Workplace Relations and Other Legislation Amendment Act 1996

No. 60, 1996

An Act to amend the Industrial Relations Act 1988, and for other purposes

Workplace Relations and Other Legislation Amendment Act 1996

No. 60, 1996

An Act to amend the Industrial Relations Act 1988, and for other purposes

[Assented to 25 November 1996]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Workplace Relations and Other Legislation Amendment Act 1996.

2 Commencement

(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(2) Subject to subsection (3), the items of the Schedules, other than Schedule 5, item 1 of Schedule 9, item 90 of Schedule 16 and the items of Schedules 12 and 19, commence on a day or days to be fixed by Proclamation.

(3) If an item of a Schedule does not commence under subsection (2) 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.

(4) Schedule 5 commences on 1 January 1997.

(5) Item 1 of Schedule 9 is taken to have commenced immediately before item 19 of Schedule 8 commences.

(6) Item 1 of Schedule 12 commences immediately after the commencement of item 3 of Schedule 10.

(7) If item 41 of Schedule 5 and item 3 of Schedule 6 commence on the same day, item 3 of Schedule 6 commences immediately after item 41 of Schedule 5.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4 Definition

In a Schedule to this Act, unless the contrary intention appears:

Workplace Relations Act means:

(a) so far as the context relates to a time before the day on which this Act receives the Royal Assent—the Industrial Relations Act 1988 as in force at that time; or

(b) otherwise—the Workplace Relations Act 1996.

Note: Schedule 19 to this Act changes the short title of the Industrial Relations Act 1988 to the Workplace Relations Act 1996.

Schedule 1—The principal object of the Workplace Relations Act 1996

Workplace Relations Act 1996

1 Section 3

Repeal the section, substitute:

3 Principal object of this Act

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) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and

(c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and

(d) providing the means:

(i) for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards; and

(ii) to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment; and

(e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them; and

(f) 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

(g) ensuring that employee and employer organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(h) enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation and, where appropriate and within specified limits, by arbitration; and

(i) assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers; and

(j) 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

(k) assisting in giving effect to Australia’s international obligations in relation to labour standards.

Schedule 2—Panels of the Commission

Workplace Relations Act 1996

1 Subsection 4(1) (definition of relevant Presidential Member)

Omit “is a member”, substitute “has been given the responsibility by the President for organising and allocating the work”.

2 At the end of section 36

Add:

(2) When exercising powers under this section and section 37, the President must have regard to the improved:

(a) efficiency of the Commission; and

(b) cooperation between the Commission and State industrial authorities;

that may be achieved by the Commission’s powers and functions being exercised and performed, in relation to a particular matter, by members of State industrial authorities who hold secondary offices as members of the Commission.

(3) If application is made under section 111AAA for the Commission to cease dealing with the whole or part of an industrial dispute in relation to particular employees, the President must give consideration to arranging for the matter to be heard by a member of a State industrial authority who holds a secondary office as a member of the Commission or, if the application is to be heard by a Full Bench, by a Full Bench which includes such a member.

3 Subsections 37(1) and (2)

Repeal the subsections, substitute:

(1) The President may assign an industry or group of industries to a panel of members of the Commission consisting of at least one Presidential Member and at least one Commissioner and, subject to this Act and any direction of the President, the powers of the Commission in relation to that industry (other than powers exercisable by a Full Bench) shall, as far as practicable, be exercised by a member or members of the panel.

(1A) Even though an industry has been assigned to a panel, the President may direct that the powers of the Commission in relation to a particular matter relating to that industry are to be exercised by:

(a) a member of the Commission who is not a member of that panel; or

(b) members of the Commission, some or all of whom are not members of that panel.

(2) If more than one Presidential Member is assigned to a panel, the President must nominate one of the Presidential Members to organise and allocate the work of the panel.

Schedule 3—The Employment Advocate

Workplace Relations Act 1996

1 Subsection 4(1)

Insert:

authorised officer means an authorised officer appointed under Part IVA.

Employment Advocate means the Employment Advocate referred to in Part IVA.

2 After Part IV

Insert:

Part IVA—The Employment Advocate

Division 1—Functions, powers etc. of the Employment Advocate

83BA The Employment Advocate

There is to be an Employment Advocate.

83BB Functions

(1) The Employment Advocate has the following functions:

(a) providing assistance and advice to employees about their rights and obligations under this Act;

(b) providing assistance and advice to employers (especially employers in small business) about their rights and obligations under this Act;

(c) providing advice to employers and employees, in connection with AWAs, about the relevant award and statutory entitlements and about the relevant provisions of this Act;

(d) performing functions under Part VID, including functions relating to the filing and approval of AWAs and ancillary documents;

(e) investigating alleged breaches of AWAs, alleged contraventions of Part VID and any other complaints relating to AWAs;

(f) investigating contraventions of Part XA;

(g) providing free legal representation to a party in a proceeding under Part VID or Part XA, if the Employment Advocate considers this would promote the enforcement of the provisions of those Parts;

(h) providing aggregated statistical information to the Minister;

(i) any other functions given to the Employment Advocate by this Act or any other Act;

(j) any other functions prescribed by the regulations.

(2) In performing his or her functions, the Employment Advocate must have particular regard to:

(a) the needs of workers in a disadvantaged bargaining position (for example: women, people from a non-English speaking background, young people, apprentices, trainees and outworkers); and

(b) assisting workers to balance work and family responsibilities; and

(c) promoting better work and management practices through Australian workplace agreements.

83BC Minister’s directions to Employment Advocate

(1) The Minister may, by notice published in the Gazette, give directions specifying the manner in which the Employment Advocate must exercise or perform the powers or functions of Employment Advocate (other than powers or functions relating to the approval of AW As and ancillary documents).

(2) The Employment Advocate must comply with the directions.

(3) A direction by the Minister is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

83BD Staff

The staff necessary to assist the Employment Advocate are to be persons appointed or employed under the Public Service Act 1922 and made available for the purpose by the Secretary to the Department.

83BE Delegation by Employment Advocate

(1) The Employment Advocate may, by instrument in writing, delegate any of the Employment Advocate’s powers or functions to:

(a) a person who is appointed or employed by the Commonwealth; or

(b) a person who is appointed or employed by a State or Territory.

(2) The Employment Advocate’s functions under Part VID relating to the approval of AWAs and ancillary documents can only be delegated to a member of the staff referred to in section 83BD.

(3) The Employment Advocate may, by written instrument, delegate a function referred to in paragraph 83BB(a), (b) or (c) to any person.

(4) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Employment Advocate.

83BF Annual report

(1) As soon as practicable after the end of each financial year, the Employment Advocate must prepare and give to the Minister a report on the operations of the Employment Advocate during that year.

(2) The report must include details of directions given by the Minister during the financial year under section 83BC.

(3) The Minister must cause a copy of the report to be laid before each House of the Parliament.

Division 2—Authorised officers

83BG Appointment of authorised officers

(1) The Employment Advocate may, by instrument in writing, appoint as an authorised officer:

(a) a person who is appointed or employed by the Commonwealth; or

(b) a person who is appointed or employed by a State or Territory.

(2) In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the Employment Advocate.

(3) The Employment Advocate must issue to an authorised officer an identity card in the form prescribed by the regulations. The identity card must contain a recent photograph of the authorised officer.

(4) If a person to whom an identity card has been issued ceases to be an authorised officer, the person must immediately return the identity card to the Employment Advocate.

(5) A person must not contravene subsection (4) without a reasonable excuse.

Penalty: 1 penalty unit.

(6) An authorised officer must carry the identity card at all times when exercising powers or performing functions as an authorised officer.

83BH Powers of authorised officers

(1) An authorised officer may exercise powers under this section for the following purposes (compliance purposes):

(a) for the purpose of ascertaining whether the terms of an AWA have been complied with, or are being complied with;

(b) for the purpose of ascertaining whether the provisions of Part VID or Part XA have been complied with, or are being complied with;

(c) for the purpose of ascertaining whether other provisions of this Act that are prescribed by the regulations have been complied with, or are being complied with.

(2) The powers may be exercised at any time during ordinary working hours or at any other time at which it is necessary to do so for compliance purposes.

(3) An authorised officer may, without force, enter:

(a) a place of business in which the authorised officer has reasonable cause to believe that work to which an AWA applies is being performed or has been performed; or

(b) a place of business in which the authorised officer has reasonable cause to believe that there are documents relevant to compliance purposes.

(4) An authorised officer may do any of the following in a place referred to in subsection (3):

(a) inspect any work, material, machinery, appliance, article or facility;

(b) as prescribed by the regulations, take samples of any goods or substances;

(c) interview any employee;

(d) require a person who has the custody of, or access to, a document to produce the document to the authorised officer within a specified period;

(e) inspect and copy any document produced to the authorised officer.

(5) If a person fails to comply with a requirement under subsection (4) to produce a document, an authorised officer may, by written notice served on the person, require the person to produce the document at a specified place within a specified period (not being less than 14 days).

(6) Where a document is produced to an authorised officer under subsection (5), the authorised officer may:

(a) inspect and copy the document; and

(b) if the authorised officer gives a receipt to the person who produced the document—retain the document for as long as necessary for the purpose of exercising powers or performing functions as an authorised officer.

(7) While an authorised officer retains a document, the authorised officer must permit the document to be inspected and copied, at any reasonable time, by:

(a) the person otherwise entitled to possession of the document; or

(b) a person authorised by the person otherwise entitled to possession of the document.

(8) Before entering a place under this section, an authorised officer must announce that he or she is authorised to enter the place. If the occupier or another person who apparently represents the occupier is present, the authorised officer must produce his or her identity card to that person for inspection.

(9) In this section:

copy, in relation to a document, includes take extracts from the document.

Division 3—Appointment, conditions of appointment etc. of Employment Advocate

83BI Appointment of Employment Advocate

(1) The Employment Advocate is to be appointed by the Governor-General for a term of up to 5 years.

(2) The Employment Advocate holds office on a full-time basis.

83BJ Remuneration and allowances

(1) The Employment Advocate is to be paid the remuneration that is determined by the Remuneration Tribunal. However, if no determination of that remuneration by the Tribunal is in operation, the Employment Advocate is to be paid the remuneration that is prescribed by the regulations.

(2) The Employment Advocate is to be paid such allowances as are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

83BK Outside employment

The Employment Advocate must not engage in any paid employment outside the duties of the office without the Minister’s written approval.

83BL Recreation leave etc.

(1) Subject to section 87E of the Public Service Act 1922, the Employment Advocate has such recreation leave entitlements as are determined by the Remuneration Tribunal.

(2) The Minister may grant the Employment Advocate other leave of absence on such terms and conditions as the Minister determines. The terms and conditions may include terms and conditions relating to remuneration.

83BM Resignation

The Employment Advocate may resign by giving the Governor-General a signed resignation notice.

83BN Disclosure of interests

The Employment Advocate must give written notice to the Minister of all interests, pecuniary or otherwise, that the Employment Advocate has or acquires and that could conflict with the proper performance of the Employment Advocate’s functions.

83BO Termination of appointment

(1) The Governor-General may terminate the appointment of the Employment Advocate for physical or mental incapacity, misbehaviour, incompetence or inefficiency.

(2) The Governor-General must terminate the appointment of the Employment Advocate if the Employment Advocate does any of the following:

(a) is absent from duty (except on leave of absence) for 14 consecutive days, or for 28 days in any period of 12 months;

(b) becomes bankrupt;

(c) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;

(d) compounds with his or her creditors;

(e) assigns his or her remuneration for the benefit of his or her creditors;

(f) contravenes section 83BN, without a reasonable excuse;

(g) engages in paid employment outside the duties of the office, without the Minister’s written approval.

(3) If the Employment Advocate is:

(a) an eligible employee for the purposes of the Superannuation Act 1976; or

(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990;

the Governor-General may, with the consent of the Employment Advocate, retire the Employment Advocate from office on the ground of physical or mental incapacity.

(4) For the purposes of the Superannuation Act 1976, the Employment Advocate is taken to have been retired from office on the ground of invalidity if:

(a) the Employment Advocate is removed or retired from office on the ground of physical or mental incapacity; and

(b) the Commonwealth Superannuation Board of Trustees No. 2 gives a certificate under section 54C of the Superannuation Act 1976.

(5) For the purposes of the Superannuation Act 1990, the Employment Advocate is taken to have been retired from office on the ground of invalidity if:

(a) the Employment Advocate is removed or retired from office on the ground of physical or mental incapacity; and

(b) the Commonwealth Superannuation Board of Trustees No. 1 gives a certificate under section 13 of the Superannuation Act 1990.

83BP Acting appointment

(1) The Minister may appoint a person to act as Employment Advocate:

(a) if there is a vacancy in the office of Employment Advocate, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the Employment Advocate is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.

(2) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(c) the appointment had ceased to have effect; or

(d) the occasion to act had not arisen or had ceased.

83BQ Other terms and conditions of appointment

The Employment Advocate holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor-General in writing.

Division 4—Miscellaneous

83BR Complementary State laws

(1) A complementary State law may confer functions and powers on the Employment Advocate or an authorised officer.

(2) In this section:

AWA provisions means this Part, Part VID and the other provisions of this Act so far as they relate to this Part or Part VID.

complementary State law means a law of a State that applies the AWA provisions as a law of the State, with:

(a) the modifications required by the regulations; and

(b) any other modifications permitted by the regulations.

modifications includes additions, omissions and substitutions.

83BS Identity of AWA parties not to be disclosed

(1) A person (the entrusted person) must not disclose protected information that the entrusted person knows, or has reasonable grounds to believe, will identify another person (the AWA party) as being, or having been, a party to an AWA.

Penalty: Imprisonment for 6 months.

(2) Each of the following is an exception to the prohibition in subsection (1):

(a) the disclosure is made by the entrusted person in the course of performing functions or duties as an AWA official;

(b) the disclosure is authorised by the regulations;

(c) the disclosure is required or permitted by another Act;

(d) the disclosure is authorised in writing by the AWA party.

(3) For the purposes of determining the burden of proof in proceedings for an offence against subsection (1), the exceptions in subsection (2) are taken to be part of the description of the offence.

(4) In this section:

AWA official means:

(a) the Employment Advocate; or

(b) a delegate of the Employment Advocate; or

(c) an authorised officer.

protected information means information that was acquired by the entrusted person:

(a) in the course of performing functions or duties as an AWA official; or

(b) from an AWA official who disclosed the information as authorised by the regulations.

83BT Publication of AWAs etc. by Employment Advocate

Subject to section 83BS, the Employment Advocate may publish or make available copies of, or extracts from, AWAs or ancillary documents.

3 After section 304

Insert:

304A False representation of appointment as an authorised officer

A person must not falsely represent himself or herself to be an authorised officer.

Penalty: Imprisonment for 6 months.

4 After section 305

Insert:

305A Obstructing an authorised officer

A person must not:

(a) intentionally hinder or obstruct a person whom he or she knows is an authorised officer; or

(b) without reasonable excuse, contravene a requirement made by an authorised officer under paragraph 83BH(4)(d) or subsection 83BH(5); or

(c) make a statement (whether orally or in writing) to an authorised officer that the person knows to be false or misleading in a material particular.

Penalty: Imprisonment for 6 months.

Schedule 4—Representation rights of organisations of employees

Part 1—Amendments

Workplace Relations Act 1996

1 Section 118

Repeal the section.

2 Subsection 118A(1)

Omit “202(3)”, substitute “202(6)”.

3 Subsection 118A(1)

After "orders”, insert “in relation to a demarcation dispute”.

Note: The heading to section 118A is replaced by the heading "Orders about representation rights of organisations of employees".

4 Subsection 118A(1A)

Omit “may make an order under subsection (l) in relation to a demarcation dispute only if’, substitute “must not make an order unless”.

5 After subsection 118A(1A)

Insert:

(1B) The Commission must not make an order unless the Commission is satisfied that:

(a) the conduct, or threatened conduct, of an organisation to which the order would relate, or of an officer, member or employee of the organisation:

(i) is preventing, obstructing or restricting the performance of work; or

(ii) is harming the business of an employer; or

(b) the consequences referred to in subparagraph (a)(i) or (ii):

(i) have ceased, but are likely to recur; or

(ii) are imminent;

as a result of such conduct or threatened conduct.

6 Subsection 118A(2)

Repeal the subsection, substitute:

(2) In considering whether to make an order, the Commission must have regard to the wishes of the employees who are affected by the dispute, and, where the Commission considers it appropriate, is also to have regard to:

(a) the effect of any order on the operations (including operating costs, work practices, efficiency and productivity) of an employer who is a party to the dispute or who is a member of an organisation that is a party to the dispute; and

(b) any agreement or understanding of which the Commission becomes aware that deals with the right of an organisation of employees to represent under this Act the industrial interests of a particular class or group of employees; and

(c) the consequences of not making an order for any employer, employees or organisation involved in the dispute; and

(d) any other order made by the Commission, in relation to another demarcation dispute involving the organisation to which the order under this section would relate, that the Commission considers to be relevant.

Note: Under section 135, the Commission may order that a vote of the members of the organisation concerned in the dispute be taken by secret ballot for the purpose of finding out their altitudes to the dispute.

7 Subsection 118A(3)

Omit “under subsection (1)”.

8 Subsections 118A(5), (6) and (7)

Repeal the subsections, substitute:

(5) An organisation to which an order applies must comply with the order.

(6) The Court may, on application by the Minister or a person or organisation affected by an order made under subsection (1), make such orders as it thinks fit to ensure compliance with that order.

9 Subsection 204(6B)

Repeal the subsection, substitute:

(6B) A designated Presidential Member may also refuse to consent to an alteration of the eligibility rules of an organisation if he or she:

(a) is satisfied that the alteration would change the effect of any order made by the Commission under section 118A about the right of the organisation to represent under this Act the industrial interests of a particular class or group of employees; and

(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

(6C) Subsections (6A) and (6B) do not limit the grounds on which a Presidential Member may refuse to consent to an alteration of the eligibility rules of an organisation.

10 Paragraph 204(8)(a)

Omit “118A(6) or”.

Part 2—Transitional provisions

11 Transitional—applications under section 118A of the Workplace Relations Act in respect of which the substantive hearing has not begun

(1)      This item applies to an application made under section 118A of the Workplace Relations Act but in respect of which the Commission had not begun the substantive hearing before the commencement of this item.

(2)      After the commencement of this item, the application has effect as if it were an application made under section 118A of the Workplace Relations Act as amended by this Schedule.

12 Transitional—applications under section 118A of the Workplace Relations Act in respect of which the substantive hearing has begun

(1)      This item applies to an application made under section 118A of the Workplace Relations Act and in respect of which the Commission had begun the substantive hearing before the commencement of this item.

(2)      Despite the amendment.' made to section 118A of the Workplace Relations Act by this Schedule, that section as in force immediately before the commencement of this item continues to apply in relation to the hearing of the application.

(3)      An order made as a result of the hearing of the application has effect as if it had been made under section 118A of the Workplace Relations Act as amended by this Schedule.

13 Transitional—orders under section 118A of the Workplace Relations Act

(1)      This item applies to an order that was in force under section 118A of the Workplace Relations Act immediately before the commencement of this item.

(2)      The order continues in force, after the commencement of this item, as if it had been made under section 118A of the Workplace Relations Act as amended by this Schedule.

Schedule 5—Awards

Part 1—Amendments

Workplace Relations Act 1996

1 Subsection 4(1)

Insert:

allowable award matters means the matters covered by subsection 89A(2).

2 Subsection 4(1)

Insert:

exceptional matters order means an order made by the Commission on a matter that is allowed to be included in an industrial dispute because of subsection 89A(7).

3 Subsection 4(1) (definition of paid rates award)

Repeal the definition.

4 Subsection 4(1) (definition of paid rates dispute)

Repeal the definition.

5 Subsection 4(1) (definition of paid rates functions and powers)

Repeal the definition.

6 Subsection 4(1)

Insert:

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.

7 Subsection 4(1)

Insert:

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 made under a law of a State that provides for such agreements; and

(d) that prevails over an inconsistent State award.

8 Section 88A

Repeal the section, substitute:

88A Objects of Part

The objects of this Part are to ensure that:

(a) wages and conditions of employment are protected by a system of enforceable awards established and maintained by the Commission; and

(b) awards act as a safety net of fair minimum wages and conditions of employment; and

(c) awards are simplified and suited to the efficient performance of work according to the needs of particular workplaces or enterprises; and

(d) the Commission’s functions and powers in relation to making and varying awards are performed and exercised in a way that encourages the making of agreements between employers and employees at the workplace or enterprise level.

9 Before section 89

Insert in Division 1:

88B Performance of Commission’s functions under this Part

(1) The Commission must perform its functions under this Part in a way that furthers the objects of the Act and, in particular, the objects of this Part.

(2) In performing its functions under this Part, the Commission must ensure that a safety net of fair minimum wages and conditions of employment is established and maintained, having regard to the following:

(a) the need to provide fair minimum standards for employees in the context of living standards generally prevailing in the Australian community;

(b) economic factors, including levels of productivity and inflation, and the desirability of attaining a high level of employment;

(c) when adjusting the safety net, the needs of the low paid.

(3) In performing its functions under this Part, the Commission must have regard to the following:

(a) the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed;

(b) the need to support training arrangements through appropriate trainee wage provisions;

(c) the need to provide a supported wage system for people with disabilities;

(d) the need to apply the principle of equal pay for work of equal value without discrimination based on sex;

(e) 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.

10 Subparagraph 89(a)(ii)

Omit “where necessary”, substitute “as a last resort and within the limits specified in this Act”.

11 After section 89

Insert:

89A Scope of industrial disputes

Industrial dispute normally limited to allowable award matters

(1) For the following purposes, an industrial dispute is taken to include only matters covered by subsections (2) and (3):

(a) dealing with an industrial dispute by arbitration;

(b) preventing or settling an industrial dispute by making an award or order;

(c) maintaining the settlement of an industrial dispute by varying an award or order.

Allowable award matters

(2) For the purposes of subsection (1) the matters are as follows;

(a) classifications of employees and skill-based career paths;

(b) ordinary time hours of work and the times within which they are performed, rest breaks, notice periods and variations to working hours;

(c) rates of pay generally (such as hourly rates and annual salaries), rates of pay for juniors, trainees or apprentices, and rates of pay for employees under the supported wage system;

(d) piece rates, tallies and bonuses;

(e) annual leave and leave loadings;

(f) long service leave;

(g) personal/carer’s leave, including sick leave, family leave, bereavement leave, compassionate leave, cultural leave and other like forms of leave;

(h) parental leave, including maternity and adoption leave;

(i) public holidays;

(j) allowances;

(k) loadings for working overtime or for casual or shift work;

(l) penalty rates;

(m) redundancy pay;

(n) notice of termination;

(o) stand-down provisions;

(p) dispute settling procedures;

(q) jury service;

(r) type of employment, such as full-time employment, casual employment, regular part-time employment and shift work;

(s) superannuation;

(t) pay and conditions for outworkers, but only to the extent necessary to ensure that their overall pay and conditions of employment are fair and reasonable in comparison with the pay and conditions of employment specified in a relevant award or awards for employees who perform the same kind of work at an employer’s business or commercial premises.

(3) The Commission’s power to make an award dealing with matters covered by subsection (2) is limited to making a minimum rates award.

Limitations on Commission's powers

(4) The Commission’s power to make or vary an award in relation to matters covered by paragraph (2)(r) does-not include:

(a) the power to limit the number or proportion of employees that an employer may employ in a particular type of employment; or

(b) the power to set maximum or minimum hours of work for regular part-time employees.

(5) Paragraph (4)(b) does not prevent the Commission from including in an award:

(a) provisions setting a minimum number of consecutive hours that an employer may require a regular part-time employee to work; or

(b) provisions facilitating a regular pattern in the hours worked by regular part-time employees.

(6) The Commission may include in an award provisions that are incidental to the matters in subsection (2) and necessary for the effective operation of the award.

Exceptional matters may be included in industrial dispute

(7) Subsection (1) does not exclude a matter (the exceptional matter) from an industrial dispute if the Commission is satisfied of all the following:

(a) a party to the dispute has made a genuine attempt to reach agreement on the exceptional matter;

(b) there is no reasonable prospect of agreement being reached on the exceptional matter by conciliation, or further conciliation, by the Commission;

(c) it is appropriate to settle the exceptional matter by arbitration;

(d) the issues involved in the exceptional matter are exceptional issues;

(e) a harsh or unjust outcome would apply if the industrial dispute were not to include the exceptional matter.

Anti-discrimination clause

(8) Nothing in this section prevents the Commission from including a model anti-discrimination clause in an award.

Note: A model anti-discrimination clause was established by the Commission in the Full Bench decision dated 9 October 1995 (print M5600).

Interpretation

(9) In this section, outworker means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.

12 Section 90AA

Repeal the section.

13 Section 90AB

Repeal the section.

14 Section 92A

Repeal the section.

15 Section 95

Repeal the section, substitute:

95 No automatic flow-on of terms of certain agreements

The Commission does not have power to include terms in an award that are based on the terms of a certified agreement unless the Commission is satisfied that including the terms in the award:

(a) would not be inconsistent with principles established by a Full Bench that apply in relation to determining wages and conditions of employment; and

(b) would not be otherwise contrary to the public interest.

16 After section 98

Insert in Division l:

98A 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.

17 Subsection 100(2)

Repeal the subsection, substitute:

(2) If the Presidential Member does not refer the alleged industrial dispute for conciliation:

(a) the Presidential Member must publish reasons for not doing so; and

(b) the Commission must deal with the alleged industrial dispute by arbitration.

18 Section 106

Repeal the section, substitute:

106 Allowable award matters to be dealt with by Full Bench

(1) After the commencement of this section, a Full Bench of the Commission may establish principles about the making or varying of awards in relation to each of the allowable award matters.

(2) After such principles (if any) have been established, the power of the Commission to make or vary an award is exercisable only by a Full Bench unless the contents of the award:

(a) give effect to determinations of a Full Bench made after the commencement of this section; or

(b) are consistent with principles established by a Full Bench after the commencement of this section.

(3) 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.

(4) After making such investigation (if any) as is necessary, the member must provide a report to the President or Full Bench, as the case may be.

19 Subsection 108(2A)

Repeal the subsection.

20 Subsection 109(1)

Repeal the subsection, substitute:

(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 if it appears to the Minister that the award, order or decision is contrary to the public interest.

21 Subparagraph 111(1)(g)(ii)

Omit “State arbitrator”, substitute “State industrial authority”.

22 Subsections 111 (1A), (1B) and (1C)

Repeal the subsections.

23 Subsection 111(1D)

Repeal the subsection, substitute:

(1D) The Commission must decide as quickly as it can whether to make an interim award if the Commission considers that such an award may be necessary to protect, for an interim period, the wages and conditions of employment of the employees whom the award would cover.

24 Subsections 111(1F), (1G), (1H) and (4)

Repeal the subsections.

25 After section 111

Insert:

111AAA Commission to cease dealing with industrial dispute in certain circumstances

(1) If the Commission is satisfied that a State award or State employment agreement governs the wages and conditions of employment of particular employees whose wages and conditions of employment are the subject of an industrial dispute, the Commission must cease dealing with the industrial dispute in relation to those employees, unless the Commission is satisfied that ceasing would not be in the public interest.

(2) In determining the public interest for the purposes of subsection (1) the Commission must give primary consideration to:

(a) the views of the employees referred to in subsection (1); and

(b) the views of the employer or employers of those employees.

(3) The Commission must inform itself as quickly as it can about the views referred to in subsection (2), and may inform itself in such manner as it thinks fit.

(4) In this section:

cease dealing, in relation to an industrial dispute, means:

(a) to dismiss the whole or a part of a matter to which the industrial dispute relates; or

(b) to refrain from further hearing or from determining the industrial dispute or part of the industrial dispute.

26 Subsection 113(4A)

Repeal the subsection.

27 At the end of section 113A

Add:

(2) This section is not limited by subsection 89A(6).

28 Subsection 113B(2)

Repeal the subsection, substitute:

(2) The Commission does not have power to vary the award for that purpose unless it is satisfied that the variation:

(a) would only deal with allowable award matters; and

(b) would be a minimum rates award; and

(c) if it included a variation to rates of pay provided in the award, would provide for minimum rates of pay consistent with sections 88A and 88B.

29 Subsection 113B(3)

Repeal the subsection.

30 Subsection 113B(4)

Repeal the subsection, substitute:

(4) An organisation of employees is entitled to be heard on the application if, and only if:

(a) it is a party to the award; and

(b) it has a member or members whose employment would be regulated by the variation.

31 Section 120

Omit “In making an award”, substitute “Subject to section 89A, in making an award".

32 After section 120:

Insert:

120A Orders of Commission on exceptional matters

(1) Each exceptional matters order must relate only to a single matter.

Note 1: An exceptional matters order is an order made by the Commission on a matter that is allowed to be included in an industrial dispute because of subsection 89A(7).

Note 2: Exceptional matters orders arc published under section 143, in the same way as other orders of the Commission.

(2) The Commission must not make an exceptional matters order unless the Commission is satisfied that making the order is in the public interest, and consistent with the objects of this Act.

(3) The Commission must not make an exceptional matters order that would apply to more than a single business unless the Commission is satisfied that such an order is an appropriate manner of settling the matter in dispute.

(4) An exceptional matters order must be made by a Full Bench, unless the order relates to a single business (within the meaning of Part VIB).

(5) An exceptional matters order ceases to be in force 2 years after it is made, and cannot be extended.

120B Commission to report on junior rates of pay

(1) Before 22 June 1999, a Full Bench must prepare a report for the Minister on the feasibility of replacing junior rates with non-discriminatory alternatives.

(2) The report must include assessments of:

(a) whether it is desirable to replace junior rates with non-discriminatory alternatives; and

(b) the consequences for youth employment of abolishing junior rates; and

(c) the utility of junior rates:

(i) for different types of employment; and

(ii) for different industries; and

(iii) in the school-to-work transition.

(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable after the Minister receives it.

(4) In this section, junior rates means junior rates of pay.

33 After section 127

Insert:

127AA Awards and orders dealing with rights of entry

(1) A provision of an award or order that requires or authorises an officer or employee of an organisation:

(a) to enter premises:

(i) occupied by an employer who is bound by the award or order; or

(ii) in which work to which the award or order applies is being carried on; or

(b) to inspect or view any work, material, machinery, appliance, article, document or other thing on such premises; or

(c) to interview an employee on such premises;

is unenforceable.

(2) This section does not apply to an order made under section 285G.

34 Subsection 128(1)

Omit “the Commission may”, substitute:

other than by:

(d) facilitating the entering into of a State employment agreement; or

(e) approving a State employment agreement;

the Commission may

35 After subsection 143(1A)

Insert:

(1B) The Commission must, if it considers it appropriate, ensure that a decision or determination covered by subsection (1):

(a) does not include matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level; and

(b) does not prescribe work practices or procedures that restrict or hinder the efficient performance of work; and

(c) does not contain provisions that have the effect of restricting or hindering productivity, having regard to fairness to employees.

(1C) The Commission must ensure that a decision or determination covered by subsection (1):

(a) where appropriate, contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award provisions are to apply; and

(b) where appropriate, contains provisions enabling the employment of regular part-time employees; and

(c) is expressed in plain English and is easy to understand in structure and content; and

(d) does not contain provisions that are obsolete or that need updating; and

(e) where appropriate, provides support to training arrangements through appropriate trainee wages and a supported wage system for people with disabilities; and

(f) does not contain provisions that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(1D) A decision or determination covered by subsection (1) does not discriminate against an employee for the purposes of paragraph (1C)(f) merely because:

(a) it provides for a junior rate of pay; or

(b) it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or

(c) it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:

(i) on the basis of those teachings or beliefs; and

(ii) in good faith.

(1E) Paragraph (1D)(a) does not apply to a decision or determination made by the Commission more than 3 years after 22 June 1997, except where the Commission decides, on a case-by-case basis, that the paragraph should apply. Decisions by the Commission as to whether the paragraph should apply must be made by the Commission in accordance with principles established by a Full Bench.

36 Subsection 143(2A)

Repeal the subsection, substitute:

(2A) The Commission must ensure that a decision or determination covered by subsection (2) is expressed in plain English and is easy to understand in structure and content.

37 At the end of paragraph 148(2)(a)

Add “or”.

38 Paragraph 148(2)(b)

Omit “or”.

39 Paragraph 148(2)(c)

Repeal the paragraph.

40 Section 150A

Repeal the section.

41 At the end of section 152

Add:

(2) If:

(a) but for this subsection, an award would become binding on an employer in respect of an employee at a particular time; and

(b) immediately before that time, the wages and conditions of employment of the employee were regulated by a State employment agreement;

then the award is not binding on any person in respect of the employee, while the wages and conditions of employment of the employee continue to be regulated by the agreement.

(3) If, at a particular time, a State employment agreement that is made after the commencement of this subsection would regulate wages and conditions of employment of an employee but for the fact that an award is binding on an employer in respect of the employee, then:

(a) the award does not prevent the agreement from coming into force and regulating the wages and conditions of employment of the employee; and

(b) while the agreement continues to regulate those wages and conditions, the award is not binding on any person in respect of the employee.

(4) In subsection (3), award does not include an award made under subsection 170MX(3)

(5) Subsections (2) and (3) do not apply to a State employment agreement unless the agreement is one that was approved by a State industrial authority under a State Act that required the authority, before approving the agreement, to be satisfied:

(a) that the employees covered by the agreement are not disadvantaged in comparison to their entitlements under the relevant award; and

(b) that the agreement was genuinely made, or that the agreement was not made under duress or that the agreement was made without coercion; and

(c) that the agreement covers all the employees whom it would be reasonable for the agreement to cover, having regard to matters (if any) specified in the State Act (such as the nature of the work performed under the agreement and the relationship between the employees in the part of the business covered by the agreement and the remainder of the employees in the business).

42 Part VIC

Repeal the Part.

43 Subparagraph 178(4)(a)(i)

Omit “$500”, substitute “$5,000 for a body corporate or $1,000 in other cases”.

44 Subparagraph 178(4)(a)(ii)

Omit “$1,000”, substitute “$10,000 for a body corporate or $2,000 in other cases".

45 Paragraph 178(4)(b)

Omit “$500”, substitute “$10,000 for a body corporate or $2,000 in other cases”.

Part 2—Transitional provisions

46 Interpretation

In this Part:

interim period means the period of 18 months beginning on the day on which section 89A of the Principal Act commences.

Principal Act means the Workplace Relations Act.

special consent provisions has the meaning given by item 48.

termination time, in relation to special consent provisions, means the end of the period that is specified in the award under section 147 of the Principal Act.

47 Exercise of Commission’s powers under this Part

In exercising its powers under this Part, the Commission is to have regard to the desirability of assisting parties to awards to agree on appropriate variations to their awards, rather than have parts of awards cease to have effect under item 50 at the end of the interim period.

48 Special consent provisions

For the purposes of this Part, special consent provisions are provisions of an award that give effect to a decision of the Commission that is expressed to be made in accordance with one or more of the following principles:

(a) the Enterprise Bargaining Principle adopted by the Commission in the National Wage Case decision of October 1991 (Dec 1150/91, Print K0300);

(b) the Enterprise Awards Principle adopted by the Commission in its Review of the Wage Fixing Principles decision of October 1993 (Dec 1300/93, Print K9700);

(c) Principle 2.2 (Consent Award or Award Variation to Give Effect to an Enterprise Agreement), adopted by the Commission in its Review of the Wage Fixing Principles decision of August 1994 (Dec 1408/94, Print L4700) and incorporated without amendment in wages principles established by the Commission in its Safety Net Adjustment & Section 150A Review decision of October 1995 (Dec 2120/95, Print M5600).

49 Variation of awards during the interim period

(1)      If one or more of the parties to an award apply to the Commission for a variation of the award under this item, the Commission may, during the interim period, vary the award so that it only deals with allowable award matters.

(2)      For the purposes of this item, an exceptional matters order is taken to relate wholly to allowable award matters.

(3)      Special consent provisions cannot be varied under this item before the termination time for those provisions.

(4)      The Commission may only deal with the application by arbitration if it is satisfied that the applicant or applicants have made reasonable attempts to reach agreement with the other parties to the award about how the award should be varied and the treatment of matters that are not allowable award matters.

(5)      If:

(a) the award provides for rates of pay that, in the opinion of the Commission:

(i) are not operating as minimum rates; or

(ii) were made on the basis that they were not intended to operate as minimum rates; and

(b) the application under this item seeks to have such rates of pay varied so that they are expressed as minimum rates of pay;

the Commission may vary the award so that it provides for minimum rates of pay consistent with sections 88A and 88B of the Principal Act and the limitation on the Commission’s power in subsection 89A(3) of that Act.

(6)      If the Commission varies the award under subitem (5), it must include in the award provisions that ensure that overall entitlements to pay provided by the award are not reduced by that variation, unless the Commission considers that it would be in the public interest not to include such provisions.

(7)      The Commission must, if it considers it appropriate, review the award to determine whether or not it meets the following criteria:

(a) it does not include matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level;

(b) it does not prescribe work practices or procedures that restrict or hinder the efficient performance of work;

(c) it does not contain provisions that have the effect of restricting or hindering productivity, having regard to fairness to employees.

(8)      The Commission must also review the award to determine whether or not it meets the following criteria:

(a) where appropriate, it contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award provisions are to apply;

(b) where appropriate, it contains provisions enabling the employment of regular part-time employees;

(c) it is expressed in plain English and is easy to understand in both structure and content;

(d) it does not contain provisions that are obsolete or that need updating;

(e) where appropriate, it provides support to training arrangements through appropriate trainee wages and a supported wage system for people with disabilities;

(f) it does not contain provisions that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(9)      If the Commission determines that the award does not meet the criteria set out in subitem (7) or (8), the Commission may take whatever steps it considers appropriate to facilitate the variation of the award so that it does meet those criteria.

50 Parts of awards cease to have effect at the end of the interim period

(1)      At the end of the interim period, each award ceases to have effect to the extent that it provides for matters other than allowable award matters.

(2)      For the purposes of this item, an exceptional matters order is taken to relate wholly to allowable award matters.

(3)      For the purposes of this item, an award that is made under subsection 170MX(3) of the Principal Act is taken to provide wholly for allowable award matters.

(4)      If the termination time for special consent provisions is after the end of the interim period, then this item and item 51 apply to the special consent provisions as if a reference to the end of the interim period were instead a reference to the termination time.

51 Variation of awards after the end of the interim period

(1)      As soon as practicable after the end of the interim period, the Commission must review each award:

(a) that is in force; and

(b) that the Commission is satisfied has been affected by item 50.

(2)      The Commission must vary the award to remove provisions that ceased to have effect under item 50.

(3)      When varying the award under subitem (2), the Commission may also vary the award so that, in relation to an allowable award matter, the award is expressed in a way that reasonably represents the entitlements of employees in respect of that matter as provided in the award as in force immediately before the end of the interim period.

(4)      If, immediately before the end of the interim period, the award provided for rates of pay that, in the opinion of the Commission:

(a) were not operating as minimum rates of pay; or

(b) were made on the basis that they were not intended to operate as minimum rates;

the Commission may vary the award so that it provides for minimum rates of pay consistent with sections 88A and 88B of the Principal Act and the limitation on the Commission’s power in subsection 89A(3) of that Act.

(5)      If the Commission varies the award under subitem (4), it must include in the award provisions that ensure that overall entitlements to pay provided by the award are not reduced by that variation, unless the Commission considers that it would be in the public interest not to include such provisions.

(6)      The Commission must, if it considers it appropriate, review the award to determine whether or not it meets the following criteria:

(a) it does not include matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level;

(b) it does not prescribe work practices or procedures that restrict or hinder the efficient performance of work;

(c) it does not contain provisions that have the effect of restricting or hindering productivity, having regard to fairness to employees.

(7)      The Commission must also review the award to determine whether or not it meets the following criteria:

(a) where appropriate, it contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award provisions are to apply;

(b) where appropriate, it contains provisions enabling the employment of regular part-time employees;

(c) it is expressed in plain English and is easy to understand in both structure and content;

(d) it does not contain provisions that are obsolete or that need updating;

(e) where appropriate, it provides support to training arrangements through appropriate trainee wages and a supported wage system for people with disabilities;

(f) it does not contain provisions that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(8)      If the Commission determines that the award does not meet the criteria set out in subitem (6) or (7), the Commission may take whatever steps it considers appropriate to facilitate the variation of the award so that it does meet those criteria.

52 Corporations not bound by State awards

(1)      If:

(a) a constitutional corporation is bound by an award in respect of an employee; and

(b) the award is varied under subitem 49(1) or wholly or partly ceases to have effect because of item 50; and

(c) as a result of the award being varied, or ceasing to have effect, as mentioned in paragraph (b), the corporation would (apart from this item) become bound by a State award in respect of the employee;

then the corporation is not bound by the State award in relation to the employee unless it becomes bound as a result of an application by the corporation to the relevant State industrial authority.

(2)      Subitem (1) does not operate so that a State award, or part of a State award, prevails over an award of the Commission.

53 Matters to be dealt with by Full Bench

(1)      After the commencement of this Part, a Full Bench may establish principles about varying awards under this Part.

(2)      After such principles (if any) have been established, the power of the Commission to vary an award under this Part is exercisable only by a Full Bench unless the contents of the award:

(a) give effect to determinations of a Full Bench under this Part; or

(b) are consistent with principles established by a Full Bench under this item.

54 Certain provisions not discriminatory

(1)      A provision of an award does not discriminate against an employee for the purposes of paragraph 49(8)(f) or 51(7)(f) merely because:

(a) it provides for a junior rate of pay; or

(b) it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or

(c) it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:

(i) on the basis of those teachings or beliefs; and

(ii) in good faith.

(2)      Paragraph (1)(a) does not apply to a decision or determination made by the Commission under this Part more than 3 years after 22 June 1997, except where the Commission decides, on a case-by-case basis, that the paragraph should apply. Decisions by the Commission as to whether the

paragraph should apply must be made by the Commission in accordance with principles established by a Full Bench.

55 Transitional—repeal of subsection 111(1A)

The repeal of subsection 111(1A) of the Principal Act does not apply to any proceedings before the Commission that commenced before the commencement of the repeal.

Schedule 6—Termination of employment

Part 1—Amendments

Workplace Relations Act 1996

1 At the end of section 5

Add:

(8) If a law of a Stale (the relevant State law) provides that a provision of this Act applies (subject to any necessary modifications to section I70CB) as a law of that State for the purpose of enabling the Commission to perform functions or exercise powers with respect to the termination of employment of employees who are, or who were before the termination, Federal award employees as defined in section 170CD employed in that State:

(a) nothing in this Act affects the operation of the relevant State law; and

(b) the Commission may perform those functions or exercise those powers.

(9) If a law of a State (the relevant State law) also provides that a provision of this Act applies (subject to any necessary modifications) as a law of that State for the purpose of enabling the Court to perform functions or exercise powers with respect to the termination of employment of employees who are, or who were before the termination, Federal award employees as defined in section 170CD employed in that State in connection with orders of the Commission to the extent that those orders are made in the exercise of the provisions of this Act as applied by the relevant State law, then:

(a) the Court may perform those functions or exercise those powers in connection with those orders; and

(b) nothing in this Act affects the operation of the relevant State law.

2 Section 152

Omit “Where a State law, or an order, award, decision or determination of a State industrial authority,”, substitute “Subject to this section, if a State law or a State award”.

3 At the end of section 152

Add:

(1A) If a State law or a State award makes provision in respect of the termination of an employee’s employment, any provision in a Federal award that also makes provision in respect of the termination of employment of the employee is not to be taken to show an intention to cover the field to the exclusion of that State law or State award.

Note: The heading to section 152 is altered by omitting “, awards etc” and substituting “and State awards”.

4 Subsection 153(1)

Omit “or an order, award, decision or determination of a State industrial authority”, substitute “or a State award”.

Note: The heading to section 153 is altered by omitting "orders, awards etc" and substituting “laws and State awards”.

5 Subdivisions A, B, C and CA of Division 3 of Part VIA

Repeal the Subdivisions, substitute:

Subdivision A—Object, application and definitions

170CA Object

(1) The principal object of this Division is:

(a) to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee’s employment in certain circumstances; and

(b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and

(c) to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and

(d) to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and

(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention.

(2) The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in

respect of a termination of employment, a ‘‘fair go all round” is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.

170CB Application

(1) Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground that that termination was harsh, unjust or unreasonable, if the employee concerned was, before the termination:

(a) a Commonwealth public sector employee; or

(b) a Territory employee; or

(c) a Federal award employee who was employed by a constitutional corporation; or

(d) a Federal award employee who was a waterside worker, maritime employee or flight crew officer, employed in the course of, or in relation to, trade or commerce between Australia and a place outside Australia, between the States, within a Territory, between a State and a Territory, or between 2 Territories.

(2) Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground of a contravention of all or any of sections 170CK, 170CL, 170CM and 170CN, if the employee concerned is an employee in relation to whose termination of employment Subdivision C applies in accordance with this section.

(3) Subdivisions C, D and E apply in relation to the termination of employment of an employee.

(4) Without prejudice to their effect apart from this subsection, Subdivisions C, D and E also apply in relation to the termination of employment of:

(a) a Commonwealth public sector employee; or

(b) a Territory employee; or

(c) an employee who was employed by a constitutional corporation; or

(d) an employee who was a waterside worker, maritime employee or flight crew officer, employed in the course of, or in relation to, trade or commerce between Australia and a place outside Australia, between the States, within a

Territory, between a State and a Territory, or between 2 Territories.

(5) Without prejudice to their effect apart from this subsection, Subdivisions C, D and E also apply in relation to the termination of employment of an employee for the purpose of assisting in giving effect to the Termination of Employment Convention.

(6) Without prejudice to its effect apart from this subsection, section 170CK also applies in relation to the termination of employment of an employee for the purpose of giving effect to the conventions referred to in that section.

170CC Regulations may exclude employees

(1) The regulations may exclude from the operation of specified provisions of this Division specified classes of employees included in any of the following classes:

(a) employees engaged under a contract of employment for a specified period of time or a specified task;

(b) employees serving a period of probation or qualifying period;

(c) employees engaged on a casual basis for a short period;

(d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances;

(e) employees in relation to whom the operation of the provisions causes or would cause substantial problems because of:

(i) their particular conditions of employment; or

(ii) the size or nature of the undertakings in which they are employed.

(2) Without limiting, by implication, the class of persons that may be prescribed for the purposes of paragraph (1)(e), the regulations may identify as a class of employees for the purposes of that paragraph employees not employed under award conditions and to whom subsection (3) or (4) applies.

(3) This subsection applies to an employee if:

(a) the employee’s remuneration immediately before the termination of employment was not wholly or partly determined on the basis of commission or piece rates; and

(b) the rate of remuneration applicable to the employee immediately before the termination exceeds a rate specified,

or worked out in a manner specified, in the regulations (the specified rate).

(4) This subsection applies to an employee if:

(a) the employee’s remuneration immediately before the termination of employment was wholly or partly determined on the basis of commission or piece rates; and

(b) in accordance with the regulations, the rate of remuneration that is taken to be applicable to the employee immediately before the termination exceeds the specified rate.

170CD Definitions

(1) In this Division:

Commonwealth public sector employee means a person in employment:

(a) as an officer or employee of the Australian Public Service; or

(b) by or in the service of a Commonwealth authority; or

(c) by authority of a law of the Commonwealth.

Note: Commonwealth authority is defined in subsection 4(1).

Federal award employee means an employee any of whose terms and conditions of employment are governed by an award, a certified agreement or an AWA.

termination or termination of employment means termination of employment at the initiative of the employer.

Territory employee means any person employed in a Territory other than Norfolk Island.

(2) An expression used in Subdivision C, D or E of this Division has the same meaning as in the Termination of Employment Convention.

(3) For the purposes of this Division, an employee is taken to be employed under award conditions if both wages and conditions of employment of the employee are regulated by awards, certified agreements or AWAs, that bind the employer of the employee.

Subdivision B—Application to Commission for relief in respect of termination of employment

170CE Application to Commission to deal with termination under this Subdivision

(1) Subject to subsection (5), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:

(a) on the ground that the termination was harsh, unjust or unreasonable; or

(b) on the ground of an alleged contravention of section I70CK, 170CL, 170CM or 170CN; or

(c) on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a).

(2) Subject to subsection (6), an employee whose employment is proposed to be terminated by the employer may apply to the Commission for relief on the ground of an alleged contravention of section 170CL.

(3) Subject to subsection (6), if:

(a) an employee’s employment has been terminated by the employer; and

(b) a trade union’s rules entitle it to represent the industrial interests of the employee;

the union may, on behalf of the employee, apply to the Commission for relief on the ground or grounds of an alleged contravention of one or more of sections 170CK, 170CM and I70CN.

(4) Subject to subsection (6), if an employee’s employment has been terminated, or is proposed to be terminated, by the employer:

(a) an inspector; or

(b) a trade union:

(i) whose members include the employee; and

(ii) whose rules entitle it to represent the industrial interests of the employee; or

(c) an officer or employee of such a union—if the union’s rules authorise the officer or employee to act on the union’s behalf;

may apply to the Commission for relief on the ground of an alleged contravention of section 170CL.

(5) An application under subsection (1) may not be made:

(a) on the ground referred to in paragraph (1)(a) or on grounds that include that ground—unless, under subsection 170CB(1), Subdivision B applies to that application; or

(b) on a ground referred to in paragraph (1)(b)—unless Subdivision C applies to that application.

(6) An application under subsection (2), (3) or (4) may not be made on a ground referred to in that subsection unless Subdivision C applies to that application.

(7) An application under subsection (1) must be lodged within 21 days after the day on which the termination took effect.

(8) The Commission may accept an application that is lodged out of time if the Commission considers that it would be unfair not to do so.

(9) An application under subsection (1) may be discontinued by the employee in accordance with rules made under section 48. The employee may do so whether or not the employer and the employee have agreed to settle the matter.

170CF Conciliation

(1) When an application is lodged with the Commission, the Commission must attempt to settle the matter to which the application relates by conciliation.

(2) If the Commission is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as concerns at least one ground of the application, the Commission:

(a) must issue a certificate in writing stating that it is so satisfied in respect of that ground or each such ground; and

(b) must indicate to the parties the Commission’s assessment of the merits of the application in so far as it relates to that ground or to each such ground; and

(c) if the Commission thinks fit, may recommend that the applicant elect not to pursue a ground or grounds of the application (whether or not also recommending other means of resolving the matter).

170CFA Elections to proceed to arbitration or to begin court proceedings

(1) If the certificate given by the Commission under subsection 170CF(2) identifies only the ground referred to in paragraph I70CE(1)(a) as a ground where conciliation is, or is likely to be, unsuccessful, the applicant must elect cither to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable or not to proceed.

(2) If the certificate given by the Commission under subsection 170CF(2) identifies only:

(a) the ground referred to in paragraph 170CE(1)(a); and

(b) the ground of an alleged contravention of section 170CM;

as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either, both, or neither of the following:

(c) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;

(d) to begin proceedings in a court of competent jurisdiction for an order under section 170CR in respect of the alleged contravention of section 170CM.

(3) If the certificate given by the Commission under subsection 170CF(2) identifies:

(a) the ground referred to in paragraph 170CE(1)(a); and

(b) a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CLand 170CN;

as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either or neither of the following:

(c) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;

(d) to begin proceedings in the Court for an order under section 170CR in respect of the alleged contravention, or of any one or more of the alleged contraventions.

(4) If the certificate given by the Commission under subsection 170CF(2) identifies only a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL, 170CM and 170CN as the ground or grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either, both or neither of the following:

(a) so far as concerns an alleged contravention of a section or sections other than section 170CM—to begin proceedings in the Court for an order under section 170CR in respect of the

alleged contravention, or of any one or more of the alleged contraventions;

(b) so far as concerns an alleged contravention of section 170CM—to begin proceedings in a court of competent jurisdiction for an order under section 170CR in respect of the alleged contravention.

(5) If the certificate given by the Commission under subsection 170CF(2) identifies:

(a) the ground referred to in paragraph 170CE(1)(a); and

(b) the ground of an alleged contravention of section 170CM; and

(c) a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CLand 170CN;

as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect:

(d) to do either or both of the things permitted in subsection (2); or

(e) to do either or both of the things permitted in subsection (4); or

(f) to do none of those things.

(6) An election under subsection (1), (2), (3), (4) or (5) must:

(a) be made in writing; and

(b) be lodged with the Commission not later than 7 days after the day of issue of the certificate by the Commission under subsection 170CF(2) in relation to the application.

(7) If an applicant fails to lodge with the Commission an election under subsection (1), (2), (3), (4) or (5) within the period required under subsection (6), the application concerned is taken to have been discontinued by the applicant at the end of that period for all purposes other than the making of an election out of time in accordance with subsection (8).

(8) The Commission may accept an election that is lodged out of time if the Commission considers that it would be unfair not to do so, and, if the Commission accepts such an election, the original application is taken not to have been discontinued in spite of subsection (7).

170CG Arbitration

(1) If:

(a) the Commission has issued a certificate under subsection 170CF(2) regarding conciliation of an application relating to a termination of employment; and

(b) the applicant has made an election under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;

the Commission may so proceed to arbitrate the matter.

(2) Neither the making of an election under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section 170CH.

(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service; and

(b) whether the employee was notified of that reason; and

(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and

(e) any other matters that the Commission considers relevant.

170CH Remedies on arbitration

(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) if it has determined that the termination was harsh, unjust or unreasonable.

(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and

(b) the length of the employee’s service with the employer; and

(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and

(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

(e) any other matter that the Commission considers relevant;

that the remedy ordered is appropriate.

(3) If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by:

(a) reappointing the employee to the position in which the employee was employed immediately before the termination.

(b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.

(4) If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make:

(a) any order that the Commission thinks appropriate to maintain the continuity of the employee’s employment; and

(b) subject to subsection (5)—any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination.

(5) If, as a result of an application under section 170CP, a court has  awarded an amount of damages for a failure to give notice of a termination as required by section 170CM, any amount ordered to be paid by the Commission under paragraph (4)(b) in respect of the termination is to be reduced accordingly.

(6) If the Commission thinks that the reinstatement of the employee is inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the Commission in lieu of reinstatement.

(7) Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and

(b) the length of the employee’s service with the employer; and

(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and

(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

(e) any other matter that the Commission considers relevant.

(8) In fixing an amount under subsection (6) for an employee who was employed under award conditions immediately before the termination, the Commission must not fix an amount that exceeds the total of the following amounts:

(a) the total amount of remuneration received (other than remuneration received for any period of leave without full pay) by the employee for any period of employment with the employer during the period of 6 months immediately before the termination; and

(b) if the employee was on leave without pay or without full pay While so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

(9) In fixing an amount under subsection (6) for an employee who was not employed under award conditions immediately before the termination, the Commission must not fix an amount that exceeds:

(a) the total of the amounts determined under subsection (8) if the employee were an employee covered by the subsection; or

(b) the amount of $32,000, as indexed from time to time in accordance with a formula prescribed by the regulations;

whichever is the lower amount.

(10) For the avoidance of doubt, an order by the Commission under paragraph (4)(b) or under subsection (6) may permit the employer concerned to pay the amount required in instalments specified in the order.

170CI Orders made on arbitration are binding

Subject to any right of appeal to a Full Bench of the Commission, an order made by the Commission under section 170CH is final and binding between the parties.

170CJ Commission may order payment of costs

(1) If the Commission is satisfied that a person or organisation made an application under section 170CE vexatiously or without reasonable cause, the Commission may, on an application by the employer under this section, make an order for costs against the person or organisation.

(2) If:

(a) the Commission has begun arbitrating a matter the subject of an application under section 170CE; and

(b) the Commission is satisfied that a party to the proceeding has acted unreasonably in failing to discontinue the matter before the Commission or to agree to terms of settlement that could lead to the discontinuance of the matter before the conclusion of the arbitration;

the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first-mentioned party.

(3) If:

(a) a person or organisation has made an application under section 170CE; and

(b) the person or organisation elects, under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration; and

(c) after the making of that election the person or organisation discontinues the matter before the Commission;

the Commission may, on an application made under this section by the employer, make an order for costs against the person or organisation if the Commission is satisfied that the person or organisation has acted unreasonably in failing to discontinue the application at an earlier time.

(4) An application for an order for costs under this section must be made within 14 days after the determination or discontinuance of the proceedings before the Commission arising under an application under section 170CE.

(5) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in respect of an application to the Commission under section 170CE.

(6) Without limiting, by implication, the generality of the items of expenditure for which the schedule may provide, those items may include:

(a) legal and professional costs and disbursements; and

(b) expenses arising from the representation of a party by a person or organisation other than on a legal professional basis; and

(c) expenses of witnesses.

(7) If a schedule of costs is prescribed for the purposes of subsection (5), then, in awarding costs under this section, the Commission:

(a) is not limited to the items of expenditure appearing in the schedule; but

(b) if an item does appear in the schedule—must not award costs in respect of that item at a rate or of an amount in excess of the rate or amount appearing in the schedule.

Subdivision C—Unlawful termination of employment by employer

170CK Employment not to be terminated on certain grounds

(1) In addition to the principal object of this Division set out in section 170CA, the additional object of this section is to make provisions that are intended to assist in giving effect to:

(a) 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

(b) the Family Responsibilities Convention.

(2) Except as provided by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

(a) temporary absence from work because of illness or injury within the meaning of the regulations;

(b) trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;

(c) non-membership of a trade union;

(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;

(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g) refusing to negotiate in connection with, make, sign, extend, vary or terminate an AWA;

(h) absence from work during maternity leave or other parental leave.

(3) Subsection (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position concerned.

(4) Subsection (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating a person’s employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the employer terminates the employment in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.

170CL Employer to notify CES of proposed terminations in certain cases

(1) This section applies if an employer decides to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons.

(2) As soon as practicable after so deciding and before terminating an employee’s employment because of the decision, the employer must give to the Commonwealth Employment Service a written notice of the intended terminations that sets out:

(a) the reasons for the terminations; and

(b) the number and categories of employees likely to be affected; and

(c) the time when, or the period over which, the employer Intends to carry out the terminations.

(3) The employer must not terminate an employee’s employment pursuant to the decision unless the employer has complied with subsection (2).

170CM Employer to give notice of termination

(1) Subject to subsection (8), an employer must not terminate an employee’s employment unless:

(a) the employee has been given the required period of notice (see subsections (2) and (3)); or

(b) the employee has been paid the required amount of compensation instead of notice (see subsections (4) and (5)); or

(c) the employee is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue the employment of the employee concerned during the required period of notice (see subsection (7)).

(2) The required period of notice is to be worked out as follows:

(a) first work out the period of notice using the table at the end of this subsection; and

(b) then increase the period of notice by 1 week if the employee:

(i) is over 45 years old; and

(ii) has completed at least 2 years of continuous service with the employer.

(3) For the purposes of subsection (2), the regulations may prescribe events or other matters that must be disregarded, or must in prescribed circumstances be disregarded, in ascertaining a period of continuous service.

(4) The required amount of compensation instead of notice must equal or exceed the total of all amounts that, if the employee’s employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period.

(5) That total must be worked out on the basis of:

(a) the employee’s ordinary hours of work (even if they are not standard hours); and

(b) the amounts ordinarily payable to the employee in respect of those hours, including (for example) allowances, loading and penalties; and

(c) any other amounts payable under the employee’s contract of employment.

(6) The regulations may make provision for or in relation to amounts that are taken to be payable under a contract of employment for the purposes of paragraph (5)(c) in relation to an employee whose remuneration before the termination was determined wholly or partly on the basis of commission or piece rates.

(7) Without limiting the generality of the reference to serious misconduct in paragraph (1)(c), the regulations may identify:

(a) particular conduct; or

(b) conduct in particular circumstances;

that falls within that reference.

(8) The regulations may exclude from the operation of this section terminations of employment occurring in specified circumstances that relate to the succession, assignment or transmission of the business of the employer concerned.

170CN Employer not to contravene Commission order about employment termination

An employer must not terminate an employee’s employment in contravention of an order in force under section 170FA.

170CO Contravention of this Subdivision not an offence

A contravention of section 170CK, 170CL, 170CM or 170CN is not an offence.

170CP Application to courts in relation to alleged contravention of section 170CK, 170CL, 170CM or 170CN

(1) Subject to subsection (5), an employee may apply under this section to the Court for an order under section 170CR in respect of an alleged contravention of one or more of sections 170CK, 170CL and 170CN by his or her employer.

(2) Subject to subsection (5), an employee may apply under this section to the Court or to a court of competent jurisdiction as defined in section 177A for an order under section 170CR in respect of an alleged contravention of section 170CM by his or her employer.

(3) Subject to subsection (5), a trade union that has made an application under section 170CE on behalf of an employee on the ground of an alleged contravention of one or more of sections 170CK, 170CM and 170CN may apply to a court under this section for an order under section 170CR in respect of that alleged contravention or each of those alleged contraventions.

(4) Subject to subsection (5), an inspector, a trade union, or a trade union officer or employee who has made an application under section 170CE in respect of an alleged contravention of section 170CL may apply to the Court under this section for an order under section 170CR in respect of that alleged contravention.

(5) An application under subsection (1), (2), (3) or (4) in respect of an alleged contravention of section 170CK, 170CL, I70CM or 170CN may not be made to a court unless the applicant:

(a) has received a certificate under subsection 170CF(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and

(b) has elected under section 170CFA to begin proceedings in that court for an order under section 170CR in respect of the alleged contravention.

(6) The application must be made within 14 days after the lodgment of an election under subsection 170CFA(6).

(7) A court may accept an application that is lodged out of time if the court considers that it would be unfair not to do so.

170CQ Proof of issues in relation to alleged contravention of section 170CK

In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:

(a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but

(b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not

include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies).

170CR Orders available to courts

(1) If the Court is satisfied that an employer has contravened section 170CK or 170CN in relation to the termination of employment of an employee, the Court may make one or more of the following orders:

(a) an order imposing on the employer a penalty of not more than $10,000;

(b) an order requiring the employer to reinstate the employee;

(c) subject to subsection (2), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate;

(d) any other order that the Court thinks necessary to remedy the effect of such a termination;

(e) any other consequential orders.

(2) Subsections 170CH(8), (9) and (10) apply in relation to an order mentioned in paragraph (1)(c) of this section as if a reference to the Commission in those subsections were a reference to the Court.

(3) If the Court is satisfied that an employer has contravened section 170CL in relation to a decision to terminate the employment of employees, the Court may make either or both of the following orders:

(a) an order imposing on the employer a penalty of not more than $1,000;

(b) an order requiring the employer not to terminate the employment of employees pursuant to the decision, except as permitted by the order.

(4) Subject to subsection (5), if a court to which an application is made under subsection 170CP(2) or (3) is satisfied that an employer has contravened section 170CM in relation to the termination of the employment of an employee, that court may make an order requiring the employer to pay to the employee an amount of damages equal to the amount which, if it had been paid by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section.

(5) If the Commission has made an order under subsection 170CH(4) requiring the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the

employee because of the termination, an order under subsection (4) of this section must not be made.

(6) A court to which an application is made under section 170CP must not grant an injunction in respect of a proposed contravention of section 170CK, 170CL, 170CM or 170CN.

Note: As well as the remedies provided in this Subdivision for contravention of section 170CK, 170CL, 170CM or 170CN, there are provisions in other parts of the Act that relate, in part, to termination of employment. See, in particular, sections 170MU and 298K.

170CS Costs

(1) Subject to this section, a party to a proceeding under section 170CP must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first-mentioned party:

(a) instituted the proceeding vexatiously or without reasonable cause; or

(b) caused the costs to be incurred by that other party because of an unreasonable act or omission of the first-mentioned party in connection with the conduct of the proceeding.

(2) Subsection (1) does not empower a court to award costs in circumstances specified in that subsection if the court does not have the power to do so.

(3) In this section:

costs includes all legal and professional costs and disbursements and expenses of witnesses.

170CT Small claims procedure

Section 179C applies to a proceeding under section 170CP in respect of an alleged contravention of section 170CM that is started by a person or a trade union in a magistrate’s court in the same way as section 179C applies to an action under section 179 that is started in a magistrate’s court.

6 Section 170FC

Omit “adequate”.

Note: The heading to section 170FC is altered by omitting “adequate”.

7 Section 170FD

Omit “,and section 111,”, substitute “(other than section 107) and section 111 (other than paragraph 111(1)(g))”.

8 Section 170GC

Omit “adequate”.

Note: The heading to section 170GC is altered by omitting “adequate”.

9 Section 170GD

Omit ",and section 111,”, substitute "(other than section 107) and section 111 (other than paragraph 111(1)(g))”.

10 Subdivision F of Division 3 of Part VIA

Repeal the Subdivision, substitute:

Subdivision F—Other rights relating to termination of employment

170HA Division not to limit other rights

Subject only to the operation of sections 170HB and I70HC, the provisions of this Division are not intended to limit any rights that a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment.

170HB Applications alleging harsh, unjust or unreasonable termination

(1) An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee:

(a) under another provision of this Act; or

(b) under another law of the Commonwealth; or

(c) under a law of a State or Territory;

alleging that the termination was:

(d) harsh, unjust or unreasonable (however described); or

(e) unlawful;

for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.

(2) Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:

(a) have been discontinued by the party who began the proceedings; or

(b) have failed for want of jurisdiction.

(3) For the avoidance of doubt, a proceeding under this Act or any other law of the Commonwealth or under a law of a State or Territory seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation:

(a) to give adequate notice of the termination; or

(b) to provide a severance payment as a result of the termination; or

(c) to provide any other entitlement payable as a result of the termination;

is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination.

(4) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application:

(a) is discontinued by the applicant; or

(b) fails for want of jurisdiction.

170HC Applications alleging contravention of section 170CK

(1) An application must not be made under section 170CE on the ground that the termination of an employee’s employment constitutes an alleged contravention of section 170CK because it was done for a reason set out in subsection 170CK (2) if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee:

(a) under another provision of this Act; or

(b) under another law of the Commonwealth; or

(c) under a law of a State or Territory;

alleging that the termination was unlawful because it was done for such a reason.

(2) Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:

(a) have been discontinued by the party who began the proceedings; or

(b) have failed for want of jurisdiction.

(3) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before that application would, because of the operation of subsection (1), have prevented that application unless the application:

(a) is discontinued by the applicant; or

(b) fails for want of jurisdiction.

11 Subsection 170JC(3)

Repeal the subsection, substitute:

(3) In addition to any other right that an employee covered by an order under this Part may have under Part VIII (as it applies in accordance with this section):

(a) the employee may apply to the Court to enforce the order by injunction or otherwise as the Court thinks fit; and

(b) if the order is an order under Subdivision B of Division 3— the employee may apply to a court of competent jurisdiction as defined in section 177A to enforce the order by injunction.

12 Paragraph 170JD(1)(b)

Omit “covered by the order”, substitute “to whom the order relates”.

13 At the end of section 170JF

Add:

(2) For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order.

14 Paragraph 170KA(1)(b)

Omit “, and a copy of the English text of which is set out in Schedule 13”.

15 Subsection 347(1)

After “this Act”, insert “(other than an application under section 170CP)”.

16 Schedules 9, 11 and 13

Repeal the Schedules.

Part 2—Application and transitional provisions

17 Application of amendments

(1)      Subject to this item and other provisions in this Act, the Workplace Relations Act as amended by this Schedule applies to terminations of employment occurring on or after 30 March 1994.

(2)      The Workplace Relations Act as amended by this Schedule does not apply to a termination of employment occurring before the commencement of this Schedule if an application was made in respect of that termination under section 170EA of the Workplace Relations Act as in force at any time before that commencement.

(3)      Subject to Schedule 16 and any provision in an Act, if an application was made under section 170EA of the Workplace Relations Act as in force at any time before the commencement of this Schedule, that Act as so in force continues to be in force in respect of any proceeding arising from that application.

(4)      If, in the continuing application of this Act as in force before the commencement of this Schedule, the Commission decides, after the transfer day as defined for the purposes of Part 3 of Schedule 16, to refer a matter to the Industrial Relations Court of Australia, that matter is to be treated, for the purposes of that Part, as if it had been so referred before that day and item 64 of that Part applies accordingly.

(5)      Item 14 of Schedule 2 to the Industrial Relations and Other Legislation Amendment Act 1995 continues to have effect in relation to an application made under section 170EA of the Workplace Relations Act as in force before the commencement of this Schedule. However, that item ceases to have effect in relation to a termination of employment for which no application under that section has been made before the commencement of this Schedule.

Schedule 7—Minimum wages, equal remuneration and leave to care for immediate family

Part 1—Amendments

Workplace Relations Act 1996

1 Subsection 4(1) (paragraph (d) of the definition of Anti-Discrimination Conventions)

Omit “(a copy of the English text of the Preamble, and Parts II and III, of the Covenant is set out in Schedule 8)”.

2 Subsection 4(1) (definition of Equal Remuneration Convention)

Omit “, a copy of the English text of which is set out in Schedule 6”.

3 Subsection 4(1) (definition of Minimum Wages Convention)

Repeal the definition.

4 Division 1 of Part VIA

Repeal the Division.

5 Paragraph 170BA(b)

Omit “, and a copy of the English text of which is set out in Schedule 7”.

6 Paragraph 170BA(c)

Omit “, and a copy of the English text of which is set out in Schedule 9”.

7 Section 170BH

Omit “This Division”, substitute “Subject to section 170BHA, this Division”.

8 After section 170BH

Insert:

170BHA Applications under this Division

(1) An application must not be made under this Division for an order to secure equal remuneration for work of equal value for an employee if proceedings for an alternative remedy:

(a) to secure such remuneration for the employee; or

(b) against unequal remuneration for work of equal value for the employee;

have begun:

(c) under another provision of this Act; or

(d) under another law of the Commonwealth; or

(e) under a law of a State or Territory.

(2) Subsection (1) does not prevent an application under this Division if the proceedings for the alternative remedy:

(a) have been discontinued by the party who initiated the proceedings; or

(b) have failed for want of jurisdiction.

(3) If an application under this Division has been made for an order to secure equal remuneration for work of equal value for an employee, a person is not entitled to take proceedings for an alternative remedy under a provision or law of a kind referred to in subsection (1):

(a) to secure such remuneration for the employee; or

(b) against unequal remuneration for work of equal value for the employee.

(4) Subsection (3) does not prevent the taking of proceedings for an alternative remedy if the proceedings under this Division:

(a) have been discontinued by the party who initiated the proceedings; or

(b) have failed for want of jurisdiction.

9 Division 6 of Part VIA

Repeal the Division.

10 Schedule 5

Repeal the Schedule.

11 Schedules 6 and 7

Repeal the Schedules.

Part 2—Transitional and saving provisions

12 Orders in force under Division 1 of Part VIA

Any order made under Division l of Part VIA of the Workplace Relations Act and in force immediately before the repeal of that Division continues in force, on and after that repeal, subject to the terms of Division 4 of that Part, as if the repeal had not taken effect.

13 Application of section 170BHA

(1)     Subsections 170BHA(1) and (2) of the Workplace Relations Act have effect in relation to the prevention of an application being made under Division 2 of Part VIA of that Act on or after the commencement of this Schedule, whether or not the proceedings for an alternative remedy referred to in subsection l70BHA(1) began before that commencement.

(2)     Subsections 170BHA(3) and (4) of the Workplace Relations Act have effect in relation to the prevention of the taking of proceedings for an alternative remedy referred to in subsection 170BHA(3) on or after the commencement of this Schedule, whether or not the application under Division 2 of Part VIA referred to in that subsection was made before that commencement.

Schedule 8—Certified agreements

Part 1—Amendments

Workplace Relations Act 1996

1 Subsection 4(1) (definition of Bargaining Division)

Repeal the definition.

2 Subsection 4(1) (definition of Bargaining Division’s functions and powers)

Repeal the definition.

3 Subsection 4(1) (definition of certified agreement)

Omit “Division 2”, substitute “Division 4”.

4 After section 5

Insert:

5AA Additional operation of Act—certified agreements

(1) In addition to the application that Division 2 of Part VIB and related provisions of this Act have to agreements about matters pertaining to the relationship between:

(a) an employer who is a constitutional corporation or the Commonwealth; and

(b) employees employed in a single business or part of a single business of the employer;

that Division and those provisions also apply as mentioned in subsections (2) and (3).

(2) Division 2 of Part VIB and related provisions of this Act apply in the same way as mentioned in subsection (1) in relation to an agreement about matters pertaining to the relationship between an employer who is carrying on a single business or a part of a single business in a Territory and employees employed in the single business or part.

(3) Division 2 of Part VIB and related provisions apply in the same way as mentioned in subsection (1) in relation to an agreement about matters pertaining to the relationship between:

(a) a waterside employer and waterside workers employed in a single business or part of a single business of the waterside employer; or

(b) an employer and maritime employees employed in a single business or part of a single business of the employer; or

(c) a flight crew officers’ employer and flight crew officers performing duties or being trained in a single business or part of a single business of the employer;

so far as the matters relate to trade or commerce:

(d) between Australia and a place outside Australia; or

(e) between the States; or

(f) within a Territory, between a State and Territory, or between 2 Territories.

5 At the end of section 43

Add:

(2) If the matter before the Commission is an application under Division 2 or 3 of Part VIB for certification of an agreement, the Commission:

(a) must, on application, grant leave to intervene in the matter to any organisation of employees that was requested to represent a person as mentioned in subsection 170LK(4) in relation to the agreement, provided the request was not withdrawn; and

(b) except as mentioned in paragraph (a), must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement.

6 Paragraph 45(1)(e)

Omit “Division 2”, substitute “Division 4”.

7 Paragraph 45(1)(ec)

Repeal the paragraph.

8 Paragraph 45(3)(b)

Omit "party to”, substitute “person who made".

9 Paragraph 45(3)(ba)

Repeal the paragraph.

10 Paragraph 103(1)(a)

Omit “Division 2”, substitute “Division 4”.

11 Subsection 108(8)

Omit “Division 2”, substitute “Division 4”.

12 Paragraph 111(1)(c)

Omit “Division 2”, substitute “Division 4”.

13 After subsection 135(2)

Insert:

(2A) If:

(a) the Commission is required under Part VIB to be satisfied that a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement have genuinely made the agreement or given an approval; and

(b) the Commission is not so satisfied;

then:

(c) the Commission may order that a vote be taken by secret ballot (with or without a provision for absent voting), in accordance with directions given by the Commission, of persons employed at the time of the ballot whose employment is or will be subject to the agreement to determine whether they would make the agreement or give the approval; and

(d) if a majority of the validly cast votes is in favour of making the agreement or giving the approval, the Commission is taken to be satisfied of the requirement.

(2B) If it appears to the Commission that:

(a) industrial action is being taken or the taking of industrial action is threatened, impending or probable; and

(b) the industrial action relates to a bargaining period (within the meaning of Division 8 of Part VIB); and

(c) finding out, in relation to a matter, the attitudes of the employees whose employment will be subject to the proposed agreement concerned might help to stop or to prevent the industrial action, or might help the settlement of the matters giving rise to the industrial action;

the Commission may order that a vote of the employees be taken by secret ballot (with or without a provision for absent voting), in

accordance with directions given by the Commission, for the purpose of finding out their attitudes in relation to the matter.

14 After subsection 136(8)

Insert:

(8A) If:

(a) the Commission has made an order for a secret ballot under subsection 135(2A); and

(b) before the vote is taken, the Commission forms the view that the secret ballot should not be proceeded with because it has satisfied itself that the requirement mentioned in paragraph (a) of that subsection has been met;

the Commission must revoke the order.

(8B) If:

(a) the Commission has made an order for a secret ballot under subsection 135(2B); and

(b) before the vote is taken, the Commission forms the view that the secret ballot should not be proceeded with because it has satisfied itself that:

(i) the matters giving rise to the industrial action have been, or are about to be, settled; or

(ii) the industrial action has stopped or been prevented, or is about to stop or be prevented;

the Commission must revoke the order.

15 Subsection 137(1)

Omit “or (2)”, substitute “, (2), (2A) or (2B)".

16 Paragraph 138(5)(b)

After “the organisation”, insert “(if any)”.

17 Section 139

Omit “section 135 or”, substitute “subsection 135(1), (2) or (2B) or section”.

18 Subsection 143(4)

Repeal the subsection, substitute:

(4) The Industrial Registrar must ensure that the following are published as soon as practicable:

(a) a decision or determination covered by subsection (1) or (2), except:

(i) a decision to certify an ordinary Part VIB agreement; or

(ii) a decision or determination that is, in the Commission’s opinion, an order affecting such an agreement;

(b) any written reasons for a decision or determination covered by paragraph (a) that are received by the Registrar;

(c) a multiple-business agreement a copy of which is given to a Registrar under subparagraph (2)(d)(ia).

(4A) In subsection (4):

multiple-business agreement has the same meaning as in Part VIB.

ordinary Part VIB agreement means an agreement under Division 2 or 3 of Part VIB, other than a multiple-business agreement.

19 Part VIB

Repeal the Part, substitute:

Part VIB—Certified agreements

Division 1—Preliminary

170L Object

The object of this Part is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business.

170LA Functions of Commission

(1) The Commission must, as far as practicable, perform its functions under this Part in a way that furthers the objects of this Act and, in particular, the object of this Part.

(2) Section 90 (Commission to take into account the public interest) does not apply to the performance of functions of the Commission under this Part.

(3) In performing its functions under this Part, the Commission may not act under paragraph 111(1)(g) on the grounds specified in subparagraph (i), (ii) or (iii) of that paragraph.

170LB Single business and single employer

(1) For the purposes of this Part, a single business is:

(a) a business, project or undertaking that is carried on by an employer; or

(b) the activities carried on by:

(i) the Commonwealth, a State or a Territory; or

(ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or

(iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest.

(2) For the purposes of this Part:

(a) if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer; and

(b) if 2 or more corporations that are related to each other for the purposes of the Corporations Law each carry on a single business:

(i) the corporations may be treated as one employer; and

(ii) the single businesses may be treated as one single business.

(3) For the purposes of this Part, a part of a single business includes, for example:

(a) a geographically distinct part of the single business; or

(b) a distinct operational or organisational unit within the single business.

170LC Additional operation of Part

(1) In addition to its operation apart from this section to a single business, or part of a single business, of an employer, this Part applies, subject to this section, in the same way to any of the following, or any combination or combinations of the following:

(a) one or more single businesses;

(b) one or more parts of single businesses;

carried on by one or more employers.

(2) If an application for certification of an agreement by the Commission can only be made under this Part because of subsection (1), the agreement is a multiple-business agreement.

(3) Only a Full Bench may certify a multiple-business agreement under Division 4.

(4) A Full Bench, under that Division, must not certify a multiple-business agreement unless it is satisfied that it is in the public interest to certify the agreement, having regard to:

(a) whether the matters dealt with by the agreement could be more appropriately dealt with by an agreement, other than a multiple-business agreement, under this Part; and

(b) any other matter that the Full Bench considers relevant.

(5) In spite of section 170LY (which deals with the effect of a certified agreement in relation to awards and other certified agreements), a multiple-business agreement has no effect in so far as it is inconsistent with any other agreement that is certified under Division 4 that is not a multiple-business agreement.

Note 1: Section 170LY would nevertheless apply to inconsistencies with awards or orders of the Commission or with other multiple-business agreements.

Note 2: Part VID deals with the relationship between AWAs and all certified agreements.

(6) Division 8 (other than sections 170NA and 170NB) does not apply in relation to a proposed multiple-business agreement.

170LD Nominal expiry date

For the purposes of this Part, the nominal expiry date of a certified agreement is the date specified in the agreement as its nominal expiry date, or that date as extended or further extended under section 170MC.

170LE Valid majority

For the purposes of this Part, a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement:

(a) make or genuinely make the agreement; or

(b) approve or genuinely approve:

(i) the agreement; or

(ii) the extension of the nominal expiry date of the agreement; or

(iii) the variation or termination of the agreement;

if:

(c) the employer gives all of the persons so employed a reasonable opportunity to decide whether they want to make the agreement or give the approval; and

(d) either:

(i) if subparagraph (ii) does not apply—a majority of the persons; or

(ii) if the decision is made by a vote—a majority of the persons who cast a valid vote;

decide, or genuinely decide, that they want to make the agreement or give the approval.

170LF Working day

For the purposes of this Part, a working day, in relation to a single business or a part of a single business, is a day on which employees normally perform work in that business or part.

170LG Paid rates award

A paid rates award is an award or a State award that:

(a) includes a statement to the effect that it is a paid rates award; or

(b) has been regarded by the Commission, or a State industrial authority, as the case may be, as a paid rates award when applying principles for the purposes of determining wages and conditions of employment.

Division 2—Making agreements with constitutional corporations or the Commonwealth

170LH What this Division covers

This Division sets out requirements that must be satisfied for applications to be made to the Commission to certify certain agreements between employers who are constitutional corporations or the Commonwealth and:

(a) organisations of employees; or

(b) employees.

170LI Nature of agreement

(1) For an application to be made to the Commission under this Division, there must be an agreement, in writing, about matters pertaining to the relationship between:

(a) an employer who is a constitutional corporation or the Commonwealth; and

(b) 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.

Note: Section 5AA also allows agreements to be made on a different constitutional basis about matters pertaining to the relationship between an employer and employees.

(2) The agreement must be made in accordance with section 170LJ, 170LK or 170LL.

170LJ Agreement with organisations of employees

(1) The employer may make the agreement with one or more organisations of employees where, when the agreement is made, each organisation:

(a) has at least one member employed in the single business or part whose employment will be subject to the agreement; and

(b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement.

(2) The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement.

(3) The employer must take reasonable steps to ensure that:

(a) at least 14 days before any approval is given, all the persons either have, or have ready access to, the agreement, in writing; and

(b) before any approval is given, the terms of the agreement are explained to all the persons.

(4) An agreement must not be made under this section if it is able to be made under section 170LL (which deals with greenfields agreements).

170LK Agreement with employees

(1) The employer may make the agreement with a valid majority of the persons employed at the time whose employment will be subject to the agreement.

(2) The employer must take reasonable steps to ensure that every person employed at the time whose employment will be subject to the agreement has at least 14 days’ notice, in writing, of intention

to make the agreement, and the agreement must not be made before those 14 days have passed.

(3) At or before the time when the notice is given, the employer must take reasonable steps to ensure that every such person either has, or has ready access to, the proposed agreement, in writing.

(4) The notice must also state that if:

(a) any person whose employment will be subject to the agreement is a member of an organisation of employees; and

(b) the organisation is entitled to represent the person’s industrial interests in relation to work that will be subject to the agreement;

the person may request the organisation to represent the person in meeting and conferring with the employer about the agreement.

(5) If an organisation is so requested to represent such a person, the employer must give the organisation a reasonable opportunity to meet and confer with the employer about the agreement before it is made.

(6) If at any time after the request is made:

(a) the person withdraws the request; or

(b) the conditions in paragraphs (4)(a) and (b) cease to be met;

the requirement in subsection (5) ceases to apply to the employer.

(7) Before the agreement is made, the employer must take reasonable steps to ensure that the terms of the agreement are explained to all the persons employed at the time whose employment will be subject to the agreement.

(8) If a proposed agreement is varied for any reason after the notice is given, the steps in subsections (2), (3), (5) and (7) must again be taken in relation to the proposed agreement as varied.

170LL Greenfields agreement

(1) If:

(a) the single business is a new business that the employer proposes to establish, or is establishing, when the agreement is to be made; and

(b) the agreement is to be made before the employment of any of the persons who will be necessary for the normal operation of the business or part and whose employment will be subject to the agreement;

then the employer may make the agreement with one or more organisations of employees meeting the requirements of subsection (2).

(2) When the agreement is made, each organisation must be entitled to represent the industrial interests of one or more of the persons, whose employment is likely to be subject to the agreement, in relation to work that will be subject to the agreement.

170LM Making the application for certification

(1) The application for the Commission to certify the agreement must state that it is made under this Division.

(2) The application must be made no later than 21 days after:

(a) if it is made in accordance with section 170LJ—the day on which it is approved as mentioned in subsection 170LJ(2); or

(b) if it is made in accordance with section 170LK or 170LL— the day on which it is made.

Division 3—Making agreements about industrial disputes and industrial situations

170LN What this Division covers

This Division sets out requirements that must be satisfied for an application to be made to the Commission to certify certain agreements:

(a) to settle, further settle or maintain the settlement of, or to prevent, industrial disputes; or

(b) to prevent industrial situations from giving rise to industrial disputes.

170LO Agreement about industrial dispute

If an employer who is carrying on a single business is or was a party to an industrial dispute, the employer may agree with one or more organisations of employees with whom the employer is or was in dispute on terms for:

(a) settling or further settling all or any of the matters that are in dispute; or

(b) 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

(c) preventing further industrial disputes between them.

170LP Agreement about industrial situation

If the parties to an industrial situation are, or include, an employer carrying on a single business and one or more organisations of employees, the employer and any of the organisations may agree on terms for preventing the situation from giving rise to an industrial dispute involving them.

170LQ Multiple disputes and situations

A single agreement may deal with 2 or more disputes or situations.

170LR Approval by valid majority of employees

(1) The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement.

(2) The employer must take reasonable steps to ensure that:

(a) at least 14 days before any approval is given, all the persons either have, or have ready access to, the agreement, in writing; and

(b) before any approval is given, the terms of the agreement are explained to all the persons.

170LS Making the application for certification

(1) The application to the Commission to certify the agreement must state that it is made under this Division.

(2) The application must be made no later than 21 days after the day on which it is approved as mentioned in subsection 170LR(1).

Division 4—Certifying agreements

170LT Certifying an agreement

(1) If an application is made to the Commission in accordance with Division 2 or 3 to certify an agreement, the Commission must certify the agreement if, and must not certify the agreement unless, it is satisfied that the requirements of this section are met.

(2) The agreement must pass the no-disadvantage test (see Part VIE).

(3) If:

(a) the only reason why the Commission must not certify an agreement is that the agreement does not pass the no-disadvantage test; and

(b) the Commission is satisfied that certifying the agreement is not contrary to the public interest;

the agreement is taken to pass the no-disadvantage test.

(4) An example of a case where the Commission may be satisfied that certifying the agreement is not contrary to the public interest is where making the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the single business or part.

(5) If the agreement was made in accordance with section 170LJ or Division 3, a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely approved the agreement.

(6) If the agreement was made in accordance with section 170LK, a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely made the agreement.

(7) The explanation of the terms of the agreement to persons as mentioned in paragraph 170LJ(3)(b), subsection 170LK(7) or paragraph 170LR(2)(b) must have taken place in ways that were appropriate, having regard to the persons’ particular circumstances and needs. An example of such a case would be where the persons included:

(a) women; or

(b) persons from a non-English speaking background; or

(c) young persons.

(8) The agreement must include procedures for preventing and settling disputes between:

(a) the employer; and

(b) the employees whose employment will be subject to the agreement;

about matters arising under the agreement.

(9) If the agreement was made in accordance with section 170LK, the employer must not have coerced, or attempted to coerce, any employee:

(a) not to make a request as mentioned in subsection 170LK(4); or

(b) to withdraw such a request.

(10) The agreement must specify a date as the nominal expiry date of the agreement, and that date cannot be more than 3 years after the date on which the agreement will come into operation.

170LU When Commission to refuse to certify an agreement

(1) Despite section 170LT, if the application for certification states that it is made under Division 3, the Commission must refuse to certify the agreement unless it is satisfied that the agreement will:

(a) settle or further settle all or any of the matters that are the subject of the industrial dispute; or

(b) maintain a settlement of all or any of the matters that were the subject of the industrial dispute, whether the settlement was made by an award, a certified agreement or otherwise; or

(c) prevent further industrial disputes between the persons concerned; or

(d) prevent the industrial situation from giving rise to an industrial dispute involving the persons concerned; or

(e) assist in doing any of the things mentioned in paragraphs (a) to (d).

(2) Despite section 170LT, the Commission must refuse to certify an agreement if the Commission thinks that a provision of the agreement is inconsistent with:

(a) a provision of Division 3 of Part VIA; or

(b) an order by the Commission under that Division; or

(c) an injunction granted, or any other order made, by the Court under that Division.

(3) Despite section 170LT, the Commission must refuse to certify an agreement if it is satisfied that:

(a) the employer has, in connection with negotiating the agreement, contravened section 170NB or Part XA (which deals with freedom of association); or

(b) the employer has caused a person or body to engage, in connection with negotiations for an agreement, in conduct that, had the employer engaged in the conduct, would be a contravention by the employer of section 170NB or Part XA; or

(c) a person or body has, on behalf of the employer:

(i) so engaged in such conduct; or

(ii) caused another person or body so to engage in such conduct.

(4) Subsection (3) does not apply if the Commission is satisfied that the contravention or conduct, and its effects, have been fully remedied.

(5) Despite section 170LT, the Commission must refuse to certify an agreement if it thinks that a provision of the agreement discriminates against an employee, whose employment will be subject to the agreement, 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.

(6) For the purposes of subsection (5), a provision of an agreement does not discriminate against an employee merely because:

(a) it provides for a junior rate of pay; or

(b) it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or

(c) it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:

(i) on the basis of those teachings or beliefs; and

(ii) in good faith.

(7) Paragraph (6)(a) does not apply for the purposes of any application of subsection (5) by the Commission more than 3 years after 22 June 1997, except where the Commission decides, on a case-by-case basis, that the paragraph should apply. Decisions by the Commission as to whether the paragraph should apply must be made by the Commission in accordance with principles established by a Full Bench.

(8) Despite section 170LT, the Commission must refuse to certify an agreement if:

(a) the agreement applies only to a part of a single business that is neither of the following:

(i) a geographically distinct part of the single business; or

(ii) a distinct operational or organisational unit within the single business; and

(b) the Commission considers that the agreement defines that part in a way that results in the employment of employees not

being subject to the agreement where it would be reasonable for the employment to be, having regard to:

(i) the nature of the work performed by the employees whose employment is not subject to the agreement; and

(ii) the organisational and operational relationships between that part and the rest of the single business; and

(c) the Commission considers it unfair that the employment of those employees is not subject to the agreement.

170LV Other options open to Commission instead of refusing to certify an agreement

(1) If, under section 170LT or 170LU, the Commission has grounds to refuse to certify an agreement:

(a) the Commission may accept an undertaking from one or more of the persons who made the agreement in relation to the operation of the agreement and, if satisfied that the undertaking meets the Commission’s concerns, certify the agreement; and

(b) in any case, before refusing to certify the agreement, the Commission must give the persons who made the agreement an opportunity to take any action that may be necessary to make the agreement certifiable.

(2) If an undertaking is not complied with, the Commission, after giving the persons who made the agreement an opportunity to be heard, may:

(a) order the one or more persons who gave the undertaking to comply with it; or

(b) by order, terminate the agreement.

(3) If:

(a) after doing the things required or permitted by subsection (1), the Commission is still required to refuse to certify the agreement; and

(b) it is so required only because it is not satisfied as mentioned in subsection 170LU(1);

the Commission may conciliate the industrial dispute or industrial situation concerned with a view to assisting the persons concerned to make the agreement certifiable.

170LW Procedures for preventing and settling disputes

Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:

(a) to settle disputes over the application of the agreement;

(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes.

Division 5—Effect of certified agreements

170LX When a certified agreement is in operation

(1) A certified agreement comes into operation when it is certified and, subject to this section, remains in operation at all times afterwards.

(2) The agreement ceases to be in operation if:

(a) its nominal expiry date has passed; and

(b) it is replaced by another certified agreement.

(3) The agreement:

(a) ceases to be in operation if it is terminated under section 170LV, 170ME, 170MG, 170MH or 170MHA; and

(b) does not operate if subsection 170LY(2) applies.

The agreement may also be set aside under subsection 113(2A).

Note: Sections 170LV and 170ME deal with breaches of undertakings. Sections 170MG, 170MH and 170MHA deal with voluntary termination. Subsection 113(2A) deals with discriminatory agreements.

(4) If:

(a) the application for certification of an agreement states that the application is made under Division 2; and

(b) at any time when the agreement is in operation, the employer who made the agreement, or any employer who is bound by the agreement under section 170MB (which deals with successor employers), is a constitutional corporation; and

(c) at any later time while bound by the agreement, any such employer ceases to be a constitutional corporation;

the agreement ceases to apply to the single business or part carried on by that employer.

170LY Effect of a certified agreement in relation to awards and other certified agreements

(1) While a certified agreement is in operation:

(a) subject to this section, it prevails over an award or order of the Commission, to the extent of any inconsistency with the award or order; and

(b) it has no effect to the extent of any inconsistency with another agreement certified before it, whose nominal expiry date has not passed.

(2) If:

(a) an award is made under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); and

(b) before the award is made, or after it is made but before its nominal expiry date passes, a certified agreement is certified; and

(c) the employment of at least one employee is subject to both the award and the certified agreement;

the certified agreement does not operate at any time while the award operates.

(3) An exceptional matters order prevails, to the extent of any inconsistency, over a certified agreement that was certified before the order was made.

Note: Part VID deals with the relationship between AWAs and certified agreements.

170LZ Effect of a certified agreement on Commonwealth laws or State laws, awards or agreements

(1) Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency.

(2) Provisions in a certified agreement that deal with the following matters operate subject to the provisions of a State law that deals with the matter:

(a) occupational health and safety;

(b) workers’ compensation;

(c) apprenticeship;

(d) any other matter prescribed by the regulations.

(3) If a State law, State award or State employment agreement provides a remedy for the termination of an employee’s employment, subsection (1) is not intended to affect the provisions of the State law, State award or State employment agreement that relate to termination of employment, so far as those provisions are able to operate concurrently with the certified agreement.

(4) To the extent of any inconsistency, a certified agreement displaces prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.

(5) In this section:

Commonwealth law means an Act or any regulations or other instrument made under an Act.

prescribed conditions means conditions that are identified by the regulations.

State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or a State employment agreement.

Division 6—Persons bound by certified agreements

170M Persons bound in Division 2 cases

(1) If the application for certification states that the application is made under Division 2, the certified agreement binds:

(a) the employer; and

(b) all persons whose employment is, at any time when the agreement is in operation, subject to the agreement.

(2) If, in accordance with section 170LJ or 170LL, one or more organisations of employees made the agreement with the employer, the agreement also binds the one or more organisations.

(3) If:

(a) the application for certification states that the application is made under Division 2; and

(b) in accordance with section 170LK, a valid majority of persons made the agreement with the employer; and

(c) before the agreement is certified, an organisation of employees notifies the Commission and the employer in writing that it wants to be bound by the agreement; and

(d) the organisation satisfies the Commission that it has at least one member:

(i) whose employment will be subject to the agreement; and

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

(iii) who requested the organisation to give the notification;

the Commission must, by order, determine that the agreement binds the organisation.

170MA Persons bound in Division 3 cases

If the application for certification states that the application is made under Division 3, the certified agreement binds:

(a) the employer and the one or more organisations of employees concerned; and

(b) all members of the one or more organisations of employees concerned.

170MB Successor employers bound

(1) If:

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

(b) at a later time:

(i) if the application for certification of the agreement stated that it was made under Division 2—a new employer that is a constitutional corporation or the Commonwealth; or

(ii) if the application stated that it was made under Division 3—a new employer;

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:

(c) the new employer is bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and

(d) the previous employer ceases to be bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and

(e) 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 to the whole or the part of the business.

(2) Subsection (1) does not affect the rights and obligations of the previous employer that arose before the later time.

Division 7—Extending, varying or terminating certified agreements

170MC Extending the nominal expiry date

(1) On or before the nominal expiry date of a certified agreement:

(a) if paragraph (b) does not apply—the employer; or

(b) if one or more organisations are bound by the agreement— the employer and the one or more organisations;

may, in writing, extend the nominal expiry date of the agreement. The extended date cannot be more than 3 years after the date on which the agreement came into operation.

(2) The extension has no effect unless the Commission approves it.

(3) The Commission must, by order, approve the extension if, and must not approve the extension unless, it is satisfied that a valid majority of the employees whose employment is subject to the agreement at the time genuinely approve the extension.

(4) The extension takes effect when the Commission’s order takes effect.

(5) This section does not apply to an agreement:

(a) to which section 170LL (greenfields agreements) applied; or

(b) to which subsection 170LT(3) applied, in circumstances covered by the example in subsection 170LT(4) (short-term business crises).

170MD Varying a certified agreement

(1) Either:

(a) if paragraph (b) does not apply—the employer; or

(b) if one or more organisations are bound by the agreement— the employer and the one or more organisations;

may, in writing, vary the agreement.

(2) The variation has no effect unless the Commission approves it.

(3) The Commission must, by order, approve the variation if, and must not approve the variation unless, it is satisfied that:

(a) a valid majority of the employees whose employment is subject to the agreement at the time genuinely approve the variation; and

(b) the Commission would be required to certify the agreement as varied if it were a new agreement whose certification was applied for under this Part.

(4) In applying paragraph (3)(b):

(a) any requirement about a majority of persons making or approving the agreement is taken to be satisfied; and

(b) section 170LV (which deals with undertakings in the context of certifying an agreement) is to be disregarded.

Note: Section 170ME instead deals with undertakings in relation to the variation.

(5) The variation takes effect when the Commission’s order takes effect.

(6) The Commission may, on application by any person bound by a certified agreement, by order vary a certified agreement:

(a) for the purpose of removing ambiguity or uncertainty; or

(b) for the purpose of including, omitting or varying a term (however expressed) that authorises an employer to stand-down an employee.

(7) A certified agreement is not able to be varied except in accordance with:

(a) this section (including as it applies in accordance with section 170MDA); or

(b) subsection 113(2A) (which deals with discriminatory agreements); or

(c) section 170MC (extending the nominal expiry date); or

(d) section 170ME (which deals with undertakings).

Note: Subsection (7) would not apply to an agreement in so far as the obligations under the agreement can change because of the terms of the agreement itself.

170MDA Variation where discrimination between unionists and non-unionists

If:

(a) one or more employees whose employment is not subject to the agreement request the employer to:

(i) vary the agreement so that the employment of the employees is subject to the agreement; and

(ii) seek the approval of the Commission for the variation under section 170MD; and

(b) the employment of the employees would be subject to the agreement if:

(i) they were members of an organisation of employees or of a particular organisation of employees; or

(ii) they were not members of an organisation of employees or of a particular organisation of employees; and

(c) the variation would not cause the agreement to become a multiple-business agreement;

the employer must comply with the request.

(2) If, in accordance with the request, the employer seeks the approval of the Commission to the variation under subsection 170MD(3), the Commission must disregard paragraph 170MD(3)(a) in deciding whether to approve the variation.

170ME Other options open to Commission instead of refusing to approve variation of an agreement

(1) If, under section 170MD, the Commission has grounds to refuse to approve a variation of an agreement:

(a) the Commission may accept an undertaking from one or more of the persons who varied the agreement in relation to the operation of the agreement as varied and, if satisfied that the undertaking meets the Commission’s concerns, approve the variation; and

(b) in any case, before refusing to approve the variation, the Commission must give the persons who varied the agreement an opportunity to take any action that may be necessary to allow the variation to be approved.

(2) If an undertaking is not complied with, the Commission, after giving the persons who varied the agreement an opportunity to be heard, may:

(a) order the one or more persons who gave the undertaking to comply with it; or

(b) by order, vary the agreement so as to undo the effect of the approved variation; or

(c) by order, terminate the agreement.

170MG Terminating a certified agreement where valid majority approve at any time

(1) Either:

(a) if paragraph (b) does not apply—the employer; or

(b) if one or more organisations are bound by the agreement— the employer and the one or more organisations;

may, in writing, terminate the agreement.

(2) The termination has no effect unless the Commission approves it.

(3) The Commission must, by order, approve the termination of the agreement if, and must not approve the termination unless, it is satisfied that a valid majority of the employees whose employment is subject to the agreement at the time genuinely approve its termination.

(4) The termination takes effect when the Commission’s order takes effect.

170MH Terminating a certified agreement in public interest after nominal expiry date

(1) After the nominal expiry date of a certified agreement:

(a) the employer; or

(b) a majority of the employees whose employment is subject to the agreement; or

(c) an organisation of employees that is bound by the agreement and that has at least one member whose employment is subject to the agreement;

may apply to the Commission to have the agreement terminated.

(2) On receiving the application, the Commission must take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated.

(3) If, after complying with subsection (2), the Commission considers that it is not contrary to the public interest to terminate the agreement, the Commission must, by order, terminate the agreement.

(4) The termination takes effect when the Commission’s order takes effect.

170MHA Terminating an agreement in a way provided under agreement after nominal expiry date

(1) If:

(a) a certified agreement makes provision for it to be terminated if certain conditions are met; and

(b) those conditions are met after the agreement’s nominal expiry date has passed;

any of the persons mentioned in subsection (2) may apply to the Commission to have the termination approved.

(2) The persons are:

(a) the employer; or

(b) an employee whose employment is subject to the agreement; or

(c) an organisation of employees that is bound by the agreement and that has at least one member whose employment is subject to the agreement.

(3) If the Commission is satisfied that the requirements of paragraphs (1)(a) and (b) are complied with, it must, by order, approve the termination.

(4) If the Commission does so, the agreement terminates when the Commission’s order takes effect.

Division 8—Negotiations for certified agreements etc.

170MI Initiation of bargaining period

(1) If:

(a) an employer; or

(b) an organisation of employees; or

(b) an employee acting on his or her own behalf and on behalf of other employees;

wants to negotiate an agreement under Division 2 or 3 in relation to employees who are employed in a single business or a part of a single business, the employer, organisation or employee (the initiating party) may initiate a period (the bargaining period) for negotiating the proposed agreement.

Note: This subsection has effect subject to subsections 170MW(10) and 170MZ(7).

(2) The bargaining period is initiated by the initialing party giving written notice to each other negotiating party (see subsection (3))

and to the Commission stating that the initiating party intends to try:

(a) to make an agreement with the other negotiating parties under Division 2 or 3; and

(b) to have any agreement so made certified under Division 4.

(3) In this Division, each of the following is a negotiating party to a proposed agreement:

(a) the initiating party;

(b) if the initiating party is an employer who intends to try to make an agreement under section 170LJ or 170LL or Division 3—the organisation or organisations who are proposed to be bound by the agreement;

(c) if the initiating party is an employer who intends to try to make an agreement under section 170LK—the employees at the time whose employment will be subject to the agreement;

(d) if the initiating party is an organisation of employees—the employer who is proposed to be bound by the agreement;

(e) if the initiating party is an employee acting on his or her own behalf and on behalf of other employees—the employer who is proposed to be bound by the agreement and the employees whose employment will be subject to the agreement.

170MJ Particulars to accompany notice

The notice is to be accompanied by particulars of:

(a) the single business or part of the single business to be covered by the proposed agreement; and

(b) the types of employees whose employment will be subject to the agreement and the other persons who will be bound by the agreement; and

(c) the matters that the initiating party proposes should be dealt with by the agreement; and

(d) the industrial dispute (if any) to which the proposed agreement relates; and

(e) the proposed nominal expiry date of the agreement; and

(f) any other matters prescribed by the regulations.

170MK When bargaining period begins

The bargaining period begins at the end of 7 days after:

(a) the day on which the notice was given; or

(b) if the notice was given to different persons on different days—the later or latest of those days.

170ML Protected action

(1) This section identifies certain action (protected action) to which the provisions in section 170MT (which confers certain legal immunity on protected action) are to apply.

(2) During the bargaining period:

(a) an organisation of employees that is a negotiating party; or

(b) a member of such an organisation who is employed by the employer; or

(c) an officer or employee of such an organisation acting in that capacity; or

(d) an employee who is a negotiating party;

is entitled, for the purpose of:

(e) supporting or advancing claims made in respect of the proposed agreement; or

(f) responding to a lockout by the employer of employees whose employment will be subject to the agreement;

to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action.

(3) Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of:

(a) supporting or advancing claims made by the employer in respect of the proposed agreement; or

(b) responding to industrial action by any of the employees whose employment will be subject to the agreement;

to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action.

Note 1: The existence of this entitlement does not affect any right of the employer to refuse to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed.

Note 2: The existence of this entitlement also does not affect any authorisation of the employer to stand-down the employee as a result of a variation of an award under section 126, nor does it affect the Commission's powers under that section to vary an award to give such an authorisation.

(4) The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts.

(5) If the employer locks out employees from their employment in accordance with subsection (3), the employer is entitled to refuse to pay any remuneration to the employees in respect of the period of the lockout.

(6) The employer is not entitled to lock out employees from their employment under subsection (3) unless the continuity of the employees’ employment for such purposes as are prescribed by the regulations is not affected by the lockout.

(7) This section has effect subject to the following provisions of this Division.

170MM Industrial action must not involve secondary boycott

(1) Engaging in industrial action is not protected action if:

(a) it is engaged in in concert with one or more persons or organisations that are not protected persons; or

(b) it is organised other than solely by one or more protected persons.

(2) Organising industrial action is not protected action if:

(a) it is organised in concert with one or more persons or organisations that are not protected persons; or

(b) it is intended to be engaged in other than solely by one or more protected persons.

(3) In this section:

protected person means:

(a) an organisation of employees that is a negotiating party; or

(b) a member of such an organisation who is employed by the employer; or

(c) an officer or employee of such an organisation acting in that capacity; or

(d) an employee who is a negotiating party.

170MN Industrial action etc. must not be taken until after nominal expiry date of certain agreements and awards

(1) From the time when:

(a) a certified agreement; or

(b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period);

comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.

(2) For the purposes of subsection (1), the following are covered by this subsection:

(a) any employee whose employment is subject to the agreement or award;

(b) an organisation of employees that is bound by the agreement or award;

(c) an officer or employee of such an organisation acting in that capacity.

(3) If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected action.

(4) From the time when:

(a) a certified agreement; or

(b) an award under subsection 170MX(3);

comes into operation until its nominal expiry date has passed, the employer must not, for the purpose of supporting or advancing claims in respect of the employment of employees whose employment is subject to the agreement or award, lock out such an employee from his or her employment.

(5) If the employer does so, the lockout is not protected action.

(6) Engaging in industrial action, or locking out an employee, in contravention of section 170VU is not protected action.

170MO Notice of action to be given

(1) Any action taken as mentioned in subsection 170ML(2) by:

(a) an organisation of employees; or

(b) a member of such an organisation; or

(c) an officer or employee of such an organisation acting in that capacity; or

(d) an employee who is a negotiating party;

is not protected action unless the requirements set out in subsection (2) are met.

(2) The requirements are that:

(a) if the action is in response to, and is taken after the start of, a lockout of employees by the employer in respect of the proposed agreement—the organisation, or the employee who is a negotiating party, has given the employer written notice of the intention to take the action; or

(b) in any other case—the organisation, or the employee who is a negotiating party, has given the employer at least 3 working days’ written notice of the intention to take the action.

(3) If one or more of the negotiating parties is an organisation of employees, any action taken as mentioned in subsection 170ML(3) by the employer to lock out employees from their employment:

(a) is not protected action unless the employer has given the other negotiating party or each of the other negotiating parties:

(i) if the lockout is in response to, and takes place after the start of, industrial action organised or engaged in by an organisation that is a negotiating party in respect of the proposed agreement—written notice of the intended lockout; or

(ii) in any other case—at least 3 working days’ written notice of the intended lockout; and

(b) is not protected action in so far as it relates to a particular employee unless:

(i) if subparagraph (a)(i) applies—before the lockout begins; or

(ii) in any other case—at least 3 working days before the lockout begins;

the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended lockout.

(4) If one or more of the negotiating parties is an employee whose employment will be subject to the proposed agreement, any action taken as mentioned in subsection 170ML(3) by the employer to lock out employees from their employment is not protected action in so far as it relates to a particular employee unless:

(a) if the lockout is in response to, and takes place after the start of, industrial action organised or engaged in by any of the

employees who are negotiating parties in respect of the proposed agreement—before the lockout begins; or

(b) in any other case—at least 3 working days before the lockout begins;

the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended lockout.

(5) A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.

(6) A written notice or other notification under this section may be given before the start of the bargaining period.

170MP Negotiation must precede industrial action or lockout

(1) Engaging in industrial action by a person who is a member of an organisation of employees that is a negotiating party is not protected action unless the organisation has, before the person begins to engage in the industrial action:

(a) genuinely tried to reach agreement with the employer; and

(b) if the Commission has made an order in relation to the negotiations—complied with the order in so far as it applies to the organisation.

(2) Engaging in industrial action by an employee (the first employee) who is a negotiating party is not protected action unless, before the first employee begins to engage in the industrial action:

(a) the first employee, or another employee acting on behalf of the first employee, has genuinely tried to reach agreement with the employer; and

(b) if the Commission has made an order in relation to the negotiations—the first employee has complied with the order in so far as it applies to the first employee.

(3) A lockout of employees by an employer is not protected action unless the employer has, before the employer begins the lockout:

(a) if the employees are members of an organisation or organisations that are negotiating parties—genuinely tried to reach agreement with the organisation or organisations; and

(b) if the employees are negotiating parties—genuinely tried to reach agreement with the employees; and

(c) if the Commission has made an order in relation to the negotiations—complied with the order in so far as it applies to the employer.

170MQ What happens if Commission orders a ballot

(1) If, under subsection 135(2), the Commission has ordered that a vote of members of an industrial organisation be taken by secret ballot in relation to the proposed agreement, the organising of, or engaging in, industrial action by:

(a) the organisation; or

(b) a member of the organisation; or

(c) an officer or employee of the organisation acting in that capacity;

after the making of the order is not protected action unless:

(d) such a ballot has been taken; and

(e) the industrial action has been approved by a majority of the valid votes cast in the ballot.

(2) If, under subsection 135(2B), the Commission has ordered that a vote of employees be taken by secret ballot in respect of a proposed agreement, the organising of, or engaging in, industrial action by the employees after the making of the order is not protected action unless:

(a) such a ballot has been taken; and

(b) the industrial action has been approved by a majority of the valid votes cast in the ballot.

170MR Industrial action must be duly authorised

(1) Engaging in industrial action by members of an organisation of employees that is a negotiating party is not protected action unless, before the industrial action begins:

(a) the industrial action is duly authorised by a committee of management of the organisation or by someone authorised by such a committee to authorise the industrial action; and

(b) if the rules of the organisation provide for the way in which the industrial action is to be authorised—the industrial action is duly authorised under those rules; and

(c) written notice of the giving of the authorisation is given to a Registrar.

(2) Industrial action is taken, for the purposes of this section, to be duly authorised under the rules of an organisation of employees even though a technical breach has occurred in authorising the industrial action, so long as the person or persons who committed the breach acted in good faith.

(3) Examples of a technical breach in authorising industrial action are as follows:

(a) a contravention of the rules of the organisation;

(b) an error or omission in complying with the requirements of this Act;

(c) participation, by a person not eligible to do so, in the making of a decision by a committee of management, or by members, of the organisation.

(4) Industrial action is taken, for the purposes of this section, to have been duly authorised under the rules of an organisation of employees, and to have been so authorised before the industrial action began, unless:

(a) the Court declares in a proceeding that the industrial action was not duly authorised under those rules; and

(b) the proceeding was brought in the Court within 6 months after the notification in relation to the industrial action was given to a Registrar under paragraph (1)(c).

(5) In so far as the rules of an organisation of employees provide for the way in which industrial action that section 170ML entitles the organisation to organise or engage in is to be authorised, the rules do not contravene section 196 unless the manner provided for contravenes that section.

170MS What happens if application to certify agreement is not made within 21 days

Unless an application to the Commission to certify an agreement is made within 21 days after the day when the agreement is made, nothing that was done during the bargaining period by an employee whose employment is subject to the agreement or by a person bound by the agreement is protected action.

170MT Immunity provisions

(1) An order made by the Commission under section 127 does not apply to protected action.

(2) Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:

(a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

(c) the unlawful taking, keeping or use of property.

(3) Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.

170MU Employer not to dismiss employee etc. for engaging in protected action

(1) An employer must not:

(a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or

(b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;

wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.

(2) Subsection (1) of this section does not apply to any of the following actions taken by the employer:

(a) standing-down the employee;

(b) refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;

(c) action of the employer that is itself protected action.

(3) In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action.

170MV When bargaining period ends

The bargaining period ends if any of the following events occurs:

(a) an agreement under Division 2 or 3 is made by the employer and any one or more of the other negotiating parties; or

(b) the initiating party tells the other negotiating party or each of the other negotiating parties in writing that the initiating party no longer wants to reach an agreement under Division 2 or 3 with that other party or those other parties; or

(c) the Commission terminates the bargaining period.

170MW Power of Commission to suspend or terminate bargaining period

(1) Subject to subsection (8), the Commission may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed.

(2) A circumstance for the purposes of subsection (1) is that a negotiating party that, before or during the bargaining period, has organised or taken, or is organising or taking, industrial action to support or advance claims in respect of the proposed agreement:

(a) did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action; or

(b) is not genuinely trying to reach an agreement with the other negotiating parties; or

(c) has failed to comply with any directions by the Commission that relate to the. proposed agreement or to a matter that arose during the negotiations for the proposed agreement; or

(d) has failed to comply with a recommendation of the Commission under section 111AA that relates to the proposed agreement or to a matter that arose during the negotiations for the proposed agreement.

(3) A circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening:

(a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(b) to cause significant damage to the Australian economy or an important part of it.

(4) A circumstance for the purposes of subsection (1) is that industrial action is being organised or taken by:

(a) an organisation that is a negotiating party; or

(b) a member of such an organisation who is employed by the employer; or.

(c) an officer or employee of such an organisation acting in that capacity;

against an employer to support or advance claims in respect of employees:

(d) whose employment will be subject to the agreement; and

(e) who are neither members, nor eligible to become members, of the organisation.

(5) A circumstance for the purposes of subsection (1) is that industrial action that is being organised or taken by an organisation that is a negotiating party:

(a) relates, to a significant extent, to a demarcation dispute; or

(b) contravenes an order of the Commission that relates, to a significant extent, to a demarcation dispute.

(6) If the bargaining period relates to employees employed in a part of a single business, a circumstance for the purposes of subsection (1) is that the initiating party is not complying with an award or order, a direction of the Commission, or a certified agreement, in relation to another part of the single business.

(7) A circumstance for the purposes of subsection (1) is that:

(a) immediately before the commencement of this section, the wages and conditions of the kind of employees whose employment will be subject to the agreement were determined by a paid rates award, or would have been so determined if a certified agreement, an enterprise flexibility agreement (within the meaning of this Act as then in force) or a State employment agreement had not prevailed over the award; and

(b) so far as the wages and conditions of the kind of employees whose employment will be subject to the agreement were, before the commencement of this section, customarily determined by an award or a State award, they were determined by a paid rates award; and

(c) there is no reasonable prospect of the negotiating parties reaching an agreement under Division 2 or 3 during the bargaining period.

(8) The Commission:

(a) may not make an order under subsection (1), in a circumstance set out in subsection (2), (4), (5), (6) or (7), except on application by a negotiating party; but

(b) may make an order under subsection (1), in a circumstance set out in subsection (3):

(i) on its own initiative; or

(ii) on application by a negotiating party or the Minister.

(9) Anything done by a negotiating party or any other person in respect of the proposed agreement is not protected action if it is done at a time when the bargaining period is suspended.

(10) An order under subsection (1) terminating the bargaining period may, if the Commission considers it to be in the public interest, contain a declaration that, during a specified period beginning at the time of the termination, a specified negotiating party or employee of the employer:

(a) is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed agreement; or

(b) may initiate such a bargaining period only on conditions specified in the declaration.

170MX What happens if Commission terminates a bargaining period under subsection 170MW(3) or (7)

(1) This section applies if a bargaining period is terminated on the ground set out in subsection 170MW(3) or (7).

(2) As soon as practicable, the Commission must begin to exercise the conciliation powers mentioned in section 170MY:

(a) to facilitate the making of an agreement under Division 2 or 3; or

(b) otherwise to settle any matter or issue that could be covered by such an agreement.

This subsection applies even if the Commission has already attempted conciliation during the bargaining period.

(3) If, after exercising conciliation powers as required by subsection (2), the Commission is satisfied that:

(a) the negotiating parties have not settled the matters that were at issue during the bargaining period (whether or not by making an agreement); and

(b) it is not likely that further conciliation will result in the matters being settled within a reasonable time;

the Commission must, if it considers it appropriate, exercise the arbitration powers mentioned in section 170MY to make an award that deals with the matters.

(4) Despite any other provision of this Act, those arbitration powers may only be exercised by a Full Bench.

(5) In exercising those arbitration powers, the Full Bench must have regard to the following:

(a) the matters that were at issue during the bargaining period;

(b) the merits of the case;

(c) the interests of the negotiating parties and the public interest;

(d) how productivity might be improved in the business or part of the business concerned;

(e) the extent to which the conduct of the negotiating parties during the bargaining period was reasonable;

(f) any relevant principles formulated by a Full Bench for the purposes of this subsection.

(6) Subsection (5) does not, by implication, limit the matters to which the Full Bench may have regard.

170MY Commission’s powers where section 170MX applies

(1) The Commission has the conciliation and arbitration powers in relation to the matters mentioned in subsections 170MX(2) and (3) that it would have under Part VI in relation to the matters if that Part applied to conciliation and arbitration in relation to the matters instead of in relation to industrial disputes.

(2) To avoid doubt, the Commission’s powers under subsection (1) are not limited by section 89A.

170MZ Awards under section 170MX

(1) An award under subsection 170MX(3) must specify a date as its nominal expiry date.

(2) Subject to this section, the award remains in operation at all times

after it commences.

(3) The award has effect subject to any conditions that are specified in the award.

(4) Before the award’s nominal expiry date has passed, the Full Bench must not revoke the award unless it is satisfied that:

(a) the employer and the one or more organisations, or a majority of the employees, who are bound by the award have agreed to the revocation (for example, because they propose to make an agreement under Division 2 or 3); and

(b) the revocation would not be against the public interest.

(5) If:

(a) the award's nominal expiry date has passed; and

(b) either:

(i) the employer, or an organisation, bound by the award; or

(ii) a majority of the employees to whom the award applies;

request the Commission in writing to terminate the award; and

(c) the Commission has given the following a reasonable opportunity to be heard in relation to the request:

(i) the employer bound by the award;

(ii) any organisations bound by the award;

(iii) the employees to whom the award applies; and

(d) the Commission considers that it is not contrary to the public interest to terminate the award;

the Commission must terminate the award.

(6) The award may only be varied for the purpose of:

(a) removing ambiguity or uncertainty; or

(b) including, omitting or varying a term (however expressed) that authorises an employer to stand-down an employee.

(7) Before the award’s nominal expiry date has passed, no bargaining period may be initiated under section 170MI for negotiating an agreement in relation to the employment of employees whose employment is dealt with in the award.

170N Commission not to arbitrate during bargaining period

During a bargaining period, the Commission must not exercise its arbitration powers under Part VI in relation to a matter that is at issue between the negotiating parties.

170NA Conciliation in respect of agreements

(1) The Commission has the conciliation powers in relation to a matter arising under this Part that it would have under Part VI in relation to the matter if that Part applied to conciliation in relation to the matters instead of in relation to industrial disputes.

(2) If 2 or more organisations of employees are involved in the negotiations or proposed negotiations, the Commission may order that all of the organisations be represented, for the purposes of conciliating the matter, by a single person or group of persons, where the person or persons are authorised by the organisations to represent them (whether generally or in relation to the particular negotiations).

(3) Subsection (2) does not, by implication, limit the powers mentioned in subsection (1).

170NB Employers not to discriminate between unionist and non-unionist

(1) An employer must not, in negotiating an agreement under Division 2 or 3, discriminate between employees of the employer:

(a) because some of those employees are members of an organisation of employees while others are not members of such an organisation; or

(b) because some of those employees are members of a particular organisation of employees, while others are not members of that organisation or are members of a different organisation of employees.

(2) In so far as a purpose of the agreement is to settle some or all of the matters that are the subject of an industrial dispute to which the employer is a party, subsection (1) does not require the agreement to cover:

(a) matters that are not the subject of that dispute; or

(b) employees whose terms and conditions of employment are not the subject of that dispute.

(3) In so far as a purpose of the agreement is to prevent industrial disputes of a particular kind, subsection (1) does not require the agreement to cover:

(a) matters that are not likely to be the subject of a dispute of that kind; or

(b) employees whose terms and conditions of employment are not likely to be the subject of a dispute of that kind.

Division 9—Prohibition of coercion in relation to agreements

170NC Coercion of persons to make, vary or terminate certified agreements etc.

(1) A person must not:

(a) take or threaten to take any industrial action or other action; or

(b) refrain or threaten to refrain from taking any action;

with intent to coerce another person to agree, or not to agree, to:

(c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or

(d) approving any of the things mentioned in paragraph (c).

Note: The Court has certain remedial powers in relation to a contravention of this section: see Division 10.

(2) Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).

(3) An employer must not coerce, or attempt to coerce, an employee of the employer:

(a) not to make a request as mentioned in subsection 170LK(4) in relation to an agreement that the employer proposes to make; or

(b) to withdraw such a request.

Division 10—Enforcement and remedies

170ND Penalty provisions

For the purposes of this Division, each of the following is a penalty provision:

(a) section 170MDA;

(b) section 170MN;

(c) section 170MU;

(d) section 170NB;

(e) section 170NC.

170NE Eligible court

For the purposes of this Division, each of the following is an eligible court:

(a) the Federal Court of Australia;

(b) a District, County or Local Court;

(c) a magistrate’s court.

170NF Penalties for contravening penalty provisions

(1) A contravention of a penalty provision is not an offence. However, an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision.

(2) The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases.

(3) An application for an order under subsection (1) that relates to a contravention of section 170MDA may be made by:

(a) the employees making the request mentioned in that section; or

(b) an organisation of employees of which any of the employees making that request is a member; or

(c) an inspector; or

(d) any other person prescribed by the regulations.

(4) An application for an order under subsection (1) that relates to a contravention of section 170MN may be made by:

(a) any employee whose employment is subject to the certified agreement concerned; or

(b) any other person who is bound by the agreement; or

(c) any person who is affected by the industrial action or lockout concerned; or

(d) any other person prescribed by the regulations.

(5) An application for an order under subsection (1) that relates to a contravention of section 170MU may be made by:

(a) the employee concerned; or

(b) an organisation of employees of which that employee is a member; or

(c) an inspector; or

(d) any other person prescribed by the regulations.

(6) An application for an order under subsection (1) that relates to a contravention of section 170NB may be made by:

(a) any employee who allegedly was disadvantaged because of the discrimination mentioned in subsection 170NB(1); or

(b) an organisation of employees of which that employee is a member; or

(c) an inspector; or

(d) any other person prescribed by the regulations.

(7) An application for an order under subsection (1) that relates to a contravention of section 170NC may be made by:

(a) an employee whose employment is subject to the agreement concerned or will be subject to the proposed agreement concerned; or

(b) any other person bound by the agreement concerned or who will be bound by the proposed agreement concerned; or

(c) the person who allegedly was intended to be coerced; or

(d) an organisation of employees of which that person is a member; or

(e) an inspector; or

(f) any other person prescribed by the regulations.

170NG Injunctions

An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision.

170NH Reinstatement and compensation where employer contravenes section 170MU

(1) If an employer contravenes section 170MU, an eligible court may order the employer:

(a) if the contravention was constituted by dismissing an employee—to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and

(b) in any case—to pay, to the person dismissed, injured or prejudiced, compensation for loss suffered as a result of the dismissal, injury or prejudice.

(2) The rights of and relating to reinstatement that are conferred on a person by this section do not limit any other rights of the person.

Division 11—Miscellaneous

170NI Complementary State laws

(1) A complementary State law may confer functions and powers on the Commission.

(2) In this section:

certified agreement provisions means this Part, and the other provisions of this Act so far as they relate to this Part.

complementary State law means a law of a State that applies the certified agreement provisions as a law of the State, with:

(a) the modifications required by the regulations; and

(b) any other modifications permitted by the regulations.

modifications includes additions, omissions and substitutions.

20 Section 334A

Repeal the section.

21 Schedule 1 (heading)

Omit “Sections 4 and 5".

22 Schedules 8, 15 and 16

Repeal the Schedules.

Part 2—Application and transitional

23 Application and transitional

(1)      Subject to this item, the amendments made by this Schedule apply to:

(a) an agreement made after the commencement of this Schedule; and

(b) a bargaining period, for a proposed agreement, initiated after the commencement of this Schedule.

New termination provisions apply to pre-commencement certified agreements

(2)      If:

(a) an agreement was entered into before the commencement of this Schedule and was covered by Division 2 of Part VIB of the Workplace Relations Act 1996 as then in force; and

(b) whether before or after the commencement of this Schedule:

(i) the period of operation specified in the agreement; or

(ii) if it has been extended or further extended under section 170MJ of that Act as in force at the time—that period as extended or further extended;

has ended;

then, after the commencement of this Schedule, section 170MH of that Act as amended by this Schedule, instead of section 170MN of that Act as in force immediately before the commencement of this Schedule, applies to the agreement.

Enterprise flexibility agreements that prevail over certified agreements

(3)      If:

(a) an enterprise flexibility agreement is continued in force by Schedule 9; and

(b) any part (the post-commencement EFA period) of the period of operation specified in the agreement, or that period as extended or further extended, occurs after the commencement of this Schedule; and

(c) the enterprise flexibility agreement is, during the post-commencement EFA period, to any extent inconsistent with a certified agreement (whether made before or after the commencement of this Schedule); and

(d) the certified agreement was certified after implementation of the enterprise flexibility agreement was approved;

then the enterprise flexibility agreement prevails over the certified agreement, to the extent of the inconsistency, during the post-commencement EFA period.

Certified agreements that prevail over enterprise flexibility agreements

(4)      If:

(a) an enterprise flexibility agreement is continued in force by Schedule 9; and

(b) a certified agreement (whether made before or after the commencement of this Schedule) is at any time after the commencement of this Schedule to any extent inconsistent with the enterprise flexibility agreement; and

(c) subitem (3) does not apply to the inconsistency;

the certified agreement prevails over the enterprise flexibility agreement, to the extent of the inconsistency.

170MX(3) awards and exceptional matters orders prevail over pre- and post-commencement certified agreements

(5)      Subsections 170LY(2) and (3) of the Workplace Relations Act 1996 as amended by this Schedule apply to certified agreements whether certified before or after the commencement of this Schedule.

Ongoing matters under Bargaining Division

(6)      The Commission may continue to deal with an ongoing matter (see subitem (7)), on and after the day on which this Schedule commences, in the exercise of the functions and powers of the Commission under the Workplace Relations Act 1996 as amended by this Act.

Meaning of ongoing matters

(7)      In subitem (6), an ongoing matter means a matter that the Commission had started to deal with, before the day on which this Schedule commenced, in the exercise of the functions and powers described in the Workplace Relations Act 1996 (as then in force) as the Bargaining Division’s functions and powers.

Annual report under former section 170RC

(8)      Section 170RC of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule does not require, and is taken never to have required, the Minister to cause a person to review and to report to the Minister in relation to the reporting period ending on 31 December 1996.

Schedule 9—Enterprise flexibility agreements (EFAs)

Part 1—Amendments

Workplace Relations Act 1996

1 Division 3 of Part VIB

Repeal the Division.

Part 2—Transitional

2 Continued operation of EFAs

Pre-commencement EFA continues despite amendments of Act

(1)            Despite the amendments made by Part 1 of this Schedule, a pre-commencement EFA continues to have effect, to the extent provided by the following subitems, as if those amendments had not been made.

Period of operation ending after commencement of amendments

(2)      If the period of operation of the EFA ends after the commencement of this Part:

(a) the EFA continues in force until the end of the period of operation; and)

(b) the EFA further continues in force until terminated by the Commission under subitem (4).

Period of operation ending before commencement of amendments

(3)      If the period of the EFA ended before the commencement of this Part, the EFA continues in force after the commencement of this Part until terminated by the Commission under subitem (4).

Termination by Commission

(4)      The Commission may, on application by a party to an EFA, terminate the EFA if the Commission considers that it is not contrary to the public interest to do so. The termination takes effect at the end of the day on which the Commission makes its determination, or at such later time as is specified in the determination.

Period of operation cannot be extended

(5)      The period of operation of the EFA cannot be extended after the commencement of this Part.

EFA is displaced by Australian workplace agreement

(6)      If an Australian workplace agreement comes into operation in relation to an employee who is bound by the EFA, the EFA ceases to have effect in relation to that employee.

EFA displaced by certain awards or orders

(7)      The following prevail over an EFA, to the extent of any inconsistency:

(a) an exceptional matters order;

(b) an award made under subsection 170MX(3) of the Workplace Relations Act.

Disability Discrimination Act

(8)      For the purposes of the Disability Discrimination Act 1984, an EFA is taken to be an award of the kind referred to in:

(a) the definition of Commonwealth law in section 4 of that Act; and

(b) section 47 of that Act.

Sex Discrimination Act

(9)      For the purposes of the Sex Discrimination Act 1984, an EFA is taken to be an award of the kind referred to in sections 40, 50A and 50B of that Act.

Interpretation

(10)    In this item:

EFA means an enterprise flexibility agreement.

majority of the employees means a majority of the employees who are bound by the EFA.

period of the EFA means the period of operation specified in the EFA, or that period as extended or further extended.

pre-commencement EFA means an enterprise flexibility agreement that is in force at the commencement of this Part.

Schedule 10—Australian workplace agreements (AWAs)

Workplace Relations Act 1996

1 Subsection 4(1)

Insert:

Australian workplace agreement or AWA means an Australian workplace agreement under Part VID.

2 Subsection 4(1)

Insert:

AWA means an Australian workplace agreement under Part VID.

3 Before Part VII

Insert:

Part VID—Australian workplace agreements (AWAs)

Division 1—Preliminary

170VA Interpretation

In this Part, unless the contrary intention appears:

additional approval requirements means the additional approval requirements in section 170VPA.

ancillary document means any of the following:

(a) a variation agreement;

(b) an extension agreement;

(c) a termination agreement;

(d) a termination notice.

approval notice means an approval notice issued by the Employment Advocate or Commission under Division 5.

approved means approved under Division 5 by the Employment Advocate or Commission.

AWA has a meaning affected by sections 170VB and 170VPJ.

AWA date means the date on which the employer and employee sign the AWA or, if they sign on different dates, the later of those dates.

bargaining agent means a person or group of persons duly appointed as a bargaining agent under section 170VK.

comparable employee, in relation to an AWA, means an employee of the employer who does the same kind of work as the employee who is a party to the AWA.

constitutional trade or commerce means trade or commerce:

(a) between Australia and a place outside Australia; or

(b) between the States; or

(c) within a Territory, between a State and a Territory or between 2 Territories.

eligible court means any of the following:

(a) the Federal Court of Australia;

(b) a District, County or Local Court;

(c) a magistrate’s court.

employee has a meaning affected by section 170VB.

employer has a meaning affected by section 170VB.

existing employee, in relation to an AWA, means an employee who signed the AWA after commencing the employment to which the AWA relates.

extension agreement means an agreement to extend the nominal expiry date of an AWA.

file, in relation to an AWA or ancillary document, means file with the Employment Advocate.

filing receipt means a receipt issued by the Employment Advocate.

filing requirements means the filing requirements in section 170VO.

new employee, in relation to an AWA, means an employee who signed the AWA before, or at the time of, commencing the employment to which the AWA relates.

no-disadvantage test means the no-disadvantage test set out in Part VEE.

nominal expiry date means the nominal expiry date that applies under section 170VH.

party, in relation to an AWA or ancillary document, means the employer or employee.

period of operation, in relation to an AWA, means the period of operation as determined under section 170VJ.

referral notice means a referral notice issued by the Employment Advocate under Division 5.

refusal notice means a refusal notice issued by the Employment Advocate or Commission under Division 5.

relevant or designated award means the relevant or designated award that is used when applying the no-disadvantage test set out in Part VIE.

State agreement means an employment agreement made under, or for the purposes of, a law of a State.

sure means not having any doubts.

termination agreement means an agreement to terminate an AWA.

termination notice means a notice of termination under section 170VM.

variation agreement means an agreement to vary an AWA.

verified copy, in relation to a document, means a copy that is certified as being a true copy of the document.

170VB Proposed AWAs and ancillary documents—interpretation

(1) So far as the context permits, a reference in this Part to an AWA or ancillary document includes a reference to a proposed AWA or ancillary document.

(2) In relation to a proposed AWA or ancillary document, a reference to the employer or employee is a reference to the person who will be the employer or employee when the AWA or ancillary document starts to operate.

170VC Scope of this Part

An AWA is of no effect unless at least one of the following applies at the time when the AWA is filed:

(a) the employer is a constitutional corporation;

(b) the employer is the Commonwealth;

(c) the employee’s primary workplace is in a Territory;

(d) the employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade or commerce;

(e) the employee is a maritime employee and the employee’s employment is in connection with constitutional trade or commerce;

(f) the employee is a flight crew officer and the employee’s employment is in connection with constitutional trade or commerce.

170VCA Functions of Commission

(1) The Commission must, as far as practicable, perform its functions under this Part in a way that furthers the objects of this Act.

(2) Section 90 does not apply to the performance of functions of the Commission under this Part.

(3) In performing its functions under this Part, the Commission may not act under paragraph 111(1)(g) on the grounds specified in subparagraph (i), (ii) or (iii) of that paragraph.

Division 2—General rules about AWAs and ancillary documents

170VD AWAs and ancillary documents only have effect as provided by this Part

An AWA or ancillary document has effect as provided by this Part, and not otherwise. In particular:

(a) an AWA for a new employee has no effect before a filing receipt is issued for the AWA; and

(b) an AWA for an existing employee has no effect before an approval notice is issued for the AWA.

170VE Collective agreements

(1) For the purposes of this Part, 2 or more agreements that have been negotiated collectively may be included in the same document if the same employer is a party to all the agreements. The agreements need not be in the same terms.

(2) An AWA for a new employee cannot be included in the same document as an AWA for an existing employee.

Division 3—Making, varying or terminating an AWA

170VF Employer and employee may make an AWA

(1) An employer and employee may make a written agreement, called an Australian workplace agreement that deals with matters pertaining to the relationship between an employer and employee.

(2) The AWA may be made before commencement of the employment.

170VG Content of AWA

(1) The employer must ensure that the AWA includes the provisions relating to discrimination that are prescribed by the regulations. If the AWA does not in fact include those provisions, the AWA is taken to include those provisions.

(2) The employer must ensure that the AWA does not include any provisions that prohibit or restrict disclosure of details of the AWA by either party to another person.

(3) The employer must ensure that the AWA includes a dispute resolution procedure. If the AWA does not in fact include a dispute resolution procedure, the AWA is taken to include the model procedure that is prescribed by the regulations.

(4) A dispute resolution procedure that is included in an AWA under subsection (3), or prescribed by the regulations for the purposes of subsection (3), may confer powers on the Commission to settle disputes between the parties to the AWA about the application or interpretation of the AWA. The Commission may exercise those powers.

170VH Nominal expiry date of AWA

(1) An AWA may specify a date as its nominal expiry date. The date cannot be more than 3 years after the AWA date.

(2) If no date is specified, then the nominal expiry date is the 3rd anniversary of the AWA date.

(3) An employer and employee may make a written agreement that extends the nominal expiry date. The extended date cannot be more than 3 years after the AWA date.

(4) The extension agreement has no effect unless a filing receipt is issued for the extension agreement at least 21 days before the nominal expiry date that is to be extended.

(5) The extension agreement takes effect on the day after an approval notice is issued for the extension agreement.

170VJ Period of operation of AWA

(1) An AWA for a new employee starts operating on the later of:

(a) the day after a filing receipt is issued for the AWA; or

(b) the day specified in the AWA as the starting day; or

(c) the day the employment commences;

and stops operating at the earlier of the following times:

(d) the end of the day when a refusal notice is issued in relation to the AWA;

(e) the time when a termination under section 170VM takes effect;

(f) the time when another AWA between the employer and employee starts to operate.

(2) An AWA for an existing employee starts operating on the later of:

(a) the day after an approval notice is issued for the AWA; or

(b) the day specified in the AWA as the starting day;

and stops operating at the earlier of the following times:

(c) the time when a termination under section 170VM takes effect;

(d) the time when another AWA between the employer and employee starts to operate.

170VK Bargaining agents

(1) An employer or employee may appoint a person to be his or her bargaining agent in relation to the making, approval, variation or termination of an AWA. The appointment must be made in writing.

(2) Subject to subsection (3), an employer or employee must not refuse to recognise a bargaining agent duly appointed by the other party for the purposes of subsection (1).

(3) Subsection (2) does not apply if the person refusing has not been given a copy of the bargaining agent’s instrument of appointment before the refusal.

(4) An employer or employee must not coerce, or attempt to coerce, the other party:

(a) to appoint, or not to appoint, a particular person as an authorised bargaining agent; or

(b) to terminate the appointment of an authorised bargaining agent.

(5) In this section:

person includes a group of persons.

170VL Varying the terms of an AWA

(1) An employer and employee may make a written agreement varying an AWA.

(2) The variation takes effect on the later of:

(a) the day after an approval notice is issued for the variation agreement; or

(b) the day specified in the variation agreement as the date of effect.

(3) Section 170VG applies to the AWA as varied in the same way as that section applies to the original AWA.

170VM Terminating an AWA

Termination by a termination agreement

(1) The employer and employee may at any time make a written agreement to terminate the AWA.

(2) A termination under subsectio         n (1) takes effect at the end of the day on which an approval notice is issued for the termination agreement or at such later time as is specified in the termination agreement.

Termination by the Commission

(3) After the nominal expiry date of an AWA, the Commission may, on application by either party, terminate the AWA if the Commission considers that it is not contrary to the public interest to do so.

(4) The Commission must issue a copy of its determination to the parties and to the Employment Advocate.

(5) A termination under subsection (3) takes effect at the end of the day on which the Commission issues copies of its determination, or at such later time as is specified in the determination.

Termination in accordance with the AWA

(6) After the nominal expiry date of an AWA, the employer or the employee may file a termination notice, stating that the AWA is to be terminated in a manner provided for in the AWA.

(7) A termination under subsection (6) takes effect at the end of the day on which an approval notice is issued for the termination notice, or at a later time specified in the termination notice.

Division 4—Filing AWAs and ancillary documents with Employment Advocate

170VN Filing AWAs and ancillary documents with Employment Advocate

(1) An AWA or ancillary document may be filed with the Employment Advocate.

(2) If the Employment Advocate is satisfied that the filing requirements for the document have been met, the Employment Advocate must issue a receipt to the person who filed the document.

(3) The Employment Advocate must not issue a filing receipt for an AWA unless the AWA was filed within 14 days after the AWA date.

170VO Filing requirements

AWA

(1) The filing requirements for an AWA are:

(a) the AWA must be signed and dated by each of the parties, and the signatures must be witnessed; and

(b) the AWA must be accompanied by a declaration by the employer: