Fair Work (State Referral and Consequential and Other Amendments) Regulations 2009 (Cth)

Case

Fair Work (State Referral and Consequential and Other Amendments) Regulations 2009

Select Legislative Instrument 2009 No. 165 as amended

made under the

Fair Work (State Referral and Consequential and Other Amendments) Act 2009

This compilation was prepared on 1 January 2010
taking into account amendments up to SLI 2009 No. 364

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

Contents

1Name of Regulations [see Note 1]                            4

2Commencement                                                 4

3Amendment of Commonwealth Acts                          4

Schedule 1Amendments of Builders Labourers’ Federation (Cancellation of Registration—Consequential Provisions) Act 1986                       6

Part 1Builders Labourers’ Federation (Cancellation of Registration —Consequential Provisions) Act 1986                                                           6

Part 2Occupational Health and Safety Act 1991                  10

Part 3Occupational Health and Safety (Safety Arrangements) Regulations 1991    11

Part 4Occupational Health and Safety (Maritime Industry) Act 1993         12

Part 5Occupational Health and Safety (Maritime Industry) Regulations 1995        12

Part 6Offshore Petroleum and Greenhouse Gas Storage Act 2006 13

694  Fair Work Australia may exercise powers under mirror provisions         13

Part 7Petroleum (Submerged Lands) (Occupational Health and Safety) Regulations 1993   14

Schedule 2Amendments of Fair Work (State Referral and Consequential and Other Amendments) Act 2009                                                        16

Part 1—Consequential amendments                                              16

Part 2—Application provisions                                                     17

Division 1A—Provision relating to the Coal Mining Industry (Long Service Leave Funding) Act 1992                                                                   17

Division 2A—Provision relating to the Maternity Leave (Commonwealth Employees) Act 1973               18

Division 4—Provisions relating to the Seafarers Rehabilitation and Compensation Act 1992                  19

Division 5—Provisions relating to the Social Security Act 1991                       19

Part 1—Consequential amendments                                              19

Part 2—Application provision                                                      20

Notes 21

  1. Name of Regulations [see Note 1]

These Regulations are the Fair Work (State Referral and Consequential and Other Amendments) Regulations 2009.

  1. Commencement

These Regulations commence on 1 July 2009.

  1. Amendment of Commonwealth Acts

(1)These Regulations are made for item 2 of Schedule 20 to the Fair Work (State Referral and Consequential and Other Amendments) Act 2009.

Note   Under item 2 of Schedule 20 to the Fair Work (State Referral and Consequential and Other Amendments) Act 2009, the Governor-General may make regulations amending Acts (other than the Fair Work Act 2009) being amendments that are consequential on, or that otherwise relate to, the enactment of the Fair Work Act 2009, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work (State Referral and Consequential and Other Amendments) Act 2009.

For the purposes of the Amendments Incorporation Act 1905, amendments made by regulations for the purposes of that item are to be treated as if they had been made by an Act.

Builders Labourers’ Federation (Cancellation of Registration—Consequential Provisions) Act 1986

(2)Part 1 of Schedule 1 amends the Builders Labourers’ Federation (Cancellation of Registration—Consequential Provisions) Act 1986.

Fair Work (State Referral and Consequential and Other Amendments) Act 2009

(3)Schedule 2 amends the Fair Work (State Referral and Consequential and Other Amendments) Act 2009.

(3)Part 2 of Schedule 1 amends the Occupational Health and Safety Act 1991.

(4)Part 3 of Schedule 1 amends the Occupational Health and Safety (Safety Arrangements) Regulations 1991.

(5)Part 4 of Schedule 1 amends the Occupational Health and Safety (Maritime Industry) Act 1993.

(6)Part 5 of Schedule 1 amends the Occupational Health and Safety (Maritime Industry) Regulations 1995.

(7)Part 6 of Schedule 1 amends the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

(8)Part 7 of Schedule 1 amends the Petroleum (Submerged Lands) (Occupational Health and Safety) Regulations 1993.

Schedule 1          Amendments of Builders Labourers’ Federation (Cancellation of Registration—Consequential Provisions) Act 1986

(subregulation 3 (2))

Part 1           Builders Labourers’ Federation (Cancellation of Registration —Consequential Provisions) Act 1986

[1]          Section 3, definition of award, paragraph (a)

after

Act

insert

, as in force immediately before the commencement of the Fair Work Act

[2]          Section 3, definition of Commission

omit

[3]          Section 3, after definition of Conciliation and Arbitration Act

insert

Fair Work Act means the Fair Work Act 2009.

Fair Work Australia, or FWA, means the body established by section 575 of the Fair Work Act.

Fair Work (Registered Organisations) Act means the Fair Work (Registered Organisations) Act 2009.

[4]          Section 3, definition of industrial dispute

omit

[5]          Section 3, definition of non-registered association, subparagraph (b) (i)

substitute

(i)that is not an organisation within the meaning of the Fair Work (Registered Organisations) Act; and

[6]          Section 3, definition of Registration and Accountability of Organisations Schedule

omit

[7] Section 3, definition of Workplace Relations Act

omit

Schedule 1B

insert

Schedule 1

[8]          Subsections 4(3) and (3A)

substitute

(3)Subject to subsection (3A), a non-registered association:

(a)is not capable of being a party to a proceeding before FWA; and

(b)is not capable of being a party to an award made by FWA.

(3A)A State association, other than the Building Construction Employees and Builders Labourers’ Federation of New South Wales, may make an objection in relation to an amalgamation under section 56 of the Fair Work (Registered Organisations) Act and regulations made under that Act.

[9]          Subsection 4(4)

omit

the Commission does not have any powers under the Workplace Relations Act or the Registration and Accountability of Organisations Schedule

insert

FWA does not have any powers under the Fair Work Act or the Fair Work (Registered Organisations) Act

[10]        Paragraph 4(4)(b)

omit

as defined by subsection 6(2) of the Workplace Relations Act

[11]        Subsection 4(5)

substitute

(5)Nothing in this section prevents FWA from exercising powers under the Fair Work Act and the Fair Work (Registered Organisations) Act in relation to an industrial dispute in so far as that industrial dispute involves members of an association of employees that is an organisation within the meaning of the Fair Work (Registered Organisations) Act who are also members of a non-registered association.

[12]        Sections 5 and 6

substitute

5  Registration

Despite anything in the Fair Work (Registered Organisations) Act, a non-registered association is not entitled to apply to be registered under that Act, and is not entitled to be registered under that Act, unless:

(a)FWA, on application by the non-registered association, has declared that it is satisfied that:

(i)if the non-registered association were registered under that Act, the non-registered association would not engage in conduct inimical to the prevention and settlement of industrial disputes by means of conciliation and arbitration; and

ii)the registration of the non-registered association under that Act would not prevent or seriously hinder the achievement of:

(A)an object of the Fair Work Act; or

(B)Parliament’s intention in enacting the Fair Work (Registered Organisations) Act; and

(b)the requirements of the Fair Work (Registered Organisations) Act, and of the regulations in force under that Act, that would, apart from this section, apply in relation to an application by the non-registered association for registration under that Act have been complied with.

6  Powers and procedure of FWA

(1)The powers of FWA under or by virtue of this Act are exercisable by a Full Bench of FWA.

Note:A Full Bench of FWA is constituted under section 618 of the Fair Work Act.

(2)The provisions of the Fair Work Act, and of the regulations in force under that Act, with respect to the procedure and powers of FWA in relation to proceedings before it under that Act apply, so far as they are capable of application, in relation to proceedings before FWA under or by virtue of this Act.

(3)On an application under paragraph 5(a), the Minister and the non-registered association may be represented by counsel or solicitor.

[13]        Subsection 7(2)

omit

Registration and Accountability of Organisations Schedule

insert

Fair Work (Registered Organisations) Act

[14]        Subsection 7(3)

omit

Registration and Accountability of Organisations Schedule

insert

Fair Work (Registered Organisations) Act

[15]        Subsection 7(3)

omit

section 36 of that Schedule

insert

section 36 of that Act

[16]        Subsection 7(4)

omit

Registration and Accountability of Organisations Schedule

insert

Fair Work (Registered Organisations) Act

Part 2           Occupational Health and Safety Act 1991

  1. Section 5, definition of reviewing authority

substitute

reviewing authority means Fair Work Australia, established under section 575 of the Fair Work Act 2009.

Part 3           Occupational Health and Safety (Safety Arrangements) Regulations 1991

  1. Schedule 1, Form 1, note 7

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 2, note 4

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 3, note 3

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 4, note 5

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 5, note 3

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

Part 4           Occupational Health and Safety (Maritime Industry) Act 1993

  1. Section 4, definition of reviewing authority

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

Part 5           Occupational Health and Safety (Maritime Industry) Regulations 1995

  1. Schedule 1, Form 1, note 6

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 2, note 2

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 3, note 3

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 4, notes 4 and 5

omit each mention of

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 5, note 4

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

Part 6           Offshore Petroleum and Greenhouse Gas Storage Act 2006

  1. Section 694

Substitute

694Fair Work Australia may exercise powers under mirror provisions

(1)If the laws of a State or of the Northern Territory confer appropriate powers and functions on Fair Work Australia to do so, Fair Work Australia may deal with appeals against decisions of an OHS inspector under laws or regulations of that State or Territory that substantially correspond to listed OHS laws in respect of which a similar decision can be the subject of an appeal under clause 81 of Schedule 3.

(2)If the laws of a State or of the Northern Territory confer appropriate powers and functions on Fair Work Australia to do so, Fair Work Australia may deal with the resolution of matters under a law of that State or Territory that substantially corresponds to clause 23 of Schedule 3.

  1. Schedule 3, clause 3, definition of reviewing authority

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

Part 7           Petroleum (Submerged Lands) (Occupational Health and Safety) Regulations 1993

  1. Schedule 1, Form 1, note 5

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 2, note 4

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 3, note 3

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 4, note 3

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

  1. Schedule 1, Form 5, note 5

omit

the Australian Industrial Relations Commission

insert

Fair Work Australia

Schedule 2          Amendments of Fair Work (State Referral and Consequential and Other Amendments) Act 2009

(subregulation 3 (3))

  1. Schedule 5, after item 87

insert

87AApplication of Sex Discrimination Act 1984—item 54

The Sex Discrimination Act 1984 is prescribed for the purposes of section 116 of the Workplace Relations Act 1996, to the extent that that section continues to operate in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, until the later of:

(a)31 December 2009; or

(b)the date (if any) on which the Australian Industrial Relations Commission ceases to exist in accordance with a determination by the Minister under subitem 7(3) of Schedule 18 to the T&C Act.

  1. Schedule 7, after the heading

insert

Part 1—Consequential amendments

  1. Schedule 7, after item 5

insert

Part 2—Application provisions

6Application of Naval Defence Act 1910—item 4

Subsection 42A(7) of the Naval Defence Act 1910 applies as if a reference in that subsection to the Fair Work Act 2009 includes a reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

7Application of Naval Defence Act 1910—item 5

Subsection 42D(3) of the Naval Defence Act 1910 applies as if a reference in that subsection to the National Employment Standards includes a reference to the Australian Fair Pay and Conditions Standard, to the extent that the Australian Fair Pay and Conditions Standard continues to operate in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

  1. Schedule 8, item 63, substituted paragraph 64 (1) (d)

omit

has not been not approved

insert

has not been approved

  1. Schedule 8, Part 2, after Division 1

insert

Division 1A—Provision relating to the Coal Mining Industry (Long Service Leave Funding) Act 1992

158AApplication of Coal Mining Industry (Long Service Leave Funding) Act 1992—items 86 and 87

  1. The definition of eligible employee in subsection 4(1) of the Coal Mining Industry (Long Service Leave Funding) Act 1992 applies as if a reference in that definition to the National Employment Standards includes a reference to the Australian Fair Pay and Conditions Standard, to the extent that the Australian Fair Pay and Conditions Standard continues to operate in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

  1. The definition of industrial authority in subsection 4(1) of the Coal Mining Industry (Long Service Leave Funding) Act 1992 applies as if a reference in that definition to Fair Work Australia includes a reference to:

(a)the Australian Industrial Relations Commission; and

(b)the Workplace Authority Director; and

(c)the Employment Advocate;

to the extent that they continue to operate in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

  1. Schedule 8, Part 2, after Division 2

insert

Division 2A—Provision relating to the Maternity Leave (Commonwealth Employees) Act 1973

159AApplication of Maternity Leave (Commonwealth Employees) Act 1973—item 101

Section 8 of the Maternity Leave (Commonwealth Employees) Act 1973 applies as if a reference in that section to section 84 of the Fair Work Act 2009 includes a reference to sections 280 and 281 of the Workplace Relations Act 1996, to the extent that those sections continue to operate in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

  1. Schedule 8, Part 2, after Division 3

insert

Division 4—Provisions relating to the Seafarers Rehabilitation and Compensation Act 1992

162Application of Seafarers Rehabilitation and Compensation Act 1992—items 117, 119, 120 and 121

The following provisions of the Seafarers Rehabilitation and Compensation Act 1992 apply as if a reference in those provisions to the National Employment Standards includes a reference to the Australian Fair Pay and Conditions Standard, to the extent that the Australian Fair Pay and Conditions Standard continues to operate in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009:

(a)subsection 13(2);

(b)subsection 13(5);

(c)paragraph 13(6)(b);

(d)paragraph 31(14)(a).

Division 5—Provisions relating to the Social Security Act 1991

163Application of Social Security Act 1991—item 143

Paragraph 1061PB(2)(a) of the Social Security Act 1991 applies as if a reference in that paragraph to the National Employment Standards includes a reference to the Australian Fair Pay and Conditions Standard, to the extent that the Australian Fair Pay and Conditions Standard continues to operate in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

  1. Schedule 19, after the heading

insert

Part 1—Consequential amendments

  1. Schedule 19, after item 8

insert

Part 2—Application provision

9Application of items 1 to 4

The following provisions of the Military Rehabilitation and Compensation Act 2004:

(a)note 1 to subsection 89(3);

(b)note 1 to subsection 132(2);

(c)paragraph 178(a);

(d)section 179;

apply as if a reference in those provisions to the national minimum wage order includes a reference to:

(e)the standard federal minimum wage, to the extent that the standard federal minimum wage continues to operate as a transitional standard federal minimum wage in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and

(f)special federal minimum wages, to the extent that special federal minimum wages continue to operate as a transitional special federal minimum wage in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and

(g)the transitional national minimum wage order, within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Notes to the Fair Work (State Referral and Consequential and Other Amendments) Regulations 2009

Note 1

The Fair Work (State Referral and Consequential and Other Amendments) Regulations 2009 (in force under the Fair Work (State Referral and Consequential and Other Amendments) Act 2009) as shown in this compilation comprise Select Legislative Instrument 2009 No. 165 amended as indicated in the Tables below.

Table of Instruments

Year and
Number

Date of FRLI registration

Date of
commencement

Application, saving or
transitional provisions

2009 No. 165 30 June 2009 (see F2009L02568) 1 July 2009
2009 No. 337 27 Nov 2009 (see F2009L04339) Rr. 1–3 and Schedule 1:
28 Nov 2009
Schedule 2: 1 Jan 2010 		—
2009 No. 364 16 Dec 2009 (see F2009L04520) Rr. 1–3 and Schedule 1:
1 July 2009 		—

Table of Amendments

ad. = added or inserted   am. = amended   rep. = repealed   rs. = repealed and substituted

Provision affected

How affected

Heading to r. 3........................... rs. 2009 Nos. 337 and 364
R. 3.............................................. am. 2009 Nos. 337 and 364
Schedule 1
Heading to Schedule 1............. rs. 2009 No. 364
Part 1
Heading to Part 1....................... ad. 2009 No. 337
Part 2
Part 2........................................... ad. 2009 No. 337
Part 3
Part 3........................................... ad. 2009 No. 337
Part 4
Part 4........................................... ad. 2009 No. 337
Part 5
Part 5........................................... ad. 2009 No. 337
Part 6
Part 6........................................... ad. 2009 No. 337
Part 7
Part 7........................................... ad. 2009 No. 337
Schedule 2
Schedule 2.................................. ad. 2009 No. 364
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