Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth)
Contents
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The Parliament of Australia enacts:
This Act may be cited as the
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .
(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 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 20 March 2008 |
Schedules 1 to 7 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 28 March 2008 ( |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Repeal the section, substitute:
(1) An employer may make an agreement (an
individual transitional employment agreement orITEA ) in writing with a person whose employment will be subject to the agreement.(2) The agreement is not an ITEA unless:
(a) as at 1 December 2007 the employer employed at least one person whose employment with that employer was regulated by an agreement of a kind specified in subsection (3); and
(b) the person whose employment is to be subject to the ITEA:
(i) did not commence that employment more than 14 days before the day on which the ITEA was made, and had not previously been employed by the employer; or
(ia) did not commence that employment more than 14 days before the day on which the ITEA was made, and had previously been employed by the employer (not being employment that had ceased for the reason that, or for reasons that included the reason that, the employer would re‑employ the person under an ITEA); or
(ii) is in an employment relationship with the employer and that employment relationship is regulated by an ITEA or an agreement of a kind specified in subsection (3).
Note: Subsection 583(1A) affects the operation of paragraph (2)(b) in the case of a transmission of business.
(3) The kinds of agreements for the purposes of paragraph (2)(a) and subparagraph (2)(b)(ii) are the following:
(a) an AWA within the meaning of Schedule 7A;
(b) a pre‑reform AWA;
(c) a preserved individual State agreement within the meaning of Schedule 8;
(d) an employment agreement within the meaning of section 887.
(4) The fact that a period of work performed by a casual employee has ended does not of itself bring an end to the employee’s employment relationship with the employer for the purposes of subparagraph (2)(b)(ii).
(5) An ITEA may be made before the commencement of the employment.
Repeal the Division, substitute:
(1) In this Division:
designated award , for an employee or employees whose employment is or may be subject to a workplace agreement, means an award determined by the Workplace Authority Director under section 346H, and includes an award taken to be so designated in relation to the employee or employees under section 346G (unless a different award has been designated in relation to the employee or employees under section 346H).
industrial instrument means any of the following:
(a) a pre‑reform AWA;
(b) a pre‑reform certified agreement (within the meaning of Schedule 7);
(c) a workplace determination;
(d) a section 170MX award (within the meaning of Schedule 7);
(e) an old IR agreement (within the meaning of Schedule 7);
(f) a preserved State agreement.
reference instrument has the meaning given by subsection 346E(1).
relevant collective instrument has the meaning given by subsection 346E(2).
relevant general instrument has the meaning given by subsection 346E(4).
(2) Unless the contrary intention appears, this Division (other than sections 346K and 346L and Subdivision D) applies to a workplace agreement as varied under Division 8 in a corresponding way to the way in which it applies to a workplace agreement.
(1) The obligations imposed on the Workplace Authority Director by this Division in relation to a workplace agreement apply irrespective of whether the workplace agreement is yet to operate, is in operation or has ceased to operate.
(2) For the purposes of applying this Division to a workplace agreement that has ceased to operate:
(a) a reference to an employee whose employment is subject to the workplace agreement is taken to include a reference to an employee whose employment was at any time subject to the workplace agreement; and
(b) a reference to a person or organisation who is bound by the workplace agreement is taken to include a reference to a person or organisation who was at any time bound by the workplace agreement.
(3) For the purposes of applying this Division to a workplace agreement, a reference to an employee whose employment is subject to the workplace agreement is, so far as the context permits, taken to include a reference to a person whose employment may at a future time be subject to the workplace agreement.
(1) An ITEA passes the no‑disadvantage test if the Workplace Authority Director is satisfied that the ITEA does not result, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employee whose employment is subject to the agreement under any reference instrument relating to the employee.
(2) A collective agreement passes the no‑disadvantage test if the Workplace Authority Director is satisfied that the agreement does not result, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees whose employment is subject to the agreement under any reference instrument relating to one or more of the employees.
(2A) For the purposes of subsection (1) or (2):
(a) a law of a State or Territory that:
(i) relates to long service leave; and
(ii) immediately before the agreement was lodged, applied to an employee referred to in that subsection, or would have applied to such an employee if he or she had been employed by the employer at that time;
is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and
(b) if, apart from this subsection, the only reference instrument relating to the employee is a designated award for the employee—the designated award is to be disregarded to the extent (if any) that it provides for long service leave.
(3) An employee collective agreement or a union collective agreement is taken to pass the no‑disadvantage test if:
(a) it does not meet the requirements of subsection (2); but
(b) the Workplace Authority Director is satisfied that, because of exceptional circumstances, approval of the agreement would not be contrary to the public interest.
(4) An example of a case where the Workplace Authority Director may be satisfied that the requirements in paragraph (3)(b) are met is where making the agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, the employer’s business.
(5) If the Workplace Authority Director decides under subsection (3) that an agreement is taken to pass the no‑disadvantage test, the Workplace Authority Director must publish his or her reasons for the decision on the Workplace Authority’s website.
(6) An ITEA is taken to pass the no‑disadvantage test if there is no reference instrument in relation to the employee whose employment is subject to the agreement.
(7) A collective agreement is taken to pass the no‑disadvantage test if there is no reference instrument in relation to any of the employees whose employment is subject to the agreement.
(8) To avoid doubt, if there is a reference instrument in relation to one or more, but not all, of the employees whose employment is subject to a collective agreement:
(a) in a case where the agreement passes the no‑disadvantage test under subsection (2)—it passes the test in relation to all employees whose employment is subject to the agreement; or
(b) in a case where the agreement does not pass the no‑disadvantage test under subsection (2)—it does not pass the test in relation to any employees whose employment is subject to the agreement.
Note 1: In addition to the no‑disadvantage test, the Australian Fair Pay and Conditions Standard prevails over a workplace agreement to the extent to which the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee or employees—see section 172.
Note 2: This section applies to a workplace agreement as varied under Division 8 in a corresponding way to the way in which it applies to a workplace agreement—see subsection 346B(2).
Note 3: See subsection 346J(1) for how the Workplace Authority Director makes decisions under this section.
(1) A
reference instrument is:
(a) in relation to an employee whose employment is subject to an ITEA:
(i) any relevant collective instrument; or
(ii) any relevant collective instrument and any relevant general instrument, to the extent that the instruments operate concurrently; or
(iii) if there is no relevant collective instrument—any relevant general instrument; or
(iv) if there is no relevant collective instrument or relevant general instrument—any designated award;
for the employee; or
(b) in relation to employees whose employment is subject to a collective agreement:
(i) any relevant general instrument; or
(ii) if there is no relevant general instrument—any designated award;
for one or more of the employees.
(2) A
relevant collective instrument , for an employee whose employment is subject to a workplace agreement, is an instrument of a kind specified in subsection (3):
(a) that regulates, or would but for an ITEA, pre‑reform AWA or AWA (within the meaning of Schedule 7A) having come into operation regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the workplace agreement; and
(b) that was binding, or would but for an ITEA, pre‑reform AWA or AWA (within the meaning of Schedule 7A) having come into operation have been binding, on the employee’s employer immediately before the day on which the workplace agreement was lodged.
(3) The kinds of instruments for the purposes of subsection (2) are any of the following:
(a) a collective agreement;
(b) a pre‑reform certified agreement (within the meaning of Schedule 7);
(c) an old IR agreement (within the meaning of Schedule 7);
(d) a preserved collective State agreement (within the meaning of Schedule 8);
(e) a workplace determination;
(f) a section 170MX award (within the meaning of Schedule 7).
(4) A
relevant general instrument , for an employee whose employment is subject to a workplace agreement, is an instrument of a kind specified in subsection (5):
(a) that regulates, or would but for a workplace agreement or another industrial instrument having come into operation regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the workplace agreement; and
(b) that was binding, or would but for a workplace agreement or another industrial instrument having come into operation have been binding, on the employee’s employer immediately before the day on which the workplace agreement was lodged.
(5) The kinds of instruments for the purposes of subsection (4) are any of the following:
(a) an award;
(b) a common rule in operation under Schedule 6;
(c) a transitional Victorian reference award (within the meaning of Part 7 of Schedule 6);
(d) a transitional award (within the meaning of Schedule 6), other than a Victorian reference award (within the meaning of that Schedule), to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria;
(e) a notional agreement preserving State awards (within the meaning of Schedule 8).
(1) In deciding whether a workplace agreement passes, or does not pass, the no‑disadvantage test, the Workplace Authority Director must consider it as in existence or operation (as the case may be) immediately after lodgment.
(2) In deciding whether a workplace agreement as varied passes, or does not pass, the no‑disadvantage test, the Workplace Authority Director must consider it as in existence or operation (as the case may be) immediately after the variation was lodged.
(3) If a variation to a workplace agreement is lodged before the Workplace Authority Director has decided whether the agreement passes the no‑disadvantage test under section 346D:
(a) the Workplace Authority Director must consider the workplace agreement and the workplace agreement as varied as part of the same process; and
(b) to avoid doubt, the Workplace Authority Director must consider, and make a separate decision in respect of, both the workplace agreement and the workplace agreement as varied.
(4) For the purposes of applying subsection 346D(1) or (2), assume that the employment relationship of the employee or employees referred to in either of those subsections was in existence immediately before the day on which the ITEA or collective agreement was lodged.
(1) The Workplace Authority Director may, on application by an employer, determine that an award is a designated award for an employee or class of employees of the employer.
(2) The Workplace Authority Director may make a determination under this section only if the Workplace Authority Director is satisfied that:
(a) the employee or employees are or may be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:
(i) are usually regulated by an award; or
(ii) would, but for a workplace agreement or another industrial instrument having come into operation, usually be regulated by an award; and
(b) unless there is a designated award for the employee or employees, there would be no reference instrument relating to the employee or employees; and
(c) there is an award that satisfies the requirements specified in subsection (4).
(4) An award or awards determined by the Workplace Authority Director under this section:
(a) must be an award or awards regulating, or that would, but for a workplace agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed or to be performed by the employee or employees; and
(b) must, in the opinion of the Workplace Authority Director, be an award or awards that would be appropriate for the purpose referred to in paragraph 346H(3)(b) if a workplace agreement or a variation of a workplace agreement were lodged; and
(c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).
(5) An award determined under this section in relation to an employee or employees is taken to be the designated award determined by the Workplace Authority Director under section 346H in relation to the employee or employees if the employer later lodges a workplace agreement, or a variation of a workplace agreement, in relation to the employee or the employees.
(6) Despite subsection (5), the Workplace Authority Director may determine under section 346H that another award is a designated award in relation to the employee, or in relation to some or all of the employees, if:
(a) the Workplace Authority Director becomes aware of information that was not available to the Workplace Authority Director at the time of the determination under subsection (1); and
(b) the Workplace Authority Director is satisfied that, had that information been available to the Workplace Authority Director at that time, the Workplace Authority Director would have determined under subsection (1) the other award to be the designated award.
(7) The Workplace Authority Director may determine different awards under subsection (1) in relation to different employees.
(8) In this section, a reference to an employee or employees of an employer includes a reference to a person or persons who may become an employee or employees of the employer.
(9) A determination made under this section is not a legislative instrument.
(1) This section applies to a workplace agreement if:
(a) in the case of an ITEA—there is no relevant collective instrument or no relevant general instrument in relation to the employee whose employment is subject to the ITEA; or
(b) in the case of a collective agreement—there is no relevant general instrument in relation to an employee or class of employees whose employment is subject to the collective agreement; or
(c) a variation of the workplace agreement is lodged and:
(i) if the workplace agreement is an ITEA—there is no relevant collective instrument or no relevant general instrument in relation to the employee whose employment is subject to the ITEA as varied; or
(ii) if the workplace agreement is a collective agreement—there is no relevant general instrument in relation to an employee or class of employees whose employment is subject to the collective agreement as varied.
(2) The Workplace Authority Director must determine that an award is a designated award for the employee or employees referred to in subsection (1), if the Workplace Authority Director is satisfied that:
(a) on the date of lodgment of the agreement or variation (as the case requires), the employee or employees are or would be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:
(i) are usually regulated by an award; or
(ii) would, but for a workplace agreement or another industrial instrument having come into operation, usually be regulated by an award; and
(b) there is an award that satisfies the requirements specified in subsection (3).
(3) An award or awards determined by the Workplace Authority Director under this section:
(a) must be an award or awards regulating, or that would, but for a workplace agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed by the employee or employees under the workplace agreement concerned; and
(b) must, in the opinion of the Workplace Authority Director, be appropriate for the purpose of deciding whether a workplace agreement, or a workplace agreement as varied, passes the no‑disadvantage test; and
(c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).
(4) The Workplace Authority Director may determine different awards under subsection (2) in relation to different employees.
(5) A determination made under this section is not a legislative instrument.
For the purposes of paragraphs 346G(2)(a) and 346H(2)(a), an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by an employee are usually regulated by an award is taken to include an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee:
(a) were, immediately before the reform commencement, usually regulated by a State award, or would, but for an industrial instrument or a State employment agreement having come into operation, usually have been so regulated immediately before the reform commencement; or
(b) are usually regulated by any of the following instruments:
(i) a transitional Victorian reference award (within the meaning of Part 7 of Schedule 6);
(ii) a common rule in operation under Schedule 6;
(iii) a transitional award (within the meaning of Schedule 6) other than a Victorian reference award (within the meaning of that Schedule), to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria;
or would, but for a workplace agreement or an industrial instrument having come into operation, usually be so regulated.
(1) In deciding under section 346D, 346Q or 346Z whether a workplace agreement, or a workplace agreement as varied, passes, or does not pass, the no‑disadvantage test, the Workplace Authority Director:
(a) must have regard to the work obligations of the employee or employees under the workplace agreement; and
(b) may inform himself or herself in any way he or she considers appropriate including (but not limited to) contacting any of the following:
(i) the employer;
(ii) the employee, or some or all of the employees, whose employment is subject to the workplace agreement;
(iii) a bargaining agent in relation to the agreement;
(iv) in the case of a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.
(2) In deciding whether to determine that an award is a designated award in relation to an employee or employees of an employer, the Workplace Authority Director may inform himself or herself in any way he or she considers appropriate including (but not limited to) contacting any of the following:
(a) the employer;
(b) the employee or employees;
(c) if the determination would be made under section 346H—a bargaining agent in relation to the agreement;
(d) if the determination would be made under section 346H in relation to a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.
(1) This Subdivision applies to a workplace agreement that is:
(a) an ITEA to which subparagraph 326(2)(b)(ii) applies; or
(b) an employee collective agreement; or
(c) a union collective agreement; or
(d) a multiple‑business agreement that would be an employee collective agreement or a union collective agreement but for subsection 331(1).
(2) This Subdivision also applies to any variation of a workplace agreement under Division 8.
(1) If a workplace agreement to which this Subdivision applies is lodged with the Workplace Authority Director under Division 5, the Workplace Authority Director must decide under section 346D whether the agreement passes the no‑disadvantage test.
(2) If a variation of a workplace agreement under Division 8 is lodged with the Workplace Authority Director under that Division, the Workplace Authority Director must decide under section 346D whether the agreement as varied passes the no‑disadvantage test.
(1) If the Workplace Authority Director decides under section 346D that the agreement passes the no‑disadvantage test, then:
(a) the Workplace Authority Director must notify the following of the decision:
(i) the employer in relation to the agreement;
(ii) if the agreement is an ITEA—the employee whose employment is subject to the ITEA;
(iii) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1)—the organisation or organisations bound by the agreement; and
(b) the notice must also state that the agreement comes into operation on the seventh day after the date of issue specified in the notice.
(2) If the Workplace Authority Director decides under section 346D that the agreement does not pass the no‑disadvantage test, then:
(a) the Workplace Authority Director must notify the following of the decision:
(i) the employer in relation to the agreement;
(ii) if the agreement is an ITEA—the employee whose employment is subject to the ITEA;
(iii) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1)—the organisation or organisations bound by the agreement; and
(b) the notice must also:
(i) state that the agreement has not come into operation because it does not pass the no‑disadvantage test; and
(ii) contain advice as to how the agreement could be varied to pass the no‑disadvantage test.
(3) If subsection 346F(3) requires the Workplace Authority Director to consider, and make a separate decision in respect of, both a workplace agreement and the workplace agreement as varied, the notice under this section must deal with both agreements.
(4) A notice under this section:
(a) must be in writing; and
(b) must specify the date of issue of the notice.
Note: Section 346ZH requires the employer to inform the employees concerned of the contents of the notice in relation to a collective agreement.
(1) If the Workplace Authority Director decides under section 346D that the agreement does not pass the no‑disadvantage test, the employer who is bound by the agreement may lodge a variation of the agreement with the Workplace Authority Director.
(2) For the purposes of subsection (1), Division 8 does not apply to the variation of an agreement, except for sections 367, 368, 368A, 372, 373 and 374, paragraph 377(1)(b) and section 380A.
(1) An employer lodges a variation with the Workplace Authority Director under section 346N if:
(a) the employer lodges a declaration under subsection (2); and
(b) a copy of the variation is annexed to the declaration.
(2) An employer lodges a declaration with the Workplace Authority Director if:
(a) the employer gives it to the Workplace Authority Director; and
(b) it meets the form requirements mentioned in subsection (3).
Note: Sections 137.1 and 137.2 of the
Criminal Code create offences for providing false or misleading information or documents.(3) The Workplace Authority Director may, by notice published in the
Gazette , set out requirements for the form of a declaration for the purposes of paragraph (2)(b).(4) A declaration is given to the Workplace Authority Director for the purposes of subsection (2) only if the declaration is actually received by the Workplace Authority Director.
Note: This means that section 29 of the
Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) and section 160 of theEvidence Act 1995 do not apply to lodgment of a declaration.
(1) If an employer lodges a variation of a workplace agreement under section 346N, the Workplace Authority Director must decide under this section whether the workplace agreement as varied passes the no‑disadvantage test set out in section 346D.
(2) If the Workplace Authority Director decides under subsection (1) that a workplace agreement as varied passes the no‑disadvantage test, or that it does not pass the no‑disadvantage test, the Workplace Authority Director must notify the following of the decision:
(a) the employer in relation to the workplace agreement;
(b) if the workplace agreement is an ITEA—the employee whose employment is subject to the ITEA;
(c) if the agreement is a union collective agreement, or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1)—the organisation or organisations bound by the agreement.
(3) The notice must be in writing and must specify:
(a) the date of issue of the notice; and
(b) if the workplace agreement as varied passes the no‑disadvantage test—that the agreement as varied will come into operation on the seventh day after the date of issue specified in the notice; and
(c) if the workplace agreement as varied does not pass the no‑disadvantage test—that the agreement has not come into operation because it does not pass the no‑disadvantage test.
Note 1: Section 346ZH requires the employer to inform the employees concerned of the contents of the notice under this section in relation to a collective agreement.
Note 2: See subsection 346J(1) for how the Workplace Authority Director makes decisions under this section.
If:
(a) an employer lodges a variation of a workplace agreement under section 346N; and
(b) the Workplace Authority Director decides under subsection 346Q(1) that the agreement as varied passes the no‑disadvantage test set out in section 346D;
the agreement as varied comes into operation on the seventh day after the date of issue specified in the notice under section 346Q that advises the agreement as varied passes the no‑disadvantage test.
This Subdivision applies to a workplace agreement that is:
(a) an ITEA to which subparagraph 326(2)(b)(i) or (ia) applies; or
(b) a union greenfields agreement; or
(c) an employer greenfields agreement; or
(d) a multiple‑business agreement that would be a union greenfields agreement or an employer greenfields agreement but for subsection 331(1).
Note: Subdivision C, and not this Subdivision, will apply to a variation of any of these workplace agreements under Division 8.
If a workplace agreement to which this Subdivision applies is lodged with the Workplace Authority Director under Division 5, the Workplace Authority Director must decide under section 346D whether the agreement passes the no‑disadvantage test.
(1) If the Workplace Authority Director decides under section 346D that the agreement passes the no‑disadvantage test the Workplace Authority Director must notify the following of the decision:
(a) the employer in relation to the agreement;
(b) if the agreement is an ITEA—the employee whose employment is subject to the ITEA;
(c) if the agreement is a union greenfields agreement or a multiple‑business agreement that would be a union greenfields agreement but for subsection 331(1)—the organisation or organisations bound by the agreement.
(2) If the Workplace Authority Director decides under section 346D that the agreement does not pass the no‑disadvantage test, then:
(a) the Workplace Authority Director must notify the following of the decision:
(i) the employer in relation to the agreement;
(ii) if the agreement is an ITEA—the employee whose employment is subject to the ITEA;
(iii) if the agreement is a union greenfields agreement or a multiple‑business agreement that would be a union greenfields agreement but for subsection 331(1)—the organisation or organisations bound by the agreement; and
(b) the notice must also contain advice as to how the agreement could be varied to pass the no‑disadvantage test.
(3) If subsection 346F(3) requires the Workplace Authority Director to consider, and make a separate decision in respect of, both a workplace agreement and the workplace agreement as varied, the notice under this section must deal with both agreements.
(4) A notice under this section:
(a) must be in writing; and
(b) must specify the date of issue of the notice.
Note: Section 346ZH requires the employer to inform the employees concerned of the contents of the notice in relation to a collective agreement.
If:
(a) the Workplace Authority Director decides under section 346D that the agreement does not pass the no‑disadvantage test; and
(b) the agreement is not in operation in relation to any employee immediately before the date of the decision;
the employee or employees whose employment was at any time subject to the agreement are, on and from the seventh day after the date of issue specified in the notice under section 346U in relation to the agreement, entitled to any compensation payable to the employee or employees under section 346ZG.
(1) This section applies if:
(a) the Workplace Authority Director decides under section 346D that the agreement does not pass the no‑disadvantage test; and
(b) the agreement is in operation immediately before the date of the decision.
(2) The employer who is bound by the agreement may:
(a) lodge a variation of the agreement with the Workplace Authority Director; or
(b) in the case of an employer greenfields agreement—lodge a variation of the agreement by giving to the Workplace Authority Director a written undertaking in relation to the agreement.
(3) If the employer does not take the action referred to in subsection (2) within the relevant period in relation to the agreement, then at the end of that period:
(a) the workplace agreement ceases to operate; and
(b) the employee or employees whose employment was at any time subject to the agreement are, after the end of the relevant period in relation to the agreement, entitled to any compensation payable to the employee or employees under section 346ZG.
(4) Despite subsection (3), if:
(a) because of subsection 346F(3), the Workplace Authority Director considered, and made a separate decision in respect of, both the workplace agreement and the workplace agreement as varied; and
(b) the agreement did not pass the no‑disadvantage test, but the agreement as varied passed the no‑disadvantage test;
the agreement as varied continues in operation, and the employee or employees whose employment was at any time subject to the agreement, whether before or after the variation was lodged, are, after the end of the relevant period in relation to the agreement, entitled to any compensation payable to the employee or employees under section 346ZG.
(5) For the purposes of paragraph (2)(a), Division 8 does not apply to the variation of an agreement, except for sections 367, 368, 368A, 372, 373 and 374, paragraph 377(1)(b) and section 380A.
(6) For the purposes of paragraph 2(b), Division 8 does not apply to an undertaking given to the Workplace Authority Director in relation to an employer greenfields agreement.
(7) In this section:
relevant period , in relation to a workplace agreement, means:
(a) the period of 30 days beginning on the seventh day after the date of issue specified in the notice under section 346U in relation to the workplace agreement; or
(b) if a longer period is prescribed by the regulations for the purposes of this paragraph—that period; or
(c) if the period referred to in paragraph (a) or (b) is extended under subsection (8) in relation to the workplace agreement—the period as extended.
(8) The Workplace Authority Director may extend the period referred to in paragraph (7)(a) or (b), as the case requires, in relation to a particular workplace agreement in circumstances prescribed by the regulations.
(1) An employer lodges a variation with, or gives an undertaking to, the Workplace Authority Director under section 346W if:
(a) the employer lodges a declaration under subsection (2); and
(b) a copy of the variation or undertaking is annexed to the declaration.
(2) An employer lodges a declaration with the Workplace Authority Director if:
(a) the employer gives it to the Workplace Authority Director; and
(b) it meets the form requirements mentioned in subsection (3).
Note: Sections 137.1 and 137.2 of the
Criminal Code create offences for providing false or misleading information or documents.(3) The Workplace Authority Director may, by notice published in the
Gazette , set out requirements for the form of a declaration for the purposes of paragraph (2)(b). The requirements may be different for variations and undertakings.(4) A declaration is given to the Workplace Authority Director for the purposes of subsection (2) only if the declaration is actually received by the Workplace Authority Director.
Note: This means that section 29 of the
Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) and section 160 of theEvidence Act 1995 do not apply to lodgment of a declaration.
(1) A variation of an agreement under paragraph 346W(2)(a) comes into operation when the variation is lodged with the Workplace Authority Director under that subsection in accordance with section 346X.
(2) A variation of an employer greenfields agreement by way of an undertaking under paragraph 346W(2)(b) comes into operation when the undertaking is given to the Workplace Authority Director under that paragraph in accordance with section 346X.
(3) For the purposes of this Act, an undertaking given by an employer to the Workplace Authority Director under paragraph 346W(2)(b) in relation to an employer greenfields agreement is taken to be a variation of the agreement lodged by the employer under section 346W.
(1) If an employer lodges a variation of a workplace agreement under section 346W, the Workplace Authority Director must decide under this section whether the workplace agreement as varied passes the no‑disadvantage test set out in section 346D.
Note: See subsection 346J(1) for how the Workplace Authority Director makes decisions under this section.
(2) If the Workplace Authority Director decides under subsection (1) that a workplace agreement as varied passes the no‑disadvantage test, or that it does not pass the no‑disadvantage test, the Workplace Authority Director must notify the following of the decision:
(a) the employer in relation to the workplace agreement;
(b) if the workplace agreement is an ITEA—the employee whose employment is subject to the ITEA;
(c) if the agreement is a union greenfields agreement, or a multiple‑business agreement that would be a union greenfields agreement but for subsection 331(1)—the organisation or organisations bound by the agreement.
(3) The notice must be in writing and must specify:
(a) the date of issue of the notice; and
(b) if the workplace agreement as varied passes the no‑disadvantage test:
(i) that the workplace agreement continues in operation; and
(ii) that the workplace agreement was varied by way of a variation or a written undertaking, as the case may be; and
(iii) that the employee or employees whose employment is, or was at any time, subject to the workplace agreement are, on and from the seventh day after the date of issue specified in the notice, entitled to any compensation payable to the employee or employees under section 346ZG; and
(c) if the workplace agreement as varied does not pass the no‑disadvantage test:
(i) that, if the workplace agreement was in operation immediately before the seventh day after the date of issue specified in the notice—the agreement ceases to operate on that day; and
(ii) that the employee or employees whose employment was at any time subject to the workplace agreement are, on and from that day, entitled to any compensation payable to the employee or employees under section 346ZG.
Note: Section 346ZH requires the employer to inform the employees concerned of the contents of the notice under this section in relation to a collective agreement.
(1) If the Workplace Authority Director decides under subsection 346Z(1) that a workplace agreement as varied passes, or does not pass, the no‑disadvantage test:
(a) if the workplace agreement passes the no‑disadvantage test—it continues in operation; and
(b) if the workplace agreement does not pass the no‑disadvantage test—it ceases to operate on and from the seventh day after the date of issue specified in the notice under section 346Z in respect of the workplace agreement; and
(c) the employee or employees whose employment is, or was at any time, subject to the agreement are, on and from that day, entitled to any compensation payable to the employee or employees under section 346ZG.
Note: Even though the workplace agreement has been varied so that it passes the no‑disadvantage test, compensation may be payable in respect of the period when the agreement did not pass the no‑disadvantage test.
(2) Paragraphs (1)(a) and (b) do not apply if the workplace agreement is not in operation in relation to any employee immediately before the date of the decision.
(1) This section applies if, on a particular day (the
cessation day ), a workplace agreement (theoriginal agreement ) ceases to operate under section 346W or 346ZA because the original agreement does not pass the no‑disadvantage test.(2) The employer and the employee or employees who were bound by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be bound by:
(a) the instrument or instruments that, but for the original agreement having come into operation, would have bound the employer and the employee or employees on and from the cessation day; or
(b) if there is no instrument of a kind referred to in paragraph (a) in relation to the employer and one or more of the employees—the designated award in relation to that employee or those employees.
Note 1: A workplace agreement binds all persons whose employment is, at any time when the agreement is in operation, subject to the agreement (see paragraph 351(b)). A collective agreement may therefore bind an employer in relation to existing and future employees.
Note 2: See section 601D for the employment arrangements that would apply in a transmission of business context.
(3) If the original agreement is a workplace agreement as varied under Division 8, the workplace agreement as in force before the variation was lodged is, despite section 346ZE, capable of being an instrument described in paragraph (2)(a).
(4) An instrument that has ceased to operate in relation to an employee or employees is capable of being an instrument described in paragraph (2)(a) only if the reason it ceased to operate was because the original agreement came into operation in relation to the employee or employees.
(5) In this section:
instrument means any of the following:
(a) a workplace agreement;
(b) an award;
(c) a workplace determination;
(d) an employment agreement within the meaning of section 887;
(e) a pre‑reform certified agreement (within the meaning of Schedule 7);
(f) a common rule continued in operation under Schedule 6;
(g) a transitional Victorian reference award (within the meaning of Part 7 of Schedule 6);
(h) a transitional award (within the meaning of Schedule 6) other than a Victorian reference award (within the meaning of that Schedule) to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria;
(i) a section 170MX award (within the meaning of Schedule 7);
(j) an old IR agreement (within the meaning of Schedule 7);
(k) a preserved State agreement (within the meaning of Schedule 8);
(l) a notional agreement preserving State awards (within the meaning of Schedule 8).
If, because of the operation of section 346ZB, an employer and an employee or employees, as the case requires, are taken to be bound by an instrument, the instrument is taken, despite any other provision of this Act, to operate again, or to have effect again, as the case requires, in relation to the employer and the employee or employees, on and from the cessation day.
Note 1: The following provisions operate in a similar way for other instruments:
(a) subclause 3(5A) of Schedule 7 (pre‑reform certified agreements);
(b) subclause 25(4) of Schedule 7 (section 170MX awards);
(c) subclause 28(5) of Schedule 7 (old IR agreements).
Note 2: An award has no effect in relation to an employee while a workplace agreement operates in relation to the employee (see section 349), but once the workplace agreement has ceased to operate, the award is capable of operating again.
(1) This section applies if, on a particular day (the
cessation day ), a workplace agreement (theoriginal agreement ) ceases to operate under section 346W or 346ZA because the original agreement does not pass the no‑disadvantage test.(2) If, immediately before the day on which the original agreement was lodged, the employer was bound, under a designated provision relating to the agreement, by a redundancy provision in relation to an employee whose employment was subject to the original agreement, the employer is taken:
(a) to be bound, under the designated provision, by the redundancy provision in relation to the employee on and from the cessation day; and
(b) to continue to be so bound until the earliest of the following:
(i) the end of the period of 24 months beginning on the first day on which the employer became bound, under the designated provision, by the redundancy provision;
(ii) the time when the employee ceases to be employed by the employer;
(iii) the time when another workplace agreement comes into operation in relation to the employee and the employer.
(3) If, immediately before the day on which the original agreement was lodged, the employer was bound by an undertaking under subsection 394(1) in relation to an employee whose employment was subject to the original agreement, the employer is taken:
(a) to be bound under section 394 by the undertaking in relation to the employee on and from the cessation day; and
(b) to continue to be so bound until the earlier of the following:
(i) the time when the employee ceases to be employed by the employer;
(ii) the time when another workplace agreement comes into operation in relation to the employee and the employer.
(4) In this section:
designated provision , in relation to a workplace agreement, means any of the following:
(a) section 399A;
(b) clause 6A of Schedule 7;
(c) clause 20A of Schedule 7;
(d) clause 21A of Schedule 8;
(e) clause 21D of Schedule 8;
that, after the agreement is terminated, continues the effect of a redundancy provision that was included in the agreement.
redundancy provision means a redundancy provision within the meaning of any of the following:
(a) section 399A;
(b) clause 6A of Schedule 7;
(c) clause 20A of Schedule 7;
(d) clause 21A of Schedule 8;
(e) clause 21D of Schedule 8.
A workplace agreement that has ceased to operate because it does not pass the no‑disadvantage test can never operate again.
Note: This rule is subject to subsection 346ZB(3), which deals with the situation where a workplace agreement as varied under Division 8 does not pass the no‑disadvantage test.
The regulations may make provision for and in relation to the operation of instruments that are taken to bind an employer and employees because of the operation of section 346ZB.
(1) This section applies to an employee who is entitled to compensation under this section on and from a particular day because a workplace agreement to which Subdivision D applies that was binding on the employee’s employer did not pass the no‑disadvantage test.
Note 1: Sections 346V, 346W and 346ZA specify the day on which an employee’s entitlement to compensation takes effect.
Note 2: An employee may be able to recover compensation even where a workplace agreement that initially does not pass the no‑disadvantage test is varied so that it subsequently passes the no‑disadvantage test—see section 346ZA.
(2) If the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b), the employer must pay to the employee the amount of the shortfall:
(a) the total value of the entitlements to which the employee was entitled, under the workplace agreement, and under any other applicable law, agreement or arrangement that operated in conjunction with the workplace agreement, in respect of one or more periods of employment during the no‑disadvantage test period for the workplace agreement;
(b) the total value of the entitlements to which the employee would have been entitled, in respect of one or more periods of employment of the employee during the no‑disadvantage test period, worked out in accordance with the assumptions set out in subsection (3).
(3) For the purposes of working out the total value of the entitlements to which the employee would have been entitled, in respect of one or more periods of employment of the employee during the no‑disadvantage test period, it is to be assumed that, during that period or those periods of employment:
(a) the employee’s employment was subject to:
(i) the instrument or instruments that, but for the workplace agreement, would have bound the employer in relation to that period or those periods of employment of the employee; or
(ii) if there is no such instrument—the designated award in relation to the employee; and
(b) the employer was bound, under a designated provision relating to the agreement, by a redundancy provision that, but for the workplace agreement having come into operation, would have bound the employer in relation to the employee; and
(c) the employer was bound under section 394 by any undertaking that, but for the workplace agreement having come into operation, would have bound the employer in relation to the employee; and
(d) the employee’s employment was subject to any other applicable law, agreement or arrangement that would have operated in conjunction with the instrument or instruments referred to in subparagraph (a)(i), or the designated award referred to in subparagraph (a)(ii), as the case requires.
(4) An employer breaches this section if the employer does not pay to the employee the amount of the shortfall calculated under subsection (2) within whichever of the following periods is applicable:
(a) if the employee is entitled to compensation because of the operation of section 346V in respect of the workplace agreement—the period of 14 days beginning on the seventh day after the date of issue specified in the notice under section 346U in relation to the workplace agreement;
(b) if the employee is entitled to compensation because of the operation of section 346W in respect of the workplace agreement—the period of 14 days beginning at the end of the relevant period (within the meaning of section 346W) in relation to the workplace agreement;
(c) if the employee is entitled to compensation because of the operation of section 346ZA in respect of the workplace agreement—the period of 14 days beginning on the seventh day after the date of issue specified in the notice under section 346Z in relation to the workplace agreement.
Note: Compliance with this section is dealt with in Part 14—this section is an applicable provision within the meaning of section 717.
(5) In this section:
designated provision has the same meaning as in section 346ZD.
instrument has the same meaning as in section 346ZB.
no‑disadvantage test period , in relation to a workplace agreement, means:
(a) the period:
(i) beginning on the day on which the workplace agreement was lodged; and
(ii) ending on the day on which the workplace agreement ceased to operate (whether because of the operation of this Division or otherwise); or
(b) if the workplace agreement is continued in operation because of the operation of subsection 346W(4) or section 346ZA—the period:
(i) beginning on the day on which the workplace agreement was lodged; and
(ii) ending on the day on which the variation of the workplace agreement was lodged under section 346W or, if the workplace agreement had been varied before that day in such a way as to pass the no‑disadvantage test, on that earlier day.
redundancy provision has the same meaning as in section 346ZD.
(1) An employer that has received a notice under section 346M, 346Q, 346U or 346Z in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment is subject to the agreement when the employer receives the notice are given a copy of the notice as soon as practicable.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
(1) An employer must not:
(a) dismiss an employee; or
(b) threaten to dismiss an employee;
if the sole or dominant reason for the employer dismissing, or threatening to dismiss, the employee is that a workplace agreement does not, or may not, pass the no‑disadvantage test.
(2) Subsection (1) is a civil remedy provision.
Note 1: An employee may still be entitled to compensation under section 346ZG if his or her workplace agreement does not pass the no‑disadvantage test.
Note 2: A contravention of subsection (1) is enforceable by a workplace inspector—see Division 11 for provisions on enforcement.
(3) In proceedings alleging a contravention of subsection (1) it is presumed that the employer’s sole or dominant reason was that the workplace agreement did not, or may not, pass the no‑disadvantage test, unless the employer proves otherwise.
Note: Division 3 of Part 14 contains other provisions relevant to civil remedies.
(1) The Court, on application by an eligible person, may make one or more of the following orders in relation to an employer who has contravened subsection 346ZJ(1):
(a) an order requiring the employer to pay a specified amount to the employee as compensation for damage suffered by the employee as a result of the contravention;
(b) any other order that the Court considers appropriate.
Note: The employee may still be entitled to compensation under section 346ZG if his or her workplace agreement does not pass the no‑disadvantage test.
(2) The orders that may be made under paragraph (1)(b) include:
(a) injunctions; and
(b) any other orders that the Court considers necessary to stop the conduct or remedy its effects.
(3) In this section:
eligible person means any of the following:
(a) a workplace inspector;
(b) an employee affected by the contravention;
(c) an organisation of employees that:
(i) has been requested in writing, by the employee concerned, to apply on the employee’s behalf; and
(ii) is entitled, under its eligibility rules, to represent the industrial interests of the employee in relation to work carried on by the employee for the employer;
(d) a person prescribed by the regulations for the purposes of this paragraph.
(4) A regulation prescribing persons for the purposes of paragraph (d) of the definition of
eligible person in subsection (3) may provide that a person is prescribed only in relation to circumstances specified in the regulation.
Repeal the subsection, substitute:
(1) A workplace agreement comes into operation at whichever of the following times is applicable:
(a) for an ITEA to which subparagraph 326(2)(b)(i) or (ia) applies, a union greenfields agreement, an employer greenfields agreement or a multiple‑business agreement that would be such an agreement but for subsection 331(1)—the day the agreement is lodged;
(b) for an ITEA to which subparagraph 326(2)(b)(ii) applies, an employee collective agreement, a union collective agreement or a multiple‑business agreement that would be such an agreement but for subsection 331(1)—the seventh day after the date of issue specified in the notice under subsection 346M(1) or 346Q(2) in relation to the agreement.
Insert:
(1) Despite section 347, a workplace agreement does not come into operation unless the requirements in Division 2 and section 340 have been met in relation to the agreement.
(2) However, failure to comply with any or all of the following in relation to a workplace agreement:
(a) the requirements in Division 3;
(b) the requirements in Division 4 (apart from section 340);
(c) the requirements in section 342;
does not prevent the agreement coming into operation.
Note: Under Division 11, penalties apply to a person who contravenes a civil remedy provision in Division 3 or 4 or section 342.
Before “An award”, insert “(1)”.
Add:
(2) Despite subsection (1), if:
(a) a person’s employment is subject to a workplace agreement; and
(b) but for the workplace agreement, an award would have effect in relation to the person’s employment;
the terms of the award have effect to the extent that they are about outworker conditions, despite any terms of the workplace agreement that provide, in a particular respect, a less favourable outcome for that person.
(3) In this section:
outworker means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.
outworker conditions means conditions (other than pay) for outworkers, but only to the extent necessary to ensure that their overall conditions of employment are fair and reasonable in comparison with the conditions of employment specified in a relevant award or awards for employees who perform the same kind of work at an employer’s business or commercial premises.
Insert:
(aa) in the case of an ITEA:
(i) if a date is specified in the agreement as its nominal expiry date, and that date is no later than 31 December 2009—that specified date; or
(ii) otherwise—31 December 2009; or
(ab) in the case of an employee collective agreement or a union collective agreement that is taken to pass the no‑disadvantage test under subsection 346D(3):
(i) if a date is specified in the agreement as its nominal expiry date, and that date is no later than the second anniversary of the seventh day after the date of issue specified in the notice under subsection 346M(1)—that specified date; or
(ii) otherwise—the second anniversary of the seventh day after the date of issue specified in the notice under subsection 346M(1); or
Add:
Note: Subsection 346D(3) is about workplace agreements that are taken to pass the no‑disadvantage test because of exceptional circumstances.
Insert:
(aa) in the case of an ITEA—the earlier of the following dates:
(i) the date specified in the agreement as varied as its nominal expiry date;
(ii) 31 December 2009; or
(ab) in the case of an employee collective agreement or a union collective agreement that is taken to pass the no‑disadvantage test under subsection 346D(3)—the earlier of the following dates:
(i) the date specified in the agreement as varied as its nominal expiry date;
(ii) the second anniversary of the seventh day after the date of issue specified in the notice under subsection 346M(1); or
Repeal the sections.
Repeal the subsections, substitute:
(1) A variation to a workplace agreement under this Division comes into operation on the seventh day after the date of issue specified in the notice under subsection 346M(1) in relation to the agreement as varied.
Add:
(1) A variation to a workplace agreement does not come into operation unless the requirements in Subdivision A and section 373 have been met in relation to the variation.
(2) However, failure to comply with any or all of the following in relation to a variation to a workplace agreement:
(a) the requirements in Division 3;
(b) the requirements in Subdivision B of this Division (apart from section 373);
(c) the requirements in section 375;
does not prevent the variation coming into operation.
Note: Under Division 11, penalties apply to a person who contravenes a civil remedy provision in Division 3, Subdivision B of this Division or section 375.
Repeal the section, substitute:
(1) This section applies whether or not an ITEA provides for a manner of terminating the agreement after its nominal expiry date.
(2) Any of the following persons may terminate the ITEA by lodging a declaration in accordance with section 395:
(a) the employer in relation to the ITEA;
(b) the employee whose employment is subject to the ITEA;
(c) a bargaining agent at the request of the employer or the employee.
Note: Sections 137.1 and 137.2 of the
Criminal Code create offences for providing false or misleading information or documents.(3) However, this may be done only if the nominal expiry date of the ITEA has passed.
(4) At least 90 days before the lodgment, and after the nominal expiry date of the ITEA has passed, the person intending to lodge the declaration must take reasonable steps to ensure that:
(a) written notice of the termination is given to:
(i) if the employer, or a bargaining agent at the employer’s request, is intending to lodge the declaration—the employee; or
(ii) if the employee, or a bargaining agent at the employee’s request, is intending to lodge the declaration—the employer; and
(b) if the person giving the notice is the employer in relation to the ITEA, or is a bargaining agent doing so at the request of the employer—a written copy of the undertakings (if any) made by the employer under section 394 is given to the employee.
(5) The notice must:
(a) state that the ITEA is to be terminated; and
(b) specify the day on which the person proposes to lodge the notice; and
(c) be in the form (if any) that the Workplace Authority Director requires by notice published in the
Gazette ; and(d) contain the information (if any) that the Workplace Authority Director requires by notice published in the
Gazette ; and(e) if the person giving the notice is the employer in relation to the ITEA, or is a bargaining agent doing so at the request of the employer—state whether the parties to the ITEA will, under section 399A, continue to be bound by one or more redundancy provisions included in the ITEA; and
(f) if the parties to the ITEA will continue to be so bound—include an annexed copy of the provision or the provisions.
(6) A person contravenes this subsection if:
(a) the person lodges a declaration to terminate an ITEA under subsection (2); and
(b) the person failed to comply with subsection (4) or (5).
Note: See Division 11 for provisions on enforcement.
(7) Subsection (6) is a civil remedy provision.
Insert:
(1) The Commission may, by order, terminate a collective agreement that has passed its nominal expiry date on application under subsection (2) if it is satisfied that it would not be contrary to the public interest to terminate the agreement.
(2) Any of the following persons may apply for an order under subsection (1):
(a) the employer;
(b) a majority of the employees whose employment is subject to the agreement;
(c) an organisation of employees that is bound by the agreement.
(3) In deciding whether it would be contrary to the public interest to terminate the agreement, the Commission must have regard to all circumstances of the case, including:
(a) the views of each party bound by the agreement (including the employees) about whether it should be terminated; and
(b) the circumstances of each such party, including the likely effect on each such party of the termination of the agreement.
Repeal the section, substitute:
(1) Failure to comply with the requirements in Division 3 in relation to a termination does not prevent the termination taking effect.
(2) Failure to comply with any or all of the following:
(a) the requirements in Subdivision B (apart from sections 382 and 386);
(b) the requirements in section 388;
does not prevent a termination of a kind mentioned in paragraph 381(1)(a) taking effect.
(3) However, a termination of that kind does not take effect unless the requirements in sections 382 and 386 have been met in relation to the termination.
(4) Failure to comply with any or all of the requirements in subsections 392(4) and (5) and 393(4) and (5) does not prevent a termination of a kind mentioned in paragraph 381(1)(b) taking effect.
Repeal the section.
Insert:
Note: See section 8
(1) In this Schedule:
AWA has the meaning that was given by sections 4 and 326 of the pre‑transition Act, but does not include:
(a) an agreement made after the commencement of this Schedule; or
(b) a pre‑reform AWA within the meaning of Schedule 7.
pre‑transition Act means this Act as in force immediately before the commencement of this Schedule.
(2) For the purposes of this Schedule, an agreement ceases to be an AWA unless:
(a) it was lodged with the Workplace Authority Director before the commencement of this Schedule; or
(b) it is lodged, in accordance with section 344 of the pre‑transition Act, within 14 days after that commencement.
(3) Paragraph 333(a) and subsection 340(1) of the pre‑transition Act apply to working out, for the purposes of the definition of
AWA in subclause (1), when an agreement was made.
(1) Subject to this Schedule, the pre‑transition Act continues to apply in relation to an AWA despite the repeals and amendments made by the
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .(2) However, subclause (1) does not apply in relation to the following provisions of the pre‑transition Act:
(a) the definition of
Australian workplace agreement , or the definition ofAWA , in subsection 4(1);(c) section 467;
(d) section 399;
(e) Part 11;
(f) Schedule 6;
(g) Schedule 7;
(h) Schedule 8;
(i) Schedule 9;
(j) any other provision to the extent that it relates to the operation of the provisions mentioned in the preceding paragraphs.
Note: The application of Schedules 6, 7, 8 and 9 to AWAs is dealt with in those Schedules.
(3) Regulations made under the pre‑transition Act continue to apply in relation to an AWA, except to the extent that they relate to the provisions mentioned in subclause (2).
(4) To avoid doubt, nothing in this Schedule permits an agreement made after the commencement of this Schedule to be treated as an AWA.
(1) Despite the definition of
bargaining agent in subsection 4(1) of the pre‑transition Act, an appointment of a bargaining agent ceases to have effect 14 days after the commencement of this Schedule if the appointment relates to:
(a) making an AWA; or
(b) varying an AWA (other than varying an AWA in circumstances referred to in paragraph 367(2)(aa), (b), (c) or (d) of the pre‑transition Act).
(1A) However, paragraph 405(1)(e) of the pre‑transition Act continues to apply in relation to a person whose appointment has ceased to have effect under subclause (1), as if the person continues to be a bargaining agent.
(2) Despite subsection 334(1) of the pre‑transition Act, an appointment of a bargaining agent made later than 14 days after the commencement of this Schedule is of no effect if the appointment relates to:
(a) making an AWA; or
(b) varying an AWA (other than varying an AWA in circumstances referred to in paragraph 367(2)(aa), (b), (c) or (d) of the pre‑transition Act).
Despite subsection 347(2) of the pre‑transition Act, an AWA comes into operation only if:
(a) it was lodged with the Workplace Authority Director before the commencement of this Schedule; or
(b) it is lodged, in accordance with section 344 of the pre‑transition Act, within 14 days after the commencement of this Schedule.
(1) Despite Division 8 of Part 8 of the pre‑transition Act, a variation of an AWA cannot be made after the commencement of this Schedule.
Note: Under section 368 of the pre‑transition Act, a variation of an AWA was made when it was approved in accordance with section 373 of the pre‑transition Act.
(2) Despite subsection 380(2) of the pre‑transition Act, a variation of an AWA comes into operation only if:
(a) it was lodged with the Workplace Authority Director before the commencement of this Schedule; or
(b) it is lodged, in accordance with section 377 of the pre‑transition Act, within 14 days after the commencement of this Schedule.
(3) However, this clause does not prevent:
(a) variation of an AWA in circumstances referred to in paragraph 367(2)(aa), (b), (c) or (d) of the pre‑transition Act; or
(b) the application of subsection 380(2) of the pre‑transition Act in relation to a variation of an AWA in any of those circumstances.
(1) An AWA ceases to be in operation if it is replaced by an ITEA.
(2) If an AWA has ceased operating because of subclause (1), it can never operate again.
(3) Subclause (1) does not limit the operation of paragraph 347(4)(a), (ba), (bb) or (c) of the pre‑transition Act for the purposes of this Schedule.
(4) To avoid doubt, despite paragraph 347(4)(b) of the pre‑transition Act, an AWA cannot be replaced by another AWA made after the commencement of this Schedule.
(1) If:
(a) a purported AWA made after the commencement of this Schedule is lodged with the Workplace Authority Director; or
(b) an AWA is lodged with the Workplace Authority Director after the end of a period of 14 days after the commencement of this Schedule;
the Workplace Authority Director must notify the parties to the agreement that lodgment of the agreement has not been accepted and that the purported AWA or AWA is not in operation.
(2) If:
(a) a purported variation made to an AWA after the commencement of this Schedule is lodged with the Workplace Authority Director; or
(b) a variation made to an AWA is lodged with the Workplace Authority Director after the end of a period of 14 days after the commencement of this Schedule;
the Workplace Authority Director must notify the parties to the agreement that lodgment of the variation has not been accepted and that the purported variation or variation is not in operation.
(3) However, subclause (2) does not apply to a variation of an AWA in circumstances referred to in paragraph 367(2)(aa), (b), (c) or (d) of the pre‑transition Act.
(1) Despite clause 2 of this Schedule, the following provisions of this Act apply as if references in those provisions to an ITEA that has passed its nominal expiry date included references to an AWA that has passed its nominal expiry date:
(a) section 327;
(aa) paragraph 336(b);
(b) paragraph 340(2)(a);
(c) paragraph 367(1)(b);
(d) subparagraph 369(b)(ii);
(e) subparagraph 373(2)(a)(ii);
(f) subparagraph 467(1)(a)(iii);
(g) subparagraph 467(1)(b)(ii).
(2) Despite clause 2 of this Schedule, subsection 467(2) of this Act applies as if the reference in that subsection to an ITEA whose nominal expiry date has not passed included a reference to an AWA whose nominal expiry date has not passed.
Note: See section 8
In this Schedule:
fairness test means the test set out in section 346M of the pre‑transition Act.
pre‑transition Act means this Act as in force immediately before the commencement of this Schedule.
pre‑transition collective agreement means a collective agreement made before the commencement of this Schedule that:
(a) was lodged with the Workplace Authority Director before that commencement; or
(b) is lodged, in accordance with section 344 of the pre‑transition Act, within 14 days after that commencement;
but does not include a collective agreement made after that commencement.
(1) Subject to this Schedule, the following provisions of the pre‑transition Act continue to apply in relation to a pre‑transition collective agreement, despite the repeals and amendments made by the
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 :
(a) paragraph 150B(1)(f);
(b) subsection 164A(7);
(c) Division 5A of Part 8;
(ca) subsections 347(1) and (2);
(d) paragraphs 347(4)(ba) and (bb);
(e) subsections 347(8A) and (9A);
(f) section 354;
(g) section 355;
(h) paragraph 367(2)(aa);
(i) paragraphs 407(2)(jb) to (jd);
(j) sections 416 to 418;
(k) subsection 506(5);
(l) any other provision relating to the operation of the provisions mentioned in the preceding paragraphs.
(2) Regulations made under the pre‑transition Act, to the extent that they relate to the provisions mentioned in subclause (1), continue to apply in relation to a pre‑transition collective agreement.
(3) To the extent that provisions of the pre‑transition Act, and the regulations made under the pre‑transition Act, continue to apply in relation to a pre‑transition collective agreement, the corresponding provisions of this Act do not apply to the agreement.
(4) The provisions of this Act (other than the corresponding provisions referred to in subclause (3)) apply in relation to a pre‑transition collective agreement as if references in those provisions to the no‑disadvantage test were references to the fairness test.
Clause 2 of this Schedule does not apply in relation to a variation of a pre‑transition collective agreement unless the variation:
(a) was lodged with the Workplace Authority Director before the commencement of this Schedule; or
(b) is made before that commencement and is lodged, in accordance with section 377 of the pre‑transition Act, within 14 days after that commencement.
(1) To avoid doubt, if, immediately before the commencement of this item, an industrial instrument had no effect because of the operation of section 399 of the pre‑transition Act, the repeal of that section by this Act:
(a) does not cause the instrument to have effect after that commencement; and
(b) does not cause any protected award condition to cease to have effect.
(2) In this item:
industrial instrument means an instrument mentioned in subsection 399(3) of the pre‑transition Act, and includes any of the following (except to the extent that they contain protected award conditions):
(a) a common rule within the meaning of clause 89 of Schedule 6;
(b) a transitional Victorian reference award within the meaning of Part 7 of that Schedule;
(c) a transitional award within the meaning of that Schedule, to the extent that subclause 102(1) of that Schedule applies to it.
pre‑transition Act means theWorkplace Relations Act 1996 as in force immediately before the commencement of this item.
protected award condition has the meaning it had for the purposes of section 354 of the pre‑transition Act.
16 Subsection 4(1) (definition of Australian workplace agreement or AWA ) Repeal the definition.
Repeal the definition.
18
Subsection 4(1) (paragraph (a) of the definition of bargaining agent ) Repeal the paragraph, substitute:
(a) in relation to an ITEA—a person who has been duly appointed as a bargaining agent in relation to the ITEA in accordance with section 334; or
Insert:
individual transitional employment agreement orITEA has the meaning given by section 326.
ITEA: see individual transitional employment agreement.
20
Subsection 4(1) (definition of workplace agreement ) Repeal the definition, substitute:
workplace agreement means:
(a) an ITEA; or
(b) a collective agreement;
and includes a document that the Court has ordered under section 412A is to have effect as a workplace agreement.
Note 1: Section 324 affects the meaning of
workplace agreement .Note 2: Under section 324A, some other documents are taken to be workplace agreements for certain limited purposes.
Note 3: An order by the Court under paragraph 412A(1)(a) enables a document to which section 324A applies to have effect as a workplace agreement.
Repeal the section, substitute:
Schedules 1, 6, 7, 7A, 7B, 8 and 9 have effect.
Note 1: Schedule 1 is about registration and accountability of organisations.
Note 2: Schedule 6 is about transitional arrangements for parties bound by federal awards.
Note 3: Schedule 7 is about transitional arrangements for existing pre‑reform certified agreements.
Note 4: Schedule 7A is about transitional arrangements for existing AWAs.
Note 5: Schedule 7B is about transitional arrangements for existing collective agreements.
Note 6: Schedule 8 is about transitional treatment of State employment agreements and State awards.
Note 7: Schedule 9 is about transitional instruments and transmission of business.
Omit “fairness test”, substitute “no‑disadvantage test”.
Repeal the subsection, substitute:
(7) Despite subsections (1), (2) and (5), a workplace agreement official is not authorised by any of those subsections to disclose to the Minister information relating to a decision under Division 5A of Part 8 whether a particular workplace agreement passes the no‑disadvantage test.
Omit “AWA”, substitute “ITEA”.
Note 1: The heading to section 165 is altered by omitting “
AWAs ” and substituting “ITEAs ”.Note 2: The heading to section 166 is altered by omitting “
AWAs ” and substituting “workplace agreements ”.
25
Subsection 185(3) (cell at table item 1, column headed “In this situation ...”) Repeal the cell, substitute:
if:
|
26 Subsection 185(3) (cell at table item 2, column headed “In this situation ...”) Repeal the cell, substitute:
if:
|
Insert:
If a document:
(a) is represented (expressly or by implication) to be a workplace agreement, or a type of workplace agreement mentioned in section 326, 327, 328, 329, 330 or 331; and
(b) could not come into operation under this Act as a workplace agreement, or as a workplace agreement of that type, even if it were to pass the no‑disadvantage test;
the document is taken to be a workplace agreement, or a workplace agreement of that type, for the purposes of:
(c) Divisions 3 and 4, Division 5 (other than section 342), Divisions 8, 9 and 10 and Division 11 (other than sections 409 to 412A); and
(d) any other provision of this Act, to the extent that the provision relates to the operation of any of the provisions mentioned in paragraph (c).
Note: The Court can order under section 412A that a document is to have effect as a workplace agreement for the purposes of the entire Act.
After “will”, insert “, or would but for the operation of an ITEA that has passed its nominal expiry date,”.
Repeal the paragraph, substitute:
(a) for an ITEA—the time when the ITEA is approved in accordance with section 340;
General
(1) A modern award may include terms about any of the following matters:
(a) minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and:
(i) skill‑based classifications and career structures; and
(ii) incentive‑based payments, piece rates and bonuses;
Note:
Employee with a disability andjunior employee are defined in subsection (3).(b) type of employment, such as full‑time employment, casual employment, regular part‑time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;
(c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;
(d) overtime rates;
(e) penalty rates, including for any of the following:
(i) employees working unsocial, irregular or unpredictable hours;
(ii) employees working on weekends or public holidays;
(iii) shift workers;
(f) annualised wage or salary arrangements that:
(i) have regard to the patterns of work in an occupation, industry or enterprise; and
(ii) provide an alternative to the separate payment of wages, or salaries, and other monetary entitlements; and
(iii) include appropriate safeguards to ensure that individual employees are not disadvantaged;
(g) allowances, including for any of the following:
(i) expenses incurred in the course of employment;
(ii) responsibilities or skills that are not taken into account in rates of pay;
(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;
(h) leave, leave loadings and arrangements for taking leave;
(i) superannuation;
(j) procedures for consultation, representation and dispute settlement.
Other matters
(2) A modern award may also include terms about any other matter specified in the award modernisation request to which the modern award relates.
Definitions
(3) In this section:
employee with a disability means an employee who is qualified for a disability support pension as set out in section 94 or 95 of theSocial Security Act 1991 , or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.Note: This definition includes employees under the Supported Wage System endorsed by the Commission in the Full Bench decision dated 10 October 1994 (print L5723).
junior employee means an employee who is under the age of 21.
(1) In this section:
outworker means:
(a) an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer; or
(b) an individual who is a party to a contract for services, and who, for the purposes of the contract, performs work:
(i) in the textile, clothing or footwear industry; and
(ii) at private residential premises or at other premises that are not business or commercial premises of the other party to the contract or (if there are 2 or more other parties to the contract) of any of the other parties to the contract.
(2) A modern award may include either or both of the following:
(a) terms relating to the conditions under which an employer may employ employees who are outworkers (including terms relating to the pay or conditions of the outworkers);
(b) terms relating to the conditions under which an eligible entity (within the meaning of Division 4) may arrange for work to be carried out for the entity (either directly or indirectly) by outworkers (including terms relating to the pay or conditions of the outworkers).
Note: In paragraph (2)(a),
employee andemployer have the meanings given by subsections 5(1) and 6(1).
A modern award may include terms about the matters referred to in subsection 576J(1) or (2) or section 576K only to the extent that the terms provide a fair minimum safety net.
(1) A modern award may include terms that are:
(a) incidental to a term that is required or permitted to be in the modern award; and
(b) essential for the purpose of making a particular term operate in a practical way.
(2) A modern award may include machinery provisions including, but not limited to, provisions about the following:
(a) commencement;
(b) definitions;
(c) titles;
(d) arrangement;
(e) employers, employees and organisations;
(f) duration of the modern award.
(1) A modern award must include a term about a matter referred to in subsection 576J(1) or (2) or section 576K or 576M if the award modernisation request to which the modern award relates requires the modern award to include a term about that matter.
(2) A term of a modern award about a matter referred to in subsection 576J(1) or (2) or section 576K or 576M must be consistent with any directions in relation to the matter specified in the award modernisation request to which the modern award relates.
A modern award must not include terms other than those permitted or required by Subdivision A.
A modern award must not include a term that requires or permits, or has the effect of requiring or permitting, any conduct that would contravene Part 16 (Freedom of association).
A modern award must not include a term that requires or authorises an officer or employee of an organisation to do any of the following:
(a) enter premises:
(i) occupied by an employer that is bound by the modern award; or
(ii) in which work to which the modern award applies is being carried on;
(b) inspect or view any work, material, machinery, appliance, article, document or other thing on such premises;
(c) interview an employee on such premises.
(1) A modern award must not include terms that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) A modern award does not discriminate against an employee for the purposes of subsection (1) merely because:
(a) it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or
(b) it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:
(i) on the basis of those teachings or beliefs; and
(ii) in good faith.
(3) A modern award does not discriminate against an employee for the purposes of subsection (1) merely because it includes terms providing for minimum wages for:
(a) all junior employees, or a class of junior employees; or
(b) all employees with a disability, or a class of employees with a disability; or
(c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.
(4) In this section:
employee with a disability has the same meaning as in section 576J.
junior employee has the same meaning as in section 576J.
(1) A modern award must not include terms and conditions of employment that:
(a) are determined by reference to State or Territory boundaries; or
(b) do not have effect in each State and Territory.
(2) Despite subsection (1), a modern award may include terms and conditions of employment of the kind referred to in subsection (1) for a period of up to 5 years starting on the day on which the modern award commences.
(3) If, at the end of the period of 5 years starting on the day on which a modern award commences, the modern award includes terms and conditions of employment of the kind referred to in subsection (1), those terms and conditions of employment cease to have effect at the end of that period.
In this Division:
eligible entity means any of the following entities, other than in the entity’s capacity as an employer:
(a) a constitutional corporation;
(b) the Commonwealth;
(c) a Commonwealth authority;
(d) a body corporate incorporated in a Territory;
(e) a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, in connection with the activity carried on in the Territory.
Note: In this context,
Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of theActs Interpretation Act 1901 .
enterprise award means an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).
outworker term means a term of a modern award that is:
(a) about a matter referred to in section 576K; or
(b) incidental to such a matter, and included in the modern award as permitted by subsection 576M(1); or
(c) a machinery provision in respect of such a matter, and included in the modern award as permitted by subsection 576M(2).
Modern award binds employers, employees etc. that it is expressed to bind
(1) A modern award binds, in accordance with its terms, the employers, employees, organisations and eligible entities that it is expressed to bind.
Modern award must be expressed to bind specified employers and employees
(2) A modern award must be expressed to bind the following:
(a) specified employers;
(b) specified employees of employers bound by the modern award, in respect of work that is expressed to be regulated by the modern award.
Modern award must be expressed not to bind employers bound by enterprise awards
(3) A modern award must be expressed not to bind an employer who is bound by an enterprise award in respect of an employee to whom the enterprise award applies.
Modern award may be expressed to bind organisations
(4) A modern award may be expressed to bind one or more specified organisations in respect of all or specified employees or employers who are bound by the modern award.
Modern award may be expressed to bind eligible entities or employers in relation to outworker terms
(5) In addition to the employers, employees and organisations that a modern award is expressed to bind, the modern award may be expressed to bind, but only in relation to outworker terms included in the modern award, an eligible entity or an employer that operates in an industry:
(a) to which the modern award relates; or
(b) in respect of which the outworker terms are applicable.
Modern award must be in accordance with award modernisation request
(6) The power of the Commission under subsections (2), (3), (4) and (5) must be exercised in accordance with the award modernisation request to which the modern award relates.
Specification of employers, employees etc. by name or class
(7) For the purposes of subsections (2), (3), (4) and (5):
(a) employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name; and
(d) eligible entities may be specified by name or by inclusion in a specified class or specified classes.
(8) Without limiting the way in which a class may be described for the purposes of subsection (7), the class may be described by reference to a particular industry or particular kinds of work.
(1) A modern award or an order varying a modern award must:
(a) be in writing; and
(b) be signed by:
(i) if the President is a member of the Full Bench making the modern award or order—the President; or
(ii) if the President is not a member of the Full Bench making the modern award or order—the member of the Full Bench who has seniority under section 65; and
(c) state the day on which it is signed.
(2) A modern award must:
(a) have a unique title; and
(b) have a table of contents; and
(c) be expressed in plain English and be easy to understand in structure and content; and
(d) not include terms that are obsolete.
A modern award or an order varying a modern award is made on the day on which the modern award or order is signed under paragraph 576W(1)(b).
(1) A modern award or an order varying a modern award must be expressed to commence on:
(a) if the modern award or order is made before the start‑up day—the start‑up day; or
(b) in any other case—a day that is not earlier than the day on which the modern award or order is made.
Note:
Start‑up day is defined in subsection (3).(2) A modern award, or an order varying a modern award, that has not yet commenced must include a statement to this effect.
(3) For the purposes of this section, the
start‑up day is:
(a) unless paragraph (b) applies, 1 January 2010; or
(b) if a later date is prescribed by the regulations—that later date.
(1) As soon as practicable after the Commission makes a modern award or an order varying a modern award, the Commission must give to a Registrar:
(a) a copy of the modern award or order; and
(b) written reasons for the modern award or order; and
(c) a statement specifying the employers, employees, organisations and eligible entities bound by the modern award or order.
(2) As soon as practicable after a Registrar receives a copy of a modern award or an order varying a modern award under subsection (1), the Registrar must:
(a) give notice to the employers, employees, organisations and eligible entities specified in the statement referred to paragraph (1)(c) of the making of the modern award or order; and
(b) ensure that a copy of the modern award or order, and the written reasons for the modern award or order, are available for inspection at each registry; and
(c) ensure that the modern award or order, and the written reasons for the modern award or order, are published.
(3) The Registrar must give the notice required by paragraph (2)(a):
(a) in accordance with any requirements prescribed by the regulations; or
(b) if no such requirements are prescribed—in such manner as the Registrar thinks appropriate.
(4) In this section:
eligible entity has the same meaning as in section 576U.
(1) A modern award or an order varying a modern award:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus or injunction in any court on any account.
(2) A modern award or an order varying a modern award is not invalid because it was made by the Commission constituted otherwise than as provided by this Act.
Unless the contrary intention appears in a modern award or an order varying a modern award, an expression used in the modern award or order has the same meaning as it has in an Act because of the
Acts Interpretation Act 1901 or as it has in this Act.
Insert:
(sa) subsection 576K(1), definition of
outworker ;
Add:
; (j) subsection 576K(1), definition of
outworker .
Repeal the subclause.
Repeal the subclause.
Repeal the note.
Repeal the definition, substitute:
award means a pre‑reform award.
14
Subsection 4(1) (definition of award rationalisation process ) Repeal the definition.
15
Subsection 4(1) (definition of award rationalisation request ) Repeal the definition.
16
Subsection 4(1) (definition of award simplification process ) Repeal the definition.
Repeal the paragraph.
Omit “or (3)”.
Omit “a pre‑reform award”, substitute “an award”.
Repeal the subsection.
Repeal the subsection (not including the note), substitute:
(1) A term, or more than one term, of an award is a
preserved award term if:
(a) the term or terms are about a matter referred to in subsection (2); and
(b) the term or terms were in effect immediately before the reform commencement.
Omit “subsection (1)”, substitute “paragraph (1)(a)”.
Repeal the section.
Omit “528,”.
Omit “, 528”.
Repeal the Division.
Repeal the paragraphs.
Repeal the note.
Repeal the subsection, substitute:
(3) The Commission must not vary a facilitative provision within the meaning of section 521 except on a ground set out in section 554.
Repeal the subparagraph.
Repeal the section.
Insert:
(1A) The Commission must not make an order revoking an award except in accordance with this section.
Repeal the notes, substitute:
Note 1: Item 4 of Schedule 4 to the
Workplace Relations Amendment (Work Choices) Act 2005 provides for the employers, employees and organisations bound by awards.
Omit “Note 3”, substitute “Note 2”.
Omit “(1)” (first occurring).
Note: The heading to section 561 is altered by omitting “
additional matters ” and substituting “when application may be made ”.
Repeal the subsection.
Repeal the section.
Omit “a provision referred to in section 555”, substitute “section 556”.
Repeal the paragraph, substitute:
(a) the award is varied under section 558 or 559; and
Repeal the subclause.
Omit “subsection 214(1)”, substitute “section 178”.
2
Subsection 22(1) (paragraphs (b), (c) and (d) of the note) Repeal the paragraphs, substitute:
(b) adjusting special FMWs for employees with a disability;
(c) adjusting basic periodic rates of pay and basic piece rates of pay payable to employees or employees of particular classifications.
Repeal the notes, substitute:
Note: Any additional considerations or limitations on the exercise of the AFPC’s powers are set out in the various sections of this Division (including section 222).
Repeal the section.
5
Section 178 (definition of default casual loading percentage ) Omit “subsection 186(1)”, substitute “section 186”.
Repeal the definition, substitute:
new APCS means an APCS determined under subsection 214(1) of this Act before the repeal of that subsection by theWorkplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .
Repeal the definition, substitute:
special FMW means a special FMW determined under section 197 of this Act before the repeal of that section by theWorkplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .
Repeal the paragraphs, substitute:
(b) there is a special FMW for the employee;
Repeal the section, substitute:
The
default casual loading percentage is 20%.
Repeal the sections.
Repeal the subparagraphs, substitute:
(iii)
adjusting a new APCS; and
Repeal the subsection, substitute:
(4) This section does not limit the AFPC’s power to adjust APCSs made for the purpose of section 220 before the repeal of that section by the
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .
Repeal the subparagraphs, substitute:
(iii) adjusting a new APCS; and
Repeal the subsection, substitute:
(4) This section does not limit the AFPC’s power to adjust APCSs made for the purpose of section 220 before the repeal of that section by the
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .
Repeal the paragraphs, substitute:
(b) adjusting a new APCS.
Omit “Subject to subsection (3), when exercising its power to make an APCS, or”, substitute “When exercising its power”.
Omit “, or to any new APCS that replaces the preserved APCS”.
Repeal the subsection.
Repeal the subsection.
Repeal the subsection.
Omit “$12.75”, substitute “$13.74”.
Repeal the paragraph, substitute:
(a) section 176; and
Repeal the sections.
Repeal the paragraph, substitute:
(a) section 176; and
Repeal the subsection.
Omit “(1)”.
Repeal the subsection.
Omit all the words before paragraph (a), substitute:
(4) The AFPC must not adjust an APCS so that it includes provisions that:
Omit all the words after “to adjust”, substitute “an APCS”.
Omit “an APCS made in accordance with Subdivision M”, substitute “a new APCS determined in accordance with Subdivision M of Division 2 of Part 7 of this Act before the repeal of that Subdivision by the
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 ”.
Repeal the section.
Repeal the subsection.
Repeal the Subdivision.
34
Subdivision K of Division 2 of Part 7 (heading) Repeal the heading, substitute:
Omit “revocation or”.
Repeal the paragraph, substitute:
(a) section 176; and
Repeal the section.
Repeal the Subdivision, substitute:
(1) This section applies in relation to an APCS (the
special APCS ) that was determined in accordance with section 220 of this Act before the repeal of that section by theWorkplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .(2) The special APCS is taken not to cover the employment of a particular employee if:
(a) there is another APCS that covers the employment of the employee (disregarding the effect that paragraph 205(2)(b) would otherwise have because of the special APCS); and
(b) that other APCS determines a basic periodic rate of pay specifically for a particular class of employees with a disability; and
(c) the employee’s employment is covered by that other APCS because the employee is a member of that class; and
(d) that class is the same as, or is a subclass of, the employees whose employment would otherwise be covered by the special APCS.
(3) Without limiting the power of the AFPC to adjust APCSs under section 216, the AFPC may adjust the special APCS under that section.
Omit “sections 176 and 177”, substitute “section 176”.
Repeal the subsection, substitute:
(2) For the purposes of the Acts referred to in paragraph (1)(c), and of paragraph (1)(e), the AFPC does not discriminate against an employee or employees by (in accordance with this Division):
(a) adjusting rate provisions in an APCS that determine a basic periodic rate of pay for:
(i) all junior employees, or a class of junior employees; or
(ii) all employees with a disability, or a class of employees with a disability; or
(iii) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply; or
(b) adjusting a special FMW for all employees with a disability, or a class of employees with a disability.
Insert:
(ca) Division 2 of Part 7 has effect as if the definition of
APCS in section 178 were modified by omitting “or a new APCS”; and
Omit “J,”.
Omit “206, 207, 216 and 217”, substitute “207 and 216”.
Add “and”.
Repeal the subparagraph.
Repeal the paragraph, substitute:
(b) is of a rate provision (within the meaning of Division 2 of Part 7).
Repeal the paragraph, substitute:
(a) section 176; and
Repeal the subsection.
Omit “set or”.
Omit “setting or”.
Omit “sets or”.
Omit “setting or”.
53
Wage reviews in progress before commencement time—previous wage‑setting powers of the AFPC (1) This item applies to a wage review that is being conducted by AFPC under Division 2 of Part 2 of the
Workplace Relations Act 1996 before the commencement time if:
(a) the wage review relates to whether the AFPC should exercise a previous wage‑setting power of the AFPC; and
(b) the wage review is not completed before the commencement time.
(2) The AFPC is not to continue to conduct the wage review after the commencement time, to the extent that the wage review relates to the exercise of the previous wage‑setting power of the AFPC.
(3) In this item:
commencement time means the time when this Schedule commences.
previous wage‑setting power of the AFPC means a power that:
(a) was a wage‑setting power of the AFPC under Division 2 of Part 7 of the
Workplace Relations Act 1996 , as in force immediately before the commencement time; and(b) is not a wage‑setting power of the AFPC under Division 2 of Part 7 of the
Workplace Relations Act 1996 , as amended by this Schedule.
Repeal the Division.
Insert:
(1) The Commission may, on application by any person bound by a pre‑reform certified agreement, by order:
(a) extend the nominal expiry date of the agreement; or
(b) vary the terms of the agreement.
(2) However, before making the order, the Commission must be satisfied that:
(a) all parties bound by the agreement genuinely agree to the extension or variation; and
(b) none of the parties have, after the introduction day:
(i) organised or engaged in, or threatened to organise or engage in, industrial action in relation to another party to the agreement; or
(ii) applied for a protected action ballot under section 451 in relation to proposed industrial action; and
(c) in the case of a variation—the agreement as varied would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees bound by the agreement under:
(i) any transitional award that would regulate any term or condition of employment of the employees if the employer had been an excluded employer immediately before the reform commencement; and
(ii) any law of the Commonwealth, or of a State or Territory, that the Commission considers relevant.
(3) If the Commission extends the nominal expiry date of the agreement, the extended date cannot be more than 3 years after the date on which the order is made.
(4) If the agreement was made under section 170LJ or 170LK of the pre‑reform Act, the employees bound by the agreement are taken, for the purposes of paragraph (2)(a), to agree to the extension or variation if a valid majority of the employees bound by the agreement at the time of making the extension or variation agree to it.
(5) Section 170LE of the pre‑reform Act applies to deciding whether a valid majority of the employees agree to the extension or variation as if references in that section to making an agreement were references to making the extension or variation.
(6) To avoid doubt, the terms and conditions of employment under a transitional award may, for the purposes of paragraph (2)(c), include terms and conditions that did not apply on the reform commencement, or that have been varied since the reform commencement.
(7) The provisions of the pre‑reform Act apply, in relation to an extension or variation to which this clause applies, to the same extent that they apply, because of clause 2, in relation to a variation under paragraph 170MD(6)(a) of the pre‑reform Act.
(8) In this clause:
introduction day means the day on which the Bill that became theWorkplace Relations Amendment (Transition to Forward with Fairness) Act 2008 was introduced into the House of Representatives.
Insert:
(1A) A person must not:
(a) take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to the extension of the nominal expiry date of, or the variation of, a pre‑reform certified agreement under clause 2A.
Omit “Subclause (1)”, substitute “This clause”.
Omit “subclause (1)”, substitute “this clause”.
Repeal the subclause, substitute:
(1) An old IR agreement ceases to be in operation if it is terminated under clause 29A.
Add:
(1) A party to an old IR agreement may apply to the Commission for the agreement to be terminated.
(2) The Commission may, by order, terminate the agreement if the Commission is satisfied that all of the parties to the agreement agree to the termination.
Insert:
(1) The Commission may, on application by any person bound by a preserved collective State agreement, by order:
(a) extend the nominal expiry date of the agreement; or
(b) vary the terms of the agreement.
(2) However, before making the order, the Commission must be satisfied that:
(a) all parties bound by the agreement genuinely agree to the extension or variation; and
(b) none of the parties have, after the introduction day:
(i) organised or engaged in, or threatened to organise or engage in, industrial action in relation to another party to the agreement; or
(ii) applied for a protected action ballot under section 451 in relation to proposed industrial action; and
(c) in the case of a variation—the agreement as varied would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees bound by the agreement under:
(i) any relevant State award in relation to the employees; and
(ii) any law of the Commonwealth, or of a State or Territory, that the Commission considers relevant.
(3) If the Commission extends the nominal expiry date of the agreement, the extended date cannot be more than 3 years after the date on which the order is made.
(4) The employees bound by the agreement are taken, for the purposes of paragraph (2)(a), genuinely to agree to the extension or variation if:
(a) the employer gives all of the employees bound by the agreement at the time of making the extension or variation a reasonable opportunity genuinely to decide whether they agree to the extension or variation; and
(b) either:
(i) if the decision is made by a vote—a majority of those employees who cast a valid vote; or
(ii) otherwise—a majority of those employees;
genuinely decide that they agree to the extension or variation.
(5) To avoid doubt, the terms and conditions of employment under a relevant State award may, for the purposes of paragraph (2)(c), include terms and conditions that did not apply on the reform commencement, or that have been varied since the reform commencement.
(6) In this clause:
introduction day means the day on which the Bill that became theWorkplace Relations Amendment (Transition to Forward with Fairness) Act 2008 was introduced into the House of Representatives.
relevant State award , in relation to an employee, means:
(a) if, immediately before the reform commencement, the employee was bound by, or a party to, the original collective agreement to which the preserved collective State agreement referred to in subsection (1) relates, under the terms of that agreement or a State or Territory industrial law as in force at that time—the State award that would have bound the employee at that time but for that agreement; or
(b) otherwise—the State award that would have bound, or but for the application of a State employment agreement would have bound, the employee at that time if the employee had been employed by the employer at that time.
Insert:
Insert:
(1A) A person must not:
(a) take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to the extension of the nominal expiry date of, or the variation of, a preserved collective State agreement under clause 16A.
Note: The heading to clause 22 of Schedule 8 is altered by adding at the end “
etc. ”.
Omit “Subclause (1)”, substitute “This clause”.
Omit “subclause (1)”, substitute “this clause”.
Repeal the subclause, substitute:
(1) A notional agreement preserving State awards ceases to be in operation at the end of:
(a) unless paragraph (b) applies, 31 December 2009; or
(b) if a later date is prescribed by the regulations—that later date.
Omit all the words after “operation”, substitute “under subclause 38A(1) of Schedule 8;”.
Repeal the paragraph, substitute:
(c) in any other case—at the end of:
(i) unless paragraph (b) applies, 31 December 2009; or
(ii) if a later date is prescribed by the regulations—that later date.
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