Workplace Relations Amendment (Transmission of Business) Act 2004

Workplace Relations Amendment (Transmission of Business) Act 2004

No. 10, 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—Transmission of business

Workplace Relations Act 1996

Workplace Relations Amendment (Transmission of Business) Act 2004

No. 10, 2004

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

[Assented to 11 March 2004]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Workplace Relations Amendment (Transmission of Business) Act 2004.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

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 is for additional information that is not part of this Act. This information may be included in any published version of this Act.

 (3) If a provision covered by item 2 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

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  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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

Workplace Relations Act 1996

1  Paragraph 45(3)(a)

Repeal the paragraph, substitute:

 (a) in the case of an appeal under paragraph (1)(b) that is not covered by paragraph (aa) or (ab) of this subsection—by an organisation or person bound by the award or order;

2  After paragraph 45(3)(aa)

Insert:

 (ab) in the case of an appeal under paragraph (1)(b) against an order that was made under subsection 170MBA(2)—by the organisation or person who applied for the order or any organisation or person who made submissions to the Commission on whether the order should be made;

 (ac) in the case of an appeal under paragraph (1)(c) against a decision not to make an order under subsection 170MBA(2)—by the organisation or person who applied for the order;

3  Paragraph 45(3)(ba)

Omit “(eea)”, substitute “(eaa)”.

4  At the end of subsection 45(3)

Add:

Note: Because of the reference in subsection 494(3) to “the related provisions of this Act”, the operation of paragraphs (3)(ab) and (ac) extends to orders, and decisions not to make orders, under subsection 170MBA(2) as applied and modified by section 494.

5  Paragraph 170LX(4)(b)

Omit “section 170MB (which deals”, substitute “sections 170MB and 170MBA (which deal”.

6  Paragraph 170MB(1)(d)

Before “the new employer”, insert “subject to any order of the Commission made under subsection 170MBA(2),”.

7  Paragraph 170MB(1)(f)

Before “a reference”, insert “subject to any order of the Commission made under subsection 170MBA(2),”.

8  Paragraph 170MB(2)(d)

Before “the new employer”, insert “subject to any order of the Commission made under subsection 170MBA(2),”.

9  Paragraph 170MB(2)(f)

Before “a reference”, insert “subject to any order of the Commission made under subsection 170MBA(2),”.

10  At the end of Division 6 of Part VIB

Add:

170MBA  Commission may make order about extent to which successor employer bound by certified agreement

Application and terminology

 (1) If:

 (a) an employer is bound by a certified agreement; and

 (b) another employer becomes at a later time, or is likely to become at a later time, the successor, transmittee or assignee (whether immediate or not) of the whole or a part of the business of the employer referred to in paragraph (a);

then, for the purposes of this section:

 (c) the outgoing employer is the employer referred to in paragraph (a); and

 (d) the incoming employer is the employer first referred to in paragraph (b); and

 (e) the business concerned is the whole or that part of the business; and

 (f) the transfer time is the time at which the incoming employer becomes the successor, transmittee or assignee of the business concerned.

Commission may make order that certified agreement does not bind incoming employer

 (2) The Commission may make an order that the incoming employer:

 (a) is not, or will not be, bound by the certified agreement; or

 (b) is, or will be, bound by the certified agreement, but only to the extent specified in the order.

The order must specify the day from which the order takes effect. That day must not be before the day on which the order is made or before the transfer time.

 (2A) The Commission shall not make an order under subsection (2) unless:

 (a) the parties to the certified agreement and the incoming employer agree to the proposed order; or

 (b) the Commission is satisfied that the majority of employees who are covered by the certified agreement and who would be affected by the proposed order agree to the proposed order; or

 (c) the Commission is satisfied that either:

 (i) the proposed order does not disadvantage employees in relation to their terms and conditions of employment; or

 (ii) the proposed order is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the transmitted business.

In this subsection, a proposed order disadvantages an employee or employees in relation to their terms and conditions of employment, if, on balance, its approval would result in a reduction in the overall terms and conditions of employment of that employee or those employees.

 (2B) In making an order the Commission must take into account:

 (a) the proposed new terms and conditions that the employee would be subject to and the effect of any loss of conditions; and

 (b) the length of time remaining on the certified agreement.

 (3) Without limiting paragraph (2)(b), the Commission may make an order under that paragraph that the incoming employer is, or will be, bound by the certified agreement but only for the period specified in the order.

When application for order can be made

 (4) An application for an order under subsection (2) may be made before, at or after the transfer time.

Who may apply for order

 (5) Before the transfer time, an application for an order under subsection (2) may be made only by the outgoing employer.

 (5A) In determining an application made by an outgoing employer under subsection (5), the Commission must take into account the terms and conditions of employment that apply, or will apply, to employees of the incoming employer.

 (6) At or after the transfer time, an application for an order under subsection (2) may be made only by:

 (a) the incoming employer; or

 (b) an employee of the incoming employer whose employment is subject to the certified agreement; or

 (c) an organisation that:

 (i) is bound by the certified agreement; and

 (ii) is entitled to represent the industrial interests of employees referred to in paragraph (b) in relation to work that is subject to the agreement.

Paragraph (c) has effect subject to subsection (7) (which makes special provision for organisations bound by section 170LK agreements).

 (7) An organisation that is bound by a certified agreement made in accordance with section 170LK may only apply under paragraph (6)(c) for an order under subsection (2) if the organisation has at least one member:

 (a) who is an employee of the incoming employer and whose employment is subject to the agreement; and

 (b) whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

 (c) who requested the organisation to apply for an order under that subsection.

Applicant to give notice of application

 (8) The applicant for an order under subsection (2) must take reasonable steps to give written notice of the application to the persons who, and organisations that, may make submissions in relation to the application (see subsections (9) to (13)).

Submissions in relation to application for order

 (9) Before deciding whether to make an order under subsection (2) in relation to the certified agreement, the Commission must give the following an opportunity to make submissions:

 (a) the applicant;

 (b) before the transfer time—the persons and organisations covered by subsection (10);

 (c) at and after the transfer time—the persons and organisations covered by subsection (12).

Submissions—before transfer time

 (10) For the purposes of paragraph (9)(b), this subsection covers:

 (a) an employee of the outgoing employer:

 (i) whose employment is subject to the certified agreement; and

 (ii) who is employed in the business concerned; and

 (b) the incoming employer; and

 (c) an employee of the incoming employer whose employment may become subject to the certified agreement at or after the transfer time if the order is not made; and

 (d) an organisation that:

 (i) is bound by the certified agreement; and

 (ii) is entitled to represent the industrial interests of employees referred to in paragraph (a) or (c) in relation to work that is subject to the agreement.

Paragraph (d) has effect subject to subsection (11) (which makes special provision for organisations bound by section 170LK agreements).

 (11) An organisation that is bound by a certified agreement made in accordance with section 170LK is covered by subsection (10) only if the organisation has at least one member:

 (a) who is an employee referred to in paragraph (10)(a) or (c); and

 (b) whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

 (c) who requested the organisation to make submissions in relation to the application.

Submissions—at and after transfer time

 (12) For the purposes of paragraph (9)(c), this subsection covers:

 (a) the incoming employer; and

 (b) an employee of the incoming employer whose employment is subject to the certified agreement; and

 (c) an organisation that:

 (i) is bound by the certified agreement; and

 (ii) is entitled to represent the industrial interests of employees referred to in paragraph (b) in relation to work that is subject to the certified agreement.

Paragraph (c) has effect subject to subsection (13) (which makes special provision for organisations bound by section 170LK agreements).

 (13) An organisation that is bound by a certified agreement made in accordance with section 170LK is covered by subsection (12) only if the organisation has at least one member:

 (a) who is an employee referred to in paragraph (12)(b); and

 (b) whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

 (c) who requested the organisation to make submissions in relation to the application.

11  Subsection 494(3)

Repeal the subsection, substitute:

 (3) Division 2 of Part VIB and related provisions of this Act also have effect as if subsection 170MB(2) were omitted and the following provision substituted:

 (2) If:

 (a) an employer is bound by a certified agreement; and

 (b) the application for certification of the agreement stated that it was made under Division 2 or under Division 2 as it operates because of section 494; and

 (c) at a later time, a new employer that is a constitutional corporation, or the Commonwealth, or an employer (within the meaning of Part XV) in Victoria, becomes the successor, transmittee or assignee (whether immediate or not) of the whole or a part of the business concerned;

then, from the later time:

 (d) subject to any order of the Commission made under subsection 170MBA(2), the new employer is bound by the certified agreement, to the extent that it relates:

 (i) to the whole or the part of the business; and

 (ii) in the case of a new employer (within the meaning of Part XV) in Victoria—to employees (within the meaning of Part XV) in Victoria; and

 (e) the previous employer ceases to be bound by the certified agreement, to the extent that it relates:

 (i) to the whole or the part of the business; and

 (ii) in the case of a new employer (within the meaning of Part XV) in Victoria—to employees (within the meaning of Part XV) in Victoria; and

 (f) subject to any order of the Commission made under subsection 170MBA(2), a reference in this Part to the employer includes a reference to the new employer, and ceases to refer to the previous employer, to the extent that the context relates:

 (i) to the whole or the part of the business; and

 (ii) in the case of a new employer (within the meaning of Part XV) in Victoria—to employees (within the meaning of Part XV) in Victoria.

 (4) Division 2 of Part VIB and related provisions of this Act also have effect as if the following provisions were added at the end of section 170MBA:

 (14) In applying this section to an incoming employer who is an employer (within the meaning of Part XV) in Victoria, references in this section to an employee are taken to be references to an employee who is an employee (within the meaning of Part XV) in Victoria.

 (15) A reference in section 170MB or this section to a provision of one of those sections includes a reference to that provision as applied under subsection 494(3).

[Minister’s second reading speech made in—

House of Representatives on 21 March 2002

Senate on 26 June 2003]