Workplace Relations Amendment (Protecting Small Business Employment) Bill 2004
First Reading
Workplace Relations Amendment (Protecting Small Business Employment) Bill 2004
First Reading
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2002-2003-2004 The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Workplace Relations Amendment (Protecting Small Business Employment) Bill 2004
No. , 2004
(Employment and Workplace Relations)
A Bill for an Act to amend the Workplace Relations Act 1996, and for related purposes
Contents
1 Short title 1
2 Commencement 1
3 Schedule(s) 3
Schedule 1--Amendment of pre-award simplification law 4
Workplace Relations Act 1996 4
Schedule 2--Amendment of post-award simplification law, where that law has already commenced 8
Workplace Relations Act 1996 8
Schedule 3--Amendment of post-award simplification law, where that law has yet to commence 14
Workplace Relations Act 1996 14
Schedule 4--Protection of existing entitlements 16
A Bill for an Act to amend the Workplace Relations Act 1996, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the
Workplace Relations Amendment (Protecting Small Business Employment) Act 2004.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. |
|
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2. Schedule 1 | The day on which this Act receives the Royal Assent. However, the provision(s) do not commence at all if this Act does not receive the Royal Assent before the commencement of Schedule 1 to the Workplace Relations Amendment (Award Simplification) Act 2004. |
|
| 3. Schedule 2 | The day on which this Act receives the Royal Assent. However, the provision(s) do not commence at all if this Act receives the Royal Assent before the commencement of Schedule 1 to the Workplace Relations Amendment (Award Simplification) Act 2004. |
|
| 4. Schedule 3 | Immediately after the commencement of Schedule 1 to the Workplace Relations Amendment (Award Simplification) Act 2004. However, the provision(s) do not commence at all if this Act does not receive the Royal Assent before the commencement of Schedule 1 to the Workplace Relations Amendment (Award Simplification) Act 2004. |
|
| 5. Schedule 4 | The day on which this Act receives the Royal Assent. |
|
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
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.
Workplace Relations Act 1996
1 Paragraph 89A(2)(m)
Repeal the paragraph, substitute:
(m) redundancy pay by an employer of 15 or more employees;
2 Subsection 89A(7)
Omit "Subsection (1)", substitute "Subject to subsection (7A), subsection (1)".
3 After subsection 89A(7)
Insert:
(7A) In spite of subsection (7), subsection (1) excludes from an industrial dispute the matter of redundancy pay by an employer of fewer than 15 employees.
4 After subsection 89A(8)
Insert:
Back to Top Interpretation--redundancy pay provisions (8A) For the purposes of paragraph (2)(m) and subsection (7A):
(a) whether an employer employs 15 or more employees, or fewer than 15 employees, is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given by the employer or by the employee who becomes redundant; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
5 After section 153
Insert:
(1) If a State law or a State award would, apart from this section, have the effect of requiring a constitutional corporation that employs fewer than 15 employees to pay redundancy pay, the State law or the State award does not have that effect.
(2) For the purposes of subsection (1):
(a) whether a constitutional corporation employs fewer than 15 employees is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given by the corporation or by the employee who becomes redundant; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the corporation on a regular and systematic basis for at least 12 months (but not including any other casual employee).
6 At the end of section 170FA
Add:
(3) In so far as an order is made for the purposes of Article 12 of that Convention, the Commission must not make an order in relation to the matter of redundancy pay by an employer of fewer than 15 employees.
(4) For the purposes of subsection (3):
(a) whether an employer employs fewer than 15 employees is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given by the employer or by the employee who becomes redundant; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
7 Application
(1) The amendments made by items 1 to 4 apply to:
(a) dealing with an industrial dispute by arbitration after the commencement of this Schedule; and
(b) preventing or settling an industrial dispute by making an award or order after the commencement of this Schedule; and
(c) maintaining the settlement of an industrial dispute by varying an award or order after the commencement of this Schedule;
whether the industrial dispute arose before or arises after the commencement of this Schedule.
(2) The amendment made by item 5 applies to:
(a) a State law or a State award, made after the commencement of this Schedule, that has the effect mentioned in subsection 153A(1) of the Workplace Relations Act 1996 as inserted by that item; and
(b) a State law or a State award, made before or
Back to Top after the commencement of this Schedule, that is amended or varied after the commencement of this Schedule with the result that it has that effect.
(3) The amendment made by item 6 applies to the making of orders after the commencement of this Schedule.
8 Transitional--awards and orders of the Commission
(1) If, during the period from the start of 26 March 2004 until the commencement of this Schedule, the Commission:
(a) made an award or order that had the effect of requiring an employer of fewer than 15 employees to pay redundancy pay; or
(b) varied an award or order, made before or during that period, with the result that it had that effect;
then, from the commencement of this Schedule, the award or order ceases to have that effect.
(2) For the purposes of paragraph (1)(a):
(a) whether an employer employs fewer than 15 employees is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given by the employer or by the employee who becomes redundant; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
9 Transitional--State laws and State awards
If, during the period from the start of 26 March 2004 until the commencement of this Schedule:
(a) a State law or a State award was made having the effect mentioned in subsection 153A(1) of the Workplace Relations Act 1996 as inserted by item 5 of this Schedule; or
(b) a State law or a State award, made before or during that period, was amended or varied with the result that it had that effect;
then, from the commencement of this Schedule, the State law or State award ceases to have that effect.
Workplace Relations Act 1996
1 Paragraph 89A(2)(m)
Repeal the paragraph, substitute:
(m) payments by an employer of 15 or more employees in relation to a termination that is:
(i) on the initiative of the employer; and
(ii) on the grounds of operational requirements;
2 Subsection 89A(7)
Omit "Subsection (1)", substitute "Subject to subsection (7A), subsection (1)".
3 After subsection 89A(7)
Insert:
(7A) In spite of subsection (7), subsection (1) excludes from an industrial dispute the matter of payments by an employer of fewer than 15 employees in relation to a termination that is:
(a) on the initiative of the employer; and
(b) on the grounds of operational requirements.
4 After subsection 89A(8)
Insert:
Interpretation--redundancy pay provisions
(8A) For the purposes of paragraph (2)(m) and subsection (7A):
(a) whether an employer employs 15 or more employees, or fewer than 15 employees, is to be worked out as at the time (the relevant time):
(i) when notice of the termination is given by the employer; or
(ii) when the termination occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee whose employment is terminated and any other employee whose employment is terminated at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least
Back to Top 12 months (but not including any other casual employee).
5 After section 153
Insert:
(1) If a State law or a State award would, apart from this section, have the effect of requiring a constitutional corporation that employs fewer than 15 employees to pay redundancy pay, the State law or the State award does not have that effect.
(2) For the purposes of subsection (1):
(a) whether a constitutional corporation employs fewer than 15 employees is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given by the corporation or by the employee who becomes redundant; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the corporation on a regular and systematic basis for at least 12 months (but not including any other casual employee).
6 At the end of section 170FA
Add:
(3) In so far as an order is made for the purposes of Article 12 of that Convention, the Commission must not make an order in relation to the matter of redundancy pay by an employer of fewer than 15 employees.
(4) For the purposes of subsection (3):
(a) whether an employer employs fewer than 15 employees is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given by the employer or by the employee who becomes redundant; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
7 Application
(1) The amendments made by items 1 to 4 apply to:
(a) dealing with an industrial dispute by arbitration after the commencement of this Schedule; and
(b) preventing or settling an industrial dispute by making an award or order after the commencement of this Schedule; and
(c) maintaining the settlement of an industrial dispute by varying an award or order after the commencement of this Schedule;
whether the industrial dispute arose before or arises after the commencement of this Schedule.
(2) The amendment made by item 5 applies to:
(a) a State law or a State award, made after the commencement of this Schedule, that has the effect mentioned in subsection 153A(1) of the Workplace Relations Act 1996 as inserted by that item; and
(b) a State law or a State award, made before or after the commencement of this Schedule, that is amended or varied after the commencement of this Schedule with the result that it has that effect.
(3) The amendment made by item 6 applies to the making of orders after the commencement of this Schedule.
8 Transitional--awards and orders of the Commission: period from 26 March until commencement of award simplification amendments
(1) If, during the period from the start of 26 March 2004 until the commencement of Schedule 1 to the Workplace Relations Amendment (Award Simplification) Act 2004, the Commission:
(a) made an award or order that had the effect of requiring an employer of fewer than 15 employees to pay redundancy pay; or
(b) varied an award or order, made before or during that period, with the result that it had that effect;
then, from the commencement of this Schedule, the award or order ceases to have that effect.
Back to Top (2) For the purposes of paragraph (1)(a):
(a) whether an employer employs fewer than 15 employees is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given by the employer or by the employee who becomes redundant; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
9 Transitional--awards and orders of the Commission: period from commencement of award simplification amendments until commencement of this Schedule
(1) If, during the period from the commencement of Schedule 1 to the Workplace Relations Amendment (Award Simplification) Act 2004 until the commencement of this Schedule, the Commission:
(a) made an award or order that had the effect of requiring payments by an employer of fewer than 15 employees in relation to a termination that is:
(i) on the initiative of the employer; and
(ii) on the grounds of operational requirements; or
(b) varied an award or order, made before or during that period, with the result that it had that effect;
then, from the commencement of this Schedule, the award or order ceases to have that effect.
(2) For the purposes of paragraph (1)(a):
(a) whether an employer employs fewer than 15 employees is to be worked out as at the time (the relevant time):
(i) when notice of the termination is given by the employer; or
(ii) when the termination occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee whose employment is terminated and any other employee whose employment is terminated at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
10 Transitional--State laws and State awards
If, during the period from the start of 26 March 2004 until the commencement of this Schedule:
(a) a State law or a State award was made having the effect mentioned in subsection 153A(1) of the Workplace Relations Act 1996 as inserted by item 5 of this Schedule; or
(b) a State law or a State award, made before or during that period, was amended or varied with the result that it had that effect;
then, from the commencement of this Schedule, the State law or State award ceases to have that effect.
Workplace Relations Act 1996
1 Paragraph 89A(2)(m)
Repeal the paragraph, substitute:
(m) payments by an employer of 15 or more employees in relation to a termination that is:
(i) on the initiative of the employer; and
(ii) on the grounds of operational requirements;
2 Subsection 89A(7A)
Repeal the subsection, substitute:
(7A) In spite of subsection (7), subsection (1) excludes from an industrial dispute the matter of payments by an employer of fewer than 15 employees in relation to a termination that is:
(a) on the initiative of the employer; and
(b) on the grounds of operational requirements.
3 Subsection 89A(8A)
Repeal the subsection, substitute:
Interpretation--redundancy pay provisions
(8A) For the purposes of paragraph (2)(m) and subsection (7A):
(a) whether an employer employs 15 or more employees, or fewer than 15 employees, is to be worked out as at the time (the relevant time):
(i) when notice of the termination is given by the employer; or
(ii) when the termination occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee whose employment is terminated and any other employee whose employment is terminated at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
4 Application
The amendments made by items 1 to 3 apply in relation to:
(a) an industrial dispute that the Commission began to deal with before the commencement of this Schedule; and
(b) an industrial dispute that the Commission begins to deal with after the commencement of this Schedule.
1 Protection of existing entitlements
Nothing in a Schedule to this Act, or an amendment made by a Schedule to this Act, affects any entitlement to a payment that had arisen before the commencement of that Schedule.