EXPLANATORY STATEMENT
Issued by the authority of the Minister for Employment and Workplace Relations
Fair Work Amendment (State Referrals and Other Measures) Act 2009
Proclamation
Subsection 2(1) of the Fair Work Amendment (State Referrals and Other Measures) Act 2009 (the Act) provides that items 1 to 6, 8 to 12, 14, 15 and 17 to 41 of Schedule 1 to the Act and items 1A to 17 of Schedule 3 to the Act commence on a single day to be fixed by proclamation. However, if any of these provisions do not commence within six months of the date the Act receives the Royal Assent, then those provisions commence on the first day after the end of that six-month period.
The Act recently received the Royal Assent.
The purpose of the Proclamation is to fix:
- 15 December 2009 as the day on which items 1 to 3 of Schedule 3 to the Act commence; and
- 1 January 2010 as the day on which items 1 to 6, 8 to 12, 14, 15 and 17 to 41 of Schedule 1 and items 1A and 4 to 17 of Schedule 3 to the Act commence. Subsection 2(1) of the Act also links the commencement of item 7 of Schedule 1, items 1A to 128 and 133 to 138 of Schedule 2, and Part 2 of Schedule 3 to this day.
The provisions that commence on 15 December 2009 amend the Fair Work Act 2009 (the Fair Work Act) to enable States or Territories (the States) to declare certain employers not to be national system employers.
The provisions that commence on 1 January 2010:
- amend the Fair Work Act to enable States to refer workplace relations matters to the Commonwealth between 1 July 2009 and 1 January 2010 for the purposes of paragraph 51(xxxvii) of the Constitution (items 1 to 12, 14, 15 and 17 to 41 of Schedule 1);
- amend the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to make arrangements for the transition of employers and employees from referring State systems to the national workplace relations system (items 1A to 128 and 133 to 138 of Schedule 2) and minor technical amendments to the Transitional Act (Part 2 of Schedule 3); and
- amend the Fair Work Act to enable ministers with responsibility for workplace relations matters in referring States and the Territories to apply to Fair Work Australia (FWA) for orders suspending or terminating protected industrial action (items 4 to 6 of Schedule 3); and
- amend the Fair Work Act to enable State or Territory ministers with responsibility for workplace relations matters to intervene in court proceedings and make submissions to FWA, and to enable appeals from decisions of eligible State or Territory courts exercising summary jurisdiction to that court or another eligible State or Territory court (items 1A and 7 to 17 of Schedule 3).
Under subsection 2(1) of the Act, the remaining provisions of the Act commenced on the Royal Assent (sections 1 to 3 of the Act, item 42 of Schedule 1 and items 17A to 17E of Schedule 3) or when certain provisions of the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 or the Fair Work Act 2009 commenced (items 13 and 16 of Schedule 1, and items 129 to 132 of Schedule 2).
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Fair Work Amendment (State Referrals and Other Measures) Act 2009 was enacted by the Commonwealth Parliament to address certain gaps and issues within the national workplace relations system, particularly in relation to the referral of matters from state systems to the Commonwealth and the integration of these matters into the Fair Work Act 2009. The Act was designed to facilitate a more streamlined and consistent approach to workplace relations across Australia by enabling states to refer certain workplace relations matters to the Commonwealth and allowing for greater coordination between state and federal systems. The policy objective of the Act is to improve the efficiency and effectiveness of the workplace relations system by ensuring that employers and employees transitioning from state systems to the national system are adequately supported and that there is a clear mechanism for addressing workplace disputes and industrial action. The Act was proclaimed to commence on specific dates to ensure a phased and managed implementation of its provisions.
Scope and Application
The Fair Work Amendment (State Referrals and Other Measures) Act 2009 applies to employers, employees, and workplace relations matters across Australia, with specific provisions relating to the referral of state workplace relations matters to the Commonwealth and the transition from state to national workplace systems. The Act applies to national system employers and employees, and it affects industries and conduct governed by workplace relations laws. Geographically, the Act has a national reach, impacting all states and territories within Australia. The Act's provisions are designed to facilitate the transition from state-based workplace relations systems to a unified national system, as well as to address protected industrial action and court proceedings within the workplace relations framework. Certain provisions of the Act may be extended or restricted through subordinate instruments, ensuring flexibility in its application and enforcement. The Act includes specific commencement dates for different sections, with some provisions starting on 15 December 2009, and the majority on 1 January 2010, as fixed by proclamation.
Key Provisions
The Fair Work Amendment (State Referrals and Other Measures) Act 2009 contains a range of amendments to the Fair Work Act 2009 and related legislation, as specified in the schedules of the Act. Section 2(1) of the Act stipulates that a proclamation will fix the commencement dates for most of these amendments. According to the Explanatory Statement, items 1 to 3 of Schedule 3 will commence on 15 December 2009, while the remaining provisions in Schedules 1 and 3, as well as certain parts of Schedule 2, will commence on 1 January 2010. These provisions address various aspects of workplace relations, including the ability for states to refer certain matters to the Commonwealth, transitional arrangements for employers and employees, and measures to manage protected industrial action.
The Act imposes several obligations on parties affected by its provisions. For instance, the amendments in Schedule 1 enable states to refer workplace relations matters to the Commonwealth for a specific period, which can be crucial for ensuring national consistency in labour laws. Additionally, Schedule 2 details the transitional arrangements for employers and employees, ensuring a smooth shift from state systems to the national workplace relations system. Moreover, Schedule 3 introduces measures allowing ministers responsible for workplace relations in referring states and territories to apply for orders suspending or terminating protected industrial action and to intervene in relevant court proceedings. These obligations are designed to facilitate the effective implementation of the national workplace relations framework.
Breaches of the provisions set out in the Fair Work Amendment (State Referrals and Other Measures) Act 2009 can result in various legal consequences. While the Act itself does not specify penalties for non-compliance, related legislation, such as the Fair Work Act 2009, outlines penalties for violations of workplace laws. For example, unauthorised industrial action can lead to fines and other civil remedies. Additionally, serious breaches of workplace laws may result in criminal charges, with penalties varying depending on the nature and severity of the offence. The Act's provisions are designed to ensure compliance with national workplace relations standards, thereby maintaining a fair and efficient labour market.
In summary, the Fair Work Amendment (State Referrals and Other Measures) Act 2009 introduces significant changes to the national workplace relations system, with most provisions commencing on 1 January 2010. The Act mandates specific actions from states and territories, such as referring certain workplace relations matters to the Commonwealth and managing protected industrial action. While the Act does not specify penalties for non-compliance, related legislation imposes fines, civil remedies, and potential criminal charges for breaches of workplace laws. These measures are essential for maintaining a balanced and fair labour market across Australia.