Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)
Contents
[
The Parliament of Australia enacts:
This Act is the
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 .
(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.
Sections 1 to 4 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 6 December 2022 |
Schedule 1, Part 1, Divisions 1 and 2 | A single day to be fixed by Proclamation. However, if the provisions 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. | 6 March 2023 (F2023N00020) |
Schedule 1, items 161 to 163 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, items 164 to 170 | At the same time as the provisions covered by table item 2. | 6 March 2023 |
Schedule 1, Part 2 | At the same time as the provisions covered by table item 2. | 6 March 2023 |
Schedule 1, Part 3, Division 1 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 3, Divisions 2 to 4 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 2 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 6 February 2023 |
Schedule 1, Part 3, Division 5 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 4 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 5 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 6 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 3 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 6 March 2023 |
Schedule 1, Part 7 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 8, Division 1 | The day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent. | 6 March 2023 |
Schedule 1, Part 8, Division 2 | The later of:
However, the provisions do not commence at all if the Convention does not come into force for Australia before the end of the period of 2 years beginning on the day the provisions covered by table item 13 commence. The Minister must announce, by notifiable instrument, the day the Convention comes into force for Australia, if that day is before the end of the period of 2 years beginning on the day the provisions covered by table item 13 commence. | 9 June 2024 (F2023N00575) (paragraph (b) applies) |
Schedule 1, Part 9 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 10 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 6 December 2023 |
Schedule 1, Part 11 | The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent. | 6 June 2023 |
Schedule 1, Part 12 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 13 | Immediately after the commencement of the provisions covered by table item 18. | 7 December 2022 |
Schedule 1, Part 14 | At the same time as the provisions covered by table item 27. | 6 June 2023 |
Schedule 1, Part 15 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 16 | A single day to be fixed by Proclamation. However, if the provisions 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. | 6 June 2023 |
Schedule 1, Part 17 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 18 | At the same time as the provisions covered by table item 27. | 6 June 2023 |
Schedule 1, Part 19 | A single day to be fixed by Proclamation. However, if the provisions 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. | 6 June 2023 |
Schedule 1, Part 20 | A single day to be fixed by Proclamation. However, if the provisions 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. | 6 June 2023 |
Schedule 1, Part 21 | At the same time as the provisions covered by table item 27. | 6 June 2023 |
Schedule 1, Part 22 | At the same time as the provisions covered by table item 27. | 6 June 2023 |
Schedule 1, Part 23 | At the same time as the provisions covered by table item 27. | 6 June 2023 |
Schedule 1, Part 23A | At the same time as the provisions covered by table item 27. | 6 June 2023 |
Schedule 1, Part 24 | The later of:
(b) 1 July 2023. | 1 July 2023 (paragraph (b) applies) |
Schedule 1, Parts 25 and 25AA | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 25A | 1 July 2023. | 1 July 2023 |
Schedule 1, Part 25B | Immediately after the commencement of the provisions covered by table item 17. | 6 June 2023 |
Schedule 1, Part 26, Division 1 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 26, Division 2 | At the same time as the provisions covered by table item 27 | 6 June 2023 |
Schedule 1, Part 27 | The day after this Act receives the Royal Assent. | 7 December 2022 |
Schedule 1, Part 28, Division 1 | The later of:
| 1 February 2023 (paragraph (b) applies) |
Schedule 1, Part 28, Division 2 | The later of:
| 9 June 2024 (paragraph (b) applies) |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Legislation 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.
(1) The Minister must cause a review to be conducted of the operation of the amendments made by this Act.
(2) Without limiting the matters that may be considered when conducting the review, the review must:
(a) consider whether the operation of the amendments made by this Act is appropriate and effective; and
(b) identify any unintended consequences of the amendments made by this Act; and
(c) consider whether amendments to the
Fair Work Act 2009 , or any other legislation, are necessary to:
(i) improve the operation of the amendments made by this Act; or
(ii) rectify any unintended consequences identified under paragraph (b).
(3) The review must start no later than 2 years after this section commences.
(4) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review.
(5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
Add “Section 329D of the Registered Organisations Act sets out additional requirements for the General Manager’s report.”.
Omit “Note”, substitute “Note 1”.
Add:
Note 2: Section 329A of the Registered Organisations Act confers additional functions on the General Manager.
Add:
; or (d) the direction relates to the General Manager’s performance of functions or exercise of powers under the Registered Organisations Act.
Omit:
Part 3A establishes the Registered Organisations Commission and Registered Organisations Commissioner, provides for the terms and conditions of appointment of the Commissioner and makes provision for staff to assist the Commissioner. The Registered Organisations Commission Special Account is also established by the Part.
Part 3B sets out the circumstances in which the Commissioner or the General Manager may disclose information obtained in the performance of functions or exercise of powers under this Act.
Part 4 provides for the Commissioner to make inquiries as to compliance with financial accountability requirements and civil penalty provisions. The Commissioner may also conduct investigations.
substitute:
Part 3A confers certain functions on the General Manager. It imposes reporting requirements on the General Manager.
Part 3B sets out the circumstances in which the General Manager may disclose information obtained in the performance of functions or exercise of powers under this Act.
Part 4 provides for the General Manager to make inquiries as to compliance with financial accountability requirements and civil penalty provisions. The General Manager may also conduct investigations.
Repeal the Part, substitute:
(1) The General Manager has the following functions:
(a) to promote:
(i) efficient management of organisations and high standards of accountability of organisations and their office holders to their members; and
(ii) compliance with financial reporting and accountability requirements of this Act;
including by providing education, assistance and advice to organisations and their members;
(b) to monitor acts and practices to ensure they comply with the provisions of this Act providing for the democratic functioning and control of organisations;
(c) to do anything incidental to or conducive to the performance of any of the above functions.
Note: Section 657 of the Fair Work Act sets out the General Manager’s powers.
(2) In performing functions and exercising powers under this Act, the General Manager must seek to embed within organisations a culture of good governance and voluntary compliance with the law.
(1) The Minister may, in writing, direct the General Manager to give the Minister specified reports relating to the General Manager’s functions under this Act.
(2) The General Manager must comply with the direction.
(3) The direction, or the report (if made in writing), is not a legislative instrument.
The annual report prepared by the General Manager and given to the Minister under section 46 of the
Public Governance, Performance and Accountability Act 2013 for a period must include the following in relation to the period:
(a) details of the number and types of investigations conducted by the General Manager under Part 4 of Chapter 11 of this Act;
(b) details of:
(i) when each investigation was started; and
(ii) if the investigation has been completed—when it was completed; and
(iii) if the investigation has not been completed—when it is expected to be completed;
(c) details of any orders applied for under subsection 310(1) of this Act;
(d) details of the types of education activities undertaken by the General Manager and whether the education activities were provided to:
(i) registered employer organisations; or
(ii) registered employee organisations; or
(iii) members of registered employer organisations; or
(iv) members of registered employee organisations;
(e) any other matter prescribed by the regulations.
Repeal the paragraph, substitute:
(b) made under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);
Omit “, the General Manager or the Registered Organisations Commissioner”, substitute “or the General Manager”.
Omit “Act; or”, substitute “Act; and”.
Repeal the subparagraph.
Add:
(3) For the purposes of the finance law (within the meaning of the
Public Governance, Performance and Accountability Act 2013 ):
(a) the Office of the Fair Work Ombudsman is a listed entity; and
(b) the Fair Work Ombudsman is the accountable authority of the Office of the Fair Work Ombudsman; and
(c) the following persons are officials of the Office of the Fair Work Ombudsman:
(i) the Fair Work Ombudsman;
(ii) the staff of the Office of the Fair Work Ombudsman;
(iii) the inspectors appointed under section 700;
(iv) persons whose services are made available to the Fair Work Ombudsman under section 698;
(v) consultants engaged under section 699; and
(d) the purposes of the Office of the Fair Work Ombudsman include:
(i) the functions of the Fair Work Ombudsman referred to in section 682; and
(ii) the functions of inspectors under Subdivision D.
12
Section 6 (paragraph (a) of the definition of authorised official ) Repeal the paragraph.
Repeal the following definitions:
(a) definition of
Commission ;(b) definition of
Commissioner .
Omit “Commissioner may”, substitute “General Manager may”.
Omit “Commissioner”, substitute “General Manager”.
Repeal the paragraph, substitute:
(c) the General Manager.
Omit “or the Commissioner” (first occurring).
Omit “or the Commissioner, as the case requires,”.
Omit “or the Commissioner”.
Omit “or the Commissioner” (first occurring).
Omit “or the Commissioner, as the case requires,”.
Omit “or the Commissioner”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “FWC”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner”, substitute “FWC”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner”, substitute “FWC”.
Omit “Commissioner”, substitute “General Manager”.
Repeal the subsection, substitute:
(3) If:
(a) the prescribed information is lodged with the FWC by the organisation or branch (whether or not before the prescribed day or the later day allowed by the General Manager); and
(b) the General Manager is satisfied that an election is required to be held under the rules of the organisation or branch; and
(c) if the election is not an election for an office—the organisation or branch has made a request under section 187;
the General Manager must arrange for the conduct of the election by the AEC.
Omit “Commissioner”, substitute “FWC”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “FWC”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner is authorised for the purposes of subsection (1), he or she”, substitute “General Manager is authorised for the purposes of subsection (1), the General Manager”.
Omit “he or she” (wherever occurring), substitute “the General Manager”.
Omit “him or her”, substitute “the General Manager”.
Omit “him or her, or of which he or she”, substitute “the General Manager, or of which the General Manager”.
Omit “Commissioner, or a person acting on his or her behalf”, substitute “General Manager, or a person acting on the General Manager’s behalf”.
Repeal the subsection, substitute:
Issue of identity card
(1) The General Manager must issue an identity card to each member of the staff of the FWC (an
official ) to whom powers of the General Manager under section 202 have been delegated under section 343A.
Repeal the paragraph, substitute:
(b) the person ceases to be a member of the staff of the FWC to whom powers of the General Manager under section 202 have been delegated under section 343A; and
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “the Commissioner”, substitute “the General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “FWC”.
Omit “
Commissioner ”, substitute “FWC ”.
Omit “Commissioner”, substitute “FWC”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “as the Commissioner allows), lodge with the Commissioner”, substitute “as the General Manager allows), lodge with the FWC”.
Omit “Commissioner”, substitute “FWC”.
Omit “Commissioner”, substitute “General Manager”.
62
Subsections 246(3), 247(1A) and 249(5A) and (6A) Repeal the subsections.
Omit “Commissioner must, by written determination published in the
Gazette ,”, substitute “General Manager must, by legislative instrument,”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner’s”, substitute “General Manager’s”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “FWC”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “
Commissioner ”, substitute “FWC ”.
Omit “as the Commissioner allows”, substitute “as the General Manager allows”.
Omit “with the Commissioner”, substitute “with the FWC”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “FWC”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “FWC”.
Omit “as the Commissioner allows”, substitute “as the General Manager allows”.
Omit “lodge with the Commissioner”, substitute “lodge with the FWC”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner”, substitute “FWC”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Repeal the paragraphs, substitute:
(a) the General Manager;
(b) a person authorised in writing by the General Manager to make the application.
Repeal the subsection, substitute:
Information to which this section applies
(1) This section applies to information acquired by the General Manager or a member of the staff of the FWC in the performance of functions or exercise of powers under this Act.
Omit “Commissioner or General Manager may disclose, or authorise the disclosure of, the information if he or she”, substitute “General Manager may disclose, or authorise the disclosure of, the information if the General Manager”.
Omit “his or her”, substitute “the General Manager’s”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner”, substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “the Commissioner must”, substitute “the General Manager must”.
Omit “Commissioner”, substitute “FWC”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “lodged with the Commissioner”, substitute “lodged with the FWC”.
Omit “request the Commissioner”, substitute “request the General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Repeal the paragraph, substitute:
(b) the General Manager or a member of the staff of the FWC authorised by the General Manager to be present; or
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “the Commissioner” (wherever occurring), substitute “the General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “The Commissioner”, substitute “The General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “the Commissioner”, substitute “the General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “
Commissioner ”, substitute “General Manager ”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Repeal the subparagraph.
Repeal the paragraph.
Omit “Commissioner” (wherever occurring), substitute “General Manager”.
Omit “Commissioner’s”, substitute “General Manager’s”.
Omit “Commissioner”, substitute “General Manager”.
Omit “Commissioner”, substitute “General Manager”.
Omit “and to the Commissioner”.
Omit “154C(1),”.
Insert:
(c) subsection 183(4);
(d) any provision of Part 3 or 4 of Chapter 7 (other than section 202);
(e) any provision of Division 1, 2 or 3, or Subdivision B of Division 4, of Part 3 of Chapter 8;
(f) subsection 278(2);
Insert:
(i) subsection 329G(2);
(j) section 334;
(ja) section 335;
(jb) section 335K;
(jc) subsection 336(1), (2), (3) or (5);
Repeal the paragraph.
Insert:
(d) Subdivision A of Division 4 of Part 3 of Chapter 8;
(e) subsection 293L(1);
After “other than”, insert “a provision of Part 4 of that Chapter or”.
Insert:
(3A) Despite subsection (1), the General Manager’s functions or powers under section 330, 331, 332 or 333 can only be delegated to:
(a) a member of the staff of the FWC; or
(b) any other person or body the General Manager is satisfied has substantial or significant experience or knowledge in at least one of the following fields:
(i) accounting;
(ii) auditing;
(iii) financial reporting;
(iv) conducting compliance audits or investigations;
(v) a field prescribed by the regulations for the purposes of this subparagraph.
(3B) Despite subsection (1), functions and powers under Division 3 of Part 4 (questioning on oath or affirmation) can only be delegated to a member of the staff of the FWC who is an SES employee or an acting SES employee.
Repeal the section.
Omit “with the Commissioner”.
Omit “or the Commissioner”.
Omit “lodged with the Commissioner”, substitute “lodged with the FWC”.
Omit “certified by the Commissioner”, substitute “certified by the General Manager”.
In this Division:
commencement time means the commencement of Division 1.
Commissioner means the Registered Organisations Commissioner holding office under Part 3A of Chapter 11 of the principal Act before the commencement time.
principal Act means theFair Work (Registered Organisations) Act 2009 .
This Division does not limit section 7 of the
Acts Interpretation Act 1901 .
The General Manager may, before the commencement time, for the purposes of performing or exercising the General Manager’s functions or powers under the principal Act after the commencement time, require the Commissioner to disclose to the General Manager information acquired by the Commissioner or a member of the staff assisting the Commissioner in the performance or exercise of functions or powers under the principal Act before the commencement time.
(1) This item applies if:
(a) a process begun under the principal Act is incomplete at the commencement time; and
(b) a function or power that the Commissioner was required, or able, to perform or exercise in relation to the process is, because of the amendments made by this Part, no longer conferred on the Commissioner; and
(c) after the commencement time, the function or power is conferred on the General Manager.
(2) For the purposes of completing the process:
(a) the General Manager must or may, as the case requires, perform the function or exercise the power; and
(b) things done by or in relation to the Commissioner before the commencement time have effect as if they were done by or in relation to the General Manager.
165
General Manager substituted as party to proceedings If, immediately before the commencement time, the Commissioner is a party to proceedings pending in any court or tribunal, the General Manager is substituted for the Commissioner as a party to the proceedings at the commencement time.
166
Conduct, events or circumstances occurring before the commencement time To avoid doubt, the General Manager may perform a function, or exercise a power, under the principal Act, as amended by this Part, in relation to conduct engaged in, an event that occurred, or a circumstance that arose before the commencement time.
167
Extensions, exemptions, certificates, instruments, approvals and requests
Extensions (1) The principal Act, as amended by this Part, has effect, after the commencement time, as if any extension of time (however described) allowed by the Commissioner before the commencement time under a provision of the principal Act that relates to a time after the commencement time had been allowed by the General Manager under the provision as amended by this Part.
Exemptions and permissions (2) Any exemption or permission granted by the Commissioner that was in force immediately before the commencement time under one of the following provisions of the principal Act has effect, after the commencement time, as if it had been granted by the General Manager under the provision as amended by this Part:
(a) subsection 186(1) (exemption in relation to elections);
(b) subsection 234(4) (permission to keep records at specified premises);
(c) section 293M (exemption from financial training).
Certificates (3) Any certificate issued by the Commissioner that was in force immediately before the commencement time under section 255F (certificate of registration as an auditor) of the principal Act has effect, after the commencement time, as if it had been issued by the General Manager under that section as amended by this Part.
(4) Despite the amendments of section 348 of the principal Act made by this Part, that section continues to apply, in relation to any certificate stating that a specified person was at a specified time a member or officer of a specified organisation or a specified branch of a specified organisation issued by the Commissioner before the commencement time, as if those amendments had not been made.
Reporting guidelines (5) Any reporting guidelines issued by the Commissioner that are in force immediately before the commencement time under subsection 255(1) of the principal Act have effect, after the commencement time, as if they had been issued by the General Manager under that subsection as amended by this Part.
Determinations, declarations and orders (6) Any determination, declaration or order made by the Commissioner that was in force immediately before the commencement time under one of the following provisions of the principal Act has effect, after the commencement time, as if it had been made by the General Manager under the provision as amended by this Part:
(a) subsection 241(1) (exemption from certain Australian Accounting Standards);
(b) subsection 256A(2) (declaration in relation to significant role in audit);
(c) subsection 293H(3) (order for alternative disclosure arrangement).
Training in relation to financial duties (7) The principal Act, as amended by this Part, has effect, after the commencement time, as if any training that was approved by the Commissioner as at immediately before the commencement time under subsection 293L(1) of the principal Act had been approved by the General Manager under that subsection as amended by this Part.
Requests for action following investigation (8) The principal Act, as amended by this Part, has effect, after the commencement time, as if any notice that was issued under paragraph 336(2)(a) of the principal Act before the commencement time requesting a reporting unit to take specified action within a period that ends after the commencement time had been issued by the General Manager under that paragraph as amended by this Part.
General
(9) This item does not limit item 164.
168
Things given to the Commissioner before the commencement time
Requirements met if documents given to the Commissioner
(1) After the commencement time:
(a) for the purposes of paragraph 189(3)(a) of the principal Act, information lodged with the Commissioner under subsection 189(1) of the principal Act before the commencement time is taken to have been lodged with the FWC under that subsection; and
(b) for the purposes of subsection 236(5) of the principal Act, a copy of a document received by the Commissioner under section 236 of the principal Act before the commencement time is taken to have been received by the General Manager under that section; and
(c) for the purposes of paragraph 255C(1)(b) of the principal Act, a subject certified by an appropriate authority of a university or other institution to the Commissioner to represent a course of study mentioned in subparagraphs 255C(1)(b)(i) and (ii) before the commencement time is taken to have been certified to the General Manager; and
(d) for the purposes of paragraph 269(2)(c) of the principal Act, a copy of audited accounts lodged with the Commissioner under that paragraph before the commencement time is taken to have been lodged with the FWC under that paragraph; and
(e) for the purposes of paragraph 332(1)(a) and subsection 333(1) of the principal Act, documents lodged with the Commissioner under section 268 of the principal Act before the commencement time are taken to have been lodged with the FWC under that section.
References to documents lodged with the FWC or given to General Manager
(2) After the commencement time:
(a) the reference in subsection 237(4) of the principal Act to a statement lodged with the FWC under subsection 237(1) includes a reference to a statement lodged with the Commissioner under subsection 237(1) of the principal Act before the commencement time; and
(b) the reference in subsection 261(2) of the principal Act to a document required by or under the principal Act to be lodged with the FWC includes a reference to a document required by or under the principal Act to be lodged with the Commissioner before the commencement time; and
(c) the reference in paragraph 270(3)(c) of the principal Act to documents lodged with the FWC in accordance with subsection 270(7) of the principal Act includes a reference to documents lodged with the Commissioner in accordance with subsection 270(7) of the principal Act before the commencement time; and
(d) the reference in subsection 329G(1) of the principal Act to information acquired by the General Manager in the performance of functions or exercise of powers under the principal Act includes a reference to information acquired by the Commissioner or a member of the staff assisting the Commissioner in the performance of functions or exercise of powers under the principal Act before the commencement time; and
(e) the reference in section 349 of the principal Act to a list of the officers of an organisation or a branch of an organisation lodged with the FWC on behalf of the organisation, or a copy of any such list certified by the General Manager, includes a reference to such a list lodged with the Commissioner on behalf of the organisation, or a copy of such a list certified by the Commissioner, before the commencement time.
Auditors (1) Subitem (2) applies in relation to any of the following things done by the Commissioner before the commencement time under a provision of Subdivision A of Division 4 of Part 3 of Chapter 8 of the principal Act:
(a) suspension of the registration of a person as an auditor for a period wholly or partly after the commencement time;
(b) cancellation of the registration of a person as an auditor.
(2) The principal Act, as amended by this Part, has effect, after the commencement time, as if the suspension or cancellation had been done by the General Manager under that provision as amended by this Part.
Consultants (3) Subitem (4) applies in relation to any person who, immediately before the commencement time, was a consultant engaged by the Commissioner under section 329CC of the principal Act.
(4) The person is taken, after the commencement time, to be a consultant engaged by the General Manager under section 673 of the
Fair Work Act 2009 on the same terms and conditions.
Protected disclosures (5) Despite the repeal of subparagraph 337A(1)(b)(ia) of the principal Act by this Part, that subparagraph continues to apply after the commencement time in relation to any disclosure made to the Commissioner or a member of the staff assisting the Commissioner before the commencement time, as if the repeal had not happened.
Transfer of records (6) Subitem (7) applies to any records or documents that were in the possession of the Commissioner immediately before the commencement time.
(7) The records and documents are to be transferred to the General Manager after the commencement time.
(1) The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:
(a) the amendments or repeals made by this Part; or
(b) the enactment of this Part.
(2) The rules may provide that they apply despite subsection 7(2) of the
Acts Interpretation Act 1901 .(3) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
(4) Despite subsection 12(2) of the
Legislation Act 2003 and subject to subitem (5), the rules may be expressed to take effect from a date before the rules are registered under that Act.
(5) If:
(a) the rules are expressed to take effect from a date before the rules are registered under the
Legislation Act 2003 ; and(b) a person engaged in conduct before the registration date; and
(c) but for the retrospective effect of the rules, 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.
Insert:
Regulatory Powers Act means theRegulatory Powers (Standard Provisions) Act 2014 .
Add:
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the
conduct provision ) commits an offence or is liable to a civil penalty.(2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.
Repeal the heading, substitute:
Repeal the section, substitute:
This Chapter provides for:
(a) civil penalty orders for contraventions of civil penalty provisions; and
(b) infringement notices; and
(c) enforceable undertakings.
A civil penalty order may be sought from the Federal Court for the contravention of a civil penalty provision (see Part 2 of this Chapter).
Certain strict liability offences and civil penalty provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act (see Part 3 of this Chapter).
A person can be given an infringement notice for an alleged contravention of a specified strict liability offence or civil penalty provision. The person can choose to pay an amount as an alternative to proceedings being brought against the person in relation to the alleged contravention. However, if the person chooses not to do so, proceedings can be brought against the person in relation to the alleged contravention.
Undertakings to comply with this Act may be accepted and enforced under Part 6 of the Regulatory Powers Act (see Part 4 of this Chapter). If a person gives an undertaking, the undertaking may be enforced by a court order.
Repeal the heading, substitute:
Add:
Provisions subject to an infringement notice
(1) The provisions listed in the following table are subject to an infringement notice under Part 5 of the Regulatory Powers Act.
1 | Subsection 51(2) |
2 | Subsection 52(1) |
3 | Subsection 95(3C) |
4 | Subsection 103(2) |
5 | Subsection 104(1) |
6 | Section 169 |
7 | Subsection 172(1) |
8 | Subsection 189(2) |
9 | Subsection 191(2) |
10 | Subsection 192(1) |
11 | Subsection 193(2) |
12 | Subsection 198(1) |
13 | Subsection 198(4) |
14 | Subsection 198(5) |
15 | Subsection 199(3) |
16 | Subsection 199(5) |
17 | Subsection 230(1) |
18 | Subsection 230(2) |
19 | Subsection 231(1) |
20 | Subsection 231(2) |
21 | Subsection 233(1) |
22 | Subsection 233(2) |
23 | Subsection 235(2) |
24 | Subsection 236(1) |
25 | Subsection 236(2) |
26 | Subsection 237(1) |
27 | Subsection 253(4) |
28 | Subsection 254(4) |
29 | Subsection 256(1) |
30 | Subsection 256(3) |
31 | Subsection 256(4) |
32 | Subsection 256(4A) |
33 | Subsection 256(5) |
34 | Subsection 256(6A) |
35 | Subsection 256A(1) |
36 | Section 259 |
37 | Subsection 263(5) |
38 | Subsection 264(3) |
39 | Subsection 265(1) |
40 | Subsection 265(4) |
41 | Subsection 265(5) |
42 | Subsection 266(1) |
43 | Section 268 |
44 | Subsection 270(4) |
45 | Subsection 270(5) |
46 | Subsection 270(6) |
47 | Subsection 270(7) |
48 | Subsection 272(3) |
49 | Subsection 272(5) |
50 | Subsection 276(1) |
51 | Subsection 276(2) |
52 | Subsection 293B(1) |
53 | Subsection 293B(2) |
54 | Subsection 293C(2) |
55 | Subsection 293C(3) |
56 | Subsection 293C(6) |
57 | Subsection 293C(7) |
58 | Subsection 293F(1) |
59 | Subsection 293F(2) |
60 | Subsection 293J(1) |
61 | Subsection 293J(2) |
62 | Subsection 293K(2) |
63 | Subsection 337AA(1) |
64 | Subsection 337AA(2) |
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
(2) A provision in the regulations is subject to an infringement notice under Part 5 of the Regulatory Powers Act if:
(a) it is a strict liability offence provision, or a civil penalty provision (within the meaning of the Regulatory Powers Act); and
(b) the regulations prescribe the provision for the purposes of this subsection.
Infringement officer
(3) For the purposes of Part 5 of the Regulatory Powers Act, each of the following persons is an infringement officer in relation to the provisions mentioned in subsection (1) or (2):
(a) the General Manager;
(b) a person appointed as an infringement officer under subsection 316B(1).
Relevant chief executive
(4) For the purposes of Part 5 of the Regulatory Powers Act, the General Manager is the relevant chief executive in relation to the provisions mentioned in subsection (1) or (2).
(5) The relevant chief executive may, in writing, delegate the relevant chief executive’s powers and functions under Part 5 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) or (2) to a member of the staff of the FWC who is an SES employee or an acting SES employee.
(6) A person exercising powers or performing functions under a delegation under subsection (5) must comply with any directions of the relevant chief executive.
Amount to be stated in an infringement notice
(7) If a civil penalty provision mentioned in subsection (1) specifies a penalty for a serious contravention and a penalty for any other contravention, the penalty specified for a serious contravention is to be disregarded for the purposes of paragraphs 104(2)(a) and (3)(a) of the Regulatory Powers Act.
Appointment
(1) The General Manager may, in writing, appoint a member of the staff of the FWC as an infringement officer for the purposes of this Part.
(2) The General Manager must not appoint a person as an infringement officer unless the General Manager is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an infringement officer.
(3) The functions and powers conferred on an infringement officer by Part 5 of the Regulatory Powers Act are subject to such conditions and restrictions as are specified in the infringement officer’s instrument of appointment.
General directions by the General Manager
(4) The General Manager may, by legislative instrument, give a written direction to infringement officers relating to the performance of their functions or the exercise of their powers as infringement officers.
(5) A direction given under subsection (4) must be of a general nature only, and cannot relate to a particular case.
(6) An infringement officer must comply with a direction given under subsection (4).
Particular directions by the General Manager
(7) The General Manager may give a direction to an infringement officer relating to the performance of the infringement officer’s functions or the exercise of the infringement officer’s powers as an infringement officer.
(8) The infringement officer must comply with a direction given to the infringement officer under subsection (7).
(9) If a direction given under subsection (7) is in writing, the direction is not a legislative instrument.
Enforceable provisions
(1) The provisions of this Act are enforceable under Part 6 of the Regulatory Powers Act.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Authorised person
(2) For the purposes of Part 6 of the Regulatory Powers Act, the General Manager is an authorised person in relation to the provisions mentioned in subsection (1).
(3) The General Manager may, in writing, delegate the General Manager’s powers and functions under Part 6 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) to a member of the staff of the FWC who is an SES employee or an acting SES employee.
Relevant court
(4) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) a court of a State or Territory that has jurisdiction in relation to the matter.
Enforceable undertaking may be published on the FWC’s website
(5) The General Manager may publish on the FWC’s website an undertaking given in relation to a provision mentioned in subsection (1).
Part 3 of Chapter 10 of the
Fair Work (Registered Organisations) Act 2009 , as added by this Part, applies in relation to any alleged contravention of a provision mentioned in subsection 316A(1) or (2) of theFair Work (Registered Organisations) Act 2009 that occurs before, on or after the commencement of this item.
Building and Construction Industry (Improving Productivity) Act 2016
Repeal the section, substitute:
The object of this Act is to promote work health and safety in relation to building work undertaken by a constitutional corporation, the Commonwealth or a corporate Commonwealth entity.
Repeal the paragraph.
180
Section 4 (paragraph beginning “The Australian Building and Construction Commissioner”) Repeal the paragraph.
181
Section 4 (paragraph beginning “Unlawful industrial action”) Repeal the paragraph.
182
Section 4 (paragraph beginning “The ABC Commissioner, inspectors”) Omit “The ABC Commissioner, inspectors and”.
183
Section 4 (paragraph beginning “The ABC Commissioner, inspectors”) Omit “An examination notice, issued by a nominated AAT presidential member on application by the ABC Commissioner, may require a person to give information. Inspectors and”.
184
Section 4 (paragraph beginning “Inspectors and”) Repeal the paragraph.
185
Section 4 (paragraph beginning “The ABC Commissioner can”) Repeal the paragraph.
Repeal the following definitions:
(a) definition of
AAT presidential member ;(b) definition of
ancillary site .
187
Section 5 (paragraph (a) of the definition of authorised applicant ) Repeal the paragraph.
Repeal the following definitions:
(a) definition of
authorised officer ;(b) definition of
bargaining representative ;(c) definition of
building agreement ;(d) definition of
building association ;(e) definition of
Building Code ;(f) definition of
building enterprise agreement ;(g) definition of
building industry law enforcement ;(h) definition of
building industry participant ;(i) definition of
building matter ;(j) definition of
building site ;(k) definition of
Commonwealth industrial instrument ;(l) definition of
Commonwealth Ombudsman .
Omit “an authorised officer”, substitute “a Federal Safety Officer”.
Repeal the definition, substitute:
compliance purposes means the purposes referred to in subsection 70(2).
Repeal the following definitions:
(a) definition of
constitutionally‑covered entity ;(b) definition of
designated building law ;(c) definition of
enterprise agreement ;(d) definition of
entrusted person ;(e) definition of
examination .
After “under”, insert “repealed”.
Repeal the following definitions:
(a) definition of
funding entity ;(b) definition of
FW Transitional Act ;(c) definition of
independent contractor ;(d) definition of
industrial action ;(e) definition of
industrial association .
194
Section 5 (paragraph (b) of the definition of inspector ) After “under”, insert “repealed”.
Repeal the following definitions:
(a) definition of
lawyer ;(b) definition of
lockout ;(c) definition of
nominated AAT presidential member ;(d) definition of
officer ;(e) definition of
official employment ;(f) definition of
organisation ;(g) definition of
person ;(h) definition of
protected industrial action ;(i) definition of
protected information ;(j) definition of
protected person ;(k) definition of
quarter ;(l) definition of
single enterprise ;(m) definition of
unlawful industrial action ;(n) definition of
unlawful picket .
Repeal the sections.
Omit “Simplified outline of this Chapter”, substitute “Introduction”.
Repeal the paragraph.
Add:
Section 3 (object) does not apply to this Chapter.
Repeal the section, substitute:
The ABC Commissioner has the following functions:
(a) to provide the Fair Work Ombudsman with information and assistance for the purposes of ensuring that the Fair Work Ombudsman can perform the Fair Work Ombudsman’s functions, and exercise the Fair Work Ombudsman’s powers, under the FW Act, so far as those functions and powers relate to the building industry;
(b) to provide the Fair Work Ombudsman with information and assistance for the purposes of ensuring that the Fair Work Ombudsman can perform the Fair Work Ombudsman’s functions, and exercise the Fair Work Ombudsman’s powers, under Division 5 of Part 3 of Schedule 1 to the
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 ;(c) to prepare for the amendments made by Division 2 of Part 3 of Schedule 1 to the
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 ;(d) any other functions conferred on the ABC Commissioner by this Act or by another Act.
Repeal the subsection.
Repeal the heading, substitute:
Repeal the subsection.
Omit “quarterly report, and each”.
Omit “quarter or”.
Omit “(as the case requires)”.
Omit “quarter or”.
Omit “quarter or”.
Repeal the paragraph.
Omit “quarter or”.
Omit “quarter or”.
Omit “quarter or”.
Insert:
(2A) For the purposes of this section,
building industry participant has the same meaning as in this Act as in force immediately before the commencement of this subsection.
Omit “quarterly report, and each”.
Omit “quarter or”.
Repeal the subsection.
Omit “each quarterly report and”.
Repeal the subsection, substitute:
(2) The function of the Working Group is to assist the Chair of the Working Group in preparing the report mentioned in section 32K.
Repeal the section, substitute:
The Chair of the Security of Payments Working Group must prepare and give to the Minister, for presentation to the Parliament, a report on:
(a) the membership of the Security of Payments Working Group during the period:
(i) beginning on 1 July 2022; and
(ii) ending at the commencement of this section; and
(b) the operations of the Security of Payments Working Group during the period:
(i) beginning on 1 July 2022; and
(ii) ending at the commencement of this section.
Repeal the Chapter.
Insert:
(aa) promoting the object of this Act (see section 3);
Insert:
(ba) an APS employee whose duties relate to the performance of the Federal Safety Commissioner’s functions or the exercise of the Federal Safety Commissioner’s powers; or
Repeal the Chapter.
Repeal the Chapter.
Repeal the paragraph.
226
Section 60 (paragraph beginning “Australian Building and Construction Inspectors”) Omit “Australian Building and Construction Inspectors and Federal Safety Officers (who together are called authorised officers)”, substitute “Federal Safety Officers”.
227
Section 60 (paragraph beginning “Australian Building and Construction Inspectors”) Omit “Authorised officers have”, substitute “Federal Safety Officers have”.
228
Section 60 (paragraph beginning “Intentionally hindering”) Omit “an authorised officer”, substitute “a Federal Safety Officer”.
Repeal the Part.
Omit “
Australian Building and Construction Inspectors and ”.
Repeal the Division.
Omit “
authorised officers ”, substitute “Federal Safety Officers ”.
Omit “
authorised officers ”, substitute “Federal Safety Officers ”.
Repeal the subsection.
Omit “an authorised officer”, substitute “a Federal Safety Officer”.
Repeal the note.
Omit “
authorised officers ”, substitute “Federal Safety Officers ”.
Omit “An authorised officer”, substitute “A Federal Safety Officer”.
Omit “authorised officer”, substitute “Federal Safety Officer”.
Omit “
authorised officers ”, substitute “Federal Safety Officers ”.
Repeal the subsection.
Omit “
authorised officers ”, substitute “Federal Safety Officers ”.
Omit “subparagraph (1)(a)(i) and paragraph (2)(a), an authorised officer”, substitute “paragraph (2)(a), a Federal Safety Officer”.
Omit “subparagraph or”.
Omit “subparagraphs (1)(b)(ii) and (2)(b)(ii), an authorised officer”, substitute “subparagraph (2)(b)(ii), a Federal Safety Officer”.
Omit “either of those subparagraphs if the authorised officer”, substitute “that subparagraph if the Federal Safety Officer”.
Omit “An authorised officer”, substitute “A Federal Safety Officer”.
Omit “
authorised officers ”, substitute “Federal Safety Officers ”.
Omit “
72(1)(b)(ii) or (2)(b)(ii) ”, substitute “72(2)(b)(ii) ”.
Omit “An authorised officer”, substitute “A Federal Safety Officer”.
Omit “paragraph 72(1)(a) or (2)(a), or subparagraph 72(1)(b)(i) or (2)(b)(i),”, substitute “paragraph 72(2)(a) or subparagraph 72(2)(b)(i)”.
Omit “authorised officer” (wherever occurring), substitute “Federal Safety Officer”.
Omit “
72(1)(b)(ii) or (2)(b)(ii) ”, substitute “72(2)(b)(ii) ”.
Omit “An authorised officer”, substitute “A Federal Safety Officer”.
Omit “72(1)(b)ii) or (2)(b)(ii)”, substitute “72(2)(b)(ii)”.
Omit “
authorised officers ”, substitute “Federal Safety Officers ”.
Omit “an authorised officer”, substitute “a Federal Safety Officer”.
Omit “the authorised officer if”, substitute “the Federal Safety Officer if”.
Omit “ABC Commissioner or Federal Safety Commissioner (as the case requires)”, substitute “Federal Safety Commissioner”.
Omit “authorised officer” (wherever occurring), substitute “Federal Safety Officer”.
Omit “authorised officer”, substitute “Federal Safety Officer”.
Omit “An authorised officer”, substitute “A Federal Safety Officer”.
Omit “the authorised officer” (wherever occurring), substitute “the Federal Safety Officer”.
Omit “An authorised officer”, substitute “A Federal Safety Officer”.
Omit “the authorised officer”, substitute “the Federal Safety Officer”.
Omit “
authorised officers ”, substitute “Federal Safety Officers ”.
Omit “an authorised officer”, substitute “a Federal Safety Officer”.
Omit “an authorised officer”, substitute “a Federal Safety Officer”.
Omit “or Part 2 (examination notices)”.
Omit “the authorised officer”, substitute “the Federal Safety Officer”.
Repeal the paragraphs.
272
Section 80 (paragraph beginning “An authorised applicant”) Omit “an inspector or”.
273
Section 80 (paragraph beginning “The ABC Commissioner”) Repeal the paragraph.
Repeal the note.
Repeal the subsection.
Repeal the sections.
Repeal the Part.
278
Section 101 (paragraph beginning with “Part 3”) Repeal the paragraph.
Omit “giving information, producing a record or document, or answering a question, under an examination notice, or”, substitute “producing a record or document”.
Repeal the note.
Repeal the subsection.
Omit “gives information,”.
Omit “, or answers a question,”.
Omit “the information or answer given or”.
Omit “giving the information or answer or”.
Omit “proceedings referred to in paragraphs (2)(d) and (e) of this section”, substitute “proceedings to which subsection (4) of this section applies”.
Add:
(4) This subsection applies to the following proceedings:
(a) proceedings for an offence against section 137.1 or 137.2 of the
Criminal Code that relates to this Act (false or misleading information or documents);(b) proceedings for an offence against section 149.1 of the
Criminal Code that relates to this Act (obstruction of Commonwealth officials).
Repeal the section.
Omit “
ABC Commissioner or ”.
Repeal the paragraphs.
Omit “However, the ABC Commissioner must not under this section disclose, or authorise the disclosure of, protected information.”.
Omit “ABC Commissioner or”.
Omit “under:”, substitute “under this Act.”.
Repeal the paragraphs.
Omit “ABC Commissioner or”.
Omit “under:”, substitute “under this Act.”.
Repeal the paragraphs.
Repeal the subsection.
Repeal the section.
Omit “quarterly and”.
Repeal the Part.
Repeal the section.
Omit “
ABC Commissioner ”, substitute “Federal Safety Commissioner ”.
Omit “subsection (2):”, substitute “subsection (2) in the exercise, or purported exercise, of functions, powers or duties under, or in relation to, this Act.”.
Repeal the paragraphs.
Repeal the sections.
Omit “
to re‑establish the Australian Building and Construction Commission er ”, substitute “relating to the Federal Safety Commissioner ”.
Omit “
Building and Construction Industry (Improving Productivity) Act 2016 ”, substitute “Federal Safety Commissioner Act 2022 ”.Note: This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the
Acts Interpretation Act 1901 ).
Repeal the following definitions:
(a) definition of
ABC Commissioner ;(b) definition of
Commission ;
(c) definition of
Commissioner ;(d) definition of
Deputy ABC Commissioner ;(e) definition of
designated official ;(f) definition of
examination notice ;(g) definition of
full‑time Commissioner ;(h) definition of
FWC ;(i) definition of
inspector ;(j) definition of
part‑time Commissioner ;(k) definition of
Working Group .
Repeal the Chapter.
Repeal the section.
Repeal the paragraph.
313
Subsection 93(1) (paragraph (c) of the definition of workplace or safety law ) Omit “
Building and Construction Industry (Improving Productivity) Act 2016 ”, substitute “Federal Safety Commissioner Act 2022 ”.
314
Subparagraphs 337A(1)(b)(iii), (iiia) and (iv) Repeal the subparagraphs.
Omit “
Building and Construction Industry (Improving Productivity) Act 2016 ”, substitute “Federal Safety Commissioner Act 2022 ”.
Repeal the Act.
Repeal the Act.
In this Division:
ABCC Enterprise Agreement means theAustralian Building and Construction Commission Enterprise Agreement 2017‑2020 .
ABCC abolition time means the commencement of Division 2.
Agency has the same meaning as in thePublic Service Act 1999 .
consideration period has the same meaning as in Part I of the ABCC Enterprise Agreement.
Fair Work Inspector means a person appointed as a Fair Work Inspector under section 700 of theFair Work Act 2009 .
National Employment Standards has the same meaning as in theFair Work Act 2009 .
retention period has the same meaning as in Part I of the ABCC Enterprise Agreement.
transition time means the commencement of Division 1.
Scope (1) This item applies to a person if, immediately before the ABCC abolition time, the person:
(a) was an APS employee (other than an SES employee); and
(b) was a member of the staff of the Australian Building and Construction Commission; and
(c) was covered by the ABCC Enterprise Agreement; and
(d) was not covered by an agreement under section 26 of the
Public Service Act 1999 for the person to move to an Agency from the Australian Building and Construction Commission; and(e) had not otherwise arranged to move to an Agency from the Australian Building and Construction Commission.
Note 1: For the definition of
APS employee , see section 2B of theActs Interpretation Act 1901 .Note 2: For the definition of
SES employee , see section 2B of theActs Interpretation Act 1901 .
Termination of employment
(2) The following provisions have effect:
(a) the person’s employment is taken to have been terminated at the ABCC abolition time under section 29 of the
Public Service Act 1999 on the ground that the person is excess to the requirements of the Australian Building and Construction Commission;(b) for the purposes of section 119 of the
Fair Work Act 2009 , the person’s employment is taken to have been terminated at the ABCC abolition time at the employer’s initiative because the employer no longer requires the job done by the person to be done by anyone;(c) the person is to be paid by the Fair Work Ombudsman, on behalf of the Commonwealth, any amounts that are payable by the Commonwealth to the person as a result of the termination of the person’s employment.
Termination payments—person not offered voluntary redundancy
(3) If:
(a) immediately before the ABCC abolition time, the person:
(i) was an ongoing employee; and
(ii) was not on probation; and
(b) the person was not offered a voluntary redundancy under clause 252 of the ABCC Enterprise Agreement before the ABCC abolition time;
then, after the termination of the person’s employment:
(c) the ABCC Enterprise Agreement does not apply to the person; and
(d) the person is entitled to be reimbursed by the Fair Work Ombudsman, on behalf of the Commonwealth, for expenditure incurred by the person within 2 months after the ABCC abolition time in obtaining independent financial advice (up to a limit of $1,000); and
(e) the person is entitled to be reimbursed by the Fair Work Ombudsman, on behalf of the Commonwealth, for expenditure incurred by the person within 2 months after the ABCC abolition time in obtaining career counselling (up to a limit of $1,000); and
(f) the person is entitled to be paid by the Fair Work Ombudsman, on behalf of the Commonwealth, a lump sum payment equal to 2 months of the person’s pay; and
(g) the person is entitled to be paid by the Fair Work Ombudsman, on behalf of the Commonwealth, a lump sum payment equal to the greater of the following amounts:
(i) the person’s notional involuntary redundancy amount worked out under subitem (7);
(ii) the person’s notional voluntary redundancy amount worked out under subitem (8).
Termination payments—person offered voluntary redundancy and consideration period had not ended before ABCC abolition time
(4) If:
(a) immediately before the ABCC abolition time, the person:
(i) was an ongoing employee; and
(ii) was not on probation; and
(b) the person was offered a voluntary redundancy under clause 252 of the ABCC Enterprise Agreement, but did not accept the voluntary redundancy; and
(c) the person’s consideration period had not ended before the ABCC abolition time;
then, after the termination of the person’s employment:
(d) the ABCC Enterprise Agreement does not apply to the person; and
(e) the person is entitled to be reimbursed by the Fair Work Ombudsman, on behalf of the Commonwealth, for expenditure incurred by the person within 2 months after the ABCC abolition time in obtaining independent financial advice (up to a limit of $1,000 reduced by any amount the person received from the Commonwealth as reimbursement for expenditure incurred by the person before the ABCC abolition time in obtaining independent financial advice); and
(f) the person is entitled to be reimbursed by the Fair Work Ombudsman, on behalf of the Commonwealth, for expenditure incurred by the person within 2 months after the ABCC abolition time in obtaining career counselling (up to a limit of $1,000 reduced by any amount the person received from the Commonwealth as reimbursement for expenditure incurred by the person before the ABCC abolition time in obtaining career counselling); and
(g) the person is entitled to be paid by the Fair Work Ombudsman, on behalf of the Commonwealth, a lump sum payment equal to 2 months (reduced by the number of days in so much of the consideration period as occurred before the ABCC abolition time) of the person’s pay; and
(h) the person is entitled to be paid by the Fair Work Ombudsman, on behalf of the Commonwealth, a lump sum payment equal to the greater of the following amounts:
(i) the person’s notional involuntary redundancy amount worked out under subitem (7);
(ii) the person’s notional voluntary redundancy amount worked out under subitem (8).
Termination payments—person offered voluntary redundancy and retention period had not ended before ABCC abolition time
(5) If:
(a) immediately before the ABCC abolition time, the person:
(i) was an ongoing employee; and
(ii) was not on probation; and
(b) the person was offered a voluntary redundancy under clause 252 of the ABCC Enterprise Agreement before the ABCC abolition time, but did not accept the voluntary redundancy; and
(c) the person’s consideration period ended before the ABCC abolition time; and
(d) the person’s retention period had not ended before the ABCC abolition time;
then, after the termination of the person’s employment:
(e) the ABCC Enterprise Agreement does not apply to the person; and
(f) the person is entitled to be paid by the Fair Work Ombudsman, on behalf of the Commonwealth, a lump sum payment equal to 7 months (reduced by the number of weeks for which the person is entitled to redundancy pay under the National Employment Standards and by the number of days in so much of the retention period as occurred before the ABCC abolition time) of the person’s pay; and
(g) the person is entitled to be paid by the Fair Work Ombudsman, on behalf of the Commonwealth, the person’s National Employment Standards entitlement to redundancy pay.
Termination payments—person accepted voluntary redundancy and notice period had not ended before ABCC abolition time
(6) If:
(a) immediately before the ABCC abolition time, the person:
(i) was an ongoing employee; and
(ii) was not on probation; and
(b) the person was offered a voluntary redundancy under clause 252 of the ABCC Enterprise Agreement before the ABCC abolition time; and
(c) the person accepted the voluntary redundancy before the ABCC abolition time; and
(d) the person’s notice period had not ended before the ABCC abolition time;
then, after the termination of the person’s employment:
(e) the ABCC Enterprise Agreement does not apply to the person; and
(f) if the person had not been paid a redundancy payment benefit under clause 256 of the ABCC Enterprise Agreement before the ABCC abolition time—the person is entitled to be paid by the Fair Work Ombudsman, on behalf of the Commonwealth, a lump sum payment equal to the redundancy benefit that would have become payable to the person under clause 256 of the ABCC Enterprise Agreement if (despite paragraph (e) of this subitem):
(i) that clause were applicable to the person; and
(ii) clause 257 of the ABCC Enterprise Agreement were applicable to the person; and
(iii) that redundancy benefit were calculated in accordance with clauses 259 to 264 of the ABCC Enterprise Agreement as in force immediately before the ABCC abolition time; and
(g) the person is entitled to be paid by the Fair Work Ombudsman, on behalf of the Commonwealth, a lump sum payment equal to the person’s pay for the unexpired portion of the notice period.
Notional involuntary redundancy amount (7) If, immediately before the ABCC abolition time, the person:
(a) was an ongoing employee; and
(b) was not on probation;
the person’s notional involuntary redundancy amount is the sum of the following amounts:
(c) 7 months (reduced by the number of weeks for which the person is entitled to redundancy pay under the National Employment Standards) of the person’s pay;
(d) the person’s National Employment Standards entitlement to redundancy pay;
(e) if:
(i) at the ABCC abolition time, the person has reached the age of 45 years; and
(ii) at the ABCC abolition time, the person has at least 5 years of continuous service (calculated in accordance with clauses 261 to 264 of the ABCC Enterprise Agreement as in force immediately before the ABCC abolition time);
payment in lieu of notice equal to 5 weeks of the person’s pay;
(f) if, at the ABCC abolition time, paragraph (e) does not apply to the person—payment in lieu of notice equal to 4 weeks of the person’s pay.
Notional voluntary redundancy amount (8) If, immediately before the ABCC abolition time, the person:
(a) was an ongoing employee; and
(b) was not on probation;
the person’s notional voluntary redundancy amount is the sum of the following amounts:
(c) the redundancy benefit that would have been payable to the person under clause 256 of the ABCC Enterprise Agreement if (despite paragraphs (3)(c) and (4)(d) of this item):
(i) that clause were applicable to the person; and
(ii) clause 257 of the ABCC Enterprise Agreement were applicable to the person; and
(iii) that redundancy benefit were calculated in accordance with clauses 259 to 264 of the ABCC Enterprise Agreement as in force immediately before the ABCC abolition time;
(d) if:
(i) at the ABCC abolition time, the person has reached the age of 45 years; and
(ii) at the ABCC abolition time, the person has at least 5 years of continuous service (calculated in accordance with clauses 261 to 264 of the ABCC Enterprise Agreement as in force immediately before the ABCC abolition time);
payment in lieu of notice equal to 5 weeks of the person’s pay;
(e) if, at the ABCC abolition time, paragraph (d) does not apply to the person—payment in lieu of notice equal to 4 weeks of the person’s pay.
Amounts payable by the Commonwealth (9) To avoid doubt, an amount payable to the person under subitem (3), (4), (5) or (6) is taken to be an amount that is payable by the Commonwealth as a result of the termination of the person’s employment.
Redundancy benefit (10) For the purposes of section 66 of the
Australian Public Service Commissioner’s Directions 2022 :
(a) so much of an amount payable to the person under paragraph (3)(g) or (4)(h) of this item as is attributable to paragraph (7)(c) or (8)(c) of this item is taken to be a redundancy benefit from an APS agency; and
(b) an amount payable to the person under paragraph (5)(f) or (6)(f) of this item is taken to be a redundancy benefit from an APS agency.
Pay (11) For the purposes of this item, the person’s pay:
(a) is to be calculated on the basis of the person’s salary at the time of the termination of the person’s employment; and
(b) includes allowances in the nature of salary which are paid during periods of annual leave and on a regular basis, but does not include allowances which are:
(i) a reimbursement for expenses incurred; or
(ii) a payment for disabilities associated with the performance of duty.
Exemption from the Age Discrimination Act 2004 (12) Part 4 of the
Age Discrimination Act 2004 does not make unlawful anything done in direct compliance with this item.
If, immediately before the ABCC abolition time, a person:
(a) was an SES employee; and
(b) was a member of the staff of the Australian Building and Construction Commission; and
(c) was not covered by the ABCC Enterprise Agreement; and
(d) was not covered by an agreement under section 26 of the
Public Service Act 1999 for the person to move to an Agency from the Australian Building and Construction Commission; and(e) had not otherwise arranged to move to an Agency from the Australian Building and Construction Commission;
then:
(f) the person’s employment is taken to have been terminated at the ABCC abolition time under section 29 of the
Public Service Act 1999 on the ground that the person is excess to the requirements of the Australian Building and Construction Commission; and(g) section 38 of the
Public Service Act 1999 does not apply to the termination of the person’s employment; and(h) for the purposes of section 119 of the
Fair Work Act 2009 , the person’s employment is taken to have been terminated at the ABCC abolition time at the employer’s initiative because the employer no longer requires the job done by the person to be done by anyone; and(i) the person is to be paid by the Fair Work Ombudsman, on behalf of the Commonwealth, any amounts that are payable by the Commonwealth to the person as a result of the termination of the person’s employment.
Note: For the definition of
SES employee , see section 2B of theActs Interpretation Act 1901 .
If, immediately before the ABCC abolition time, a person was engaged as a consultant to the Australian Building and Construction Commissioner under section 32 of the
Building and Construction Industry (Improving Productivity) Act 2016 :
(a) the person’s engagement as a consultant is terminated at the ABCC abolition time; and
(b) the person is to be paid by the Fair Work Ombudsman, on behalf of the Commonwealth, any amounts that, under the terms and conditions of the person’s engagement, are payable by the Commonwealth to the person as a result of the termination of the person’s engagement.
An application must not be made after the transition time under subsection 81(1) of the
Building and Construction Industry (Improving Productivity) Act 2016 in relation to a contravention of a civil remedy provision that was repealed by this Part.
(2) The member must not participate in any part of a meeting during which the matter is dealt with.
The Minister may terminate the appointment of a member of the National Construction Industry Forum appointed by the Minister:
(a) for misbehaviour; or
(b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity; or
(c) if the member:
(i) becomes bankrupt; or
(ii) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with one or more of the member’s creditors; or
(iv) makes an assignment of the member’s remuneration for the benefit of one or more of the member’s creditors; or
(d) for a member appointed because the member held a particular position or qualification, or represented a particular group—if the member no longer holds the position or qualification, or represents that group; or
(e) the member fails, without reasonable excuse, to comply with section 789GZJ (confidentiality) or section 789GZP (disclosure of interests); or
(f) if the member is absent, except on leave of absence granted by the Minister, from 3 consecutive meetings of the Forum.
Omit “or 76”, substitute “or 76A”.
Omit “section 76”, substitute “section 76A”.
Repeal the subsections.
Omit “under this section”, substitute “requested under this section”.
Insert:
Responding to the request
(1) If, under subsection 76(1), an employee requests an employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period, the employer must give the employee a written response to the request within 21 days.
(2) The response must:
(a) state that the employer grants the request; or
(b) if, following discussion between the employer and the employee, the employer and the employee agree to an extension of unpaid parental leave for the employee for a period that differs from the period requested—set out the agreed extended period; or
(c) subject to subsection (3)—state that the employer refuses the request and include the matters required by subsection (6).
(3) The employer may refuse the request only if:
(a) the employer has:
(i) discussed the request with the employee; and
(ii) genuinely tried to reach an agreement with the employee about an extension of the period of unpaid parental leave for the employee; and
(b) the employer and the employee have not reached such an agreement; and
(c) the employer has had regard to the consequences of the refusal for the employee; and
(d) the refusal is on reasonable business grounds.
Note: An employer’s grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances (see subsection 76C(6)).
(4) To avoid doubt, subparagraph (3)(a)(ii) does not require the employer to agree to an extension of the period of unpaid parental leave for the employee if the employer would have reasonable business grounds for refusing a request for the extension.
Reasonable business grounds for refusing requests
(5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:
(a) that the extension of the period of unpaid parental leave requested by the employee would be too costly for the employer;
(b) that there is no capacity to change the working arrangements of other employees to accommodate the extension of the period of unpaid parental leave requested by the employee;
(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the extension of the period of unpaid parental leave requested by the employee;
(d) that the extension of the period of unpaid parental leave requested by the employee would be likely to result in a significant loss in efficiency or productivity;
(e) that the extension of the period of unpaid parental leave requested by the employee would be likely to have a significant negative impact on customer service.
Note: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).
Employer must explain grounds for refusal
(6) If the employer refuses the request, the written response under subsection (1) must:
(a) include details of the reasons for the refusal; and
(b) without limiting paragraph (a) of this subsection:
(i) set out the employer’s particular business grounds for refusing the request; and
(ii) explain how those grounds apply to the request; and
(c) either:
(i) set out the extension of the period of unpaid parental leave for the employee (other than the period requested by the employee) that the employer would be willing to agree to; or
(ii) state that there is no extension of the period that the employer would be willing to agree to; and
(d) set out the effect of sections 76B and 76C.
Genuinely trying to reach an agreement
(7) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.
Omit “(1)”.
Omit “subsection”, substitute “section”.
Repeal the subsection (including the notes).
Insert:
Application of this section
(1) This section applies to a dispute between an employer and an employee that relates to a request by the employee to the employer under subsection 76(1) to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period if:
(a) the employer has refused the request; or
(b) 21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under section 76A.
Note 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).
Note 2: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56).
Resolving disputes
(2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.
FWC may deal with disputes
(3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.
(4) If a dispute is referred under subsection (3):
(a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and
(b) the FWC may deal with the dispute by arbitration in accordance with section 76C.
Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).
Representatives
(5) The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:
(a) resolving the dispute; or
(b) the FWC dealing with the dispute.
Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).
(1) For the purposes of paragraph 76B(4)(b), the FWC may deal with the dispute by arbitration by making any of the following orders:
(a) if the employer has not given the employee a written response to the request under section 76A—an order that the employer be taken to have refused the request;
(b) if the employer refused the request:
(i) an order that it would be appropriate for the grounds on which the employer refused the request to be taken to have been reasonable business grounds; or
(ii) an order that it would be appropriate for the grounds on which the employer refused the request to be taken not to have been reasonable business grounds;
(c) if the FWC is satisfied that the employer has not responded, or has not responded adequately, to the employee’s request under section 76A—an order that the employer take such further steps as the FWC considers appropriate, having regard to the matters in section 76A;
(d) subject to subsection (4) of this section:
(i) an order that the employer grant the request; or
(ii) an order that the employer agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months (other than the period requested by the employee) immediately following the end of the available parental leave period.
Note: An order by the FWC under paragraph (c) could, for example, require the employer to give a response, or further response, to the employee’s request, and could set out matters that must be included in the response or further response.
(2) In making an order under subsection (1), the FWC must take into account fairness between the employer and the employee.
(3) The FWC must not make an order under paragraph (1)(c) or (d) that would be inconsistent with:
(a) a provision of this Act; or
(b) a term of a fair work instrument (other than an order made under that paragraph) that, immediately before the order is made, applies to the employer and employee.
(4) The FWC may make an order under paragraph (1)(d) only if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.
(5) If the FWC makes an order under paragraph (1)(a), the employer is taken to have refused the request.
(6) If the FWC makes an order under paragraph (1)(b), the grounds on which the employer refuses the request are taken:
(a) for an order made under subparagraph (1)(b)(i)—to be reasonable business grounds; or
(b) for an order made under subparagraph (1)(b)(ii)—not to be reasonable business grounds.
Contravening an order under subsection (1)
(7) A person must not contravene a term of an order made under subsection (1).
Note: This subsection is a civil remedy provision (see Part 4‑1).
Repeal the note.
Repeal the notes.
Omit “44(1)”, substitute “44”.
Insert:
5AB | 76C(7) | (a) an employee; (b) an employee organisation; (c) an inspector | (a) the Federal Court;
(c) an eligible State or Territory court | 60 penalty units |
Omit “745(1)”, substitute “745”.
Repeal the note, substitute:
Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).
Omit “subsection 44(1)”, substitute “section 44”.
Omit “subsection 745(1)”, substitute “section 745”.
Omit “subsection 44(1)”, substitute “section 44”.
Omit “subsection 44(1)”, substitute “section 44”.
Insert:
(ab) an order under subsection 76C(1) (which deals with the extension of periods of unpaid parental leave);
Repeal the subsection.
Repeal the subsection.
Omit “(1)”.
Omit “subsection”, substitute “section”.
Repeal the subsection (including the note).
Insert:
In this Part:
amended Act means this Act as amended by theFair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 .
amending Act means theFair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 .
commencement means the commencement of this Part.
Divisions 3 and 4 of Part 5‑1, as amended by Division 2 of Part 1 of Schedule 1 to the amending Act, have effect as if a reference to a decision made under the Registered Organisations Act by the General Manager included a reference to a decision made under the Registered Organisations Act before the commencement of Division 2 of Part 1 of that Schedule by the Registered Organisations Commissioner (including a delegate of the Commissioner), other than a decision under subsection 293H(3) of the Registered Organisations Act.
(1) Sections 3 and 134 of the amended Act apply, after commencement, in relation to the FWC performing functions, or exercising powers, in relation to:
(a) a matter that arises after commencement; or
(b) a proceeding in the FWC that was on foot at commencement, or commences after commencement.
(2) Section 284 of the amended Act applies, after commencement, in relation to an annual wage review conducted in:
(a) the financial year beginning on 1 July 2022; or
(b) a later financial year.
(1) Section 157 of the amended Act applies after commencement in relation to a determination or modern award made under that section after commencement.
(2) Subsections 302(3A) to (4A) of the amended Act apply after commencement in relation to the FWC performing functions, or exercising powers, in relation to:
(a) a matter that arises after commencement; or
(b) a proceeding in the FWC that was on foot at commencement, or commences after commencement.
(3) If an application under subsection 302(3) of this Act as in force immediately before commencement has not been finally determined at commencement, subsection 302(5) of the amended Act applies in relation to the application as if it were an application under paragraph 302(3)(b) of the amended Act.
(1) Section 333B of the amended Act applies after commencement in relation to an employee if:
(a) the employee’s contract of employment is entered into on or after commencement; or
(b) the employee’s contract of employment is entered into before commencement and does not include a term that is inconsistent with subsection 333B(1) or (2) of the amended Act.
(2) If:
(a) an employee’s contract of employment is entered into before commencement; and
(b) the contract includes a term that is inconsistent with subsection 333B(1) or (2) of the amended Act; and
(c) after commencement, the contract is varied at a particular time;
section 333B of the amended Act applies in relation to the employee after that time.
(3) Section 333C of the amended Act applies after commencement in relation to a fair work instrument made before, on or after commencement.
(4) Section 333C of the amended Act applies after commencement in relation to a contract of employment if:
(a) the contract is entered into on or after commencement; or
(b) the contract is entered into before commencement and does not include a term that is inconsistent with subsection 333B(1) or (2) of the amended Act.
(5) If:
(a) a contract of employment is entered into before commencement; and
(b) the contract includes a term that is inconsistent with subsection 333B(1) or (2) of the amended Act; and
(c) after commencement, the contract is varied at a particular time;
section 333C of the amended Act applies in relation to the contract after that time.
(6) Section 333D of the amended Act applies after the 6‑month period beginning on commencement in relation to a contract of employment entered into on or after commencement.
(1) Despite the amendments of Part 6‑4B made by Schedule 1 to the amending Act, that Part, as in force immediately before the commencement of Division 1 of Part 8 of that Schedule, continues to apply, on and after that commencement, in relation to:
(a) the sexual harassment of a worker at work before that commencement; and
(b) the sexual harassment of a worker at work on or after that commencement, if the sexual harassment is part of a course of conduct that begins before that commencement.
(2) Despite the repeal of subsection 789FF(1) by Schedule 1 to the amending Act, an order that was in force under that subsection immediately before the commencement of Division 1 of Part 8 of that Schedule continues in force (and may be dealt with) on and after that commencement as if that repeal had not happened.
(3) Subsection 527D(1) does not apply in relation to sexual harassment of a worker if the sexual harassment is part of a course of conduct that begins before the commencement of Division 1 of Part 8 of Schedule 1 to the amending Act.
(1) Subject to subclauses (2) and (3), the amendments made by Part 9 of Schedule 1 to the amending Act apply on and after commencement.
(2) The amendments of sections 172A and 195 made by Part 9 of Schedule 1 to the amending Act apply in relation to enterprise agreements made on and after commencement.
(3) The amendment of section 351 made by Part 9 of Schedule 1 to the amending Act applies in relation to adverse action taken on and after commencement.
Section 333E of the amended Act applies in relation to a contract of employment entered into on or after the commencement of Part 10 of Schedule 1 to the amending Act (whether or not a previous contract referred to in subsection 333E(4) of the amended Act was entered into before, on or after that commencement).
(1) On application by an employer or employee covered by an enterprise agreement that was made before the commencement of Part 10 of Schedule 1 to the amending Act, the FWC may make a determination varying the enterprise agreement to resolve an uncertainty or difficulty relating to the interaction between the enterprise agreement and the provisions of Division 5 of Part 2‑9.
(2) A variation of an enterprise agreement under this clause operates from the day specified in the determination, which may be a day before the enterprise agreement is made.
The amendments made by Divisions 1, 3, 4 and 5 of Part 11 of Schedule 1 to the amending Act apply in relation to a request made under subsection 65(1) of this Act on or after the commencement of that Part.
The amendments made by Part 12 of Schedule 1 to the amending Act apply in relation to an application for the termination of an enterprise agreement made under section 225:
(a) on or after the commencement of that Part; or
(b) before the commencement of that Part if, at that commencement, the FWC has neither terminated nor refused to terminate the agreement.
Despite the amendments made by Part 14 of Schedule 1 to the amending Act, Part 2‑4 continues to apply, as if the amendments had not been made, in relation to:
(a) any proposed enterprise agreement for which the notification time occurs before the commencement of Part 14 of that Schedule; and
(b) any variation of an enterprise agreement for which the employer’s request that affected employees for the variation approve the variation by voting for it occurs before that commencement.
The amendments made by Part 16 of Schedule 1 to the amending Act apply in relation to enterprise agreements made on and after the commencement of that Part.
Section 602A of the amended Act applies in relation to an approval given by the FWC before, at or after the commencement of that section.
Section 602B of the amended Act applies in relation to an approval given by the FWC before, at or after the commencement of that section.
Despite the amendments made to the following provisions of this Act by Part 18 of Schedule 1 to the amending Act, those provisions continue to apply, in relation to an application made under section 234 of this Act before that Part commences, as if the amendments had not been made:
(a) Subdivision B of Division 8 of Part 2‑4;
(b) Division 4 of Part 2‑5;
(c) section 274;
(d) section 413.
In making a declaration under section 235 of the amended Act, the FWC may have regard to conduct engaged in before or after the commencement of Subdivision B of Division 8 of Part 2‑4 of the amended Act.
(2) The amendments of sections 437 and 440 made by Division 2 of Part 19 of Schedule 1 to the amending Act apply in relation to an application made under subsection 437(1) of this Act on or after the commencement of that Division.
(3) Subject to subclause (2) of this clause, the amendments of Part 3‑3 made by Division 2 of Part 19 of Schedule 1 to the amending Act apply in relation to a protected action ballot order if the application for the order is made under subsection 437(1) of this Act on or after the commencement of that Division.
(4) The amendments of section 539 made by Division 2 of Part 19 of Schedule 1 to the amending Act apply in relation to a contravention, or proposed contravention, of a civil remedy provision referred to in item 18, 19 or 20 of the table in subsection 539(2) that occurs on or after the commencement of that Division.
(5) The amendment made by Division 3 of Part 19 of Schedule 1 to the amending Act applies in relation to an application made under subsection 437(1) of this Act on or after the commencement of that Division.
(6) The amendments of Part 3‑3 made by Division 4 of Part 19 of Schedule 1 to the amending Act apply in relation to employee claim action if the application for the relevant protected action ballot order is made under subsection 437(1) of this Act on or after the commencement of that Division.
(7) The amendments of Part 3‑3 made by Division 5 of Part 19 of Schedule 1 to the amending Act apply in relation to a protected action ballot order if the application for the order is made under subsection 437(1) of this Act on or after the commencement of that Division.
Subdivision AD of Division 7 of Part 2‑4 of the amended Act, as inserted by Part 21 of Schedule 1 to the amending Act, applies in relation to variations of single interest employer agreements on or after the commencement of that Part of the amending Act, if the agreements were made after that commencement.
(1) This clause applies in relation to applications for declarations made under subsection 247(1) of the Act immediately before the commencement of Part 21 of Schedule 1 to the amending Act if, immediately before that commencement, the Minister had not made a decision on the application.
(2) Despite the amendments of Division 10 of Part 2‑4 made by Part 21 of Schedule 1 to the amending Act, that Division continues to apply as if those amendments had not been made.
(1) This clause applies in relation to declarations made under subsection 247(3) of the Act before the commencement of Part 21 of Schedule 1 to the amending Act if, immediately before that commencement, 2 or more of the employers to whom the declaration relates had not made an application for an authorisation.
(2) If, after that commencement, those employers make an application for an authorisation, then, despite the amendments of Division 10 of Part 2‑4 made by Part 21 of Schedule 1 to the amending Act, that Division continues to apply in relation to the application as if those amendments had not been made.
(1) This clause applies in relation to applications for authorisations made under subsection 248(1) of the Act immediately before the commencement of Part 21 of Schedule 1 to the amending Act if, immediately before that commencement, the FWC had not made a decision on the application.
(2) Despite the amendments of Division 10 of Part 2‑4 made by Part 21 of Schedule 1 to the amending Act, that Division continues to apply as if those amendments had not been made.
Paragraph 172(5)(b) of the amended Act, as inserted by Part 21 of Schedule 1 to the amending Act, applies in relation to single interest employer authorisations on or after the commencement of that Part if the authorisation was made on or after that commencement.
The amendments to section 251 made by Part 21 of Schedule 1 to the amending Act do not apply in relation to applications for variations made before the commencement of that Part.
(1) This clause applies in relation to 2 or more employers that were, immediately before the commencement of Part 21 of Schedule 1 to the amending Act, specified in a single interest employer authorisation made under subsection 249(1) that is in operation.
(2) For the purposes of section 172 of the amended Act, the employers are taken to be related employers within the meaning of subsection 172(5A).
If, because of the operation of clause 74, 75 or 76 of this Part, the FWC makes a single interest employer authorisation after the commencement of Part 21 of Schedule 1 to the amending Act:
(a) Division 10 of Part 2‑4 of this Act, as in force immediately before that commencement, continues to apply in relation to the authorisation; and
(b) for the purposes of section 172 of the amended Act, the employers specified in the authorisation are taken to be related employers within the meaning of subsection 172(5A).
Despite the repeal of subsection 238(2) of this Act by Part 21 of Schedule 1 to the amending Act, that subsection continues to apply after the commencement of that Part to proposed single‑enterprise agreements in relation to which a single interest employer authorisation is in operation.
Subsection 186(2AA) of the amended Act applies in relation to an enterprise agreement made after the commencement of that subsection.
Subsection 186(2A) of the amended Act applies in relation to a cooperative workplace agreement made after the commencement of that subsection.
Subdivision AC of Division 7 of Part 2‑4 of the amended Act applies in relation to a variation of a cooperative workplace agreement, if the agreement was made after the commencement of that Subdivision.
Subsection 186(2B) of the amended Act, as inserted by Part 23A to the amending Act, applies in relation to:
(a) the approval of an enterprise agreement, if the agreement is made after the commencement of that Part; and
(b) the approval of a variation of an enterprise agreement, if the variation is made after the commencement of that Part.
(1) The following provisions apply in relation to small claims proceedings commenced on or after the commencement of Part 24 of Schedule 1 to the amending Act:
(a) the amendment of paragraph 548(2)(a) of this Act made by that Part;
(b) subsection 548(2A) as inserted by that Part.
(2) Subsections 548(10) and (11), as inserted by Part 24 of Schedule 1 to the amending Act, apply in relation to:
(a) small claims proceedings commenced, but not finally determined, before the commencement of that Part; and
(b) small claims proceedings commenced after the commencement of that Part.
Division 4 of Part 3‑6 of this Act, as inserted by Part 25 of Schedule 1 to the amending Act, applies in relation to employment advertised on or after the day that is one month after the commencement of Part 25 of Schedule 1 to the amending Act (whether the employment was first advertised before, on or after that day).
85
Requests for extension of period of unpaid parental leave The amendments made by Part 25B of Schedule 1 to the amending Act apply in relation to a request made under subsection 76(1) of this Act on or after the commencement of that Part.
Repeal the definition, substitute:
affected employees :
(a) for a variation of an enterprise agreement under Subdivision A of Division 7 of Part 2‑4: see subsection 207(2); and
(b) for a variation of an enterprise agreement under Subdivision AA, AB or AC of Division 7 of Part 2‑4 to add an employer to a supported bargaining agreement or a cooperative workplace agreement: means an employee employed by the employer at the time the variation is made who will be covered by the agreement if the variation is approved (or made) by the FWC; and
(c) for a variation of an enterprise agreement under Subdivision AD of Division 7 of Part 2‑4 (variation of single interest employer agreement to add employer and employees): see paragraphs 216D(1)(b) and 216DB(1)(b); and
(d) for a variation of an enterprise agreement under Subdivision AE of Division 7 of Part 2‑4 (variation of multi‑enterprise agreement to remove employer and employees): see paragraph 216E(1)(b).
Repeal the definition, substitute:
made :
(a) in relation to an enterprise agreement: see section 182; and
(b) in relation to a variation of an enterprise agreement under Subdivision A of Division 7 of Part 2‑4 (variation of enterprise agreements by employers and employees): see section 209; and
(c) in relation to a variation of an enterprise agreement under Subdivision AA of Division 7 of Part 2‑4 (variation of supported bargaining agreement to add employer and employees (with consent)): see subsection 216A(4); and
(d) in relation to a variation of an enterprise agreement under Subdivision AC of Division 7 of Part 2‑4 (variation of cooperative workplace agreement to add employer and employees): see subsection 216C(4); and
(e) in relation to a variation of an enterprise agreement under Subdivision AD of Division 7 of Part 2‑4 (variation of single interest employer agreement to add employer and employees): see subsection 216D(5); and
(f) in relation to a variation of an enterprise agreement under Subdivision AE of Division 7 of Part 2‑4 (variation of multi‑enterprise agreement to remove employer and employees): see subsection 216E(7).
663
Subdivision A of Division 7 of Part 2‑4 (at the end of the heading) Add “
: general circumstances ”.
Omit “A and B”, substitute “A, AA, AB, AC, AD, AE and B”.
Insert:
(ea) a member of the ACT Fire and Rescue Service within the meaning of the
Emergencies Act 2004 of the Australian Capital Territory;
666
Subsection 7(8) (table item 12, column headed “Qualifying period”) Omit “25”, substitute “15”.
Omit “firefighting duties made up a substantial portion”, substitute “the relevant authority is satisfied that firefighting or related duties made up a not insubstantial portion”.
Insert:
(ba) for an employee of the Australian Capital Territory specified in a declaration under subsection 5(15)—the employee is taken to have been employed as a firefighter during any period for which the employee was a member of a firefighting service; and
Omit “(disregarding the effect of any declarations under subsection 5(15))”.
Insert:
(9A) If a declaration under subsection (9B) is in force, then when determining for the purposes of paragraph 7(9)(a) whether firefighting or related duties made up a not insubstantial portion of the duties of an employee of the Australian Capital Territory, being an employee:
(a) covered by paragraph 5(11)(e) or (ea) as a result of being a volunteer member (however described) of a body referred to in either of those paragraphs; or
(b) specified in a declaration under subsection 5(15);
the relevant authority must:
(c) by writing, request the declared ACT firefighting advisory committee to give the relevant authority written advice in relation to the matter within a reasonable period specified in the request; and
(d) have regard to any such advice provided within that period.
(9B) If the Chief Minister for the Australian Capital Territory so requests in writing, the Minister may, by legislative instrument, declare that a committee or other body (however described) that is established:
(a) by or under an ACT enactment; or
(b) by a written instrument made by a Minister (including the Chief Minister) of the Australian Capital Territory;
is the declared ACT firefighting advisory committee for the purposes of subsection (9A).
(9C) A reference in subsection (9) or (9A) to the duties of an employee includes, in relation to an employee of the Australian Capital Territory specified in a declaration under subsection 5(15), a reference to the activities to which that subsection applies that were engaged in by the employee.
Item 12 of the table in subsection 7(8) of the
Safety, Rehabilitation and Compensation Act 1988 , as amended by this Part, applies in relation to a decision made under that Act (including a decision on reconsideration or review under Part VI of that Act), after the commencement of this item, in relation to primary site oesophageal cancer sustained by an employee on or after 4 July 2011.
Insert:
; and (d) comply with any requirements prescribed by the regulations in relation to the reporting of paid family and domestic violence leave.
Insert:
(3A) A pay slip is not false or misleading merely because it complies with regulations made for the purposes of paragraph (2)(d).
Insert:
34AAA | 757BA | (a) an employee; (b) an inspector | (a) the Federal Court;
(c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
Insert:
(paa) section 757BA (which deals with employer obligations in relation to pay slips relating to paid leave to which the person is entitled because of section 757B);
Repeal the subsection, substitute:
Extended paid family and domestic violence leave provisions
(4) The
extended paid family and domestic violence leave provisions are the provisions of Subdivision CA of Division 7 of Part 2‑2, and the related provisions identified in subsection (3) of this section, as they apply because of this section.
Repeal the section, substitute:
If an employer gives a person a pay slip relating to paid leave to which the person is entitled because of section 757B, the employer:
(a) must not include on the pay slip any information prescribed by regulations made for the purposes of paragraph 536(2)(c); and
(b) must comply with any requirements prescribed by regulations made for the purposes of paragraph 536(2)(d).
Note: This section is a civil remedy provision (see Part 4‑1).
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