Workplace Relations Amendment (Australian Workplace Agreements Procedures) Bill 2000
2000 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
WORKPLACE RELATIONS AMENDMENT
(AUSTRALIAN WORKPLACE AGREEMENTS PROCEDURES) BILL 2000
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment, Workplace Relations
and Small Business, the Honourable Peter Reith MP)
ISBN: 0642 439370
WORKPLACE RELATIONS AMENDMENT
(AUSTRALIAN WORKPLACE AGREEMENTS PROCEDURES) BILL 2000 OUTLINE
This Bill proposes the amendment of the Workplace Relations Act 1996 (the WR Act) to reform and strengthen the WR Act's provisions relating to Australian Workplace Agreements (AWAs). The amendments would:
* provide for AWAs to take effect on the date of signing or, if later, the date specified in the AWA as the commencing day, or, in the case of a new employee, the date the employment commences;
* permit employees to sign AWAs at any time after receiving a copy of the information statement prepared by the Employment Advocate and an explanation of the effect of the agreement;
* permit an employee party to an AWA that provides for remuneration of $68,000 per year or less to withdraw consent within a cooling-off period;
* remove the requirement relating to offering identical AWAs to comparable employees;
* simplify the approval process by:
- consolidating the existing assessment of filing requirements and approval requirements into a one step approval process;
- removing the requirement that the Employment Advocate refer AWAs to the Australian Industrial Relations Commission where there is concern that the AWA does not pass the no-disadvantage test - the Employment Advocate would apply the no-disadvantage test in all cases (subject to principles which may be developed by the Commission); and
- providing a more streamlined process for AWAs that provide rates of remuneration in excess of $68,000 per year;
* amend the provisions dealing with the relationship between AWAs and certified agreements and awards made under subsection 170MX(3) of the WR Act; and
* remove the limited immunity available in respect of industrial action taken in support of a claim for an AWA.
FINANCIAL IMPACT STATEMENT
The proposals contained in the Bill are budget neutral.
NOTES ON CLAUSES
Clause 1 - Short title
1. This is a formal provision specifying the short title of this Act.
Clause 2 - Commencement
2. This clause specifies when the various provisions of this Act are proposed to commence. Subclause 2(1) provides that, subject to subclauses (2) and (3), the Act commences on Proclamation.
3. Subclause 2(2) has the effect that if the Act is not proclaimed to commence within six months of the Act receiving Royal Assent, it will commence on the day following that period.
4. Subclause 2(3) provides that, if either the Workplace Relations Amendment (Secret Ballots for Protected Action) Act 2000 or item 3 of Schedule 1 to the Workplace Relations Amendment (Termination of Employment) Act 2000 commence before this Act, item 1 of Schedule 1 to this Bill (which proposes a definition of `old IR agreement') does not commence at all. (This is because the Bills for the Acts referred to also propose the same definition of `old IR agreement'.)
Clause 3 - Schedule(s)
5. This is a formal clause providing that an Act that is specified in a Schedule is amended or repealed as set out in the Schedule, and any other item in a Schedule operates according to its terms.
SCHEDULE 1 - AWAs
Part 1 - Amendments
Workplace Relations Act 1996
Item 1 - Subsection 4(1)
1.1 The current definition of `certified agreement' in subsection 4(1) is limited to agreements certified under the current provisions (which were introduced by the Workplace Relations and Other Legislation Amendment Act 1996 with effect from 31 December 1996). This item proposes to insert a definition of `old IR agreement', which is to mean an agreement certified or approved under various now-repealed provisions of the Workplace
Back to Top Relations Act 1996 (the WR Act). This concept is relevant to specifying the effect of an AWA in relation to agreements which would otherwise apply to the employee's employment.
Item 2 - Divisions 1, 2, 3, 4, 5 and 6 of Part VID
1.2 Item 2 would repeal existing Divisions 1, 2, 3, 4, 5 and 6 of Part VID of the WR Act, and replace them with new Divisions 1, 2, 3, 4 and 5. Whilst the proposed new Divisions would significantly amend the procedures for the making, approval and enforcement of AWAs, a number of existing provisions would be reinserted in their existing form.
New Division 1 - Preliminary
New Subdivision A - Outline of Part
New section 170VA - Outline of Part
1.3 Proposed section 170VA sets out the contents of Part VID as amended.
New Subdivision B - Interpretation
New section 170VAA - Definitions
1.4 New section 170VAA defines a range of terms to be used in Part VID as amended.
New section 170VAB - Proposed AWAs and ancillary documents - interpretation
1.5 New subsection 170VAB(1) would provide that a reference to an Australian Workplace Agreement (AWA) or an ancillary document includes a proposed AWA or ancillary document. (Ancillary documents are agreements to vary, extend or terminate an AWA.)
1.6 In a proposed AWA or ancillary document, a reference to the employer or employee would include a reference to the future employer or employee [new subsection 170VAB(2)].
New Subdivision C - Scope of this Part etc.
New section 170VAC - Scope of this Part
1.7 Proposed section 170VAC reflects the constitutional limitations on the making of AWAs and would require that one of the following criteria apply at the AWA date (as defined in new section 170VAA) for the AWA to have effect:
* the employer is a constitutional corporation;
* the employer is the Commonwealth;
* the employee's primary workplace is in a Territory;
* the employer is a waterside employer, the employee is a waterside worker and the employee's employment is in connection with constitutional trade and commerce;
* the employee is a maritime worker and the employee's employment is in connection with constitutional trade and commerce;
* the employee is a flight crew officer and the employee's employment is in connection with constitutional trade and commerce.
1.8 (Existing section 495 provides for the additional operation of Part VID in Victoria.)
New section 170VAD - AWAs and ancillary documents only have effect as provided by this Part
1.9 New section 170VAD would provide that AWAs and ancillary documents only have effect as provided for in this Part.
New Division 2 - Making an AWA
New section 170VB - Employer and employee may make an AWA
1.10 New subsection 170VB(1) would provide that an employer and employee may make a written agreement, called an Australian Workplace Agreement or AWA, that deals with matters pertaining to their employment relationship.
1.11 New subsection 170VB(2) would provide that the requirements in new sections 170VBA (which deals with the making of AWAs) and 170VBB (which deals with the content of AWAs) must be met.
1.12 New subsection 170VB(3) would permit an AWA to be made before an employee commences employment. (The term `new employee' is defined in proposed section 170VAA as an employee who signed an AWA before or at the time of commencing the work to which the AWA relates.)
New section 170VBA - Making an AWA
1.13 New section 170VBA sets out the proposed requirements for making an AWA:
* the AWA must be signed and dated by the employer and the employee who are parties to it [subsection 170VBA(1)];
* the employee must genuinely consent to the terms and conditions in the AWA [subsection 170VBA(2)];
* the employer must give the employee a copy of the AWA [subsection 170VBA(3)]; and
* before the employee signs the AWA, the employer must give the employee a copy of an information statement prepared by the Employment Advocate and explain the effect of the AWA to the employee [subsection 170VBA(4)].
1.14 Proposed subsection 170VBA(5) sets out the information that would be required to be provided in the information statement referred to in subsection 170VBA(4).
1.15 Proposed subsection 170VBA(6) would provide that where the employee's remuneration under the AWA is $68,000 per year or less, the employee may withdraw consent to the AWA within a cooling-off period. The cooling-off period is 5 days after the date of signing for new employees and 14 days after signing for existing employees [subsection 170VBA(7)]. Written notice of
Back to Top withdrawal would be required to be given to the employer and to the Employment Advocate [subsections 170VBA(6) and 170VC(6)]. The effect of withdrawing consent is dealt with in new section 170VCA.
New section 170VBB - Content of AWA
1.16 New subsection 170VBB(1) would provide that an AWA must include the provisions relating to discrimination that are prescribed by the regulations. The prescribed provisions relating to discrimination would automatically be included in any AWA that does not include the prescribed provisions.
1.17 New subsection 170VBB(2) would require an AWA to include a dispute resolution procedure. A default procedure (to be prescribed by the regulations) would automatically be included in any AWA that does not include a dispute resolution procedure.
1.18 New subsection 170VBB(3) would allow a dispute resolution procedure in an AWA (whether the default procedure or not) to confer powers on the Australian Industrial Relations Commission (the Commission) to settle disputes between the parties to the AWA.
1.19 New subsection 170VBB(4) would provide that the AWA must not include any provisions which would prohibit or restrict either party to the AWA from disclosing details of the AWA to another person.
1.20 New subsection 170VBB(5) would provide that the AWA must not include any objectionable provisions within the meaning of section 298Z of the WR Act. These are provisions that require or permit, or have the effect, or purport to have the effect, of requiring or permitting conduct that would contravene Part XA of the WR Act.
New section 170VBC - Nominal expiry date of AWA
1.21 New section 170VBC would provide that an AWA may specify a nominal expiry date; however, this date could not be more than 3 years after the AWA was signed [new subsection 170VBC(1)]. If no date is specified, then the nominal expiry date would be the third anniversary of the date of signing [new subsection 170VBC(2)].
New section 170VBD - Period of operation of AWA
1.22 Proposed section 170VBD sets out when an AWA would start and stop operating. An AWA would start operating on the later of:
* the AWA date (which is defined in section 170VAA as the date the AWA is signed, or if signed on different dates, the later of those dates) [paragraph 170VBD(a)];
* the date specified in the AWA as the starting day [paragraph 170VBD(b)]; or
* in the case of a new employee (as defined in section 170VAA) as the day the employment commences [paragraph 170VBD(c)].
1.23 An AWA would stop operating at the earlier of any of the following times:
* subject to section 170VCE (which specifies the consequences of failing to apply for approval or where approval is refused), where the employer fails to make an application for approval of the AWA within the period of 60 days starting on the AWA date - the start of the day after the 60 day period ends [paragraph 170VBD(d)];
* where approval of the AWA is refused - the end of the day the refusal notice is issued [paragraph 170VBD(e)];
* where the AWA is terminated under proposed sections 170VEN, 170VEO or 170VEQ - the time the termination takes effect under the relevant section [paragraph 170VBD(f)]; or
* the time when another AWA between the employer and employee starts to operate [paragraph 170VBD(g)].
1.24 The operation of an AWA would also be affected where an eligible employee withdraws his or her consent to the AWA (see proposed section 170VCA below).
New Division 3 - Approval of AWAs
New section 170VC - Applications for approval of AWAs
1.25 Proposed section 170VC would set out the process for applying for an AWA to be approved:
* a written application for approval of an AWA would be required to be made to the Employment Advocate unless the employee withdraws his or her consent during the cooling-off period [subsection 170VC(1)];
* the application would be required to be made within the 60 day period starting on the AWA date, or within a longer period if permitted by the Employment Advocate [subsection 170VC(2)];
* an application would be required to be accompanied by a copy of the AWA and any other information required by the Employment Advocate. (The Employment Advocate may publish a notice in the Gazette specifying information to be provided by applicants.) [subsection 170VC(3)];
* where the employee's annual rate of remuneration under the AWA is more than $68,000, the application could be accompanied by a declaration to that effect [paragraph 170VC(4)(a)] and a request signed by the employee asking that the Employment Advocate assess the AWA for the purposes of the no-disadvantage test [paragraph 170VC(4)(b)]. (The no-disadvantage test is set out in Part XIE of the WR Act.) In the absence of such a request from the employee, an AWA accompanied by the declaration provided for in paragraph 170VC(4)(a) would be taken to pass the no-disadvantage test [see subsection 170VCB(2)].
1.26 Proposed subsection 170VC(5) would permit two or more AWAs to be included
Back to Top in the same notice of application, provided that the same employer is a party to all the agreements. There would be no requirement that multiple AWAs filed in a single application contain the same terms.
1.27 Proposed subsections 170VC(6) and (7) would set out further requirements for an employee to withdraw consent to an AWA. In addition to satisfying the requirements in subsections 170VBA(6) and (7), an employee would be required to give the Employment Advocate written notice of the withdrawal of consent within 7 days after giving notice of withdrawal to the employer. A withdrawal of consent would not be effective unless these requirements have been met.
1.28 If consent is withdrawn, the employer would not be required to apply for approval of the AWA. However, if the employer applies for the AWA to be approved before consent is withdrawn, the notice of withdrawal would provide a basis for the Employment Advocate to cease dealing with the application.
New section 170VCA - Consequences for AWA of employee's withdrawal of consent
1.29 Proposed section 170VCA would provide that where an employee withdraws his or her consent to the AWA before the end of the cooling-off period, the AWA would be taken not to have started to operate.
New section 170VCB - Employment Advocate must approve, or refuse to approve, AWA
1.30 Section 170VCB would provide for the approval of AWAs. New subsection 170VCB(1) would require the Employment Advocate to approve an AWA if:
* the application has been made in accordance with section 170VC [paragraph 170VCB(1)(a)];
* the AWA satisfies the requirements of section 170VBA [paragraph 170VCB(1)(b)];
* the AWA complies with section 170VBB [paragraph 170VCB(1)(c)]; and
* subject to subsection 170VCB(2), the AWA passes the no-disadvantage test [paragraph 170VCB(1)(d)].
1.31 Subsection 170VCB(2) would provide that an AWA that is accompanied by a declaration that the employee's annual rate of remuneration under the AWA is more than $68,000, is taken to pass the no-disadvantage test. That is, the no-disadvantage test applies as a matter of law, but the Employment Advocate would not be required to separately assess the AWA for the purposes of the no-disadvantage test. However, an employee could request that the Employment Advocate assess the AWA for the purposes of the no-disadvantage test. Such a request would be signed by the employee and accompany the application for approval of the AWA [paragraph 170VC(4)(b)].
1.32 As subsection 170VCB(2) would only apply where the AWA is accompanied by a declaration signed by the employer and the employee, the employee would have the opportunity when signing the declaration to add a request to the effect that he or she wishes the Employment Advocate to assess the agreement for the purposes of the no-disadvantage test.
1.33 New subsection 170VCB(3) would provide that if the Employment Advocate has any concerns about whether the AWA meets the requirements of subsection 170VCB(1), the Employment Advocate would be required to give the parties to the AWA an opportunity to:
* take any action (including the giving of undertakings) [paragraph 170VCB(3)(a)]; or
* give the Employment Advocate any further information [paragraph 170VCB(3)(b)].
1.34 If these steps resolve the Employment Advocates concerns, the Employment Advocate would then be required to approve the AWA [subsection 170VCB(3)].
1.35 New subsection 170VCB(4) would provide that any undertakings accepted by the Employment Advocate are taken to be included in the AWA.
1.36 New subsection 170VCB(5) would require the Employment Advocate to approve an AWA in certain circumstances where the requirements of paragraphs 170VCB(1)(a), (b) and (c) have not been met in all respects. This requirement would apply only where the Employment Advocate is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA. New subsection 170VCB(5) would not apply to the requirements in subsections 170VBB(4) and (5). That is, an AWA could not be approved if the requirements in those subsections had not been satisfied. A legislative note to the section makes it clear that subsection 170VCB(5) does not affect the application of the no-disadvantage test.
1.37 New subsection 170VCB(6) would provide that where the Employment Advocate is not satisfied that an AWA passes the no-disadvantage test (see Part XIE), the Employment Advocate would be required to approve the AWA if satisfied that it is not contrary to the public interest to do so.
1.38 New subsection 170VCB(7) would provide that in deciding whether the approval of an AWA is not contrary to the public interest, the Employment Advocate would have to apply the principles (if any) established by the President of the Commission under section 170VCC (see below).
1.39 The effect of new subsection 170VCB(8) would be that if none of the preceding subsections require the Employment Advocate to approve an AWA, the Employment Advocate must refuse to approve it.
New section 170VCC - Principles for deciding whether approval of an AWA etc. is not contrary to the public interest
1.40 Under proposed subsection 170VCC(1), the President of the Commission could
Back to Top establish principles to provide general guidance to the Employment Advocate concerning whether the approval of an AWA (or an AWA as varied) is not contrary to the public interest.
1.41 New subsection 170VCC(2) would permit the President to establish such principles at his or her own initiative, or upon application by the Employment Advocate.
1.42 Under new subsection 170VCC(3), if the Employment Advocate applies to the President for the establishment of principles, the President would be required to take such steps as he or she considers appropriate to ascertain the Employment Advocates views about the proposed principles.
New section 170VCD - Employment Advocate must issue approval or refusal notice
1.43 New subsections 170VCD(1) and (2) would require the Employment Advocate to issue either an approval notice or a refusal notice to the employer.
1.44 New subsection 170VCD(3) would require that, where the Employment Advocate has designated an award for the purposes of the no-disadvantage test (see Part VIE of the WR Act), the approval or refusal notice must identify the designated award.
1.45 Under new subsection 170VCD(4), an approval notice would be required to include copies of any provisions included by reason of subsections 170VBB(1) (model anti-discrimination provisions), 170VBB(2) (model dispute resolution procedure) or 170VCB(4) (undertakings).
New section 170VCE - Consequences for AWA of failure to apply for approval, or refusal of approval
1.46 New section 170VCE would set out what happens when an AWA is not approved because of either failure to apply for approval of an AWA within 60 days of the AWA date (or such longer period as the Employment Advocate allows) or the issuing of a refusal notice.
1.47 Proposed subsection 170VCE(1) would provide that:
* where the AWA has started operating, the AWA stops operating after the end of the 60 day (or longer) period [paragraph 170VCE(1)(a)];
* if the AWA has not started operating, it does not start operating (an AWA may not have started operating in circumstances in which it has been signed well in advance of the commencement of employment or the date specified in the AWA as the start date) [paragraph 170VCE(1)(b)]; and
* where paragraph (a) or (b) applies, the Employment Advocate is not permitted to approve the AWA [paragraph 170VCE(1)(c)].
1.48 New subsection 170VCE(2) would provide that:
* where the AWA has started operating, the AWA stops operating at the end of the day the refusal notice is issued [paragraph 170VCE(2)(a)];
* if the AWA has not started operating, it does not start operating (an AWA may not have started operating in circumstances in which it has been signed well in advance of the commencement of employment or the date specified in the AWA as the start date) [paragraph 170VCE(2)(b)]; and
* where paragraph (a) or (b) applies, the Employment Advocate is not permitted to approve the AWA [paragraph 170VCE(2)(c)].
New section 170VCF - Employer must give copies of documents to employee
1.49 Proposed subsection 170VCF(1) would require that, as soon as practicable after the employer has received a copy of the approval or refusal notice, the employer must provide a copy of the notice to the employee, together with any material taken to be included in the AWA by reason of section 170VBB(1) (model anti-discrimination provisions), 170VBB(2) (model dispute resolution procedure) or 170VCB(4) (undertakings). (The requirement to provide the employee with a copy of the AWA is provided for in section 170VBA.) Proposed subsection 170VCF(2) would require the employer to provide the employee with any other document if required to do so by the regulations.
New Division 4 - Effect of an AWA
New section 170VD - Effect of AWAs on awards and agreements
1.50 New section 170VD would set out the relationship between AWAs and awards (including State awards), certified agreements and State agreements. During its period of operation (as provided for in section 170VBD), an AWA would:
* operate to the exclusion of any federal award (including an award made under subsection 170MX(3) of the WR Act but not exceptional matters orders) that would otherwise apply to the employee's employment [new subsection 170VD(1)];
* prevail to the extent of any inconsistency over any exceptional matters orders that would otherwise apply to the employee's employment [new subsection 170VD(2)];
* operate to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment [new subsection 170VD(3)];
* operate to the exclusion of any certified agreement or `old IR agreement' (a definition of this term is proposed by item 1) that would otherwise apply to the employee's employment, unless subsection (5) or (6) applies [new subsection 170VD(4)];
* prevail to the extent of any inconsistency over any certified agreement or old IR agreement that would otherwise apply to the employee's employment if the AWA expressly provides that it does not operate to the exclusion of the certified agreement or old IR agreement [new subsection 170VD(5)];
* be prevailed over to the extent of any inconsistency by any certified
Back to Top agreement that comes into operation after the AWA's nominal expiry date if the certified agreement makes express provision to that effect [new subsection 170VD(6)].
New section 170VDA - Effect of AWAs on other laws
1.51 New section 170VDA would set out the relationship between AWAs and State and other Commonwealth laws.
1.52 New subsection 170VDA(1) would provide that, subject to the exceptions contained in this section, an AWA prevails over conditions of employment in State laws to the extent of any inconsistency.
1.53 New subsection 170VDA(2) proposes exceptions to this general rule. Provisions in an AWA which deal with occupational health and safety, workers compensation or apprenticeship would operate subject to the provisions of any State law which deal with those matters. This is intended to ensure that these fundamental matters are dealt with consistently while still enabling the parties to address the issue in the AWA if they wish to do so. The regulations could also prescribe other matters that are to operate subject to a State law.
1.54 New subsection 170VDA(3) would ensure that State laws providing a remedy for termination of employment are still to be available, where they are able to operate concurrently with the AWA.
1.55 New subsection 170VDA(4) would provide that to the extent of any inconsistency, an AWA prevails over prescribed conditions of employment which are specified in a Commonwealth law which is prescribed by the regulations.
1.56 New subsection 170VDA(5) defines the terms Commonwealth law, prescribed conditions and State law.
New section 170VDB - Parties must not breach AWA
1.57 New subsection 170VDB would require that a party to an AWA must not breach the AWA. Contravention of this subsection could lead to the imposition of a civil penalty (see section 170VV).
New section 170VDC - Industrial action etc. by party to AWA
1.58 New subsection 170VDC(1) would prevent an employee whose employment is covered by an AWA from engaging in industrial action in relation to the employment to which the AWA relates during the period of operation of the AWA before its nominal expiry date.
1.59 New subsection 170VDC(2) would prevent an employer locking out an employee who is covered by an AWA during the period of operation of the AWA, but before the nominal expiry date of the AWA, for the purpose of supporting or advancing claims in respect of the employee's employment.
1.60 A civil penalty could be imposed in respect of a breach of either subsection 170VDC(1) or (2) (see section 170VV).
New section 170VDD - Employer's successor and AWA to which employer is a party
1.61 Proposed section 170VDD would specify the circumstances in which AWAs bind a successor, transmittee or assignee employer.
1.62 New subsection 170VDD(2) would allow the Employment Advocate to order that an AWA has limited or no binding effect on a new employer who is the successor, transmittee or assignee of the business, or part of the business, to which an AWA applies. This would bring the successor provision in relation to AWAs into line with equivalent provisions regarding award respondency (existing section 149). An order made by the Employment Advocate would be required to specify the day from which it takes effect, and it could not be retrospective.
1.63 Subsection 170VDD(3) would provide that an order under the section may be made on the application of the employer bound by the agreement. It is envisaged that the Employment Advocate might make an order on application by:
* the successor employer after the succession, assignment or transmission has occurred; or
* an employer who is contemplating a transfer of their business.
1.64 Subsection 170VDD(4) requires the Employment Advocate, before making an order, to give the parties to the AWA an opportunity to make submissions.
1.65 Subsection 170VDD(5) would make it clear that the rights and obligations of the previous employer which arose before the succession of the business or undertaking are not affected.
1.66 Subsection 170VDD(6) would provide that for the purposes of this section, a successor includes a transmittee or assignee.
New Division 5 - Extending, varying or terminating an AWA
New Subdivision A - Extension agreements
New section 170VE - Agreement to extend AWA's nominal expiry date
1.67 Proposed section 170VE would allow parties to an AWA to make a written agreement to extend the AWA's nominal expiry date. Such an agreement could only be made before the AWA's nominal expiry date and the extended date could not be more than 3 years after the AWA date [new subsections 170VE(1) and (2)].
1.68 Proposed subsection 170VE(3) would provide that an extension agreement will be made when it is signed and dated by the parties to the agreement. The employee would have to genuinely consent to making the extension agreement [new subsection 170VE(4)].
Back to Top 1.69 The agreement would come into effect on the day when both parties have signed the agreement [subsection (170VE(5)].
New section 170VEA - Application for approval of extension agreement
1.70 Proposed section 170VEA would set out the application process for approval of extension agreements.
1.71 Under proposed subsection 170VEA(1), an employer would be required to apply for approval of the extension agreement within 60 days of the day when the agreement takes effect or such longer time permitted by the Employment Advocate.
1.72 Under proposed subsection 170VEA(2), the application would be required to be accompanied by a copy of the agreement, together with any information required by the Employment Advocate.
1.73 Two or more agreements could be included in the same notice of application for approval. The agreements need not be in the same terms [new subsection 170VEA(3)].
New section 170VEB - Employment Advocate must approve, or refuse to approve, extension agreement
1.74 New section 170VEB would require the Employment Advocate to approve an extension agreement if the application has been made in accordance with section 170VEA and the agreement satisfies the requirements of section 170VE [new subsection 170VEB(1)].
1.75 If the Employment Advocate is not satisfied that the requirements set out in paragraphs 170VEB(1)(a) and (b) have been met in all respects, the Employment Advocate would be required to approve the extension agreement if he or she is satisfied that the failure to meet those requirements has not disadvantaged, and will not, disadvantage either party to the AWA [new subsection 170VEB(2)].
1.76 New subsections 170VEB(3), (4), (5) and (6) would set out the proposed requirements in relation to the issuing of approval and refusal notices by the Employment Advocate and the provision of a copy of the notice, the approved agreement and any other prescribed information to the employee.
New section 170VEC - Consequences for extension agreement of failure to apply for approval or refusal of approval
1.77 Proposed subsection 170VEC(1) would provide that if an employer fails to apply for approval of an extension agreement within 60 days of the starting day of the agreement (or such longer period that the Employment Advocate allows), the agreement would cease operating after the end of that period and the Employment Advocate cannot approve the extension agreement.
1.78 Under proposed subsection 170VEC(2), the issuing of a refusal notice in relation to an extension agreement would cause the agreement to cease to operate from the end of the day on which the notice was issued.
New Subdivision B - Variation agreements
New section 170VED - Agreement to vary an AWA
1.79 New subsection 170VED(1) would provide that parties to an AWA may enter into a written agreement to vary the terms of the AWA. (A variation agreement may vary the AWA's nominal expiry date. That is, where the parties agree to vary the nominal expiry date as well as other terms of the agreement, it would not be necessary to make separate extension and variation agreements.) A variation agreement would be made when it is signed and dated by the parties to the agreement.
1.80 New subsections 170VED(2) and (3) would provide for a cooling-off period during which an employee whose AWA, as varied, would provide for remuneration of $68,000 per year or less may withdraw his or her consent to the variation agreement. This cooling-off period would operate in the same manner as the cooling-off period applicable to AWAs.
1.81 New subsection 170VED(4) would provide that subject to sections 170VEF (which deals with withdrawal of consent) and 170VEJ (which deals with the consequences of failure to apply for approval and refusal of approval) a variation agreement takes effect on the day on which the parties sign the agreement (or the later day if signed on different days), or, if later, on the day specified in the agreement.
1.82 Proposed subsections 170VBA and 170VBB would apply to the AWA as varied. That is, the employee would be required to genuinely consent to the terms and conditions in the variation agreement, the employer would be required to give the employee a copy of the agreement and before the employee signs the agreement, the employer would be required to give the employee a copy of an information statement prepared by the Employment Advocate and explain the effect of the agreement to the employee. The AWA as varied would have to include the prescribed anti-discrimination provisions and a dispute resolution procedure. The AWA as varied could not include any provisions which would prohibit or restrict either party to the AWA from disclosing details of the AWA to another person and could not include any objectionable provisions within the meaning of section 298Z of the WR Act.
New section 170VEE - Applications for approval of variation agreements
1.83 Proposed section 170VEE would set out the requirements for applications for approval of variation agreements. These requirements would operate in the same way as the proposed requirements for applications for approval of an AWA.
Back to Top New section 170VEF - Consequences for variation agreement of employee's withdrawal of consent 1.84 New section 170VEF would set out the consequences of the withdrawal of consent. If an eligible employee withdraws his or her consent to the variation agreement before the end of the cooling-off period, the agreement would be taken not to have started to operate.
New section 170VEG - Employment Advocate must approve, or refuse to approve, variation agreement
1.85 New section 170VEG proposes requirements for approval of a variation agreement. These requirements would operate in the same way as the proposed requirements for approval of an AWA.
New section 170VEH - Employment Advocate must issue approval or refusal notice
1.86 New section 170VEH proposes requirements applicable to the issuing of approval and refusal notices in respect of variation agreements. New subsection 170VEH(1) would require the Employment Advocate to issue an approval notice in respect of an approved variation agreement and provide a copy of the notice and the agreement to the employer. New subsection 170VEH(2) would require the Employment Advocate to issue to the employer a refusal notice in respect of a variation agreement that has been refused.
New section 170VEI - Employer must give copies of documents to employee
1.87 New section 170VEI would specify the information that the employer must provide to the employee after receiving an approval or refusal notice from the Employment Advocate. Proposed subsection 170VEI(1) would require that as soon as practicable after the employer has received a copy of the approval or refusal notice, the employer must provide a copy of the notice to the employee, together with a copy of the variation agreement and any material taken to be included in the AWA as varied by reason of subsections 170VBB(1) (model anti-discrimination provisions), 170VBB(2) (model dispute resolution procedure) or 170VEG(4) (undertakings).
1.88 New subsection 170VEI(2) would provide for regulations to prescribe additional requirements as to material to be provided to the employee.
New section 170VEJ - Consequences for variation agreement of failure to apply for approval or refusal of approval
1.89 New section 170VEJ would set out what happens when a variation agreement is not approved because of either failure to apply for approval within 60 days of the AWA date (or such longer period as the Employment Advocate allows) or the issuing of a refusal notice.
1.90 Proposed subsection 170VEJ(1) would provide that:
* where the variation agreement has already taken effect, it ceases effect after the end of the 60 day (or longer) period [paragraph 170VEJ(1)(a)];
* if the variation agreement has not already taken effect, it does not take effect [paragraph 170VEJ(1)(b)]; and
* where paragraph (a) or (b) applies, the Employment Advocate is not permitted to approve the AWA [paragraph 170VEJ(1)(c)].
1.91 New subsection 170VEJ(2) would provide that:
* where the variation agreement has already taken effect, it ceases to have effect at the end of the day the refusal notice is issued [paragraph 170VEJ(2)(a)]; and
* if the variation agreement has not already taken effect, it does not take effect [paragraph 170VEJ(2)(b)].
New Subdivision C - Terminating an AWA
New section 170VEK - Terminating an AWA
1.92 New section 170VEK would set out the three ways in which an AWA may be terminated:
* by a termination agreement as provided for in sections 170VEL and 170VEN;
* by the Employment Advocate on application of an AWA party as provided for in section 170VEO; and
* in accordance with a provision in the AWA as provided for in sections 170VEP and 170VEQ.
New section 170VEL - Termination agreement
1.93 New subsection 170VEL(1) would allow the parties to an AWA at any time to make a written agreement to terminate the AWA. Proposed subsection 170VEL(2) would provide that the termination agreement will be made when it is signed and dated by the parties to the agreement. The employee would be required to genuinely consent to making the termination agreement [new subsection 170VEL(3)].
1.94 A termination agreement would be required to be approved by the Employment Advocate, and if approved, it would come into effect on the day on which the approval notice is issued, or a later date if specified in the termination agreement [subsection 170VEL(4)].
New section 170VEM - Application for approval of termination agreement
1.95 New section 170VEM would set out the requirements for an application for approval of a termination agreement.
1.96 Under proposed subsection 170VEM(1), an employer would be required to apply in writing to the Employment Advocate for approval of the termination agreement. The application would have to be made within 60 days of the agreement being made or such longer period as allowed by the Employment
Back to Top Advocate [new subsection 170VEM(2)].
1.97 Under proposed subsection 170VEM(3), the application would be required to be accompanied by a copy of the agreement, together with any information required by the Employment Advocate.
1.98 Two or more agreements could be included in the same notice of application for approval. The agreements need not be in the same terms [new subsection 170VEM(4)].
New section 170VEN - Employment Advocate must approve, or refuse to approve, termination agreement
1.99 New section 170VEN would require the Employment Advocate to approve a termination agreement if the application has been made in accordance with section 170VEM and the agreement satisfies the requirements of section 170VEL [new subsection 170VEN(1)].
1.100 If the Employment Advocate is not satisfied that the requirements set out in paragraphs 170VEN(1)(a) and (b) have been met in all respects, the Employment Advocate would be required to approve the termination agreement if he or she is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA [new subsection 170VEN(2)].
1.101 New subsections 170VEN(3), (4), (5) and (6) would set out the proposed requirements in relation to the issuing of approval and refusal notices by the Employment Advocate and the provision of a copy of the notice, the approved agreement and any other prescribed information to the employee.
New section 170VEO - Termination by Employment Advocate
1.102 New section 170VEO would provide for an AWA party to apply to have the AWA terminated. Applications would be made in writing to the Employment Advocate after the AWA's nominal expiry date [new subsection 170VEO(1)].
1.103 Before making a determination in respect of an application to terminate an AWA, the Employment Advocate would be required to take such steps as he or she considers appropriate to obtain the views of each of the parties about whether the agreement should be terminated [new subsection 170VEO(1)].
1.104 The Employment Advocate would be required to issue a determination in respect of an application under subsection 170VEO(1). If the Employment Advocate determines that the AWA should be terminated, the termination would take place at the end of the day the determination is issued and or a later time if specified in the determination [new subsections 170VEO(3) and (4)].
New section 170VEP - Termination in accordance with the AWA
1.105 New section 170VEP would provide for the termination of an AWA in the manner provided for in the AWA. Such terminations would need to be approved by the Employment Advocate to ensure that they comply with the terms of the relevant AWA. Applications would be required to be made in writing to the Employment Advocate after the AWA's nominal expiry date [new subsection 170VEP(1)]. The applicant would be required to notify the other party to the AWA of the application as soon as practicable after it is made [new subsection 170VEP(2)].
1.106 New subsection 170VEP(3) would set out the requirements for an application under subsection 170VEP(1). The application would be required to be accompanied by details of the manner of termination provided for in the AWA and any other information the Employment Advocate requires (as specified by a Gazette notice).
1.107 The termination of two or more agreements could be covered in the same notice of application if the applicant is the employer and the employer is a party to all the AWAs to which the notice of application applies. The terminations need not be in the same terms [new subsection 170VEP(4)].
1.108 New subsection 170VEP(5) would provide that a termination in accordance with an AWA comes into effect on the day on which the approval notice is issued, or a later date if specified in the application.
New section 170VEQ - Employment Advocate must approve, or refuse to approve, terminations under AWAs
1.109 New section 170VEQ would require the Employment Advocate to approve an application if it has been made in accordance with section 170VEP, the applicant has notified the other party of the application and the termination is in accordance with the AWA [new subsection 170VEQ(1)].
1.110 If the Employment Advocate is not satisfied that the requirements set out in paragraphs 170VEQ(1)(a) and (b) have been met in all respects, the Employment Advocate would be required to approve the termination if he or she is satisfied that the failure to meet those requirements has not disadvantaged, and will not, disadvantage either party to the AWA [new subsection 170VEQ(2)].
1.111 New subsections 170VEQ(3), (4), (5) and (6) would set out the proposed requirements in relation to the issuing of approval and refusal notices by the Employment Advocate and the provision of a copy of the notice and any other prescribed information by the applicant to the other party.
Item 3 - At the end of subsection 170VV(1)
1.112 Section 170VV sets out the penalties for contravening this Part. This item proposes to add a new provision to make it clear that the penalties are civil penalties. A legislative note would replace the existing heading to the section, `Penalties for contravening this Part', with a new heading, `Civil
Back to Top penalties'.
Item 4 - Subsection 170VV(4) (definition of penalty provision)
1.113 This item would repeal existing subsection 170VV(4), which lists the sections of Part VID which are penalty provisions, and replace it with a revised list reflecting the repeal and insertions of sections to which penalties apply.
Item 5 - Subsection 170VV(3)
1.114 Subsection 170VV(1) provides that an eligible court may impose a penalty on a person who contravenes a penalty provision. Existing subsection 170VV(3) provides that an application for an order under subsection 170VV(1) that relates to an AWA or ancillary document may be made by a party to the AWA or ancillary document. New subsection 170VV(3) would permit an application for an order under subsection 170VV(1) to be made by the Employment Advocate or an authorised officer (as defined in section 83BG) or by a party to the AWA or ancillary document.
Item 6 - After section 170VV
New section 170VVA - Eligible court may order employer to pay underpayment to employee
1.115 This item would insert new section 170VVA, which would permit a court, in a proceeding under section 170VV, to order an employer to make a payment to an employee in respect of any underpayment of entitlements under an AWA. The power to make such an order is additional to the power to impose a penalty under subsection 170VV(1).
1.116 New subsection 170VVA(2) would limit the scope of orders under subsection 170VVA(1) to exclude underpayments relating to any period more than 6 years before the commencement of the proceedings. This limit is consistent with the time limit on recovery of underpayments imposed by subsection 179(7) in respect of breaches of awards and certified agreements.
Item 7 - At the end of section 170VW
1.117 This item would insert new subsection 170VW(3), which would ensure that, to the extent that the relevant loss had been recovered through an order made under subsection 170VV(3), an employee could not recover damages for a breach of an AWA.
Item 8 - Section 170VX
1.118 This item would repeal existing section 170VX (which deals with compensation for shortfalls for new employees whose AWAs are subsequently refused approval) and insert new sections 170VX, 170VXA, 170VXB and 170VXC. The new sections would also provide for the recovery of compensation for shortfalls, but they substantially widen the circumstances in which compensation may be recovered. The new sections providing for the recovery of compensation take account of the new sections providing for the commencement of AWAs and variation agreements, the effect of which would be that most AWAs and variation agreements (including those for existing employees) would start to operate before they are assessed by the Employment Advocate.
1.119 The new provisions would also widen access to recovery of compensation where an AWA has been approved on the basis of undertakings or other action, and the undertakings have been breached or other action has not been taken as required.
1.120 In each case, the employee (or the Employment Advocate or an authorised officer on the employee's behalf) could make a claim in an eligible court for this amount (an eligible court is defined in new section 170VA).
New section 170VX - Compensation for shortfall in entitlements - AWA not operating
1.121 New subsection 170VX(1) would allow an employee (or the Employment Advocate or an authorised officer on the employee's behalf) to claim compensation in the event that he or she was disadvantaged by making an AWA that subsequently stopped operating for one of the reasons set out in subsection 170VX(2). (The reasons specified in subsection 170VX(2) are that the AWA was subsequently refused approval or that the employer failed to apply for the AWA's approval as required by new subsection 170VC(2).)
1.122 New subsection 170VX(1) would provide a formula for calculating the amount of compensation payable.
New section 170VXA - Compensation for shortfall in entitlements - AWA approved after employer's action
1.123 New subsection 170VXA(1) would allow an employee (or the Employment Advocate or an authorised officer on the employee's behalf) to claim compensation where his or her entitlements under an AWA are increased as a result of a requirement that the employee's employer give undertakings or take other action in order for an AWA to be approved.
1.124 New subsection 170VXA(2) would provide a formula for calculating the amount of compensation payable.
New section 170VXB - Compensation for shortfall in entitlements - variation agreement ceasing to have effect
1.125 New subsection 170VXB(1) would allow an employee (or the Employment Advocate or an authorised officer on the employee's behalf) to claim compensation where a variation agreement has stopped operating for one of the reasons set out in subsection 170VXB(2). (The reasons specified in subsection 170VXB(2) are that the variation agreement was subsequently refused approval or that the employer failed to apply for the approval of the agreement as required
Back to Top by new section 170VEE(2).)
1.126 New subsection 170VXB(1) would provide a formula for calculating the amount of compensation payable.
New section 170VXC - Compensation for shortfall in entitlements - variation agreement approved after employer's action
1.127 New subsection 170VXC(1) would allow an employee (or the Employment Advocate or an authorised officer on the employee's behalf) to claim compensation where his or her entitlements under an AWA, as varied by a variation agreement, were increased as a result of a requirement that the employee's employer give undertakings or take other action in order for an AWA to be approved.
1.128 New subsection 170VXC(2) would provide a formula for calculating the amount of compensation payable.
Item 9 - Division 8 of Part VID
1.129 This item would repeal Division 8, which confers limited immunity for certain industrial action.
Item 10 - Before section 170WF
1.130 This item would insert a new section 170WAA which sets out the requirements relating to bargaining agents, as follows.
New section 170WAA - Bargaining agents
1.131 New subsection 170WAA(1) would provide that either of the parties may appoint a bargaining agent to negotiate an AWA. This appointment would be required to be in writing. Subsection 170WAA(5) would provide that a bargaining agent may be a group of persons.
1.132 New subsection 170WAA(2) would provide that a party must not refuse to recognise the appointment of a duly appointed bargaining agent by the other party for the purposes of new subsection 170WAA(1). Contravention of this section could lead to the imposition of a monetary penalty. If a person did not wish to negotiate the making of an AWA, that would not constitute a refusal to recognise a bargaining agent.
1.133 New subsection 170WAA(3) would provide that a party is not in breach of new subsection 170WAA(2) if they were not given a copy of the bargaining agents instrument of appointment before the refusal.
1.134 New subsection 170WAA(4) would provide that a party must not coerce or attempt to coerce the other party:
* to appoint or not to appoint a particular person as their authorised bargaining agent; or
* to terminate the appointment of their authorised bargaining agent.
1.135 The contravention of this provision could lead to the imposition of a civil penalty.
Item 11 - At the end of subsection 170WF(1)
Item 12 - At the end of subsection 170WG(1)
Item 13 - At the end of subsection 170WG(2)
1.136 These items would amend subsections 170WF(1), 170WG(1) and 170WG(2) by inserting notes indicating that the penalties applicable to a breach of these provisions are civil penalties.
Item 14 - Section 170WH
New section 170WH - Information must not be false or misleading
1.137 This item would repeal existing section 170WH and replace it with a new provision to the effect that a person must not give the Employment Advocate information for the purposes of this Part that the person knows or ought reasonably to know is false or misleading.
1.138 The contravention of this provision could lead to the imposition of a civil penalty.
1.139 In determining whether a person ought reasonably to know that information is false or misleading, it would be appropriate to have regard to the persons abilities, experience, qualifications and other attributes and to all the other circumstances surrounding the alleged contravention.
Item 15 - Subsection 170WHA(1)
1.140 This item proposes a minor technical amendment consequent upon the replacement of filing requirements with approval requirements.
Item 16 - Sections 170WHB, 170WHC and 170WHD
1.141 This item would repeal sections 170WHB, 170WHC and 170WHD which concern the Commission's functions with respect to AWAs. These provisions would not be required as a consequence of the repeal of Subdivision C of Division 5 of Part VID and subsections 170VM(3), (4) and (5), which provide for the approval of AWAs and variation agreements and the termination of AWAs by the Commission. These functions would be transferred to the Employment Advocate by item 2.
Item 17 - Subsection 170WI(1)
1.142 This item proposes a minor technical amendment consequent upon the replacement of filing requirements with approval requirements.
Item 18 - Subsection 170WI(1)
1.143 This item would omit a reference to the Commission in subsection 170WI(1) consequent upon the transfer to the Employment Advocate of the Commission's functions with respect to the approval of AWAs and variation agreements and the termination of AWAs.
Item 19 - Paragraph 170WI(2)(a)
1.144 This item proposes a minor technical amendment consequent upon the replacement of filing requirements with approval requirements.
Back to Top Item 20 - Paragraph 170WI(2)(b) 1.145 This item would omit a reference to the Commission in paragraph 170WI(2)(b) consequent upon the transfer to the Employment Advocate of the Commission's functions with respect to the approval of AWAs and variation agreements and the termination of AWAs.
Item 21 - Paragraph 170WI(2)(c)
1.146 This item would repeal existing paragraph 170WI(2)(c) and replace it with a new paragraph to reflect the replacement of filing requirements with approval requirements.
Item 22 - At the end of section 170WK
1.147 This item would provide for the delegation in writing of the powers of an Agency Head (within the meaning of the Public Service Act 1999) under the current section 170WK. (These are powers to act on behalf of the Commonwealth in relation to AWAs with persons in the Agency who are engaged under that Act.)
Item 23 - Paragraph 170WL(d)
1.148 This is a consequential amendment to remove existing paragraph 170WL(d), which provides that the regulations may make provision in relation to the witnessing of signatures on AWAs or ancillary documents. Under other amendments proposed in this Schedule, an AWA, extension agreement, variation agreement or termination agreement will be required to be signed only by the employer and employee parties to the AWA. As a consequence, the regulation-making power in paragraph 170WL(d) will no longer be necessary.
Item 24 - Sections 524 and 525
New section 524 - Restriction on protected action: employees
New section 525 - Restriction on protected action: employers
1.149 Existing sections 524 and 525 set out limitations on access to protected industrial action under Part VIB of the WR Act, and AWA industrial action under Part VID, where certain Victorian employment agreements are in place. This item would repeal sections 524 and 525 of the Workplace Relations Act and replace them with new provisions which omit the references to Part VID and AWA industrial action. These amendments are consequential upon the proposed repeal of Division 8 of Part VID which presently provides for AWA industrial action.
Part 2 - Application and saving provisions Item 25 - Application of items 2, 4, 8, 10 and 14 to 21
1.150 This item would provide that subject to item 26 of this Schedule, items 2, 4, 8, 10 and 14 to 21 apply only to AWAs, extension agreements, variation agreements and termination agreements made on or after the commencement of those items.
Item 26 - Application of new section 170VD
1.151 This item would provide that new section 170VD, which concerns the relationship between AWAs and awards and agreements, applies to AWAs made on or after the commencement of item 2.
Item 27 - Application of items 5, 6 and 7
1.152 The effect of this item is that items 5, 6 and 7 would apply to AWAs, extension agreements, variation agreements and termination agreements irrespective of the date they are or were made.
Item 28 - Application of items 9 and 24
1.153 This item would provide that the amendments made by item 9 (which proposes the repeal of Division 8, thereby removing the limited immunity for AWA industrial action) and the consequential amendments made by item 24 apply only in relation to industrial action taken after the commencement of those items.
Item 29 - Savings - AWAs
Item 30 - Savings - extension agreements
Item 31 - Savings - variation agreements
Item 32 - Savings - termination agreements
1.154 The effect of these items is to provide for the continuing effect of AWAs, extension agreements, variation agreements and termination agreements approved in accordance with the requirements that applied before the commencement of the new approval provisions.
Item 33 - Savings - regulations made for the purposes of former sections 170VG and 170VR
1.155 This item would save regulations made for the purposes of former subsections 170VG(1) and (3) and 170VR(4). These regulations would continue to have effect as if they had been made under the corresponding new provisions (as indicated in the table set out in this item) that would be inserted by item 2, that is, subject to any new regulations made for the purposes of the new provisions.
Item 34 - Savings - Gazette notices
1.156 This item would save Gazette notices published for the purposes of former paragraphs 170VO(1)(c), (3)(c), (4)(b), (5)(b) and (6)(b). These notices would continue to have effect as if they had been made under the corresponding new provisions (as indicated in the table set out in this item) that would be inserted by item 2, that is, until subject to any new Gazette notices published for the purposes of the new provisions.
Item 35 - Savings - prescribed conditions
1.157 This item would save regulations made for the purposes of former subsection 170VR(5). These regulations would continue to have effect as if they had been made for the purposes of the definition of `prescribed conditions' in new subsection 170VDA(5), that is, subject to any new regulations made for the purpose of the new definition.
Item 36 - Savings - appointment of bargaining agent
1.158 This item would save appointments of bargaining agents made under former subsection 170VK(1). Such appointments would continue in force as if they had been made under new subsection 170WAA.
Item 37 - Definitions
1.159 This item defines the terms `amended Act', `former provision' and `new provision' as they apply in Part 2 of the Schedule.