Workplace Relations Amendment (Agreement Validation) Act 2004

Administered by Attorney-General's Department

Legislation au C2004A01390 In force Act

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No. 155, 2004

An Act to amend the Workplace Relations Act 1996, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendment of the Workplace Relations Act 1996

Workplace Relations Amendment (Agreement Validation) Act 2004

No. 155, 2004

An Act to amend the Workplace Relations Act 1996, and for related purposes

[Assented to 15 December 2004]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Workplace Relations Amendment (Agreement Validation) Act 2004.

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Workplace Relations Act 1996

1 After Division 10 of Part VIB

Insert:

Division 10A—Validation of certain pre-2 September 2004 agreements, variations, industrial action and lockouts

170NHA Validation etc. of certain agreements

If:

(a) application was purportedly made to the Commission to certify an agreement under Division 2 (including that Division as applied by subsection 5AA(2) or (3) or subsection 494(2)) or Division 3; and

(b) the Commission purported to certify the agreement on or before 2 September 2004 under Division 4 (including that Division as so applied); and

(d) the application and certification were (but for this section) invalid because the agreement deals with matters that are not permitted matters, and for no other reason;

then, to the extent only that the agreement deals with permitted matters, the fact that the agreement deals with matters that are not permitted matters is taken for all purposes not to affect, and never to have affected, the validity of the application or certification.

170NHB Validation etc. of variations of certain agreements

If:

(a) an agreement (including an agreement to which section 170NHA applies) was purportedly varied under Division 7 (including that Division as applied by subsection 5AA(2) or (3) or subsection 494(2)); and

(b) the Commission, by order under Division 7 (including that Division as so applied), purportedly approved the variation on or before 2 September 2004; and

(d) the variation and approval were (but for this section) invalid because the variation deals with matters that are not permitted matters, and for no other reason;

then, to the extent only that the variation deals with permitted matters, the fact that the variation deals with matters that are not permitted matters is taken for all purposes not to affect, and never to have affected, the validity of the variation or the approval.

170NHBA Validation of certain industrial action and lockouts

(1) If:

(a) a person has organised or engaged in industrial action or locked out employees from their employment; and

(b) the industrial action or lockout would have been protected action within the meaning of Division 8 but for the fact that it was for a purpose of, or for a purpose that included a purpose of, supporting or advancing a claim made in respect of a matter that was not a permitted matter;

then, to the extent that the industrial action or lockout occurred on or before 2 September 2004, it is taken to be protected action within the meaning of that Division.

(2) However, subsection (1) does not apply, and is taken never to have applied, to the extent that its application would have resulted in an acquisition of property within the meaning of paragraph 51(xxxi) of the Constitution.

170NHC Definitions of permitted matter

Division 2 agreements and variations

(1) For the purposes of this Division, a matter is a permitted matter in relation to:

(a) an agreement purportedly made under Division 2 (including that Division as applied by subsection 5AA(2) or (3) or subsection 494(2)); or

(b) a purported variation under Division 7 of such an agreement (including an agreement to which section 170NHA applies);

if the matter pertains to the relationship between:

(d) all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement.

Division 3 agreements and variations

(2) For the purposes of this Division, a matter is a permitted matter in relation to:

(a) an agreement purportedly made under section 170LO; or

(b) a purported variation under Division 7 of an agreement made under section 170LO (including an agreement to which section 170NHA applies);

if the matter is a term of the agreement or variation for:

(d) maintaining a settlement of all or any of the matters that were in dispute, whether the settlement was made by an award, a certified agreement or otherwise; or

(e) preventing further industrial disputes between the parties to the agreement.

(3) For the purposes of this Division, a matter is a permitted matter in relation to:

(a) an agreement purportedly made under section 170LP; or

(b) a purported variation under Division 7 of an agreement made under section 170LP (including an agreement to which section 170NHA applies);

if the matter is a term of the agreement or variation for preventing the industrial situation to which the parties to the agreement are parties from giving rise to an industrial dispute involving them.

2 After Division 8 of Part VID

Insert:

Division 8A—Validation of certain AWAs and variation agreements made before 2 September 2004

170WEA Validation etc. of certain AWAs

If:

(a) an AWA was purportedly filed with the Employment Advocate under Division 4 (including that Division as applied by subsection 495(2)); and

(b) the Employment Advocate or the Commission purportedly approved the AWA on or before 2 September 2004 under Division 5 (including that Division as so applied); and

(c) the AWA, as purportedly filed and approved, deals with one or more matters that do not pertain to the relationship between an employer and an employee; and

(d) the filing and approval of the AWA were (but for this section) invalid because the AWA deals with matters that do not pertain to that relationship, and for no other reason;

then, to the extent only that the AWA deals with matters pertaining to that relationship, the fact that the AWA deals with matters that do not pertain to that relationship is taken for all purposes not to affect, and never to have affected, the validity of the filing or approval of the AWA.

170WEB Validation etc. of certain variation agreements

If:

(a) a variation agreement was purportedly filed with the Employment Advocate under Division 4 (including that Division as applied by subsection 495(2)); and

(b) the Employment Advocate or the Commission purportedly approved the variation agreement on or before 2 September 2004 under Division 5 (including that Division as so applied); and

(c) the variation agreement, as purportedly filed and approved, deals with one or more matters that do not pertain to the relationship between an employer and an employee; and

(d) the filing and approval of the variation agreement were (but for this section) invalid because the variation agreement deals with matters that do not pertain to that relationship, and for no other reason;

then, to the extent only that the variation agreement deals with matters pertaining to that relationship, the fact that the variation agreement deals with matters that do not pertain to that relationship is taken for all purposes not to affect, and never to have affected, the validity of the filing or approval of the variation agreement.

3 Application provision

The amendments made by this Act do not apply in relation to industrial action, or a lockout, if, before the commencement of this Act, a court has found the industrial action or lockout not to be protected action (within the meaning of Division 8 of Part VIB of the Workplace Relations Act 1996).

[Minister’s second reading speech made in—

Senate on 17 November 2004

House of Representatives on 8 December 2004]

(205/04)

Overview

The Workplace Relations Amendment (Agreement Validation) Act 2004 (C2004A01390) was enacted by the Parliament of Australia to address a gap in the validity of certain agreements, variations, industrial action, and lockouts that were purportedly made or approved before 2 September 2004 under the Workplace Relations Act 1996, but which were subsequently found to deal with matters that were not permitted. The Act aims to validate such agreements, variations, industrial actions, and lockouts to the extent that they pertain to permitted matters, ensuring that their validity is not undermined by the inclusion of impermissible content. The policy objective is to provide legal certainty and stability to workplace agreements, thereby maintaining industrial harmony. The Act amends the Workplace Relations Act 1996 by validating agreements, variations, industrial actions, and lockouts that were purportedly made or approved before 2 September 2004, to the extent that they deal with permitted matters. The validation ensures that the agreements, variations, industrial actions, and lockouts remain valid despite any invalidity caused by the inclusion of impermissible content, provided that such invalidity is the sole reason for the lack of validity. This legislative intervention seeks to mitigate potential legal challenges and uncertainties that could arise from the presence of non-permitted matters within these workplace instruments, thereby supporting the overall integrity and enforceability of workplace agreements.

Scope and Application

The Workplace Relations Amendment (Agreement Validation) Act 2004 is a Commonwealth Act that amends the Workplace Relations Act 1996. This Act applies to purported agreements, variations, industrial actions, and lockouts made or engaged in before 2 September 2004, which were otherwise invalid due to the inclusion of non-permitted matters. It seeks to validate these actions to the extent they pertain to permitted matters. Permitted matters are defined in relation to agreements and variations as those that pertain to the relationship between an employer and employees in a single business or part of a single business, and in relation to maintaining or settling disputes. The Act does not apply to industrial actions or lockouts that have already been determined by a court to be unprotected. It extends to industrial actions and lockouts occurring before 2 September 2004, except where its application would result in an acquisition of property within the meaning of the Constitution.

Key Provisions

The Workplace Relations Amendment (Agreement Validation) Act 2004 (C2004A01390) amends the Workplace Relations Act 1996 by validating certain agreements, variations, industrial actions, and lockouts that were made or occurred before 2 September 2004. The amendments pertain to agreements that were purportedly made or varied under Division 2 or Division 3 of Part VIB of the Workplace Relations Act 1996, and agreements that were purportedly filed with the Employment Advocate under Division 4 of Part VIB of the same Act. The Act provides that if these agreements or variations dealt with matters that were not permitted, the fact that they dealt with such matters will not affect the validity of the agreements or variations, to the extent that they deal with permitted matters (ss. 170NHA, 170NHB, 170WEA, 170WEB). The Act imposes specific obligations on parties involved in such agreements, variations, industrial actions, and lockouts. For instance, employers and employees must ensure that any agreements or variations they enter into before 2 September 2004 that deal with permitted matters are valid, even if they inadvertently included non-permitted matters (ss. 170NHA, 170NHB, 170WEA, 170WEB). Industrial action organisers and employers who engaged in lockouts are required to ensure that any such actions or lockouts occurring before 2 September 2004, which dealt with permitted matters, are considered valid protected actions, notwithstanding any non-permitted matters included (s. 170NHBA). The Act also mandates that these agreements, variations, industrial actions, and lockouts are not to be considered invalid if they would have resulted in an acquisition of property within the meaning of the Constitution (s. 170NHC(2)). The Act does not explicitly state any offences or penalties for breach of its provisions. However, any breach of the Workplace Relations Act 1996 that these amendments seek to validate could result in civil or criminal consequences under the original Act. The maximum penalties for breaches of the Workplace Relations Act 1996 can include fines of up to $22,200 for individuals and up to $111,000 for bodies corporate, depending on the nature and severity of the breach. Additionally, individuals found guilty of certain offences may face imprisonment. The specific penalties and consequences would be determined by the courts in accordance with the provisions of the Workplace Relations Act 1996.

Area of Law: Employment & Labour Law
Instrument: Act
Concepts: Commencement Provisions; Repeal & Amendment; Validation of Agreements; Industrial Action

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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