agreement official
5.6 Disclosure of information by workplace agreement
official
(1) For subsection 164A (5) and paragraph 165 (1) (e)
of the Act:
(a) a workplace agreement official is
prescribed; and
(b) the workplace agreement official may disclose
information prescribed in subregulation (3) to a person prescribed
in subregulation (2) for a purpose prescribed in subregulation (4).
(2) The persons are:
(a) a Minister; or
(b) the Secretary; or
(c) an SES employee or
an APS employee performing duties in the Department.
(3) The information is:
(a) information that is:
(i) acquired by the workplace
agreement official in the course of exercising powers, or performing functions,
as a workplace agreement official; and
(ii) relevant to a purpose in paragraph
(4) (a); and
(b) information that has previously been
disclosed to the public other than information that has been disclosed to the
public in contravention of the Act or regulations made under the Act; and
(c) information relating to a proceeding
initiated by a workplace inspector.
(4) The purposes are:
(a) the purpose of briefing a Minister, or
considering briefing a Minister:
(i) to assist the Minister:
(A) to
consider a complaint or issue raised with the Minister by or on behalf of a
person (in writing or orally); and
(B) to
respond to the person in relation to the complaint or issue; or
(ii) in
relation to a meeting or other event that the Minister is to attend; or
(iii) for an issue that has been raised
publicly, or is proposed to be raised publicly, by or on behalf of the person
to whom the information of a kind mentioned in paragraph (3) (a) relates —
to assist the Minister to respond to the issue; or
(iv) in relation
to an error or delay on the part of the Workplace Authority; or
(v) in relation to an instance of an
anomalous or unusual operation of:
(A) Commonwealth workplace
relations legislation; or
(B) the Building and
Construction Industry Improvement Act 2005; or
(C) Schedule 1 to the Act;
and
(b) for information mentioned
in paragraphs (3) (b) or (3) (c) — to provide information
to the person
(i) about a matter that has previously
been disclosed to the public; or
(ii) about a proceeding initiated by a workplace inspector.
(5) In this regulation:
APS employee has the same meaning as in the Public Service Act 1999.
Minister means:
(a) a Minister of
State administering any part of Commonwealth workplace relations legislation;
or
(b) the Prime Minister.
SES employee has the same meaning as in the Public Service Act 1999.
Note Under subsection 164A (7) of
the Act, a workplace agreement official is not authorised to disclose to the
Minister information relating to a decision under Division 5A of Part 8 of the
Act about whether a particular workplace agreement passes the no‑disadvantage
test.
Part 6 Workplace
inspectors
Note Transitional provisions relating to workplace
inspectors are located in Division 13 of Part 2 of Chapter 7.
6.1 Period of appointment
(1) For subsection 167 (3) of the
Act, a person appointed as a workplace inspector under paragraph
167 (2) (a) of the Act is appointed for the period of 2 years.
Note Paragraph 167 (2) (a) of
the Act relates to the appointment as a workplace inspector of a person who has
been appointed, or who is employed, by the Commonwealth.
(2) For subsection 167 (4) of the
Act, the maximum period for which a person may be appointed as a workplace
inspector under paragraph 167 (2) (b) of the Act is 2 years.
Note Paragraph 167 (2) (b) of
the Act relates to the appointment as a workplace inspector of a person who has
not been appointed, and who is not employed, by the Commonwealth.
6.2 Advice about rights and obligations
(1) This regulation applies if:
(a) a workplace inspector exercises his or her
powers, or performs his or her functions, under the Act or these Regulations;
and
(b) the workplace inspector:
(i) is requested by an employer, an
employee or another party to whom any of the following relates to advise that
employer, employee or party of his or her rights and obligations:
(A) an award;
(B) the Australian Fair Pay
and Conditions Standard;
(C) a workplace agreement;
(D) a workplace
determination;
(E) an undertaking about
post‑termination conditions;
(EA) an
instrument given effect to by the Act;
(F) an order of the
Australian Industrial Relations Commission;
(G) the Act;
(H) regulations made under
the Act; or
(ii) considers it necessary or
appropriate to give advice of that kind to an employer, employee or other
party.
(2) The inspector:
(a) is authorised to give the advice; and
(b) must, to the extent necessary, explain:
(i) the employer’s or employee’s
rights; and
(ii) the manner in which the award,
agreement or other matter is to be observed.
6.3 Notification
of failure to observe requirements
(1) This regulation applies if a workplace inspector is
satisfied that a person has failed to observe a requirement imposed by or for
any of the following:
(a) an award;
(b) the Australian Fair Pay and Conditions
Standard;
(c) a workplace agreement;
(d) a workplace determination;
(e) an undertaking about post‑termination
conditions;
(ea) an instrument given
effect to by the Act;
(f) an order of the Australian Industrial
Relations Commission;
(g) the Act;
(h) regulations made under the Act.
(2) The workplace inspector may, by notice in writing:
(a) inform the person of the failure; and
(b) require the person to take the action
specified in the notice, within the period specified in the notice, to rectify
the failure; and
(c) require the person to notify the workplace
inspector in accordance with the notice of any action taken to comply with the
notice; and
(d) advise the person of the consequences of
failure to comply with the notice.
6.4 Investigating
alleged breach of section 34 of the Independent Contractors Act 2006
For subsection 167 (5) of the Act, it is a
function of a workplace inspector to investigate an alleged breach of
section 34 of the Independent Contractors Act 2006.
Note Section 34 of the Independent
Contractors Act 2006 prohibits certain coercive conduct in relation to
reform opt‑in agreements which may be entered into by parties to services
contracts under the transitional provisions of that Act.
6.5 Taking of samples
For the purposes of subparagraph 169 (2) (b) (ii)
of the Act, a workplace inspector may take a sample of any goods or substance
after informing:
(a) the owner; or
(b) another person in charge of the goods or
substances; or
(c) a representative of the owner or other
person;
of the inspector’s intention to do so.
6.6 Disclosure of information by Workplace Ombudsman
(1) For paragraph 165 (1) (e)
and subsection 166U (3) of the Act:
(a) a member of the Office of the Workplace
Ombudsman is prescribed; and
(b) the member of the Office of the Workplace
Ombudsman may disclose information prescribed in subregulation (3) to a person
prescribed in subregulation (2) for a purpose prescribed in subregulation (4).
(2) The persons are:
(a) a
Minister; or
(b) the Secretary; or
(c) an SES employee or an APS employee
performing duties in the Department.
(3) The information is:
(a) information that is:
(i) acquired by the member in the
course of exercising powers, or performing functions, as a member of the Office
of the Workplace Ombudsman; and
(ii) relevant to a purpose in paragraph
(4) (a); and
(b) information that has previously been
disclosed to the public other than information that has been disclosed to the
public in contravention of the Act or regulations made under the Act; and
(c) information relating to a proceeding
initiated by a workplace inspector.
(4) The purposes are:
(a) the purpose of briefing a Minister, or
considering briefing a Minister:
(i) to assist the Minister:
(A) to
consider a complaint or issue raised with the Minister by or on behalf of a
person (in writing or orally); and
(B) to
respond to the person in relation to the complaint or issue; or
(ii) in
relation to a meeting or other event that the Minister is to attend; or
(iii) for an
issue that has been raised publicly, or is proposed to be raised publicly, by
or on behalf of the person to whom the information of a kind mentioned in paragraph (3) (a)
relates — to assist the Minister to respond to the issue; or
(iv) in relation
to an error or delay on the part of the Office of the Workplace Ombudsman; or
(v) in relation to an instance of an
anomalous or unusual operation of:
(A) Commonwealth workplace
relations legislation; or
(B) the Building and
Construction Industry Improvement Act 2005; or
(C) Schedule 1 to the Act;
and
(b) for information mentioned
in paragraphs (3) (b) or (3) (c) — to provide information
to the person
(i) about a matter that has previously
been disclosed to the public; or
(ii) about a proceeding initiated by a workplace inspector.
(5) In this regulation:
APS employee has the same meaning as in the Public Service Act 1999.
Minister means:
(a) a Minister of
State administering any part of Commonwealth workplace relations legislation;
or
(b) the Prime Minister.
SES employee has the same meaning as in the Public Service Act 1999.
Part 7 The
Australian Fair Pay and Conditions Standard
Division 1 Preliminary
7.1 Operation
of the Australian Fair Pay and Conditions Standard — provision of more
favourable outcome
(1) For subsection 172 (4) of the Act, this
regulation explains:
(a) what a particular respect is or is not for
the purposes of subsection 172 (2) or (3) of the Act; and
(b) the circumstances in which the Australian
Fair Pay and Conditions Standard provides or does not provide a more favourable
outcome in the particular respect.
Note Under subsection 172 (2) of the
Act, the Australian Fair Pay and Conditions Standard prevails over a workplace
agreement or a contract of employment that operates in relation to an employee
to the extent to which, in a particular respect, the Australian Fair Pay and
Conditions Standard provides a more favourable outcome for the employee.
Subsection 172 (3) of the Act makes further provision in this matter.
Subsection 172 (4) of the Act authorises the regulations to
explain:
(a) what a particular respect is or is not for the purposes
of subsection (2) or (3); or
(b) the circumstances in which the Australian Fair Pay and
Conditions Standard provides or does not provide a more favourable outcome in a
particular respect.
Wages
(2) Each of the following is a particular respect:
(a) the guaranteed basic periodic rate of pay;
(b) the guaranteed basic piece rate of pay.
(3) The Standard does not
provide a more favourable outcome in the respect mentioned in subregulation (2)
if:
(a) a workplace
agreement or a written contract of employment which binds the employee provides
for a period within which the guarantee of basic rates of pay in Subdivision B
of Division 2 of Part 7 of the Act may be satisfied; and
(b) the period does not exceed 12 months.
Note This regulation does not affect the
operation of section 189 of the Act.
Example 1 — seasonal employees
An employee works in an industry in which there are
significant seasonal fluctuations in work demands. As a result, the employee is
required to work more hours during peak season and fewer in the off season in a
12 month period. However, under the employee’s workplace agreement the employee
is paid the same amount each pay period despite the fluctuations.
If, over the 12 month period, the employee is paid on
average at least the guaranteed basic rate of pay, and the employer and
employee have agreed, in writing, that the wages guarantee will be complied
with over a 12 month period, the Standard will not be more favourable.
Example 2 — employees on commission
An employer and employee, a salesperson, agree that the
employee will be paid by commission (eg percentage of sales), rather than by
weekly pay, even though the employee is guaranteed a basic hourly rate of pay
under the wage guarantee in section 182 of the Act.
They agree in writing that the employee’s wage guarantee
will be satisfied at the end of every quarter.
·
If the employee’s commission earnings over a particular quarter
are greater than the guaranteed amount under the employee’s wage guarantee for
the same quarter, no further amount is payable. The Standard will not be more
favourable.
·
If the employee’s commission earnings over a particular quarter
fall below the amount guaranteed for the same quarter, the employer must make
up any shortfall at the end of the quarter. Otherwise, the Standard will
be more favourable and the employee’s wage guarantee will not have been
satisfied.
The agreement under subregulation 7.1 (3) does
not change the obligation to pay the guaranteed basic rate of pay for each hour
worked.
(4) The Standard does not provide a more favourable
outcome in the respect mentioned in subregulation (2) if:
(a) a provision in a workplace agreement or written
contract of employment binding the employee and the employer provides for the
employer to pay an amount in respect of the employee under a salary sacrifice
arrangement; and
(b) the employee gives the employer a written
election, separate to the workplace agreement or contract of employment, for a
salary sacrifice arrangement; and
(c) the guarantee of basic rates of pay in
Subdivision B of Division 2 of Part 7 of the Act would be satisfied if the
payment were instead paid to the employee.
(5) The Standard does not provide a more favourable
outcome in the respect mentioned in subregulation (2) if:
(a) a law, or a workplace agreement or a written
contract of employment which binds the employee, provides for the employer to
make a deduction from the employee’s remuneration for the purpose of recovering
a previous overpayment of remuneration; and
(b) the guarantee of basic rates of pay in
Subdivision B of Division 2 of Part 7 of the Act would be satisfied if the
amount were instead paid to the employee.
(5A) The Standard provides a more favourable outcome in
the respect mentioned in subregulation (2) if:
(a) a workplace agreement or contract of
employment which binds the employee (whether the contract is in writing or not)
allows for the imposition of a penalty on an employee; and
(b) a consequence of the imposition of the
penalty is that the employee’s guaranteed basic rates of pay in Subdivision B
of Division 2 of Part 7 of the Act would not be satisfied.
Leave
(6) Each of the following is a particular respect:
(a) paid annual leave;
(b) paid sick leave;
(c) paid carer’s leave;
(d) unpaid carer’s leave;
(da) paid personal/carer’s leave (but only to the
extent to which it is a particular respect for the purposes of subregulations
(11C) and (11G));
(e) paid compassionate leave;
(f) special maternity leave;
(g) ordinary maternity leave;
(h) the paid leave provided for in section 268
of the Act;
(i) long paternity leave;
(j) short paternity leave;
(k) pre‑adoption leave;
(l) short adoption leave;
(m) long adoption leave.
(7) Each of the matters mentioned in subregulation (6)
has the same meaning as in Divisions 4 to 6 of Part 7.
(8) The Standard provides a more favourable outcome in
any of the respects mentioned in subregulation (6) if it provides for a greater
amount of one of these types of leave (for example, a greater number of days or
hours).
Example
If a workplace agreement provides for 3 weeks paid annual
leave and 8 weeks unpaid annual leave, this would be a less favourable outcome
than the Standard in respect of paid annual leave because the Standard provides
employees with 4 weeks of paid annual leave (but no equivalent unpaid leave
entitlement). The employee would be entitled to 4 weeks paid annual leave and 8
weeks unpaid annual leave.
(9) The Standard does not provide a more favourable
outcome in any of the respects mentioned in subregulation (6) if the amount of
the entitlement to leave is expressed in a form that is different from, but
equivalent to, the Standard.
Example
A workplace agreement which provides that a full‑time
employee is entitled to 20 days of annual leave would not be less favourable
than the Standard (as 20 days is the equivalent of 152 hours of annual leave
for a full‑time employee working 38 hours per week).
(10) The Standard does not provide a more favourable
outcome in respect of paid annual leave if a workplace agreement or contract of
employment which binds the employee permits the employee to take an additional
period of annual leave by forgoing an equivalent amount of pay.
Example
A provision permitting an employee to take 8 weeks of
annual leave at half pay (where the available entitlement is 4 weeks of paid
annual leave) would not be less favourable than the Standard.
(11) The Standard does not provide a more favourable
outcome in respect of paid carer’s leave if a workplace agreement or contract
of employment which binds the employee provides that the employee is entitled
to access a greater amount of paid personal leave as paid carer’s leave annually
than the annual cap provided for in the Standard.
Example
A provision which provides no cap on the amount of
personal leave that may be taken as carer’s leave taken by an employee in a 12
month period would be more favourable than the Standard.
(11C) The Standard does not provide a more favourable outcome
in respect of paid personal/carer’s leave if a workplace agreement or written
contract of employment that binds the employee permits accumulated paid
personal/carer’s leave to be paid out on termination of employment.
(11D) The Standard provides a more favourable outcome in
respect of paid compassionate leave if:
(a) for a workplace agreement or written
contract of employment that binds the employee and that provides for an amount
of paid compassionate leave per occasion that is not more than the amount per
occasion provided by the Standard — the employee is entitled to forgo any
of that leave in return for an amount of pay or other benefit; or
(b) for a workplace agreement or written contract
of employment that binds the employee and that provides for an amount of paid
compassionate leave per occasion that is greater than the amount per occasion
provided by the Standard — the employee is entitled to forgo more than the
amount per occasion by which that leave exceeds the amount per occasion
provided by the Standard in return for an amount of pay or other benefit.
(11E) The Standard does not provide a more favourable
outcome in respect of paid compassionate leave if, for a workplace agreement or
written contract of employment that binds the employee and that provides for an
amount of paid compassionate leave per occasion that is greater than the amount
per occasion provided by the Standard, the employee is entitled to forgo the amount
per occasion, or less than the amount per occasion, by which that leave exceeds
the amount per occasion provided by the Standard in return for an amount of pay
or other benefit.
Note For subregulations 7.1 (11D) and
(11E), the Standard provides that full‑time employees are entitled to an
amount of 2 days of paid compassionate leave per occasion (section 257 of the
Act).
(11F) The Standard does not provide a more favourable
outcome in respect of paid compassionate leave if:
(a) a provision in a workplace agreement or contract
of employment binding the employee and the employer provides for leave of that
type to be forgone in return for an amount of pay or other benefit in a manner
that is consistent with these Regulations; and
(b) the employee gives the employer a written
election, separate to the workplace agreement or contract of employment, to
forgo leave in return for an amount of pay or other benefit.
(11G) The Standard does not provide a more favourable outcome
in respect of paid personal/carer’s leave if a workplace agreement or contract
of employment that binds the employee permits the employee to take an
additional period of personal/carer’s leave by forgoing an equivalent amount of
pay.
Example
A provision permitting an
employee to take 20 days of personal/carer’s leave at half pay (where the
available entitlement is 10 days of paid personal/carer’s leave) would not be
less favourable than the Standard.
Accruing and crediting of leave
(12) Each of the following is a particular respect:
(a) accrual of the leave mentioned in
subregulation (6);
(b) crediting of the leave mentioned in
subregulation (6).
Example
A contract of employment provides that an employee is to
be credited with annual leave every fortnight instead of every month (annual
leave is credited every month under the Standard). This circumstance would not
be less favourable than the Standard. However, crediting annually would be less
favourable than the Standard.
Crediting of leave annually in arrears of service would be
less favourable than the Standard, but crediting in advance of service would be
more favourable.
Statutory declarations for parental leave
(13) The content of a statutory declaration is a
particular respect.
(14) The Standard does not provide a more favourable
outcome in the respect mentioned in subregulation (13) if a workplace agreement
or contract of employment which binds the employee provides that a statutory
declaration is required to include matters additional to those required by the
Standard.
Notice periods and evidentiary requirements relating to leave
(15) Each
of the following is a particular respect:
(a) the giving of notice in relation to a period
of sick leave taken (or to be taken) by the employee;
(b) the giving of notice in relation to a period
of carer’s leave taken (or to be taken) by the employee;
(c) the giving of documentary evidence in
relation to a period of sick leave taken (or to be taken) by the employee;
(d) the giving of documentary evidence in
relation to a period of carer’s leave taken (or to be taken) by the employee;
(e) the giving of evidence in relation to a
period of compassionate leave taken (or to be taken) by the employee.
(16) The Standard provides a more favourable outcome in
any of the respects mentioned in subregulation (15) if a workplace
agreement or contract of employment which binds the employee (whether the
contract is in writing or not) imposes obligations on the employee that are
more onerous than the requirements in the Standard.
(17) The Standard provides a more favourable outcome in
any of the respects mentioned in subregulation (15) if a
workplace agreement or contract of employment which binds the employee (whether
the contract is in writing or not) allows for the imposition of a penalty on an
employee for a breach
of a requirement or condition to give the notice or evidence.
(18) In subregulations (5A) and (17):
penalty:
(a) means any of the following:
(i) a deduction of an amount from an
employee’s remuneration;
(ii) a reduction of an employee’s
entitlements;
(iii) a requirement that an employee
makes a payment to the employer; but
(b) does not include a deduction, reduction or
requirement that is:
(i) for the benefit of the employee;
or
(ii) authorised under a law; or
(iii) made or imposed because the
employee was provided with an entitlement to which the employee was not
entitled.
Division 2 Wages
Subdivision A Preliminary
7.2 Definitions
for Division 2 of the Act — pre‑reform federal wage instrument
Minimum wage order
(1) For subparagraph (d) (ii) of the definition of
pre‑reform federal wage instrument in section 178 of the
Act, a minimum wage order:
(a) made under section 501 or 501A of the pre‑reform
Act; and
(b) as in force
immediately before the reform commencement;
is prescribed.
Certificates of exemption
(2) For subparagraph (d) (ii) of the definition of
pre‑reform federal wage instrument in section 178 of the
Act, the following instruments are prescribed:
(a) an instrument:
(i) issued by a particular person or
authority pursuant to an award provision made under section 123 of the pre‑reform
Act; and
(ii) as in force immediately before the
reform commencement;
(b) a certificate:
(i) made under section 509 of the pre‑reform
Act; and
(ii) as in force immediately before the
reform commencement.
(3) Subregulation (2) ceases to have effect at the end
of 2 years after the reform commencement.
7.3 Definitions
for Division 2 of the Act — pre‑reform State wage instrument
(1) For subparagraph (d) (ii) of the definition of
pre‑reform State wage instrument in section 178 of the Act,
the following instruments are prescribed:
(a) an instrument:
(i) issued by a person or authority
under a law of a State, or provision of a law of a State, to a person, because
of the person’s age, infirmity or slowness, that sets out an enforceable
minimum rate of pay for that person; and
(ii) as in force immediately before the
reform commencement;
(b) an arrangement:
(i) made under section 9 of the Minimum
Conditions of Employment Act 1993 of Western Australia; and
(ii) as in force immediately before the
reform commencement.
(2) Subregulation (1) ceases to have effect at the end
of 2 years after the reform commencement.
Subdivision I Australian Pay
and Classification Scales: preserved APCSs
7.4 Deriving
preserved APCSs from pre‑reform wage instruments — supported
employment services
(1) For subsection 208 (3) of the Act, a preserved
APCS is taken to include any provision of the pre‑reform wage instrument
to the extent to which it treats the rate provisions of that instrument to be
satisfied in relation to a supported employment service that:
(a) has entered into, or enters into, an
agreement with the Australian Government to phase in minimum wages for
employees with a disability; and
(b) complies with the phase‑in obligations
of that agreement.
(2) In subregulation (1):
employee with a disability has the meaning
given by section 178 of the Act.
supported employment services has the meaning
given by the Disability Services Act 1986.
7.5 Notional
adjustments — general
(1) For subsection 212 (2) of the Act, this
regulation explains how to work out certain notional adjustments to rate
provisions under subsection 211 (1) of the Act.
Hours per week
(2) An employee’s specified hours of work per week are
taken to be:
(a) the hours determined in accordance with a
provision of:
(i) the pre‑reform wage
instrument from which the relevant preserved APCS was derived; or
(ii) a law; or
(iii) a provision of a law;
that determined the hours of work per week
for the employee; or
(b) if weekly hours are not specified in that
way — 38 hours per week.
Conversion of annualised salary
(3) If an employee’s remuneration is expressed as an
annualised rate of pay, the equivalent monetary hourly rate is taken to be the
rate calculated:
(a) in accordance with, or by reference to, any
provision of the pre‑reform wage instrument that provided for the
conversion of annualised rates of pay; or
(b) if the conversion is not provided for in
that way — by:
(i) multiplying the employee’s
annualised rate of pay by 6; and
(ii) dividing the result by 313; and
(iii) dividing the result by the
employee’s specified hours of work per week calculated in accordance with
subregulation (2).
7.6 Notional adjustments — Victorian minimum
wage orders
(1) For subsection
212 (1) of the Act, the coverage provisions of a preserved APCS to which
subregulation 7.2 (1) applies are to be adjusted to the extent necessary
to ensure that they apply to an employee (within the meaning of
subsection 5 (1) of the Act) who is employed in Victoria.
(2) For subsection
212 (1) of the Act, the coverage provisions of a preserved APCS to which
paragraph 861 (1) (e) of the Act applies are to be adjusted to
the extent necessary to ensure that they apply to an employee (within the
meaning of section 858 of the Act) who is employed in Victoria.
Subdivision L Adjustments to
incorporate 2005 Safety Net Review etc
7.7 Adjustments
to incorporate 2005 Safety Net Review — other matters
(1) For
subsection 219 (1) of the Act:
(a) the AFPC must adjust rate provisions in each
APCS that is derived from a pre‑reform State wage instrument mentioned in
paragraph (a) of the definition of pre‑reform State wage
instrument in section 178 of the Act to increase the rates in
accordance with any decision made by a State industrial authority that relates
to the Commission’s 2005 Safety Net Review decision, unless the AFPC is
satisfied that it is not appropriate to adjust the rate provisions because of
the effect of subsection 208 (4) of the Act; and
(b) the adjustment must be made as part of the
first exercise of the powers of the AFPC under Division 2 of Part 7 of the Act.
(2) Subregulation (1) applies only if:
(a) the State industrial authority did not,
before the reform commencement, adjust the instrument in accordance with
its decision relating to the Commission’s 2005 Safety Net Review decision (by
way of general order or otherwise); and
(b) either:
(i) the instrument was adjusted,
before the reform commencement, in accordance with the State industrial authority’s
decision relating to the Commission’s 2004 Safety Net Review decision (by
general order or otherwise); or
(ii) the instrument came into
effect after that decision.
(3) After the adjustment has been made, section 190
of the Act is taken to have effect in relation to an employee as if the
adjustment had been made to the pre‑reform State wage instrument
immediately before the reform commencement.
Division 4 Annual Leave
7.7A Piece
rate employees — basic periodic rate of pay
For section 231 of the Act, the basic
periodic rate of pay for a piece rate employee is worked out in
accordance with the formula:
where:
BPR is the employee’s basic periodic rate of
pay, expressed as an hourly rate of pay.
TA is the total amount earned by the employee
at the employee’s basic piece rate of pay during the relevant period.
TH is the total hours worked by the employee
during the relevant period.
the relevant period is:
(a) for an employee who was continuously
employed by the employer for a period of 12 months or more immediately before
the basic periodic rate of pay is to be worked out — the 12 months before
the rate is to be worked out; or
(b) for an employee who was continuously employed
by the employer for a period less than 12 months immediately before the rate of
pay is to be worked out — that period.
Note The Act contains the following
relevant definitions:
(a) piece rate employee — section 228;
(b) basic piece rate of pay — section
178.
Division 5 Personal leave
7.8 Medical
certificates issued by registered health practitioners
A medical certificate issued by a registered health
practitioner is taken to be a medical certificate for Division 5 of Part 7 of
the Act only if it is issued in respect of the area of practice in which the
practitioner is registered or licensed under a law of a State or Territory that
provides for the registration or licensing of health practitioners.
7.9 Piece
rate employees — basic periodic rate of pay
For section 243 of the Act, the basic
periodic rate of pay for a piece rate employee is worked out in
accordance with the formula:
where:
BPR is the employee’s basic periodic rate of
pay, expressed as an hourly rate of pay.
TA is the total amount earned by the employee
at the employee’s basic piece rate of pay during the relevant period.
TH is the total hours worked by the employee
during the relevant period.
the relevant period is:
(a) for an employee who was continuously
employed by the employer for a period of 12 months or more immediately before
the basic periodic rate of pay is to be worked out — the 12 months before
the rate is to be worked out; or
(b) for an employee who was continuously employed
by the employer for a period less than 12 months immediately before the rate of
pay is to be worked out — that period.
Note The Act contains the following
relevant definitions:
(a) piece rate employee — section 240;
(b) basic piece rate of pay — section
178.
Division 6 Parental leave
7.10 Piece
rate employees — basic periodic rate of pay
For section 264A of the Act, the basic periodic
rate of pay for a piece rate employee is worked out in accordance with
the formula:
where:
BPR is the employee’s basic periodic rate of
pay, expressed as an hourly rate of pay.
TA is the total amount earned by the employee
at the employee’s basic piece rate of pay during the relevant period.
TH is the total hours worked by the employee
during the relevant period.
the relevant period is:
(a) for an employee who was continuously
employed by the employer for a period of 12 months or more immediately before
the basic periodic rate of pay is to be worked out — the 12 months before
the rate is to be worked out; or
(b) for an employee who was continuously employed
by the employer for a period less than 12 months immediately before the rate of
pay is to be worked out — that period.
Note The Act contains the following
relevant definitions:
(a) piece rate employee — section 263;
(b) basic piece rate of pay — section
178.
Part 8 Workplace agreements
Division 2 Types of
workplace agreements
8.1 Authorisation
of multiple‑business agreements
(1) For subsection 332 (2) of the Act, the
procedure for applying to the Workplace Authority Director for an authorisation
to make a multiple‑business agreement is that:
(a) the application must be in writing; and
(b) a copy of the proposed multiple‑business
agreement must be attached to the application; and
(c) the application must identify each employer
that will be bound by the proposed agreement; and
(d) the application must identify the business,
or part of the business, of the employer or employers that will be covered by
the proposed agreement; and
(e) the application must include reasons
supporting the request for the authorisation.
(2) For subsection 332 (2) of the Act, the
procedure for applying to the Workplace Authority Director for an authorisation
to vary a multiple‑business agreement is that:
(a) the application must be in writing; and
(b) a copy of the proposed variation to the
multiple‑business agreement must be attached to the application; and
(c) the application must:
(i) if the variation relates to the
parties to the agreement — identify:
(A) the proposed new
employers; and
(B) the business, or part of
the business, of the employers;
that will be covered by the
agreement as varied; or
(ii) in any other case — identify
the proposed variations to the agreement; and
(d) the application must include reasons
supporting the request for the authorisation.
(3) For subsection 332 (2) of the Act, after the
Employment Advocate has considered the application, the Employment Advocate
must give the applicant a notice in writing stating whether the authorisation
is granted.
Division 6 Operation of
workplace agreements and persons bound
8.2 Workplace agreement displaces certain
Commonwealth laws — prescribed conditions of employment
For subsection 350 (1) of the Act, the
following conditions of employment are prescribed:
(a) each condition of employment specified in a
determination mentioned in paragraph 8.3 (1) (a), other than a
condition of employment specified in a determination made:
(i) under
subsection 24 (1) of the Public Service Act 1999; and
(ii) in
accordance with regulations made for the purpose of subsection 72 (5) of
that Act;
(b) each condition of
employment specified in a determination mentioned in paragraphs
8.3 (1) (b) to (f).
8.3 Workplace agreement displaces certain
Commonwealth laws — prescribed Commonwealth laws
(1) For section 350 of the Act, the following laws are
prescribed:
(a) a determination made by an Agency Head under
subsection 24 (1) of the Public Service Act 1999, other than a
determination made under that subsection in accordance with regulations made
for the purpose of subsection 72 (5) of that Act;
(i) under that subsection; and
(ii) in
accordance with regulations made for the purpose of subsection 72 (5) of
that Act;
(b) a determination
made by a Secretary under subsection 24 (1) of the Parliamentary
Service Act 1999;
(c) Determination No. 1 (Determination of
Remuneration and Allowances and Terms and Conditions of Service of Deputy
Commissioners of Police), made under sections 17 and 20 of the Australian
Federal Police Act 1979, to the extent to which it relates to an
entitlement to an adjustment payment within the meaning of that Act;
(d) a determination made under subsection
26E (1) or (1A) of the Australian Federal Police Act 1979;
(e) Determination No. 5 (Determination of
Adjustment Payment for Members and Staff Members), made under section 30 of the
Australian Federal Police Act 1979, to the extent to which it relates to
an entitlement to an adjustment payment;
(f) Determination No. 2 (Determination of Terms
and Conditions of Service of the Senior Executive Service), made under section
30 of the Australian Federal Police Act 1979, to the extent to which it
relates to an entitlement to an adjustment payment.
(2) In subregulation (1):
adjustment payment has the meaning given by subsection 4 (1) of
the Australian Federal Police Act 1979.
Agency Head has the meaning given by section 7 of the Public
Service Act 1999.
Secretary has the meaning given by section 7 of the Parliamentary
Service Act 1999.
Division 7.1 Prohibited content under section 356 of the Act
Subdivision A Preliminary
8.4 Purpose
of Division
This Part specifies the matters that under section
356 of the Act are matters that are prohibited content for the purposes of the
Act.
Subdivision B Various matters
that are prohibited content
8.5 Various
matters
(1) A term of a workplace agreement is prohibited
content to the extent that it deals with the following:
(a) deductions from the pay or wages of an
employee bound by the agreement of trade union membership subscriptions or
dues;
(b) the provision of payroll deduction facilities
for the subscriptions or dues referred to in paragraph (a);
(c) employees bound by the agreement receiving
leave to attend training (however described) provided by a trade union;
(d) employees bound by the agreement receiving
paid leave to attend meetings (however described) conducted by or made up of
trade union members;
(e) the renegotiation of a workplace agreement;
(f) the rights of an organisation of employers
or employees to participate in, or represent an employer or employee bound by
the agreement in, the whole or part of a dispute settling procedure, unless the
organisation is the representative of the employer’s or employee’s choice;
(g) the rights of an official of an organisation
of employers or employees to enter the premises of the employer bound by the
agreement;
(h) restrictions on the
engagement of independent contractors and requirements relating to the
conditions of their engagement;
(i) restrictions on the engagement of labour
hire workers, and requirements relating to the conditions of their engagement,
imposed on an entity or person for whom the labour hire worker performs work
under a contract with a labour hire agency;
(j) the forgoing of annual
leave credited to an employee bound by the agreement for an amount of pay or
other benefit otherwise than at the written election of the employee;
(k) the provision of information about employees
bound by the agreement to a trade union, or a member acting in a representative
capacity, officer, or employee of a trade union, unless provision of that
information is required or authorised by law;
(l) the forgoing of paid compassionate leave
for an amount of pay or other benefit otherwise than in a manner that would
result in a more favourable outcome than the Standard, consistent with these
Regulations;
(m) the forgoing of paid
personal/carer’s leave credited to an employee bound by the agreement for an
amount of pay or other benefit otherwise than at the written election of the
employee.
Note In these Regulations a reference to
an independent contractor is not confined to a natural person (see subsection 4
(2) of the Act).
Terms that encourage or discourage union
membership
(2) A term of a workplace
agreement is prohibited content to the extent that it:
(a) directly or
indirectly requires a person bound by the agreement:
(i) to encourage another person bound
by the agreement to become, or remain, a member of an industrial association;
or
(ii) to discourage another person bound
by the agreement from becoming, or remaining, a member of an industrial
association; or
(b) requires a person bound by the agreement to
indicate support, or lack of support, for persons bound by the agreement being
members of an industrial association.
Terms allowing for industrial action
(3) A term of a workplace
agreement is prohibited content to the extent that it permits a person bound by
the agreement to engage in or organise industrial action.
Terms dealing with disclosure of details of workplace agreement
(4) A term of a workplace
agreement is prohibited content to the extent that it prohibits or restricts
disclosure of details of the workplace agreement by a person bound by the
agreement.
Terms providing for remedies for unfair dismissal
(5) A term of a workplace
agreement is prohibited content to the extent that it confers a right or remedy
in relation to the termination of employment of an employee bound by the
agreement for a reason that is harsh, unjust or unreasonable.
(6) To avoid doubt, a term is not prohibited content
under subregulation (5) to the extent that it provides a process for managing
an employee’s performance or conduct.
Objectionable provisions
(7) A term of a workplace
agreement is prohibited content to the extent that it is an objectionable
provision within the meaning of the Act.
Note Section 810 of the Act deals with
objectionable provisions.
Term concerning AWA
(8) A term of a workplace
agreement is prohibited content to the extent that it directly or indirectly
restricts the ability of a person bound by the agreement to offer, negotiate or
enter into an AWA.
Terms allowing for penalties
(8A) A term of a workplace agreement is prohibited content
to the extent that the term allows for the imposition of a penalty on an
employee for breach of a requirement to provide notice or evidence:
(a) for the purpose of substantiating an
entitlement to sick leave or carer’s leave; or
(b) for the purpose of substantiating a reason
for absence from work due to:
(i) an illness, injury or emergency
affecting the employee; or
(ii) an illness, injury or emergency
affecting a member of the employee’s immediate family or household.
Example
Zoe’s Adventures Pty Ltd is concerned about the number of
its employees who take sick leave on Mondays.
To try to reduce the costs of these absences to its
business, Zoe’s Adventures would like to include a term in its workplace agreement
that requires the employee to provide notice to the office manager of needing
to take sick leave the day before taking it, and if the employee does not do
so, the employee will not be entitled to 2 hours of paid sick leave for that
day.
As the term penalises the employee (by reducing the
employee’s entitlement to paid sick leave by 2 hours) for not providing notice
in accordance with the agreement, this term would be prohibited content.
(8B) A term of a workplace agreement is prohibited content
to the extent that the term allows for the imposition of a penalty on an
employee for being absent from work due to:
(a) an illness, injury or emergency affecting
the employee; or
(b) an illness, injury or emergency affecting a
member of the employee’s immediate family or household.
Deryk works as a casual waiter at a restaurant that only
employs waiters who have ‘silver service’ training. When one of its waiters is
sick, the restaurant is often unable to find a suitable replacement at short
notice.
The restaurant proposes to include a term in its workplace
agreements so that, if a waiter is unable to make a shift because he or she is
sick, the waiter will pay the restaurant $150. The proposed term of the workplace
agreement also provides that this amount will be split among the waiters who do
work as an extra tip for working a shift with fewer waiters.
As the term would penalise Deryk by requiring him to pay
an amount to his employer for not working a shift because he was sick, this
term would be prohibited content.
Meaning of terms
(9) In paragraph (1) (i):
labour hire agency means an entity or a
person who conducts a business that includes the employment or engagement of
workers for the purpose of supplying those workers to another entity or person
under a contract with that other entity or person.
labour hire worker means a person:
(a) who:
(i) is employed by a labour hire
agency; or
(ii) is engaged by a labour hire agency
as an independent contractor; and
(b) who performs work for another entity or person
under a contract between that entity or person and the labour hire agency.
(10) In subregulations (8A) and (8B):
penalty:
(a) means any of the following:
(i) a deduction of an amount from an
employee’s remuneration;
(ii) a reduction of an employee’s
entitlements;
(iii) a requirement that an employee
makes a payment to the employer; but
(b) does not include a deduction, reduction or
requirement that is:
(i) for the benefit of the employee;
or
(ii) authorised under a law; or
(iii) made or imposed because the
employee was provided with an entitlement to which the employee was not
entitled.
8.6 Discriminatory
terms
(1) A term of a workplace agreement is prohibited
content to the extent that it discriminates against an employee, who is bound
by the agreement, because of, or for reasons including, race, colour, sex,
sexual preference, age, physical or mental disability, marital status, family
responsibilities, pregnancy, religion, political opinion, national extraction
or social origin.
(2) For the purposes of subregulation (1), a
provision of an agreement does not discriminate against an employee or class of
employees merely because:
(a) it provides for a rate or rates of pay that
comply with a rate or rates of pay that are contained in the Australian Pay and
Classification Scale or a special Federal Minimum Wage that would otherwise
apply to the employee or class of employees; or
(b) it discriminates, in respect of particular
employment, on the basis of the inherent requirements of that employment; or
(c) it discriminates, in respect of employment
as a member of the staff of an institution that is conducted in accordance with
the teachings or beliefs of a particular religion or creed:
(i) on the basis of those teachings or
beliefs; and
(ii) in good faith.
Note For Australian Pay and
Classification Scale see Division 2 of Part 7 of the Act and for special
Federal Minimum Wage see section 197 of the Act.
Subdivision C Matters that do
not pertain to the employment relationship are prohibited content
8.7 Matters
that do not pertain to the employment relationship are prohibited content
(1) Subject to subregulation (2), a term of a
workplace agreement is prohibited content to the extent that it deals with a
matter that does not pertain to the employment relationship.
Exception to rule in subregulation (1)
(2) If:
(a) a term deals with a matter that does not
pertain to the employment relationship; and
(b) the matter is:
(i) incidental or ancillary to a
matter contained in the agreement which does pertain to the employment
relationship; or
(ii) a machinery matter; or
(iii) so trivial that it should be
disregarded as insignificant;
then, to the extent that the term deals with the matter, it is not
prohibited content.
Meaning of pertains to the employment relationship
(3) In this regulation, a matter pertains to the
employment relationship:
(a) in the case of a collective agreement —
if it pertains to the relationship between the employer bound by the agreement
and all persons who, at any time when the agreement is in operation, are
employed by the employer and who are bound by the agreement; or
(b) in the case of an ITEA —
if it pertains to the relationship between the employer bound by the agreement
and the employee bound by the agreement.
Division 7.2 Prohibited content under Schedule 8 to the Act
8.8 Prohibited content
Term preventing the making of an AWA
(1) A term of:
(a) a preserved individual
State agreement; or
(b) a preserved collective State
agreement; or
(c) a notional agreement preserving
State awards;
is prohibited content for the purposes of clauses
9 (a preserved individual State agreement), 15B (a preserved collective State
agreement) and 37 (a notional agreement preserving State awards) of Schedule 8
to the Act to the extent that it prevents the employer bound by the agreement
from making an AWA.
Term restricting training
(2) A term of a notional agreement
preserving State awards is prohibited content for the purposes of clause 37 of
Schedule 8 to the Act to the extent that it restricts the range or duration of
training arrangements.
(3) In this regulation, preserved
individual State agreement, preserved collective State agreement
and notional agreement preserving State awards have the meanings
given in Schedule 8 to the Act.
Subdivision B Prohibited
content
8.9 Employer
must not lodge workplace agreement containing prohibited content
For paragraph 357 (2) (b) of the Act,
advice given by the Workplace Authority Director to an employer that a
workplace agreement (or a workplace agreement as varied) does not contain
prohibited content must:
(a) be in writing; and
(b) be signed by the Workplace Authority Director;
and
(c) state the date, or dates, on which the
advice was provided; and
(d) identify the content of the agreement that
was considered by the Workplace Authority Director; and
(e) if the Workplace Authority Director
concludes that the content is prohibited — include an explanation, with
appropriate detail, of the Workplace Authority Director’s reasons; and
(f) if the Workplace Authority Director is
unable to conclude whether the content is prohibited or not — include an
explanation of the Workplace Authority Director’s reasons.
Division 12 Miscellaneous
8.10 Qualifications and appointment of bargaining agents
(1) This regulation applies to
bargaining agents for making an ITEA, an
employee collective agreement and an employer greenfields agreement (an agreement).
(2) For paragraph 418 (b) of the Act, a person is
excluded from being appointed or holding an appointment as a bargaining agent
for an agreement if the person:
(a) has been appointed
as the bargaining agent for the other party to the agreement; or
(b) is bankrupt or is applying to take the
benefit of any law for the relief of a bankrupt or insolvent debtor; or
(c) has not attained the age of 18 years.
(3) For paragraph 418 (b) of the Act, if, before
or after the commencement of this regulation, a person:
(a) has been convicted
of an offence against a Commonwealth, State or Territory law punishable by
imprisonment for 1 year or longer; or
(b) has been convicted of an offence against a
Commonwealth, State or Territory law that involves dishonesty and is punishable
by imprisonment for 6 months or longer; or
(c) has been the subject of an order by a Court
or the Federal Magistrates Court in relation to a civil remedy provision in
connection with the negotiation of:
(i) a workplace agreement (whether or
not as a bargaining agent); or
(ii) a State agreement under a State
law; or
(d) has been convicted
of an offence under the Act or the Criminal Code;
that person is excluded from being
appointed or holding an appointment as a bargaining agent within the period of
5 years after the date of conviction, the date of the order, or, if the person
was sentenced to imprisonment, after release from prison.
Note The Criminal Code is set out
in the Criminal Code Act 1995.
(4) A person who is excluded from being appointed or
holding an appointment as a bargaining agent under subregulation (2)
or (3) may apply to a court for leave to hold an appointment as a
bargaining agent.
(5) When granting leave under this regulation, the court
may impose any conditions or restrictions that it thinks fit.
(6) The court may at any time, on the application of the
Workplace Authority Director, revoke leave granted by the court under this
regulation.
(7) It is a condition of the appointment of an
organisation, or any other incorporated body, as a bargaining agent that each
individual who carries out the functions of a bargaining agent on its behalf
is, at all material times, a person who is not excluded by the preceding
provisions of this regulation from being a bargaining agent.
8.11 Required form of workplace agreements
(1) For paragraph 418 (c) of the Act, a workplace
agreement must:
(a) be in the English
language; and
(b) be printed in legible typescript; and
(c) include the full name and address of each
person who signs the agreement.
(2) Strict liability applies to the physical elements in
subregulation (1).
Note For strict liability,
see section 6.1 of the Criminal Code.
(3) Subregulation (1) is a civil remedy
provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
8.12 Witnessing
of signatures on ITEAs and variations to ITEAs
(1) For paragraph 418 (d)
of the Act, a person who signs an ITEA or a variation to an ITEA as a witness must also include his or her full name and
address.
(2) For paragraph 418 (d) of the Act, the
following persons are not entitled to witness a party’s signature on an ITEA or
a variation to an ITEA:
(a) the other party to
the ITEA or the variation;
(b) the bargaining agent of the other party to the
ITEA or the variation;
(c) where the other party to the ITEA or the
variation is a corporation — a person who is a director of the corporation
or a person involved in the day to day management of the corporation.
8.13 Signing of workplace agreements
(1) For paragraph 418 (e) of the Act, an employer
must obtain the signatures of:
(a) for all workplace agreements — the
employer or employers in relation to the agreement; and
(b) in addition to paragraph (a):
(i) if the workplace agreement is an
employee collective agreement — a representative of the employees to the
agreement or a bargaining agent appointed under section 335; or
(ii) if the workplace agreement is a
union collective agreement — the organisation or organisations of
employees with which the employer made the agreement; or
(iii) if the workplace agreement is a
union greenfields agreement — the organisation or organisations of
employees with which the employer made the agreement.
(2) For subregulation (1), a signature to the workplace
agreement must be accompanied by:
(a) the full name and
address of each person signing the workplace agreement in accordance with
subregulation (1); and
(b) an explanation of the person’s authority to
sign the workplace agreement.
Note The requirements for the signing of
an ITEA are set out in section 340 of the Act.
(3) Strict liability applies to the physical elements in
subregulation (1).
Note For strict liability,
see section 6.1 of the Criminal Code.
(4) Subregulations (1) and (2) are civil
remedy provisions.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
(4A) It is a defence to a contravention of subregulation
(1) that the workplace agreement:
(a) is a collective agreement; and
(b) does not include the signature of a person
(other than the employer) because of the person’s failure or refusal to sign
the agreement.
8.13A Signing
of variations to workplace agreements
(1) For paragraph 418 (ea) of the Act, this
regulation applies in relation to a variation of a workplace agreement.
(2) For a variation to any workplace agreement, an employer
must obtain the signature of the employer or employers in relation to the
variation.
(3) In addition to subregulation (2), the employer must
obtain the following:
(a) if the workplace agreement that is being
varied is an employee collective agreement — the signature of a
representative of the employees bound by the variation or a bargaining agent
appointed under section 335;
(b) if the workplace agreement that is being
varied is a union collective agreement — the signature of the organisation
or organisations of employees with which the employer made the variation;
(c) if the workplace agreement that is being
varied is a union greenfields agreement — the signature of the
organisation or organisations of employees with which the employer made the variation;
(d) if:
(i) the workplace agreement that is
being varied is an employer greenfields agreement; and
(ii) there are employees bound by that
agreement;
the signature of a representative of the
employees bound by the variation or a bargaining agent appointed under
section 335.
Note for paragraph (d) The signature of a
representative of the employees is required if any employees are employed under
the employer greenfields agreement at the time it is varied. If no employees
are bound by the employer greenfields agreement at the time it is varied, only
the employer or employers need sign the variation (see subregulation (2)).
(4) For subregulations (2) and (3), a signature to the
variation must be accompanied by:
(a) the full name and address of each person
signing the variation in accordance with subregulation (2) or (3); and
(b) an explanation of the person’s authority to
sign the variation.
Note The requirements for the signing of
a variation to an ITEA are set out in section 373 of the Act.
(5) Strict liability applies to the physical elements in
subregulations (2) and (3).
Note For strict liability,
see section 6.1 of the Criminal Code.
(6) Subregulations (2), (3) and (4) are civil
remedy provisions.
Note Part 14 sets out provisions dealing
with contraventions of civil remedy provisions.
(7) It is a defence to a contravention of subregulation
(2) or (3) that:
(a) the workplace agreement that is being varied
is a collective agreement; and
(b) does not include the signature of a person
(other than the employer) because of the person’s failure or refusal to sign
the variation to the agreement.
8.14 Retention
of signed workplace agreement
(1) For paragraph 418 (f)
of the Act, an employer must retain a signed copy of a workplace agreement for:
(a) the duration of the workplace agreement; and
(b) the period of 7 years after the workplace
agreement is terminated.
(2) Regulation 19.20 applies to a workplace agreement as
if a reference in that regulation to a record were a reference to a workplace
agreement.
(3) Strict liability applies to the physical elements in
subregulation (1).
Note For strict liability,
see section 6.1 of the Criminal Code.
(4) Subregulation (1) is
a civil remedy provision.
Note Part 14 of this Chapter sets out provisions
dealing with contraventions of civil remedy provisions.
(5) It is a defence to a contravention of subregulation
(1) that the workplace agreement:
(a) is a collective agreement; and
(b) does not include the signature of a person
(other than the employer) because of the person’s failure or refusal to sign
the agreement.
8.15 Application of the Criminal Code to civil
remedy provisions
Unless the contrary
intention appears in the Act or these Regulations, Chapter 2 of the Criminal
Code (other than section 13.2 and Part 2.7) applies to civil remedy
provisions in this Part as if those provisions were offences.
Part 9 Industrial action
Division 2 Bargaining periods
9.1 Employee
may appoint agent to initiate bargaining period — qualifications for appointment
(1) For subsection 424 (3) of the Act, this
regulation sets out the qualifications of a person appointed as an agent to
initiate a bargaining period on another person’s behalf.
Note Subsection 424 (1) of the Act
authorises persons to appoint agents.
Person is already an agent
(2) A person is not qualified to be appointed, or to
hold an appointment, as an agent if the person has been appointed as the agent
for another negotiating party in relation to the proposed collective agreement.
Person is under legal restriction
(3) A person is not qualified to be appointed, or to
hold an appointment, as an agent if the person:
(a) is bankrupt; or
(b) is applying to take the benefit of any law
for the relief of a bankrupt or insolvent debtor; or
(c) is less than 18 years old.
Person has been convicted of certain offences
(4) A person is not qualified to be appointed, or to
hold an appointment, as an agent if, before or after the commencement of this
regulation, the person:
(a) has been convicted of an offence against a
Commonwealth, State or Territory law punishable by imprisonment for 1 year or
longer; or
(b) has been convicted of an offence against a
Commonwealth, State or Territory law that involves dishonesty and is punishable
by imprisonment for 6 months or longer; or
(c) has been the subject of an order by a court
in relation to a civil remedy provision in connection with the negotiation of:
(i) a workplace agreement (whether or
not as a bargaining agent); or
(ii) a State agreement under a State
law; or
(d) has been convicted of an offence under the
Act or the Criminal Code.
(5) A person to whom subregulation (4) applies is not
qualified to be appointed, or to hold an appointment, as an agent for a period
of 5 years starting on the date of the conviction.
Leave to hold appointment as agent
(6) A person who is not qualified to be appointed, or to
hold an appointment, as an agent under subregulations (2) to (4) may apply to
the Court for leave to hold an appointment as an agent.
(7) If the Court grants leave under this regulation, the
Court may impose any conditions or restrictions that it thinks fit.
(8) The Court may at any time, on the application of the
Workplace Authority Director, revoke leave granted by the Court under this
regulation.
9.2 Employee
may appoint agent to initiate bargaining period — appointment
For subsection 424 (3) of the Act, it is a
condition of the appointment of an organisation, or any other incorporated
body, as an agent that each individual who carries out the functions of an
agent on its behalf is, at all material times, a person who is not disqualified
from being an agent under regulation 9.1.
Division 3 Protected action
9.3 Protected
action
For subsection 435 (5) of the Act, the
following purposes are prescribed:
(a) superannuation;
(b) authorised leave entitlements;
(c) remuneration and promotion, as affected by
seniority;
(d) an entitlement (if any) to notice on
termination of employment.
Note Under subsection 435 (5) of the
Act, an employer is not entitled to engage in industrial action against
employees (and so the industrial action will not be protected action) unless
the continuity of the employees’ employment, for such purposes as are
prescribed by the regulations, is not affected by the industrial action.
Division 4 Secret ballots
on proposed protected action
Subdivision A General
9.4 Declaration envelope
(1) For the definition of declaration envelope
in section 450 of the Act, a declaration envelope provided to an
employee by an authorised ballot agent must comply with the following form:
(a) the declaration envelope must be a smaller
envelope that fits inside a prepaid envelope without needing to
be folded;
(b) the declaration envelope must contain on it
a removable flap or label with the following details printed on it:
(i) the name
and postal address of the employee;
(ii) the
declaration mentioned in subregulation (2);
(iii) a place
for the signature of the employee.
(2) The declaration must
state that the employee:
(a) is the employee named on the envelope; and
(b) has voted on the ballot paper contained in
the envelope; and
(c) has not voted before in this ballot.
(3) To preserve the secrecy of
the vote, the authorised ballot agent must remove the flap or label mentioned
in paragraph (1) (b) from the declaration envelope before removing the
ballot paper from the envelope.
9.5 Employee
may appoint agent to apply for ballot order — qualifications for
appointment
(1) For paragraph 493 (a) of the Act, this
regulation sets out the qualifications of a person appointed as an agent to
represent another person in making an application for an order for a protected action ballot to be held.
Note Subsection 451 (5) of the Act
authorises persons to appoint agents.
Person is already an agent
(2) A person is not qualified to be appointed, or to
hold an appointment, as an agent if the person has been appointed as the agent
for another party in relation to an application for an order relating to the
same protected action ballot.
Person is under legal restriction
(3) A person is not qualified to be appointed, or to
hold an appointment, as an agent if the person:
(a) is bankrupt; or
(b) is applying to take the benefit of any law
for the relief of a bankrupt or insolvent debtor; or
(c) is less than 18 years old.
Person has been convicted of certain offences
(4) A person is not
qualified to be appointed, or to hold an appointment, as an agent if, before or
after the commencement of this regulation, the person has been convicted of:
(a) an offence against a Commonwealth, State or
Territory law punishable by imprisonment for 1 year or longer; or
(b) an offence against a Commonwealth, State or
Territory law that involves dishonesty and is punishable by imprisonment for 6
months or longer; or
(c) has been the subject of an order by a court
in relation to a civil remedy provision in connection with the negotiation of:
(i) a workplace agreement (whether or
not as a bargaining agent); or
(ii) a State agreement under a State
law; or
(d) an offence under the Act or the Criminal
Code.
(5) A person to whom subregulation (4) applies is not
qualified to be appointed, or to hold an appointment, as an agent for a period
of 5 years starting on the date of the conviction.
Leave to hold appointment as agent
(6) A person who is not qualified to be appointed, or to
hold an appointment, as an agent under subregulations (2) to (4) may apply to
the Court for leave to hold an appointment as an agent.
(7) If the Court grants leave under this regulation, the
Court may impose any conditions or restrictions that it thinks fit.
(8) The Court may at any time, on the application of the
Workplace Authority Director, revoke leave granted by the Court under this
regulation.
9.6 Employee
may appoint agent to apply for ballot order — appointment
For paragraph 493 (a) of the Act, it is a
condition of the appointment of an organisation, or any other incorporated
body, as an agent that each individual who carries out the functions of an
agent on its behalf is, at all material times, a person who is not disqualified
from being an agent under regulation 9.5.
Subdivision B Application
for order for protected action ballot to be held
9.7 Material to accompany application
(1) For subsection 453 (5), a declaration by an
applicant must be a written statement in one of the following forms:
(a) “the industrial action to which the
application relates does not involve claims for prohibited content”;
(b) “the industrial action to which the
application relates is not for the purpose of supporting or advancing claims to
include in the proposed collective agreement any prohibited content”.
(2) The document in which the declaration is made must
include the statement “Giving false or misleading information is a serious
offence”.
Note See section 137.1 of the Criminal
Code.
(3) The Commission is not required to accept, as a
declaration, a document that does not include the statement mentioned in
subregulation (2).
Subdivision C Secret
ballots on proposed protected action
Note See
section 493 of the Act.
9.8 Notifying employees of ballot
(1) This regulation applies if
the Commission makes an order for a protected action ballot to be held.
(2) The authorised ballot
agent in relation to the ballot must, as soon as practicable after the
Commission makes the order, take all reasonable steps to give all employees
eligible to be included on the roll of voters the following information:
(a) advice that the
Commission has made the order;
(b) the matters specified in the ballot order;
(c) the times and locations at which an
attendance vote (if any) may occur;
(d) the contact details of the authorised ballot
agent;
(e) if a person has been authorised to be the
independent advisor for the ballot — the person’s name and contact
details;
(f) a statement of the employee’s right to
contact the authorised ballot agent to confirm whether the employee is on the
roll of voters;
(g) a statement of the employee’s right to seek
to be included on the roll of voters under section 468 of the Act;
(h) a statement of the employee’s right to
inform the authorised ballot agent or the independent advisor (if any) of any
irregularities in the conduct of the ballot.
(3) The authorised ballot agent is taken to have
complied with subregulation (2) if the agent:
(a) displays notices containing the information
in subregulation (2) in prominent places around each workplace at which
employees affected by the ballot are located; or
(b) e‑mails or posts a copy of that
information to all employees who are eligible to be included on the roll of
voters.
(4) An employer must allow the
authorised ballot agent access to the workplace for the purpose of placing
notices containing the information around the workplace.
(5) Strict liability applies to the physical elements in
subregulation (4).
Note For strict liability,
see section 6.1 of the Criminal Code.
(6) Subregulation (4) is
a civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
9.9 Information relevant to roll of voters
(1) This regulation applies if
an employer or an applicant provides a list of employees, or other information,
to the Commission or an authorised ballot agent under section 465 of the Act.
Declaration of accuracy of information
(2) The list of employees or
other information provided by the employer must be accompanied by a declaration
by the employer that the list or other information includes all of the
employees who are not a party to an ITEA.
(3) The list of employees or
other information provided by the applicant must be accompanied by a
declaration by the applicant that the list or other information includes all of
the employees whose employment would be subject to the proposed agreement.
Disclosure of information
(4) For section 486 of the Act, a person is taken not
to be performing functions or duties as, or on behalf of, an authorised ballot
agent if the person discloses information that the person has reasonable
grounds to be believe would identify another person as a person who is
mentioned in paragraph 485 (1) (a), (b), (c) or (d) of the Act to:
(a) an employer; or
(b) an applicant; or
(c) a scrutineer; or
(d) a representative of an employer, applicant or
scrutineer.
9.10 Form of ballot paper
A ballot paper for use in
a protected action ballot must be in accordance with Form 1 of Schedule
1.
9.11 Conduct of ballot — access to workplace
(1) An employer must allow an authorised ballot agent
access to:
(a) a workplace; or
(b) another place of business for the employer;
for the purpose of preparing for, or
conducting, a ballot.
(2) Strict liability applies to the physical elements in
subregulation (1).
Note For strict liability,
see section 6.1 of the Criminal Code.
(3) Subregulation (1) is
a civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
9.12 Directions about ballot paper
An authorised ballot
agent conducting a ballot may provide with the ballot paper:
(a) directions to be followed by an employee
entitled to vote in the ballot so that the vote complies with
these Regulations; and
(b) other directions that the agent reasonably
believes may assist in ensuring an irregularity does not occur in the conduct
of the ballot; and
(c) notes to assist an employee entitled
to vote in the ballot by informing him or her of matters relating to conduct of
the ballot.
9.13 Issuing of ballot papers — attendance voting
(1) This regulation applies if
the Commission orders a protected action ballot to be conducted by a method of
voting other than postal voting.
(2) The authorised ballot agent must issue to each
employee entitled to vote in the ballot a ballot paper or
multiple ballot paper (whichever applies) bearing:
(a) the initials of
the authorised ballot agent; or
(b) a facsimile of those initials.
9.14 Duplicate ballot papers — attendance voting
(1) This regulation applies if
the Commission orders a protected action ballot to be conducted by a method of
voting other than postal voting.
(2) If an employee
entitled to vote in the ballot satisfies the authorised ballot agent, before
depositing the ballot paper in the ballot box, that the employee has
accidentally spoilt the paper, the agent must:
(a) mark “spoilt” on
the paper and initial the marking; and
(b) keep the paper; and
(c) issue a fresh ballot paper to the employee.
9.15 Dispatch of ballot papers — postal voting
(1) This regulation applies if
the Commission orders a protected action ballot to be conducted by postal
voting.
(2) The authorised ballot agent must, as soon as
practicable, post to each employee entitled to vote in the ballot
a sealed envelope, addressed to the postal address of the employee shown
on the roll of voters, containing:
(a) one ballot paper for the ballot:
(i) bearing
the initials of the authorised ballot agent or a facsimile of those initials;
and
(ii) stating
the time, on the closing day of the ballot, by which the vote must be received;
and
(b) any document that
the Act or these Regulations requires to be posted with the ballot paper; and
(c) any other material that the authorised
ballot agent considers to be relevant to the ballot; and
(d) a declaration envelope in which the employee
must place his or her ballot paper; and
(e) a prepaid envelope, addressed to the
authorised ballot agent, that may be posted without cost to the employee; and
(f) details of the place where the employee may
obtain information about the proposed industrial action.
9.16 Duplicate ballot paper etc — postal voting
(1) This regulation applies if
the Commission orders a protected action ballot to be conducted by postal
voting.
(2) If, on the written application of an employee
entitled to vote in the ballot, the authorised ballot agent is satisfied that:
(a) a ballot paper; or
(b) another document required to be posted with a
ballot paper or ballot papers;
that was posted to the employee
under regulation 9.15:
(c) has not been
received by the employee; or
(d) has been lost or destroyed; or
(e) in the case of a ballot paper, has been
spoilt;
the authorised ballot agent must
immediately issue a duplicate of the relevant document to the employee.
(3) An application under subregulation (2) must:
(a) be received by the
authorised ballot agent on or before the closing day of the ballot; and
(b) state the grounds for making the application;
and
(c) if practicable, be accompanied by evidence
that verifies, or tends to verify, those grounds; and
(d) contain a declaration to the effect that the
member has not voted at the ballot; and
(e) in a case mentioned in paragraph
(2) (e), be accompanied by that paper.
(4) An authorised ballot agent
to whom a spoilt paper is returned under paragraph (3) (e) must deal with the
paper in accordance with paragraphs 9.14 (2) (a) and (b).
9.17 Manner of voting — postal voting
(1) This regulation applies if
the Commission orders a protected action ballot to be conducted by postal
voting.
(2) After recording his or her vote in a protected
action ballot, an employee must:
(a) comply with any direction under regulation
9.12; and
(b) place the ballot paper in the declaration
envelope, complete the declaration and seal the declaration envelope; and
(c) place the
declaration envelope in the prepaid envelope and seal the prepaid envelope; and
(d) send the prepaid
envelope to the authorised ballot agent to reach the agent no later than the
time on the closing day of the ballot noted on the ballot paper.
9.18 Scrutiny
(1) The authorised ballot
agent conducting a protected action ballot must determine the result of
the ballot by conducting a scrutiny in accordance with this regulation.
(2) As soon as practicable after the close of the
ballot, the authorised ballot agent must:
(a) admit the valid
ballot papers and reject the informal ballot papers; and
(b) count the valid ballot
papers, and record the number:
(i) in
favour of the question or questions; and
(ii) against
the question or questions; and
(c) count the informal ballot
papers.
(3) The authorised ballot agent may:
(a) remove a ballot
paper from a declaration envelope; and
(b) act under subregulation (2);
as soon as the agent receives the
declaration envelope.
(4) A vote is informal only if:
(a) the ballot paper does not bear:
(i) the
initials of an authorised ballot agent; or
(ii) a facsimile
of those initials; or
(b) the ballot paper is
marked in a way that permits the employee to be identified; or
(c) the ballot paper is not marked in a way that
makes it clear how the employee meant to vote;
or
(d) a person returning material mentioned in
paragraph 9.15 (2) (c) with the ballot paper does not comply with a
direction given under regulation 9.12.
(5) However, a vote is not
informal because of paragraph (4) (a) if the authorised ballot agent
is satisfied the ballot paper in question is authentic.
(6) If the authorised ballot agent conducting the
ballot is informed by a scrutineer that the scrutineer objects to a ballot
paper being admitted as formal or rejected as informal, the agent must:
(a) decide whether the
ballot paper is to be admitted as formal or rejected as informal; and
(b) endorse that decision on the ballot paper and
initial the endorsement.
(7) If the authorised ballot
agent conducting the ballot is informed by a scrutineer to the effect that, in
the scrutineer’s opinion, an error has been made in the conduct of the
scrutiny, the authorised ballot agent must decide whether an error has been
made and, if appropriate, direct what action is to be taken to correct or
mitigate the error.
9.19 Appointment of scrutineers
Appointment
(1) In relation to a protected
action ballot, the employer and the applicant or applicants may appoint
scrutineers to perform the functions mentioned in regulation 9.22.
(2) The appointment must be
made by an instrument signed on behalf of the employer or applicant.
9.20 Qualifications of scrutineers
(1) For paragraph 493 (c) of the Act, this
regulation sets out the qualifications of a person appointed as a scrutineer.
Person is already a scrutineer
(2) A person is not qualified to be appointed, or to
hold an appointment, as a scrutineer if the person has been appointed as a
scrutineer for another party in relation to the protected action ballot.
Person is under legal restriction
(3) A person is not qualified to be appointed, or to
hold an appointment, as a scrutineer if the person:
(a) is bankrupt; or
(b) is applying to take the benefit of any law
for the relief of a bankrupt or insolvent debtor; or
(c) is less than 18 years old.
Person has been convicted of certain offences
(4) A person is not qualified to be appointed, or to
hold an appointment, as a scrutineer if, before or after the commencement of
this regulation, the person:
(a) has been convicted of an offence against a
Commonwealth, State or Territory law punishable by imprisonment for 1 year or
longer; or
(b) has been convicted of an offence against a
Commonwealth, State or Territory law that involves dishonesty and is punishable
by imprisonment for 6 months or longer; or
(c) has been the subject of an order by a court
in relation to a civil remedy provision in connection with the negotiation of:
(i) a workplace agreement (whether or
not as a bargaining agent); or
(ii) a State agreement under a State
law; or
(d) has been convicted of an offence under the
Act or the Criminal Code.
(5) A person to whom
subregulation (4) applies is not qualified to be appointed, or to hold an
appointment, as a scrutineer for a period of 5 years starting on the date of
the conviction,
Leave to hold appointment as scrutineer
(6) A person who is not qualified to be appointed, or to
hold an appointment, as a scrutineer under subregulations (2) to (4) may apply
to the Court for leave to hold an appointment as a scrutineer.
(7) If the Court grants leave under this regulation, the
Court may impose any conditions or restrictions that it thinks fit.
(8) The Court may at any time, on the application of the
Workplace Authority Director, revoke leave granted by the Court under this
regulation.
9.21 Scrutineers —
appointment
For regulation 9.19, it is a condition of the
appointment of an organisation, or any other incorporated body, as a scrutineer
that each individual who carries out the functions of a scrutineer on its
behalf is, at all material times, a person who is not disqualified from being a
scrutineer under regulation 9.20.
9.22 Functions of scrutineers
(1) Subject to subregulations (2), (3) and (4):
(a) a scrutineer for a protected action ballot
may be present at the scrutiny of ballot material:
(i) for a ballot conducted by postal
voting — after the authorised ballot agent has acted under subregulation
9.4 (3) to remove the flap or label from the
declaration envelope; or
(ii) for a ballot
conducted by a method of voting other than postal voting — when the
authorised ballot agent is ready to conduct the scrutiny of the ballot
material; and
(b) at the scrutiny mentioned in paragraph (a):
(i) if the
scrutineer objects to a decision that a ballot paper is formal or informal; or
(ii) if
the scrutineer considers that an error has been made in the conduct of the
scrutiny;
the scrutineer
may inform the authorised ballot agent conducting the ballot accordingly.
(2) At any time during
the period of scrutiny, the total number of scrutineers appointed under
regulation 9.19 and in attendance at the scrutiny must not exceed the total
number of people who are:
(a) performing functions and duties as, or on
behalf of, the authorised ballot agent; and
(b) engaged on the scrutiny at that time.
(3) If a person fails to
produce the person’s instrument of appointment as a scrutineer for inspection
by the authorised ballot agent conducting the ballot, when requested by the
agent to do so, the agent may refuse to allow the person to attend or act as a
scrutineer.
(4) If a person:
(a) is not entitled to
be present, or to remain present, at a scrutiny; or
(b) interrupts the
scrutiny of a ballot, except to perform a function mentioned in paragraph (1)
(b);
the authorised ballot agent conducting
the ballot may direct the person to leave the place where the scrutiny is being
conducted.
(5) A person to whom a
direction is given under subregulation (4) must comply with the direction.
(6) Strict liability applies to the physical elements in
subregulation (5).
Note For strict liability,
see section 6.1 of the Criminal Code.
(3) Subregulation (5)
is a civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
9.23 Powers and duties of authorised independent
advisers
An authorised independent adviser may exercise the
following powers and perform the following duties:
(a) being present at
the conduct of any part of a protected action ballot (including the scrutiny of
the roll of voters);
(b) receiving
complaints about irregularities from the applicant or applicants, an employee
or the employer;
(c) requesting
information held by the authorised ballot agent in relation to the ballot,
including information provided to the authorised ballot agent under section 486
of the Act;
(d) making a lawful
recommendation with which the authorised ballot agent must comply;
(e) setting out in his
or her report under subsection 477 (4) of the Act whether the ballot agent
complied with a recommendation under paragraph (d).
Division 5 Industrial action not to be engaged in before nominal expiry
date of workplace agreement or workplace determination
9.24 Industrial
action etc must not be taken before nominal expiry date of collective agreement
or workplace determination
(1) For paragraphs 494 (7) (d) and
494 (8) (e) of the Act, a person to whom significant harm is
reasonably likely to be caused by industrial action engaged in by an employer,
employee or organisation of employees is prescribed.
Note Under subsection 494 (8) of the
Act, an application for an order under subsection 494 (5), in
relation to a contravention of subsection 494 (3) (under which an
employer must not engage in industrial action against an employee whose
employment is subject to an agreement or determination in certain
circumstances), may be made by specified persons or a person prescribed by the
regulations.
(2) For subregulation (1), in considering whether
significant harm is reasonably likely to be caused by the industrial action,
the Court may have regard to the following:
(a) if the person is an employee — the
extent to which the action affects the interests of the person as an employee;
(b) the extent to which the person is
particularly vulnerable to the effects of the action;
(c) the extent to which the action threatens
to:
(i) damage the ongoing viability of a
business carried on by the person; or
(ii) disrupt the supply of goods or
services to a business carried on by the person; or
(iii) reduce the person’s capacity to
fulfil a contractual obligation; or
(iv) cause other economic loss to the
person;
(d) any other matters that the Court considers
relevant.
Note 1 The criteria mentioned in
subregulation (2) are the same as the criteria applied by the Commission for
the purpose of considering whether industrial action is threatening to cause
significant harm to a person for paragraph 433 (1) (d) of the Act.
Note 2 Under subsections
494 (4) and (5) of the Act:
(a) a breach of subsection 494 (3) is a civil remedy
provision; and
(b) the Court will consider any application made by a
person who claims to be covered by subregulation (1).
9.25 Industrial
action must not be taken before nominal expiry date of ITEA
(1) For paragraphs 495 (6) (c) and
495 (7) (d) of the Act, a person to whom significant harm is
reasonably likely to be caused by industrial action engaged in by an employer,
employee or organisation of employees is prescribed.
Note Under subsection 495 (7) of the
Act, an application for an order under subsection 495 (4), in
relation to a contravention of subsection 495 (2) (under which an
employer must not engage in industrial action against an employee in certain
circumstances), may be made by specified persons or a person prescribed by the
regulations.
(2) For subregulation (1), in considering whether
significant harm is reasonably likely to be caused by the industrial action,
the Court may have regard to the following:
(a) if the person is an employee — the
extent to which the action affects the interests of the person as an employee;
(b) the extent to which the person is particularly
vulnerable to the effects of the action;
(c) the extent to which the action threatens
to:
(i) damage the ongoing viability of a
business carried on by the person; or
(ii) disrupt the supply of goods or
services to a business carried on by the person; or
(iii) reduce the person’s capacity to
fulfil a contractual obligation; or
(iv) cause other economic loss to the
person;
(d) any other matters that the Court considers
relevant.
Note 1 The criteria mentioned in
subregulation (2) are the same as the criteria applied by the Commission for
the purpose of considering whether industrial action is threatening to cause
significant harm to a person for paragraph 433 (1) (d) of the Act.
Note 2 Under subsections
495 (3) and (4) of the Act:
(a) a breach of subsection 495 (2) is a civil remedy
provision; and
(b) the Court will consider any application made by a
person who claims to be covered by subregulation (1).
9.26 Application of the Criminal Code to civil
remedy provisions
Unless the contrary intention
appears in the Act or these Regulations, Chapter 2 of the Criminal Code
(other than section 13.2 and Part 2.7) applies to civil remedy provisions in
this Part as if those provisions were offences.
Part 10 Awards
Division 2 Terms that may be
included in awards
Subdivision D Regulations
relating to part‑time employees
10.1 Award
conditions for part‑time employees
(1) For paragraph 526 (1) (b) of the Act,
this Subdivision applies only in relation to:
(a) an award that does not provide for part‑time
employment as a type of employment under the award; or
(b) an award that:
(i) provides for part‑time
employment as a type of employment; but
(ii) limits the application of pro‑rata
conditions for part‑time employees to:
(A) a period of part‑time
employment after parental leave; or
(B) a specified class of
work.
Note A specified class of work could be
identified by reference to the nature of the work, for example:
(a) work as a cleaner; or
(b) work in particular classifications (such as clerical
office employees).
If a specified class of work is identified, all other part‑time
employees outside that class would be affected by the regulation.
(2) The award has effect in relation to the matter so
that conditions (other than the conditions mentioned in sub‑subparagraph
10.1 (1) (b) (ii) (A) or (B)) to which a part‑time
employee is otherwise entitled under the award are adjusted, in accordance with
this regulation, in proportion to the hours worked by the part‑time
employee.
(3) The adjustment is to be made on a pro‑rata
basis, in accordance with the following principles:
(a) the conditions are to be adjusted on a pro‑rata
basis, using all hours worked by the part‑time employee for which the
part‑time employee is entitled to be paid;
(b) if time spent in approved training forms part
of the hours for which a part‑time employee to whom a training
arrangement applies is entitled to be paid, that time is to be counted as time
worked by the employee;
(c) the application of the pro‑rata basis
does not affect any condition that is not related directly to the hours worked
by:
(i) employees in general; or
(ii) the part‑time employee;
(d) the pro‑rata basis is to be applied in
relation to conditions to which a full‑time employee who is doing the
same kind of work is entitled under the award.
Example for paragraph (c)
Conditions that provide an entitlement to the
reimbursement of expenses incurred in the course of employment (for example,
reimbursement of meal expenses) do not relate directly to the hours worked by
the part‑time employee: the fact that meals will be required at
particular times is only incidental to the hours that the part‑time
employee works. Therefore, the condition will continue to apply in full to the
part‑time employee despite the application of the pro‑rata basis.
Division 3 Preserved
award entitlements
10.2 Preservation of certain award terms
(1) For paragraph 527 (8) (a) of the Act,
parental leave does not include one or both of the following:
(a) special maternity
leave (within the meaning of section 265 of the Act);
(b) the entitlement under section 268 of the Act
to transfer to a safe job or to take paid leave.
Note The effect of excluding these terms is that the entitlement in relation to
that form of leave or matter under the Australian Fair Pay and Conditions
Standard will automatically apply.
(2) For paragraph 527 (8) (b) of the Act,
personal/carer’s leave does not include one or both of the following:
(a) compassionate
leave (within the meaning of section 257 of the Act);
(b) unpaid carer’s leave (within the meaning of
section 244 of the Act).
Note The effect of excluding these terms is that the entitlement in relation to
that form of leave or matter under the Australian Fair Pay and Conditions
Standard will automatically apply.
10.3 Meaning of more generous
(1) For paragraph 530 (1) (a) of the Act,
this regulation explains how to determine whether an employee’s entitlement
under a preserved award term in relation to:
(a) annual leave; or
(b) personal/carer’s leave; or
(c) parental leave, including maternity and
adoption leave;
is more generous than the employee’s
entitlement in relation to the corresponding matter under the Australian Fair
Pay and Conditions Standard.
(2) The entitlements are to be
compared on the basis of their effect on the employee alone, rather than on the
basis of their effect on employees generally.
Note 1 The comparison between entitlements will
focus on the individual employee’s entitlements.
Note 2 A type of employee may have an
entitlement under a preserved award term, but not a corresponding entitlement
under the Australian Fair Pay and Conditions Standard. For example, a casual
employee may have an entitlement to annual leave under a preserved award term,
but is not covered by the Australian Fair Pay and Conditions Standard. In this
example, the casual employee would retain the entitlement under the preserved
award term.
(3) However:
(a) if the total
annual quantum of a kind of leave permitted under the
preserved award term is greater than the total annual quantum of that kind of leave permitted under the Australian Fair
Pay and Conditions Standard, the entitlement specified under the preserved
award term is taken to be more generous; and
(b) if the total annual quantum of a kind of
leave permitted under the preserved award term is less than or equal to the total
annual quantum of that kind of leave permitted under the Australian Fair Pay
and Conditions Standard, the entitlement under the Australian Fair Pay and
Conditions Standard has effect.
Examples of comparisons between preserved
award terms and the Australian Fair Pay and Conditions Standard for a full‑time
employee
|
Preserved award term
|
Australian Fair Pay and Conditions Standard
|
The entitlement that applies is set out in
|
|
1 Annual
leave
|
|
Workers
other than shift workers
|
|
Not more than 4 weeks
|
4 weeks
|
Australian Fair Pay and Conditions Standard
|
|
More than 4 weeks
|
4 weeks
|
the preserved award term
|
|
Shift
workers
|
|
Not more than 5 weeks
|
5 weeks
|
Australian Fair Pay and Conditions Standard
|
|
More than 5 weeks
|
5 weeks
|
the preserved award term
|
|
2 Personal/carer’s
leave
|
|
Sum of paid sick leave and paid carer’s leave of not more than
10 days
|
10 days paid personal leave, of which 10 days can be taken as
carer’s leave in any 12 month period
|
Australian Fair Pay and Conditions Standard
|
|
Sum of paid sick leave and paid carer’s leave of more than 10
days
|
10 days paid personal leave, of which 10 days can be taken as
carer’s leave in any 12 month period
|
the preserved award term
|
|
Note An
entitlement to war service sick leave or infectious diseases leave or any
other like form of sick leave under a preserved award term is treated as a
separate entitlement in accordance with regulation 10.4. Therefore, the
entitlement is not the subject of a comparison between entitlements under the
preserved award term and the Australian Fair Pay and Conditions Standard
because there is no comparable entitlement under the Australian Fair Pay and
Conditions Standard.
|
|
3 Parental
leave
|
|
Not more than 52 weeks unpaid leave
|
52 weeks unpaid leave
|
Australian Fair Pay and Conditions Standard
|
|
More than 52 weeks unpaid leave
|
52 weeks unpaid leave
|
the preserved award term
|
|
52 weeks unpaid leave plus a right to request additional leave
|
52 weeks unpaid leave
|
the preserved award term
|
|
Note An entitlement to paid
parental leave is treated as a separate entitlement in accordance with
regulation 10.5. Therefore, the entitlement is not the subject of a
comparison between entitlements under the preserved award term and the
Australian Fair Pay and Conditions Standard because there is no comparable
entitlement under the Australian Fair Pay and Conditions Standard.
|
(3A) A reference in the table in subregulation (3) to
a period of annual leave or personal/carer’s leave is a reference to paid
annual leave or personal/carer’s leave.
(4) If, under this regulation, an entitlement under the Australian Fair Pay and Conditions Standard, or the preserved award term, is taken to
be more generous, the entitlement is to be applied in accordance with the
administrative provisions and other arrangements (if any) that relate to the
entitlement.
10.4 Modifications in relation to personal/carer’s leave
For subsection 531 (1) of the Act, a
preserved award term about personal/carer’s leave is to be treated as a
separate preserved award term about separate matters, to the extent that the
preserved award term is about any of the following:
(a) war service sick
leave;
(b) infectious diseases sick leave;
(c) any other like form of sick leave.
Note There is no entitlement to war service
sick leave, infectious diseases sick leave or any other like form of sick leave
under the Australian Fair Pay and Conditions Standard.
Therefore, if:
(a) there are entitlements in
relation to personal/carer’s leave under the preserved award term and the
Australian Fair Pay and Conditions Standard; and
(b) there is an entitlement to
war service sick leave, infectious diseases sick leave or any other like form
of sick leave under the preserved award term;
the effect of
this regulation is that the entitlement to war service sick leave, infectious
diseases sick leave or any other like form of sick leave will continue to
operate independently of the entitlement which applies in relation to
personal/carer’s leave under either the preserved award term or the Australian
Fair Pay and Conditions Standard.
10.5 Modifications in relation to parental leave
For subsection
532 (1) of the Act, a preserved award term about parental leave is to be
treated as being about separate matters to the extent that it is about paid and
unpaid parental leave.
Note There is no entitlement in relation to
paid parental leave under the Australian Fair Pay and Conditions Standard.
Therefore, if:
(a) there is an entitlement in
relation to parental leave, including maternity and adoption leave, under the
preserved award term and the Australian Fair Pay and Conditions Standard; and
(b) there
is an entitlement to paid parental leave under the preserved award term;
the effect of
this regulation is that the entitlement to paid parental leave will continue to
operate independently of the entitlement which applies in relation to parental
leave under either the preserved award term or the Australian Fair Pay and
Conditions Standard.
Division 6 Binding additional employers, employees and organisations to
awards
10.7 Process
for valid majority of employees
(1) For section 562 of the Act, a valid majority of the
employees of an employer is constituted for the purposes of Division 6 of Part
10 of the Act if:
(a) the employer has given all of the employees
at least 7 days notice to consider the application to be bound by the award;
and
(b) the employer has made copies of the award
readily available to the employees for at least the period of notice under paragraph
(a); and
Note An employer may decide to make
copies of the award readily available by providing an electronic copy of the
award to the employees (eg via an intranet service or e‑mail).
Employees would need to have ready access to facilities that would enable them
to view the award in electronic form.
(c) either:
(i) if the decision is made by
vote — a majority of the employees who cast a valid vote have decided that
they want to be bound by the award; or
(ii) otherwise — a majority of the
employees decide that they want to be bound by the award.
(2) For section 562 of the Act, a valid majority of a
class of employees of an employer is constituted for the purposes of Division 6
of Part 10 of the Act if:
(a) the employer has given all of the employees
in the class at least 7 days notice to consider the application to be bound by
the award; and
(b) the employer has made copies of the award
readily available to the employees in the class for at least the period of
notice under paragraph (a); and
Note An employer may decide to make
copies of the award readily available by providing an electronic copy of the
award to the employees (eg via an intranet service or e‑mail).
Employees would need to have ready access to facilities that would enable them to
view the award in electronic form.
(c) either:
(i) if the decision is made by
vote — a majority of the employees in the class who cast a valid vote have
decided that they want to be bound by the award; or
(ii) otherwise — a majority of the
employees in the class decide that they want to be bound by the award.
Part 12 Minimum
entitlements of employees
Division 1 Entitlement
to meal breaks
12.1 Displacement of entitlement to meal breaks
(1) For paragraph 608 (c) of the Act, the
following industrial agreements are prescribed:
(a) a pre‑reform
certified agreement;
(b) a preserved State agreement;
(c) a transitional award;
(d) a notional agreement preserving State awards;
(e) an old IR agreement;
(f) a pre‑reform AWA;
(g) a common rule continued in effect by clause
82 of Schedule 6 to the Act.
(2) In subregulation (1):
notional agreement preserving State awards has
the meaning given by Schedule 8 to the Act.
old IR agreement has the meaning given by
Schedule 7 to the Act.
pre‑reform AWA has the meaning given by
Schedule 7 to the Act.
pre‑reform certified agreement has the
meaning given by Schedule 7 to the Act.
preserved State agreement has the meaning
given by Schedule 8 to the Act.
transitional award has the meaning given by
Schedule 6 to the Act.
Division 4 Termination
of employment
12.2 Interpretation for Division 4
(1) In this Division:
authorised leave,
in relation to an employee, means leave authorised by:
(a) the employer; or
(b) the Australian Fair Pay and Conditions
Standard; or
(c) a workplace agreement; or
(d) an award; or
(e) a transitional award; or
(f) an award or order of a court or tribunal
that has power to fix wages and other terms and conditions of employment; or
(g) a pre‑reform certified agreement; or
(h) a pre‑reform AWA; or
(i) a State employment agreement; or
(j) an employment agreement within the meaning
of section 887 of the Act; or
(k) an old IR agreement (within the meaning given
by Schedule 7 to the Act); or
(l) the employee’s contract of employment; or
(m) a law of the Commonwealth, or of a State or
Territory.
industrial instrument means any of the
following:
(a) a workplace agreement;
(b) a workplace determination;
(c) an award;
(d) a pre‑reform AWA;
(e) a pre‑reform certified agreement;
(f) a section 170MX award (within the meaning
given by Schedule 7 to the Act);
(g) a transitional award;
(h) a preserved State agreement;
(i) a notional agreement preserving State
awards;
(j) a State employment agreement;
(k) a State award.
(2) In this Division, a word
or expression that is defined in the Termination of Employment Convention has
the meaning given by that Convention.
12.3 Specified rate
For paragraphs 638 (6) (b) and
(7) (b) of the Act, the specified rate is:
(a) $94 900 per
year; or
(b) the rate worked out by indexing that amount
in accordance with regulation 12.6.
12.4 Rate of remuneration per year
For paragraph 638 (7) (b) of the Act,
the rate of remuneration per year that is taken to be applicable to an employee
immediately before termination is:
(a) for an employee who was continuously
employed by the employer and was not on leave without full pay at any time
during the period of 12 months immediately before termination — the
greater of:
(i) the
remuneration that the employee actually received in that period; and
(ii) the
remuneration that the employee was entitled to receive in that period; or
(b) for an employee who was continuously
employed by the employer and was on leave without full pay at any time during
the period of 12 months immediately before termination — the total of:
(i) the
actual remuneration received by the employee for the days during that period
that the employee was not on leave without full pay; and
(ii) for the days that the employee
was on leave without full pay an amount worked out using the formula:
(c) for an employee who was continuously
employed by the employer for a period less than 12 months immediately before
termination — the amount worked out using the formula:
12.5 Amount taken to have been received by the employee
For paragraphs
654 (11) (b) and 665 (3) (b) of the Act, an employee is
taken to have received the remuneration that the employee would ordinarily have
received during the period of leave if the employee had not been on leave
without pay or without full pay.
12.6 Annual indexation of certain amounts
(1) This regulation prescribes a formula under which
each of the following amounts (the indexable amount) is to be
varied annually by the indexation factor (if any):
(a) the amount
mentioned in regulation 12.3;
(ab) the amount mentioned in paragraph 19.9 (1) (b);
(b) the amount mentioned in paragraph
654 (12) (b) of the Act;
(c) the amount mentioned in paragraph
665 (4) (b) of the Act.
(2) In this regulation:
base weekly earnings average means:
(a) for the amount mentioned in regulation
12.3 — the last amount published by the Australian Statistician before
1 July 2005 as an estimate (except a preliminary estimate) of the average
total weekly earnings (seasonally adjusted) for full‑time adult employees
of all employees in Australia in a particular month; and
(ab) for the amount mentioned in paragraph 19.9
(1) (b) — the last amount published by the Australian Statistician before
1 July 2006 as an estimate (except a preliminary estimate) of the average
total weekly earnings (seasonally adjusted) for full‑time adult employees
of all employees in Australia in a particular month; and
(b) for the amount mentioned in paragraph 654 (12) (b)
or 665 (4) (b) of the Act — the last amount
published by the Australian Statistician before 1 July 1996 as an estimate
(except a preliminary estimate) of the average total weekly earnings
(seasonally adjusted) for full‑time adult employees of all employees in
Australia in a particular month.
current weekly earnings
average, in relation to an indexation
day, means the last amount published by the Australian Statistician before that
day as an estimate (except a preliminary estimate) of the average total weekly
earnings (seasonally adjusted) for full‑time adult employees of all
employees in Australia in a particular month.
indexation day means 1 July in a year.
indexation factor,
for an indexation day, means the number, worked out to 3 decimal places,
resulting from the following formula:
(3) If at any time (whether
before or after the commencement of this regulation) the Australian
Statistician publishes an estimate of the average total weekly earnings
(seasonally adjusted) for full‑time adult employees in a particular month
in substitution for such an estimate (except a preliminary estimate) previously
published by the Australian Statistician for that month, the publication of the
later estimate is to be disregarded for the purposes of this regulation.
(4) Subject to subregulation
(5), if, on any indexation day, the indexation factor is greater than 1, then,
on and after that day, until a later application of this subregulation, an
indexable amount is taken to be replaced by the amount worked out by
multiplying the indexable amount by the indexation factor.
(5) If an amount worked out under subregulation (4) is
not $100, or a multiple of $100:
(a) if the amount is
not $50, or a multiple of $50 — it is to be rounded up or down to $100, or
the nearest amount that is a multiple of $100 as appropriate; or
(b) if the amount is $50, or a multiple of
$50 — it is to be rounded up to $100, or the next highest amount that is a
multiple of $100 as appropriate.
12.7 Schedule of costs (Act, s 658)
(1) For subsection
658 (7) of the Act, the schedule of costs set out in Schedule 7 is
prescribed.
Note 1 Under subsection 658 (9) of the Act,
in awarding costs, the Commission is not limited to the items of expenditure
mentioned in Schedule 7. However, if an item of expenditure is mentioned in
Schedule 7, the Commission must not award costs for that item at a rate or of
an amount in excess of the rate or amount mentioned in Schedule 7 for that
item.
Note 2 An application for an order for costs
must be made in accordance with the
Australian Industrial Relations Commission Rules 1998.
(2) The Commission
may allow the costs of briefing more than 1 counsel only if the Commission
before which all counsel appear certifies that such attendance is necessary.
Note It is likely that
certification under subregulation (2) would occur only in relation to a very
large or complex case.
(3) If the Commission considers it
appropriate, a charge applicable to a solicitor in Schedule 7 is applicable to
a person who:
(a) is not
a solicitor; and
(b) is mentioned in section 100
of the Act.
Note Section 100 of the Act
sets out who may represent a party to a proceeding before the Commission.
(4) A bill of costs
must identify, by an item number, each cost and disbursement claimed.
(5) In exercising its discretion under item 1002 of Schedule 7,
the Commission must have regard to commercial rates for copying and binding and
is not obliged to apply the photographic or machine‑made copy costs
otherwise allowable in the Schedule.
(6) In Schedule 7:
folio means 72 words.
Note There are generally 3 folios to a page.
12.8 Temporary absence because of illness or injury
(1) For paragraph 659 (2) (a) of the Act, an
employee’s absence from work because of illness or injury is a temporary
absence if:
(a) the employee provides a medical certificate
for the illness or injury within:
(i) 24 hours
after the commencement of the absence; or
(ii) such
longer period as is reasonable in the circumstances; or
(b) the employee:
(i) is required by the terms of an
industrial instrument to:
(A) notify
the employer of an absence from work; and
(B) substantiate
the reason for the absence; and
(ii) complies
with those terms; or
(c) the employee has provided the employer with
a required document in accordance with section 254 of the Act.
(2) Subregulation (1) does not apply if:
(a) the employee’s
absence extends for more than 3 months, unless the employee is on paid sick
leave for the duration of the absence; or
(b) the total absences of the employee, within a
12 month period, whether based on a single or separate illnesses or injuries,
extend for more than 3 months, unless the employee is on paid sick leave for
the duration of the absences.
(3) In this regulation:
medical certificate has the meaning given by section 240 of the Act.
Note Any finding that an absence is not a temporary
absence for paragraph 659 (2) (a) of the Act is without
prejudice to the rights of an employee whose employment has been terminated by
an employer on the basis of such an absence:
(a) to apply to the Commission for relief under
subsection 643 (1), on the ground, or on grounds including the ground,
that the termination was harsh, unjust or unreasonable; or
(b) to apply under a law of a State on the ground that
the termination was harsh, unjust or unreasonable (however described);
in respect of the termination of
that employment.
12.9 Prescribed notice of intended terminations ¾
subsection 660 (2) of the Act
For subsection 660 (2) of the Act:
(a) the prescribed
body is Centrelink; and
(b) the prescribed form is Form 4 of Schedule 1.
12.10 Required period of notice — exception for serious misconduct
(1) For paragraph 661 (1) (c) of the Act, serious
misconduct includes:
(a) wilful, or
deliberate, behaviour by an employee that is inconsistent with the continuation
of the contract of employment; and
(b) conduct that causes imminent, and serious,
risk to:
(i) the
health, or safety, of a person; or
(ii) the
reputation, viability or profitability of the employer’s business.
(2) For subregulation (1), conduct that is serious
misconduct includes:
(a) the employee, in the course of the
employee’s employment, engaging in:
(i) theft;
or
(ii) fraud;
or
(iii) assault;
or
(b) the employee being
intoxicated at work; or
(c) the employee refusing to carry out a lawful
and reasonable instruction that is consistent with the employee’s contract of
employment.
(3) Subregulation (2) does not
apply if the employee is able to show that, in the circumstances, the conduct
engaged in by the employee was not conduct that made employment in the period
of notice unreasonable.
(4) For this regulation, an
employee is taken to be intoxicated if the employee’s faculties are, by reason
of the employee being under the influence of intoxicating liquor or a drug
(except a drug administered by, or taken in accordance with the directions of,
a person lawfully authorised to administer the drug), so impaired that the
employee is unfit to be entrusted with the employee’s duty or with any duty
that the employee may be called upon to perform.
12.11 Required period of notice — ascertaining period
of continuous service
(1) For subsection 661 (3) of the Act, in
ascertaining an employee’s period of continuous service, the following actions
and events must be disregarded:
(a) a termination,
suspension, stand down or other interruption imposed by the employer for the
purpose of avoiding an obligation under section 661 of the Act;
(b) absence of the employee, on authorised leave,
from work;
(c) absence of the employee from work due to:
(i) the
employee’s illness; or
(ii) an injury
to the employee;
(d) absence of the
employee from work, if there was reasonable cause for the absence;
(e) absence of the employee from work due to:
(i) action
that is protected action under section 435 of the Act; or
(ii) a reason
that would have been disregarded if paragraph 30CB (1) (e) of the pre‑reform
Regulations were still in effect;
(f) any other absence
from work, unless the employer has given the employee notice, under
subregulation (4), that the employer will take an absence by the employee to
break the employee’s continuity of service with the employer.
(2) Paragraphs (1) (c) and (d) do not apply
unless:
(a) if the employee is
required, under an industrial instrument, to notify the employer of an absence
and to substantiate the reason for the absence — the employee has done so;
or
(b) in any other case — the employee
informs the employer within 24 hours after the commencement of the absence, or
such longer period as is reasonable in the circumstances, of:
(i) the
employee’s absence; and
(ii) whether
the absence is due to illness, injury or other reason; and
(iii) the
likely duration of the absence.
(3) Paragraph (1) (e) does not
apply if the Commission or a State industrial authority has determined that,
for the purpose of determining the employee’s entitlement to notice of
termination or to compensation instead of notice, an absence is to be taken as
breaking the employee’s continuity of service.
(4) For paragraph (1) (f), notice must be given:
(a) in writing; and
(b) by delivering it to the employee personally
or posting it to the employee’s last known address; and
(c) during, or within 14 days after the end of,
the period of absence.
(5) A notice under paragraph (1) (f):
(a) may be withdrawn
by the employer; and
(b) if withdrawn, is taken not to have been
given.
12.12 Compensation in lieu of required period of notice —
commission or piece rates employees
For paragraph 661
(5) (c) of the Act, the amount taken to be payable, under an employee’s
contract of employment, to an employee whose remuneration before termination
was determined wholly or partly on the basis of commission or piece rates is
the average actual remuneration received by the employee:
(a) for an employee
who was continuously employed by the employer for a period of 3 months or more
immediately before termination — in the 3 months before termination;
or
(b) for an employee who was continuously employed
by the employer for a period less than 3 months immediately before
termination — in that period.
12.13 Inapplicability of section 661 of the Act — succession,
assignment or transmission of business
(1) There is excluded from the operation of section 661
of the Act a termination of employment that occurs because of the succession,
assignment or transmission of the business of the employer (the former
employer) to another person (the new employer) if:
(a) the employee is
employed by the new employer after the succession, assignment or transmission;
and
(b) either:
(i) the new
employer is under an obligation, enforceable by the employee, to recognise, for
subsection 661 (2) of the Act, the employee’s entire period of service to
the former employer as continuous with service to the new employer; or
(ii) the new employer is under an
obligation to:
(A) give
the period of notice that is equivalent to the relevant period; or
(B) pay
the relevant amount of compensation;
in the
event that the new employer terminates the employee’s employment (except for
serious misconduct) during the period, starting from the date of succession,
assignment or transmission, that is equivalent to the relevant period.
(2) In this regulation:
relevant period means the period of notice that, but for this regulation,
the former employer would have been required to give to the employee under
section 661 of the Act by reason of the employee’s employment by the former
employer having been terminated at the time when the succession, assignment or
transmission occurred.
relevant amount of
compensation means the amount of
compensation equivalent to the amount of compensation instead of notice that
the new employer would be required to pay to the employee under section 661 of
the Act if the required period of notice for the purposes of that section was
equivalent to the relevant period.
Part 13 Dispute
resolution processes
Division 2 Model dispute resolution process
13.1 Alternative dispute resolution process —
parties cannot agree on a provider
For subsection 696 (4) of the Act, the
following information is prescribed:
(a) information about the
dispute resolution services that are provided by the AIRC and the dispute
resolution services that may be provided by private providers;
(b) information about the register of private
dispute resolution bodies providing alternative dispute resolution processes;
(c) information about funding that may be
available to help subsidise the cost of alternative dispute resolution
processes.
Note It is expected that the Department of
Employment and Workplace Relations will prepare and make available Fact Sheets
about these issues for the information of parties and potential parties.
Division 3 Alternative dispute resolution process conducted by
Commission under model dispute resolution process
13.2 Dispute resolution processes — application
(1) For paragraph 699 (2) (a)
of the Act, an application to the Commission to have an alternative dispute
resolution process conducted by the Commission under Division 3 of Part 13 of
the Act must be in accordance with Form 5 of Schedule 1.
(2) For paragraph
704 (2) (a) of the Act, an application to the Commission to have an
alternative dispute resolution process conducted by the Commission under
Division 4 of Part 13 of the Act must be in accordance with Form 5
of Schedule 1.
(3) For paragraph
709 (2) (a) of the Act, an application to the Commission to have an
alternative dispute resolution process conducted by the Commission under
Division 5 of Part 13 of the Act must be in accordance with Form 5 of Schedule
1.
Part 14 Compliance
Note Transitional provisions relating to compliance are
located in Division 14 of Part 2 of Chapter 7.
Division 2 Penalties and other remedies for contravention of applicable
provisions
14.1 Recovery of wages etc — small claims procedure
(1) For paragraph 724 (b) of the Act, the manner
in which a person indicates that he or she wants a small claims procedure to
apply to an action that the person starts in a magistrate’s court is:
(a) by:
(i) endorsing the papers initiating
the action with a statement that the person wants a small claims procedure to
apply to the action; or
(ii) lodging with the magistrate’s
court a paper that identifies the action and states that the person wants a
small claims procedure to apply to the action; and
(b) by serving a copy of the papers initiating
the action, together with a copy of the paper (if any) mentioned in
subparagraph (a) (ii), on every other party to the action.
(2) Subregulation (1) does not apply to an action that a
person starts in a magistrate’s court if rules of court relating to that court
prescribe the manner in which the person indicates that he or she wants a small
claims procedure to apply to the action.
14.2 Recovery of small claims under award, order, ITEA or certified agreement — maximum amount
For paragraph 725 (2) (a) of the Act, the
prescribed amount is $10 000.
Note Paragraph 725 (2) (a) of
the Act relates to certain small claims actions. Under the paragraph, the court
may not award an amount exceeding $5 000 or a higher prescribed amount.
Division 3 General
provisions relating to civil remedies
14.3 Standing for civil remedies
(1) A workplace inspector may
apply to:
(a) the Federal Court;
or
(b) the
Federal Magistrates Court;
for an order for a contravention of a
civil remedy provision in Part 4 or 8 of this Chapter.
(2) A workplace inspector may
apply to a section 717 court for an order for a contravention of a civil
remedy provision in these Regulations, other than a civil remedy provision in
Part 4 or 8 of this Chapter.
14.4 Court may order pecuniary penalty
A court to which
regulation 14.3 applies may order a person who contravenes a civil remedy
provision in these Regulations to pay a pecuniary penalty of up to the maximum
penalty
permissible under paragraph 846 (2) (g) of the Act.
14.5 Multiple contraventions of civil remedy provisions
(1) This regulation applies
if:
(a) a person commits 2
or more contraventions of a civil remedy provision of these Regulations; and
(b) each contravention
relates to the same action or course of conduct of the person.
(2) The contraventions are
taken, for these Regulations, to be a single contravention of the civil remedy provision.
(3) However,
if:
(a) a penalty has been
imposed on the person in relation to a contravention of a civil remedy provision
relating to an action or course of conduct of the person; and
(b) the person
subsequently commits a contravention of the civil remedy provision relating to
the same action or course of conduct;
subregulation (2) does not apply to the
contravention mentioned in paragraph (b).
Note The intention of subregulations (2) and
(3) is that multiple contraventions of a civil remedy provision, in relation to
the same action or course of conduct, will be treated as a single contravention
until a penalty is imposed on the person.
Multiple contraventions after that
time, in relation to the same action or course of conduct, will be treated as a
single, but separate, contravention of the civil remedy provision. If another
penalty is imposed, subsequent contraventions will again be treated as a
single, but separate, contravention of the civil remedy provision.
14.6 Crown not liable to penalty for contravention of
civil remedy provision
Nothing in this Division
makes the Crown in right of the Commonwealth, a State or a Territory liable to
proceedings for a contravention of a civil remedy provision in these
Regulations.
Part 15 Right of
entry
Division 1 Preliminary
15.1 Definitions — OHS law
(1) For the definition of OHS law in
section 737 of the Act, the following laws are prescribed:
(a) the Occupational
Health and Safety Act 2000 of New South Wales;
(b) the Occupational Health and Safety Act
2004 of Victoria;
(c) the Workplace Health and Safety Act 1995 of
Queensland;
(d) the Occupational Health and Safety Act
1989 of the Australian Capital Territory.
(2) For the definition of OHS law in
section 737 of the Act, sections 49G and 49I to 49O of the Industrial
Relations Act 1979 of Western Australia are prescribed, but only to the
extent to which those provisions provide for or relate to a right of entry to
investigate a suspected breach of:
(a) the Occupational
Safety and Health Act 1984 of that State; or
(b) the Mines Safety and Inspection Act 1994
of that State.
Division 2 Issue of
permits
15.2 Issue of permit — form of application
For paragraph 740 (4) (a) of the Act, an
application for the issue of a permit to an official of an organisation must:
(a) be in writing; and
(b) be signed by a member of the committee of
management of the organisation or of the appropriate branch of the organisation;
and
(c) state the name of the official in whose name
the permit is to be issued; and
(d) state the capacity in which the person is an
official.
15.3 Issue of permit — form of permit
For paragraph
740 (4) (a) of the Act, the form of a permit issued to an official of
an organisation is set out in Form 2 of Schedule 1.
Division 3 Expiry,
revocation, suspension, etc of permits
15.4 Revocation, suspension etc by Registrar —
application for revocation of a permit
For subsection 744 (1) of the Act, an application
by a workplace inspector to take action under section 744 of the Act against a
permit holder must:
(a) be made in
writing; and
(b) be signed by the workplace inspector; and
(c) state the grounds on which the application
is made.
Division 4 Right of entry
to investigate suspected breaches
15.5 Exemption from requirement to provide entry
notice — form of application
For paragraph 750 (4) (a) of the Act, an
application by an organisation for an exemption certificate in respect of the
entry onto premises under section 747 of the Act must:
(a) be made in
writing; and
(b) identify the organisation; and
(c) identify the premises to which the
application relates; and
(d) set out particulars of the suspected breach
or breaches to which the application relates; and
(e) state the grounds on which it is alleged
that advance notice of entry onto premises under section 747 of the Act might
result in the destruction, concealment or alteration of relevant evidence; and
(f) be signed by or for the organisation.
15.6 Exemption from requirement to provide entry
notice — form of exemption certificate
For paragraph
750 (4) (b) of the Act, the form of an exemption certificate is set
out in Form 3.
Division 6 Right of entry
to hold discussions with employees
15.7 Limitation on rights — conscientious objection
certificates
An application under subsection 762 (2) of
the Act must contain a declaration signed by the employer stating that:
(a) the conditions
mentioned in paragraphs 762 (1) (a) and (c) of the Act are
satisfied; and
(b) the employer is a practising member of a
religious society or order whose doctrines or beliefs preclude membership of an
organisation or body other than the religious society or order of which the
employer is a member.
Division 9 Powers of the Commission
15.8 Unreasonable
requests by occupier or affected employee
For subsection
771 (4) of the Act, an application for an order in respect of the rights
of an organisation, or officials of an organisation, to investigate breaches as
mentioned in section 747 of the Act, to enter premises under an OHS law in
accordance with section 756 or 760 of the Act, or to hold discussions with
employees as mentioned in section 760 of the Act, must:
(a) be in writing; and
(b) be signed by:
(i) an official
of the organisation; or
(ii) a permit
holder as mentioned in section 751, 758 or 765 of the Act; and
(c) state the grounds
on which the application is made.
Part 19 Records
relating to employees and pay slips
Division 1 Preliminary
19.1 Purpose of Part 19
(1) For sections 836 and 846
of the Act, these Regulations provide for:
(a) the making and
retention by employers of records relating to the employment of employees; and
(b) the inspection of
records by workplace inspectors; and
(c) the issue of pay
slips to employees by employers.
(2) This Part also provides
for transitional matters arising out of the reform commencement.
19.2 Application of Part 19
(1) This Part applies to:
(a) employees and
employers within the meaning of subsections 5 (1) and 6 (1) of the Act; and
(b) employment within
the meaning affected by subsection 7 (1) of the Act.
(2) This Part applies as if:
(a) a reference to an
employee were a reference to:
(i) an
employee within the meaning of section 858 of the Act; and
(ii) a
transitional employee within the meaning of Schedule 6 to the Act; and
(b) a reference to an
employer were a reference to:
(i) an
employer within the meaning of section 858 of the Act; and
(ii) a
transitional employer within the meaning of Schedule 6 to the Act; and
(c) a reference to
employment were a reference to:
(i) employment
within the meaning of section 858 of the Act; and
(ii) employment
within the meaning of Schedule 6 to the Act.
Note Section 884 of the Act and clause 107C of Schedule 6 to the
Act allow regulations made under section 836 of the Act to deal with matters
relating to record keeping and pay slips mentioned in that section and
Schedule.
19.3 Application of the Criminal Code to civil
remedy provisions
Unless the contrary
intention appears in the Act or these Regulations, Chapter 2 of the Criminal
Code (other than section 13.2 and Part 2.7) applies to civil remedy
provisions in this Part as if those provisions were offences.
Division 2 Rules
concerning keeping records
19.4 Obligation to make and keep records relating to
employees
(1) An employer who employs an
employee must make, or cause to be made, a record in accordance with Divisions
3 and 4 relating to the employee.
(2) Subject to regulation
19.15, an employer must keep, or cause to be kept, an entry in a record:
(a) in the case of a
matter of a kind mentioned in regulation 19.8 or paragraph 19.13 (1) (e) —
for a continuous period of 7 years after the date on which:
(i) the
entry is changed; or
(ii) the
employee’s employment with the employer is terminated;
whichever happens
first; or
(b) in
any other case — for a continuous period of 7 years after the date on
which the entry is made.
(3) Strict liability applies
to the physical elements in subregulations (1) and (2).
Note For strict liability, see section 6.1 of the Criminal
Code.
(4) Subregulations (1) and (2)
are civil remedy provisions.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
19.5 Condition of records
(1) The record relating to the
employee must be in a condition that allows a workplace inspector to determine
the employee’s entitlements and whether the employee is receiving those
entitlements.
(2) Strict liability applies
to a physical element in subregulation (1).
Note For strict liability, see section 6.1 of the Criminal
Code.
(3) Subregulation (1) is
a civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
19.6 Form of records
(1) The record must be:
(a) in a legible form
in the English language; and
(b) in a form that is
readily accessible to a workplace inspector.
(2) Strict liability applies
to a physical element in subregulation (1).
Note For strict liability, see section 6.1 of the Criminal
Code.
(3) Subregulation (1)
is a civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
Division 3 Content
of records
19.7 Content requirement for records
The record relating to
the employee must contain the matters specified in the provisions of Divisions
3 and 4 of this Part to the extent that they apply to the employee.
19.8 Contents of records — general
(1) The record relating to the
employee must contain the following:
(a) the name of the
employer;
(b) the name of the
employee;
(c) whether the
employee’s employment is:
(i) full‑time;
or
(ii) part‑time;
(d) whether the
employee’s employment is:
(i) permanent;
or
(ii) temporary;
or
(iii) casual;
(e) the date on which
the employee’s employment began.
(2) Strict liability applies
to a physical element in subregulation (1).
Note For strict liability, see section 6.1 of the Criminal
Code.
(3) Subregulation
(1) is a civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
19.9 Contents of records — overtime hours worked
(1) If a penalty rate or
loading (however described) must be paid for overtime hours actually worked by
an employee, the record relating to the employee must state:
(a) the number of
overtime hours worked by the employee during each day; or
(b) when the employee
started and ceased working overtime hours.
(2) Strict liability applies
to a physical element in subregulation (1).
Note For strict liability, see section 6.1 of the Criminal
Code.
(3) Subregulation (1) is a
civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
19.10 Contents of records — reasonable additional
hours
(1) If the employer and
employee agree in writing to an averaging of the employee’s hours of work under
section 226 of the Act, the employer must keep a copy of that agreement.
(2) Strict liability applies
to a physical element in subregulation (1).
Note For strict liability, see section 6.1 of the Criminal
Code.
(3) Subregulation (1) is a
civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
19.11 Contents of records — pay
(1) The record relating to the employee must contain
details of the rate of remuneration paid to the employee.
(2) If the employee is a casual or irregular part‑time
employee who is guaranteed a basic periodic rate of pay, the record relating to
the employee must also contain a record of the hours worked by the employee.
(3) If
the employee is entitled to be paid:
(a) an incentive‑based
payment; or
(b) a bonus; or
(c) a loading; or
(d) a penalty rate; or
(e) another monetary
allowance or separately identifiable entitlement;
the record relating to the employee must
contain details of the payment, bonus, loading, rate, allowance or entitlement.
(4) The record relating to the
employee must also contain details of:
(a) the gross and net
amounts paid to the employee; and
(b) any deductions made
from the gross amount paid to the employee.
(5) Strict liability applies
to a physical element in subregulations (1), (2), (3) and (4).
Note For strict liability, see section 6.1 of the Criminal
Code.
(6) Subregulations (1),
(2), (3) and (4) are civil remedy provisions.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
19.12 Contents of records — leave
(1) If the employee is
entitled to leave, the record relating to the employee must contain the
following details:
(a) the accrual of
that leave;
(b) any leave taken by
the employee;
(c) the balance of the
employee’s entitlement to that leave from time to time.
(2) If
the employee has elected to forgo an entitlement to take an amount of leave, an
employer must keep the following:
(a) a copy of the
employee’s written election to forgo the amount of leave;
(b) a record of the
rate of payment for the amount of leave forgone and when the payment was made.
(3) Strict liability applies
to the physical elements in subregulations (1) and (2).
Note For strict liability, see section 6.1 of the Criminal
Code.
(4) Subregulations
(1) and (2) are civil remedy provisions.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
19.13 Contents of records — superannuation
contributions
(1) If the employer is
required to make superannuation contributions for the benefit of the employee,
the record relating to the employee must contain the following:
(a) the amount of the
contributions made;
(b) the period over
which the contributions were made;
(c) the dates on which
the contributions were made;
(d) the name of any
fund to which the contributions were made;
(e) the basis on
which the employer became liable to make the contributions, including:
(i) the
keeping of a record of any election made by the employee as to the fund to
which contributions are to be made; and
(ii) the date
of any relevant election.
(2) Strict liability applies
to a physical element in subregulation (1).
Note For strict liability, see section 6.1 of the Criminal
Code.
(3) Subregulation (1) is a
civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
(4) In subregulation (1):
contributions does not include a contribution in respect of a defined
benefit interest (within the meaning of the Superannuation Industry
(Supervision) Regulations 1994) in a defined benefit fund (within the
meaning of the Superannuation Industry (Supervision) Act 1993).
19.14 Contents of records — termination of employment
(1) If the employee’s
employment is terminated, the record relating to the employee must contain the
following:
(a) whether the
employment was terminated:
(i) by
consent; or
(ii) by
notice; or
(iii) summarily;
or
(iv) in some
other manner, specifying the manner;
(b) the name of the
person who acted to terminate the employment.
(2) Strict liability applies
to a physical element in subregulation (1).
Note For strict liability, see section 6.1 of the Criminal
Code.
(3) Subregulation (1) is a
civil remedy provision.
Note Part 14 of this Chapter sets out provisions
dealing with contraventions of civil remedy provisions.
Division 4 Transmission
of business
19.15 Transmission of business
(1) This regulation applies
if:
(a) a person (the new
employer) becomes a successor, transmittee or assignee of the whole, or
a part, of a business of another person (the old employer);
and
(b) the new employer
employs any of the following persons (a transferring employee):
(i) a
transferring employee within the meaning of sections 581 and 582 of the Act;
(ii) a
transferring transitional employee within the meaning of clauses 72E and 72F of
Schedule 6 to the Act;
(iii) a
transferring employee within the meaning of clauses 5 and 6 of Schedule 9 to
the Act.
(2) Subject to subregulation
(3), the old employer must transfer to the new employer all records concerning
the transferring employee that, at the time of succession, transmission or
assignment, the old employer is required to keep under Divisions 2, 3 and 4.
(3) If the old employer is a
Commonwealth authority, the old employer only has to provide copies of those
records.
(4) If the transferring
employee becomes an employee of the new employer after the time of
transmission, the new employer must request the old employer to provide the new
employer with the transferring employee’s records.
(5) If the old employer
receives a request under subregulation (4), the old employer must transfer
those records to the new employer.
(6) The new employer who
receives transferred records must keep the transferred records as if they had
been made by the new employer at the time they were made by the old employer.
(7) The new employer is not
required to make records relating to the transferring employee’s employment
with the old employer.
(8) Strict liability applies
to the physical elements in subregulations (2), (4), (5) and (6).
Note For strict liability, see
section 6.1 of the Criminal Code.
(9) Subregulations (2), (4),
(5) and (6) are civil remedy provisions.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
Division 5 Miscellaneous
19.16 Alteration and correction of a record
(1) Subject to subregulations
(2) and (3), an employer must not alter a record, or allow a record to
be altered.
(2) An employer must correct
any error in a record as soon as the employer becomes aware of the error.
(3) An employer who corrects
an error in a record must record the nature of the error with the correction.
(4) Strict liability applies
to the physical elements in subregulations (1), (2) and (3).
Note For strict liability, see
section 6.1 of the Criminal Code.
(5) Subregulations (1), (2)
and (3) are civil remedy provisions.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
19.17 False or misleading entry in a record
(1) A person must not make, or
make use of, an entry in any record required to be kept under Division 2, 3 or
4 if the person does so knowing that the entry is false or misleading.
(2) Strict liability applies
to a physical element in subregulation (1).
Note For strict liability, see
section 6.1 of the Criminal Code.
(3) Subregulation (1) is a
civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
19.18 Inspection and copying of a record
(1) An employer must make a
copy of a record available, in accordance with subregulations (2) and (3), on
request by:
(a) the employee, or
the former employee, to whom the record relates; or
(b) a
workplace inspector.
Note Divisions 4 and 5 of Part 15 of the Act deal with a
registered organisation’s right to inspect records in relation to employment.
(2) The employer must make the
copy available in a legible form in the English language to the person making
the request for inspection and copying.
(3) The employer must make
the copy available:
(a) if
the request is from an employee or former employee and the record is kept at
the premises where the employee works or worked — within 3 business days at
those premises or by posting a copy of the record to the employee or former
employee within 14 days of receiving the request; or
(b) if the request is
from a workplace inspector — within 3 business days at the employer’s
business premises or by posting or faxing a copy of the record to the workplace
inspector within 14 days of receiving the request.
(4) Strict liability applies
to the physical elements in subregulations (1), (2) and (3).
Note For strict liability, see section 6.1 of the Criminal
Code.
(5) Subregulation (1) is a
civil remedy provision.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
19.19 Information concerning a record
(1) An employer who has
received a request under subregulation 19.18 must tell a person
entitled to inspect and copy a record, on request, where records relating to an
employee, or a class of employees, are kept.
(2) The person may interview
the employer, or a representative of the employer, at any time during ordinary
working hours, about a record made or to be made by the employer.
(3) The employer must give
reasonable assistance to the person in the conduct of the interview.
(4) Strict liability applies
to the physical elements in subregulation (1) and (3).
Note For strict liability, see section 6.1 of the Criminal
Code.
(5) Subregulations (1) and (3)
are civil remedy provisions.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
Division 6 Pay
slips
19.20 Pay slips
(1) An employer who employs an
employee must issue to the employee a written pay slip relating to each payment
by the employer of an amount to the employee as remuneration.
(2) The pay slip:
(a) must be issued
within 1 day of the payment to which the pay slip relates being made to the
employee; and
(b) may be issued in
electronic form or as hard copy.
(3) The employer must include
on a pay slip particulars specified in regulation 19.21.
(4) Strict liability applies
to the physical elements in subregulations (1) to (3).
Note For strict liability, see section 6.1 of the Criminal
Code.
(5) Subregulations (1) to (3)
are civil remedy provisions.
Note Part 14 of this Chapter sets out
provisions dealing with contraventions of civil remedy provisions.
19.21 Contents of pay slips
(1) For subregulation 19.20 (3),
the following particulars are specified:
(a) the name of the
employer;
(b) the name of the
employee;
(c) the date on which
the payment to which the pay slip relates was made;
(d) the period to which
that pay slip relates;
(e) if the employee
is paid at an hourly rate of pay:
(i) the
ordinary hourly rate; and
(ii) the
number of hours in that period for which the employee was employed at that
rate; and
(iii) the
amount of the payment made at that rate;
(f) if the employee is
paid at an annual rate of pay — that rate as at the latest date to which
the payment relates;
(g) the gross amount
of the payment;
(h) the net amount of
the payment;
(i) any amount paid
that is an incentive‑based payment, bonus, loading, monetary allowance,
penalty rate or other separately identifiable entitlement the employee has;
(j) the details in
respect of each amount deducted from the gross amount of the payment including
the name, or the name and number, of the fund or account into which the
deduction was paid;
(k) if the employer is
required to make superannuation contributions for the benefit of the employee:
(i) the
amount of each contribution that the employer has made for the benefit of the
employee during the period to which the pay slip relates, and the name of any
fund to which that contribution was made; or
(ii) the
amounts of contributions that the employer is liable to make in relation to the
period to which the pay slip relates, and the name of any fund to which those
contributions will be made.
(2) In subregulation (1):
contributions does not include a contribution in respect of a defined
benefit interest (within the meaning of the Superannuation Industry
(Supervision) Regulations 1994) in a defined benefit fund (within the
meaning of the Superannuation Industry (Supervision) Act 1993).
Division 7 Transitional
provisions
19.22 Effect of repeal of pre‑reform Regulations
(1) The repeal of Parts 9A and
9B of the pre‑reform Regulations is taken not to affect:
(a) a right under
those Parts which had accrued before the reform commencement; or
(b) a cause of action
under those Parts which had not been finally determined before the reform
commencement.
(2) Despite the repeal of
Parts IV and 9A of the pre‑reform Regulations, those provisions are taken
to continue to apply to the extent necessary to ensure that:
(a) the penalty
provisions specified in Part 9A of the pre‑reform Regulations continue to
apply in relation to a failure to make or keep a record that was required to be
kept under that Part; and
(b) a record that was
required to be kept for a period of time under that Part is retained for the
relevant period of time; and
(c) a workplace
inspector has the powers set out in Part IV of the pre‑reform Regulations
in respect of the offence provisions specified in Part 9A of the pre‑reform
Regulations.
(3) Despite the repeal of
Parts IV and 9B of the pre‑reform Regulations, those provisions are taken
to continue to apply to the extent necessary to ensure that:
(a) the penalty
provisions specified in Part 9B of the pre‑reform Regulations continue to
apply in relation to a failure to issue pay slips as provided for in that Part;
and
(b) a workplace
inspector has the powers set out in Part IV of the pre‑reform Regulations
in respect of the offence provisions in Part 9B of the pre‑reform
Regulations.
19.23 Application of provisions after transitional award
ceases to operate
(1) After the transitional
award ceases to be in force, Parts IV and 9A of the pre‑reform
Regulations are taken to continue to apply to the extent necessary to ensure
that:
(a) a record that was
required to be kept for a period of time under that Part of the pre‑reform
Regulations is retained for the relevant period of time; and
(b) the penalty
provisions specified in Part 9A of the pre‑reform Regulations continue to
apply in relation to:
(i) records made under that Part; and
(ii) a failure to keep those records as
provided for in that Part; and
(c) a workplace inspector
has the powers set out in Part IV of the pre‑reform Regulations in
respect of the offence provisions specified in Part 9A of the pre‑reform
Regulations.
(2) After the transitional
award ceases to be in force, Parts IV and 9B of the pre‑reform Regulations
are taken to continue to apply to the extent necessary to ensure that:
(a) the
penalty provisions specified in Part 9B of the pre‑reform Regulations
continue to apply in relation to pay slips; and
(b) a workplace
inspector has the powers set out in Part IV of the pre‑reform Regulations
in respect of the offence provisions specified in Part 9B of the pre‑reform
Regulations.
(3) In this regulation, transitional award has
the meaning given in Division 2 of Part 1 of Schedule 6 to the
Act.
Part 19B Infringement notices
Division 1 Preliminary
19.44 Purpose
of Part
(1) The purpose of this Part is to set up a system of
infringement notices for alleged contraventions of infringement notice
penalties as an alternative to the institution of proceedings.
(2) This Part does not:
(a) require an infringement notice to be issued
to a person for an alleged contravention of an infringement notice penalty; or
(b) affect the liability of a person to
proceedings for contravention of an infringement notice penalty if an
infringement notice is not issued to the person for the alleged contravention;
or
(c) prevent the issue of 2 or more infringement
notices to a person for an alleged contravention; or
(d) affect the liability of a person to
proceedings for contravention of an infringement notice penalty if the person
does not comply with an infringement notice for the alleged contravention; or
(e) limit or otherwise affect the penalty that
may be imposed by a court on a person for a contravention.
19.45 Definitions
(1) In this Part:
contravention means a contravention of an
infringement notice penalty.
infringement notice means an infringement
notice under regulation 19.47.
infringement notice penalty has the meaning
given in subregulation (2).
(2) A provision is an infringement notice penalty if:
(a) it is a civil remedy provision in Part 19;
and
(b) strict liability applies to the physical
elements of the provision.
Division 2 Infringement notices
19.46 When
an infringement notice can be given
(1) If a workplace inspector has reasonable grounds to
believe that a person has committed 1 or more contraventions of a particular
infringement notice penalty, the workplace inspector may give to the person
(the recipient) an infringement notice relating to those alleged
contraventions.
(2) An infringement notice must be given within 12
months after the day on which the contraventions are alleged to have taken
place.
(3) This regulation does not authorise the giving of 2
or more infringement notices to a person in relation to contraventions of a
particular infringement notice penalty that allegedly occurred on the same day.
(4) A workplace inspector may only issue an infringement
notice in respect of a contravention that occurs after the end of the period of
6 months starting on the reform commencement.
19.47 Contents
of infringement notice
(1) The infringement notice:
(a) must state the name of the workplace
inspector who issued it; and
(b) must state its date of issue; and
(c) must state the full name, or the surname and
initials, and the address, of the recipient; and
(d) must give
brief details of the alleged contravention for which it is issued, including
the regulation allegedly contravened; and
(e) must state the penalty for the alleged
contravention payable under the notice; and
(f) must state where and how that penalty can be
paid (including, if the penalty can be paid by posting the payment, the place
to which it should be posted); and
(g) must state that, if the recipient pays the
penalty within the time required under regulation 19.49, then (unless the
infringement notice is subsequently withdrawn and any penalty paid refunded):
(i) any liability of the recipient for
the alleged contravention will be discharged; and
(ii) proceedings will not be brought
against the recipient for the alleged contravention; and
(iii) the recipient will not be taken
to have admitted guilt in respect of the alleged contravention; and
(iv) the recipient will not be taken to
have been convicted of the contravention; and
(h) must state the maximum penalty that a
section 717 court could impose on the recipient for the alleged
contravention; and
(i) must state how and to whom (the nominated
person) the recipient can apply to have the notice withdrawn or be
allowed more time to pay the penalty; and
(j) must be signed by the workplace inspector
who issued it.
(2) An infringement notice may contain any other
information that the workplace inspector who issues it thinks necessary.
19.48 Amount
of penalty if infringement notice issued
The penalty for an alleged contravention payable
under the infringement notice for the alleged contravention is:
(a) for an individual — one‑tenth of
the maximum penalty that the section 717 court could impose on an
individual for the contravention; and
(b) for a body corporate — one‑tenth
of the maximum penalty that the section 717 court could impose on a body
corporate for the contravention.
19.49 Time
for payment of penalty
The penalty stated in the infringement
notice must be paid:
(a) within 28 days after the day on which the
notice is served on the recipient; or
(b) if the recipient applies for a further period
of time in which to pay the penalty, and that application is granted —
within the further period allowed; or
(c) if the recipient applies for a further
period of time in which to pay the penalty, and the application is
refused — within 7 days after the notice of the refusal is served on the
recipient; or
(d) if the recipient applies for the notice to be
withdrawn, and the application is refused — within 28 days after the
notice of the refusal is served on the person.
19.50 Extension
of time to pay penalty
(1) Before the end of 28 days after receiving the
infringement notice, the recipient may apply, in writing, to the nominated person
for a further period of up to 28 days in which to pay the penalty stated in the
notice.
(2) Within 14 days after receiving the application, the
nominated person must:
(a) grant or refuse a further period not longer
than the period sought (but less than 28 days); and
(b) notify the person in writing of the decision
and, if the decision is a refusal, the reasons for the decision.
19.51 Effect
of payment of penalty
If the infringement notice is not withdrawn, and
the recipient pays the penalty stated in the notice:
(a) any liability of the recipient for the
alleged contravention is discharged; and
(b) no proceedings may be brought against the
recipient for the alleged contravention; and
(c) the recipient is not taken to have admitted
guilt in respect of the alleged contravention; and
(d) the recipient is not taken to have been
convicted of the contravention.
19.52 Withdrawal
of infringement notice
(1) Before the end of 28 days after receiving the
infringement notice, the recipient may apply, in writing, to the nominated
person for the infringement notice to be withdrawn.
(2) Within 14 days after receiving the application, the
nominated person must:
(a) withdraw or refuse to withdraw the notice;
and
(b) notify the recipient in writing of the decision
and, if the decision is a refusal, the reasons for the decision.
(3) If the nominated person has not approved, or refused
to approve, the withdrawal of the notice within the period allowed by
subregulation (2), the application is taken to have been refused.
(4) A workplace inspector may also withdraw an
infringement notice issued by him or her without an application having been
made.
19.53 Notice
of withdrawal of infringement notices
A notice withdrawing the infringement notice
served on the recipient:
(a) must include the following information:
(i) the full name, or surname and
initials, and address of the recipient;
(ii) the date of issue of the
infringement notice; and
(b) must state that the notice is withdrawn.
19.54 Refund
of penalty
If an infringement notice is withdrawn after
the penalty stated in it has been paid, the Commonwealth must refund the amount
of the penalty to the person who paid it.
Part 21 Matters
referred by Victoria
21.1 Additional effect of Act — workplace agreements
(related provisions)
(1) For subsection 869 (3) of the Act, each of the
following provisions of the Act is a related provision:
(a) section 17;
(b) paragraph 120 (1) (e);
(c) paragraph 120 (3) (f);
(d) section 151;
(e) section 152;
(f) section 165;
(g) section 166;
(h) section 169;
(i) subsection 172 (2);
(j) section 173;
(k) paragraph 174 (4) (c);
(l) paragraph 174 (5) (c);
(m) each provision of Part 13;
(n) each provision of Part 14;
(o) section 831;
(p) section 844.
(2) For subsection
869 (3) of the Act, each provision of Part 15 of the Act, as it has effect
in accordance with section 882 of the Act, is a related provision.
21.2 Workplace agreements — mandatory term about
basic periodic rate of pay
(1) For paragraph 870 (2) (b) of the Act,
this regulation specifies:
(a) rates of pay; and
(b) methods of working out a rate of pay.
(2) If:
(a) the employee is a
junior employee; and
(b) the employee does not have a disability; and
(c) a training arrangement does not apply to the
employee; and
(d) a transitional award would apply to the
employment of the employee except for:
(i) the
existence of a workplace agreement; and
(ii) the
operation of section 349 of the Act and clause 89, 95 or 102 of Schedule 6
to the Act; and
(e) the transitional
award specifies a rate of pay or method of calculation that would have applied
to the employee except for the matters mentioned in paragraph (d);
the rate of pay, or the method of working
out the rate of pay, is the rate or method specified in the transitional award.
(3) If:
(a) the employee is a
junior employee; and
(b) the employee does not have a disability; and
(c) a training arrangement does not apply to the
employee; and
(d) either or both of paragraphs (2) (d) and
(e) do not apply; and
(e) a special FMW under subsection 194 (2)
of the Act would have applied to the employee if he or she were an employee
within the meaning of subsection 5 (1) of the Act;
the rate of pay, or method of working out
the rate of pay, is the rate or method specified in the special FMW.
(4) If:
(a) a training
arrangement applies to the employee; and
(b) the employee does not have a disability; and
(c) a transitional award would apply to the
employment of the employee except for:
(i) the
existence of a workplace agreement; and
(ii) the
operation of section 349 of the Act and clause 89, 95 or 102 of Schedule 6
to the Act; and
(d) the transitional
award specifies a rate of pay or method of calculation that would have applied
to the employee except for the matters mentioned in paragraph (c);
the rate of pay, or the method of working
out the rate of pay, is the rate or method specified in the transitional award.
(5) If:
(a) a training
arrangement applies to the employee; and
(b) the employee does not have a disability; and
(c) either or both of paragraphs (4) (c)
and (d) do not apply; and
(d) a special FMW under subsection 194 (4)
of the Act would have applied to the employee if he or she were an employee
within the meaning of subsection 5 (1) of the Act;
the rate of pay, or the method of working
out the rate of pay, is the rate or method specified in the special FMW.
(6) If:
(a) the employee has a
disability; and
(b) a transitional award would apply to the
employment of the employee except for:
(i) the
existence of a workplace agreement; and
(ii) the
operation of section 349 of the Act and clause 89, 95 or 102 of Schedule 6
to the Act; and
(c) the transitional
award specifies a rate of pay or method of calculation that would have applied
to the employee except for the matters mentioned in paragraph (b);
the rate of pay, or the method of working
out the rate of pay, is the rate or method specified in the transitional award.
(7) If:
(a) the employee has a
disability; and
(b) either or both of paragraphs (6) (b) and
(c) do not apply; and
(c) a special FMW under subsection 194 (3)
of the Act would have applied to the employee if he or she were an employee
within the meaning of subsection 5 (1) of the Act;
the rate of pay, or the method of working
out the rate of pay, is the rate or method specified in the special FMW.
21.3 Relationship between employment agreements and
Australian Fair Pay and Conditions Standard
(1) For subsection 896 (3) of the Act, this
regulation explains:
(a) what a particular respect is or is not for
the purposes of subsection 896 (1) or (2) of the Act; and
(b) the circumstances in which the Australian
Fair Pay and Conditions Standard provides or does not provide a more favourable
outcome in the particular respect.
Note Under subsection 896 (1) of the
Act, the Australian Fair Pay and Conditions Standard prevails over an
employment agreement that operates in relation to an employee to the extent to
which, in a particular respect, the Australian Fair Pay and Conditions Standard
provides a more favourable outcome for the employee. Subsection 896 (2) of
the Act makes further provision for this matter.
Subsection 896 (3) of the Act authorises the regulations to
explain:
(a) what a particular respect is or is not for the purposes
of subsection (1) or (2); or
(b) the circumstances in which the Australian Fair Pay and
Conditions Standard provides or does not provide a more favourable outcome in a
particular respect.
Wages
(2) Each of the following is a particular respect:
(a) the guaranteed basic periodic rate of pay;
(b) the guaranteed basic piece rate of pay.
(3) The Standard does not
provide a more favourable outcome in the respect mentioned in subregulation (2)
if:
(a) an employment
agreement which binds the employee provides for a period within which the
guarantee of basic rates of pay in Subdivision B of Division 2 of Part 7 of the
Act may be satisfied; and
(b) the period does not exceed 12 months.
Note This regulation does not affect the
operation of section 189 of the Act.
Example
An employee works in an industry in which there are
significant seasonal fluctuations in work demands. As a result, the employee is
required to work more hours during peak season and fewer in the off season in a
12 month period. However, under the employee’s employment agreement the
employee is paid the same amount each pay period despite the fluctuations.
If, over the 12 month period, the employee is paid on
average at least the guaranteed basic rate of pay, and the employer and
employee have agreed that the wages guarantee will be complied with over a 12
month period, the Standard will not be more favourable.
(4) The Standard does not provide a more favourable
outcome in the respect mentioned in subregulation (2) if:
(a) a provision in an employment agreement
binding the employee and the employer provides for the employer to pay an
amount in respect of the employee under a salary sacrifice arrangement; and
(b) the employee gives the employer a written
election, separate to the employment agreement, for a salary sacrifice
arrangement; and
(c) the guarantee of basic rates of pay in
Subdivision B of Division 2 of Part 7 of the Act would be satisfied if the
payment were instead paid to the employee.
(5) The Standard does not provide a more favourable
outcome in the respect mentioned in subregulation (2) if:
(a) a law, or an employment agreement which
binds the employee provides for the employer to make a deduction from the
employee’s remuneration for the purpose of recovering a previous overpayment of
remuneration; and
(b) the guarantee of basic rates of pay in
Subdivision B of Division 2 of Part 7 of the Act would be satisfied if the
amount were instead paid to the employee.
(5A) The Standard provides a more favourable outcome in
the respect mentioned in subregulation (2) if:
(a) an employment agreement that binds the
employee allows for the imposition of a penalty on an employee; and
(b) a consequence of the imposition of the
penalty is that the employee’s guaranteed basic rates of pay in Subdivision B
of Division 2 of Part 7 of the Act would not be satisfied.
Leave
(6) Each of the following is a particular respect:
(a) paid annual leave;
(b) paid sick leave;
(c) paid carer’s leave;
(d) unpaid carer’s leave;
(da) paid personal/carer’s leave (but only to the
extent to which it is a particular respect for the purposes of subregulations
(11C) and (11G));
(e) paid compassionate leave;
(f) special maternity leave;
(g) ordinary maternity leave;
(h) the paid leave provided for in section 268
of the Act;
(i) long paternity leave;
(j) short paternity leave;
(k) pre‑adoption leave;
(l) short adoption leave;
(m) long adoption leave.
(7) Each of the matters mentioned in subregulation (6)
has the same meaning as in Divisions 4 to 6 of Part 7.
(8) The Standard provides a more favourable outcome in
any of the respects mentioned in subregulation (6) if it provides for a greater
amount of one of these types of leave (for example, a greater number of days or
hours).
Example
If an employment agreement provides for 3 weeks paid
annual leave and 8 weeks unpaid annual leave, this would be a less
favourable outcome than the Standard in respect of paid annual leave because
the Standard provides employees with 4 weeks of paid annual leave (but no equivalent
unpaid leave entitlement). The employee would be entitled to 4 weeks paid
annual leave and 8 weeks unpaid annual leave.
(9) The Standard does not provide a more favourable
outcome in any of the respects mentioned in subregulation (6) if the amount of
the entitlement to leave is expressed in a form that is different from, but
equivalent to, the Standard.
Example
An employment agreement which provides that a full‑time
employee is entitled to 20 days of annual leave would not be less favourable
than the Standard (as 20 days is the equivalent of 152 hours of annual leave
for a full‑time employee working 38 hours per week).
(10) The Standard does not provide a more favourable
outcome in respect of paid annual leave if an employment agreement which binds
the employee permits the employee to take an additional period of annual leave
by forgoing an equivalent amount of pay.
Example
A provision permitting an employee to take 8 weeks of
annual leave at half pay (where the available entitlement is 4 weeks of paid
annual leave) would not be less favourable than the Standard.
(11) The Standard does not provide a more favourable
outcome in respect of paid carer’s leave if an employment agreement which binds
the employee provides that the employee is entitled to access a greater amount
of paid personal leave as paid carer’s leave annually than the annual cap
provided for in the Standard.
Example
A provision which provides no cap on the amount of
personal leave that may be taken as carer’s leave taken by an employee in a 12 month
period would be more favourable than the Standard.
(11C) The Standard does not provide a more favourable outcome
in respect of paid personal/carer’s leave if an employment agreement that binds
the employee permits accumulated paid personal/carer’s leave to be paid out on
termination of employment.
(11D) The Standard provides a more favourable outcome in
respect of paid compassionate leave if:
(a) for an employment agreement that binds the
employee and that provides for an amount of paid compassionate leave per
occasion that is not more than the amount per occasion provided by the Standard —
the employee is entitled to forgo any of that leave in return for an amount of
pay or other benefit; or
(b) for an employment agreement that binds the
employee and that provides for an amount of paid compassionate leave per
occasion that is greater than the amount per occasion provided by the Standard —
the employee is entitled to forgo more than the amount per occasion by which
that leave exceeds the amount per occasion provided by the Standard in return
for an amount of pay or other benefit.
(11E) The Standard does not provide a more favourable
outcome in respect of paid compassionate leave if, for an employment agreement
that binds the employee and that provides for an amount of paid compassionate
leave per occasion that is greater than the amount per occasion provided by the
Standard, the employee is entitled to forgo the amount per occasion, or less
than the amount per occasion, by which that leave exceeds the amount per
occasion provided by the Standard in return for an amount of pay or other
benefit.
Note For subregulations 21.3 (11D) and
(11E), the Standard provides that full‑time employees are entitled to
accrue an amount of 2 days of paid compassionate leave per occasion (section
257 of the Act).
(11F) The Standard does not
provide a more favourable outcome in respect of paid compassionate leave if:
(a) a provision in an employment agreement
binding the employee and the employer provides for leave of that type to be
forgone in return for an amount of pay or other benefit in a manner that is
consistent with these Regulations; and
(b) the employee gives the employer a written
election, separate to the employment agreement, to forgo leave in return
for an amount of pay or other benefit.
(11G) The Standard does not provide
a more favourable outcome in respect of paid personal/carer’s leave if a
provision in an employment agreement binding the employee and the employer
permits the employee to take an additional period of personal/carer’s leave by
forgoing an equivalent amount of pay.
Example
A provision permitting an
employee to take 20 days of personal/carer’s leave at half pay (where the
available entitlement is 10 days of paid personal/carer’s leave) would not be
less favourable than the Standard.
Accruing and crediting of leave
(12) Each of the following is a particular respect:
(a) accrual of the leave mentioned in
subregulation (6);
(b) crediting of the leave mentioned in
subregulation (6).
Example
An employment agreement provides that an employee is to be
credited with annual leave every fortnight instead of every month (annual leave
is credited every month under the Standard). This circumstance would not be
less favourable than the Standard. However, crediting annually would be less
favourable than the Standard.
Crediting of leave annually in arrears of service would be
less favourable than the Standard, but crediting in advance of service would be
more favourable.
Statutory declarations for parental leave
(13) The content of a
statutory declaration is a particular respect.
(14) The Standard does not provide a more favourable
outcome in the respect mentioned in subregulation (13) if an employment
agreement or contract of employment which binds the employee provides that a
statutory declaration is required to include matters additional to those
required by the Standard.
Notice periods and evidentiary requirements relating to leave
(15) Each
of the following is a particular respect:
(a) the giving of notice in relation to a period
of sick leave taken (or to be taken) by the employee;
(b) the giving of notice in relation to a period
of carer’s leave taken (or to be taken) by the employee;
(c) the giving of documentary evidence in
relation to a period of sick leave taken (or to be taken) by the employee;
(d) the giving of documentary evidence in
relation to a period of carer’s leave taken (or to be taken) by the employee;
(e) the giving of evidence in relation to a
period of compassionate leave taken (or to be taken) by the employee.
(16) The Standard provides a more favourable outcome in
any of the respects mentioned in subregulation (15) if an employment agreement
that binds the employee imposes obligations on the employee that
are more onerous than the requirements in the Standard.
(17) The Standard provides a more favourable outcome in
any of the respects mentioned in subregulation (15) if an employment agreement
that binds the
employee allows for the imposition of a penalty on an employee for a breach of a
requirement or condition to give the notice or evidence.
(18) In subregulations (5A) and (17):
penalty:
(a) means any of the following:
(i) a deduction of an amount from an
employee’s remuneration;
(ii) a reduction of an employee’s
entitlements;
(iii) a requirement that an employee
makes a payment to the employer; but
(b) does not include a deduction, reduction or
requirement that is:
(i) for the benefit of the employee;
or
(ii) authorised under a law; or
(iii) made or imposed because the
employee was provided with an entitlement to which the employee was not
entitled.
Chapter 3 Transitional arrangements for parties bound by federal
awards
Note This
Chapter is made for Schedule 6 to the Act.
Part 3 Powers and
procedures of Commission for dealing with industrial disputes
Division 2 Variation and
revocation of transitional awards
3.1 Variation
of transitional awards — dealing with industrial dispute
(1) For subclause 29 (3) of Schedule 6 to the Act
each of the matters mentioned in subclause 17 (1) of that Schedule is a
matter in respect of which a transitional award may be varied as mentioned in
subclause 29 (3).
(2) However, the transitional award may be varied as
mentioned in subclause 29 (3) only if:
(a) the Commission is, for the first time,
introducing rates of pay into the transitional award for a class of part‑time
transitional employees; and
(b) the award does not already specify the basis
on which the conditions of the award are to apply to the class of part‑time
transitional employees.
Example of variation of a transitional award
The Commission, for the first time, introduces rates of
pay for school‑based apprentices (which would be a class of part‑time
transitional employees), and school‑based apprentices are not provided for
in the transitional award.
In this circumstance, the Commission would be entitled to
determine the rates of pay for school‑based apprentices and then vary any
of the allowable transitional award matters in the transitional award so as to
provide a basis on which the conditions of the transitional award would apply
to the school‑based apprentices on the basis of hours worked.
(3) For subregulation (2), a part‑time
transitional employee includes:
(a) a part‑time junior; and
(b) a part‑time employee to whom training
arrangements apply.
Part 7 Matters relating to Victoria
Division 1 Matters referred by
Victoria
Subdivision A Introduction
7.1 Definitions
for Part 7
In this Part:
employee has the same meaning as in
Division 1 of Part 21 of the Act.
Subdivision B Industrial
disputes
7.2 Industrial disputes — prescribed laws of
Victoria
For clause 75 of Schedule 6 to
the Act, the following laws of Victoria are prescribed:
(a) the Police
Regulation Act 1958;
(b) all regulations, standing orders and instructions
made or issued under that Act.
Subdivision D Preserved
transitional award terms — transitional Victorian reference awards
7.3 Preserved transitional award terms
(1) For paragraph 77 (3) (a) of Schedule 6 to
the Act, parental leave does not include one or both of the following:
(a) special maternity
leave (within the meaning of section 265 of the Act);
(b) the entitlement under section 268 of the Act
to transfer to a safe job or to take paid leave.
(2) For paragraph
77 (3) (b) of Schedule 6 to the Act, personal/carer’s leave does not
include one or both of the following:
(a) compassionate
leave (within the meaning of section 257 of the Act (as that section
applies to an employee in Victoria because of section 861 of the Act));
(b) unpaid carer’s leave (within the meaning of
section 244 of the Act (as that section applies to an employee in Victoria
because of section 861 of the Act)).
7.4 Meaning of more generous
(1) For paragraph 79 (1) (a) of Schedule 6 to
the Act, this regulation explains how to determine whether an employee’s
entitlement under a preserved transitional award term in relation to:
(a) annual leave; or
(b) personal/carer’s leave; or
(c) parental leave, including maternity and
adoption leave;
is more generous than the employee’s entitlement
in relation to the corresponding matter under the Australian Fair Pay and
Conditions Standard.
(2) The entitlements are to be
compared on the basis of their effect on the employee alone, rather than on the
basis of their effect on employees generally.
Note 1 The comparison between entitlements will
focus on the individual employee’s entitlements.
Note 2 A type of employee may have an
entitlement under a preserved transitional award term, but not a corresponding
entitlement under the Australian Fair Pay and Conditions Standard. For example,
a casual employee may have an entitlement to annual leave under a preserved
transitional award term, but is not covered by the Australian Fair Pay and
Conditions Standard. In this example, the casual employee would retain the
entitlement under the preserved transitional award term.
(3) However:
(a) if the total
annual quantum of a kind of leave permitted under the
preserved transitional award term is greater than the total annual
quantum of that kind of leave permitted under the
Australian Fair Pay and Conditions Standard, the entitlement specified under
the preserved transitional award term is taken to be more generous; and
(b) if the total annual quantum of a kind of
leave permitted under the preserved transitional award term is less than or
equal to the total annual quantum of that kind of leave permitted under the
Australian Fair Pay and Conditions Standard, the entitlement under the
Australian Fair Pay and Conditions Standard has effect.
Examples of comparisons between preserved
award terms and the Australian Fair Pay and Conditions Standard for a full‑time
employee
|
Preserved transitional award term
|
Australian Fair Pay and Conditions Standard
|
The entitlement that applies is set out in
|
|
1 Annual
leave
|
|
Workers
other than shift workers
|
|
Not more than 4 weeks
|
4 weeks
|
Australian Fair Pay and Conditions Standard
|
|
More than 4 weeks
|
4 weeks
|
the preserved transitional award term
|
|
Shift
workers
|
|
Not more than 5 weeks
|
5 weeks
|
Australian Fair Pay and Conditions Standard
|
|
More than 5 weeks
|
5 weeks
|
the preserved transitional award term
|
|
2 Personal/carer’s
leave
|
|
Sum of paid sick leave and paid carer’s leave of not more than
10 days
|
10 days paid personal leave, of which 10 days can be taken as
carer’s leave in any 12 month period
|
Australian Fair Pay and Conditions Standard
|
|
Sum of paid sick leave and paid carer’s leave of more than 10
days
|
10 days paid personal leave, of which 10 days can be taken as
carer’s leave in any 12 month period
|
the preserved transitional award term
|
|
Note An
entitlement to war service sick leave or infectious diseases leave or any
other like form of sick leave under a preserved transitional award term is
treated as a separate entitlement in accordance with regulation 7.5. Therefore,
the entitlement is not the subject of a comparison between entitlements under
the preserved transitional award term and the Australian Fair Pay and
Conditions Standard because there is no comparable entitlement under the
Australian Fair Pay and Conditions Standard.
|
|
3 Parental
leave
|
|
Not more than 52 weeks unpaid leave
|
52 weeks unpaid leave
|
the Australian Fair Pay and Conditions Standard
|
|
More than 52 weeks unpaid leave
|
52 weeks unpaid leave
|
the preserved transitional award term
|
|
52 weeks unpaid leave plus a right to request additional leave
|
52 weeks unpaid leave
|
the preserved transitional award term
|
|
Note An entitlement to paid
parental leave is treated as a separate entitlement in accordance with
regulation 7.6. Therefore, the entitlement is not the subject of a comparison
between entitlements under the preserved transitional award term and the
Australian Fair Pay and Conditions Standard because there is no comparable
entitlement under the Australian Fair Pay and Conditions Standard.
|
(3A) A reference in the table in subregulation (3) to
a period of annual leave or personal/carer’s leave is a reference to paid
annual leave or personal/carer’s leave.
(4) If, under this regulation,
an entitlement under the Australian Fair Pay and Conditions Standard, or the
preserved transitional award term, is taken to be more generous, the
entitlement is to be applied in accordance with the administrative provisions
and other arrangements (if any) that relate to the entitlement.
7.5 Modifications in relation to personal/carer’s
leave
For subclause 80 (2) of Schedule 6 to
the Act, a preserved transitional award term about personal/carer’s leave is to
be treated, for the purposes of the application of Schedule 6 to the Act, as a
separate preserved transitional award term about separate matters, to the
extent that the preserved transitional award term is about any of the
following:
(a) war service sick
leave;
(b) infectious diseases sick leave;
(c) any other
like form of sick leave.
Note 1 This regulation applies to a transitional
Victorian reference award: see subclause 80 (1) of Schedule 6 to the Act.
Note 2 There is no entitlement to war service
sick leave, infectious diseases sick leave or any other like form of sick leave
under the Australian Fair Pay and Conditions Standard.
Therefore, if:
(a) there are entitlements in
relation to personal/carer’s leave under the preserved transitional award term
and the Australian Fair Pay and Conditions Standard; and
(b) there is an entitlement to
war service sick leave, infectious diseases sick leave or any other like form
of sick leave under the preserved transitional award term;
the effect of
this regulation is that the entitlement to war service sick leave, infectious
diseases sick leave or any other like form of sick leave will continue to
operate independently of the entitlement which applies in relation to
personal/carer’s leave under either the preserved transitional award term or
the Australian Fair Pay and Conditions Standard.
7.6 Modifications in relation to parental leave
For subclause 81 (2)
of Schedule 6 to the Act, a preserved transitional award term about parental
leave is to be treated, for the purposes of the application of Schedule 6 to
the Act, as being about separate matters to the extent that it is about paid
and unpaid parental leave.
Note 1 This regulation applies to a transitional
Victorian reference award: see subclause 81 (1) of Schedule 6 to the Act.
Note 2 There is no entitlement in relation to
paid parental leave under the Australian Fair Pay and Conditions Standard.
Therefore, if:
(a) there is an entitlement in
relation to parental leave, including maternity and adoption leave, under the
preserved transitional award term and the Australian Fair Pay and Conditions
Standard; and
(b) there is an entitlement to
paid parental leave under the preserved transitional award term;
the effect of
this regulation is that the entitlement to paid parental leave will continue to
operate independently of the entitlement which applies in relation to parental
leave under either the preserved transitional award term or the Australian Fair
Pay and Conditions Standard.
Subdivision E Common
rules
7.7 Proposed variation of common rules — notice
of hearing by the Commission
(1) For subclause 85 (2) of Schedule 6 to the Act,
the notice referred to in that subclause in relation to a term of a
transitional award that is the underlying award for a common rule in Victoria
for an industry must be given to:
(a) the person or
organisation (if any) that made an application for the variation of the term;
and
(b) the Victorian Employers’ Chamber of Commerce
and Industry; and
(c) the Australian Council of Trade Unions; and
(d) the Australian Industry Group; and
(e) the Victorian Trades Hall Council; and
(f) any other person or organisation that the
Commission considers appropriate.
(2) The notice must be:
(a) in the approved
form; and
(b) given by serving a copy of the notice on the
person or body to whom the notice is to be given.
7.8 Publication of a notice inviting objections to a
variation
(1) A notice:
(a) to which subclause
85 (3) of Schedule 6 to the Act relates; or
(b) to which subsection 142 (4) of the pre‑reform
Act continues to apply because of clause 84 of Schedule 6 to the Act;
must be published in accordance with
subregulation (2).
(2) The notice must be published:
(a) in the approved
form; and
(b) in the Gazette; and
(c) in a newspaper or newspapers
circulating in Victoria; and
(d) in any other publication circulating in
Victoria that the Commission considers appropriate.
7.9 Notice of declaration that a variation is not
binding on the organisation or person
(1) A notice:
(a) to which subclause
85 (5) of Schedule 6 to the Act relates; or
(b) to which subsection 142 (6) of the pre‑reform
Act continues to apply because of clause 84 of Schedule 6 to the Act;
must be published in accordance with
subregulation (2).
(2) The notice must be published:
(a) in accordance with
the approved form; and
(b) given by being published in the Gazette.
Division 2 Other matters
Subdivision B Preserved
transitional award terms — transitional awards (other than transitional
Victorian reference awards) in respect of employees in Victoria
7.10 Preserved transitional award terms
(1) For paragraph 97 (4) (a) of Schedule 6 to
the Act, parental leave does not include one or both of the following:
(a) special maternity
leave (within the meaning of section 265 of the Act);
(b) the entitlement under section 268 of the Act
to transfer to a safe job or to take paid leave.
(2) For paragraph
97 (4) (b) of Schedule 6 to the Act, personal/carer’s leave does not
include one or both of the following:
(a) compassionate
leave (within the meaning of section 257 of the Act);
(b) unpaid carer’s leave (within the meaning of
section 244 of the Act).
7.11 Meaning of more generous
(1) For paragraph 99 (1) (a) of Schedule 6 to
the Act, this regulation explains how to determine whether an employee’s
entitlement under a preserved transitional award term in relation to:
(a) annual leave; or
(b) personal/carer’s leave; or
(c) parental leave, including maternity and
adoption leave;
is more generous than the employee’s
entitlement in relation to the corresponding matter under the Australian Fair
Pay and Conditions Standard.
(2) The entitlements are to be
compared on the basis of their effect on the employee alone, rather than on the
basis of their effect on employees generally.
Note 1 The comparison between entitlements will
focus on the individual employee’s entitlements.
Note 2 A type of employee may have an
entitlement under a preserved transitional award term, but not a corresponding
entitlement under the Australian Fair Pay and Conditions Standard. For example,
a casual employee may have an entitlement to annual leave under a preserved
transitional award term, but is not covered by the Australian Fair Pay and
Conditions Standard. In this example, the casual employee would retain the
entitlement under the preserved transitional award term.
(3) However:
(a) if the total
annual quantum of a kind of leave permitted under the
preserved transitional award term is greater than the total annual
quantum of that kind of leave permitted under the
Australian Fair Pay and Conditions Standard, the entitlement specified under
the preserved transitional award term is taken to be more generous; and
(b) if the total annual quantum of a kind of
leave permitted under the preserved transitional award term is less than or
equal to the total annual quantum of that kind of leave permitted under the
Australian Fair Pay and Conditions Standard, the entitlement under the
Australian Fair Pay and Conditions Standard has effect.
Examples of comparisons between preserved
award terms and the Australian Fair Pay and Conditions Standard for a full‑time
employee
|
Preserved transitional award term
|
Australian Fair Pay and Conditions Standard
|
The entitlement that applies is set out in
|
|
1 Annual
leave
|
|
Workers
other than shift workers
|
|
Not more than 4 weeks
|
4 weeks
|
Australian Fair Pay and Conditions Standard
|
|
More than 4 weeks
|
4 weeks
|
the preserved transitional award term
|
|
Shift
workers
|
|
Not more than 5 weeks
|
5 weeks
|
Australian Fair Pay and Conditions Standard
|
|
More than 5 weeks
|
5 weeks
|
the preserved transitional award term
|
|
2 Personal/carer’s
leave
|
|
Sum of paid sick leave and paid carer’s leave of not more than
10 days
|
10 days paid personal leave, of which 10 days can be taken as
carer’s leave in any 12 month period
|
Australian Fair Pay and Conditions Standard
|
|
Sum of paid sick leave and paid carer’s leave of more than 10
days
|
10 days paid personal leave, of which 10 days can be taken as
carer’s leave in any 12 month period
|
the preserved transitional award term
|
|
Note An entitlement to war service sick
leave or infectious diseases leave or any other like form of sick leave under
a preserved transitional award term is treated as a separate entitlement in
accordance with regulation 7.12. Therefore, the entitlement is not the
subject of a comparison between entitlements under the preserved transitional award
term and the Australian Fair Pay and Conditions Standard because there is no
comparable entitlement under the Australian
Fair Pay and Conditions Standard.
|
|
3 Parental
leave
|
|
Not more than 52 weeks unpaid leave
|
52 weeks unpaid leave
|
the Australian Fair Pay and Conditions Standard
|
|
More than 52 weeks unpaid leave
|
52 weeks unpaid leave
|
the preserved transitional award term
|
|
52 weeks unpaid leave plus a right to request additional leave
|
52 weeks unpaid leave
|
the preserved transitional award term
|
|
Note An entitlement to paid parental leave
is treated as a separate entitlement in accordance with regulation 7.13.
Therefore, the entitlement is not the subject of a comparison between entitlements under the preserved transitional award term and the Australian Fair Pay and Conditions Standard
because there is no comparable entitlement under
the Australian Fair Pay and Conditions Standard.
|
(3A) A reference in the table in subregulation (3) to
a period of annual leave or personal/carer’s leave is a reference to paid annual
leave or personal/carer’s leave.
(4) If, under this regulation,
an entitlement under the Australian Fair Pay and Conditions Standard, or the
preserved transitional award term, is taken to be more generous, the
entitlement is to be applied in accordance with the administrative provisions
and other arrangements (if any) that relate to the entitlement.
7.12 Modifications in relation to personal/carer’s leave
For subclause 100 (2) of Schedule 6 to
the Act, a preserved transitional award term about personal/carer’s leave is to
be treated, for the purposes of the application of Schedule 6 to the Act, as a
separate preserved transitional award term about separate matters, to the
extent that the preserved transitional award term is about any of the following:
(a) war service sick
leave;
(b) infectious diseases sick leave;
(c) any other like form of sick leave.
Note 1 This regulation applies to a transitional
award (other than a Victorian reference award) to the extent that the award
regulates excluded employers in respect of the employment of employees in
Victoria: see subclause 100 (1) of Schedule 6 to the Act.
Note 2 There is no entitlement to war service
sick leave, infectious diseases sick leave or any other like form of sick leave
under the Australian Fair Pay and Conditions Standard.
Therefore, if:
(a) there are entitlements in
relation to personal/carer’s leave under the preserved transitional award term
and the Australian Fair Pay and Conditions Standard; and
(b) there is an entitlement to
war service sick leave, infectious diseases sick leave or any other like form
of sick leave under the preserved transitional award term;
the effect of
this regulation is that the entitlement to war service sick leave, infectious
diseases sick leave or any other like form of sick leave will continue to
operate independently of the entitlement which applies in relation to
personal/carer’s leave under either the preserved transitional award term or
the Australian Fair Pay and Conditions Standard.
7.13 Modifications in relation to parental leave
For subclause
101 (2) of Schedule 6 to the Act, a preserved transitional award term
about parental leave is to be treated, for the purposes of the application of
Schedule 6 to the Act, as being about separate matters to the extent that it is
about paid and unpaid parental leave.
Note 1 This regulation applies to a transitional
award (other than a Victorian reference award) to the extent that the award
regulates excluded employers in respect of the employment of employees in
Victoria: see subclause 100 (1) of Schedule 6 to the Act.
Note 2 There is no entitlement in relation to
paid parental leave under the Australian Fair Pay and Conditions Standard.
Therefore, if:
(a) there is an entitlement in
relation to parental leave, including maternity and adoption leave, under the
preserved transitional award term and the Australian Fair Pay and Conditions
Standard; and
(b) there is an entitlement to
paid parental leave under the preserved transitional award term;
the effect of
this regulation is that the entitlement to paid parental leave will continue to
operate independently of the entitlement which applies in relation to parental
leave under either the preserved transitional award term or the Australian Fair
Pay and Conditions Standard.
Part 8 Transitional arrangements for parties bound by federal
awards — miscellaneous
8.1 Varying or setting aside obligation to pay
redundancy pay
(1) For subclause 108 (1) of
Schedule 6 to the Act, this regulation applies if:
(a) a transitional employer would be obliged
under a transitional award to pay redundancy pay in relation to the redundancy
of a transitional employee; and
(b) a term of a transitional award permits the
transitional employer to make an application to the Commission to have the
obligation to pay redundancy pay in relation to the transitional employee
varied or set aside where the transitional employer has obtained alternative
employment for the transitional employee.
(2) The Commission may:
(a) receive an application to vary or set aside
an obligation to pay redundancy pay; and
(b) by order, determine the application if the
Commission is satisfied that the alternative employment is acceptable.
Note The acceptability of alternative
employment in a particular matter is an objective assessment that requires the
Commission to consider matters including pay, hours of work, seniority,
workload and other matters particular to the application.
Chapter 4 Extra provisions relating to definitions
Note This
Chapter is made for Schedule 2 to the Act. See also sections 4, 5, 6 and 7 of
the Act.
1.1 Purpose of Chapter 4
For subclause 5 (1) of
Schedule 2 to the Act, clauses 2, 3 and 4 of that Schedule are amended as set
out in Schedule 8.
Note Clauses
2, 3 and 4 of Schedule 2 explain when a reference in the Act to:
(a) an employee; or
(b) an employer; or
(c) employment;
has its ordinary meaning. Under subclause
5 (1) of Schedule 2, the Governor‑General may make regulations
amending those clauses.
For the purposes of the Amendments Incorporation Act 1905,
amendments made by regulations for the purposes of that item are to be treated
as if they had been made by an Act.
Chapter 5 Transitional treatment
of State employment agreements and State awards
Note This
Chapter is made for Schedule 8 to the Act.
Part 2 Preserved State agreements
2.1 Varying or setting aside obligation to pay
redundancy pay
(1) For clause 30 of Schedule 8 to the
Act, this regulation applies if:
(a) an employer would be obliged under a
preserved State agreement to pay redundancy pay in relation to the redundancy
of an employee; and
(b) a term of a preserved State agreement permits
the employer to make an application to the State industrial authority to have
the obligation to pay redundancy pay in relation to the employee varied or set
aside where the employer has obtained alternative employment for the employee.
(2) The Commission may:
(a) receive an application to vary or set aside
an obligation to pay redundancy pay; and
(b) by order, determine the application if the
Commission is satisfied that the alternative employment is acceptable.
Note 1 The acceptability of
alternative employment in a particular matter is an objective assessment that
requires the Commission to consider matters including pay, hours of work,
seniority, workload and other matters particular to the application.
Note 2 Subclause 15 (1) of
Schedule 8 to the Act provides that a function conferred by a preserved
collective State agreement on a State industrial authority must not be
exercised by that authority from reform commencement. Subclause 15 (2) of
Schedule 8 provides that the employer and persons bound by the agreement may
agree to confer that function on the Commission, provided it does not relate to
the resolution of a dispute about the application of the agreement.
This regulation is made under clause 30 of Schedule 8 to the
Act, and modifies subclause 15 (2) of the Act to the extent that the
Commission may exercise the function in relation to redundancy pay variation
even though:
(a) the employer and persons bound by the agreement might
not agree to the Commission exercising this function; or
(b) the function relates to the resolution of a dispute
about the application of the agreement.
2.2 Protected
preserved conditions where termination of preserved State agreement occurred
before Transition to Forward with Fairness Act
(1) This regulation applies if a
preserved State agreement was terminated in accordance with clause 21 of
Schedule 8 to the Act before the commencement of Schedule 1 to the Workplace
Relations Amendment (Transition to Forward with Fairness) Act 2008.
(2) Each protected preserved
condition (within the meaning of subclause
25A (4) of Part 2 of Schedule 8 to the Act)
has effect in relation to the employer and the employee who were bound by the
preserved State agreement immediately before it was terminated until either of
the following occurs:
(a) an award comes
into operation in relation to the employer and the employee;
(b) a workplace
agreement comes into operation in relation to the employer and the employee.
(3) Subregulation (2) does not affect the operation of
protected preserved conditions in accordance with clause 25A of Part 2 of Schedule 8 to the Act.
(4) Parts 6
and 14 of the Act apply to a protected preserved condition mentioned in
subregulation (2) as if the protected preserved condition were a preserved
State agreement in its operation.
2.3 Outworker
conditions under preserved State agreements to continue to have effect for
employees subject to workplace agreements or workplace determinations
(1) Despite subclause 15G (2) of Schedule 8
to the Act, if:
(a) a person’s employment is subject to a
workplace agreement or workplace determination; and
(b) but for that agreement or determination, a preserved
State agreement would have effect in relation to the person’s employment;
the terms of the preserved State agreement have effect to the
extent that they are about outworker conditions, despite any terms of the
workplace agreement or workplace determination that provide, in a particular
respect, a less favourable outcome for that person.
(2) In this regulation:
outworker conditions has the same meaning as
in section 349 of the Act.
Note This regulation is made under clause
30 of Schedule 8 to the Act, and modifies the operation of subclause
15G (2) of Schedule 8 to the Act in relation to the effect of
outworker conditions in preserved State agreements which have been replaced by
workplace agreements or workplace determinations.
Part 3 Notional agreements preserving State awards
Division 2 Effect and operation of a notional agreement preserving State
awards
3.1A Outworker
conditions under notional agreements preserving State awards to continue to
have effect for employees subject to workplace agreements
(1) Despite subclause 38A (2) of Schedule 8
to the Act, if:
(a) a person’s employment is subject to a
workplace agreement; and
(b) but for that agreement, a notional agreement
preserving State awards would have effect in relation to the person’s employment;
the terms of the notional agreement preserving State awards have
effect to the extent that they are about outworker conditions, despite any
terms of the workplace agreement or pre‑transition workplace agreement
that provide, in a particular respect, a less favourable outcome for that
person.
(2) In this regulation:
outworker conditions has the same meaning as
in section 349 of the Act.
Note This regulation is made under clause
55 of Schedule 8 to the Act, and modifies the operation of subclause
38 (2) of Schedule 8 to the Act in relation to the effect of
outworker conditions in notional agreements preserving State awards which have
been replaced by workplace agreements.
Division 5 Preserved
notional terms and preserved notional entitlements
3.1 Preserved notional terms of notional agreement
(1) For paragraph 45 (5) (a) of Schedule 8 to
the Act, parental leave, including maternity and adoption leave, does not
include one or both of the following:
(a) special maternity
leave (within the meaning of section 265 of the Act);
(b) the entitlement under section 268 of the Act
to transfer to a safe job or to take paid leave.
(2) For paragraph 45 (5) (b) of Schedule 8 to
the Act, personal/carer’s leave does not include one or both of the following:
(a) compassionate
leave (within the meaning of section 257 of the Act);
(b) unpaid carer’s leave (within the meaning of
section 244 of the Act.
3.2 Meaning of more generous
(1) For paragraph
47 (1) (a) of Schedule 8 to the Act, this regulation explains how to
determine whether an employee’s entitlement under a preserved notional term in
relation to:
(a) annual leave; or
(b) personal/carer’s leave; or
(c) parental leave, including maternity and
adoption leave;
is more generous than the employee’s
entitlement in relation to the corresponding matter under the Australian Fair
Pay and Conditions Standard.
(2) The entitlements are to be
compared on the basis of their effect on the employee alone, rather than on the
basis of their effect on employees generally.
Note 1 The comparison between entitlements will
focus on the individual employee’s entitlements.
Note 2 A type of employee may have an
entitlement under a preserved notional term, but not a corresponding
entitlement under the Australian Fair Pay and Conditions Standard. For example,
a casual employee may have an entitlement to annual leave under a preserved
notional term, but is not covered by the Australian Fair Pay and Conditions
Standard. In this example, the casual employee would retain the entitlement
under the preserved notional term.
(3) However:
(a) if the total
annual quantum of a kind of leave permitted under the
preserved notional term is greater than the total annual quantum of that kind of leave permitted under the Australian Fair
Pay and Conditions Standard, the entitlement specified under the preserved
notional term is taken to be more generous; and
(b) if the total annual quantum of a kind of
leave permitted under the preserved notional term is less than or equal to the total
annual quantum of that kind of leave permitted under the Australian Fair Pay
and Conditions Standard, the entitlement under the Australian Fair Pay and
Conditions Standard has effect.
Examples of comparisons between preserved
award terms and the Australian Fair Pay and Conditions Standard for a full‑time
employee
|
Preserved notional term
|
Australian Fair Pay and Conditions Standard
|
The entitlement that applies is set out in
|
|
Annual leave
|
|
Workers
other than shift workers
|
|
Not more than 4 weeks
|
4 weeks
|
Australian Fair Pay and Conditions Standard
|
|
More than 4 weeks
|
4 weeks
|
the preserved notional term
|
|
Shift
workers
|
|
Not more than 5 weeks
|
5 weeks
|
Australian Fair Pay and Conditions Standard
|
|
More than 5 weeks
|
5 weeks
|
the preserved notional term
|
|
Personal/carer’s
leave
|
|
Sum of paid sick leave and paid carer’s leave of not more than
10 days
|
10 days paid personal leave, of which 10 days can be taken as
carer’s leave in any 12 month period
|
Australian Fair Pay and Conditions Standard
|
|
Sum of paid sick leave and paid carer’s leave of more than 10
days
|
10 days paid personal leave, of which 10 days can be taken as
carer’s leave in any 12 month period
|
the preserved notional term
|
|
Note An entitlement to war service sick
leave or infectious diseases leave or any other like form of sick leave under
a preserved notional term is treated as a separate entitlement in accordance
with regulation 3.3. Therefore, the entitlement is not the subject of a
comparison between
entitlements under the preserved notional
term and the Australian Fair
Pay and Conditions Standard because there is no comparable entitlement under the Australian Fair Pay and Conditions Standard.
|
|
Parental leave
|
|
Not more than 52 weeks unpaid leave
|
52 weeks unpaid leave
|
the Australian Fair Pay and Conditions Standard
|
|
More than 52 weeks unpaid leave
|
52 weeks unpaid leave
|
the preserved notional term
|
|
52 weeks unpaid leave plus a right to request additional leave
|
52 weeks unpaid leave
|
the preserved notional term
|
|
Note An entitlement to paid parental leave
is treated as a separate entitlement in accordance with regulation 3.4.
Therefore, the entitlement is not the subject of a comparison between entitlements under the preserved notional term and the Australian Fair Pay and Conditions Standard because
there is no comparable entitlement under the
Australian Fair Pay and Conditions Standard.
|
(3A) A reference in the table in subregulation (3) to
a period of annual leave or personal/carer’s leave is a reference to paid
annual leave or personal/carer’s leave.
(4) If, under this regulation,
an entitlement under the Australian Fair Pay and Conditions Standard, or the
preserved notional term, is taken to be more generous, the entitlement is to be
applied in accordance with the administrative provisions and other arrangements
(if any) that relate to the entitlement.
3.3 Modifications in relation to personal/carer’s
leave
For subclause 48 (1) of Schedule 8 to
the Act, a preserved notional term about personal/carer’s leave is to be
treated as a separate preserved notional term about separate matters, to the
extent that the preserved transitional award term is about any of the
following:
(a) war service sick
leave;
(b) infectious diseases sick leave;
(c) any other like form of sick leave.
Note There is no entitlement to war service
sick leave, infectious diseases sick leave or any other like form of sick leave
under the Australian Fair Pay and Conditions Standard.
Therefore, if:
(a) there are entitlements in
relation to personal/carer’s leave under the preserved notional term and the
Australian Fair Pay and Conditions Standard; and
(b) there is an entitlement to
war service sick leave, infectious diseases sick leave or any other like form
of sick leave under the preserved notional term;
the effect of
this regulation is that the entitlement to war service sick leave, infectious
diseases sick leave or any other like form of sick leave will continue to
operate independently of the entitlement which applies in relation to
personal/carer’s leave under either the preserved notional term or the
Australian Fair Pay and Conditions Standard.
3.4 Modifications in relation to parental leave
For subclause 49 (1)
of Schedule 8 to the Act, a preserved notional term about parental leave is to
be treated as being about separate matters to the extent that it is about paid
and unpaid parental leave.
Note There is no entitlement in relation to
paid parental leave under the Australian Fair Pay and Conditions Standard.
Therefore, if:
(a) there is an entitlement in
relation to parental leave, including maternity and adoption leave, under the
preserved notional term and the Australian Fair Pay and Conditions Standard;
and
(b) there is an entitlement to
paid parental leave under the preserved notional term;
the effect of
this regulation is that the entitlement to paid parental leave will continue to
operate independently of the entitlement which applies in relation to parental
leave under either the preserved notional term or the Australian Fair Pay and
Conditions Standard.
3.5 Varying or setting aside obligation to pay
redundancy pay
(1) For clause 55 of Schedule 8 to the
Act, this regulation applies if:
(a) an employer would be obliged under a
notional agreement preserving State awards to pay redundancy pay in relation to
the redundancy of an employee; and
(b) a term of a notional agreement preserving
State awards permits the employer to make an application to the State
industrial authority to have the obligation to pay redundancy pay in relation
to the employee varied or set aside where the employer has obtained alternative
employment for the employee.
(2) The Commission may:
(a) receive an application to vary or set aside
an obligation to pay redundancy pay; and
(b) by order, determine the application if the
Commission is satisfied that the alternative employment is acceptable.
Note 1 The acceptability of
alternative employment in a particular matter is an objective assessment that
requires the Commission to consider matters including pay, hours of work,
seniority, workload and other matters particular to the application.
Note 2 Subclause 35 (1) of Schedule
8 to the Act provides that a function conferred by a notional agreement
preserving State awards on a State industrial authority must not be exercised
by that authority from reform commencement. Subclause 35 (2) of
Schedule 8 provides that the employer and persons bound by the notional
agreement may agree to confer that function on the Commission, provided it does
not relate to the resolution of a dispute about the application of the agreement.
This regulation is made under clause 55 of Schedule 8 to the Act
and modifies subclause 35 (2) of Schedule 8 to the Act to the extent that
the Commission may exercise the function in relation to redundancy pay
variation even though:
(a) the employer and persons bound by the agreement might
not agree to the Commission exercising this function; or
(b) the function relates to the resolution of a dispute
about the application of the agreement.
Chapter 6 Transitionally
registered associations
Note This
Chapter is made for Schedule 10 to the Act.
Part 1 Preliminary
1.1 Definitions
In this Chapter:
demarcation dispute means a demarcation dispute within the meaning given by subsection
4 (1) of the Act, applied as if references in that definition to an
organisation included a reference to a transitionally registered association.
State‑registered association
has the meaning given by subclause 1 (1) of Schedule 10 to the Act.
Part 2 Representation rights of transitionally registered
associations of employees
Division 1 Orders about representation rights of transitionally
registered associations of employees — no prior order in relation to State‑registered
association
2.1 Order
(1) For subclause 4 (1) of Schedule 10 to the Act,
this clause applies if:
(a) an organisation, a transitionally
registered association of employees, an employer or the Minister applies to the
Commission to make any of the following orders in relation to a demarcation
dispute:
(i) an order that a transitionally
registered association of employees is to have the right, to the exclusion of
1 or more other associations or organisations, to represent, under the
Act, the industrial interests of a particular class
or group of employees who are eligible for membership of the association;
(ii) an order that a transitionally
registered association of employees that does not have the right to represent,
under the Act, the industrial interests of a
particular class or group of employees is to have that right;
(iii) an order that a transitionally
registered association of employees is not to have the right to represent,
under the Act, the industrial interests of a
particular class or group of employees who are eligible for membership of the
association; and
(b) immediately before the reform commencement:
(i) the transitionally registered
association mentioned in subparagraph (a) (i), (ii) or (iii) was a State‑registered
association; and
(ii) there was no order of a similar
kind in force in relation to the State‑registered association immediately
before the reform commencement.
Note If an order of a similar kind was in
force immediately before the reform commencement, see Division 3.
(2) The Commission may make the order.
(3) The Commission must not make an order unless the
Commission is satisfied that:
(a) the conduct, or threatened conduct, of a
transitionally registered association or organisation to which the order would
relate, or of an officer, member or employee of the transitionally registered
association or organisation:
(i) is preventing, obstructing or
restricting the performance of work; or
(ii) is harming the business of an
employer; or
(b) the consequences referred to in
subparagraph (a) (i) or (ii):
(i) have ceased, but are likely to
recur; or
(ii) are imminent;
as a result of such conduct or threatened
conduct.
(4) In considering whether to make an order under
subregulation (2), the Commission must have regard to the wishes of the
employees who are affected by the dispute and, where the Commission considers
it appropriate, is also to have regard to:
(a) the effect of any order on the operations
(including operating costs, work practices, efficiency and productivity) of an
employer who is a party to the dispute or who is a member of a transitionally
registered association or organisation that is a party to the dispute; and
(b) any agreement
or understanding of which the Commission becomes aware that deals with the
right of a transitionally registered association or organisation to represent
under the Act or the Registration and Accountability of Organisations Schedule
the industrial interests of a particular class or group of employees; and
(c) the consequences of not making an order for
any employer, employees, transitionally registered association or organisation
involved in the dispute; and
(d) any other order made by the Commission, in
relation to another demarcation dispute involving the transitionally registered
association or organisation to which the order under subregulation (2)
would relate, that the Commission considers to be relevant.
(5) The powers of the Commission under this Division are
exercisable only by a Full Bench or Presidential Member.
2.2 Variation
of order
The Commission may, on application by an
organisation, a transitionally registered association of employees, an employer
or the Minister, vary an order made under subregulation 2.1 (2).
2.3 Organisations and transitionally
registered association must comply with order
(1) An organisation or a
transitionally registered association to which the order applies must comply
with the order.
(2) The Federal Court may, on
application by the Minister or a person, organisation or transitionally
registered association affected by an order, make
such orders as it thinks fit to ensure compliance with that order.
Division 2 Orders about representation rights of transitionally
registered associations of employees — prior order in relation to State‑registered
association
2.4 Order
(1) For subclause 4 (1) of Schedule 10 to the Act,
this clause applies if:
(a) an organisation, transitionally registered
association, an employer or the Minister applies to the Commission to make any
of the following orders:
(i) an order that a transitionally
registered association of employees is to have the right, to the exclusion of
1 or more other associations or organisations, to represent, under the
Act, the industrial interests of a particular class
or group of employees who are eligible for membership of the association;
(ii) an order that a transitionally
registered association of employees that does not have the right to represent,
under the Act, the industrial interests of a
particular class or group of employees is to have that right;
(iii) an order that a transitionally
registered association of employees is not to have the right to represent,
under the Act, the industrial interests of a
particular class or group of employees who are eligible for membership of the
association; and
(b) immediately before the reform commencement:
(i) the transitionally registered association
mentioned in subparagraph (a) (i), (ii) or (iii) was a State‑registered
association (within the meaning given by subclause 1 (1) of Schedule 10 to
the Act); and
(ii) there was an order of a similar
kind in force in relation to the State‑registered association.
Note If no order of a similar kind was in
force immediately before the reform commencement, see Division 1.
(2) The Commission must make an order to the same effect
as the order mentioned in subparagraph (1) (b) (ii).
(3) The Commission may, on
application by an organisation, a transitionally registered association of
employees, an employer or the Minister, vary an order made under
subregulation (2).
2.5 Order may be subject to limits or alterations
(1) The order may be subject
to conditions or limitations.
(2) The order:
(a) may be made with changes from the text of
the order mentioned in subparagraph 2.4 (1) (b) (ii) that the
Commission considers necessary to reflect the language and content of the Act
and the Registration and Accountability of Organisations Schedule; but
(b) must be the same in substance as the order
mentioned in subparagraph 2.4 (1) (b) (ii).
2.6 Organisations and transitionally
registered association must comply with order
(1) An organisation and a
transitionally registered association to which the order applies must comply
with the order.
(2) The Federal Court may, on
application by the Minister or a person, organisation or transitionally
registered association affected by an order, make
such orders as it thinks fit to ensure compliance with that order.
Division 3 Proceedings regarding representation rights in a State or
Territory immediately before the reform commencement
2.7 Representation
rights — evidence in prior proceedings
(1) For subclause 4 (1)
of Schedule 10 to the Act, this regulation applies in relation to a
transitionally registered association if:
(a) immediately before the reform commencement:
(i) it was a State‑registered
association (within the meaning given by subclause 4 (1) of Schedule 10 to
the Act) that was party to proceedings concerning representation rights under a
State or Territory industrial law; and
(ii) no order regarding the
representation rights of it and the other parties to the proceedings had been
made by the court or tribunal hearing the proceedings; and
(b) the transitionally registered association is
involved in proceedings before the Commission concerning the dispute which gave
rise to the proceedings mentioned at (a) (i).
(2) The Commission must have regard to any evidence that
was given in the proceedings mentioned at subparagraph (a) (i).
Note The Commission may treat the
evidence which was before the State tribunal as being before the Commission.
Part 3 Cancellation of transitional registration
3.1 Application for cancellation of transitional
registration by Commission — form of application
For paragraph 5 (5) (a) of Schedule 10 to
the Act, an application by a transitionally registered association to cancel
its registration under that Schedule must:
(a) be made in writing; and
(b) state the grounds on which the application is
made; and
(c) be made by an officer of the association who
is authorised to make the application.
3.2 Application for cancellation of transitional
registration by Commission — registration by mistake
For subparagraph 5 (5) (b) (i) of
Schedule 10 to the Act, the Commission will be satisfied that a transitionally
registered association was registered by mistake if, after giving the
association an opportunity to be heard, the Commission considers that the
association did not satisfy subclause 2 (1) of that Schedule to the Act at
the time at which it was granted transitional registration.
3.3 Application for cancellation of transitional
registration by Commission — association no longer State‑registered
association
For subparagraph
5 (5) (b) (ii) of Schedule 10 to the Act, the Commission will be
satisfied that a transitionally registered association is no longer a State‑registered
association if, after giving the association an opportunity to be heard, the
Commission considers that it is no longer a body that is:
(a) an industrial organisation for the purposes
of the Industrial Relations Act 1996 of New South Wales; or
(b) an organisation for the purposes of Chapter
12 of the Industrial Relations Act 1999 of Queensland; or
(c) an association or organisation for the
purposes of the Industrial Relations Act 1979 of Western Australia; or
(d) a registered association for the purposes of
the Fair Work Act 1994 of South Australia; or
(e) an organisation for the purposes of the Industrial
Relations Act 1984 of Tasmania.
Part 4 Modification of Registration and Accountability of
Organisations Schedule for transitionally registered associations
4.1 Modifications
For clause 7
of Schedule 10 to the Act, this Part explains how
section 19 of the Registration and Accountability of Organisations Schedule
applies in relation to an association that is a transitionally registered
association.
4.2 Provisions not to apply
The following provisions of section 19 of the
Registration and Accountability of Organisations Schedule are taken not to
apply in relation to the association:
(a) paragraph
19 (1) (j);
(b) subsection 19 (2);
(c) subsection 19 (3).
4.3 Other criteria for registration of
transitionally registered association — being substantially identical to
another body
(1) Section 19 of the Registration and Accountability
of Organisations Schedule applies in relation to the association as if the
section required the Commission to refuse to grant an application for
registration made by a transitionally registered association if:
(a) the transitionally registered association
is substantially identical to a body (the other body) that is:
(i) a State
branch of an organisation; or
(ii) another
organisation; or
(iii) a
constituent element of another organisation; and
(b) the circumstance
mentioned in subregulation (2) does not exist.
Note The matters that will be assessed to
determine whether a body mentioned in subparagraph (1) (a) (i), (ii)
or (iii) is substantially similar to a transitionally registered association
will be based on the individual circumstances of each case.
However, the matters that will be considered include the extent
to which the body and the association:
(a) share the same premises; or
(b) share officers and personnel;
or
(c) use the same equipment and
stationery; or
(d) have coverage over the same
kinds of employees (or employers).
(2) For paragraph (1) (b), the circumstance is that
all, or a significant number, of the members of the transitionally registered
association are not permitted to join the other body because of the existence
of different eligibility provisions in the rules of the transitionally
registered association and the other body.
4.4 Other
criteria for registration of transitionally registered association —
coverage rules
Section 19 of the Registration and Accountability
of Organisations Schedule applies in relation to the association as if the
section required the Commission to refuse to grant an application for
registration made by the association unless the rules of the association state
that the association is eligible to represent members only within the State in
which it had been registered as a State‑registered association immediately
before its registration as a transitionally registered association.
Chapter 7 Transitional and other
provisions for the Work Choices Act
Note This
Chapter is made for Schedule 4 to the Work Choices Act.
Part 1 Preliminary
1.1 Purpose of Chapter 7
For item 1 of Schedule 4 to the
Work Choices Act, this Chapter provides for matters of a transitional,
saving or application nature relating to amendments made by that Act.
Part 2 Regulations for transitional etc provisions and
consequential amendments — Act
Division 1 Repeal of Part
XV of the pre‑reform Act
2.1 Effect of repeal
(1) The repeal of Part XV of
the pre‑reform Act is taken not to affect:
(a) an entitlement
under that Part which had accrued before the reform commencement; or
(b) a cause of action under that Part which had
not been finally determined before the reform commencement.
Note Part XV was repealed by item 240 of Schedule 1 to the Work
Choices Act.
(2) For
paragraph (1) (b), the causes of action mentioned in that paragraph
include the ability to bring proceedings under section 178 or 179 of the pre‑reform
Act, in accordance with subsection 506 (1) or (2) of the pre‑reform
Act
Note Sections 506 and 533 were repealed as
part of the repeal of Part XV of the Act by item 240 of Schedule 1 to the Work
Choices Act. Section 506 dealt with penalties and recovery of wages, while
section 533 dealt with penalties for contravening penalty provisions.
Division 2 Transmission of transitional awards
2.2 Succession, transmission or assignment of a
business before reform commencement — application of Part 7 of Schedule 6
to the Act
Part 7 of Schedule 6 to the Act does not apply in
relation to the succession, transmission or assignment of a business, or a part
of a business, that occurred before the reform commencement.
Division 2A Matters referred by Victoria
2.2A Additional
effect of Act — exclusion of Victorian laws under section 898
(1) Subsection 898 (1) of the Act does not apply in
relation to a law of Victoria so far as that law deals with a matter mentioned
in section 5 of the Commonwealth Powers (Industrial Relations) Act 1996
of Victoria.
Note Part 15 of the Act (Right of entry)
sets prerequisites for a trade union representative to enter premises for a
purpose connected with occupational health and safety under a prescribed law of
a State or Territory.
The prerequisites may apply to entry to premises in Victoria as
set out in section 755 of the Act, and are not affected by the non‑application
of subsection 898 (1) of the Act to a Victorian law that deals with a
matter in section 5 of the Commonwealth Powers (Industrial Relations) Act
1996 (Vic) (which matters include occupational health and safety).
(2) Subsection 898 (1) of the Act does not apply
in relation to a law of Victoria so far as that law:
(a) deals with the promotion of EEO, and is
neither a State or Territory industrial law nor contained in such a law; or
(b) is a law that deals with any of the matters (non‑excluded
matters) mentioned in subregulation (3).
(3) The non‑excluded matters are:
(a) matters relating to outworkers (including
entry of a representative of a trade union to premises for a purpose connected
with outworkers); and
(b) child labour; and
(c) the method of payment of wages or salaries;
and
(d) the frequency of the payment of wages and
salaries; and
(e) industrial action (within the ordinary
meaning of the expression) affecting an essential service; and
(f) attendance for service on a jury; and
(g) the regulation of any of the following:
(i) associations of employees;
(ii) associations of employers;
(iii) members of an association of
employees or of an association of employers.
Division 3 Matters relating to Victoria — transmission of business
(transitional Victorian reference awards)
2.3 Transmission
of business — application of Subdivision F of Division 1 of Part 7 of
Schedule 6 to the Act
Subdivision F of Division 1 of Part 7 of Schedule 6
to the Act does not apply in relation to the succession, transmission or
assignment of a business, or a part of a business, that occurred before the
reform commencement.
Division 4 Matters relating to Victoria — transmission of business
(transitional awards other than transitional Victorian reference awards)
2.4 Transmission of business — application of
Subdivision BA of Division 2 of Part 7 of Schedule 6 to the Act
Subdivision BA of
Division 2 of Part 7 of Schedule 6 to the Act does not apply in relation to the
succession, transmission or assignment of a business, or a part of a
business, that occurred before the reform commencement.
Division 4A Matters relating to Victoria — employees covered by
transitional awards or common rules
2.4A Hours
of work
(1) Division 3 of Part 7 of the Act (hours of work) does
not apply to the employment of an employee while the employee’s employment is subject
to a transitional award or a common rule.
(2) In subregulation (1):
common rule means a common rule that has
effect because of Subdivision E of Division 1 of Part 7 of Schedule 6 to the
Act.
employee has the meaning given by section 858
of the Act.
employment has the meaning given by section
858 of the Act.
transitional award has the meaning given by
clause 2 of Schedule 6 to the Act.
(3) Subregulation (1) ceases to have effect at the end
of the period of 3 years that starts on the reform commencement.
Division 5 Succession, transmission or assignment of a business before
reform commencement
2.5 Application
of pre‑reform Act
(1) This Division applies if a
succession, transmission or assignment of a business, or part of a business,
occurred before the reform commencement.
(2) The following provisions of the pre‑reform
Act are taken to continue to apply in relation to the succession, transmission
or assignment:
(a) paragraph 149 (1) (d);
(b) section 170MB;
(c) section 170MBA;
(d) section 170VS.
(3) If an order is made
under paragraph 149 (1) (d) of the pre‑reform Act, as continued
by subregulation (2):
(a) the order is taken to bind a successor,
assignee or transmittee of the business (or part of the business) to an
award as if the order had been made immediately before the reform commencement;
but
(b) any obligation or entitlement under the award
takes effect only from the date specified in the Commission’s order, which must
not be earlier than the date on which the order is made.
Division 6 Amendment of Part VIA of the pre‑reform Act
2.6 Effect
of amendments — equal remuneration for work of equal value
(1) The amendments of Division 2 of Part VIA of the pre‑reform
Act made by Schedule 1 to the Work Choices Act apply in relation to an
application for the making of an order under that Division:
(a) that was made before the reform
commencement; and
(b) in relation to which the Commission had not
made an order before the reform commencement.
(2) For the avoidance of doubt, subregulation (1) does
not affect the enforceability of an order made by the Commission under Division
2 of Part VIA of the pre‑reform Act before the reform commencement.
2.7 Effect
of amendments — parental leave (repeal of pre‑reform leave
provisions)
(1) This
regulation applies in relation to an employee if:
(a) the employee:
(i) applied for a period of leave
including (or constituted by) maternity, paternity or adoption leave before the
reform commencement; or
(ii) commenced a period of leave
including (or constituted by) maternity, paternity or adoption leave before the
reform commencement; and
(b) the period of leave was not completed before
the reform commencement; and
(c) the operation of Division 6 of Part 7 of
the Act is not excluded in relation to the employee by:
(i) section 529 of the Act; or
(ii) clause 78 or 98 of Schedule 6 to
the Act; or
(iii) paragraph 30 (a), (b) or (c)
of Schedule 7 to the Act; or
(iv) clause 15E or 46 of Schedule 8 to
the Act; or
(v) item 18 of Schedule 4 to the Work
Choices Act; and
(d) the employee’s parental leave entitlements
were covered by 1 or more of the following provisions (the pre‑reform
leave provisions):
(i) Division 5 of Part VIA of the pre‑reform
Act;
(ii) Schedule 14 to the pre‑reform
Act;
(iii) Division 2 of Part 5A of the pre‑reform
Regulations;
(iv) Parts
2, 3 and 4 of Schedule 1A to the pre‑reform Act.
(2) If the employee is described in subparagraph
(1) (a) (i), the pre‑reform leave provisions cease to apply in
relation to the employee when the first of the following events occurs under a
pre‑reform leave provision:
(a) the employee commences a period of leave
including (or constituted by) maternity, paternity or adoption leave of a
type covered by section 265, 282 or 300 of the Act;
(b) each of the following occurs:
(i) the employee is pregnant;
(ii) the employee has a pregnancy
related illness;
(iii) the employee takes a period of
special maternity leave of a type covered by subsection 265 (1) of the
Act;
(c) each of the following occurs:
(i) the employee is pregnant;
(ii) the pregnancy ends otherwise than
by the birth of a living child;
(iii) the employee takes a period of
special maternity leave of a type covered by subsection 265 (1) of the
Act;
(d) the employee is required to transfer to a
safe job in circumstances of a type covered by section 268 of the Act;
(e) the employee takes paid leave in
circumstances of a type covered by section 268 of the Act;
(f) a placement of the employee’s adopted child
occurs in circumstances of a type covered by section 300 of the Act;
(g) a placement of the employee’s adopted child
is cancelled before it starts in circumstances of a type covered by paragraph
310 (1) (a) of the Act.
(3) If the employee is described in subparagraph
(1) (a) (ii), the pre‑reform leave provisions cease to apply in
relation to the employee when the first of the following events occurs:
(a) the employee is required to give notice to
the employer to give effect to a return to work guarantee of a type covered by
in section 278, 296 or 314 of the Act;
(b) the employee is given notice by the employer
to return to work to give effect to a return to work guarantee of a type
covered by in section 278, 296 or 314 of the Act;
(c) both of the following occur:
(i) the employee applies to vary or
extend the period of leave including (or constituted by) maternity, paternity
or adoption leave; and
(ii) the application is of a type
covered by section 278, 294 or 312 of the Act;
(d) each of the following occurs:
(i) an employee (or the employee’s
spouse) gives birth to a living child;
(ii) either:
(A) the employee has started
a period of ordinary maternity leave in relation to the child’s birth; or
(B) if the employee’s spouse
gives birth — the employee has started a period of paternity leave in
relation to the child’s birth;
(iii) the child later dies in
circumstances of a type covered by section 276 or 292 of the Act;
(e) both of the
following occur:
(i) the employee ceases to be the
child’s primary care‑giver; and
(ii) the cessation is of a type covered
by section 277, 293 or 311 of the Act;
(f) both of the following occur:
(i) the pregnancy ends otherwise than
by the birth of a living child in circumstances of a type covered by section
275 or 291 of the Act;
(ii) the employee who would have been
entitled to a period of ordinary maternity leave becomes entitled to take a
period of special maternity leave;
(g) both of the following occur:
(i) the employee terminates his or her
employment during a period of maternity, paternity or adoption leave; and
(ii) the termination is of a type
covered by section 279, 295 or 313 of the Act;
Note The employee’s right to terminate
his or her employment is subject to any notice required to be given by the
employee by or under a term or condition of their employment or a law or a
instrument in force under a law of the Commonwealth, a State or Territory.
(h) an adoption placement starts but is later
discontinued for any reason in circumstances of a type covered by paragraph
310 (1) (b) of the Act.
(4) When the employee’s coverage under the pre‑reform
leave provisions ceases, Division 6 of Part 7 of the Act applies in
relation to the employee’s parental leave entitlements.
(5) Any conduct which is engaged in:
(a) before the first event mentioned in subregulation
(2) or (3); and
(b) in accordance with the pre‑reform leave
provisions;
is taken to be an action taken in accordance with the equivalent
provisions of Division 6 of Part 7 of the Act.
(6) For section 175 of the Act, a dispute about the
application of a pre‑reform leave provision, as it continues in force
under this regulation, is taken to be a dispute about entitlements under
Division 6 of Part 7 of the Act.
Note 1 Section 175 of the Act
provides that the model dispute resolution process in Part 13 of the Act
applies to such a dispute.
Note 2 Section 175 of the
Act would also apply to a dispute about whether, as a result of this
regulation, Division 6 of Part 7 of the Act applies.
2.8 Replacement
employees
If an employer takes action in accordance with:
(a) clause 25 of Schedule 14 to the pre‑reform
Act; or
(b) regulation 30ZB of Division 2 of Part 5A of
the pre‑reform Regulations; or
(c) clauses 15, 27 and 40 of Schedule 1A to the
pre‑reform Act;
relating to the engagement of a replacement employee, the action is
taken to be an action taken in accordance with section 281, 297 or 315 of the
Act, as necessary.
Division 7 Operation of matters relating to permit ships
2.9 Awards
in relation to permit ships
(1) This regulation applies if:
(a) an application was made to the Commission
for the making or variation of an award, that had the effect of setting wages
and conditions of employment in relation to non‑citizen crew members on
permit ships who are employed by a foreign corporation, before the reform
commencement; and
(b) the Commission made or varied an award in
response to the application before the reform commencement.
(2) On and from the reform commencement:
(a) the award ceases to have effect to the
extent to which it applies to:
(i) non‑citizen crew members who
are operating on permit ships; and
(ii) foreign corporations in their
capacity as employers of non‑citizen crew members who are operating on
permit ships; and
(b) the cessation of the award is taken not to
affect:
(i) any right of a person as
immediately before the reform commencement; or
(ii) any liability imposed on a person
in respect of anything done or omitted to be done before the reform
commencement.
(3) In subregulation (1):
non‑citizen has the same meaning as in
the Migration Act 1958.
permit ship means a ship:
(a) to which a permit has been granted under
section 286 of the Navigation Act 1912 for a single voyage or as a
continuing permit; and
(b) for which the permit is in force.
Division 8 Amendment of Part XII of the pre‑reform Act
2.10 Costs
only where proceeding instituted vexatiously etc
The amendments of section 347 of the pre‑reform
Act made by Schedule 1 to the Work Choices Act do not apply in relation to an
action or omission that occurred before the reform commencement.
Division 9 Amendment of Part XIII of the pre‑reform Act
2.11 Signature
on behalf of body corporate
Section 827 of the
Act applies only in relation to the signing of a document on or after the
reform commencement.
Note Section 827 was inserted in the Act
by Schedule 1 to the Work Choices Act.
Division 10 Application of Act and Regulations to Australia’s exclusive
economic zone and continental shelf
2.12 Application
of Act and Regulations
(1) This regulation applies if:
(a) an industrial instrument applied to an
employee working:
(i) in Australia’s exclusive economic
zone; or
(ii) on Australia’s continental shelf;
and
(b) the industrial instrument was in force
immediately before the reform commencement; and
(c) the employee:
(i) is an employee, or a transitional
employee within the meaning given by Schedule 13 to the Act; and
(ii) would not be covered by this Act
after the reform commencement.
(2) Despite the amendment of the Act by the Work
Choices Act:
(a) the industrial instrument is taken to
continue to apply to the person in relation to the person’s work in Australia’s
exclusive economic zone or on Australia’s continental shelf; and
(b) Part 14 of the Act is taken to apply to the
person in relation to the industrial instrument; and
(c) regulations made for Part 14 of the Act are
taken to apply to the person in relation to the industrial instrument.
(3) Subregulation (2) ceases to have effect at the end
of 1 year after the reform commencement.
(4) Subregulation (2) is not intended to apply to the
exclusion of an applicable law of a State or Territory that regulates the
relationships between employers and employees or provides for the prevention or
settlement of disputes between employers and employees.
(5) In this regulation:
industrial instrument means an award or
agreement, however designated, that:
(a) is made under or recognised by an industrial
law; and
(b) concerns the relationship between an employer
and the employer’s employees, or provides for the prevention or settlement of a
dispute between an employer and the employer’s employees.
industrial law means the Act, the
Registration and Accountability of Organisations Schedule or a law, however
designated, of the Commonwealth or of a State or Territory that regulates the
relationships between employers and employees or provides for the prevention or
settlement of disputes between employers and employees.
Note Australia’s exclusive economic
zone is defined in subsection 4 (1) of the Act to mean the
exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973)
of Australia. Australia’s continental shelf is defined in
subsection 4 (1) of the Act to mean the continental shelf (as defined in
the Seas and Submerged Lands Act 1973) of Australia.
(6) In paragraphs (1) (a) and (c):
employee has its ordinary meaning.
Division 11 Application of pre‑reform Act in relation to certain
pre‑reform certified agreements and pre‑reform AWAs
2.13 Application
of pre‑reform Act
(1) This regulation applies if:
(a) any of the following matters occurred
before the reform commencement:
(i) a written agreement to vary the
nominal expiry date of a pre‑reform AWA in accordance with
subsection 170VH (3) of the pre‑reform Act was filed with the Workplace
Authority Director;
(ii) a written agreement to vary the
terms of a pre‑reform AWA in accordance with subsection 170VL (1) of
the pre‑reform Act was filed with the Workplace Authority Director;
(iii) a written agreement to terminate
a pre‑reform AWA in accordance with subsection 170VM (1) of the pre‑reform
Act was filed for approval with the Workplace Authority Director;
(iv) an application to terminate a pre‑reform
AWA in accordance with subsection 170VM (3) of the pre‑reform Act
was made to the Commission;
(v) a termination notice under
subsection 170VM (6) of the pre‑reform Act was filed for approval
with the Workplace Authority Director;
(vi) an application was lodged with the
Commission in relation to a dispute over the application of a pre‑reform
certified agreement under section 170LW of the pre‑reform Act;
(vii) an application was lodged with the
Commission to approve an extension of the nominal expiry date of a pre‑reform
certified agreement for subsection 170MC (2) of the pre‑reform Act;
(viii) an application was lodged with the
Commission to approve a variation of a pre‑reform certified agreement for
subsection 170MD (2) of the pre‑reform Act;
(ix) an application was lodged with the
Commission to vary a pre‑reform certified agreement for subsection
170MD (6) of the pre‑reform Act;
(x) an application was lodged with the
Commission to approve the termination of a pre‑reform certified
agreement for subsection 170MG (2) of the pre‑reform Act;
(xi) an application was lodged with the
Commission to approve the termination of a pre‑reform certified
agreement for subsection 170MH (4) of the pre‑reform Act;
(xii) an application was lodged with the
Commission to approve the termination of a pre‑reform certified agreement
for subsection 170MHA (4) of the pre‑reform Act; and
(b) the Employment Advocate or the Commission had
not made a decision in relation to the matter before the reform commencement.
(2) The pre‑reform Act continues to apply in
relation to the matter.
Division 12 Workplace inspectors
2.14 Powers
of workplace inspectors in relation to investigation of alleged breaches of pre‑reform
Act or pre‑reform Regulations
Despite the amendments of the pre‑reform Act
by the Work Choices Act, and the repeal of the pre‑reform Regulations, a
workplace inspector may, subject to any directions given by the Minister under
subsection 167 (7) of the Act:
(a) institute, or give evidence in, any proceedings;
or
(b) conduct, or
assist in the conduct of, any prosecution;
in respect of an alleged breach of a matter under the pre‑reform
Act or the pre‑reform Regulations.
Note Paragraph 169 (1) (b) of
the Act provides that the powers of a workplace inspector under section 169 may
be exercised for the purpose of a provision of the regulations that confers
powers or functions on inspectors.
2.15 Repeal
of Part IVA of the pre‑reform Act — other functions and powers of
pre‑reform authorised officers in relation to investigation of alleged
breaches not started before the reform commencement
(1) This regulation applies if:
(a) an alleged breach of a matter under the pre‑reform
Act or the pre‑reform Regulations occurred before the reform
commencement; and
(b) an investigation had not been commenced for
the compliance purposes mentioned in section 83BH of the pre‑reform
Act before the reform commencement.
(2) Despite the repeal of Division 2 of Part IVA of the
pre‑reform Act, a workplace inspector is authorised:
(a) to investigate the alleged breach; and
(b) to exercise the workplace inspector’s powers,
and perform the workplace inspector’s functions, under the Act in relation to
the alleged breach.
(3) However, the pre‑reform Act and pre‑reform
Regulations are taken to apply in relation to criminal proceedings dealing with
the imposition of a penalty in respect of the alleged breach.
2.16 Repeal
of Part IVA of the pre‑reform Act — other functions and powers of
pre‑reform authorised officers in relation to investigation of alleged
breaches started before the reform commencement
(1) This regulation
applies if:
(a) a pre‑reform authorised officer was
conducting an investigation of an alleged breach of a matter for the compliance
purposes mentioned in section 83BH of the pre‑reform Act before the
reform commencement; and
(b) the investigation had not been completed
before the reform commencement.
(2) Despite the repeal of Division 2 of Part IVA of the
pre‑reform Act, a workplace inspector is authorised to exercise the
workplace inspector’s powers, and perform the workplace inspector’s functions,
under the Act in relation to the alleged breach.
(3) However, the pre‑reform Act and pre‑reform
Regulations are taken to apply in relation to proceedings dealing with the
imposition of a penalty in respect of the alleged breach.
2.17 Disclosure
of information
(1) If a pre‑reform authorised officer acquired
information in accordance with the pre‑reform Act before the reform
commencement, section 170 of the Act is taken to authorise a workplace
inspector to disclose any information acquired by the pre‑reform
authorised officer in the course of that investigation, in accordance with that
section.
(2) If a pre‑reform inspector acquired information
in accordance with the pre‑reform Act before the reform commencement,
section 170 of the Act is taken to authorise a workplace inspector to disclose
any information acquired by the pre‑reform inspector in the course of
that investigation, in accordance with that section.
Division 13 Compliance
2.18 Repeal
of Part VA — review by Commonwealth Ombudsman
(1) This regulation applies in addition to item 14 of Schedule
4 to the Act.
(2) Despite the repeal of Part VA of the pre‑reform
Act, section 88AI of the pre‑reform Act continues to apply in
relation to the period starting on 13 January 2005 and ending on 12
January 2006.
2.19 Enforcement
of rights and obligations
(1) Unless the contrary intention appears in a
provision of:
(a) the Act; or
(b) the Work Choices Act; or
(c) regulations made under the Act or the Work
Choices Act;
the amendments made by the Work Choices Act do not affect the
enforcement in a court of rights and obligations that arose under the pre‑reform
Act.
(2) Subregulation (1) applies whether or not proceedings
had been commenced in a court before the reform commencement.
Division 14 Interpretation of transitional instruments
2.20 Interpretation
of transitional instruments
(1) The Court or the Federal Magistrates Court may give
an interpretation of a transitional instrument on application by:
(a) the Minister; or
(b) an organisation or person bound by the
transitional instrument; or
(c) an employee whose employment is subject to
the transitional instrument.
(2) The decision of the Court or the Federal
Magistrates Court is final and conclusive and is binding on:
(a) the organisations and persons bound by the
transitional instrument; and
(b) the employees
whose employment is subject to the transitional instrument;
who have been given an opportunity of being heard by the Court or
the Federal Magistrates Court.
(3) In this regulation:
transitional instrument means any of the
following:
(a) a pre‑reform certified agreement
within the meaning given by clause 1 of Schedule 7 to the Act;
(b) a notional agreement preserving State awards
within the meaning given by subclause 1 (1) of Schedule 8 to the Act;
(c) a preserved State agreement within the
meaning given by subclause 1 (1) of Schedule 8 to the Act.
Division 15 Industrial action before nominal expiry date of workplace
agreement or workplace determination
2.21 Industrial
action
Sections 494 and 495 of the Act are taken to apply
in relation to:
(a) a pre‑reform certified agreement; and
(b) a pre‑reform AWA;
as if the instruments were mentioned in those sections.
Division 16 Accrual and crediting of leave in lump sums (in advance or in
arrears)
2.22 Accrual
and crediting of leave in advance of service
(1) This regulation
applies if:
(a) before the reform commencement, an employee
was credited with annual leave, or personal/carer’s leave, in advance of the
employee’s service; and
(b) the leave was credited on a lump sum basis;
and
(c) on the reform commencement:
(i) the employee’s employment is
covered by a pre‑reform award, a notional agreement preserving State
awards or a contract of employment; and
(ii) the employee would be entitled to
accrue and be credited with annual leave, or personal/carer’s leave, in
accordance with section 232, 234 or 246 of the Act.
Note After the reform commencement, an
award is taken to be replaced by an instrument in the same terms (a pre‑reform
award) by operation of subclause 4 (3) of Schedule 4 to the Act to
the extent that it relates to an employer as defined in subsection 6 (1)
of the Act.
This regulation does not apply to a pre‑reform AWA because
of the operation of clause 17 of Schedule 7 to the Act. The regulation does not
apply in relation to a pre‑reform certified agreement because of the
operation of clause 2 of Schedule 7 to the Act.
(2) On the reform commencement, the employee is taken
not to accrue leave of the relevant type under section 232, 234 or 246 of the
Act until the amount of that type of leave that the employee would have accrued
is equal to the amount of that type of leave with which the employee has been
credited in advance of the employee’s service.
Note The effect of subregulation (2) is
that the amount of leave which the employee would have accrued in accordance
with the Standard will be offset against the amount of leave already credited
to the employee in advance. When the amount of leave already credited has been
accounted for, the accrual and crediting of leave will then occur in accordance
with the Standard.
(3) Subregulation (2) ceases to have effect at the end
of 2 years after the reform commencement.
2.23 Accrual
and crediting of leave in arrears of service
(1) This regulation applies if:
(a) before the reform commencement, an employee
is to be credited with annual leave, or personal/carer’s leave, in arrears
after a period of service on the anniversary date of his or her employment
after reform commencement; and
(b) the leave is to be credited on a lump sum
basis; and
(c) immediately before the reform commencement,
the employee had completed part of that period of service; and
(d) on the reform commencement:
(i) the employee’s employment is
covered by a pre‑reform award, a notional agreement preserving State awards
or a contract of employment; and
(ii) the employee would be entitled to
accrue and be credited with leave of the relevant type, in accordance with
section 232, 234 or 246 of the Act.
Note After the reform commencement, an
award is taken to be replaced by an instrument in the same terms (a pre‑reform
award) by operation of subclause 4 (3) of Schedule 4 to the Act to
the extent that it relates to an employer as defined in subsection 6 (1)
of the Act.
This regulation does not apply to a pre‑reform AWA because
of the operation of clause 17 of Schedule 7 to the Act. The regulation does not
apply in relation to a pre‑reform certified agreement because of the
operation of clause 2 of Schedule 7 to the Act.
(2) On the reform commencement, the employee is taken to
be credited, for the part of the period of service mentioned in paragraph
(1) (c), with the amount of leave of that type that the employee would have
accrued if the employee had accrued and been credited with leave for that
period in accordance with section 232, 234 or 246 of the Act.
Division 17 Pre‑reform personal/carer’s leave and compassionate
leave
2.23A Pre‑reform
personal/carer’s leave and compassionate leave
(1) The Australian Fair Pay and Conditions Standard does
not apply in relation to paid personal/carer’s leave or paid compassionate
leave of an employee that accrued before the Standard applied to that employee.
Note 1 The Standard may have applied to
an employee from 27 March 2006. However, if an employee’s employment is subject
to a pre‑reform certified agreement, pre‑reform Australian
Workplace Agreement or a section 170MX award, the Standard will not apply to
that employee until the pre‑reform instrument is terminated or replaced
(clause 30 of Schedule 7 to the Workplace Relations Act 1996).
Note 2 The Standard does not apply to
annual leave entitlements of an employee that accrued before the Standard
applied to that employee as a result of the operation of subsection
232 (1) of the Workplace Relations Act 1996.
(2) A term of a workplace agreement which allows for the
forgoing of an amount of leave of the type described
in subregulation (1) for an amount of pay or other benefit,
is not prohibited content under paragraph 8.5 (1) (l) or (m) of
Chapter 2.
(3) An employee wishing to forgo an amount of leave of
the type described in subregulation (1) for an amount of pay or other
benefit must elect to do so in writing.
(4) This regulation ceases to have effect at the end of
5 years after 27 March 2006.
Division 18 Redundancy pay obligations
2.24 Varying
or setting aside obligation to pay redundancy pay
(1) This regulation applies if:
(a) an employer would be obliged under a pre‑reform
award to pay redundancy pay in relation to the redundancy of an employee; and
(b) a term of a pre‑reform award permits
the employer to make an application to the Commission to have the obligation to
pay redundancy pay in relation to the employee varied or set aside where the
employer has obtained alternative employment for the employee.
(2) The Commission may:
(a) receive an application to vary or set aside
an obligation to pay redundancy pay; and
(b) by order, determine the application if the
Commission is satisfied that the alternative employment is acceptable.
Note The acceptability of alternative
employment in a particular matter is an objective assessment that requires the
Commission to consider matters including pay, hours of work, seniority,
workload and other matters particular to the application.
(3) This regulation ceases to have effect at the end of
the period of 12 months starting on the day on which this regulation commences.
Part 3 Regulations for transitional etc provisions and
consequential amendments — pre‑reform Regulations
Division 1 Repeal
of Division 2 of Part 5A of the pre‑reform Regulations
3.1 Effect of repeal
Despite the repeal of
Division 2 of Part 5A of the pre‑reform Regulations, that Division is
taken to continue to apply to the extent that Division 5 of Part VIA of the pre‑reform
Act is taken to continue to apply in accordance with subclause 18 (2) of
Schedule 4 to the Work Choices Act.
Note Division 5 of Part VIA of the pre‑reform
Act dealt with adoption leave.
Division 2 Matters
referred by Victoria
3.2 Effect of repeal of regulation 132G
(1) Despite the repeal of regulation
132G of the pre‑reform Regulations, that regulation is taken to continue
to apply to the extent that section 533 of the pre‑reform Act is taken to
continue to apply in accordance with subregulation 2.1 (2) of this
Chapter.
Note Regulation 132G dealt with a matter
relating to penalties for contravening penalty provisions.
(2) For subregulation (1), a reference in regulation
132G of the pre‑reform Regulations to an inspector is taken to be a
reference to a workplace inspector within the meaning of the Act.
Part 4 Regulations
for transitional etc provisions and consequential amendments — part‑heard
matters
Division 1 Interpretation
4.1 Definitions
In this Part:
appeal includes an application for leave to
appeal.
employer has the meaning given by subsection
6 (1) of the Act.
transitional employer has the meaning given
by subclause 2 (1) of Schedule 6 to the Act.
Division 2 Appeals under Part VI
of the pre‑reform Act
4.2 Appeals against findings in relation to industrial
disputes
(1) An appeal to a Full Bench in
relation to a decision mentioned in paragraph 45 (1) (a) of the pre‑reform
Act that:
(a) has been instituted but not
finally determined before the reform commencement; and
(b) relates to an employer;
lapses, to the extent that it relates to the
employer, on the reform commencement.
(2) An appeal to a Full Bench in
relation to a decision mentioned in paragraph 45 (1) (a) of the pre‑reform
Act, to the extent that the decision relates to an employer, must not be
instituted after the reform commencement.
(3) Despite the repeal of paragraph
45 (1) (a) of the pre‑reform Act by the Work Choices Act, but
subject to regulation 4.13, an appeal to a Full Bench
in relation to a decision mentioned in that paragraph that:
(a) has been instituted but not
finally determined before the reform commencement; and
(b) relates to a transitional
employer;
continues, to the extent that it relates to the
transitional employer, and is to be determined under Schedule 6 to the Act.
(4) Despite the repeal of paragraph
45 (1) (a) of the pre‑reform Act by the Work Choices Act, but
subject to regulation 4.13, an appeal to a Full Bench
in relation to a decision mentioned in that paragraph, to the extent that it
relates to a transitional employer:
(a) may be instituted within
the period mentioned in regulation 4.13; and
(b) is to be determined under Schedule 6 to the
Act.
4.3 Appeals against awards or orders
(1) Despite the amendment of the pre‑reform
Act by the Work Choices Act, but subject to regulation 4.13, an appeal to a Full Bench that:
(a) is in relation to a matter
mentioned in paragraph 45 (1) (b) of the pre‑reform Act; and
(b) has been instituted but not
finally determined before the reform commencement;
continues and is to be determined under the pre‑reform
Act as if that Act had not been amended.
(2) Despite the amendment of the pre‑reform
Act by the Work Choices Act, but subject to regulation 4.13, an appeal to a Full Bench in relation to a matter mentioned in
paragraph 45 (1) (b) of the pre‑reform Act:
(a) may be instituted within
the period mentioned in regulation 4.13; and
(b) is to be determined under the pre‑reform
Act as if that Act had not been amended.
(3) If the Commission varies or sets aside an award as
a result of the appeal, to the extent that the appeal relates to an employer:
(a) for the purposes of:
(i) Part 7, Division 2, Subdivisions E
and I of the Act; and
(ii) Part 10, Division 3 of the Act;
and
(iii) clause 4 of Schedule 4 to the
Work Choices Act;
the variation is taken to form part of the
award as if the variation had been made immediately before the reform
commencement; but
(b) any resulting variation to an entitlement
under the provisions mentioned in paragraph (a) takes effect only from the date
specified in the Commission’s order, which must not be earlier than the date on
which the order is made.
(4) If the Commission varies or sets aside an award as
a result of the appeal, to the extent that the appeal relates to a transitional
employer:
(a) for the purposes of:
(i) Part 1, Division 3 of Schedule 6
to the Act; and
(ii) Part 3, Division 1 of Schedule 6
to the Act;
the variation is taken to form part of the
award as if the variation had been made immediately before the reform
commencement; but
(b) any resulting variation to an entitlement
under the provisions mentioned in paragraph (a) takes effect only from the date
specified in the Commission’s order, which must not be earlier than the date on
which the order is made.
Note After reform commencement, an award:
(a) is taken to be replaced by an instrument in the same
terms (a pre‑reform award) under subclause 4 (3) of Schedule 4 to
the Work Choices Act to the extent that it relates to an employer; and
(b) continues in force under clause 4 of Schedule 6 to the
Act as a transitional award to the extent that it relates to an excluded
employer as defined in clause 2 of that Schedule.
4.4 Appeals
against decisions not to make orders or awards
(1) Despite the amendment of the pre‑reform
Act by the Work Choices Act, but subject to regulation 4.13, an appeal
to a Full Bench that:
(a) is in relation to a decision mentioned in
paragraph 45 (1) (c) of the pre‑reform Act; and
(b) was instituted, but not finally determined
before the reform commencement;
continues, and is to be determined under the pre‑reform Act
as if that Act had not been amended.
(2) Despite the amendment of the pre‑reform
Act by the Work Choices Act, but subject to regulation 4.13, an appeal
to a Full Bench in relation to a decision mentioned in paragraph 45 (1) (c)
of the pre‑reform Act:
(a) may be instituted within
the period mentioned in regulation 4.13; and
(b) is to be determined under the pre‑reform
Act as if that Act had not been amended.
(3) If the Commission makes an award or order as a
result of the appeal, to the extent that the appeal relates to an employer:
(a) for the purposes of:
(i) Part 7, Division 2, Subdivisions E
and I of the Act; and
(ii) Part 10, Division 3 of the Act;
and
(iii) clause 4 of Schedule 4 to the
Work Choices Act;
the award or order is taken to have been
made immediately before the reform commencement; but
(b) any resulting variation to an entitlement
under the provisions mentioned in paragraph (a) takes effect only from the date
specified in the award or order, which must not be earlier than the date on
which the award or order is made.
(4) If the Commission
makes an award or order as a result of the appeal, to the extent that the
appeal relates to a transitional employer:
(a) for the
purposes of:
(i) Part 1, Division 3 of Schedule 6
to the Act; and
(ii) Part 3, Division 1 of Schedule 6
to the Act;
the award or order is taken to have been
made immediately before the reform commencement; but
(b) any resulting variation to an entitlement
under the provisions mentioned in paragraph (a) takes effect only from the date
specified in the award or order, which must not be earlier than the date on
which the award or order is made.
Note After reform commencement, an award:
(a) is taken to be replaced by an instrument in the same
terms (a pre‑reform award) under subclause 4 (3) of Schedule 4 to
the Work Choices Act to the extent that it relates to an employer; and
(b) continues in force under clause 4 of Schedule 6 to the
Act as a transitional award to the extent that it relates to an excluded
employer as defined in clause 2 of that Schedule.
4.5 Appeals
against decisions under paragraph 111 (1) (g) of pre‑reform
Act
(1) An appeal to a Full Bench in relation to a decision
mentioned in paragraph 45 (1) (d) of the pre‑reform Act that:
(a) has been instituted but not finally
determined before the reform commencement; and
(b) relates to an employer;
lapses, to the extent that it relates to the employer, on the
reform commencement.
(2) An appeal to a Full Bench in
relation to a decision mentioned in paragraph 45 (1) (d) of the pre‑reform
Act, to the extent that the decision relates to an employer,
must not be instituted after the reform commencement.
(3) Despite the amendment of paragraph 45 (1) (d) of
the pre‑reform Act by the Work Choices Act, but subject to regulation
4.13, an appeal to a Full Bench in relation to a decision mentioned in that
paragraph, that:
(a) has been instituted but not finally
determined before the reform commencement; and
(b) relates to a transitional employer;
continues, to the extent that it relates to the transitional
employer, and is to be determined under the pre‑reform Act as if that Act
had not been amended.
(4) Despite the amendment of paragraph 45 (1) (d) of
the pre‑reform Act by the Work Choices Act, but subject to
regulation 4.13, an appeal to a Full Bench in relation to a decision
mentioned in that paragraph, to the extent that it relates to a transitional
employer:
(a) may be instituted within
the period mentioned in regulation 4.13; and
(b) is to be determined under the pre‑reform
Act as if that Act had not been amended.
4.6 Appeals
against decisions under Division 5 of Part VI of pre‑reform Act
(1) Despite the repeal of paragraph 45 (1) (da) of the
pre‑reform Act by the Work Choices Act, but subject to regulation 4.13,
an appeal to a Full Bench that:
(a) is in relation to a matter mentioned in that
paragraph; and
(b) has been instituted but not finally
determined before the reform commencement;
continues and is to be determined under the pre‑reform Act as
if that Act had not been amended.
(2) Despite the repeal of paragraph 45 (1) (da) of the
pre‑reform Act by the Work Choices Act, but subject to regulation 4.13,
an appeal to a Full Bench in relation to a matter mentioned in that paragraph:
(a) may be instituted within
the period mentioned in regulation 4.13; and
(b) is to be determined under the pre‑reform
Act as if that Act had not been amended.
(3) For this regulation, a matter mentioned in paragraph
45 (1) (da) of the pre‑reform Act includes a declaration made
by a member of the Commission under subsection 142 (5) of the pre‑reform
Act as continued in force by regulation 4.46.
(4) If, as a result of an appeal to which this
regulation applies, a declaration under Division 5 of Part VI of the pre‑reform
Act is made or revoked:
(a) for the purposes of:
(i) Subdivisions E and I of Division 2
of Part 7 of the Act; and
(ii) Division 3 of Part 10 of the Act;
and
(iii) Subdivision E of Division 1 of
Part 7 of Schedule 6 to the Act; and
(iv) clause 4 of Schedule 4 to the Work
Choices Act;
the making or revocation of the declaration
is taken to have effect from the reform commencement; but
(b) the making or revocation of the declaration
takes effect only from the date specified in the Commission’s order, which must
not be earlier than the date on which the order is made.
4.7 Appeals
against decisions not to certify agreements
(1) Despite the repeal of paragraph 45 (1) (e) of the
pre‑reform Act by the Work Choices Act, but subject to regulation 4.13,
an appeal to a Full Bench that:
(a) is in relation to a matter mentioned in that
paragraph; and
(b) has been instituted but not finally
determined before the reform commencement;
continues and is to be determined under the pre‑reform Act as
if that Act had not been amended.
(2) Despite the repeal of paragraph 45 (1) (e) of the
pre‑reform Act by the Work Choices Act, but subject to regulation 4.13,
an appeal to a Full Bench in relation to a decision mentioned in that
paragraph:
(a) may be instituted within
the period mentioned in regulation 4.13; and
(b) is to be determined under the pre‑reform
Act as if that Act had not been amended.
4.8 Appeal
against decision to certify agreement
(1) Despite the repeal of paragraph 45 (1) (eaa) of the
pre‑reform Act by the Work Choices Act, but subject to regulation 4.13,
an appeal to a Full Bench that:
(a) is in relation to a decision mentioned in
that paragraph, on the ground mentioned in that paragraph; and
(b) was instituted but not finally determined
before the reform commencement;
continues and is to be determined under the pre‑reform Act as
if that Act had not been amended.
(2) Despite the repeal of paragraph 45 (1) (eaa) of the
pre‑reform Act by the Work Choices Act, but subject to regulation 4.13,
an appeal to a Full Bench in relation to a decision mentioned in that
paragraph, on the ground mentioned in that paragraph:
(a) may be instituted within
the period mentioned in regulation 4.13; and
(b) is to be determined under the pre‑reform
Act as if that Act had not been amended.
4.9 Appeal
against decision to vary, or not to vary, award or certified agreement
(objectionable provision)
(1) Despite the amendment of paragraph
45 (1) (eba) of the pre‑reform Act by the Work Choices Act, but
subject to regulation 4.13, an appeal to a Full Bench that:
(a) is in relation to a matter mentioned in that
paragraph; and
(b) has been
instituted but not finally determined before the reform commencement;
continues and is to be determined under the pre‑reform Act as
if that Act had not been amended.
(2) Despite the amendment of paragraph
45 (1) (eba) of the pre‑reform Act by the Work Choices Act, but
subject to regulation 4.13, an appeal to a Full Bench in relation to a decision
mentioned in that paragraph:
(a) may be instituted within
the period mentioned in regulation 4.13; and
(b) is to be determined under the pre‑reform
Act as if that Act had not been amended.
(3) If the Commission varies an award or order as a
result of the appeal, to the extent that the appeal relates to an employer:
(a) for the purposes of:
(i) Part 7, Division 2, Subdivisions E
and I of the Act; and
(ii) Part 10, Division 3 of the Act;
and
(iii) clause 4 of Schedule 4 to the
Work Choices Act;
the award or order is taken to have been
made immediately before the reform commencement; but
(b) any resulting variation to an entitlement
under the provisions mentioned in paragraph (a) takes effect only from the date
specified in the award or order, which must not be earlier than the date on
which the award or order is made.
(4) If the Commission varies an award or order as a
result of the appeal, to the extent that the appeal relates to a transitional
employer:
(a) for the purposes of:
(i) Part 1, Division 3 of Schedule 6
to the Act; and
(ii) Part 3, Division 1 of Schedule 6
to the Act;
the award or order is taken to have been
made immediately before the reform commencement; but
(b) any resulting variation to an entitlement
under the provisions mentioned in paragraph (a) takes effect only from the date
specified in the award or order, which must not be earlier than the date on
which the award or order is made.
Note After reform commencement, an award:
(a) is taken to be replaced by an instrument in the same
terms (a pre‑reform award) under subclause 4 (3) of Schedule 4 to
the Work Choices Act to the extent that it relates to an employer; and
(b) continues in force under clause 4 of Schedule 6 to the
Act as a transitional award to the extent that it relates to an excluded
employer as defined in clause 2 of that Schedule.
4.10 Appeal
against decision to vary, or not to vary, award or certified agreement (sex
discrimination)
(1) Despite the amendment of paragraph
45 (1) (ed) of the pre‑reform Act by the Work Choices Act, an
appeal to a Full Bench that:
(a) is in relation to a decision mentioned in
that paragraph; and
(b) has been
instituted but not finally determined before the reform commencement;
continues and is to be determined under the pre‑reform Act as
if that Act had not been amended.
(2) Despite the amendment of paragraph 45 (1) (ed) of
the pre‑reform Act by the Work Choices Act, an appeal to a Full Bench in
relation to a decision mentioned in that paragraph:
(a) may be instituted within
the period mentioned in regulation 4.13; and
(b) is to be determined under the pre‑reform
Act as if that Act had not been amended.
(3) If the Commission varies an award or order as a
result of the appeal, to the extent that the appeal relates to an employer:
(a) for the purposes of:
(i) Part 7, Division 2, Subdivisions E
and I of the Act; and
(ii) Part 10, Division 3 of the Act;
and
(iii) clause 4 of Schedule 4 to the
Work Choices Act;
the award or order is taken to have been
made immediately before the reform commencement; but
(b) any resulting variation to an entitlement
under the provisions mentioned in paragraph (a) takes effect only from the date
specified in the award or order, which must not be earlier than the date on
which the award or order is made.
(4) If the Commission varies an award or order as a
result of the appeal, to the extent that the appeal relates to a transitional
employer:
(a) for the purposes of:
(i) Part 1, Division 3 of Schedule 6
to the Act; and
(ii) Part 3, Division 1 of Schedule 6
to the Act;
the award or order is taken to have been
made immediately before the reform commencement; but
(b) any resulting variation to an entitlement
under the provisions mentioned in paragraph (a) takes effect only from the date
specified in the award or order, which must not be earlier than the date on
which the award or order is made.
Note After reform commencement, an award:
(a) is taken to be replaced by an instrument in the same
terms (a pre‑reform award) under subclause 4 (3) of Schedule 4 to
the Work Choices Act to the extent that it relates to an employer; and
(b) continues in force under clause 4 of Schedule 6 to the
Act as a transitional award to the extent that it relates to an excluded
employer as defined in clause 2 of that Schedule.
4.11 Appeal
against decision in relation to jurisdiction
(1) Despite the amendment of the pre‑reform Act
by the Work Choices Act, but subject to subregulation (2) and regulation
4.13, an appeal to a Full Bench that:
(a) is in relation to a matter mentioned in
paragraph 45 (1) (g) of the pre‑reform Act; and
(b) has been instituted, but not finally
determined, before the reform commencement;
continues, and is to be determined under the pre‑reform Act
as if that Act had not been amended.
(2) To the extent that an appeal mentioned in
subregulation (1) relates to:
(a) an employer; and
(b) a question as to the existence of an
industrial dispute;
the appeal lapses on the reform commencement.
(3) Despite the amendment of the pre‑reform Act
by the Work Choices Act, but subject to regulation 4.13, an appeal to a Full
Bench in relation to a decision mentioned in paragraph 45 (1) (g) of
the pre‑reform Act:
(a) may be instituted within
the period mentioned in regulation 4.13; and
(b) is to be determined under the pre‑reform
Act as if that Act had not been amended.
4.12 Appeals
relating to matters arising under Registration and Accountability of
Organisations Schedule
(1) Despite the amendments of section 45A of the pre‑reform
Act, and Schedule 1B to that Act, by the Work Choices Act, but subject to
regulation 4.13, an appeal to a Full Bench that:
(a) is in relation to a matter mentioned in that
section; and
(b) has been instituted but not finally
determined before the reform commencement;
continues and is to be determined under the pre‑reform Act as
if that Act had not been amended.
(2) Despite the amendments of section 45A of the pre‑reform
Act, and Schedule 1B to that Act, by the Work Choices Act, but subject to
regulation 4.13, an appeal to a Full Bench in relation to a matter mentioned in
that section:
(a) may be instituted within
the period mentioned in regulation 4.13; and
(b) is to be determined under the pre‑reform
Act as if that Act had not been amended.
4.13 Time within which appeals may be instituted
(1) The period within which an appeal
may be instituted under a provision of this Division that allows appeals to be
instituted after the reform commencement is:
(a) 21 days after the date of the award, order,
decision or declaration appealed against (whether the date of the award, order
or decision was before or after the reform commencement); or
(b) if a request for a statement of reasons has
been made under rule 46 of the Australian Industrial Relations Commission
Rules 1998, as in force immediately before the reform commencement —
21 days after the date on which the statement of reasons is given (whether that
date was before or after the reform commencement).
(2) The Commission must not grant an extension of time
for the institution of an appeal under this Division.
4.14 General rules relating to continuing appeals
(1) This regulation applies to an
appeal that continues, or may be instituted, under this Division.
(2) The Full Bench may determine that
an appeal should not be heard, or further heard, to the extent that the Full
Bench believes that:
(a) a decision to uphold the
appeal could not be effectively implemented under the Act; or
(b) the matter has no practical
application under the Act.
Example
If an appeal related to the variation of
a term of an award that would cease to have effect after the reform
commencement under section 525 of, or clause 27 of Schedule 6 to, the Act, the
Full Bench could decide that the appeal (or part of the appeal) should not
continue.
(3) If an appeal has not been finally
determined within 6 months after the reform commencement, it lapses at the end
of that period.
(4) Despite the repeal of section 45 of
the pre‑reform Act by the Work Choices Act, subsections 45 (2) to (9) of
the pre‑reform Act apply as if those subsections had not been repealed.
Division 3 Registrar — references and appeals
4.15 Reference
to Commission by Registrar
(1) Despite the amendments of the pre‑reform Act
by the Work Choices Act, but subject to subregulation (2), if a matter, or a
question arising in a matter, has been referred to the President for decision
by the Commission under section 79 of the pre‑reform Act before the
reform commencement, the Commission may deal with the matter or question under
that section as if the pre‑reform Act had not been amended.
(2) The Commission may determine that
a matter or question to which this regulation applies should not be dealt with
under section 79 of the pre‑reform Act, if the Commission believes that:
(a) a decision made in dealing
with the matter or question could not be effectively implemented under the Act;
or
(b) the matter or question has
no practical application under the Act.
4.16 Removal
of matter before Registrar
(1) Despite the amendments of the pre‑reform Act
by the Work Choices Act, but subject to subregulation (2), if the President has
ordered that a matter be heard and determined by the Commission under section
80 of the pre‑reform Act before the reform commencement, the Commission
may deal with the matter under that section as if the pre‑reform Act had
not been amended.
(2) The Commission may determine that
a matter to which this regulation applies should not be heard and determined
under section 80 of the pre‑reform Act, if the Commission believes that:
(a) its determination could not
be effectively implemented under the Act; or
(b) the matter has no practical
application under the Act.
4.17 Appeal
from Registrar to Commission
(1) Despite the amendments of the pre‑reform Act
by the Work Choices Act, but subject to subregulation (2), if, before the
reform commencement, an appeal has been instituted to the Commission under
section 81 of the pre‑reform Act, the Commission may hear, or continue to
hear, and determine, the appeal under that section as if the pre‑reform
Act had not been amended.
(2) The Commission may determine that
an appeal to which this regulation applies should not be heard, further heard
or determined under section 81 of the pre‑reform Act, if the Commission
believes that:
(a) its determination could not
be effectively implemented under the Act; or
(b) the matter has no practical
application under the Act.
4.18 Reference
to Court by Registrar
(1) Despite the amendments of the pre‑reform Act
by the Work Choices Act, but subject to subregulation (2), if, before the
reform commencement, a question of law arising in a matter has been referred
for the opinion of the Court under section 82 of the pre‑reform Act, the
Court may give its opinion under that section as if the pre‑reform Act
had not been amended.
(2) The Court may determine that a
question to which this regulation applies should not be dealt with under
section 82 of the pre‑reform Act, if the Court believes that:
(a) its opinion could not be
effectively implemented under the Act; or
(b) the question has no
practical application under the Act.
Division 4 Dispute prevention and settlement
4.19 Review
of certain awards
A review of an award under section 89B of the pre‑reform
Act that is not finally determined before the reform commencement lapses on the
reform commencement.
4.20 Dealing
with disputes
(1) Subject to subregulation (2), if an alleged
industrial dispute was notified under section 99 of the pre‑reform Act
before the reform commencement, but the matter was not finally determined
before the reform commencement, proceedings in relation to the matter lapse, to
the extent that the matter relates to an employer, on the reform commencement.
(2) If, immediately before the reform commencement, the
Commission was dealing, under section 102 or 103 of the pre‑reform Act,
with an industrial dispute about any of the following matters:
(a) the application of awards;
(b) meal breaks;
(c) public holidays;
(d) parental leave;
and the dispute involves an employer, the Commission may deal with
the dispute in accordance with its powers under section 701 of the Act.
(3) If an alleged industrial dispute was notified under
section 99 of the pre‑reform Act before the reform commencement, but the
matter was not finally determined before the reform commencement, the matter is
to be dealt with, to the extent that it relates to a transitional employer, in
accordance with Schedule 6 to the Act.
(4) For subregulations (1) and (3) a matter was finally
determined before the reform commencement if:
(a) the Commission made a determination under
section 101 of the pre‑reform Act that the alleged industrial dispute was
not an industrial dispute; or
(b) the industrial dispute was fully settled by
conciliation under sections 102 and 103 of the pre‑reform Act; or
(c) the Commission dealt with the industrial
dispute, or matters remaining in dispute, by arbitration under section 104
of the pre‑reform Act.
4.21 Principles
about making or varying awards in relation to allowable award matters
Proceedings that were begun but not finally
determined under subsection 106 (1) of the pre‑reform Act for the
establishment, or variation, of principles about the making or varying of
awards in relation to 1 or more allowable award matters lapse on the reform
commencement.
4.22 Reference
of disputes to Full Bench
(1) A reference of a dispute to a Full Bench under
section 107 of the pre‑reform Act lapses on the reform commencement, to
the extent that it involves an employer.
(2) A reference of a dispute to a Full Bench under
section 107 of the pre‑reform Act remains in force on the reform
commencement as if it were a reference under clause 41 of Schedule 6 to the
Act, to the extent that it involves a transitional employer.
4.23 Proceedings
being dealt with by President
(1) A proceeding being dealt with under section 108 of
the pre‑reform Act lapses on the reform commencement, to the extent that
it involves an employer.
(2) A proceeding being dealt with under section 108 of
the pre‑reform Act continues after the reform commencement as a
proceeding under clause 42 of Schedule 6 to the Act, to the extent that it
involves a transitional employer.
4.24 Review
on application by Minister
(1) Despite the repeal of section 109 of the pre‑reform
Act by the Work Choices Act, but subject to subregulations (3), (4)
and (5), an application under that section may be dealt with under the pre‑reform
Act as if that Act had not been amended.
(2) Despite the repeal of
section 109 of the pre‑reform Act by the Work Choices Act, but subject to
subregulations (3) and (4), an application under that section:
(a) may be instituted within
21 days after:
(i) the date of the award, order,
decision or declaration that is the subject of the application; or
(ii) if a request for a statement of
reasons has been made under rule 46 of the Australian Industrial Relations
Commission Rules 1998, as in force immediately before the reform
commencement — the date on which the statement of reasons is given; and
(b) is to be determined under the pre‑reform
Act as if that Act had not been amended.
(3) The Commission may determine that
an application of the kind mentioned in this regulation should not be heard, or
further heard, to the extent that the Commission believes that:
(a) a decision to uphold the
application could not be effectively implemented under the Act; or
(b) the matter has no practical
application under the Act.
(4) If an application that continues,
or is instituted, under this regulation has not been finally determined within
6 months after the reform commencement, it lapses at the end of that period.
(5) The Commission must not grant an extension of time
for the institution of an application under this Division.
4.25 Particular
powers of Commission
(1) Subject to subregulation (2), in a proceeding at
first instance begun before the reform commencement that:
(a) is to be determined under these regulations
according to the provisions of the pre‑reform Act; and
(b) relates to an employer;
the Commission may, after the reform commencement, for the purpose
of disposing of the proceedings, do any of the things mentioned in
subsection 111 (1) of the Act.
(2) After the reform commencement, the Commission must
not, to the extent that a proceeding at first instance relates to an employer:
(a) make, vary or set aside an award under
paragraph 111 (1) (b), (e) or (f) or subsection 113 (1) of the
pre‑reform Act; or
(b) exercise its powers under paragraph
111 (1) (g) of the pre‑reform Act.
(3) Nothing in subregulation (2) affects the
Commission’s power to make or vary awards in an appeal to which Division 2 of
this Part applies.
(4) If an industrial dispute that arose under the pre‑reform
Act would, if it had arisen after the reform commencement, be an industrial
dispute arising under Schedule 6 to the Act, the Commission may exercise its
powers under clauses 31 and 46 of Schedule 6 to the Act in relation to the
dispute to the extent that the dispute relates to a transitional employer.
4.26 Commission
to cease dealing with industrial dispute in certain circumstances
Proceedings to which section 111AAA of the pre‑reform
Act applies lapse on the reform commencement.
4.27 Recommendations
by consent
(1) In a proceeding begun before the reform
commencement, to the extent that the proceeding involves an employer, the
Commission must not conduct a hearing, continue to conduct a hearing or make
recommendations under section 111AA of the pre‑reform Act after the
reform commencement.
(2) To the extent that a proceeding involves a
transitional employer and allowable transitional award matters:
(a) if the parties to the proceeding have asked
the Commission to conduct a hearing under paragraph 111AA (1) (b) of
the pre‑reform Act, the Commission may, to the extent that the proceeding
relates to the transitional employer, conduct a hearing, and make recommendations,
under clause 47 of Schedule 6 to the Act; and
(b) if the Commission has begun conducting a
hearing under section 111AA of the pre‑reform Act, the Commission may, to
the extent that the proceeding relates to the transitional employer, continue
to conduct the hearing, and make recommendations, under clause 47 of Schedule 6
to the Act.
4.28 Varying
awards (ambiguity or uncertainty)
If a proceeding for the purpose of subsection 113
(2) of the pre‑reform Act was begun, but not finally determined, before the
reform commencement, the Commission may continue the proceeding and, if
necessary, make an order under:
(a) to the extent that the proceeding relates to
an employer — subsection 554 (1) of the Act; or
(b) to the extent that the proceeding relates to a
transitional employer — subclause 30 (1) of Schedule 6 to the Act.
4.29 Varying
awards (removal of discrimination)
(1) This regulation
applies if:
(a) an award was referred to the Commission
under section 46PW of the Human Rights and Equal Opportunity Commission
Act 1986; and
(b) immediately
before the reform commencement:
(i) the Commission had not refused the
reference; and
(ii) the Commission had not taken the
action mentioned in subsection 113 (2A) of the pre‑reform Act.
(2) The Commission must continue the proceeding and, if
necessary, make an order under:
(a) to the extent that the award relates to an
employer — subsection 554 (1) of the Act; or
(b) to the extent that the award relates to a
transitional employer — clause 30 of Schedule 6 to the Act.
4.30 Varying
certified agreements (removal of discrimination)
(1) This regulation applies if:
(a) a certified agreement was referred to the
Commission under section 46PW of the Human Rights and Equal Opportunity
Commission Act 1986; and
(b) immediately before the reform commencement:
(i) the Commission had not refused the
application; and
(ii) the Commission had not taken the
action mentioned in subsection 113 (2A) of the pre‑reform Act.
(2) The Commission must continue the proceeding in accordance
with clause 3 of Schedule 7 to the Act.
4.31 Varying
awards (change of name)
If a proceeding for the purpose of subsection 113
(3) of the pre‑reform Act was begun, but not finally determined, before
the reform commencement, the Commission may continue the proceeding and, if
necessary, make an order under:
(a) to the extent that the proceeding relates to
an employer — subsection 554 (5) of the Act; or
(b) to the extent that the proceeding relates to
a transitional employer — subclause 30 (5) of Schedule 6 to the Act.
4.32 Varying
awards (junior rates of pay)
(1) If:
(a) an application to vary an award under
subsection 113 (3A) of the pre‑reform Act was received before the
reform commencement; and
(b) the matter was not finally determined before
the reform commencement; and
(c) the matter involves an employer;
the matter lapses, to the extent that it relates to the employer,
on the reform commencement.
(2) If:
(a) an application to vary an award under
subsection 113 (3A) of the pre‑reform Act was received before the
reform commencement; and
(b) the matter was not finally determined before
the reform commencement; and
(c) the matter involves a transitional employer;
the matter continues, to the extent that it relates to the
transitional employer, and the Commission may vary the award in accordance with
paragraph 29 (2) (a) of Schedule 6 to the Act.
4.33 Enterprise
flexibility provisions
(1) Proceedings under section 113A of the pre‑reform
Act that were begun but not finally determined before the reform commencement
lapse on the reform commencement.
(2) Proceedings under section 113B of the pre‑reform
Act that were begun but not finally determined before the reform commencement
lapse on the reform commencement.
4.34 Compulsory
conferences
A direction to attend a conference given under
section 119 of the pre‑reform Act before the reform commencement lapses
on the reform commencement.
4.35 Exceptional
matters orders
The Commission must not make an exceptional matters
order under section 120A of the pre‑reform Act after the reform
commencement, including in a proceeding begun before the reform commencement.
4.36 Orders
to stop or prevent industrial action
(1) Despite the amendments made to the pre‑reform
Act by the Work Choices Act, proceedings for:
(a) an order under subsection 127 (1) of the pre‑reform
Act; or
(b) an interim order under subsection 127 (3A) of
the pre‑reform Act;
that have been instituted but not finally determined before the
reform commencement continue and are to be determined under the pre‑reform
Act as if that Act had not been amended.
(2) Despite the repeal of section 127 of the pre‑reform
Act by the Work Choices Act, an order under subsection 127 (1), or an
interim order under subsection 127 (3A), of the pre‑reform Act that
was made:
(a) before the reform commencement; or
(b) after the reform commencement, in accordance
with subregulation (1);
has effect after the reform commencement as if that section had not
been repealed.
(3) Despite the repeal of section 127 of the pre‑reform
Act by the Work Choices Act, an application under subsection 127 (6) of
the pre‑reform Act that has been made before the reform commencement
continues and is to be determined under that subsection as if the pre‑reform
Act had not been amended.
(4) Despite the repeal of section 127 of the pre‑reform
Act by the Work Choices Act, an application under subsection 127 (6) of
the pre‑reform Act, including an application in relation to an order made
in accordance with subregulation (1):
(a) may be made after the reform commencement;
and
(b) is to be determined under subsection 127 (6)
of the pre‑reform Act as if that Act had not been amended.
4.37 Unfair
contracts
Despite the repeal of sections 127A and 127B of
the pre‑reform Act, if an application was made under subsection 127A (2)
of the pre‑reform Act before the reform commencement, the Court may,
after the reform commencement:
(a) review, or continue to review, and form an
opinion in relation to, the contract under section 127A of the pre‑reform
Act; and
(b) make an order under section 127B of the pre‑reform
Act in relation to the opinion.
4.38 Orders
restraining State authorities from dealing with disputes
Proceedings
(1) If a proceeding:
(a) was begun under section 128 of the pre‑reform
Act; and
(b) involved an
employer;
the proceeding continues, and is to be determined, under section
117 of the Act to the extent to which section 117 is capable of permitting the
proceeding to continue and be determined.
(2) Despite the repeal of section 128 of the pre‑reform
Act, if a proceeding:
(a) was begun under that section; and
(b) involved a
transitional employer;
the proceeding continues, and is to be determined, under that
section as if the pre‑reform Act had not been amended by the Work Choices
Act.
Orders
(3) If an order:
(a) was made as a result of a proceeding under
section 128 of the pre‑reform Act; and
(b) involved an employer;
the order has effect to the extent to which section 117 is capable
of permitting the order to have effect.
(4) Despite the repeal of section 128 of the pre‑reform
Act, if an order:
(a) was made as a result of a proceeding under
that section; and
(b) involved a
transitional employer;
the order has effect as if the pre‑reform Act had not been
amended by the Work Choices Act.
4.39 Reference
of dispute to local industrial board
A reference of an industrial dispute to a local
industrial board for investigation and report under section 130 of the pre‑reform
Act lapses on the reform commencement.
4.40 Boards
of reference
(1) If proceedings were begun, but not finally
determined, under subsection 131 (1) of the pre‑reform Act in relation to
an award involving an employer, the proceedings continue and are to be
determined in accordance with section 895 of the Act.
(2) If proceedings were begun, but not finally
determined, under subsection 131 (1) of the pre‑reform Act in relation to
an award involving a transitional employer, the proceedings continue after the
reform commencement and are to be determined in accordance with clause 26 of
Schedule 6 to the Act.
Division 5 Ballots ordered by Commission
4.41 Secret
ballots — industrial disputes
(1) Subject to subregulation (2), an order under
subsection 135 (1) of the pre‑reform Act lapses on the reform
commencement.
(2) An order under subsection 135 (1) of the pre‑reform
Act in relation to an industrial dispute with which the Commission is empowered
to deal under Schedule 6 to the Act (or with which the Commission would be so
empowered if the dispute occurred after the reform commencement) has effect
after the reform commencement as if it were an order under
subclause 52 (1) of that Schedule.
4.42 Secret
ballots — industrial action
An order under subsection 135 (2) of the pre‑reform
Act lapses on the reform commencement.
4.43 Secret
ballots — approval of certified agreements
(1) Despite the repeal of subsection 135 (2A), and Part
VIB, of the pre‑reform Act, but subject to subregulation (2), an order
under that subsection that was given before the reform commencement continues
to have effect after the reform commencement as if that subsection and Part had
not been repealed.
(2) The Commission may revoke an order given before the
reform commencement under subsection 135 (2A) of the pre‑reform Act.
4.44 Secret
ballots — industrial action during bargaining period
An order under subsection 135 (2B) of the pre‑reform
Act lapses on the reform commencement.
4.45 Application
for secret ballot
(1) An application under subsection 136 (1) of the pre‑reform
Act that was made but not determined before the reform commencement lapses on
the reform commencement.
(2) An order under subsection 136 (2) of the pre‑reform
Act lapses on the reform commencement.
Division 6 Common rules
4.46 Common
rules
(1) The Commission must not, after the reform
commencement, make a declaration under section 141 of the pre‑reform Act,
including in a proceeding begun before the reform commencement.
(2) An application under section 141A of the pre‑reform
Act made before the reform commencement lapses on the reform commencement.
(3) Despite the repeal of sections 142 and 493A of the
pre‑reform Act by the Work Choices Act, if:
(a) before the reform commencement, the
Commission varied a term of an award that was a common rule under
section 141 of the pre‑reform Act (including that section as applied
by section 493A of the pre‑reform Act); and
(b) before the reform commencement, a Registrar
published a notice under subsection 142 (4) of the pre‑reform Act
(including that section as applied by section 493A of the pre‑reform
Act); and
(c) either:
(i) the prescribed time (as defined by
subsection 142 (8) of the pre‑reform Act) had not expired before the
reform commencement; or
(ii) a
notice of objection was lodged before the reform commencement, but the
objection had not been finally determined before the reform commencement;
then, to the extent that the variation relates to a common rule
that was binding on an employer, subsections 142 (4) to (8) of the pre‑reform
Act (including those subsections as applied by section 493A of the pre‑reform
Act) continue to apply, in relation to the variation, as if those repeals had
not happened.
(4) In proceedings to which subregulation (3) applies,
the Commission may discontinue hearing the matter to the extent that the
Commission is of the opinion that:
(a) a decision made in dealing
with the matter could not be effectively implemented under the Act; or
(b) the matter has no practical
application under the Act.
(5) If a declaration under subsection
142 (5) of the pre‑reform Act is made after the reform commencement:
(a) for the purposes of:
(i) Subdivisions E and I of Division 2
of Part 7 of the Act; and
(ii) Division 3 of Part 10 of the Act;
and
(iii) clause 4 of Schedule 4 to the
Work Choices Act;
the declaration is taken to have effect
from the reform commencement; but
(b) the declaration takes effect only from the
date specified in the Commission’s order, which must not be earlier than the
date on which the order is made.
Note Provisions relating to common rules for an industry in Victoria, to
the extent that they relate to employers and employees within the meaning of
section 858 of the Act, are contained at Subdivision E of Division 1 of Part 7
of Schedule 6 to the Act.
Division 7 Awards of Commission
4.47 Review
of operation of awards
Proceedings under section 151 of the pre‑reform
Act lapse on the reform commencement.
Division 8 Boycotts
4.48 Disputes
relating to boycotts
(1) If the Registrar is notified of a dispute under
section 157 of the pre‑reform Act before the reform commencement, he or
she is not required, after the reform commencement, to inform the President
under that section.
(2) A proceeding under section 158 of the pre‑reform
Act that has been instituted but not finally determined before the reform
commencement lapses on the reform commencement.
4.49 Restriction
on certain actions in tort
(1) Despite the repeal of section 166A of the pre‑reform
Act by the Work Choices Act, that section continues to apply, after the reform
commencement, to conduct that occurred before the reform commencement.
(2) If, before the reform commencement, a notice was
given to the Commission under subsection 166A (3) of the pre‑reform Act
in respect of conduct to which subsection 166A (1) of the pre‑reform
Act applied, but the Commission had not:
(a) stopped the conduct; or
(b) given a
certificate under subsection 166A (6) of the pre‑reform Act;
the Commission is taken to have given a certificate under paragraph
166A (6) (c) of the pre‑reform Act in respect of the conduct
immediately before the reform commencement.
Division 9 Cancellation and suspension of awards and orders
4.50 Cancellation
and suspension of awards and orders
Despite the repeal of section 187 of the pre‑reform
Act by the Work Choices Act, if an application was made, or a matter was
referred, to the President under that section before the reform commencement,
but the matter has not been finally determined before the reform commencement,
the matter continues and is to be dealt with in accordance with section 119 of
the Act.
Division 10 Right of entry
4.51 Civil
penalty proceedings
(1) Despite the repeal of section 285F of the pre‑reform
Act by the Work Choices Act, if, before the reform commencement, an application
for an order under subsection 285F (2) of the pre‑reform Act was
made but not finally determined, the application continues and is to be
determined under that section as if the pre‑reform Act had not been
amended.
(2) Despite the repeal of section 285F of the pre‑reform
Act by the Work Choices Act, if, before the reform commencement, proceedings
for an injunction under subsection 285F (5) of the pre‑reform Act
were begun but not finally determined, those proceedings continue and are to be
determined under that section as if the pre‑reform Act had not been
amended.
4.52 Powers
of Commission
If proceedings under section 285G of the pre‑reform
Act were begun but not finally determined before the reform commencement, those
proceedings continue and are to be determined under section 772 of the Act.
Division 11 Freedom of association
4.53 Remedies
for breaches
Despite the repeal of Part XA of the pre‑reform
Act by the Work Choices Act, if, before the reform commencement, an application
was made to the Court under section 298T of the pre‑reform Act, but was
not finally determined, the application continues and is to be determined under
section 298U of the pre‑reform Act as if that Act had not been amended.
4.54 Removal
of objectionable provisions
Despite the repeal of Part XA of the pre‑reform
Act by the Work Choices Act, if, before the reform commencement, an application
was made to the Commission under section 298Z of the pre‑reform Act, but
was not finally determined, the application continues and is to be determined
under that section as if the pre‑reform Act had not been amended.
Division 12 State laws
4.55 Appeal
rights under State laws
(1) Subject to subregulation (2), for paragraph
16 (2) (b) of the Act, subsection 16 (1) of the Act does not
apply to a law of a State or Territory that allows or otherwise relates to an
appeal to a State industrial authority against a decision to make or vary a
State award, including a decision under which an employer, employee or
industrial association becomes bound or ceases to be bound by the State award.
(2) Subregulation (1) ceases to apply 6 months after the
reform commencement.
(3) If, after the reform commencement, a State
industrial authority makes, sets aside or varies a State award as a result of
an appeal (including where this results in an employer, employee or industrial
association becoming bound or ceasing to be bound by the State award), to the
extent that that the award relates to an employer:
(a) for the purposes of:
(i) Part 7, Division 2, Subdivisions E
and I of the Act; and
(ii) Schedule 8 to the Act;
the State award is taken to have been made,
set aside or varied immediately before the reform commencement; but
(b) any resulting alteration of an entitlement
under the provisions of the Act mentioned in paragraph (a) takes effect only from
the later of:
(i) the date specified in the State
industrial authority’s order determining the appeal; and
(ii) the date on which the order
determining the appeal is made.
(4) In this regulation:
industrial association has the meaning given
by section 779 of the Act.
Chapter 8 Miscellaneous provisions
1.1 Ballots conducted by the Australian Electoral
Commission — no unauthorised action
(1) If a secret ballot is conducted by the Australian
Electoral Commission under the Act, a person other than:
(a) the authorised ballot agent; or
(b) a person authorised or directed by the
authorised ballot agent;
must not do, or purport to do, any act in the conduct of the
ballot.
(2) Strict liability applies to the physical elements in
subregulation (1).
Note For strict liability,
see section 6.1 of the Criminal Code.
(3) Subregulation (1) is
a civil remedy provision.
Note Part 14 of Chapter 2 sets out provisions
dealing with contraventions of civil remedy provisions.
1.2 No action for defamation in certain cases
No action or proceeding, civil or criminal, for
defamation lies:
(a) against the Commonwealth or an electoral
official conducting, on behalf of the Australian Electoral Commission, a ballot
under the Act in relation to the printing or issuing of a document or other
material by the electoral official; or
(b) if the document or other material mentioned
in paragraph (a) is printed by another person — against that person,
in relation to the printing.
1.3 Application of the Criminal Code to civil
remedy provisions
Unless the contrary
intention appears in the Act or these Regulations, Chapter 2 of the Criminal
Code (other than section 13.2 and Part 2.7) applies to civil remedy
provisions in this Chapter as if those provisions were offences.