Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Workplace Relations Amendment (Work Choices) Act 2005
Act No. 153 of 2005 as amended
This compilation was prepared on 29 March 2007
[This Act was amended by Act No. 163 of 2006; No. 8 of 2007]
Amendments from Act No. 163 of 2006
[Schedule 6 (items 49 and 50) amended Schedule 4 (item 5A)
Schedule 6 (items 49 and 50) commenced on 12 December 2006]
For application provision see Act No. 163, 2006, Schedule 6 (item 62)
Amendments from Act No. 8 of 2007
[Schedule 2 (item 17) amended item 187 of Schedule 1
Schedule 2 (item 18) amended item 24 of Schedule 4
Schedule 2 (item 17) commenced immediately before 27 March 2006
Schedule 2 (item 18) commenced immediately after 27 March 2006]
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
1............ Short title............................................................................................ 1
2............ Commencement.................................................................................. 1
3............ Schedule(s).......................................................................................... 2
Schedule 1—Main amendments 3
Workplace Relations Act 1996 3
Schedule 1A—Establishment of Australian Fair Pay Commission 705
Workplace Relations Act 1996 705
Financial Management and Accountability Regulations 1997 720
Schedule 2—Transitional arrangements for State organisations 722
Workplace Relations Act 1996 722
Schedule 3—School‑based apprentices and trainees 729
Workplace Relations Act 1996 729
Schedule 3A—Redundancy pay by small business employers 737
Workplace Relations Act 1996 737
Schedule 4—Transitional and other provisions 744
Part 1—Regulations for transitional etc. provisions and consequential amendments 744
Part 2—Transitional, application and saving provisions 745
Division 1—Definitions used in this Part 745
Division 2—Awards 745
Division 3—Termination of employment 747
Division 4—Miscellaneous 750
Schedule 5—Renumbering the Workplace Relations Act 1996 756
Workplace Relations Act 1996 756
An Act to amend the law relating to workplace relations, and for related purposes
[Assented to 14 December 2005]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Workplace Relations Amendment (Work Choices) Act 2005.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information | ||
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 14 December 2005 |
| 2. Schedule 1 | 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. | 27 March 2006 (see F2006L00836) |
| 2A. Schedule 1A | The day on which this Act receives the Royal Assent. | 14 December 2005 |
| 3. Schedule 2 | 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. | 27 March 2006 (see F2006L00836) |
| 4. Schedule 3 | The day on which this Act receives the Royal Assent. | 14 December 2005 |
| 4A. Schedule 3A | The day on which this Act receives the Royal Assent. | 14 December 2005 |
| 5. Schedule 4, Part 1 | The day on which this Act receives the Royal Assent. | 14 December 2005 |
| 6. Schedule 4, Part 2 | At the same time as the provision(s) covered by table item 2. | 27 March 2006 |
| 7. Schedule 5 | 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. | 27 March 2006 (see F2006L00836) |
Note: This table relates only to the provisions of this Act as originally passed by 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.
3 Schedule(s)
(1) Each Act, and each set of regulations, 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.
(2) The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor‑General.
Schedule 1—Main amendments
Workplace Relations Act 1996
1 Section 3
Repeal the section, substitute:
3 Principal object
The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:
(a) encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market; and
(b) establishing and maintaining a simplified national system of workplace relations; and
(c) providing an economically sustainable safety net of minimum wages and conditions for those whose employment is regulated by this Act; and
(d) ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level; and
(e) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances; and
(f) ensuring compliance with minimum standards, industrial instruments and bargaining processes by providing effective means for the investigation and enforcement of:
(i) employee entitlements; and
(ii) the rights and obligations of employers and employees, and their organisations; and
(g) ensuring that awards provide minimum safety net entitlements for award‑reliant employees which are consistent with Australian Fair Pay Commission decisions and which avoid creating disincentives to bargain at the workplace level; and
(h) supporting harmonious and productive workplace relations by providing flexible mechanisms for the voluntary settlement of disputes; and
(i) balancing the right to take industrial action for the purposes of collective bargaining at the workplace level with the need to protect the public interest and appropriately deal with illegitimate and unprotected industrial action; and
(j) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and
(k) protecting the competitive position of young people in the labour market, promoting youth employment, youth skills and community standards and assisting in reducing youth unemployment; and
(l) assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers; and
(m) respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and
(n) assisting in giving effect to Australia’s international obligations in relation to labour standards.
2 Section 4
Repeal the section, substitute:
4 Definitions
(1) In this Act, unless the contrary intention appears:
A.C.T. Consequential Provisions Act means the A.C.T. Self‑Government (Consequential Provisions) Act 1988.
AFPC has the meaning given by section 7F.
allowable award matters means the matters referred to in subsection 116(1).
Note: The matters referred to in subsection 116(1) have a meaning that is affected by section 116B.
alternative dispute resolution process has the meaning given by section 176A.
Anti‑Discrimination Conventions means:
(a) the Equal Remuneration Convention; and
(b) the Convention on the Elimination of all Forms of Discrimination against Women, a copy of the English text of which is set out in the Schedule to the Sex Discrimination Act 1984; and
(c) the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and
(d) Articles 3 and 7 of the International Covenant on Economic, Social and Cultural Rights.
APCS has the meaning given by section 90B.
applies to employment generally: a law of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:
(a) all employers and employees in the State or Territory; or
(b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.
For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.
arbitration powers means the powers of the Commission in relation to arbitration.
Australian‑based employee means:
(a) an employee whose primary place of work is in Australia, in Australia’s exclusive economic zone or in, on, or over Australia’s continental shelf; or
(b) an employee who is employed by the Commonwealth or a Commonwealth authority, except an employee engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories; or
(c) an employee who is prescribed by the regulations for the purposes of this definition.
Note: Subsection 4AA(1) defines employee.
Australian Capital Territory Government Service means the service established by the Public Sector Management Act 1994 of the Australian Capital Territory.
Australian employer means:
(a) an employer that is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or
(b) an employer that is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or
(c) an employer that is the Commonwealth; or
(d) an employer that is a Commonwealth authority; or
(e) an employer that is a body corporate incorporated in a Territory; or
(f) an employer that carries on in Australia, in Australia’s exclusive economic zone or in, on, or over Australia’s continental shelf an activity (whether of a commercial, governmental or other nature) whose central management and control is in Australia; or
(g) an employer that is prescribed by the regulations for the purposes of this definition.
Note: Subsection 4AB(1) defines employer.
Australian Fair Pay and Conditions Standard has the meaning given by subsection 89(3).
Australian workplace agreement or AWA has the meaning given by section 96.
Australia’s continental shelf means the continental shelf (as defined in the Seas and Submerged Lands Act 1973) of Australia.
Australia’s exclusive economic zone means the exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia.
AWA: see Australian workplace agreement.
award means:
(a) an award made by the Commission under section 118E; or
(b) a pre‑reform award.
award rationalisation process means a process of award rationalisation conducted as a result of an award rationalisation request.
award rationalisation request has the meaning given by section 118.
award‑related order means an order varying, revoking or suspending an award.
award simplification process means a process of reviewing and simplifying awards under section 118M.
bargaining agent means:
(a) in relation to an AWA—a person who has been duly appointed as a bargaining agent in relation to the AWA in accordance with section 97A; or
(b) in relation to an employee collective agreement—a person who has been requested to be a bargaining agent in relation to the agreement in accordance with section 97B.
BCII Act means the Building and Construction Industry Improvement Act 2005.
breach includes non‑observance.
Chief Justice means the Chief Justice of the Court.
civil remedy provision has the meaning given by section 188.
collective agreement means:
(a) an employee collective agreement; or
(b) a union collective agreement; or
(c) an employer greenfields agreement; or
(d) a union greenfields agreement; or
(e) a multiple‑business agreement.
Commission means the Australian Industrial Relations Commission.
Commissioner means a Commissioner of the Commission.
committee of management, in relation to an organisation, association or branch of an organisation or association, means the group or body of persons (however described) that manages the affairs of the organisation, association or branch.
Commonwealth authority means:
(a) a body corporate established for a public purpose by or under a law of the Commonwealth; or
(b) a body corporate:
(i) incorporated under a law of the Commonwealth or a State or Territory; and
(ii) in which the Commonwealth has a controlling interest.
conciliation powers means the powers of the Commission in relation to conciliation.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
constitutional trade or commerce means trade or commerce:
(a) between Australia and a place outside Australia; or
(b) among the States; or
(c) between a State and a Territory; or
(d) between 2 Territories; or
(e) within a Territory.
contingency fee agreement means an agreement between a legal practitioner and a person under which:
(a) the legal practitioner agrees to provide legal services; and
(b) the payment of all, or a substantial proportion, of the legal practitioner’s costs is contingent on the outcome of the matter in which the practitioner provides the legal services for the person.
Court means the Federal Court of Australia.
Note: For the purposes of various provisions of this Act, Court means the Federal Court of Australia or the Federal Magistrates Court. This is indicated by definitions that apply for the purposes of those provisions.
demarcation dispute includes:
(a) a dispute arising between 2 or more organisations, or within an organisation, as to the rights, status or functions of members of the organisations or organisation in relation to the employment of those members; or
(b) a dispute arising between employers and employees, or between members of different organisations, as to the demarcation of functions of employees or classes of employees; or
(c) a dispute about the representation under this Act, or the Registration and Accountability of Organisations Schedule, of the industrial interests of employees by an organisation of employees.
Deputy President means a Deputy President of the Commission.
employee has a meaning affected by section 4AA.
employee collective agreement has the meaning given by section 96A.
employer has a meaning affected by section 4AB.
employer greenfields agreement has the meaning given by section 96D.
employing authority, in relation to a class of employees, means the person or body, or each of the persons or bodies, prescribed as the employing authority in relation to the class of employees.
employment has a meaning affected by section 4AC.
Employment Advocate means the Employment Advocate referred to in Part IVA.
Equal Remuneration Convention means the Equal Remuneration Convention, 1951.
Family Responsibilities Convention means the Workers with Family Responsibilities Convention, 1981, a copy of the English text of which is set out in Schedule 12.
flight crew officer has the meaning given by clause 1 of Schedule 1.
Full Bench means a Full Bench of the Commission.
Full Court means a Full Court of the Court.
greenfields agreement means a union greenfields agreement or an employer greenfields agreement.
industrial action has the meaning given by section 106A.
Industrial Registrar means the Industrial Registrar appointed under section 67.
Industrial Registry means the Australian Industrial Registry.
industry includes:
(a) any business, trade, manufacture, undertaking or calling of employers; and
(b) any calling, service, employment, handicraft, industrial occupation or vocation of employees; and
(c) a branch of an industry and a group of industries.
inspector means a workplace inspector.
Judge means:
(a) in the case of a reference to the Court or a Judge—a Judge (including the Chief Justice) sitting in Chambers; or
(b) otherwise—a Judge of the Court (including the Chief Justice).
judgment means a judgment, decree or order, whether final or interlocutory, or a sentence.
legal practitioner means a legal practitioner (however described) of the High Court or of a Supreme Court of a State or Territory.
magistrate’s court means:
(a) a court constituted by a police, stipendiary or special magistrate; or
(b) a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate.
maritime employee has the meaning given by clause 1 of Schedule 1.
model dispute resolution process means the process set out in Division 2 of Part VIIA.
multiple‑business agreement has the meaning given by section 96E.
new APCS has the meaning given by subsection 90ZJ(1).
nominal expiry date of a workplace agreement has the meaning given by section 101.
Northern Territory authority means:
(a) a body corporate established for a public purpose by or under a law of the Northern Territory; or
(b) a body corporate:
(i) incorporated under a law of the Northern Territory; and
(ii) in which the Northern Territory has a controlling interest;
other than a prescribed body.
notional agreement preserving State awards has the meaning given by clause 1 of Schedule 15.
occupier, in relation to premises, includes a person in charge of the premises.
office, in relation to an organisation or a branch of an organisation, has the same meaning as in the Registration and Accountability of Organisations Schedule.
officer, in relation to an organisation or a branch of an organisation, means a person who holds an office in the organisation or branch.
organisation means an organisation registered under the Registration and Accountability of Organisations Schedule.
Note: An organisation that was registered under the Workplace Relations Act 1996 immediately before the commencement of item 1 of Schedule 2 to the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (the Consequential Provisions Act) is taken to have been registered under the Registration and Accountability of Organisations Schedule (see item 15 of Schedule 1 to the Consequential Provisions Act).
panel means a panel to which an industry has been assigned under section 37.
peak council means a national or State council or federation that is effectively representative of a significant number of organisations representing employers or employees in a range of industries.
penalty unit has the meaning given by section 4AA of the Crimes Act 1914.
person includes an organisation.
pilot has the meaning given by clause 1 of Schedule 1.
premises includes any land, building, structure, mine, mine working, ship, aircraft, vessel, vehicle or place.
pre‑reform AWA has the meaning given by clause 1 of Schedule 14.
pre‑reform award means an instrument that has effect after the reform commencement under item 4 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005.
prescribed includes prescribed by Rules of the Commission made under section 48.
preserved APCS has the meaning given by subsection 90ZD(1).
preserved award entitlement, in relation to an employee, has the meaning given by section 117B.
preserved award term has the meaning given by section 117.
preserved State agreement has the meaning given by clause 1 of Schedule 15.
President means the President of the Commission.
Presidential Member means the President, a Vice President, a Senior Deputy President or a Deputy President.
previous Act means the Conciliation and Arbitration Act 1904, and includes any other Act so far as the other Act affects the operation of that Act.
proceeding includes a proceeding relating to the following:
(a) an award rationalisation process;
(b) an award simplification process.
protected action has the meaning given by section 108.
protected action ballot means a ballot under Division 4 of Part VC.
public sector employment means employment of, or service by, a person in any capacity (whether permanently or temporarily and whether full‑time or part‑time):
(a) under the Public Service Act 1999 or the Parliamentary Service Act 1999; or
(b) by or in the service of a Commonwealth authority; or
(c) under a law of the Australian Capital Territory relating to employment by that Territory, including a law relating to the Australian Capital Territory Government Service; or
(d) by or in the service of:
(i) an enactment authority as defined by section 3 of the A.C.T. Consequential Provisions Act; or
(ii) a body corporate incorporated under a law of the Australian Capital Territory and in which the Australian Capital Territory has a controlling interest;
other than a prescribed authority or body; or
(e) under a law of the Northern Territory relating to the Public Service of the Northern Territory; or
(f) by or in the service of a Northern Territory authority; or
(g) by or in the service of a prescribed person or under a prescribed law;
but, other than in section 44N, does not include:
(h) employment of, or service by, a person included in a prescribed class of persons; or
(i) employment or service under a prescribed law.
reform commencement means the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005.
Registrar means the Industrial Registrar or a Deputy Industrial Registrar.
Registration and Accountability of Organisations Schedule means Schedule 1B.
registry means the Principal Registry or another registry established under section 64.
regular part‑time employee means an employee who:
(a) works less than full‑time ordinary hours; and
(b) has reasonably predictable hours of work; and
(c) receives, on a pro‑rata basis, equivalent pay and conditions to those specified in an award or awards for full‑time employees who do the same kind of work.
secondary office, in relation to a person who holds an office of member of the Commission and an office of member of a prescribed State industrial authority, means the office to which the person was most recently appointed.
Senior Deputy President means a Senior Deputy President of the Commission.
ship has the meaning given by clause 1 of Schedule 1.
single business has the meaning given by section 95A.
special magistrate means a magistrate appointed as a special magistrate under a law of a State or Territory.
State award means an award, order, decision or determination of a State industrial authority.
State employment agreement means an agreement:
(a) between an employer and one or more of the following:
(i) an employee of the employer;
(ii) a trade union; and
(b) that regulates wages and conditions of employment of one or more of the employees; and
(c) that is in force under a State or Territory industrial law; and
(d) that prevails over an inconsistent State award.
State industrial authority means:
(a) a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or
(b) a special board constituted under a State Act relating to factories; or
(c) any other State board, court, tribunal, body or official prescribed for the purposes of this definition.
State or Territory industrial law means:
(a) any of the following State Acts:
(i) the Industrial Relations Act 1996 of New South Wales;
(ii) the Industrial Relations Act 1999 of Queensland;
(iii) the Industrial Relations Act 1979 of Western Australia;
(iv) the Fair Work Act 1994 of South Australia;
(v) the Industrial Relations Act 1984 of Tasmania; or
(b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:
(i) regulating workplace relations (including industrial matters, industrial disputes and industrial action, within the ordinary meaning of those expressions);
(ii) providing for the determination of terms and conditions of employment;
(iii) providing for the making and enforcement of agreements determining terms and conditions of employment;
(iv) providing for rights and remedies connected with the termination of employment;
(v) prohibiting conduct that relates to the fact that a person either is, or is not, a member of an industrial association (as defined in section 240); or
(c) an instrument made under an Act described in paragraph (a) or (b), so far as the instrument is of a legislative character; or
(d) a law that:
(i) is a law of a State or Territory; and
(ii) is prescribed by regulations for the purposes of this paragraph.
State or Territory training authority means a body authorised by a law or award of a State or Territory for the purpose of overseeing arrangements for the training of employees.
stevedoring operations has the meaning given by clause 1 of Schedule 1.
Termination of Employment Convention means the Termination of Employment Convention, 1982, a copy of the English text of which is set out in Schedule 10.
this Act includes the regulations but does not include Schedule 1B or regulations made under that Schedule.
trade union means:
(a) an organisation of employees; or
(b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory; or
(c) an association of employees a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment.
training arrangement means a combination of work and training that is subject to a training agreement or a training contract between the employee and employer that is registered:
(a) with the relevant State or Territory training authority; or
(b) under a law of a State or Territory relating to the training of employees.
union collective agreement has the meaning given by section 96B.
union greenfields agreement has the meaning given by section 96C.
Vice President means a Vice President of the Commission.
vocational placement means a placement that is:
(a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and
(b) undertaken as a requirement of an education or training course; and
(c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.
waterside worker has the meaning given by clause 1 of Schedule 1.
wharf has the meaning given by clause 1 of Schedule 1.
working day means a day that is not a Saturday, a Sunday or a public holiday.
workplace agreement means:
(a) an AWA; or
(b) a collective agreement.
Note: Section 95D affects the meaning of workplace agreement.
workplace determination means a determination under Division 8 of Part VC.
workplace inspector means a person appointed as a workplace inspector under section 84.
(2) To avoid doubt, it is declared that a reference in this Act (except in Parts VI and XA, and in regulations made for the purposes of section 101D) to an independent contractor is confined to a natural person.
(3) In this Act, a reference to:
(a) a person who is eligible to become a member of an organisation; or
(b) a person who is eligible for membership of an organisation;
includes a reference to a person who is eligible merely because of an agreement made under rules of the organisation made under subsection 151(1) of the Registration and Accountability of Organisations Schedule.
(4) In this Act, a reference to a person making a statement that is to the person’s knowledge false or misleading in a material particular includes a reference to a person making a statement where the person is reckless as to whether the statement is false or misleading in a material particular.
(5) In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.
(6) A reference in this Act to a term of an award includes a reference to a provision of an award.
Note: Section 69B of the Australian Federal Police Act 1979 provides that this Act does not apply to certain matters relating to AFP employees.
3 After section 4
Insert:
4AA Employee
Basic definition
(1) In this Act, unless the contrary intention appears:
employee means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 4AB(1), by an employer, except on a vocational placement.
Note: See also Part XV (employees and employers in Victoria).
References to employee with ordinary meaning
(2) However, a reference to employee has its ordinary meaning (subject to subsections (3) and (4)) if the reference is listed in clause 2 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).
Note: The regulations may amend clause 2 of Schedule 1. See clause 5 of Schedule 1.
(3) In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning includes a reference to an individual who is usually an employee with that meaning.
(4) In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning does not include a reference to an individual on a vocational placement.
4AB Employer
Basic definition
(1) In this Act, unless the contrary intention appears:
employer means:
(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b) the Commonwealth, so far as it employs, or usually employs, an individual; or
(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d) a person or entity (which may be an unincorporated club) so far as the person or entity, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i) a flight crew officer; or
(ii) a maritime employee; or
(iii) a waterside worker; or
(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f) 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, so far as the person or entity employs, or usually employs, an individual in connection with the activity carried on in the Territory.
Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of the Acts Interpretation Act 1901.
Note 2: See also Part XV (employees and employers in Victoria).
References to employer with ordinary meaning
(2) However, a reference to employer has its ordinary meaning (subject to subsection (3)) if the reference is listed in clause 3 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).
Note: The regulations may amend clause 3 of Schedule 1. See clause 5 of Schedule 1.
(3) In this Act, unless the contrary intention appears, a reference to employer with its ordinary meaning includes a reference to a person or entity that is usually an employer with that meaning.
4AC Employment
(1) In this Act, unless the contrary intention appears:
employment means the employment of an employee by an employer.
Note: Subsections 4AA(1) and 4AB(1) define employee and employer.
References to employment with ordinary meaning
(2) However, a reference to employment has its ordinary meaning if the reference is listed in clause 4 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).
Note: The regulations may amend clause 4 of Schedule 1. See clause 5 of Schedule 1.
4 Section 4A
Repeal the section, substitute:
4A Schedules 1B, 13, 14, 15 and 16 have effect
Schedules 1B, 13, 14, 15 and 16 have effect.
Note 1: Schedule 1B is about registration and accountability of organisations.
Note 2: Schedule 13 is about transitional arrangements for parties bound by federal awards.
Note 3: Schedule 14 is about transitional arrangements for existing pre‑reform certified agreements.
Note 4: Schedule 15 is about transitional treatment of State employment agreements and State awards.
Note 5: Schedule 16 is about transitional instruments and transmission of business.
5 Sections 5 and 5AA
Repeal the sections.
6 Section 7
Repeal the section, substitute:
7 Modifications for Christmas Island and Cocos (Keeling) Islands
(1) If the regulations prescribe modifications of this Act for its application in relation to the Territory of Christmas Island, this Act has effect as modified in relation to the Territory.
(2) If the regulations prescribe modifications of this Act for its application in relation to the Territory of Cocos (Keeling) Islands, this Act has effect as modified in relation to the Territory.
(3) In this section:
modifications includes additions, omissions and substitutions.
7AAA Exclusion of persons insufficiently connected with Australia
(1) A provision of this Act prescribed by the regulations does not apply to a person or entity in Australia prescribed by the regulations as a person to whom, or an entity to which, the provision does not apply.
Note 1: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.
Note 2: The regulations may prescribe the person or entity by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003.
(2) Before the Governor‑General makes regulations for the purposes of subsection (1) prescribing either or both of the following:
(a) a provision of this Act that is not to apply to a person or entity;
(b) a person to whom, or an entity to which, a provision of this Act is not to apply;
the Minister must be satisfied that the provision should not apply to the person or entity in Australia because there is not a sufficient connection between the person or entity and Australia.
(3) In this section:
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
7AA Extraterritorial application
(1) Each Part or Division listed in the table, and the rest of this Act so far as it relates to the Part or Division, extends to persons, acts, omissions, matters and things outside Australia as described in the relevant section listed in the table.
| Extraterritorial application | ||||
| Item | This Part or Division: | Which is about this topic: | Extends to persons, acts, omissions, matters and things outside Australia as described in this section: | |
| 1 | Part VA | The Australian Fair Pay and Conditions Standard | Section 89D | |
| 2 | Part VB | Workplace agreements | Section 95E | |
| 3 | Part VI | Awards | Section 115C | |
| 4 | Division 1 of Part VIA | Meal breaks | Section 170AD | |
| 4A | Division 1A of Part VIA | Public holidays | Section 170AM | |
| 5 | Division 2 of Part VIA | Equal remuneration for work of equal value | Section 170BGD | |
| 6 | Division 3 of Part VIA | Termination of employment | Section 170CCB | |
| 7 | Part IX | Right of entry | Section 200 | |
| 8 | Part XA | Freedom of association | Section 249 | |
Note 1: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.
Note 2: Provisions of section 86 giving inspectors power to enter certain premises and places and do certain things there also extend to some premises and places outside Australia, subject to Australia’s international obligations relating to foreign‑flagged ships and foreign‑registered aircraft.
Note 3: Part VC (Industrial action) and related provisions of this Act may extend in relation to Australia’s exclusive economic zone, and in relation to Australia’s continental shelf, as prescribed by the regulations. See section 106C.
Modified application in Australia’s exclusive economic zone
(2) If the regulations prescribe modifications of this Act for its operation in relation to all or part of Australia’s exclusive economic zone, then, so far as this Act extends to the zone or part apart from this subsection, it has effect as modified in relation to the zone or part.
(3) For the purposes of subsection (2), the regulations may prescribe different modifications in relation to different parts of Australia’s exclusive economic zone.
Modified application in relation to Australia’s continental shelf
(4) If the regulations prescribe modifications of this Act for its operation in relation to all or part of Australia’s continental shelf, then, so far as this Act extends in relation to the continental shelf or part apart from this subsection, it has effect as modified in relation to the continental shelf or part.
(5) For the purposes of subsection (4), the regulations may prescribe different modifications in relation to different parts of Australia’s continental shelf.
Definitions
(6) In this section:
modifications includes additions, omissions and substitutions.
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
7 Section 7B
Before “Chapter”, insert “(1)”.
8 At the end of section 7B
Add:
(2) However, so far as Part 2.7 of the Criminal Code is relevant to this Act, it has effect subject to the following sections of this Act:
(a) section 7AA;
(b) the sections mentioned in section 7AA;
(c) section 86;
(d) section 106C.
Note: Part 2.7 of the Criminal Code is about geographical jurisdiction in connection with offences. Section 7AA, the sections mentioned there and sections 86 and 106C deal with extraterritorial operation of this Act.
9 At the end of Part I
Add:
7C Act excludes some State and Territory laws
(1) This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer:
(a) a State or Territory industrial law;
(b) a law that applies to employment generally and deals with leave other than long service leave;
(c) a law providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal value (as defined in section 170BB);
(d) a law providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;
(e) a law that entitles a representative of a trade union to enter premises.
Note: Subsection 4(1) defines applies to employment generally.
State and Territory laws that are not excluded
(2) However, subsection (1) does not apply to a law of a State or Territory so far as:
(a) the law deals with the prevention of discrimination, the promotion of EEO or both, and is neither a State or Territory industrial law nor contained in such a law; or
(b) the law is prescribed by the regulations as a law to which subsection (1) does not apply; or
(c) the law deals with any of the matters (the non‑excluded matters) described in subsection (3).
(3) The non‑excluded matters are as follows:
(a) superannuation;
(b) workers compensation;
(c) occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety);
(ca) matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers);
(d) child labour;
(e) long service leave;
(f) the observance of a public holiday, except the rate of payment of an employee for the public holiday;
(g) the method of payment of wages or salaries;
(h) the frequency of payment of wages or salaries;
(i) deductions from wages or salaries;
(k) industrial action (within the ordinary meaning of the expression) affecting essential services;
(l) attendance for service on a jury;
(m) regulation of any of the following:
(i) associations of employees;
(ii) associations of employers;
(iii) members of associations of employees or of associations of employers.
Note: Part IX (Right of entry) sets prerequisites for a trade union representative to enter certain premises under a right given by a prescribed law of a State or Territory. The prerequisites apply even though the law deals with such entry for a purpose connected with occupational health and safety and paragraph (2)(c) says this Act is not to apply to the exclusion of a law dealing with that.
This Act excludes prescribed State and Territory laws
(4) This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations for the purposes of this subsection.
(4A) To avoid doubt, subsection (4) has effect even if the law is covered by subsection (2) (so that subsection (1) does not apply to the law). This subsection does not limit subsection (4).
Definition
(5) In this section:
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
7D Awards, agreements and Commission orders prevail over State and Territory law etc.
(1) An award or workplace agreement prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency.
(2) However, a term of an award or workplace agreement dealing with any of the following matters has effect subject to a law of a State or Territory dealing with the matter, except a law that is prescribed by the regulations as a law to which awards and workplace agreements are not subject:
(a) occupational health and safety;
(b) workers compensation;
(c) training arrangements;
(d) a matter prescribed by the regulations for the purposes of this paragraph.
(3) An order of the Commission under Part VIA prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency.
Note: Part VIA is about minimum entitlements of employees.
7E Act may exclude State and Territory laws in other cases
(1) Sections 7C and 7D are not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws.
Note: Other provisions of this Act deal with its relationship with laws of the States and Territories. For example, see clause 87 of Schedule 13, which is about not excluding or limiting Victorian law that can operate concurrently with certain provisions of that Schedule.
(2) In this section:
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
11 Section 33
Repeal the section, substitute:
33 Exercise of Commission powers
(1) The Commission may perform a function or exercise a power on its own initiative.
(2) Despite subsection (1), the Commission must not perform a function or exercise a power under a provision of this Act on its own initiative if:
(a) the function is to be performed, or the power exercised, on application by a specified person or class of persons; and
(b) the function is not also expressed to be able to be performed, or the power exercised, on the Commission’s own initiative.
12 Subsection 36(3)
Repeal the subsection.
13 Section 39
Repeal the section.
14 At the end of Division 2 of Part II
Add:
41A Co‑operation with the States by President
The President may invite the heads of State industrial authorities to meet with the President to exchange information and discuss matters of mutual interest in relation to workplace relations.
41B Co‑operation with the States by Registrar
The Industrial Registrar may invite the principal registrars of State industrial authorities to meet with the Industrial Registrar to exchange information and discuss matters of mutual interest in relation to workplace relations.
15 Subsection 42(3)
Repeal the subsection, substitute:
(3) A party (including an employing authority) may be represented by counsel, solicitor or agent if:
(a) all parties have given express consent to that representation; and
(b) the Commission grants leave for the party to be so represented.
(3A) A party (including an employing authority) may be represented by counsel, solicitor or agent if:
(a) the party applies to the Commission to be so represented; and
(b) the Commission grants leave for the party to be so represented.
(3B) In deciding whether or not to grant leave under subsection (3), the Commission must have regard to the following matters:
(a) whether being represented by counsel, solicitor or agent would assist the party concerned to bring the best case possible;
(b) the capacity of the particular counsel, solicitor or agent to represent the party concerned;
(c) the capacity of the particular counsel, solicitor or agent to assist the Commission in performing the Commission’s functions under this Act.
(3C) In deciding whether or not to grant leave under subsection (3A), the Commission must have regard to the following matters:
(a) the matters referred to in paragraphs (3B)(a), (b) and (c);
(b) the complexity of the factual and legal issues relating to the proceeding;
(c) whether there are special circumstances that make it desirable that the party concerned be represented by counsel, solicitor or agent;
(d) if the party applies to be represented by an agent—whether the agent is a person or body, or an officer or employee of a person or body, that is able to represent the interests of the party under a State or Territory industrial relations law.
(3D) An appeal to a Full Bench under section 45 may not be made in relation to a decision under subsection (3) or (3A) to grant leave or not to grant leave.
16 At the end of paragraphs 42(7)(a) and (b)
Add “or”.
17 At the end of subsection 42(7)
Add:
; or (e) a bargaining agent.
18 Subsection 43(1)
Omit “(1)”.
19 Subsection 43(2)
Repeal the subsection.
20 After Division 3 of Part II
Insert:
Division 3A—General matters relating to the powers and procedures of the Commission
Subdivision A—General matters Commission to take into account
44A Commission to take into account the public interest
(1) In the performance of its functions, the Commission must take into account the public interest, and for that purpose must have regard to:
(a) the objects of this Act; and
(b) the state of the national economy and the likely effects on the national economy of any order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation.
(2) To the extent that the Commission is performing its functions in relation to matters arising under the Registration and Accountability of Organisations Schedule, the Commission must take into account the public interest, and for that purpose must have regard to:
(a) Parliament’s intention in enacting that Schedule; and
(b) the state of the national economy and the likely effects on the national economy of any order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation.
(3) This section does not apply to the performance of a function under Part VC or Part VI.
44B Commission to take into account discrimination issues
In the performance of its functions, the Commission must take into account the following:
(a) the need to apply the principle of equal pay for work of equal value;
(b) the need to prevent and eliminate discrimination 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.
44C Commission to take account of Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act
In the performance of its functions, the Commission must take account of the principles embodied in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004 relating to discrimination in relation to employment.
44D Commission to take account of Family Responsibilities Convention
(1) In performing its functions, the Commission must take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:
(a) preventing discrimination against workers who have family responsibilities; and
(b) helping workers to reconcile their employment and family responsibilities.
(2) This section does not apply to the performance of a function under Part VC.
44E Safety, health and welfare of employees
(1) In performing its functions, the Commission must take into account the provisions of any law of a State or Territory relating to the safety, health and welfare of employees in relation to their employment.
(2) This section does not apply to the performance of a function under Division 2 of Part VIA.
44F Commission to act quickly
The Commission must perform its functions as quickly as practicable.
44G Commission to avoid technicalities and facilitate fair conduct of proceedings
The Commission must perform its functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of any proceedings under this Act or the Registration and Accountability of Organisations Schedule.
Subdivision B—Particular powers and procedures of the Commission
44H Procedure of Commission
(1) In a proceeding under this Act or the Registration and Accountability of Organisations Schedule:
(a) the procedure of the Commission is, subject to this Act, the Registration and Accountability of Organisations Schedule and the Rules of the Commission, within the discretion of the Commission; and
(b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just; and
(c) the Commission must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.
(2) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceeding and require that the cases be presented within the respective periods.
(3) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.
44I Particular powers of Commission
(1) The Commission may do any of the following in relation to a proceeding under this Act or the Registration and Accountability of Organisations Schedule:
(a) inform itself in any manner that it thinks appropriate;
(b) take evidence on oath or affirmation;
(c) give directions orally or in writing in the course of, or for the purposes of, procedural matters relating to the proceeding;
(d) vary or revoke an order, direction or decision of the Commission;
(e) dismiss a matter or part of a matter on the ground:
(i) that the matter, or the part of the matter, is trivial; or
(ii) that further proceedings in relation to the matter are not necessary or desirable in the public interest;
(f) determine the proceeding in the absence of a person who has been summoned or served with a notice to appear;
(g) sit at any place;
(h) conduct the proceeding, or any part of the proceeding, in private;
(i) adjourn the proceeding to any time and place;
(j) refer any matter to an expert and accept the expert’s report as evidence;
(k) direct a member of the Commission to consider a particular matter that is before the Full Bench and prepare a report for the Full Bench on that matter;
(l) allow the amendment, on any terms that it thinks appropriate, of any application or other document relating to the proceeding;
(m) correct, amend or waive any error, defect or irregularity whether in substance or form;
(n) summon before it any persons whose presence the Commission considers would assist in relation to the proceeding;
(o) compel the production before it of documents and other things for the purpose of reference to such entries or matters as relate to the proceeding;
(p) make interim decisions;
(q) make a final decision in respect of the matter to which the proceeding relates.
(2) The Commission may, in writing, authorise a person (including a member of the Commission) to take evidence on its behalf, with any limitations as the Commission directs, in relation to the proceeding, and the person has all the powers of the Commission to secure:
(a) the attendance of witnesses; and
(b) the production of documents and things; and
(c) the taking of evidence on oath or affirmation.
(3) The following provisions do not apply to the performance of a function under Part VC:
(a) paragraph (1)(e);
(b) paragraph (1)(j);
(c) paragraph (1)(k).
(4) The following provisions do not apply to the performance of a function under Division 2, 3 or 4 of Part VIA:
(a) paragraph (1)(a);
(b) paragraph (1)(e);
(c) paragraph (1)(k);
(d) paragraph (1)(p);
(e) paragraph (1)(q);
(f) subsection (2).
(5) Paragraph (1)(j) does not apply to the performance of a function under Division 3 of Part VIA.
(6) If a provision of this Act specifies a time or a period in respect of any matter or thing, the Commission must not extend the time or the period specified unless this Act expressly permits the Commission to do so.
(7) If a provision of the Registration and Accountability of Organisations Schedule specifies a time or a period in respect of any matter or thing, the Commission must not extend the time or the period specified unless the Registration and Accountability of Organisations Schedule expressly permits the Commission to do so.
(8) For the purposes of paragraph (1)(d), order does not include an award or an award‑related order.
44J Reference of proceedings to Full Bench
(1) If a proceeding is before a member of the Commission, a party to the proceeding or the Minister may apply to the member to have the proceeding dealt with by a Full Bench because the subject matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench.
(2) If an application is made under subsection (1) to a member of the Commission other than the President:
(a) the member must refer the application to the President to be dealt with; and
(b) the President must confer with the member about whether the application should be granted.
(3) If the President is of the opinion that the subject matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench, the President must grant the application.
(4) If the President grants an application under subsection (1), the Full Bench must (subject to subsection (5)) hear and determine the proceeding to which the application relates.
(5) If the President grants an application under subsection (1), the Full Bench may do either or both of the following:
(a) have regard to any evidence given, and any arguments adduced, in the proceeding before the Full Bench began to deal with it;
(b) refer a part of the proceeding to a member of the Commission to hear and determine.
(6) The President may, before a Full Bench has been established for the purpose of dealing with a proceeding under this section, authorise a member of the Commission to take evidence for the purposes of the proceeding, and the Full Bench must have regard to the evidence.
(7) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.
(8) The member must, after making such investigation (if any) as is necessary, provide a report to the President or the Full Bench, as required.
(9) In this section:
proceeding includes a part of a proceeding.
44K President may deal with certain proceedings
(1) The President may, whether or not another member of the Commission has begun to deal with a particular proceeding, decide to deal with the proceeding.
(2) If the President decides to deal with the proceeding, the President must:
(a) hear and determine the proceeding; or
(b) refer the proceeding to a Full Bench.
(3) If the President refers an application to a Full Bench, the Full Bench must (subject to subsection (4)) hear and determine the proceeding.
(4) If the President refers the proceeding to a Full Bench, the Full Bench may refer a part of the proceeding to a member of the Commission to hear and determine.
(5) The President or the Full Bench may, in dealing with the proceeding, have regard to any evidence given, and any arguments adduced, in the proceeding before the President or the Full Bench, as the case may be, began to deal with it.
(6) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.
(7) The member must, after making such investigation (if any) as is necessary, provide a report to the President or a Full Bench, as the case may be.
(8) In this section:
proceeding includes a part of a proceeding.
44L Review on application by Minister
(1) The Minister may apply to the President for a review by a Full Bench of an award or order, or a decision relating to the making of an award or order, made by a member of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) if it appears to the Minister that the award, order or decision is contrary to the public interest.
(2) If an application is made to the President under subsection (1), the President must establish a Full Bench to hear and determine the application.
(3) The Full Bench must, if in its opinion the matter is of such importance that, in the public interest, the award, order or decision should be reviewed, make such review of the award, order or decision as appears to it to be desirable having regard to the matters referred to in the application.
(4) Subject to subsection (5) of this section, subsections 45(4) to (8) apply in relation to a review under this section in the same manner as they apply in relation to an appeal under section 45.
(5) Subsections 45A(4) to (8) apply in relation to a review under this section in relation to a matter arising under the Registration and Accountability of Organisations Schedule in the same manner as they apply in relation to an appeal under section 45A.
(6) In a review under this section:
(a) the Commission must take such steps as it thinks appropriate to ensure that each person and organisation bound by the award or otherwise with an interest in the review is made aware of the review; and
(b) the Minister may intervene in the proceeding.
(7) Each provision of this Act relating to the performance of the Commission’s functions in relation to awards extends to a review under this section.
(8) Nothing in this section affects any right of appeal or any power of a Full Bench under section 45, and an appeal under that section and a review under this section may, if the Full Bench thinks appropriate, be dealt with together.
(9) Nothing in this section affects any right of appeal or any power of a Full Bench under section 45A, and an appeal under that section and a review under this section may, if the Full Bench thinks appropriate, be dealt with together.
44M Compulsory conferences
(1) For the purpose of the performance of a function, or the exercise of a power, of the Commission under this Act or the Registration and Accountability of Organisations Schedule, a member of the Commission may, on the initiative of the member or on application made by a party to, or intervener in, the proceeding, direct a person to attend, at a specified time and place, a conference to be presided over by a member of the Commission or another person nominated by the President.
Note: Contravening a direction may be an offence under section 300.
(2) A direction may be given to anyone whose presence at the conference the member considers would help in the performance of a function under this Act or the Registration and Accountability of Organisations Schedule.
(3) The conference must be held in private except to the extent that the person presiding over the conference directs that it be held in public.
(4) This section does not apply to the performance of a function under Part VC.
44N Power to override certain laws affecting public sector employment
(1) In so far as the performance of its functions under this Act or the Registration and Accountability of Organisations Schedule involves public sector employment, the Commission may, where it considers it proper to do so, make an award or order that is not, or in its opinion may not be, consistent with a relevant law of the Commonwealth or of an internal Territory.
(2) In this section:
enactment means an ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by the Northern Territory (Self‑Government) Act 1978.
relevant law means a law of the Commonwealth or an internal Territory relating to matters pertaining to the relationship between employers and employees in public sector employment, other than:
(a) the Safety, Rehabilitation and Compensation Act 1988, the Long Service Leave (Commonwealth Employees) Act 1976, the Superannuation Act 1976 or the Superannuation Act 1990; or
(b) a prescribed Act or enactment, or prescribed provisions of an Act or enactment.
(3) This section does not apply to the performance of a function under Part VIA.
44O State authorities may be restrained from dealing with matter that is before the Commission
(1) If it appears to a Full Bench that a State industrial authority is dealing or is about to deal with a matter that is the subject of a proceeding before the Commission under this Act or the Registration and Accountability of Organisations Schedule, the Full Bench may make an order restraining the State industrial authority from dealing with the matter.
(2) The State industrial authority must, in accordance with the order, cease dealing or not deal, as the case may be, with the matter.
(3) An order, award, decision or determination of a State industrial authority made in contravention of the order of a Full Bench under this section is, to the extent of the contravention, void.
44P Joint sessions of Commission
If:
(a) the President considers that a question is common to 2 or more proceedings before the Commission; and
(b) the Commission is not constituted by the same person or persons for the purposes of each proceeding;
the President may direct that the Commission constituted by all the persons who constitute the Commission for the purposes of the proceedings may take evidence or hear argument, or take evidence and hear argument, as to the question for the purposes of both or all of the proceedings.
44Q Revocation and suspension of awards and orders
(1) An organisation, a person interested or the Minister may apply to the President, and a member of the Commission or a Registrar may refer a matter to the President, for action by a Full Bench under this section.
(2) If an application is made to the President under subsection (1), the President must establish a Full Bench to hear and determine the application.
(3) If a matter is referred to the President under subsection (1), the President may establish a Full Bench to hear and determine the matter.
(4) If it appears to the Full Bench:
(a) that an organisation has contravened this Act, the Registration and Accountability of Organisations Schedule or an award or order of the Commission; or
(b) that a substantial number of the members of an organisation refuse to accept employment either at all or in accordance with existing awards or orders; or
(c) that for any other reason an award or order should be suspended or revoked in whole or part;
the Full Bench may, subject to such conditions as it thinks appropriate, make an order revoking, or suspending for such period as it thinks appropriate, the award or order or any of the terms of the award or an order.
(5) The Full Bench may also make such other orders as it thinks appropriate in relation to the operation of:
(a) if the Full Bench revokes or suspends an award or order on a ground referred to in paragraph (4)(a) or (b)—any other award or order that binds the organisation; or
(b) in any other case—any other award or order that applies in relation to the employment of:
(i) members of an organisation that is bound by the revoked or suspended award or order; or
(ii) persons eligible to be members of such an organisation.
(6) The revocation or suspension of all or any of the terms of an award or order may be expressed to apply only in relation to:
(a) a particular organisation or person bound by the award or order; or
(b) a particular branch of an organisation; or
(c) a particular class of members of an organisation; or
(d) a particular locality.
21 Paragraph 45(1)(a)
Repeal the paragraph.
22 Paragraph 45(1)(b)
Omit all the words from and including “Commission, ”, substitute “Commission; and”.
23 Paragraph 45(1)(d)
Omit “111(1)(g)”, substitute “44I(1)(e)”.
24 Paragraph 45(1)(da)
Repeal the paragraph.
25 Paragraphs 45(1)(e) and (eaa)
Repeal the paragraphs.
26 Paragraph 45(1)(eba)
Omit “or certified agreement under section 298Z”, substitute “under section 273”.
27 Paragraphs 45(1)(ea) and (eb)
Repeal the paragraphs.
28 Paragraph 45(1)(ed)
Omit “certified agreement”, substitute “workplace agreement”.
29 Paragraphs 45(3)(ab) and (ac)
Repeal the paragraphs, substitute:
(ab) in the case of an appeal under paragraph (1)(b) against an order that was made under subsection 125E(1) or subclause 14(1) or 23(1) of Schedule 16—by the person who applied for the order or any person who made submissions to the Commission on whether the order should be made; and
(ac) in the case of an appeal under paragraph (1)(c) against a decision not to make an order under subsection 125E(1) or subclause 14(1) or 23(1) of Schedule 16—by the person who applied for the order;
30 Paragraphs 45(3)(ad), (b) and (ba)
Repeal the paragraphs.
31 Subparagraphs 45(3)(baa)(i) and (ii)
Repeal the subparagraphs, substitute:
(i) an employer, employee or organisation bound by the award; or
32 Paragraph 45(3)(bab)
Repeal the paragraph.
33 Paragraph 45(3)(bb)
Omit “under section 111A”, substitute “or workplace agreement”.
34 Subsection 45(3) (note)
Repeal the note.
35 Subsection 45(3A)
Repeal the subsection.
36 Subsection 45(3B)
Repeal the subsection.
37 Paragraph 45(7)(d)
Omit “111(1)(g)”, substitute “44I(1)(e)”.
38 Subsection 45(9)
Repeal the subsection.
39 Paragraph 45A(1)(b)
Omit all the words after “Commission”, substitute “in proceedings under that Schedule, other than an order made by consent of the parties to the proceeding; and”.
40 Paragraph 45A(1)(d)
Omit “111(1)(g)”, substitute “44I(1)(e)”.
41 Paragraph 45A(7)(d)
Omit “111(1)(g)”, substitute “44I(1)(e)”.
42 Subsections 48(1A) and (1B)
Repeal the subsections.
43 Sections 83BB and 83BC
Repeal the sections, substitute:
83BB Functions of the Employment Advocate
(1) The functions of the Employment Advocate are:
(a) to promote the making of workplace agreements; and
(b) to provide assistance and advice to employees and employers (especially employers in small business) and organisations in relation to workplace agreements; and
(c) to provide education and information to employees, employers and organisations in relation to workplace agreements; and
(d) to promote better work and management practices through workplace agreements; and
(e) to accept lodgment of:
(i) workplace agreements; and
(ii) notices about transmission of instruments; and
(f) to provide advice to employees, employers and organisations about awards and the Australian Fair Pay and Conditions Standard; and
(g) to provide aggregated statistical information to the Minister; and
(h) to authorise multiple‑business agreements in accordance with the regulations; and
(i) to give to the Minister, in accordance with the regulations, information and copies of documents; and
(j) to disclose information that relates to the functions of workplace inspectors to workplace inspectors in response to requests from workplace inspectors; and
(k) to disclose information to workplace inspectors that the Employment Advocate considers on reasonable grounds is likely to assist the inspectors in performing their functions; and
(l) to analyse workplace agreements; and
(m) to perform any other function conferred on the Employment Advocate by this Act, another Act, the regulations or the Registration and Accountability of Organisations Schedule.
(2) In performing his or her functions relating to workplace agreements, the Employment Advocate must encourage parties to agreement‑making to take account of the needs of workers in disadvantaged bargaining positions (for example: women, people from a non‑English speaking background, young people, apprentices, trainees and outworkers).
(3) In performing his or her functions, the Employment Advocate must have particular regard to:
(a) assisting workers to balance work and family responsibilities; and
(b) the need to prevent and eliminate discrimination 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.
(4) Regulations made for the purposes of paragraph (1)(i) may require that documents given to the Minister are given with such deletions as are necessary to prevent the identification of individuals to whom the documents refer.
83BC Minister’s directions to Employment Advocate
(1) The Minister may, by legislative instrument, give directions specifying the manner in which the Employment Advocate must exercise or perform the powers or functions of the Employment Advocate.
(2) The directions must not be about a particular workplace agreement.
(3) The Employment Advocate must comply with the directions.
44 Subsection 83BE(2)
Omit “under Part VID relating to the approval of AWAs and ancillary documents”, substitute “relating to the authorisation of multiple‑business agreements”.
45 Subsection 83BE(3)
Repeal the subsection.
46 Division 2 of Part IVA
Repeal the Division.
47 Section 83BS
Repeal the section, substitute:
83BS Identity of parties to AWAs not to be disclosed
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information is protected information; and
(c) the discloser has reasonable grounds to believe that the information will identify another person as being, or having been, a party to an AWA; and
(d) the disclosure is not made by the discloser in the course of performing functions or duties as a workplace agreement official; and
(e) the disclosure is not required or permitted by this Act, by another Act, by regulations made for the purposes of another provision of this Act or by regulations made for the purposes of another Act; and
(f) the person whose identity is disclosed has not, in writing, authorised the disclosure.
Penalty: Imprisonment for 6 months.
(2) In this section:
protected information, in relation to a person, means information that the person acquired:
(a) in the course of performing functions or duties, or exercising powers, as a workplace agreement official; or
(b) from a workplace agreement official who acquired the information as mentioned in paragraph (a).
workplace agreement official means:
(a) the Employment Advocate; or
(b) a delegate of the Employment Advocate; or
(c) a member of the staff assisting the Employment Advocate under section 83BD.
48 Section 83BT
Omit “AWAs or ancillary documents”, substitute “workplace agreements”.
49 Part V (heading)
Repeal the heading, substitute:
Part V—Workplace inspectors
50 Subsection 84(1)
Before “inspectors”, insert “workplace”.
51 Subsection 84(2)
Repeal the subsection, substitute:
(2) The Minister may, by instrument, appoint as a workplace inspector:
(a) a person who has been appointed, or who is employed, by the Commonwealth; or
(b) a person, other than a person mentioned in paragraph (a).
52 Subsection 84(3)
Repeal the subsection, substitute:
(3) A person appointed under paragraph (2)(a) is appointed for the period specified in regulations made for the purposes of this subsection.
(3A) A person appointed under paragraph (2)(b) is appointed for the period specified in the person’s instrument of appointment, which must not be longer than the period specified in regulations made for the purposes of this subsection.
53 Subsection 84(4)
Omit “an inspector has such powers and functions in relation to the observance of this Act, awards and certified agreements as are conferred by this Act”, substitute “a workplace inspector has the powers and functions conferred on a workplace inspector by this Act or by the regulations or by another Act”.
54 Subsection 84(4A)
Omit “an inspector has such powers and functions in relation to the observance of this Act, awards and certified agreements as are conferred on an inspector by this Act and”, substitute “a workplace inspector has only such of the powers and functions mentioned in subsection (4) as are”.
55 Subsection 84(5)
Omit “by notice published in the Gazette”, substitute “by legislative instrument”.
56 Subsection 84(6)
Omit “An inspector shall”, substitute “A workplace inspector must”.
57 Subsection 85(2)
Omit “shall”, substitute “must”.
58 At the end of section 85
Add:
(3) A person commits an offence if:
(a) the person ceases to be a workplace inspector; and
(b) the person does not return the person’s identity card to the Secretary of the Department within 14 days of so ceasing.
Penalty: 1 penalty unit.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
59 Subsection 86(1)
Repeal the subsection, substitute:
Purpose for which powers of inspectors can be exercised
(1) The powers of a workplace inspector under this section may be exercised:
(a) for the purpose of determining whether any of the following are being, or have been, observed:
(i) workplace agreements;
(ii) awards;
(iii) the Australian Fair Pay and Conditions Standard;
(iv) minimum entitlements and orders under Part VIA;
(v) the requirements of this Act (other than section 541) and the regulations; or
(b) for the purposes of a provision of the regulations that confers powers or functions on inspectors.
Note: Workplace determinations are treated for the purposes of the Act as if they were collective agreements (see section 113F). Undertakings are treated the same way (see section 103M). This means that inspectors also have powers in relation to those instruments.
60 Subparagraph 86(1A)(a)(i)
Omit “an award or certified agreement”, substitute “an instrument or entitlement mentioned in subparagraphs (1)(a)(i) to (iv)”.
61 Subparagraph 86(1A)(b)(iii)
Omit “any employee”, substitute “any person”.
62 At the end of paragraph 86(1A)(b)
Add:
(vi) to require a person to tell the inspector who has custody of a document; and
63 Paragraph 86(1A)(c)
Omit “to the inspector a document relevant to the purpose set out in subsection (1)”, substitute “a document to the inspector”.
64 At the end of subsection 86(1A)
Add:
Note: Contravening a requirement under subparagraph (b)(iv) or paragraph (c) may be an offence under section 305.
65 Subsection 86(4B)
Omit “paragraph (1A)(c)”, substitute “this section”.
66 Subsection 86(4C)
Omit “paragraph (1A)(c)”, substitute “this section”.
67 Subsections 86(6) and (7)
Repeal the subsections, substitute:
In Australia’s exclusive economic zone
(6) Subsection (1A) extends to premises, and places of business, that:
(a) are in Australia’s exclusive economic zone; and
(b) are owned or occupied by an Australian employer.
This subsection has effect subject to Australia’s obligations under international law concerning jurisdiction over ships that fly the flag of a foreign country and aircraft registered under the law of a foreign country.
On Australia’s continental shelf outside exclusive economic zone
(7) Subsection (1A) also extends to premises, and places of business, that:
(a) are outside the outer limits of Australia’s exclusive economic zone, but in, on or over a part of Australia’s continental shelf that is prescribed by the regulations for the purposes of this subsection; and
(b) are connected with the exploration of the continental shelf or the exploitation of its natural resources; and
(c) meet the requirements that are prescribed by the regulations for that part.
Note: The regulations may prescribe different requirements relating to different parts of Australia’s continental shelf. The regulations may need to do so to give effect to Australia’s international obligations.
68 After section 86
Insert:
86A Disclosure of information by inspectors
(1) A workplace inspector may disclose information acquired by the inspector in the course of exercising powers, or performing functions, as a workplace inspector, if the inspector considers on reasonable grounds that it is necessary or appropriate to do so in the course of exercising his or her powers, or performing his or her functions, as an inspector.
(2) A workplace inspector may disclose information to an officer of the Department administered by the Minister who administers the Migration Act 1958 if the inspector considers on reasonable grounds that the disclosure of the information is likely to assist the officer in the administration of that Act.
(3) The regulations may authorise workplace inspectors to disclose information of the prescribed kind, to officers of the Commonwealth of the prescribed kind, for prescribed purposes.
Division 4—School‑based trainees
555 Pay for school‑based trainees
Rate of pay is an hourly rate for work on‑the‑job
(1) The rate of pay for a school‑based trainee is the rate as follows, paid only for hours worked on‑the‑job:
(a) for a calendar year in which the school‑based trainee is enrolled in a Year up to and including Year 11—$7.27 per hour;
(b) for a calendar year in which the school‑based trainee is enrolled in Year 12 or a later Year—$7.99 per hour.
This section does not limit pay
(2) To avoid doubt, this section does not operate to prevent the school‑based trainee from receiving a rate of pay more generous than the rate specified by subsection (1).
School‑based trainees not covered by this section
(3) This section does not apply to a school‑based trainee if:
(a) a wage instrument covers the work of the school‑based trainee; and
(b) the wage instrument specifies the rate of pay for the school‑based trainee; and
(c) the wage instrument does so by making specific provision for school‑based trainees.
556 Additional conditions for school‑based trainees
Additional conditions adjusted as necessary
(1) A school‑based trainee is entitled, in accordance with subsection (2), to any additional conditions (the full‑time conditions) to which a full‑time trainee doing the same kind of work, in the same location and for the same employer would be entitled.
(2) The school‑based trainee is entitled to the full‑time conditions adjusted as necessary in proportion to the hours worked on‑the‑job by the school‑based trainee.
(3) For the purposes of subsection (2), the regulations may determine, or make provision for determining, either or both of the following:
(a) whether particular full‑time conditions should be adjusted in proportion to the hours worked on‑the‑job by the school‑based trainee;
(b) the method for adjusting particular full‑time conditions in proportion to the hours worked on‑the‑job by the school‑based trainee.
(4) Subsection (2) has effect subject to section 557.
This section does not limit additional conditions
(5) To avoid doubt, this section does not operate to prevent a school‑based trainee from receiving conditions more generous than those provided by this section.
School‑based trainees not covered by this section
(6) This section does not apply to a school‑based trainee if:
(a) a wage instrument covers the work of the school‑based trainee; and
(b) the wage instrument specifies the rate of pay for the school‑based trainee; and
(c) the wage instrument does so by making specific provision for school‑based trainees.
557 Loading in lieu of certain conditions
(1) The employer of a school‑based trainee may, with the written agreement of the school‑based trainee, pay the school‑based trainee a loading in lieu of paid annual leave, paid sick leave, paid personal leave and payment for public holidays.
(2) The loading is payable for all hours worked on‑the‑job and is calculated using the formula:
where:
hourly rate means the hourly rate paid to the school‑based trainee apart from this section.
Note: The loading does not compensate for work done on a public holiday. A school‑based trainee who works on a public holiday would be paid the applicable hourly rate for such work.
Division 5—Enforcement
558 Enforcement
Part VIII has effect, in relation to a school‑based apprentice or a school‑based trainee who is entitled to be paid, or provided additional conditions, in accordance with subsection 552(1), 553(2), 555(1) or 556(2), as if the subsection were a term of an award:
(a) that bound the employer of the school‑based apprentice or school‑based trainee; and
(b) to which the employment of the school‑based apprentice or school‑based trainee was subject.
Schedule 3A—Redundancy pay by small business employers
Workplace Relations Act 1996
1 Paragraph 89A(2)(m)
Repeal the paragraph, substitute:
(m) redundancy pay by an employer of 15 or more employees;
2 Subsection 89A(7)
Omit “Subsection (1)”, substitute “Subject to subsection (7A), subsection (1)”.
3 After subsection 89A(7)
Insert:
(7A) In spite of subsection (7), subsection (1) excludes from an industrial dispute the matter of redundancy pay by an employer of fewer than 15 employees.
4 After subsection 89A(8)
Insert:
Interpretation—redundancy pay provisions
(8A) For the purposes of paragraph (2)(m) and subsection (7A):
(a) whether an employer employs 15 or more employees, or fewer than 15 employees, is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given by the employer or by the employee who becomes redundant; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
5 After Part VI
Insert:
Part VIAAA—State and Territory laws etc. about redundancy payments by small businesses
167 Certain small businesses not bound by requirement to pay redundancy pay
(1) This section applies to a State law, a State award, a State authority order or a Territory law (each of which is an eligible instrument).
(2) If an eligible instrument would, apart from this section, have the effect of requiring a relevant employer that employs fewer than 15 employees to pay redundancy pay, the eligible instrument does not have that effect.
(3) For the purposes of subsection (2):
(a) whether a relevant employer employs fewer than 15 employees is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given by the employer or by the employee who becomes redundant; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the relevant employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
(4) In this section:
relevant employer means:
(a) in the case of a State law, a State award or a State authority order—a constitutional corporation; or
(b) in the case of a Territory law—any employer.
State authority order means an order made, or any other thing done, by a State industrial authority.
State law means a law of a State (including any regulations or other instruments made under a law of a State), but does not include a State employment agreement.
Territory law means a law of a Territory (including any regulations or other instruments made under a law of a Territory).
6 At the end of section 170FA
Add:
(3) In so far as an order is made for the purposes of Article 12 of that Convention, the Commission must not make an order in relation to the matter of redundancy pay by an employer of fewer than 15 employees.
(4) For the purposes of subsection (3):
(a) whether an employer employs fewer than 15 employees is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given by the employer or by the employee who becomes redundant; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
7 Application
(1) The amendments made by items 1 to 4 apply to:
(a) dealing with an industrial dispute by arbitration after the commencement of this Schedule; and
(b) preventing or settling an industrial dispute by making an award or order after the commencement of this Schedule; and
(c) maintaining the settlement of an industrial dispute by varying an award or order after the commencement of this Schedule;
whether the industrial dispute arose before or arises after the commencement of this Schedule.
(2) The amendment made by item 5 applies to:
(a) an eligible instrument made after the commencement of this Schedule that has the effect mentioned in subsection 167(2) of the Workplace Relations Act 1996 as inserted by that item; and
(b) an eligible instrument, made before or after the commencement of this Schedule, that is amended or varied after the commencement of this Schedule with the result that it has that effect.
(3) The amendment made by item 6 applies to the making of orders after the commencement of this Schedule.
8 Transitional—awards and orders of the Commission
(1) If, during the period from the start of 26 March 2004 until the commencement of this Schedule, the Commission:
(a) made an award or order that had the effect of requiring an employer of fewer than 15 employees to pay redundancy pay; or
(b) varied an award or order, made before or during that period, with the result that it had that effect;
then, from the commencement of this Schedule, the award or order ceases to have that effect.
(2) For the purposes of paragraph (1)(a):
(a) whether an employer employs fewer than 15 employees is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given by the employer or by the employee who becomes redundant; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
9 Transitional—eligible instruments
Item applies to eligible instruments with small business redundancy pay requirements just before commencement
(1) This item applies if, just before the commencement of this Schedule, an eligible instrument contained provisions requiring some or all relevant employers (the affected employers) that employ fewer than 15 employees to pay redundancy pay.
Eligible instruments that began to provide for small business redundancy pay between 26 March 2004 and commencement
(2) If:
(a) the eligible instrument was made before 26 March 2004 and just before 26 March 2004 the eligible instrument did not contain provisions requiring the affected employers to pay redundancy pay; or
(b) the eligible instrument was made on or after 26 March 2004;
then, from the commencement of this Schedule, the provisions do not have the effect of requiring any affected employers to pay redundancy pay.
Eligible instruments where Federal award suppressed a small business redundancy pay requirement that was present just before 26 March 2004
(3) If:
(a) just before 26 March 2004, the eligible instrument contained provisions requiring the affected employers to pay redundancy pay; and
(b) only because of a Federal award, the provisions did not, just before the commencement of this Schedule, have the effect of requiring a particular affected employer to pay redundancy pay;
then the provisions do not, at or at any time after the commencement of this Schedule, have that effect in relation to the particular affected employer.
Eligible instruments where certified agreement or AWA suppressed a small business redundancy pay requirement that was present just before 26 March 2004, and a Federal award would also have had that effect
(4) If:
(a) just before 26 March 2004, the eligible instrument contained provisions requiring the affected employers to pay redundancy pay; and
(b) just before the commencement of this Schedule:
(i) only because of a certified agreement or an AWA, the provisions did not have the effect of requiring a particular affected employer to pay redundancy pay; and
(ii) disregarding the certified agreement or the AWA, the provisions would still not have had that effect, and this would have been so only because of a Federal award;
then the provisions do not, at or at any time after the commencement of this Schedule, have that effect in relation to the particular affected employer.
Eligible instruments where small business redundancy pay requirement was present just before 26 March 2004 and a future Federal award starts to apply
(5) If:
(a) just before 26 March 2004, the eligible instrument contained provisions requiring the affected employers to pay redundancy pay; and
(b) neither subitem (3) nor subitem (4) applies; and
(c) the eligible instrument contains the provisions from the commencement of this Schedule until a later time (the award time) when a particular affected employer becomes bound by a Federal award; and
(d) the Federal award applies in relation to some or all of the particular affected employer’s employees (the affected employees) to whom the requirement to pay redundancy pay relates;
then, from the award time, the provisions do not have the effect of requiring the particular affected employer to pay redundancy pay in respect of the affected employees.
Definitions
(6) In this item:
eligible instrument has the meaning given by subsection 167(1) of the Workplace Relations Act 1996 as inserted by item 5 of this Schedule.
Federal award means an award under the Workplace Relations Act 1996.
relevant employer has the meaning given by subsection 167(4) of the Workplace Relations Act 1996 as inserted by item 5 of this Schedule.
10 Protection of existing entitlements
Nothing in this Schedule, or an amendment made by this Schedule, affects any entitlement to a payment that had arisen before the commencement of this Schedule.
Schedule 4—Transitional and other provisions
Part 1—Regulations for transitional etc. provisions and consequential amendments
1 Regulations may deal with transitional etc. matters
(1) The Governor‑General may make regulations dealing with matters of a transitional, saving or application nature relating to amendments made by this Act.
(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations made under this item may be expressed to take effect from a date before the regulations are registered under that Act.
(3) In this item:
amendments made by this Act includes amendments made by regulations under item 2.
2 Regulations may make consequential amendments of Acts
(1) The Governor‑General may make regulations amending Acts (including the Workplace Relations Act 1996), being amendments that are consequential on, or that otherwise relate to, amendments made by this Act.
(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations made under this item may be expressed to take effect from a date before the regulations are registered under that Act.
(3) For the purposes of the Amendments Incorporation Act 1905, amendments made by regulations for the purposes of this item are to be treated as if they had been made by an Act.
Note: This subitem ensures that the amendments can be incorporated into a reprint of the Act.
Part 2—Transitional, application and saving provisions
Division 1—Definitions used in this Part
3 Definitions
In this Part:
amended Act means the Workplace Relations Act 1996 as amended by this Act.
reform commencement has the meaning given by subsection 4(1) of the amended Act.
Division 2—Awards
4 Operation of awards in force before commencement
(1) In this item:
award means an award within the meaning of subsection 4(1) of the Workplace Relations Act 1996 as in force immediately before the reform commencement.
eligible entity has the same meaning as in Division 6A of Part VI of the amended Act.
employee has the meaning given by subsection 4AA(1) of the amended Act.
employer has the meaning given by subsection 4AB(1) of the amended Act.
outworker term has the same meaning as in Division 6A of Part VI of the amended Act.
(2) This item applies to an award (the original award) in force immediately before the reform commencement.
(3) The original award is taken to be replaced by an instrument (the pre‑reform award) in the same terms as the original award that, on and from the reform commencement, has effect under the Workplace Relations Act 1996 and binds the following:
(a) each employer that was bound immediately before the reform commencement by the original award;
(b) each organisation that was bound immediately before the reform commencement by the original award;
(c) each employee of an employer referred to in paragraph (a), in relation to the employee’s employment by the employer, to the extent that the original award regulates work performed by the employee;
(d) each eligible entity that was bound immediately before the reform commencement by the original award, but only in relation to outworker terms.
(4) To avoid doubt, the pre‑reform award binds an employer or eligible entity that was bound by the original award immediately before the reform commencement, whether the employer or eligible entity was bound:
(a) in its own right or as a member of an organisation; or
(b) because of the operation of paragraph 149(1)(d) or (e) of the Workplace Relations Act 1996, as in force immediately before the reform commencement.
(5) To avoid doubt, if the original award bound an employer, an eligible entity or an organisation as a common rule under paragraph 149(1)(e), the pre‑reform award is, to the extent that the pre‑reform award binds that employer, eligible entity or organisation, subject to any conditions, exceptions or limitations to which the original award was subject because of the operation of section 141 of the Workplace Relations Act 1996 as in force immediately before the reform commencement.
5 Transitional provision for redundancy pay—repeal of paragraph 89A(2)(m)
The repeal of paragraph 89A(2)(m) (redundancy pay) of the Workplace Relations Act 1996, as in force immediately before the reform commencement, does not affect any entitlement to a payment that had arisen before that day.
5A Saving provision relating to awards and orders made before 26 March 2004
If:
(a) before the start of 26 March 2004, a term of an award or order had the effect of requiring an employer of fewer than 15 employees to pay redundancy pay (within the meaning of paragraph 513(4)(b) of the amended Act); and
(b) that term of the award or order continued in effect until immediately before the reform commencement; and
(c) immediately after the reform commencement, that term of the award or order:
(i) became a term of a pre‑reform award because of the operation of item 4 of this Schedule; or
(ii) continued in operation as a term of a transitional award because of the operation of clause 4 of Schedule 13 to the amended Act;
section 116L of the amended Act, or clause 27 of Schedule 13 to the amended Act, as the case requires, does not affect the operation of that term of the award or order and the term continues in effect as a term of the pre‑reform award or the transitional award, to the extent that the term requires the payment of redundancy pay within the meaning of paragraph 513(4)(b) of the amended Act.
6 Terms of awards that cease to have effect
To avoid doubt, the following provisions do not affect any rights accrued or liabilities incurred under an award before the reform commencement:
(a) section 116L of the amended Act;
(b) clause 27 of Schedule 13 to the amended Act.
Division 3—Termination of employment
7 Application to terminations that occur after the reform commencement
(1) The amendments made by the items of Schedule 1 referred to in subitem (2) apply in relation to terminations of employment that occur after the reform commencement (whether the employment commenced before or after that commencement).
(2) The items of Schedule 1 are as follows:
(a) item 81;
(b) items 84 to 86;
(c) items 88 to 92;
(d) items 94 to 98;
(e) items 106 to 110;
(f) items 112 to 118;
(g) item 122;
(h) items 124 and 125;
(i) item 127;
(j) items 129 and 130;
(k) items 132 to 134;
(l) items 136 to 138;
(m) item 140;
(n) items 142 to 144;
(o) items 150 to 153;
(p) item 159;
(q) item 163.
8 Application of item 111
The amendment of the Workplace Relations Act 1996 made by item 111 of Schedule 1 applies to an application under section 170CE of that Act that relates to employment commenced after the reform commencement.
9 Application of items 145 to 149
(1) The amendments of the Workplace Relations Act 1996 made by items 145 to 149 of Schedule 1 apply in relation to an application for an order under section 170GA of that Act that is made on or after the reform commencement.
(2) Division 2 of Part VI of the Workplace Relations Act 1996, as in force immediately before the reform commencement, continues to apply, as provided by section 170GD of that Act, as in force immediately before the reform commencement, to an application for an order under section 170GA of that Act that was made, but not determined, before the reform commencement.
10 Transitional provision for termination of employment
(1) Paragraph (a) of the definition of daily hire employee in subsection 170CD(1) of the Workplace Relations Act 1996 has effect, on and after the reform commencement, as if a reference in that paragraph to an award included a reference to the following:
(a) a pre‑reform certified agreement;
(b) a notional agreement preserving State awards;
(c) a preserved State agreement;
(d) a transitional award;
(e) an old IR agreement;
(f) a pre‑reform AWA;
(g) a common rule continued in effect by clause 82 of Schedule 13.
(2) Subsection 170CD(3) and section 170JG of the Workplace Relations Act 1996 have effect, on and after the reform commencement, as if a reference in those provisions to an award included a reference to the following:
(a) a pre‑reform certified agreement;
(b) a notional agreement preserving State awards;
(c) a preserved State agreement;
(d) a transitional award;
(e) an old IR agreement;
(f) a pre‑reform AWA;
(g) a common rule continued in effect by clause 82 of Schedule 13.
(3) In this item:
notional agreement preserving State awards has the meaning given by Schedule 15 to the amended Act.
old IR agreement has the meaning given by Schedule 14 to the amended Act.
pre‑reform AWA means an AWA that:
(a) was made at any time before the reform commencement; and
(b) was approved under Part VID of the Workplace Relations Act 1996 as in force at any time before that commencement; and
(c) was in operation immediately before that commencement.
pre‑reform certified agreement has the meaning given by Schedule 14 to the amended Act.
preserved State agreement has the meaning given by Schedule 15 to the amended Act.
transitional award has the meaning given by Schedule 13 to the amended Act.
Division 4—Miscellaneous
11 Investigations started by authorised officers
An investigation started but not completed by an authorised officer before the reform commencement for the compliance purposes referred to in section 83BH of the Workplace Relations Act 1996 (as in force before the reform commencement) may be completed after the reform commencement by a workplace inspector.
12 Application of section 83BS to pre‑reform AWAs
Section 83BS of the Workplace Relations Act 1996 (as in force after the reform commencement) applies to the identification of a person, after the reform commencement, as being, or as having been, a party to a pre‑reform AWA in the same way as it applies to the identification of a person.
13 Saving of existing inspectors’ appointments
(1) If an appointment of a person as an inspector under subsection 84(2) of the Workplace Relations Act 1996 was in force immediately before the reform commencement, the appointment continues in force for its unexpired period, despite the repeal and substitution of subsection 84(2) of that Act, as if the person had been appointed as a workplace inspector under subsection 84(2) of the amended Act.
(2) Subitem (1) does not prevent the Minister from revoking the appointment.
14 Repeal of Part VA
(1) In this item:
BCII Act means the Building and Construction Industry Improvement Act 2005.
(2) Division 1 of Part 2 of Chapter 7 of the BCII Act has effect as if information given to, a document produced to, or answers to questions given to, the Secretary or an assistant before the reform commencement under section 88AA of the Workplace Relations Act 1996 had been given or produced to the ABC Commissioner under section 52 of the BCII Act.
(3) The information, document or answers may be used for the purposes of proceedings under the BCII Act.
(4) Despite the repeal of Part VA of the Workplace Relations Act 1996, the Commonwealth Ombudsman must conduct a review under section 88AI of that Act of the use of the power given by section 88AA of that Act.
(5) The review must relate to the period starting on 13 January 2006 and ending on the reform commencement (rather than to a year to which section 88AA applies as defined in subsection 88AI(4)).
(6) Subsections 88AI(2) and (3) of the Workplace Relations Act 1996 apply for the purposes of that review.
15 Application of hours of work provisions of Standard to pre‑reform awards
(1) Division 3 of Part VA (hours of work) does not apply to the employment of an employee while the employee is bound by a pre‑reform award in relation to the employment at any time during the period of 3 years that starts on the reform commencement.
(2) In subitem (1):
pre‑reform award has the meaning given by subsection 4(1) of the amended Act.
16 Succession, transmission or assignment of business
Part VIAA of, and Schedule 16 to, the Workplace Relations Act 1996 apply to a succession, transmission or assignment of a business, or a part of a business, that occurs on or after the reform commencement.
17 Application of conciliation and mediation provisions relating to equal remuneration for equal work
Sections 170BDA, 170BDB and 170BDC of the Workplace Relations Act 1996 apply only to applications for orders under Division 2 of Part VIA of that Act made on or after the reform commencement.
18 Application of parental leave
(1) Division 5 of Part VIA of the amended Act does not apply in relation to particular employment of an employee if the employment is wholly regulated by one or more of the following:
(a) pre‑reform certified agreement;
(b) a notional agreement preserving State awards;
(c) a preserved State agreement;
(d) an old IR agreement;
(e) a pre‑reform AWA;
(f) a 170MX award;
(g) a transitional award.
(2) Division 5 of Part VIA of the Workplace Relations Act 1996, as in force immediately before the repeal and substitution of that Division by this Act, continues to apply in relation to employment of an employee to which subitem (1) applies.
(3) In this item:
170MX award means an award:
(a) made under subsection 170MX(3) of the Workplace Relations Act 1996 as in force at any time before the reform commencement; and
(b) in operation immediately before that commencement, or made after that commencement because of Part 8 of Schedule 14 to the amended Act.
notional agreement preserving State awards has the meaning given by Schedule 15 to the amended Act.
old IR agreement has the meaning given by Schedule 14 to the amended Act.
pre‑reform AWA means an AWA that:
(a) was made at any time before the reform commencement; and
(b) was approved under Part VID of the Workplace Relations Act 1996 as in force at any time before that commencement; and
(c) was in operation immediately before that commencement.
pre‑reform certified agreement has the meaning given by Schedule 14 to the amended Act.
preserved State agreement has the meaning given by Schedule 15 to the amended Act.
transitional award has the meaning given by Schedule 13 to the amended Act.
19 Application of Part VC of amended Act
Part VC of the amended Act applies, according to its terms, to actions or states of affairs occurring after the commencement of the Part (even if the actions or states of affairs started to occur before that commencement).
20 Application in relation to negotiations for workplace agreements
(1) This item applies to a matter if:
(a) the matter arose before the reform commencement under Division 8 of Part VIB of the Workplace Relations Act 1996, as in force at that time; and
(b) the Commission has begun to exercise its conciliation powers under section 170NA, as in force at that time, in relation to the matter.
(1A) This item applies subject to:
(a) Parts 4 and 8 of Schedule 14 to the amended Act; and
(b) item 20A of this Schedule.
(2) Despite the amendments made by items 71 and 168, the Workplace Relations Act 1996 continues to apply during the transitional period in relation to the matter as if the amendments had not been made.
(3) After the end of the transitional period, the Workplace Relations Act 1996, as amended by those items, applies in relation to the matter.
(4) In this item:
transitional period means the period of 3 months commencing on the reform commencement.
20A Continuation of section 170MX proceedings under new provisions for workplace determinations
(1) This item applies if:
(a) a bargaining period was terminated on the ground set out in subsection 170MW(3) or (7) of the Workplace Relations Act 1996 before the reform commencement; and
(b) the Commission had not started to exercise arbitration powers in accordance with subsection 170MX(3) of the Workplace Relations Act 1996 before the reform commencement in relation to the bargaining period; and
(c) had this Act not amended the Workplace Relations Act 1996, the Commission would have been able to make an award under subsection 170MX(3) of the Workplace Relations Act 1996 after the reform commencement in relation to the bargaining period.
(2) Division 8 of Part VC of the amended Act applies in relation to the bargaining period (in accordance with item 19 of this Schedule) as if:
(a) the termination of the bargaining period were the termination of a bargaining period on the ground set out in subsection 107G(3) of the amended Act; and
(b) that termination happened on the reform commencement.
(3) A reference in this item to subsection 170MX(3) of the Workplace Relations Act 1996 does not include a reference to that subsection as it had effect because of repealed Division 2 of Part XV of that Act.
21 Application of new offences in section 299
(1) Subsection 299(3) of the amended Act applies to conduct engaged in after the reform commencement, whether the order contravened by the conduct was made before, on or after that commencement.
(2) Subsection 299(5) of the amended Act applies to the publication of a statement after the reform commencement, whether the statement was made before, on or after that commencement.
22 Transitional provision—entry permits
(1) If a permit was in force under the repealed Part IX immediately before the reform commencement:
(a) the permit continues in force as if it had been issued under the new Part IX; and
(b) the permit may be revoked or suspended under the new Part IX.
(2) In this item:
new Part IX means Part IX of the amended Act.
repealed Part IX means Part IX of the Workplace Relations Act 1996 as in force immediately before the reform commencement.
23 Application provisions relating to registered organisations
(1) The amendments made by items 273, 274, 289, 291, 292, 294, 295 and 296 of Schedule 1 apply in relation to an application for registration granted on or after the reform commencement.
(2) The amendments made by item 297 of Schedule 1 apply in relation to conduct that relates to the formation or registration of an association on or after the reform commencement.
(3) The amendments made by items 298 to 304 of Schedule 1 apply in relation to an application for an order cancelling the registration of an organisation made on or after the reform commencement.
(4) The amendment made by item 309 of Schedule 1 applies in relation to an application for a determination made on or after the reform commencement.
(5) The amendments made by items 314 to 319 of Schedule 1 apply in relation to an application made on or after the reform commencement.
(6) The amendment made by item 322 of Schedule 1 applies in relation to an agreement that becomes binding on an amalgamated association on or after the reform commencement.
(7) The amendment made by item 329 of Schedule 1 applies in relation to a rule imposed on or after the reform commencement.
(8) The amendments made by items 331 and 332 of Schedule 1 apply in relation to a direction given on or after the reform commencement.
(9) The amendments made by items 335 and 336 of Schedule 1 apply in relation to an application made on or after the reform commencement.
(10) The amendment made by item 347 of Schedule 1 applies in relation to a disclosure made on or after the reform commencement.
24 Transitional provision relating to registered organisations
Despite the amendment made by item 306 of Schedule 1, subparagraph 30(1)(c)(v) of Schedule 1 to the amended Act does not apply for the period of 3 years after the reform commencement in relation to an organisation whose application for registration was granted before that commencement.
Schedule 5—Renumbering the Workplace Relations Act 1996
Workplace Relations Act 1996
1 Renumbering the Workplace Relations Act (other than the Schedules)
(1) In this item:
main Act means the Workplace Relations Act 1996, but does not include any of the Schedules to that Act.
(2) The Parts of the main Act are renumbered so that they bear consecutive Arabic numerals starting with “1”.
(3) The Divisions of each Part of the main Act are renumbered so that they bear consecutive Arabic numerals starting with “1”.
(4) The Subdivisions of each Division of each Part of the main Act are relettered so that they bear upper‑case letters in alphabetical order starting with “A”.
(5) The sections of the main Act are renumbered in a single series so that they bear consecutive Arabic numerals starting with “1”.
(6) The subsections of each section of the main Act are renumbered so that they bear consecutive Arabic numerals enclosed in parentheses starting with “(1)”.
(7) The paragraphs of each section or subsection, or of each definition, of the main Act are relettered so that they bear lower‑case letters in alphabetical order enclosed in parentheses starting with “(a)”.
(8) The subparagraphs of each paragraph of each section or subsection, or of each paragraph of each definition, of the main Act are renumbered so that they bear consecutive lower‑case Roman numerals enclosed in parentheses starting with “(i)”.
(9) The sub‑subparagraphs of each subparagraph of each paragraph of each section or subsection, or of each subparagraph of each paragraph of each definition, of the main Act are relettered so that they bear upper‑case letters in alphabetical order in parentheses starting with “(A)”.
(10) Subject to subitem (12), each provision of the main Act that refers to a provision that has been renumbered or relettered under this item is amended by omitting the reference and substituting a reference to the last‑mentioned provision as renumbered or relettered.
(11) Subject to subitem (12), each provision of the main Act that refers to a Schedule that has been renumbered by item 2 is amended by omitting the reference and substituting a reference to the Schedule as so renumbered.
(12) Subitems (10) and (11) do not apply to a reference that is expressed as a reference to a provision or Schedule as in force at a time that is before the commencement of this item.
Note: Each heading to a section or subsection of the Workplace Relations Act 1996 (not including the Schedules) that refers to a provision or Schedule that has been renumbered or relettered under this item or item 2 is (unless the reference is of a kind mentioned in subitem (12)) amended by omitting the reference and substituting a reference to the provision or Schedule as so renumbered or relettered.
2 Limited renumbering of Schedules to the Workplace Relations Act
(1) In this item:
main Act (plus Schedules) means the Workplace Relations Act 1996, including the Schedules to that Act.
(2) The Schedules to the main Act (plus Schedules) are renumbered so that they bear consecutive Arabic numerals starting with “1”.
(3) Subject to subitem (5), each provision of the main Act (plus Schedules) that refers to a Schedule that has been renumbered under this item is amended by omitting the reference and substituting a reference to that Schedule as renumbered.
(4) Subject to subitem (5), each provision of a Schedule to the main Act (plus Schedules) that refers to a provision that has been renumbered or relettered under item 1 is amended by omitting the reference and substituting a reference to the last‑mentioned provision as so renumbered or relettered.
(5) Subitems (3) and (4) do not apply to a reference that is expressed as a reference to a Schedule or provision as in force at a time that is before the commencement of this item.
Note: Each heading to a section or subsection, or to a clause or subclause, of a Schedule to the Workplace Relations Act 1996 that refers to a provision or Schedule that has been renumbered under this item or item 1 is (unless the reference is of a kind mentioned in subitem (5)) amended by omitting the reference and substituting a reference to the Schedule as so renumbered.
3 References in other Acts to renumbered provisions and Schedules
(1) Subject to subitem (2), after the commencement of this item, a reference in a provision of an Act (other than the Workplace Relations Act 1996) enacted before the commencement of this item (whether or not that provision has come into operation), or in an instrument or document, to a provision of, or Schedule to, the Workplace Relations Act 1996 that has been renumbered or relettered under item 1 or 2 is to be construed as a reference to that provision or Schedule as so renumbered or relettered.
(2) Subitem (1) does not apply to a reference that is expressed as a reference to a Schedule or provision as in force at a time that is before the commencement of this item.
Note: A reference in a heading to a section, or to a subsection, of an Act (other than the Workplace Relations Act 1996) enacted before the commencement of this item (whether or not that provision has come into operation), or in an instrument or a document, to a provision of, or Schedule to, the Workplace Relations Act 1996 that has been renumbered or relettered under item 1 or 2 is (unless the reference is of a kind mentioned in subitem (2)) to be construed as a reference to that provision or Schedule as so renumbered or relettered.
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