Fair Work Amendment (State Referrals and Other Measures) Act 2009 (Cth)

Fair Work Amendment (State Referrals and Other Measures) Act 2009

No. 124, 2009

An Act to amend the Fair Work Act 2009, and for related purposes

Contents

Fair Work Amendment (State Referrals and Other Measures) Act 2009

No. 124, 2009

An Act to amend the Fair Work Act 2009, and for related purposes

[Assented to 9 December 2009]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Fair Work Amendment (State Referrals and Other Measures) Act 2009.

2Commencement

(1)
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	9 December 2009
2. Schedule 1, items 1 to 6	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	1 January 2010 (see F2009L04605)
3. Schedule 1, item 7	Immediately after the commencement of item 2 of Schedule 3.	15 December 2009
4. Schedule 1, items 8 to 12	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	1 January 2010 (see F2009L04605)
5. Schedule 1, item 13	Immediately after the commencement of item 11 of Schedule 1 to the Fair Work (State Referral and Consequential and Other Amendments) Act 2009.	25 June 2009
6. Schedule 1, items 14 and 15	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	1 January 2010 (see F2009L04605)
7. Schedule 1, item 16	Immediately after the commencement of item 11 of Schedule 1 to the Fair Work (State Referral and Consequential and Other Amendments) Act 2009.	25 June 2009
8. Schedule 1, items 17 to 41	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	1 January 2010 (see F2009L04605)
9. Schedule 1, item 42	The day this Act receives the Royal Assent.	9 December 2009
10. Schedule 2, items 1A to 128	At the same time as item 39 of Schedule 1.	1 January 2010
11. Schedule 2, items 129 to 132	Immediately after the commencement of section 168E of the Fair Work Act 2009.	1 January 2010
12. Schedule 2, items 133 to 138	At the same time as item 39 of Schedule 1.	1 January 2010
13. Schedule 3, items 1A to 17	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	Items 1A, 4–17: 1 January 2010 (see F2009L04605) Items 1–3: 15 December 2009 (see F2009L04605)
13A. Schedule 3, items 17A to 17E	The day this Act receives the Royal Assent.	9 December 2009
14. Schedule 3, Part 2	At the same time as item 39 of Schedule 1.	1 January 2010

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2)
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Referring States

Fair Work Act 2009

1
Section 12 (note 2 at the end of the definition of employee)
Omit “subsection 15(1) and subsection 30E(1)”, substitute “subsections 15(1), 30E(1) and 30P(1)”.
2
Section 12 (note 2 at the end of the definition of employer)
Omit “subsection 15(2) and subsection 30E(2)”, substitute “subsections 15(2), 30E(2) and 30P(2)”.
3
Section 12 (note at the end of the definition of national system employee)
Omit “Section 30C extends”, substitute “Sections 30C and 30M extend”.
4
Section 12 (note at the end of the definition of national system employer)
Omit “Section 30D extends”, substitute “Sections 30D and 30N extend”.
5
Section 12 (note at the end of the definition of outworker entity)
Omit “Section 30F extends”, substitute “Sections 30F and 30Q extend”.

Section 13 (note)

Omit “Section 30C extends”, substitute “Sections 30C and 30M extend”.

Subsection 14(1) (note 2)

Omit “Section 30D extends”, substitute “Sections 30D and 30N extend”.

Subsection 15(1) (note)

Omit “Subsection 30E(1) extends”, substitute “Subsections 30E(1) and 30P(1) extend”.

Subsection 15(2) (note)

Omit “Subsection 30E(2) extends”, substitute “Subsections 30E(2) and 30P(2) extend”.

Section 24

Omit “Division 2A is about the extended application of this Act in a State that has”, substitute “Divisions 2A and 2B are about the extended application of this Act in States that have”.

Division 2A of Part 1‑3 (heading)

Repeal the heading, substitute:

Division 2A—Application of this Act in States that refer matters before 1 July 2009

Section 30A

Before “In this Division”, insert “(1)”.

Section 30A (definition of amendment)

Repeal the definition.

Section 30A

Insert:
amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(4).
15
Section 30A (definition of excluded subject matter)
Repeal the definition, substitute:
excluded subject matter means any of the following matters:
(a)
a matter dealt with in a law referred to in subsection 27(1A) of this Act;
(b)
superannuation;
(c)
workers compensation;
(d)
occupational health and safety;
(e)
matters relating to outworkers (within the ordinary meaning of the term);
(f)
child labour;
(g)
training arrangements;
(h)
long service leave;
(i)
leave for victims of crime;
(j)
attendance for service on a jury, or for emergency service duties;
(k)
declaration, prescription or substitution of public holidays;
(l)
the following matters relating to provision of essential services or to situations of emergency:
(i)
directions to perform work (including to perform work at a particular time or place, or in a particular way);
(ii)
directions not to perform work (including not to perform work at a particular time or place, or in a particular way);
(m)
regulation of any of the following:
(i)
employee associations;
(ii)
employer associations;
(iii)
members of employee associations or of employer associations;
(n)
workplace surveillance;
(o)
business trading hours;
(p)
claims for enforcement of contracts of employment, except so far as a law of a State provides for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;
(q)
rights or remedies incidental to a matter referred to in a preceding paragraph of this definition;
except to the extent that this Act as originally enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter.

Section 30A (definition of express amendment)

Omit “amendment of this Act”, substitute “amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter)”.

Section 30A

Insert:
fundamental workplace relations principles: see subsection 30B(9).

Section 30A

Insert:
initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(3).
19
Section 30A (definition of law enforcement officer)
Repeal the definition, substitute:
law enforcement officer means:
(a)
a member of a police force or police service; or
(b)
a person appointed to a position for the purpose of being trained as a member of a police force or police service; or
(c)
a person who has the powers and duties of a member of a police force or police service;
and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer.

Section 30A

Insert:
local government employee, of a State, means:
(a)
an employee of a local government employer of the State; or
(b)
any other employee in the State of a kind specified in the regulations.

Section 30A

Insert:
local government employer, of a State, means an employer that is:
(a)
a body corporate that is established for a local government purpose by or under a law of a State; or
(b)
a body corporate in which a body to which paragraph (a) applies has, or 2 or more such bodies together have, a controlling interest; or
(c)
a person who employs individuals for the purposes of an unincorporated body that is established for a local government purpose by or under a law of a State; or
(d)
any other body corporate that is a local government body in the State of a kind specified in the regulations; or
(e)
any other person who employs individuals for the purposes of an unincorporated body that is a local government body in the State of a kind specified in the regulations.
22
Section 30A (paragraph (c) of the definition of referred subject matters)
After “responsibilities of”, insert “persons, including”.
23
Section 30A (subparagraph (c)(i) of the definition of referred subject matters)
After “association”, insert “in the context of workplace relations,”.
24
Section 30A (subparagraph (c)(viii) of the definition of referred subject matters)
Before “rights of entry”, insert “union”.
25
Section 30A (paragraphs (a) to (d) of the definition of State public sector employer)
Repeal the paragraphs, substitute:
(a)
the State, the Governor of the State or a Minister of the State; or
(b)
a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or
(c)
a body corporate in which the State has a controlling interest; or
(d)
a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or
(e)
any other employer in the State of a kind specified in the regulations;

Section 30A

Insert:
transition reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(5).

At the end of section 30A

Add:
(2)
Words or phrases in the definition of excluded subject matter in subsection (1), or in the definition of referred subject matters in subsection (1), that are defined in this Act (other than in this Division) have, in that definition, the meanings set out in this Act as in force on 1 July 2009.

27A

Subsection 30B(1)

After “State has”, insert “, before 1 July 2009,”.

Paragraph 30B(2)(b)

After “particular matters”, insert “, or all matters,”.

Paragraph 30B(2)(b)

Omit “those matters”, substitute “the matters covered by subsections (3), (4) and (5); or”.

At the end of subsection 30B(2)

Add:
(c)
the State’s referral law provides that particular matters, or all matters, relating to local government employees, or local government employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5).

Subsection 30B(6)

Repeal the subsection, substitute:
Effect of termination of reference
(6)
Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs:
(a)
the State’s initial reference terminates;
(b)
the State’s amendment reference terminates, and neither of subsections (7) and (8) apply to the termination;
(c)
the State’s transition reference terminates.
(7)
A State does not cease to be a referring State because of the termination of its amendment reference if:
(a)
the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and
(b)
the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and
(c)
that State’s amendment reference, and the amendment reference of every other referring State (other than a referring State that has terminated its amendment reference in the circumstances referred to in subsection (8)), terminate on the same day.
(8)
A State does not cease to be a referring State because of the termination of its amendment reference if:
(a)
the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and
(b)
the day fixed is no earlier than the first day after the end of the period of 3 months beginning on the day on which the proclamation is published; and
(c)
the Governor of that State, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor, this Act:
(i)
is proposed to be amended (by an amendment introduced into the Parliament by a Minister); or
(ii)
has been amended;
in a manner that is inconsistent with one or more of the fundamental workplace relations principles.
(9)
The following are the fundamental workplace relations principles:
(a)
that this Act should provide for, and continue to provide for, the following:
(i)
a strong, simple and enforceable safety net of minimum employment standards;
(ii)
genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities;
(iii)
collective bargaining at the enterprise level with no provision for individual statutory agreements;
(iv)
fair and effective remedies available through an independent umpire;
(v)
protection from unfair dismissal;
(b)
that there should be, and continue to be, in connection with the operation of this Act, the following:
(i)
an independent tribunal system;
(ii)
an independent authority able to assist employers and employees within a national workplace relations system.

Paragraphs 30C(1)(a) and 30D(1)(a)

Omit “a referring State”, substitute “a State that is a referring State because of this Division”.

Subsection 30E(1)

Omit “a referring State”, substitute “a State that is a referring State because of this Division”.

Subsection 30E(2)

After “a State”, insert “that is a referring State because of this Division”.

Subparagraphs 30F(1)(c)(i) to (iv)

Omit “a referring State”, substitute “a State that is a referring State because of this Division”.

Subsection 30G(1)

Omit “a referring State”, substitute “a State that is a referring State because of this Division”.

Section 30H

Omit “a referring State”, substitute “a State that is a referring State because of this Division”.

Section 30J

Repeal the section.

After Division 2A of Part 1‑3

Insert:

Division 2B—Application of this Act in States that refer matters after 1 July 2009 but on or before 1 January 2010

30KMeaning of terms used in this Division

(1)
In this Division:
amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(4).
excluded subject matter means any of the following matters:
(a)
a matter dealt with in a law referred to in subsection 27(1A) of this Act;
(b)
superannuation;
(c)
workers compensation;
(d)
occupational health and safety;
(e)
matters relating to outworkers (within the ordinary meaning of the term);
(f)
child labour;
(g)
training arrangements;
(h)
long service leave;
(i)
leave for victims of crime;
(j)
attendance for service on a jury, or for emergency service duties;
(k)
declaration, prescription or substitution of public holidays;
(l)
the following matters relating to provision of essential services or to situations of emergency:
(i)
directions to perform work (including to perform work at a particular time or place, or in a particular way);
(ii)
directions not to perform work (including not to perform work at a particular time or place, or in a particular way);
(m)
regulation of any of the following:
(i)
employee associations;
(ii)
employer associations;
(iii)
members of employee associations or of employer associations;
(n)
workplace surveillance;
(o)
business trading hours;
(p)
claims for enforcement of contracts of employment, except so far as a law of a State provides for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;
(q)
rights or remedies incidental to a matter referred to in a preceding paragraph of this definition;
except to the extent that this Act as originally enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter.
express amendment means the direct amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter), but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act.
fundamental workplace relations principles: see subsection 30L(9).
initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(3).
law enforcement officer means:
(a)
a member of a police force or police service; or
(b)
a person appointed to a position for the purpose of being trained as a member of a police force or police service; or
(c)
a person who has the powers and duties of a member of a police force or police service;
and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer.
local government employee, of a State, means:
(a)
an employee of a local government employer of the State; or
(b)
any other employee in the State of a kind specified in the regulations.
local government employer, of a State, means an employer that is:
(a)
a body corporate that is established for a local government purpose by or under a law of a State; or
(b)
a body corporate in which a body to which paragraph (a) applies has, or 2 or more such bodies together have, a controlling interest; or
(c)
a person who employs individuals for the purposes of an unincorporated body that is established for a local government purpose by or under a law of a State; or
(d)
any other body corporate that is a local government body in the State of a kind specified in the regulations; or
(e)
any other person who employs individuals for the purposes of an unincorporated body that is a local government body in the State of a kind specified in the regulations.
referral law, of a State, means the law of the State that refers matters, as mentioned in subsection 30L(1), to the Parliament of the Commonwealth.
referred provisions means the provisions of this Division to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.
referred subject matters means any of the following:
(a)
terms and conditions of employment, including any of the following:
(i)
minimum terms and conditions of employment, (including employment standards and minimum wages);

(ii)
terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise‑level agreements);
(iii)
bargaining in relation to terms and conditions of employment;
(iv)
the effect of a transfer of business on terms and conditions of employment;
(b)
terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers;
(c)
rights and responsibilities of persons, including employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following:
(i)
freedom of association in the context of workplace relations, and related protections;
(ii)
protection from discrimination relating to employment;
(iii)
termination of employment;
(iv)
industrial action;
(v)
protection from payment of fees for services related to bargaining;
(vi)
sham independent contractor arrangements;
(vii)
standing down employees without pay;
(viii)
union rights of entry and rights of access to records;
(d)
compliance with, and enforcement of, this Act;
(e)
the administration of this Act;
(f)
the application of this Act;
(g)
matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act;
but does not include any excluded subject matter.
referring State: see section 30L.
State public sector employee, of a State, means:
(a)
an employee of a State public sector employer of the State; or
(b)
any other employee in the State of a kind specified in the regulations;
and includes a law enforcement officer of the State.
State public sector employer, of a State, means an employer that is:
(a)
the State, the Governor of the State or a Minister of the State; or
(b)
a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or
(c)
a body corporate in which the State has a controlling interest; or
(d)
a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or
(e)
any other employer in the State of a kind specified in the regulations;
and includes a holder of an office of the State whom the State’s referral law provides is to be taken, for the purposes of this Act, to be an employer of law enforcement officers of the State.
transition reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(5).
(2)
Words or phrases in the definition of excluded subject matter in subsection (1), or in the definition of referred subject matters in subsection (1), that are defined in this Act (other than in this Division) have, in that definition, the meanings set out in this Act as in force on 1 July 2009.

30LMeaning of referring State

Reference of matters by State Parliament to Commonwealth Parliament
(1)
A State is a referring State if the Parliament of the State has, after 1 July 2009 but on or before 1 January 2010, referred the matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:
(a)
if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and
(b)
if and to the extent that the matters are included in the legislative powers of the Parliament of the State.
This subsection has effect subject to subsection (6).
(2)
A State is a referring State even if:
(a)
the State’s referral law provides that the reference to the Parliament of the Commonwealth of any or all of the matters covered by subsections (3), (4) and (5) is to terminate in particular circumstances; or
(b)
the State’s referral law provides that particular matters, or all matters, relating to State public sector employees, or State public sector employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5); or
(c)
the State’s referral law provides that particular matters, or all matters, relating to local government employees, or local government employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5).
Reference covering referred provisions
(3)
This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by amending this Act, as originally enacted, and as subsequently amended by amendments enacted at any time before the State’s referral law commenced, to include the referred provisions.
Reference covering amendments
(4)
This subsection covers the referred subject matters to the extent of making laws with respect to those matters by making express amendments of this Act.
Reference covering transitional matters
(5)
This subsection covers making laws with respect to the transition from the regime provided for by:
(a)
the Workplace Relations Act 1996 (as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); or
(b)
a law of a State relating to workplace relations or industrial relations;
to the regime provided for by this Act.
Effect of termination of reference
(6)
Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs:
(a)
the State’s initial reference terminates;
(b)
the State’s amendment reference terminates, and neither of subsections (7) and (8) apply to the termination;
(c)
the State’s transition reference terminates.
(7)
A State does not cease to be a referring State because of the termination of its amendment reference if:
(a)
the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and
(b)
the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and
(c)
that State’s amendment reference, and the amendment reference of every other referring State (other than a referring State that has terminated its amendment reference in the circumstances referred to in subsection (8)), terminate on the same day.
(8)
A State does not cease to be a referring State because of the termination of its amendment reference if:
(a)
the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and
(b)
the day fixed is no earlier than the first day after the end of the period of 3 months beginning on the day on which the proclamation is published; and
(c)
the Governor of that State, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor, this Act:
(i)
is proposed to be amended (by an amendment introduced into the Parliament by a Minister); or
(ii)
has been amended;
in a manner that is inconsistent with one or more of the fundamental workplace relations principles.
(9)
The following are the fundamental workplace relations principles:
(a)
that this Act should provide for, and continue to provide for, the following:
(i)
a strong, simple and enforceable safety net of minimum employment standards;
(ii)
genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities;
(iii)
collective bargaining at the enterprise level with no provision for individual statutory agreements;
(iv)
fair and effective remedies available through an independent umpire;
(v)
protection from unfair dismissal;
(b)
that there should be, and continue to be, in connection with the operation of this Act, the following:
(i)
an independent tribunal system;
(ii)
an independent authority able to assist employers and employees within a national workplace relations system.

30MExtended meaning of national system employee

(1)
A national system employee includes:
(a)
any individual in a State that is a referring State because of this Division so far as he or she is employed, or usually employed, as described in paragraph 30N(1)(a), except on a vocational placement; and
(b)
a law enforcement officer of the State to whom subsection 30P(1) applies.
(2)
This section does not limit the operation of section 13 (which defines a national system employee).
Note: Section 30S may limit the extent to which this section extends the meaning of national system employee.

30NExtended meaning of national system employer

(1)
A national system employer includes:
(a)
any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual; and
(b)
a holder of an office to whom subsection 30P(2) applies.
(2)
This section does not limit the operation of section 14 (which defines a national system employer).
Note: Section 30S may limit the extent to which this section extends the meaning of national system employer.

30PExtended ordinary meanings of employee and employer

(1)
A reference in this Act to an employee with its ordinary meaning includes a reference to a law enforcement officer of a referring State if the State’s referral law so provides for the purposes of that law.
(2)
A reference in this Act to an employer with its ordinary meaning includes a reference to a holder of an office of a State if the State’s referral law provides, for the purposes of that law, that the holder of the office is taken to be the employer of a law enforcement officer of the State.
(3)
This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings).
Note: Section 30S may limit the extent to which this section extends the meanings of employee and employer.

30QExtended meaning of outworker entity

(1)
An outworker entity includes a person, other than in the person’s capacity as a national system employer, so far as:
(a)
the person arranges for work to be performed for the person (either directly or indirectly); and
(b)
the work is of a kind that is often performed by outworkers; and
(c)
one or more of the following applies:
(i)
at the time the arrangement is made, one or more parties to the arrangement is in a State that is a referring State because of this Division;
(ii)
the work is to be performed in a State that is a referring State because of this Division;
(iii)
the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is reasonably likely to be performed in that State;
(iv)
the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is to be performed in connection with that activity.
(2)
This section does not limit the operation of the definition of outworker entity in section 12.
Note: Section 30S may limit the extent to which this section extends the meaning of outworker entity.

30RGeneral protections

(1)
Part 3‑1 (which deals with general protections) applies to action taken in a State that is a referring State because of this Division.
(2)
This section applies despite section 337 (which limits the application of Part 3‑1), and does not limit the operation of sections 338 and 339 (which set out the application of that Part).
Note: Section 30S may limit the extent to which this section extends the application of Part 3‑1.

30SDivision only has effect if supported by reference

A provision of this Division has effect in relation to a State that is a referring State because of this Division only to the extent that the State’s referral law refers to the Parliament of the Commonwealth the matters mentioned in subsection 30L(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect.

At the end of Division 4 of Part 1‑3

Add:

40AApplication of the Acts Interpretation Act 1901

(1)
The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.
(2)
Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act.

Section 337 (note)

Omit “Section 30G extends”, substitute “Sections 30G and 30R extend”.

Transitional—referring State

Victoria is taken, for the purposes of the Fair Work Act 2009:
(a)
to have been a referring State at and after the commencement of item 11 of Schedule 1 to the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 until immediately before the commencement of this item; and
(b)
to continue to be a referring State at and after the commencement of this item, subject to section 30B (meaning of referring State) of the Fair Work Act 2009.

Schedule 2Transitional matters related to State referrals under Division 2B of Part 1‑3 of the Fair Work Act 2009Part 1Amendment of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 2 of Schedule 2

Insert:
affected employee of an employer: see subitem 43(6) of Schedule 3 and subitem 30A(4) of Schedule 3A.

Item 2 of Schedule 2 (definition of applies)

Repeal the definition, substitute:
applies:
(a)
in relation to a transitional instrument: see subitem 3(2) of Schedule 3; and
(b)
in relation to a Division 2B State award: see item 4 of Schedule 3A; and
(c)
in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A.

Item 2 of Schedule 2

Insert:
collective Division 2B State employment agreement: see subitem 5(5) of Schedule 3A.

Item 2 of Schedule 2

Insert:
collective State employment agreement: see subitem 2(6) of Schedule 3A.
4
Item 2 of Schedule 2 (definition of conditional termination)
Repeal the definition, substitute:
conditional termination:
(a)
in relation to an individual agreement‑based transitional instrument: see subitem 18(1) of Schedule 3; and
(b)
in relation to an individual Division 2B State employment agreement: see subitem 25(1) of Schedule 3A.
5
Item 2 of Schedule 2 (at the end of the definition of covers)
Add:
; and (c)
in relation to a Division 2B State award: see item 4 of Schedule 3A; and
(d)
in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A.

Item 2 of Schedule 2

Insert:
Division 2A referring State: see subitem 2A(7) of Schedule 3.

Item 2 of Schedule 2

Insert:
Division 2A State reference employee: see subitem 2A(3A) of Schedule 3.

Item 2 of Schedule 2

Insert:
Division 2A State reference employer: see subitem 2A(4A) of Schedule 3.

Item 2 of Schedule 2

Insert:
Division 2A State reference transitional award: see subitem 2A(1A) of Schedule 3.

Item 2 of Schedule 2

Insert:
Division 2B enterprise award: see subitem 2(4) of Schedule 6.

Item 2 of Schedule 2

Insert:
Division 2B referral commencement: see subitem 2(4A) of Schedule 3.

Item 2 of Schedule 2

Insert:
Division 2B referring State: see subitem 2A(7) of Schedule 3.

Item 2 of Schedule 2

Insert:
Division 2B State award: see item 3 of Schedule 3A.

Item 2 of Schedule 2

Insert:
Division 2B State employment agreement: see item 5 of Schedule 3A.

Item 2 of Schedule 2

Insert:
Division 2B State instrument: see item 2 of Schedule 3A.

Item 2 of Schedule 2

Insert:
Division 2B State reference employee: see subitem 2A(3A) of Schedule 3.

Item 2 of Schedule 2

Insert:
Division 2B State reference employer: see subitem 2A(4A) of Schedule 3.

Item 2 of Schedule 2

Insert:
Division 2B State reference outworker entity: see subitem 4(3) of Schedule 3A.

Item 2 of Schedule 2

Insert:
Division 2B State reference transitional award: see subitem 2A(1A) of Schedule 3.

Item 2 of Schedule 2

Insert:
individual Division 2B State employment agreement: see subitem 5(6) of Schedule 3A.

Item 2 of Schedule 2

Insert:
individual State employment agreement: see subitem 2(7) of Schedule 3A.
22
Item 2 of Schedule 2 (definition of instrument content rules)
Repeal the definition, substitute:
instrument content rules:
(a)
in Schedule 3: see subitem 4(2) of Schedule 3; and
(b)
in Schedule 3A: see subitem 10(2) of Schedule 3A.
23
Item 2 of Schedule 2 (definition of instrument interaction rules)
Repeal the definition, substitute:
instrument interaction rules:
(a)
in Schedule 3: see subitem 5(2) of Schedule 3; and
(b)
in Schedule 3A: see subitem 11(2) of Schedule 3A.

Item 2 of Schedule 2

Insert:
nominal expiry date, in relation to a Division 2B State employment agreement: see item 27 of Schedule 3A.

Item 2 of Schedule 2

Insert:
outworker interaction rules: see subitem 12(2) of Schedule 3A.

Item 2 of Schedule 2

Insert:
referring State: see subitem 2A(7) of Schedule 3.

Item 2 of Schedule 2

Insert:
source agreement, in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A.

Item 2 of Schedule 2

Insert:
source award, in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A.

Item 2 of Schedule 2

Insert:
source State:
(a)
in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A; and
(b)
in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A.

Item 2 of Schedule 2

Insert:
State award: see item 2 of Schedule 3A.

Item 2 of Schedule 2

Insert:
State employment agreement: see item 2 of Schedule 3A.

Item 2 of Schedule 2

Insert:
State industrial body means a commission performing or exercising functions under a State industrial law, and includes a member of such a commission and a registrar or deputy registrar of such a commission.

Item 2 of Schedule 2

Insert:
State industrial law means a law of a State that is a State or Territory industrial law as defined in section 26 of the FW Act.

Item 2 of Schedule 2

Insert:
State minimum wages instruments: see item 19 of Schedule 9.
35
Item 2 of Schedule 2 (definition of take‑home pay)
After “see”, insert “subitem 31(2) of Schedule 3A,”.
36
Item 2 of Schedule 2 (definition of take‑home pay order)
After “see”, insert “subitems 32(1) and (2) of Schedule 3A,”.

36A

Item 2 of Schedule 2

Insert:
transitional pay equity order: see subitem 43(1) of Schedule 3 and subitem 30A(1) of Schedule 3A.

At the end of subitem 7(1) of Schedule 2

Add:
; (c)
the transition from the regime provided for by State industrial laws of Division 2B referring States to the regime provided for by this Act and the FW Act, including:
(i)
the transition from State awards and State employment agreements to Division 2B State instruments; and
(ii)
the transition from Division 2B State instruments to modern awards and enterprise agreements;
(d)
the amendments and repeals made by the Fair Work Amendment (State Referrals and Other Measures Act) 2009.

At the end of subitem 7(2) of Schedule 2

Add:
; (c)
provide for the application (with or without modifications), as laws of the Commonwealth, of provisions of State industrial laws of Division 2B referring States on and after the Division 2B referral commencement.

Subitem 2(1) of Schedule 3

Omit “subitems (3) and (4)”, substitute “subitems (3) to (4A)”.

Paragraph 2(3)(a) of Schedule 3

After “WR Act instrument”, insert “(other than a Division 2B State reference transitional award)”.

After subitem 2(4) of Schedule 3

Insert:
(4A) A Division 2B State reference transitional award becomes a transitional instrument on the Division 2B referral commencement. The Division 2B referral commencement is the time when Division 2B of Part 1‑3 of the FW Act commences.

Item 2A of Schedule 3 (heading)

Repeal the heading, substitute:
2A
Meaning of State reference transitional award and various other expressions associated with State references

After subitem 2A(1) of Schedule 3

Insert:
(1A) State reference transitional awards are classified as follows:
(a)
if the employers and employees covered are Division 2A State reference employers and Division 2A State reference employees—the State reference transitional award is a Division 2A State reference transitional award;

(b)
if the employers and employees covered are Division 2B State reference employers and Division 2B State reference employees—the State reference transitional award is a Division 2B State reference transitional award.

Subitem 2A(3) of Schedule 3

After “section 30C”, insert “or 30M”.

After subitem 2A(3) of Schedule 3

Insert:
(3A) State reference employees are classified as follows:
(a)
employees who are national system employees because of section 30C of the FW Act are Division 2A State reference employees;
(b)
employees who are national system employees because of section 30M of the FW Act are Division 2B State reference employees.

Subitem 2A(4) of Schedule 3

After “section 30D”, insert “or 30N”.

After subitem 2A(4) of Schedule 3

Insert:
(4A) State reference employers are classified as follows:
(a)
employers that are national system employers because of section 30D of the FW Act are Division 2A State reference employers;
(b)
employers that are national system employers because of section 30N of the FW Act are Division 2B State reference employers.

Paragraph 2A(5)(a) of Schedule 3

Repeal the paragraph, substitute:
(a)
a transitional award (the current award), as in force on the WR Act repeal day, covers one or more Division 2A State reference employers, and Division 2A State reference employees of those employers; and

Subitem 2A(5) of Schedule 3

After “instead”, insert “, on and after that day (subject to subitem (6)),”.

Paragraph 2A(5)(c) of Schedule 3

Omit “a State reference”, substitute “a Division 2A State reference”.

At the end of item 2A of Schedule 3

Add:

(6) If:

(a)
a transitional award (the current award), as in force on the Division 2B referral commencement, covers one or more Division 2B State reference employers, and Division 2B State reference employees of those employers; and
(b)
the current award also covers:
(i)
other employees of those employers; or
(ii)
other employers, and employees of those other employers;
then, for the purposes of this Act, the current award is taken instead, on and after the Division 2B referral commencement, to constitute 2 separate transitional awards as follows:
(c)
a Division 2B State reference transitional award covering:
(i)
the employers, and the employees of those employers, referred to in paragraph (a); and
(ii)
if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees;
(d)
a transitional award covering:
(i)
the employers, and the employees of those employers, referred to in paragraph (b); and
(ii)
if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.

(7) A referring State is:

(a)
a State (a Division 2A referring State) that is a referring State as defined in section 30B of the FW Act; or
(b)
a State (a Division 2B referring State) that is a referring State as defined in section 30L of the FW Act.

Subparagraph 20(2)(b)(ii) of Schedule 3

After “State employment agreement”, insert “(within the meaning of the WR Act)”.

Paragraphs 20(4)(b) and (6)(d) of Schedule 3

After “State employment agreement”, insert “(within the meaning of the WR Act)”.

53A

At the end of Schedule 3

Add:
Part 8—Transitional pay equity order taken to have been made by FWA—Division 2B State reference transitional awards
43
FWA taken to have made a transitional pay equity order to continue the effect of State pay equity orders
(1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.
(2) The transitional pay equity order applies to an employer if:
(a)
a modern award applies to the employer on or after the Division 2B referral commencement; and
(b)
the employer is prescribed by the regulations for the purposes of this paragraph, or is included in a class of employers prescribed by the regulations for the purposes of this paragraph; and
(c)
immediately before the Division 2B referral commencement, a transitional award (the relevant transitional award) applied to the employer.
Note: Transitional award has the same meaning as in Schedule 6 to the WR Act. Schedule 6 is continued in operation by Schedule 20 to this Act.
(3) An employer must not be prescribed by regulations for the purposes of paragraph (2)(b) unless:
(a)
an order, decision or determination of a State industrial body (the source pay equity order) would have applied to the employer if the relevant transitional award had not applied to the employer; and
(b)
the source pay equity order satisfies subitem (4).
(4) A source pay equity order satisfies this subitem if it:
(a)
was made before 15 September 2009; and
(b)
provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and
(c)
was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and
(d)
is prescribed by the regulations for the purposes of this paragraph.
(5) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid if the source pay equity order had applied to the employer in respect of the period.
(6) An employee of an employer to which this item applies is an affected employee of the employer if the employee performs work of a kind, at a classification level (however described), in relation to which the source pay equity order determines a base rate of pay.
(7) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.
(8) A term of a modern award is of no effect to the extent that:
(a)
an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and
(b)
the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).
(9) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (8)(a).

After Schedule 3

Insert:
Schedule 3A—Treatment of State awards and State employment agreements of Division 2B referring States

Part 1—Preliminary

Meanings of employer and employee

In this Schedule, employer and employee have their ordinary meanings.

Part 2—Division 2B State instruments

What are Division 2B State instruments?

(1) A Division 2B State instrument is a Division 2B State award (see item 3) or a Division 2B State employment agreement (see item 5).
(2) Subject to subitem (3), a State award is an instrument in relation to which the following conditions are satisfied:
(a)
the instrument regulates terms and conditions of employment;
(b)
the instrument was made under a State industrial law by a State industrial body;
(c)
the instrument is referred to in that law as an award.
Note: This definition does not apply to a reference in a provision of this Act to a State award if the provision expressly refers to the meaning that was given by the WR Act.
(3) The regulations may provide that an instrument of a specified kind:
(a)
is a State award; or
(b)
is not a State award.
(4) Subject to subitem (5), a State employment agreement is:
(a)
an agreement in relation to which the following conditions are satisfied:
(i)
the agreement is between an employer and one or more employees of the employer, or between an employer and an association of employees registered under a State industrial law;
(ii)
the agreement determines terms and conditions of employment of one or more employees of the employer;
(iii)
the agreement was made under a State industrial law; or
(b)
a determination in relation to which the following conditions are satisfied:
(i)
the determination determines terms and conditions of employment;
(ii)
the determination was made under a State industrial law by a State industrial body;
(iii)
the determination was made in a situation in which parties who were negotiating for the making of an agreement of a kind described in paragraph (a) had not been able to reach an agreement;
(iv)
the purpose of the determination was to resolve the matters that were at issue in those negotiations.
Note: This definition does not apply to a reference in a provision of this Act to a State employment agreement if the provision expressly refers to the meaning that was given by the WR Act.
(5) The regulations may provide that an instrument of a specified kind:
(a)
is a State employment agreement; or
(b)
is not a State employment agreement.
(6) A State employment agreement is a collective State employment agreement unless:
(a)
it is an agreement of a kind that, under the relevant State industrial law, could only be entered into by a single employee and a single employer; or
(b)
the agreement is of a kind prescribed by the regulations for the purpose of this paragraph.
(7) A State employment agreement referred to in paragraph (6)(a) or (b) is an individual State employment agreement.

Division 2B State awards

(1) If, immediately before the Division 2B referral commencement:
(a)
a State award (the source award) was in operation under a State industrial law of a Division 2B referring State (the source State); and
(b)
the source award covered (however described in the source award or a relevant law of the source State) employers and employees who become Division 2B State reference employers and Division 2B State reference employees on the Division 2B referral commencement (whether or not the source award also covered other persons);
a Division 2B State award is taken to come into operation immediately after the Division 2B referral commencement.
Note 1: A Division 2B State award is a notional federal instrument derived from the source award.
Note 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State awards:
(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);
(b) Schedule 11 (which deals with transfer of business).
(2) Subject to this Schedule, the Division 2B State award is taken to include the same terms as were in the source award immediately before the Division 2B referral commencement.
Note: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.
(3) If the terms of the source award were affected by an order, decision or determination of a State industrial body or a court of the source State that was in operation immediately before the Division 2B referral commencement, the terms of the Division 2B State award are taken to be similarly affected by the terms of that order, decision or determination.
4
The employees, employers etc. who are covered by a Division 2B State award and to whom it applies
Meaning of covers
(1) A Division 2B State award covers the same employees, employers, outworker entities and any other persons that the source award covered (however described in the award or a relevant law of the source State) immediately before the Division 2B referral commencement.
Note: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State award potentially applies (see subitem (5)). The employees, employers etc. who are within this range will depend on the terms of the award, and on any relevant provisions of the law of the source State.
(2) The Division 2B State award also covers any employees who become employed by an employer on or after the Division 2B referral commencement, and who would have been covered by the source award if they had become so employed immediately before that commencement.
(3) However, the Division 2B State award does not cover:
(a)
any employees, employers or outworker entities that are not Division 2B State reference employees, Division 2B State reference employers or Division 2B State reference outworker entities; or
(b)
any employees, employers or outworker entities that are covered by an award‑based transitional instrument.
A Division 2B State reference outworker entity is an entity that is an outworker entity only because of section 30Q of the FW Act.

(4) If:

(a)
after the Division 2B referral commencement, a person (the employer) starts to employ employees to do work of a kind that was regulated by the source award immediately before that commencement; and
(b)
the employer did not employ employees to do that kind of work immediately before that commencement;
then the Division 2B State award also does not cover any of the following, in relation to that kind of work:
(c)
the employer;
(d)
employees of the employer;
(e)
any other persons, in relation to the employer or employees of the employer.
Meaning of applies
(5) A Division 2B State award applies to the same employees, employers, outworker entities and any other persons that the Division 2B State award covers as would have been required by the law of the source State to comply with terms of the source award, or entitled under the law of the source State to enforce terms of the source award, if:
(a)
the State had not been a referring State; and
(b)
the law of the source State had continued to apply.
Note 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State award.
Note 2: The Division 2B State award does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or (4) or otherwise.
(6) However, a Division 2B State award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).
Note: Item 50 deals with the application of section 329 of the FW Act to Division 2B State awards.
Item has effect subject to other provisions

(7) This item has effect subject to:

(a)
the instrument interaction rules (see item 11); and
(b)
the termination of Division 2B State instruments as referred to in item 18; and
(c)
Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and
(d)
Schedule 11 (which deals with transfer of business).
References to laws of States
(8) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.

Division 2B State employment agreements

State employment agreements that were in operation immediately before the Division 2B referral commencement
(1) If, immediately before the Division 2B referral commencement:
(a)
a State employment agreement (the source agreement) was in operation under a State industrial law of a Division 2B referring State (the source State); and
(b)
the source agreement covered (however described in the source agreement or a relevant law of the source State) employers and employees who become Division 2B State referral employers and Division 2B State referral employees on the Division 2B referral commencement (whether or not the source agreement also covered other persons);
a Division 2B State employment agreement is taken to come into operation immediately after the Division 2B referral commencement.
Note 1: A Division 2B State employment agreement is a notional federal instrument derived from the source agreement.
Note 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:
(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);
(b) Schedule 11 (which deals with transfer of business).
Note 3: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.
(2) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement immediately before the Division 2B referral commencement.
State employment agreements that come into operation on or after the Division 2B referral commencement
(3) If, on or after the Division 2B referral commencement:
(a)
a State employment agreement (the source agreement) comes into operation under a State industrial law of a Division 2B referring State (the source State); and
(b)
the source agreement covers (however described in the source agreement or a relevant law of the source State) employers and employees who are Division 2B State referral employers and Division 2B State referral employees when the source agreement comes into operation (whether or not the source agreement also covers other persons);
a Division 2B State employment agreement is taken to come into operation immediately after the source agreement comes into operation.
Note 1: A Division 2B State employment agreement is a notional federal instrument derived from the source agreement.
Note 2: There is limited scope for State employment agreements that cover Division 2B State referral employers and employees to come into operation on or after the Division 2B referral commencement: see Part 6 of this Schedule.
Note 3: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:
(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);
(b) Schedule 11 (which deals with transfer of business).
(4) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement when it came into operation.
Collective and individual Division 2B State employment agreements
(5) If the source agreement in relation to a Division 2B State employment agreement is a collective State employment agreement, the Division 2B State employment agreement is a collective Division 2B State employment agreement.
(6) If the source agreement in relation to a Division 2B State employment agreement is an individual State employment agreement, the Division 2B State employment agreement is an individual Division 2B State employment agreement.
6
The employees, employers etc. who are covered by a Division 2B State employment agreement and to whom it applies
Meaning of covers
(1) A Division 2B State employment agreement covers the same employees, employers and any other persons that the source agreement covered (however described in the agreement or a relevant law of the source State) immediately before the Division 2B State employment agreement came into operation.
Note: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State employment agreement potentially applies (see subitem (4)). The employees, employers etc. who are within this range will depend on the terms of the agreement, and on any relevant provisions of the law of the source State.
(2) The Division 2B State employment agreement also covers any employees who become employed by an employer on or after the time when the agreement came into operation, and who would have been covered by the source agreement if they had become so employed immediately before that time.
(3) However, the Division 2B State employment agreement does not cover:
(a)
any employees or employers that are not Division 2B State reference employees or Division 2B State reference employers; or

(b)
any employees or employers that are covered by an award‑based transitional instrument.
Meaning of applies
(4) A Division 2B State employment agreement applies to the same employees, employers and any other persons that the Division 2B State employment agreement covers as would have been required by the law of the source State to comply with terms of the source agreement, or entitled under the law of the source State to enforce terms of the source agreement, if:
(a)
the source State had not been a referring State; and
(b)
the law of the source State had continued to apply.
Note 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State employment agreement.
Note 2: The Division 2B State employment agreement does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or otherwise.
Item has effect subject to other provisions

(5) This item has effect subject to:

(a)
the instrument interaction rules (see item 11); and
(b)
the termination of Division 2B State instruments as referred to in item 18; and
(c)
Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and
(d)
Schedule 11 (which deals with transfer of business).
References to laws of States
(6) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.
7
Terms about disputes relating to matters arising under Division 2B State awards
(1) If the source award for a Division 2B State award includes a term that provides for disputes relating to matters arising under the award to be settled by:
(a)
a State industrial body; or
(b)
a person who is independent of the employers, employees or organisations covered by the source award;
the Division 2B State award is taken not to include that term.
(2) Each Division 2B State award is taken to include the model term that is prescribed by the regulations for dealing with disputes relating to matters arising under Division 2B State awards.
Note: This subitem applies whether or not the source award included a term as mentioned in subitem (1).
(3) The model term does not apply to disputes about matters arising under the source award before the Division 2B referral commencement.
(4) The model term, as taken to be included in a Division 2B State award:
(a)
cannot be varied; and
(b)
cannot be removed from the award.
8
Terms about disputes relating to matters arising under Division 2B State employment agreements
(1) This item applies if the source agreement for a Division 2B State employment agreement includes a term that provides for disputes relating to matters arising under the agreement to be settled by:
(a)
a State industrial body; or
(b)
a person who is independent of the employers, employees or organisations covered by the source agreement.
(2) Item 13 of this Schedule does not apply in relation to the term.
Note: Item 13 would otherwise result in references in the term to a State industrial body having effect as if they were references to FWA.
(2A) However, if the term provides for disputes relating to matters arising under the source agreement to be settled by a State industrial body, then, despite anything in the source agreement or a law of the source State:
(a)
the State industrial body may settle, or decline to settle, such a dispute; and
(b)
FWA may settle such a dispute if the State industrial body:
(i)
ceases to exist; or
(ii)
declines to settle the dispute.
(3) FWA must, on application in accordance with subitem (4), vary the term in accordance with the application.
(4) For the purpose of subitem (3), an application must be made:
(a)
by an employer to which the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employer, with the consent of:
(i)
one or more employees to whom the agreement applies; or
(ii)
an organisation that is entitled to represent the industrial interests of one or more such employees; or
(b)
by an employee to whom the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employee, with the consent of:
(i)
an employer to which the Division 2B State employment agreement applies; or
(ii)
an organisation that is entitled to represent the industrial interests of such an employer.
9
Application to Division 2B State instruments of provisions of FW Act about dealing with disputes
(1) Subdivision B of Division 2 of Part 6‑2 of the FW Act applies (including for the purpose of section 595 of the FW Act) as follows:
(a)
the Subdivision applies in relation to the model term that is taken by item 7 to be included in a Division 2B State award in the same way as the Subdivision applies in relation to a term in a modern award that provides a procedure for dealing with disputes;
(b)
the Subdivision applies in relation to a term to which item 8 applies that is included in a Division 2B State employment agreement in the same way as the Subdivision applies in relation to a term in an enterprise agreement that provides a procedure for dealing with disputes.
(2) The reference in subsections 739(5) and 740(4) of the FW Act to a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties, is taken to include a reference to a decision that is inconsistent with a Division 2B State instrument that applies to the parties.
10
Division 2B State instruments continue to be subject to the same instrument content rules
(1) The instrument content rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:
(a)
the rules were provisions of a law of the Commonwealth; and
(b)
any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and
(c)
any other modifications of those rules prescribed by the regulations were made.
(2)Instrument content rules, in relation to a State, are provisions of a law of the State of any of the following kinds:
(a)
provisions about what may, or must, be included in an instrument;
(b)
provisions to the effect that a particular term of an instrument is of no effect (however described):
(i)
either completely or to a limited extent; and
(ii)
either permanently or for a limited period;
(c)
provisions to the effect that a particular term is taken to be included in an instrument.
11
Division 2B State instruments continue to be subject to the same instrument interaction rules
(1) The instrument interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:
(a)
the rules were provisions of a law of the Commonwealth; and
(b)
any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B transitional State employment agreements; and
(c)
any other modifications of those rules prescribed by the regulations were made.
(2) Instrument interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:
(a)
one instrument has priority over, or excludes, another instrument:
(i)
either completely or to a particular extent; and
(ii)
either permanently or for a particular period; or
(b)
one instrument ceases to operate because of another instrument:
(i)
either completely or to a particular extent; and
(ii)
either permanently or for a particular period.
12
Division 2B State awards continue to be subject to the same outworker interaction rules
(1) The outworker interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State award, as if:
(a)
the rules were provisions of a law of the Commonwealth; and
(b)
any references in the rules to State awards (however described in the rules) were instead references to Division 2B State awards; and
(c)
any other modifications of those rules prescribed by the regulations were made.
(2) Outworker interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:
(a)
a State award prevails over, or excludes, a law of the State relating to outworkers; or
(b)
a State award has effect subject to a law of the State relating to outworkers.
13
References in Division 2B State instruments to State industrial bodies
(1) Subject to subitem (2), if a term of a Division 2B State instrument is expressed to confer a power or function on a State industrial body, that term has effect as if references in it to the body were instead references to FWA.
(2) If a term of a Division 2B State instrument is expressed to confer a power or function on the registrar, or a deputy registrar, of a State industrial body, that term has effect on and after the Division 2B referral commencement as if references in it to the registrar or a deputy registrar were instead references to the General Manager of FWA.

(3) This item has effect subject to:

(a)
a contrary intention in this Act; and
(b)
the regulations.
Note 1: A Division 2B State award will be taken not to include a term from the source award that provides for the settlement of disputes relating to matters arising under the award: see item 7.
Note 2: This item does not apply to a term of a Division 2B State employment agreement that provides for the settlement of disputes relating to matters arising under the agreement: see item 8.
14
Non‑accruing entitlements: counting service under the source award or source agreement
General rule
(1) Subitem (2) applies for the purpose of determining the entitlements of a Division 2B State reference employee under a Division 2B State instrument (other than an entitlement to leave of a kind to which item 15 applies).
(2) Service of the employee with an employer before the Division 2B referral commencement that counted for the purpose of the application to the employee of the source award or source agreement also counts as service of the employee with the employer for the purpose of the application to the employee of the Division 2B State instrument.
No double entitlement
(3) If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (2) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the Division 2B State instrument.
(4) To avoid doubt, subitem (3) does not require an employee to serve any initial qualifying period of service for long service leave again.
Note: For how the kinds of matters covered by this item and items 15 and 16 are dealt with in relation to entitlements under the National Employment Standards, see Division 2 of Part 3 of Schedule 4.
15
Accruing entitlements: leave accrued immediately before the Division 2B referral commencement
(1) This item applies to leave of the following kinds:
(a)
annual leave (however described) that accrues to an employee;
(b)
personal leave or carer’s leave (however described) that accrues to an employee.
(2) If a Division 2B referral employee to whom a Division 2B State instrument applies had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of leave to which this item applies (whether the leave accrued under the source award or source agreement, or under a State industrial law), the accrued leave is taken to have accrued under the Division 2B State instrument.
16
Leave that is being, or is to be, taken under the source award or source agreement
(1) If a Division 2B State reference employee was, immediately before the Division 2B referral commencement, taking a period of leave under the source award or source agreement, the employee is entitled to continue on that leave under the Division 2B State instrument for the remainder of the period.
(2) If a Division 2B State reference employee has, before the Division 2B referral commencement, taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a period of leave under the source award or source agreement, the employee is taken to have taken the step under the Division 2B State instrument.
(3) The regulations may deal with other matters relating to how a Division 2B State instrument applies to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken by a Division 2B State reference employee under the source award or source agreement.
17
No loss of accrued rights or liabilities when Division 2B State instrument terminates or ceases to apply
(1) If a Division 2B State instrument terminates, or ceases to apply in relation to a person, that does not affect:
(a)
any right or liability that a person acquired, accrued or incurred before the instrument terminated or ceased to apply; or
(b)
any investigation, legal proceeding or remedy in respect of any such right or liability.
(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the Division 2B State instrument had not terminated or ceased to apply.
(3) This item has effect subject to a contrary intention in this Act or in the FW Act.
Part 3—Variation and termination of Division 2B State instruments
18
Division 2B State instruments can only be varied or terminated in limited circumstances
(1) A Division 2B State instrument cannot be varied except under:
(a)
a provision of this Part or the regulations; or
(b)
item 8 (which deals with terms about disputes relating to matters arising under Division 2B State employment agreements); or
(c)
item 40 (which deals with resolving difficulties with the interaction between Division 2B State instruments and the National Employment Standards); or
(d)
Part 6 of this Schedule (which deals with ongoing operation of State laws for transitional purposes); or
(e)
Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or
(f)
item 20 of Schedule 9 (which deals with variation of Division 2B State awards in annual wage reviews); or
(g)
Schedule 11 (which deals with transfer of business).
(2) A Division 2B State instrument cannot be terminated (or otherwise brought to an end) except under:
(a)
a provision of this Part or the regulations; or
(b)
Part 6 of this Schedule; or
(c)
Division 2 of Part 2 of Schedule 6; or
(d)
Schedule 11.

Variation to remove ambiguities etc.

(1) On application by a person covered by a Division 2B State instrument, FWA may make a determination varying the instrument:
(a)
to remove an ambiguity or uncertainty in the instrument; or
(b)
if the instrument is a Division 2B State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or
(c)
to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.
Note: For variation of a Division 2B State instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 40.
(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.
20
Variation on referral by Australian Human Rights Commission
(1) This item applies if a Division 2B State instrument is referred to FWA under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).
(2) If the instrument is a Division 2B State award, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.
(3) If the instrument is a Division 2B State employment agreement, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.
21
Division 2B State awards: automatic termination after 12 months
(1) A Division 2B State award terminates at the end of 12 months after the Division 2B referral commencement.
(2) A term of a Division 2B State award that provides for the award to terminate before the end of that 12 month period is of no effect.
(3) This item does not apply to a Division 2B enterprise award.
Note: Schedule 6 (modern enterprise awards) applies to Division 2B enterprise awards.
22
Collective Division 2B State employment agreements: termination by agreement
Subdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.
23
Collective Division 2B State employment agreements: termination by FWA
Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.
24
Individual Division 2B State employment agreements: termination by agreement
(1) The employee and employer covered by an individual Division 2B State employment agreement (the Division 2B agreement) may make a written agreement (a termination agreement) to terminate the Division 2B agreement in accordance with the following requirements:
(a)
the termination agreement must be signed by the employee and the employer;
(b)
if the employee is under 18, it must also be signed by a parent or guardian of the employee;
(c)
the signatures must be witnessed.
(2) The termination has no effect unless it has been approved by FWA.
(3) The employer or employee may apply to FWA for approval of the termination agreement. The application must be made:
(a)
within 14 days after the termination agreement was made; or
(b)
if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.
(4) If an application for FWA to approve the termination agreement is made under subitem (3), FWA must approve the termination of the Division 2B agreement if:
(a)
FWA is satisfied that the requirements of subitem (1) have been complied with; and
(b)
FWA is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.
(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.
25
Individual Division 2B State employment agreements: termination conditional on enterprise agreement
(1) This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual Division 2B State employment agreement (the Division 2B agreement) if:
(a)
an enterprise agreement (the proposed enterprise agreement) is made that covers the employee and the employer; and
(b)
the proposed enterprise agreement comes into operation.
(2) If the Division 2B agreement has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.
(3) If the Division 2B agreement has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.

Part 4 of Schedule 9 (heading)

Repeal the heading, substitute:
Part 4—Universal application of minimum wages to employees: transitional instruments

At the end of Schedule 9

Add:
Part 5—Provisions relating to Division 2B State instruments
Division 1—Universal application of minimum wages to employees: Division 2B State reference employees
16
Base rate of pay under Division 2B State award must not be less than national minimum wage order rate etc.
(1) If, on or after the Division 2B referral commencement:
(a)
a Division 2B State award applies to a Division 2B State reference employee; and
(b)
a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;
the base rate of pay payable to the employee under the Division 2B State award (the award rate) must not be less than the employee’s order rate.
(2) If the award rate is less than the employee’s order rate, the Division 2B State award has effect in relation to the employee as if the award rate were equal to the employee’s order rate.
17
Base rate of pay under Division 2B State employment agreement must not be less than Division 2B State award rate or modern award rate, or the national minimum wage order rate etc.
If employee is covered by a Division 2B State award or modern award that is in operation
(1) If, on or after the Division 2B referral commencement:
(a)
a Division 2B State employment agreement applies to a Division 2B State reference employee; and
(b)
a Division 2B State award or a modern award that is in operation covers the employee;
the base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the Division 2B State award or the modern award (the award rate) if the Division 2B State award or the modern award applied to the employee.
(2) If the agreement rate is less than the award rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.
If employee is not covered by a Division 2B State award or modern award that is in operation
(3) If, on or after the Division 2B referral commencement:
(a)
a Division 2B State employment agreement applies to a Division 2B State reference employee; and
(b)
the employee is not covered by a Division 2B State award or a modern award that is in operation; and
(c)
a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;
the base rate of pay payable to the employee under the Division 2B State employment agreement (the agreement rate) must not be less than the employee’s order rate.
(4) If the agreement rate is less than the employee’s order rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.
18
FWA may make determinations to phase‑in the effect of rate increases resulting from item 16 or 17etc.
(1) On application by an employer to whom a Division 2B State instrument applies, FWA may make a determination the effect of which is to phase‑in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of item 16 or 17.
(2) FWA must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise.
(3) Items 16 and 17 have effect in relation to an employer subject to any determinations FWA makes under this item.
19
Award/agreement free Division 2B State reference employee not to be paid less than State minimum amount
(1) This item applies in relation to an employee and a period if:
(a)
the employee is a Division 2B State reference employee; and
(b)
the transitional national minimum wage order, or another national minimum wage order, is in operation throughout the period; and
(c)
the employee is an award/agreement free employee throughout the period, and no Division 2B State instrument applies to the employee at any time in the period; and
(d)
the amount that is payable to the employee in relation to the period under the national minimum wage order is less than the amount (the State minimum amount) that would be payable to the employee in relation to the period under the State minimum wages instruments (see subitem (4)).
(2) The national minimum wage order has effect, in relation to the employee and the period, as if it instead required the employer to pay the employee the State minimum amount.
(3) In working out the State minimum amount, any increases of rates (whether because of indexation or otherwise) that would have taken effect after the Division 2B State referral commencement under State minimum wages instruments are to be disregarded.
(4) The State minimum wages instruments, in relation to the employee, are orders, decisions or rulings (however described), as in force immediately before the Division 2B referral commencement:
(a)
that were made by a State industrial body under a State industrial law of the Division 2B referring State; and
(b)
that provide for employees to be paid a minimum wage or a minimum rate of remuneration, or that affect the entitlement of such employees to be paid a minimum wage or a minimum rate of remuneration.
(5) This item has effect subject to the regulations, which may:
(a)
provide for how amounts referred to in paragraph (1)(d) are to be worked out (for example, in relation to casual employees); or
(b)
provide for how a national minimum wage order has effect because of subitem (2); or
(c)
provide that certain orders, decisions or rulings (however described) made by a State industrial body are, or are not, State minimum wages instruments as defined in subitem (4).

Division 2—Other matters

20
Variation of Division 2B State awards in annual wage reviews under the FW Act
(1) In an annual wage review, FWA may make a determination varying terms of a Division 2B State award relating to wages.
(2) For that purpose, Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to terms of a Division 2B State award relating to wages in the same way as it applies to a modern award.

At the end of subitem 3(2) of Schedule 10

Add:
; (d)
a Division 2B State instrument.

Division 1 of Part 3 of Schedule 11 (heading)

Repeal the heading, substitute:
Division 1—Transfers of business: transitional instruments

Before item 7 of Schedule 11

Insert:

Application of this Division

This Division applies in relation to a transfer of business and transferable instruments that are transitional instruments.
Note: Transfers of business affecting Division 2B State instruments are dealt with in Division 4 of this Part.

At the end of Part 3 of Schedule 11

Add:
Division 4—Transfers of business: Division 2B State instruments

Application of this Division

This Division applies in relation to a transfer of business and transferable instruments that are Division 2B State instruments.
Note: Transfers of business affecting transitional instruments are dealt with in Division 1 of this Part.
15
Application of FW Act in relation to transferring employees covered by Division 2B State instrument

(1) This item applies if:

(a)
there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and
(b)
the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the Division 2B referral commencement.
(2) Part 2‑8 of the FW Act (as modified by item 16 of this Schedule) applies in relation to the transfer of business.
16
Modification—application of FW Act in relation to Division 2B State instruments
(1) Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:
; (d)
a Division 2B State instrument.
(2) Except as provided in subitems (3) to (5), Part 2‑8 of the FW Act applies in relation to the transfer of business as if:
(a)
a reference to an enterprise agreement included a reference to a Division 2B State employment agreement; and
(b)
a reference to a modern award included a reference to a Division 2B State award.
(3) Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) or 319(1)(c) of the FW Act.
(4) Paragraph (2)(b) does not apply in relation to the reference to a modern award in subsection 312(2) or paragraph 319(1)(c) of the FW Act.
(5) The following provisions of Part 2‑8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement:
(a)
subsection 315(3);
(b)
paragraphs 318(1)(b) and (2)(c);
(c)
paragraph 319(2)(c).
(6) Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual Division 2B State employment agreement)” were inserted after the words “a transferable instrument”.
(7) If a transferable instrument that is a Division 2B State award starts to cover the new employer in relation to the transfer of business as mentioned in paragraph 313(1)(a) of the FW Act, FWA cannot make an order under paragraph 319(1)(c) of the FW Act.

At the end of Schedule 12

Add:
4
Application in relation to Division 2B State instruments
Part 3‑1 of the FW Act has effect as if:
(a)
a reference in that Part to an enterprise agreement included a reference to a Division 2B State employment agreement; and
(b)
a reference in that Part to a modern award included a reference to a Division 2B State award.

Note: References in Part 3‑1 of the FW Act:

(a) to an enterprise agreement are found in paragraphs 341(2)(e) and (g), paragraph 344(b), subsection 353(3) and subparagraphs 354(1)(a)(iii) and (b)(ii) of that Act; and
(b) to a modern award are found in paragraphs 341(2)(g) and 344(b) of that Act.

After paragraph 2(3)(b) of Schedule 12A

Insert:
(ba)
to the extent that a Division 2B State instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 48 of Schedule 3A; or

Item 2 of Schedule 13 (heading)

Repeal the heading, substitute:
2
Employee covered by individual agreement‑based transitional instrument or individual Division 2B State employment agreement is taken not to be an employee who will be, or who is, covered by enterprise agreement in certain circumstances

Subitem 2(1) of Schedule 13

After “transitional instrument”, insert “or an individual Division 2B State employment agreement”.

Paragraphs 2(2)(a) and (b) of Schedule 13

After “individual agreement‑based transitional instrument”, insert “or the individual Division 2B State employment agreement”.

At the end of paragraph 2(2)(b) of Schedule 13

Add “or subitem 25(2) of Schedule 3A”.

Subitem 2(2) of Schedule 13 (note)

After “individual agreement‑based transitional instrument”, insert “or an individual Division 2B State employment agreement”.

Subitem 2(2) of Schedule 13 (note)

After “Schedule 3”, insert “or subitem 25(2) of Schedule 3A”.

Paragraphs 2(3)(a) and (b) of Schedule 13

After “individual agreement‑based transitional instrument”, insert “or the individual Division 2B State employment agreement”.

At the end of paragraph 2(3)(b) of Schedule 13

Add “or subitem 25(2) of Schedule 3A”.

Item 3 of Schedule 13 (heading)

After “instruments”, insert “or collective Division 2B State employment agreements”.

Item 3 of Schedule 13

Omit “transitional” (first occurring).

Paragraphs 3(a) to (e) of Schedule 13

Repeal the paragraphs, substitute:
(a)
any of the following transitional instruments:
(i)
a collective agreement;
(ii)
a workplace determination;
(iii)
a preserved collective State agreement;
(iv)
a pre‑reform certified agreement;
(v)
a section 170MX award;
(b)
a collective Division 2B State employment agreement;

Paragraph 3(f) of Schedule 13

Omit “transitional” (wherever occurring).

Item 4 of Schedule 13 (heading)

Omit “transitional instrument”, substitute “agreement‑based transitional instrument or Division 2B State employment agreement”.

Subitem 4(1) of Schedule 13

After “agreement‑based transitional instrument”, insert “or a Division 2B State employment agreement”.

Subitem 4(2) of Schedule 13

After “individual agreement‑based transitional instrument”, insert “or an individual Division 2B State employment agreement”.

Subitem 4(2) of Schedule 13

After “instrument” (second and third occurring), insert “or agreement”.

At the end of subitem 4(2) of Schedule 13

Add “or subitem 25(2) of Schedule 3A”.

Subitem 4(2) of Schedule 13 (note)

Repeal the note, substitute:
Note: The effect of this provision is that an employee who is covered by an agreement‑based transitional instrument or a Division 2B State employment agreement may not organise or engage in industrial action until after the nominal expiry date of the instrument or agreement has passed. However, this does not apply to an individual agreement‑based transitional instrument, or an individual Division 2B State employment agreement, in relation to which a conditional termination has been made.

Subitem 4(3) of Schedule 13

After “agreement‑based transitional instrument”, insert “or the Division 2B State employment agreement”.

Subitem 4(3) of Schedule 13

After “such an instrument”, insert “or agreement”.

At the end of item 6 of Schedule 13

Add:
Note: For the continuation of orders or injunctions to prevent or stop industrial action that were made by State industrial bodies or courts of Division 2B referring States, see item 61 of Schedule 3A.

Item 17 of Schedule 13 (heading)

After “agreement‑based transitional instruments”, insert “and collective Division 2B State employment agreementsthat”.

Subitem 17(1) of Schedule 13

Omit “transitional”.

100

Paragraphs 17(1)(a) to (e) of Schedule 13

Repeal the paragraphs, substitute:
(a)
any of the following transitional instruments:
(i)
a collective agreement;
(ii)
a workplace determination;
(iii)
a preserved collective State agreement;
(iv)
a pre‑reform certified agreement;
(v)
a section 170MX award;
(b)
a collective Division 2B State employment agreement.

101

Subitem 17(2) of Schedule 13

Omit “transitional” (wherever occurring).

102

Part 5 of Schedule 13 (heading)

Repeal the heading, substitute:
Part 5—Effect of conduct engaged in while bargaining for WR Act collective agreement or collective State employment agreement

103

Item 18 of Schedule 13 (heading)

Omit “WR Act”.

104

After subitem 18(1) of Schedule 13

Insert:

(1A) This item applies if:

(a)
before the Division 2B referral commencement, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective State employment agreement; and
(b)
immediately before that day, the collective State employment agreement had not been made, or had been made but had not been lodged (however described) under a State industrial law of a Division 2B referring State; and
(c)
the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective State employment agreement, had it come into operation; and
(d)
the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective State employment agreement, had it come into operation.

105

Subitem 18(2) of Schedule 13

Omit “FWA may take into account that conduct”, substitute “If this item applies because of subitem (1) or (1A), FWA may take into account the conduct referred to in that subitem”.

106

Paragraph 20(a) of Schedule 13

After “award‑based transitional instrument”, insert “and a Division 2B State award”.

107

Paragraph 20(b) of Schedule 13

After “agreement‑based transitional instrument”, insert “and a Division 2B State agreement”.

108

At the end of item 3 of Schedule 14

Add:
; (d)
a Division 2B State instrument.

109

At the end of Schedule 15

Add:
4
Application of FW Act—stand down under Division 2B State instruments
Subsection 524(2) of the FW Act (which deals with circumstances allowing stand down) applies in relation to a Division 2B State instrument as if a reference to an enterprise agreement included a reference to a Division 2B State instrument.

110

After item 4 of Schedule 16

Insert:

Compliance with Division 2B State instruments

Division 2B State awards
(1) A person must not contravene a term of a Division 2B State award that applies to the person.
Note 1: This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).
Note 2: An injunction may not be granted in relation to a contravention of a Division 2B State award (see item 17).
Division 2B State employment agreements
(2) A person must not contravene a term of a Division 2B State employment agreement that applies to the person.
Note 1: This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).
Note 2: An injunction may not be granted in relation to a contravention of a Division 2B State employment agreement instrument (see item 17).
4B
Compliance with obligations relating to conditional terminations of individual Division 2B State employment agreements
(1) An employer must not contravene subitem 25(6) of Schedule 3A.
Note: This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).
(2) A bargaining representative who applies to FWA for approval of an enterprise agreement must not contravene subitem 25(7) of Schedule 3A.
Note: This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

110A

After item 7 of Schedule 16

Insert:
7A
Compliance with transitional pay equity orders and orders to continue effect of terms relating to long service leave
(1) A person must not contravene a term of a transitional pay equity order that applies to the person.
Note: This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).
(2) A person must not contravene an order under item 30 of Schedule 3A that continues the effect of terms of a Division 2B State award relating to long service leave.
Note: This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

111

At the end of subitem 12(1) of Schedule 16

Add “or an individual Division 2B State employment agreement”.
112
At the end of subparagraph 13(1)(b)(iv) of Schedule 16
Add “or an individual Division 2B State employment agreement”.

113

Paragraph 16(1)(c) of Schedule 16

After “transitional instrument,”, insert “a Division 2B State instrument,”.

114

Paragraph 16(1)(d) of Schedule 16

Omit “item 40”, substitute “items 40 and 44C”.

115

Paragraph 16(1)(da) of Schedule 16

Repeal the paragraph, substitute:
(da)
the reference in subsections 540(3) and (4) to a term in an enterprise agreement that would be an outworker term if it were included in a modern award included:
(i)
a reference to a term in a collective agreement‑based transitional instrument that would be an outworker term if it were included in an award‑based transitional instrument; and
(ii)
a reference to a term in a collective Division 2B State employment agreement that would be an outworker term if it were included in a Division 2B State award; and
116
Subitem 16(1) of Schedule 16 (after table item 44)
Insert:

44A

4A(1) (other than in relation to a contravention or proposed contravention of an outworker term)

(a) an employee;

(b) an employer;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

60 penalty units

44B

4A(1) (in relation to a contravention or proposed contravention of an outworker term)

(a) an outworker;

(b) an employer; (c) an outworker entity; (d) an employee organisation; (e) an employer organisation; (f) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
44C	4A(2) (in relation to a contravention or proposed contravention of a collective Division 2B State employment agreement other than a contravention or proposed contravention of a term that would be an outworker term if it were included in a Division 2B State award)	(a) an employee; (b) an employer; (c) an employee organisation to which the collective Division 2B State employment agreement concerned applies; (d) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
44D	4A(2) (in relation to a contravention or proposed contravention of a term in a collective Division 2B State employment agreement that would be an outworker term if it were included in a Division 2B State award)	(a) an employee; (b) an employer; (c) an employee organisation; (d) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
44E	4A(2) (in relation to a contravention of an individual Division 2B State employment agreement)	(a) an employee; (b) an employer; (c) an employee organisation; (d) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
44F	4B(1)	(a) an employee who the proposed enterprise agreement will cover; (b) a bargaining representative for the proposed enterprise agreement; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	30 penalty units
44G	4B(2)	(a) an employee who the proposed enterprise agreement will cover; (b) a bargaining representative for the proposed enterprise agreement; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	30 penalty units

116A
Subitem 16(1) of Schedule 16 (after table item 48)
Insert:

48A

7A(1)

(a) an employee;

(b) an employee organisation;

(a) the Federal Court;

(b) the Federal Magistrates Court;

60 penalty units

48B

7A(2)

(a) an employee;

(b) an employer;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

60 penalty units

117

Subitem 16(2) of Schedule 16

After “40A”, insert “, 44A, 44B, 44C, 44D,”.

118

Subparagraph 16(2)(b)(i) of Schedule 16

Repeal the subparagraph, substitute:
(i)
references in the section to a modern award were references to an award‑based transitional instrument, a Division 2B State award or a continuing Schedule 6 instrument; and

119

After paragraph 17(a) of Schedule 16

Insert:
(aa)
a Division 2B State instrument; or

120

After item 14 of Schedule 18

Insert:
14A
Conduct after Division 2B referral commencement—application of Part 5‑2 of FW Act
(1) Part 5‑2 of the FW Act applies in relation to conduct that occurs on or after the Division 2B referral commencement as if:
(a)
a reference in that Part to a fair work instrument were a reference to a Division 2B State instrument; and
(b)
paragraphs 706(2)(a) to (f) included a reference to a term of a Division 2B State instrument.

(2) This item has effect in addition to item 14.

121

After item 623 of Schedule 22

Insert:
623A
Division 2B State awards and Division 2B State employment agreements
The Fair Work (Registered Organisations) Act 2009 applies as if:
(a)
references in that Act to a modern award included a reference to a Division 2B State award; and
(b)
references in that Act to an enterprise agreement included a reference to a Division 2B State employment agreement.

Part 2Amendment of other Acts

Age Discrimination Act 2004

122

Subparagraph 39(8)(b)(ii)

After “transitional instrument”, insert “or Division 2B State instrument”.

Australian Human Rights Commission Act 1986

123
Subsection 46PW(7) (paragraph (b) of the definition of industrial instrument)
After “transitional instrument”, insert “, or a Division 2B State instrument,”.

Disability Discrimination Act 1992

124

Subparagraph 47(1)(c)(ii)

After “transitional instrument”, insert “or Division 2B State instrument”.

Fair Work Act 2009

125

Paragraph 113(3)(a)

After “award”, insert “, or a State reference transitional award,”.

126

Subparagraph 113(3)(a)(i)

Omit “immediately before the commencement of this Part”, substitute “at the test time (see subsection (3A))”.

127

Paragraph 113(3)(b)

After “award”, insert “, or the State reference transitional award,”.

128

After subsection 113(3)

Insert:
(3A)
For the purpose of subparagraph (3)(a)(i), the test time is:
(a)
immediately before the commencement of this Part; or
(b)
if the employee is a Division 2B State reference employee (as defined in Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009)—immediately before the Division 2B referral commencement (as defined in that Schedule).

129

Paragraph 168E(3)(a)

After “section 30C”, insert “or 30M”.

130

Paragraph 168E(3)(b)

After “section 30A”, insert “or 30K”.

131

Paragraph 168E(4)(a)

After “section 30D”, insert “or 30N”.

132

Paragraph 168E(4)(b)

After “section 30A”, insert “or 30K”.

Legislative Instruments Act 2003

133

Subsection 7(1) (table item 18A)

After “Transitional instruments”, insert “and Division 2B State instruments”.

Sex Discrimination Act 1984

134

Subparagraph 40(1)(g)(ii)

After “transitional instrument”, insert “or Division 2B State instrument”.

Superannuation Guarantee (Administration) Act 1992

135

At the end of subsection 12A(1)

Add:
; (i)
Division 2B State instrument.

136

After subsection 32C(6B)

Insert:
Contributions under Division 2B State instruments
(7)
A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with, a Division 2B State instrument.
Note: The expression Division 2B State instrument is defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
137
Regulations may make consequential amendments of Acts
(1) The Governor‑General may make regulations amending Acts (other than the Fair Work Act 2009) being amendments that are consequential on, or that otherwise relate to, the enactment of this Act.
(2) For the purposes of the Amendments Incorporation Act 1905, amendments made by regulations for the purposes of this item are to be treated as if they had been made by an Act.
Note: This subitem ensures that the amendments can be incorporated into a reprint of the Act.
138
Regulations may take effect from date before registration
(1) Despite subsection 12(2) of the Legislative Instruments Act 2003 and subject to subitem (2), regulations made under item 137 may be expressed to take effect from a date before the regulations are registered under that Act.

(2) If:

(a)
regulations made under item 137 are expressed to take effect from a date (the registration date) before the regulations are registered under the Legislative Instruments Act 2003; and
(b)
a person engaged in conduct before the registration date; and
(c)
but for the retrospective effect of the regulations, the conduct would not have contravened a provision of an Act;
then a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of that Act.

Schedule 3Other amendmentsPart 1Main amendments

Fair Work Act 2009

1A
Section 12 (after paragraph (c) of the definition of eligible State or Territory court)
Insert:
1. (ca)
  the Industrial Court of New South Wales;

Section 14

Before “A national system employer”, insert “(1)”.

At the end of section 14 (after the notes)

Add:
Particular employers declared not to be national system employers
(2)
Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:
(a)
that employer:
(i)
is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or
(ii)
is a body established for a local government purpose by or under a law of a State or Territory; or
(iii)
is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and
(b)
that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and
(c)
an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.
(3)
Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.
Endorsement of declarations
(4)
The Minister may, in writing:
(a)
endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or
(b)
revoke or amend such an endorsement.
(5)
An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the endorsement, revocation or amendment.
Employers that cannot be declared
(6)
Subsection (2) does not apply to an employer that:
(a)
generates, supplies or distributes electricity; or
(b)
supplies or distributes gas; or
(c)
provides services for the supply, distribution or release of water; or
(d)
operates a rail service or a port;
unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.
(7)
Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.

After section 14

Insert:

14ATransitional matters relating to employers etc. becoming, or ceasing to be, national system employers etc.

(1)
The regulations may make provisions of a transitional, application or saving nature in relation to any of the following:
(a)
an employer ceasing to be a national system employer because subsection 14(2) applies to the employer;
(b)
an individual ceasing to be a national system employee because an employer ceases to be a national system employer for the reason referred to in paragraph (a);
(c)
an employer becoming a national system employer because subsection 14(2) ceases to apply to the employer;
(d)
an individual becoming a national system employee because an employer becomes a national system employer for the reason referred to in paragraph (c).
(2)
Without limiting subsection (1), regulations made for the purpose of that subsection may:
(a)
modify provisions of this Act or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or
(b)
provide for the application (with or without modifications) of provisions of this Act, or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, to matters to which they would otherwise not apply.

After subparagraph 423(7)(b)(ii)

Insert:
(iia)
if the industrial action is being engaged in in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;
(iib)
if the industrial action is being engaged in in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

After subparagraph 424(2)(b)(ii)

Insert:
(iia)
if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;
(iib)
if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

After paragraph 426(6)(b)

Insert:
(ba)
if the industrial action is being engaged in in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State; or
(bb)
if the industrial action is being engaged in in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory; or

After subsection 565(1)

Insert:
(1A)
No appeal lies from a decision of an eligible State or Territory court exercising jurisdiction under this Act, except:
(a)
if the court was exercising summary jurisdiction—an appeal, to that court or another eligible State or Territory court of the same State or Territory, as provided for by a law of that State or Territory; or
(b)
in any case—an appeal as provided for by subsection (1).
Appeals from appellate decisions of eligible State or Territory courts
(1B)
An appeal lies to the Federal Court from a decision of an eligible State or Territory court made on appeal from a decision that:
(a)
was a decision of that court or another eligible State or Territory court of the same State or Territory; and
(b)
was made in the exercise of jurisdiction under this Act.
(1C)
No appeal lies from a decision to which subsection (1B) applies, except an appeal as provided for by that subsection.
Note: The following heading to subsection 565(1) is inserted “Appeals from original decisions of eligible State or Territory courts”.

At the end of subsection 565(2)

Add “or (1B)”.
Note: The following heading to subsection 565(2) is inserted “Leave to appeal not required”.

Subsection 565(3)

Repeal the subsection.

After section 569

Insert:

569AState or Territory Minister’s entitlement to intervene

(1)
The Minister of a State or Territory who has responsibility for workplace relations matters may intervene on behalf of the State or Territory in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if he or she believes it is in the public interest of the State or Territory to do so.
(2)
If the Minister of a State or Territory who has responsibility for workplace relations matters intervenes, he or she is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings.
(3)
Despite section 570, a court may make an order as to costs against a State or Territory if:
(a)
the Minister of a State or Territory who has responsibility for workplace relations matters intervenes under subsection (1); or
(b)
he or she institutes an appeal from a judgment as referred to in subsection (2).
11
At the end of subsection 570(1) (before the note)
Add “or 569A”.

Subsection 570(1) (at the end of the note)

Add “A State or Territory might be ordered to pay costs under section 569A.”.
13
At the end of Subdivision C of Division 3 of Part 5‑1
Add:

597AState or Territory Minister’s entitlement to make submissions

(1)
The Minister of a State or Territory who has responsibility for workplace relations matters is entitled to make a submission for consideration in relation to a matter before FWA if:
(a)
the matter is before a Full Bench; and
(b)
it is in the public interest of the State or Territory for the Minister of the State or Territory to make a submission.
(2)
Subsection (1) applies whether or not FWA holds a hearing in relation to the matter.

Subsection 604(1)

Repeal the subsection, substitute:
(1)
A person who is aggrieved by a decision:
(a)
made by FWA (other than a decision of a Full Bench or the Minimum Wage Panel); or
(b)
made by the General Manager (including a delegate of the General Manager) under the Fair Work (Registered Organisations) Act 2009;
may appeal the decision, with the permission of FWA.

Subsection 607(1)

After “decision of FWA”, insert “or the General Manager”.

Paragraph 613(2)(a)

Repeal the paragraph, substitute:
(a)
decide under section 604 whether to grant permission to appeal:
(i)
a decision of a delegate under subsection 625(2); or
(ii)
a decision of the General Manager (including a delegate of the General Manager) under the Fair Work (Registered Organisations) Act 2009; and

Subsection 649(1)

After “facilitates”, insert “and encourages”.

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

17A

After subitem 2(3) of Schedule 5

Insert:

(3A) Part 10A of the WR Act applies as if:

(a)
a reference to an employee were a reference to a national system employee; and
(b)
a reference to an employer were a reference to a national system employer; and
(c)
all the words after “eligible entity” in paragraph 576K(2)(b) were omitted and the words “may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers” were substituted; and
(d)
the definition of eligible entity in section 576U were omitted; and
(e)
subsection 576Z(4) were omitted; and
(f)
a reference to an eligible entity were a reference to an outworker entity within the meaning of the FW Act; and
(g)
subsection 576K(1) were omitted; and
(h)
a reference to an outworker in subsection 576K(2) were a reference to an outworker within the meaning of the FW Act; and
(i)
the definition of outworker term in section 576U were omitted; and
(j)
a reference to an outworker term in section 576V were a reference to an outworker term within the meaning of the FW Act.

17B

Subitems 5(1) and (3) of Schedule 6A

After “FWA” (wherever occurring), insert “or the Commission”.

17C

Subitem 5(3) of Schedule 6A

Omit all the words after “miscellaneous modern award)”, substitute “that, at the time of the termination, is or is likely to be in operation and that is appropriate for them”.

17D

Subitems 5(4) and (5) of Schedule 6A

After “FWA”, insert “or the Commission”.

17E

At the end of item 5 of Schedule 6A

Add:
(6) If the Commission terminates the current award, the termination is taken, after the Commission has ceased to exist, to have been made by FWA.
Note: Schedule 18 provides for when the Commission ceases to exist.

Part 2Minor technical amendments

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Paragraph 12(1)(d) of Schedule 2

Omit “Human Rights and Equal Opportunity Commission Act 1986”, substitute “Australian Human Rights Commission Act 1986”.

Item 11 of Schedule 3 (heading)

Omit “HREOC”, substitute “AHRC”.

Subitem 11(1) of Schedule 3

Omit “Human Rights and Equal Opportunity Commission Act 1986”, substitute “Australian Human Rights Commission Act 1986”.

Paragraph 38(3)(a) of Schedule 3

Omit “subitem 20(2)”, substitute “subitems 20(2) and (3)”.

Subitem 8(5) of Schedule 11

Omit “collective agreement‑based transitional agreement”, substitute “collective agreement‑based transitional instrument”.

Subitem 4(3) of Schedule 13

Omit “WR Act”, substitute “FW Act”.

[Minister’s second reading speech made in—

House of Representatives on 21 October 2009

Senate on 23 November 2009]

(208/09)