Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the law relating to workplace relations, and for related purposes
Administered by: DEWR
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 03 Nov 2005
Introduced HR 02 Nov 2005
Table of contents.

2004-2005

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Workplace Relations Amendment (Work Choices) Bill 2005

 

No.      , 2005

 

(Employment and Workplace Relations)

 

 

 

A Bill for an Act to amend the law relating to workplace relations, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 3

Schedule 1—Main amendments                                                                                     4

Workplace Relations Act 1996                                                                                 4

Schedule 2—Transitional arrangements for State organisations            659

Workplace Relations Act 1996                                                                             659

Schedule 3—School-based apprentices and trainees                                     666

Workplace Relations Act 1996                                                                             666

Schedule 4—Transitional and other provisions                                                 674

Part 1—Regulations for transitional etc. provisions and consequential amendments   674

Part 2—Transitional, application and saving provisions                                 675

Division 1—Definitions used in this Part                                                             675

Division 2—Awards                                                                                                675

Division 3—Termination of employment                                                              676

Division 4—Miscellaneous                                                                                    679

Schedule 5—Renumbering the Workplace Relations Act 1996               685

Workplace Relations Act 1996                                                                             685

 


A Bill for an Act to amend the law relating to workplace relations, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Workplace Relations Amendment (Work Choices) Act 2005.

2  Commencement

             (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.

 

2.  Schedule 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

3.  Schedule 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

4.  Schedule 3

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

5.  Schedule 4, Part 1

The day on which this Act receives the Royal Assent.

 

6.  Schedule 4, Part 2

At the same time as the provision(s) covered by table item 2.

 

7.  Schedule 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

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.

3  Schedule(s)

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


 

Schedule 1Main amendments

  

Workplace Relations Act 1996

1  Section 3

Repeal the section, substitute:

3  Principal object

                   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)  establishing and maintaining a simplified national system of workplace relations; and

                     (c)  providing an economically sustainable safety net of minimum wages and conditions for those whose employment is regulated by this Act; and

                     (d)  providing a foundation of key minimum standards for agreement-making while ensuring that the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level; and

                     (e)  enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances; and

                      (f)  ensuring compliance with minimum standards, industrial instruments and bargaining processes by providing effective means for the investigation and enforcement of:

                              (i)  employee entitlements; and

                             (ii)  the rights and obligations of employers and employees, and their organisations; and

                     (g)  ensuring that awards provide minimum safety net entitlements for award-reliant employees which are consistent with Australian Fair Pay Commission decisions and which avoid creating disincentives to bargain at the workplace level; and

                     (h)  supporting harmonious and productive workplace relations by providing flexible mechanisms for the voluntary settlement of disputes; and

                      (i)  balancing the right to take industrial action for the purposes of collective bargaining at the workplace level with the need to protect the public interest and appropriately deal with illegitimate and unprotected industrial action; and

                      (j)  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

                     (k)  protecting the competitive position of young people in the labour market, promoting youth employment, youth skills and community standards and assisting in reducing youth unemployment; and

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

                    (m)  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

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

2  Section 4

Repeal the section, substitute:

4  Definitions

             (1)  In this Act, unless the contrary intention appears:

A.C.T. Consequential Provisions Act means the A.C.T. Self-Government (Consequential Provisions) Act 1988.

AFPC has the meaning given by section 7F.

allowable award matters means the matters referred to in subsection 116(1).

Note:          The matters referred to in subsection 116(1) have a meaning that is affected by section 116B.

alternative dispute resolution process has the meaning given by section 176A.

Anti-Discrimination Conventions means:

                     (a)  the Equal Remuneration Convention; and

                     (b)  the Convention on the Elimination of all Forms of Discrimination against Women, a copy of the English text of which is set out in the Schedule to the Sex Discrimination Act 1984; and

                     (c)  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

                     (d)  Articles 3 and 7 of the International Covenant on Economic, Social and Cultural Rights.

APCS has the meaning given by section 90B.

applies to employment generally: a law of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:

                     (a)  all employers and employees in the State or Territory; or

                     (b)  all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.

For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.

arbitration powers means the powers of the Commission in relation to arbitration.

Australian-based employee means:

                     (a)  an employee whose primary place of work is in Australia, in Australia’s exclusive economic zone or in, on, or over Australia’s continental shelf; or

                     (b)  an employee who is employed by the Commonwealth or a Commonwealth authority, except an employee engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories; or

                     (c)  an employee who is prescribed by the regulations for the purposes of this definition.

Note:          Subsection 4AA(1) defines employee.

Australian Capital Territory Government Service means the service established by the Public Sector Management Act 1994 of the Australian Capital Territory.

Australian employer means:

                     (a)  an employer that is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

                     (b)  an employer that is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

                     (c)  an employer that is the Commonwealth; or

                     (d)  an employer that is a Commonwealth authority; or

                     (e)  an employer that is a body corporate incorporated in a Territory; or

                      (f)  an employer that carries on in Australia, in Australia’s exclusive economic zone or in, on, or over Australia’s continental shelf activities (whether of a commercial, governmental or other nature) whose central management and control is in Australia; or

                     (g)  an employer that is prescribed by the regulations for the purposes of this definition.

Note:          Subsection 4AB(1) defines employer.

Australian Fair Pay and Conditions Standard has the meaning given by subsection 89(3).

Australian workplace agreement or AWA has the meaning given by section 96.

Australia’s continental shelf means the continental shelf (as defined in the Seas and Submerged Lands Act 1973) of Australia.

Australia’s exclusive economic zone means the exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia.

AWA: see Australian workplace agreement.

award means:

                     (a)  an award made by the Commission under section 118E; or

                     (b)  a pre-reform award.

award rationalisation process means a process of award rationalisation conducted as a result of an award rationalisation request.

award rationalisation request has the meaning given by section 118.

award-related order means an order varying, revoking or suspending an award.

award simplification process means a process of reviewing and simplifying awards under section 118M.

bargaining agent means:

                     (a)  in relation to an AWA—a person who has been duly appointed as a bargaining agent in relation to the AWA in accordance with section 97A; or

                     (b)  in relation to an employee collective agreement—a person who has been requested to be a bargaining agent in relation to the agreement in accordance with section 97B.

BCII Act means the Building and Construction Industry Improvement Act 2005.

breach includes non-observance.

Chief Justice means the Chief Justice of the Court.

civil remedy provision has the meaning given by section 188.

collective agreement means:

                     (a)  an employee collective agreement; or

                     (b)  a union collective agreement; or

                     (c)  an employer greenfields agreement; or

                     (d)  a union greenfields agreement; or

                     (e)  a multiple-business agreement.

Commission means the Australian Industrial Relations Commission.

Commissioner means a Commissioner of the Commission.

committee of management, in relation to an organisation, association or branch of an organisation or association, means the group or body of persons (however described) that manages the affairs of the organisation, association or branch.

Commonwealth authority means:

                     (a)  a body corporate established for a public purpose by or under a law of the Commonwealth; or

                     (b)  a body corporate:

                              (i)  incorporated under a law of the Commonwealth or a State or Territory; and

                             (ii)  in which the Commonwealth has a controlling interest.

conciliation powers means the powers of the Commission in relation to conciliation.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

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

                     (b)  among the States; or

                     (c)  between a State and a Territory; or

                     (d)  between 2 Territories; or

                     (e)  within a Territory.

contingency fee agreement means an agreement between a legal practitioner and a person under which:

                     (a)  the legal practitioner agrees to provide legal services; and

                     (b)  the payment of all, or a substantial proportion, of the legal practitioner’s costs is contingent on the outcome of the matter in which the practitioner provides the legal services for the person.

Court means the Federal Court of Australia.

Note:          For the purposes of various provisions of this Act, Court means the Federal Court of Australia or the Federal Magistrates Court. This is indicated by definitions that apply for the purposes of those provisions.

demarcation dispute includes:

                     (a)  a dispute arising between 2 or more organisations, or within an organisation, as to the rights, status or functions of members of the organisations or organisation in relation to the employment of those members; or

                     (b)  a dispute arising between employers and employees, or between members of different organisations, as to the demarcation of functions of employees or classes of employees; or

                     (c)  a dispute about the representation under this Act, or the Registration and Accountability of Organisations Schedule, of the industrial interests of employees by an organisation of employees.

Deputy President means a Deputy President of the Commission.

employee has a meaning affected by section 4AA.

employee collective agreement has the meaning given by section 96A.

employer has a meaning affected by section 4AB.

employer greenfields agreement has the meaning given by section 96D.

employing authority, in relation to a class of employees, means the person or body, or each of the persons or bodies, prescribed as the employing authority in relation to the class of employees.

employment has a meaning affected by section 4AC.

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

Equal Remuneration Convention means the Equal Remuneration Convention, 1951.

Family Responsibilities Convention means the Workers with Family Responsibilities Convention, 1981, a copy of the English text of which is set out in Schedule 12.

flight crew officer has the meaning given by clause 1 of Schedule 1.

Full Bench means a Full Bench of the Commission.

Full Court means a Full Court of the Court.

greenfields agreement means a union greenfields agreement or an employer greenfields agreement.

industrial action has the meaning given by section 106A.

Industrial Registrar means the Industrial Registrar appointed under section 67.

Industrial Registry means the Australian Industrial Registry.

industry includes:

                     (a)  any business, trade, manufacture, undertaking or calling of employers; and

                     (b)  any calling, service, employment, handicraft, industrial occupation or vocation of employees; and

                     (c)  a branch of an industry and a group of industries.

inspector means a workplace inspector.

Judge means:

                     (a)  in the case of a reference to the Court or a Judge—a Judge (including the Chief Justice) sitting in Chambers; or

                     (b)  otherwise—a Judge of the Court (including the Chief Justice).

judgment means a judgment, decree or order, whether final or interlocutory, or a sentence.

legal practitioner means a legal practitioner (however described) of the High Court or of a Supreme Court of a State or Territory.

magistrate’s court means:

                     (a)  a court constituted by a police, stipendiary or special magistrate; or

                     (b)  a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate.

maritime employee has the meaning given by clause 1 of Schedule 1.

model dispute resolution process means the process set out in Division 2 of Part VIIA.

multiple-business agreement has the meaning given by section 96E.

new APCS has the meaning given by subsection 90ZJ(1).

nominal expiry date of a workplace agreement has the meaning given by section 101.

Northern Territory authority means:

                     (a)  a body corporate established for a public purpose by or under a law of the Northern Territory; or

                     (b)  a body corporate:

                              (i)  incorporated under a law of the Northern Territory; and

                             (ii)  in which the Northern Territory has a controlling interest;

other than a prescribed body.

notional agreement preserving State awards has the meaning given by clause 1 of Schedule 15.

occupier, in relation to premises, includes a person in charge of the premises.

office, in relation to an organisation or a branch of an organisation, has the same meaning as in the Registration and Accountability of Organisations Schedule.

officer, in relation to an organisation or a branch of an organisation, means a person who holds an office in the organisation or branch.

organisation means an organisation registered under the Registration and Accountability of Organisations Schedule.

Note:          An organisation that was registered under the Workplace Relations Act 1996 immediately before the commencement of item 1 of Schedule 2 to the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (the Consequential Provisions Act) is taken to have been registered under the Registration and Accountability of Organisations Schedule (see item 15 of Schedule 1 to the Consequential Provisions Act).

panel means a panel to which an industry has been assigned under section 37.

peak council means a national or State council or federation that is effectively representative of a significant number of organisations representing employers or employees in a range of industries.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

person includes an organisation.

pilot has the meaning given by clause 1 of Schedule 1.

premises includes any land, building, structure, mine, mine working, ship, aircraft, vessel, vehicle or place.

pre-reform AWA has the meaning given by clause 1 of Schedule 14.

pre-reform award means an instrument that has effect after the reform commencement under item 4 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005.

prescribed includes prescribed by Rules of the Commission made under section 48.

preserved APCS has the meaning given by subsection 90ZD(1).

preserved award entitlement, in relation to an employee, has the meaning given by section 117B.

preserved award term has the meaning given by section 117.

preserved State agreement has the meaning given by clause 1 of Schedule 15.

President means the President of the Commission.

Presidential Member means the President, a Vice President, a Senior Deputy President or a Deputy President.

previous Act means the Conciliation and Arbitration Act 1904, and includes any other Act so far as the other Act affects the operation of that Act.

proceeding includes a proceeding relating to the following:

                     (a)  an award rationalisation process;

                     (b)  an award simplification process.

protected action has the meaning given by section 108.

protected action ballot means a ballot under Division 4 of Part VC.

public sector employment means employment of, or service by, a person in any capacity (whether permanently or temporarily and whether full-time or part-time):

                     (a)  under the Public Service Act 1999 or the Parliamentary Service Act 1999; or

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

                     (c)  under a law of the Australian Capital Territory relating to employment by that Territory, including a law relating to the Australian Capital Territory Government Service; or

                     (d)  by or in the service of:

                              (i)  an enactment authority as defined by section 3 of the A.C.T. Consequential Provisions Act; or

                             (ii)  a body corporate incorporated under a law of the Australian Capital Territory and in which the Australian Capital Territory has a controlling interest;

                            other than a prescribed authority or body; or

                     (e)  under a law of the Northern Territory relating to the Public Service of the Northern Territory; or

                      (f)  by or in the service of a Northern Territory authority; or

                     (g)  by or in the service of a prescribed person or under a prescribed law;

but, other than in section 44N, does not include:

                     (h)  employment of, or service by, a person included in a prescribed class of persons; or

                      (i)  employment or service under a prescribed law.

reform commencement means the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005.

Registrar means the Industrial Registrar or a Deputy Industrial Registrar.

Registration and Accountability of Organisations Schedule means Schedule 1B.

registry means the Principal Registry or another registry established under section 64.

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.

secondary office, in relation to a person who holds an office of member of the Commission and an office of member of a prescribed State industrial authority, means the office to which the person was most recently appointed.

Senior Deputy President means a Senior Deputy President of the Commission.

ship has the meaning given by clause 1 of Schedule 1.

single business has the meaning given by section 95A.

special magistrate means a magistrate appointed as a special magistrate under a law of a State or Territory.

State award means an award, order, decision or determination of a State industrial authority.

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 in force under a State or Territory industrial law; and

                     (d)  that prevails over an inconsistent State award.

State industrial authority means:

                     (a)  a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or

                     (b)  a special board constituted under a State Act relating to factories; or

                     (c)  any other State board, court, tribunal, body or official prescribed for the purposes of this definition.

State or Territory industrial law means:

                     (a)  any of the following State Acts:

                              (i)  the Industrial Relations Act 1996 of New South Wales;

                             (ii)  the Industrial Relations Act 1999 of Queensland;

                            (iii)  the Industrial Relations Act 1979 of Western Australia;

                            (iv)  the Fair Work Act 1994 of South Australia;

                             (v)  the Industrial Relations Act 1984 of Tasmania; or

                     (b)  an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:

                              (i)  regulating workplace relations (including industrial matters, industrial disputes and industrial action, within the ordinary meaning of those expressions);

                             (ii)  providing for the determination of terms and conditions of employment;

                            (iii)  providing for the making and enforcement of agreements determining terms and conditions of employment;

                            (iv)  providing for rights and remedies connected with the termination of employment;

                             (v)  prohibiting conduct that relates to the fact that a person either is, or is not, a member of an industrial association (as defined in section 240); or

                     (c)  an instrument made under an Act described in paragraph (a) or (b), so far as the instrument is of a legislative character; or

                     (d)  a law that:

                              (i)  is a law of a State or Territory; and

                             (ii)  is prescribed by regulations for the purposes of this paragraph.

State or Territory training authority means a body authorised by a law or award of a State or Territory for the purpose of overseeing arrangements for the training of employees.

stevedoring operations has the meaning given by clause 1 of Schedule 1.

Termination of Employment Convention means the Termination of Employment Convention, 1982, a copy of the English text of which is set out in Schedule 10.

this Act includes the regulations but does not include Schedule 1B or regulations made under that Schedule.

trade union means:

                     (a)  an organisation of employees; or

                     (b)  an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory; or

                     (c)  an association of employees a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment.

training arrangement means a combination of work and training that is subject to a training agreement or a training contract between the employee and employer that is registered:

                     (a)  with the relevant State or Territory training authority; or

                     (b)  under a law of a State or Territory relating to the training of employees.

union collective agreement has the meaning given by section 96B.

union greenfields agreement has the meaning given by section 96C.

Vice President means a Vice President of the Commission.

vocational placement means a placement that is:

                     (a)  undertaken with an employer for which a person is not entitled to be paid any remuneration; and

                     (b)  undertaken as a requirement of an education or training course; and

                     (c)  authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.

waterside worker has the meaning given by clause 1 of Schedule 1.

wharf has the meaning given by clause 1 of Schedule 1.

working day means a day that is not a Saturday, a Sunday or a public holiday.

workplace agreement means:

                     (a)  an AWA; or

                     (b)  a collective agreement.

Note:          Section 95D affects the meaning of workplace agreement.

workplace determination means a determination under Division 8 of Part VC.

workplace inspector means a person appointed as a workplace inspector under section 84.

             (2)  To avoid doubt, it is declared that a reference in this Act (except in Part XA) to an independent contractor is confined to a natural person.

             (3)  In this Act, a reference to:

                     (a)  a person who is eligible to become a member of an organisation; or

                     (b)  a person who is eligible for membership of an organisation;

includes a reference to a person who is eligible merely because of an agreement made under rules of the organisation made under subsection 151(1) of the Registration and Accountability of Organisations Schedule.

             (4)  In this Act, a reference to a person making a statement that is to the person’s knowledge false or misleading in a material particular includes a reference to a person making a statement where the person is reckless as to whether the statement is false or misleading in a material particular.

             (5)  In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.

             (6)  A reference in this Act to a term of an award includes a reference to a provision of an award.

Note:          Section 69B of the Australian Federal Police Act 1979 provides that this Act does not apply to certain matters relating to AFP employees.

3  After section 4

Insert:

4AA  Employee

Basic definition

             (1)  In this Act, unless the contrary intention appears:

employee means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 4AB(1), by an employer, except on a vocational placement.

Note:          See also Part XV (employees and employers in Victoria).

References to employee with ordinary meaning

             (2)  However, a reference to employee has its ordinary meaning (subject to subsections (3) and (4)) if the reference is listed in clause 2 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).

Note:          The regulations may amend clause 2 of Schedule 1. See clause 5 of Schedule 1.

             (3)  In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning includes a reference to an individual who is usually an employee with that meaning.

             (4)  In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning does not include a reference to an individual on a vocational placement.

4AB  Employer

Basic definition

             (1)  In this Act, unless the contrary intention appears:

employer means:

                     (a)  a constitutional corporation, so far as it employs, or usually employs, an individual; or

                     (b)  the Commonwealth, so far as it employs, or usually employs, an individual; or

                     (c)  a Commonwealth authority, so far as it employs, or usually employs, an individual; or

                     (d)  a person or entity (which may be an unincorporated club) so far as the person or entity, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

                              (i)  a flight crew officer; or

                             (ii)  a maritime employee; or

                            (iii)  a waterside worker; or

                     (e)  a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

                      (f)  a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person or entity employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1:       In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of the Acts Interpretation Act 1901.

Note 2:       See also Part XV (employees and employers in Victoria).

References to employer with ordinary meaning

             (2)  However, a reference to employer has its ordinary meaning (subject to subsection (3)) if the reference is listed in clause 3 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).

Note:          The regulations may amend clause 3 of Schedule 1. See clause 5 of Schedule 1.

             (3)  In this Act, unless the contrary intention appears, a reference to employer with its ordinary meaning includes a reference to a person or entity that is usually an employer with that meaning.

4AC  Employment

             (1)  In this Act, unless the contrary intention appears:

employment means the employment of an employee by an employer.

Note:          Subsections 4AA(1) and 4AB(1) define employee and employer.

References to employment with ordinary meaning

             (2)  However, a reference to employment has its ordinary meaning if the reference is listed in clause 4 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).

Note:          The regulations may amend clause 4 of Schedule 1. See clause 5 of Schedule 1.

4  Section 4A

Repeal the section, substitute:

4A  Schedules 1B, 13, 14, 15 and 16 have effect

                   Schedules 1B, 13, 14, 15 and 16 have effect.

Note 1:       Schedule 1B is about registration and accountability of organisations.

Note 2:       Schedule 13 is about transitional arrangements for parties bound by federal awards.

Note 3:       Schedule 14 is about transitional arrangements for existing pre-reform certified agreements.

Note 4:       Schedule 15 is about transitional treatment of State employment agreements and State awards.

Note 5:       Schedule 16 is about transitional instruments and transmission of business.

5  Sections 5 and 5AA

Repeal the sections.

6  Section 7

Repeal the section, substitute:

7  Modifications for Christmas Island and Cocos (Keeling) Islands

             (1)  If the regulations prescribe modifications of this Act for its application in relation to the Territory of Christmas Island, this Act has effect as modified in relation to the Territory.

             (2)  If the regulations prescribe modifications of this Act for its application in relation to the Territory of Cocos (Keeling) Islands, this Act has effect as modified in relation to the Territory.

             (3)  In this section:

modifications includes additions, omissions and substitutions.

7AA  Extraterritorial application

             (1)  Each Part or Division listed in the table, and the rest of this Act so far as it relates to the Part or Division, extends to persons, acts, omissions, matters and things outside Australia as described in the relevant section listed in the table.

 

Extraterritorial application

Item

This Part or Division:

Which is about this topic:

Extends to persons, acts, omissions, matters and things outside Australia as described in this section:

 

1

Part VA

The Australian Fair Pay and Conditions Standard

Section 89D

 

2

Part VB

Workplace agreements

Section 95E

 

3

Part VI

Awards

Section 115C

 

4

Division 1 of Part VIA

Meal breaks

Section 170AD

 

5

Division 2 of Part VIA

Equal remuneration for work of equal value

Section 170BGD

 

6

Division 3 of Part VIA

Termination of employment

Section 170CCB

 

7

Part IX

Right of entry

Section 200

 

8

Part XA

Freedom of association

Section 249

 

Note 1:       In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

Note 2:       Provisions of section 86 giving inspectors power to enter certain premises and places and do certain things there also extend to some premises and places outside Australia, subject to Australia’s international obligations relating to foreign-flagged ships and foreign-registered aircraft.

Modified application in Australia’s exclusive economic zone

             (2)  If the regulations prescribe modifications of this Act for its operation in relation to all or part of Australia’s exclusive economic zone, then, so far as this Act extends to the zone or part apart from this subsection, it has effect as modified in relation to the zone or part.

             (3)  For the purposes of subsection (2), the regulations may prescribe different modifications in relation to different parts of Australia’s exclusive economic zone.

Modified application in relation to Australia’s continental shelf

             (4)  If the regulations prescribe modifications of this Act for its operation in relation to all or part of Australia’s continental shelf, then, so far as this Act extends in relation to the continental shelf or part apart from this subsection, it has effect as modified in relation to the continental shelf or part.

             (5)  For the purposes of subsection (4), the regulations may prescribe different modifications in relation to different parts of Australia’s continental shelf.

Definitions

             (6)  In this section:

modifications includes additions, omissions and substitutions.

this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.

7  Section 7B

Before “Chapter”, insert “(1)”.

8  At the end of section 7B

Add:

             (2)  However, so far as Part 2.7 of the Criminal Code is relevant to this Act, it has effect subject to the following sections of this Act:

                     (a)  section 7AA;

                     (b)  the sections mentioned in section 7AA;

                     (c)  section 86.

Note:          Part 2.7 of the Criminal Code is about geographical jurisdiction in connection with offences. Section 7AA, the sections mentioned there and section 86 deal with extraterritorial operation of this Act.

9  At the end of Part I

Add:

7C  Act excludes some State and Territory laws

             (1)  This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer:

                     (a)  a State or Territory industrial law;

                     (b)  a law that applies to employment generally and deals with leave other than long service leave;

                     (c)  a law providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal value (as defined in section 170BB);

                     (d)  a law providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;

                     (e)  a law that entitles a representative of a trade union to enter premises for a purpose other than a purpose connected with occupational health and safety.

Note:          Subsection 4(1) defines applies to employment generally.

State and Territory laws that are not excluded

             (2)  However, subsection (1) does not apply to a law of a State or Territory so far as:

                     (a)  the law deals with the prevention of discrimination, the promotion of EEO or both, and is neither a State or Territory industrial law nor contained in such a law; or

                     (b)  the law is prescribed by the regulations as a law to which subsection (1) does not apply; or

                     (c)  the law deals with any of the matters (the non-excluded matters) described in subsection (3).

             (3)  The non-excluded matters are as follows:

                     (a)  superannuation;

                     (b)  workers compensation;

                     (c)  occupational health and safety;

                     (d)  child labour;

                     (e)  long service leave;

                      (f)  the observance of a public holiday, except the rate of payment of an employee for the public holiday;

                     (g)  the method of payment of wages or salaries;

                     (h)  the frequency of payment of wages or salaries;

                      (i)  deductions from wages or salaries;

                      (j)  matters relating to training or apprenticeships, except the rate of payment of trainees and apprentices;

                     (k)  industrial action (within the ordinary meaning of the expression) affecting essential services;

                      (l)  attendance for service on a jury;

                    (m)  regulation of any of the following:

                              (i)  associations of employees;

                             (ii)  associations of employers;

                            (iii)  members of associations of employees or of associations of employers.

Note:          Part IX (Right of entry) sets prerequisites for a trade union representative to enter certain premises under a right given by a prescribed law of a State or Territory. The prerequisites apply even though the law deals with occupational health and safety and paragraph (2)(c) says this Act is not to apply to the exclusion of a law dealing with that.

This Act excludes prescribed State and Territory laws

             (4)  This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations for the purposes of this subsection.

Definition

             (5)  In this section:

this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.

7D  Awards, agreements and Commission orders prevail over State and Territory law etc.

             (1)  An award or workplace agreement prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency.

             (2)  However, a term of an award or workplace agreement dealing with any of the following matters has effect subject to a law of a State or Territory dealing with the matter:

                     (a)  occupational health and safety;

                     (b)  workers compensation;

                     (c)  apprenticeship;

                     (d)  a matter prescribed by the regulations for the purposes of this paragraph.

             (3)  An order of the Commission under Part VIA prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency.

Note:          Part VIA is about minimum entitlements of employees.

7E  Act may exclude State and Territory laws in other cases

             (1)  Sections 7C and 7D are not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws.

Note:          Other provisions of this Act deal with its relationship with laws of the States and Territories. For example, see clause 87 of Schedule 13, which is about not excluding or limiting Victorian law that can operate concurrently with certain provisions of that Schedule.

             (2)  In this section:

this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.

10  After Part I

Insert:

Part IAAustralian Fair Pay Commission

Division 1Preliminary

7F  Definitions

                   In this Part:

AFPC Chair means the AFPC Chair appointed under section 7P.

AFPC Commissioner means an AFPC Commissioner appointed under section 7Y.

AFPC Secretariat means the AFPC Secretariat established under section 7ZG.

Director of the Secretariat means the Director of the Secretariat appointed under section 7ZK.

wage review means a review conducted by the AFPC to determine whether it should exercise any of its wage-setting powers.

wage-setting decision means a decision made by the AFPC in the exercise of its wage-setting powers.

wage-setting function has the meaning given by section 7I.

wage-setting powers means the powers of the AFPC under Division 2 of Part VA.

Division 2Australian Fair Pay Commission

Subdivision AEstablishment and functions

7G  Establishment

             (1)  The Australian Fair Pay Commission is established by this section.

             (2)  The AFPC is to consist of:

                     (a)  the AFPC Chair; and

                     (b)  4 AFPC Commissioners.

7H  Functions of the AFPC

                   The functions of the AFPC are as follows:

                     (a)  its wage-setting function as set out in section 7I;

                     (b)  any other functions conferred on the AFPC under this Act or any other Act;

                     (c)  any other functions conferred on the AFPC by regulations made under this Act or any other Act;

                     (d)  to undertake activities to promote public understanding of matters relevant to its wage-setting and other functions.

Subdivision BAFPC’s wage-setting function

7I  AFPC’s wage-setting function

                   The AFPC’s wage-setting function is to:

                     (a)  conduct wage reviews; and

                     (b)  exercise its wage-setting powers as necessary depending on the outcomes of wage reviews.

Note:          The main wage-setting powers of the AFPC cover the following matters (within the meaning of Division 2 of Part VA):

(a)           adjusting the standard FMW (short for Federal Minimum Wage);

(b)           determining or adjusting special FMWs for junior employees, employees with disabilities or employees to whom training arrangements apply;

(c)           determining or adjusting basic periodic rates of pay and basic piece rates of pay payable to employees or employees of particular classifications;

(d)           determining or adjusting casual loadings.

7J  AFPC’s wage-setting parameters

                   The objective of the AFPC in performing its wage-setting function is to promote the economic prosperity of the people of Australia having regard to the following:

                     (a)  the capacity for the unemployed and low paid to obtain and remain in employment;

                     (b)  employment and competitiveness across the economy;

                     (c)  providing a safety net for the low paid;

                     (d)  providing minimum wages for junior employees, employees to whom training arrangements apply and employees with disabilities that ensure those employees are competitive in the labour market.

7K  Wage reviews and wage-setting decisions

             (1)  The AFPC may determine the following:

                     (a)  the timing and frequency of wage reviews;

                     (b)  the scope of particular wage reviews;

                     (c)  the manner in which wage reviews are to be conducted;

                     (d)  when wage-setting decisions are to come into effect.

             (2)  For the purposes of performing its wage-setting function, the AFPC may inform itself in any way it thinks appropriate, including by:

                     (a)  undertaking or commissioning research; or

                     (b)  consulting with any other person, body or organisation; or

                     (c)  monitoring and evaluating the impact of its wage-setting decisions.

             (3)  Subsections (1) and (2) have effect subject to this Act and any regulations made under this Act.

             (4)  The AFPC’s wage-setting decisions must:

                     (a)  be in writing; and

                     (b)  be expressed as decisions of the AFPC as a body; and

                     (c)  include reasons for the decisions, expressed as reasons of the AFPC as a body.

A wage-setting decision is not a legislative instrument.

7L  Constitution of the AFPC for wage reviews

             (1)  For the purposes of exercising its wage-setting powers, the AFPC must be constituted by:

                     (a)  the AFPC Chair; and

                     (b)  the 4 AFPC Commissioners.

             (2)  However, if the AFPC Chair considers it necessary in circumstances where AFPC Commissioners are unavailable, the AFPC Chair may determine that, for the purposes of exercising its wage-setting powers in those circumstances, the AFPC is to be constituted by:

                     (a)  the AFPC Chair; and

                     (b)  no fewer than 2 AFPC Commissioners.

7M  Publishing wage-setting decisions etc.

             (1)  The AFPC must publish its wage-setting decisions.

             (2)  The AFPC may, as it thinks appropriate, publish other information about wages or its wage-setting function.

             (3)  Publishing under subsection (1) or (2) may be done in any way the AFPC thinks appropriate.

Subdivision COperation of the AFPC

7N  AFPC to determine its own procedures

             (1)  The AFPC may determine the procedures it will use in performing its functions.

             (2)  Subsection (1) has effect subject to Subdivision B and any regulations made under subsection (3).

             (3)  The regulations may prescribe procedures to be used by the AFPC for all or for specified purposes.

7O  Annual report

                   The AFPC must, as soon as practicable after the end of each financial year, give to the Minister a report on the operation of the AFPC for presentation to the Parliament.

Subdivision DAFPC Chair

7P  Appointment

             (1)  The AFPC Chair is to be appointed by the Governor-General by written instrument.

             (2)  The AFPC Chair may be appointed on a full-time or part-time basis and holds office for the period specified in his or her instrument of appointment. The period must not exceed 5 years.

             (3)  To be appointed as AFPC Chair, a person must have a high level of skills and experience in business or economics.

7Q  Remuneration

             (1)  The AFPC Chair is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the AFPC Chair is to be paid the remuneration that is prescribed.

             (2)  The AFPC Chair is to be paid the allowances that are prescribed.

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

7R  Leave of absence

             (1)  If the AFPC Chair is appointed on a full-time basis:

                     (a)  the AFPC Chair has the recreation leave entitlements that are determined by the Remuneration Tribunal; and

                     (b)  the Minister may grant the AFPC Chair leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

             (2)  If the AFPC Chair is appointed on a part-time basis, the Minister may grant leave of absence to the AFPC Chair on the terms and conditions that the Minister determines.

7S  Engaging in other paid employment

                   If the AFPC Chair is appointed on a full-time basis, the AFPC Chair must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

7T  Disclosure of interests

                   The AFPC Chair must give written notice to the Minister of all interests (financial or otherwise) that the AFPC Chair has or acquires and that could conflict with the proper performance of his or her duties.

7U  Resignation

             (1)  The AFPC Chair may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

7V  Termination of appointment

             (1)  The Governor-General may terminate the appointment of the AFPC Chair if:

                     (a)  the AFPC Chair:

                              (i)  becomes bankrupt; or

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

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the AFPC Chair fails, without reasonable excuse, to comply with section 7T; or

                     (c)  the AFPC Chair has or acquires interests (including by being an employer or employee) that the Minister considers conflict unacceptably with the proper performance of the AFPC Chair’s duties; or

                     (d)  if the AFPC Chair is appointed on a full-time basis:

                              (i)  the AFPC Chair engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

                             (ii)  the AFPC Chair is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (e)  if the AFPC Chair is appointed on a part-time basis—the AFPC Chair is absent, except on leave of absence, to an extent that the Minister considers excessive.

             (2)  Subject to subsections (3) and (4), the Governor-General may terminate the appointment of the AFPC Chair for misbehaviour or physical or mental incapacity.

             (3)  If the AFPC Chair:

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

                     (b)  has not reached his or her maximum retiring age within the meaning of that Act;

his or her appointment cannot be terminated for physical or mental incapacity unless the CSS Board has given a certificate under section 54C of that Act.

             (4)  If the AFPC Chair:

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

                     (b)  is under 60 years of age;

his or her appointment cannot be terminated for physical or mental incapacity unless the PSS Board has given a certificate under section 13 of that Act.

7W  Other terms and conditions

                   The AFPC Chair holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

7X  Acting AFPC Chair

             (1)  The Minister may appoint a person who meets the requirements set out in subsection 7P(3) to act as the AFPC Chair:

                     (a)  during a vacancy in the office of the AFPC Chair (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the AFPC Chair 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 an appointment 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.

Subdivision EAFPC Commissioners

7Y  Appointment

             (1)  An AFPC Commissioner is to be appointed by the Governor-General by written instrument.

             (2)  An AFPC Commissioner holds office on a part-time basis for the period specified in his or her instrument of appointment. The period must not exceed 4 years.

             (3)  To be appointed as an AFPC Commissioner, a person must have experience in one or more of the following areas:

                     (a)  business;

                     (b)  economics;

                     (c)  community organisations;

                     (d)  workplace relations.

7Z  Remuneration

             (1)  An AFPC Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, an AFPC Commissioner is to be paid the remuneration that is prescribed.

             (2)  An AFPC Commissioner is to be paid the allowances that are prescribed.

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

7ZA  Leave of absence

                   The AFPC Chair may grant leave of absence to an AFPC Commissioner on the terms and conditions that the AFPC Chair determines.

7ZB  Disclosure of interests

                   An AFPC Commissioner must give written notice to the Minister of all interests (financial or otherwise) that the AFPC Commissioner has or acquires and that could conflict with the proper performance of his or her duties.

7ZC  Resignation

             (1)  An AFPC Commissioner may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

7ZD  Termination of appointment

             (1)  The Governor-General may terminate the appointment of an AFPC Commissioner if:

                     (a)  the AFPC Commissioner:

                              (i)  becomes bankrupt; or

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

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the AFPC Commissioner fails, without reasonable excuse, to comply with section 7ZB; or

                     (c)  the AFPC Commissioner has or acquires interests (including by being an employer or employee) that the Minister considers conflict unacceptably with the proper performance of the AFPC Commissioner’s duties; or

                     (d)  the AFPC Commissioner is absent, except on leave of absence, to an extent that the Minister considers excessive.

             (2)  Subject to subsections (3) and (4), the Governor-General may terminate the appointment of an AFPC Commissioner for misbehaviour or physical or mental incapacity.

             (3)  If an AFPC Commissioner:

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

                     (b)  has not reached his or her maximum retiring age within the meaning of that Act;

his or her appointment cannot be terminated for physical or mental incapacity unless the CSS Board has given a certificate under section 54C of that Act.

             (4)  If an AFPC Commissioner:

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

                     (b)  is under 60 years of age;

his or her appointment cannot be terminated for physical or mental incapacity unless the PSS Board has given a certificate under section 13 of that Act.

7ZE  Other terms and conditions

                   An AFPC Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

7ZF  Acting AFPC Commissioners

             (1)  The Minister may appoint a person who meets the requirement set out in subsection 7Y(3) to act as an AFPC Commissioner:

                     (a)  during a vacancy in the office of an AFPC Commissioner (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when an AFPC Commissioner is acting as AFPC chair, 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 an appointment 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.

Division 3AFPC Secretariat

Subdivision AEstablishment and function

7ZG  Establishment

             (1)  The AFPC Secretariat is established by this section.

             (2)  The AFPC Secretariat is to consist of:

                     (a)  the Director of the Secretariat; and

                     (b)  the staff of the Secretariat.

7ZH  Function

                   The function of the AFPC Secretariat is to assist the AFPC in the performance of the AFPC’s functions.

Subdivision BOperation of the AFPC Secretariat

7ZI  AFPC Chair may give directions

             (1)  The AFPC Chair may give directions to the Director of the Secretariat about the performance of the function of the AFPC Secretariat.

             (2)  The Director of the Secretariat must ensure that a direction given under subsection (1) is complied with.

             (3)  To avoid doubt, the AFPC Chair must not give directions under subsection (1) in relation to the performance of functions, or exercise of powers, under the Financial Management and Accountability Act 1997 or the Public Service Act 1999.

7ZJ  Annual report

                   The Director of the Secretariat must, as soon as practicable after the end of each financial year, give to the Minister a report on the operation of the AFPC Secretariat for presentation to the Parliament.

Subdivision CThe Director of the Secretariat

7ZK  Appointment

             (1)  The Director of the Secretariat is to be appointed by the Minister by written instrument.

             (2)  The Director of the Secretariat holds office on a full-time basis for the period specified in his or her instrument of appointment. The period must not exceed 5 years.

7ZL  Remuneration

             (1)  The Director of the Secretariat is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Director of the Secretariat is to be paid the remuneration that is prescribed.

             (2)  The Director of the Secretariat is to be paid the allowances that are prescribed.

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

7ZM  Leave of absence

             (1)  The Director of the Secretariat has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Director of the Secretariat leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

7ZN  Engaging in other paid employment

                   The Director of the Secretariat must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

7ZO  Disclosure of interests

                   The Director of the Secretariat must give written notice to the Minister of all interests (financial or otherwise) that the Director of the Secretariat has or acquires and that could conflict with the proper performance of his or her duties.

7ZP  Resignation

             (1)  The Director of the Secretariat may resign his or her appointment by giving the Minister a written resignation.

             (2)  The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

7ZQ  Termination of appointment

             (1)  The Minister may terminate the appointment of the Director of the Secretariat if:

                     (a)  the Director of the Secretariat:

                              (i)  becomes bankrupt; or

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

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the Director of the Secretariat fails, without reasonable excuse, to comply with section 7ZO; or

                     (c)  the Director of the Secretariat has or acquires interests that the Minister considers conflict unacceptably with the proper performance of the Director of the Secretariat’s duties; or

                     (d)  the Director of the Secretariat engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

                     (e)  the Director of the Secretariat is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.

             (2)  The Minister must terminate the appointment of the Director of the Secretariat if the Minister is of the opinion that the performance of the Director of the Secretariat has been unsatisfactory for a significant period of time.

             (3)  Subject to subsections (4) and (5), the Minister may terminate the appointment of the Director of the Secretariat for misbehaviour or physical or mental incapacity.

             (4)  If the Director of the Secretariat:

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

                     (b)  has not reached his or her maximum retiring age within the meaning of that Act;

his or her appointment cannot be terminated for physical or mental incapacity unless the CSS Board has given a certificate under section 54C of that Act.

             (5)  If the Director of the Secretariat:

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

                     (b)  is under 60 years of age;

his or her appointment cannot be terminated for physical or mental incapacity unless the PSS Board has given a certificate under section 13 of that Act.

7ZR  Other terms and conditions

                   The Director of the Secretariat holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

7ZS  Acting Director of the Secretariat

             (1)  The Minister may appoint a person to act as the Director of the Secretariat:

                     (a)  during a vacancy in the office of the Director of the Secretariat (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Director of the Secretariat 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 an appointment 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.

Subdivision DStaff and consultants

7ZT  Staff

             (1)  The staff of the AFPC Secretariat are to be persons engaged under the Public Service Act 1999.

             (2)  For the purposes of the Public Service Act 1999:

                     (a)  the Director of the Secretariat and the staff of the AFPC Secretariat together constitute a Statutory Agency; and

                     (b)  the Director of the Secretariat is the Head of that Statutory Agency.

7ZU  Consultants

                   The Director of the Secretariat may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants to the AFPC or the AFPC Secretariat. The terms and conditions of the engagement of a person are those determined by the Director of the Secretariat in writing.

11  Section 33

Repeal the section, substitute:

33  Exercise of Commission powers

             (1)  The Commission may perform a function or exercise a power on its own initiative.

             (2)  Despite subsection (1), the Commission must not perform a function or exercise a power under a provision of this Act on its own initiative if:

                     (a)  the function is to be performed, or the power exercised, on application by a specified person or class of persons; and

                     (b)  the function is not also expressed to be able to be performed, or the power exercised, on the Commission’s own initiative.

12  Subsection 36(3)

Repeal the subsection.

13  Section 39

Repeal the section.

14  At the end of Division 2 of Part II

Add:

41A  Co-operation with the States by President

                   The President may invite the heads of State industrial authorities to meet with the President to exchange information and discuss matters of mutual interest in relation to workplace relations.

41B  Co-operation with the States by Registrar

                   The Industrial Registrar may invite the principal registrars of State industrial authorities to meet with the Industrial Registrar to exchange information and discuss matters of mutual interest in relation to workplace relations.

15  Subsection 42(3)

Repeal the subsection, substitute:

             (3)  A party (including an employing authority) may be represented by counsel, solicitor or agent if:

                     (a)  all parties have given express consent to that representation; and

                     (b)  the Commission grants leave for the party to be so represented.

          (3A)  A party (including an employing authority) may be represented by counsel, solicitor or agent if:

                     (a)  the party applies to the Commission to be so represented; and

                     (b)  the Commission grants leave for the party to be so represented.

          (3B)  In deciding whether or not to grant leave under subsection (3), the Commission must have regard to the following matters:

                     (a)  whether being represented by counsel, solicitor or agent would assist the party concerned to bring the best case possible;

                     (b)  the capacity of the particular counsel, solicitor or agent to represent the party concerned;

                     (c)  the capacity of the particular counsel, solicitor or agent to assist the Commission in performing the Commission’s functions under this Act.

          (3C)  In deciding whether or not to grant leave under subsection (3A), the Commission must have regard to the following matters:

                     (a)  the matters referred to in paragraphs (3B)(a), (b) and (c);

                     (b)  the complexity of the factual and legal issues relating to the proceeding;

                     (c)  whether there are special circumstances that make it desirable that the party concerned be represented by counsel, solicitor or agent.

          (3D)  An appeal to a Full Bench under section 45 may not be made in relation to a decision under subsection (3) or (3A) to grant leave or not to grant leave.

16  At the end of paragraphs 42(7)(a) and (b)

Add “or”.

17  At the end of subsection 42(7)

Add:

; or (e)  a bargaining agent.

18  Subsection 43(1)

Omit “(1)”.

19  Subsection 43(2)

Repeal the subsection.

20  After Division 3 of Part II

Insert:

Division 3AGeneral matters relating to the powers and procedures of the Commission

Subdivision AGeneral matters Commission to take into account

44A  Commission to take into account the public interest

             (1)  In the performance of its functions, the Commission must take into account the public interest, and for that purpose must have regard to:

                     (a)  the objects of this Act; and

                     (b)  the state of the national economy and the likely effects on the national economy of any order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation.

             (2)  To the extent that the Commission is performing its functions in relation to matters arising under the Registration and Accountability of Organisations Schedule, the Commission must take into account the public interest, and for that purpose must have regard to:

                     (a)  Parliament’s intention in enacting that Schedule; and

                     (b)  the state of the national economy and the likely effects on the national economy of any order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation.

             (3)  This section does not apply to the performance of a function under Part VC or Part VI.

44B  Commission to take into account discrimination issues

                   In the performance of its functions, the Commission must take into account the following:

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

                     (b)  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.

44C  Commission to take account of Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act

                   In the performance of its functions, the Commission must take account of the principles embodied in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004 relating to discrimination in relation to employment.

44D  Commission to take account of Family Responsibilities Convention

             (1)  In performing its functions, the Commission must take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:

                     (a)  preventing discrimination against workers who have family responsibilities; and

                     (b)  helping workers to reconcile their employment and family responsibilities.

             (2)  This section does not apply to the performance of a function under Part VC.

44E  Safety, health and welfare of employees

             (1)  In performing its functions, the Commission must take into account the provisions of any law of a State or Territory relating to the safety, health and welfare of employees in relation to their employment.

             (2)  This section does not apply to the performance of a function under Division 2 of Part VIA.

44F  Commission to act quickly

                   The Commission must perform its functions as quickly as practicable.

44G  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 or the Registration and Accountability of Organisations Schedule.

Subdivision BParticular powers and procedures of the Commission

44H  Procedure of Commission

             (1)  In a proceeding under this Act or the Registration and Accountability of Organisations Schedule:

                     (a)  the procedure of the Commission is, subject to this Act, the Registration and Accountability of Organisations Schedule and the Rules of the Commission, within the discretion of the Commission; and

                     (b)  the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just; and

                     (c)  the Commission must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.

             (2)  The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceeding and require that the cases be presented within the respective periods.

             (3)  The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.

44I  Particular powers of Commission

             (1)  The Commission may do any of the following in relation to a proceeding under this Act or the Registration and Accountability of Organisations Schedule:

                     (a)  inform itself in any manner that it thinks appropriate;

                     (b)  take evidence on oath or affirmation;

                     (c)  give directions orally or in writing in the course of, or for the purposes of, procedural matters relating to the proceeding;

                     (d)  vary or revoke an order, direction or decision of the Commission;

                     (e)  dismiss a matter or part of a matter on the ground:

                              (i)  that the matter, or the part of the matter, is trivial; or

                             (ii)  that further proceedings in relation to the matter are not necessary or desirable in the public interest;

                      (f)  determine the proceeding in the absence of a person who has been summoned or served with a notice to appear;

                     (g)  sit at any place;

                     (h)  conduct the proceeding, or any part of the proceeding, in private;

                      (i)  adjourn the proceeding to any time and place;

                      (j)  refer any matter to an expert and accept the expert’s report as evidence;

                     (k)  direct a member of the Commission to consider a particular matter that is before the Full Bench and prepare a report for the Full Bench on that matter;

                      (l)  allow the amendment, on any terms that it thinks appropriate, of any application or other document relating to the proceeding;

                    (m)  correct, amend or waive any error, defect or irregularity whether in substance or form;

                     (n)  summon before it any persons whose presence the Commission considers would assist in relation to the proceeding;

                     (o)  compel the production before it of documents and other things for the purpose of reference to such entries or matters as relate to the proceeding;

                     (p)  make interim decisions;

                     (q)  make a final decision in respect of the matter to which the proceeding relates.

             (2)  The Commission may, in writing, authorise a person (including a member of the Commission) to take evidence on its behalf, with any limitations as the Commission directs, in relation to the proceeding, and the person has all the powers of the Commission to secure:

                     (a)  the attendance of witnesses; and

                     (b)  the production of documents and things; and

                     (c)  the taking of evidence on oath or affirmation.

             (3)  The following provisions do not apply to the performance of a function under Part VC:

                     (a)  paragraph (1)(e);

                     (b)  paragraph (1)(j);

                     (c)  paragraph (1)(k).

             (4)  The following provisions do not apply to the performance of a function under Division 2, 3 or 4 of Part VIA:

                     (a)  paragraph (1)(a);

                     (b)  paragraph (1)(e);

                     (c)  paragraph (1)(k);

                     (d)  paragraph (1)(p);

                     (e)  paragraph (1)(q);

                      (f)  subsection (2).

             (5)  Paragraph (1)(j) does not apply to the performance of a function under Division 3 of Part VIA.

             (6)  If a provision of this Act specifies a time or a period in respect of any matter or thing, the Commission must not extend the time or the period specified unless this Act expressly permits the Commission to do so.

             (7)  If a provision of the Registration and Accountability of Organisations Schedule specifies a time or a period in respect of any matter or thing, the Commission must not extend the time or the period specified unless the Registration and Accountability of Organisations Schedule expressly permits the Commission to do so.

             (8)  For the purposes of paragraph (1)(d), order does not include an award or an award-related order.

44J  Reference of proceedings to Full Bench

             (1)  If a proceeding is before a member of the Commission, a party to the proceeding or the Minister may apply to the member to have the proceeding dealt with by a Full Bench because the subject matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench.

             (2)  If an application is made under subsection (1) to a member of the Commission other than the President:

                     (a)  the member must refer the application to the President to be dealt with; and

                     (b)  the President must confer with the member about whether the application should be granted.

             (3)  If the President is of the opinion that the subject matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench, the President must grant the application.

             (4)  If the President grants an application under subsection (1), the Full Bench must (subject to subsection (5)) hear and determine the proceeding to which the application relates.

             (5)  If the President grants an application under subsection (1), the Full Bench may do either or both of the following:

                     (a)  have regard to any evidence given, and any arguments adduced, in the proceeding before the Full Bench began to deal with it;

                     (b)  refer a part of the proceeding to a member of the Commission to hear and determine.

             (6)  The President may, before a Full Bench has been established for the purpose of dealing with a proceeding under this section, authorise a member of the Commission to take evidence for the purposes of the proceeding, and the Full Bench must have regard to the evidence.

             (7)  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.

             (8)  The member must, after making such investigation (if any) as is necessary, provide a report to the President or the Full Bench, as required.

             (9)  In this section:

proceeding includes a part of a proceeding.

44K  President may deal with certain proceedings

             (1)  The President may, whether or not another member of the Commission has begun to deal with a particular proceeding, decide to deal with the proceeding.

             (2)  If the President decides to deal with the proceeding, the President must:

                     (a)  hear and determine the proceeding; or

                     (b)  refer the proceeding to a Full Bench.

             (3)  If the President refers an application to a Full Bench, the Full Bench must (subject to subsection (4)) hear and determine the proceeding.

             (4)  If the President refers the proceeding to a Full Bench, the Full Bench may refer a part of the proceeding to a member of the Commission to hear and determine.

             (5)  The President or the Full Bench may, in dealing with the proceeding, have regard to any evidence given, and any arguments adduced, in the proceeding before the President or the Full Bench, as the case may be, began to deal with it.

             (6)  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.

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

             (8)  In this section:

proceeding includes a part of a proceeding.

44L  Review on application by Minister

             (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 (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) if it appears to the Minister that the award, order or decision is contrary to the public interest.

             (2)  If an application is made to the President under subsection (1), the President must establish a Full Bench to hear and determine the application.

             (3)  The Full Bench must, if in its opinion the matter is of such importance that, in the public interest, the award, order or decision should be reviewed, make such review of the award, order or decision as appears to it to be desirable having regard to the matters referred to in the application.

             (4)  Subject to subsection (5) of this section, subsections 45(4) to (8) apply in relation to a review under this section in the same manner as they apply in relation to an appeal under section 45.

             (5)  Subsections 45A(4) to (8) apply in relation to a review under this section in relation to a matter arising under the Registration and Accountability of Organisations Schedule in the same manner as they apply in relation to an appeal under section 45A.

             (6)  In a review under this section:

                     (a)  the Commission must take such steps as it thinks appropriate to ensure that each person and organisation bound by the award or otherwise with an interest in the review is made aware of the review; and

                     (b)  the Minister may intervene in the proceeding.

             (7)  Each provision of this Act relating to the performance of the Commission’s functions in relation to awards extends to a review under this section.

             (8)  Nothing in this section affects any right of appeal or any power of a Full Bench under section 45, and an appeal under that section and a review under this section may, if the Full Bench thinks appropriate, be dealt with together.

             (9)  Nothing in this section affects any right of appeal or any power of a Full Bench under section 45A, and an appeal under that section and a review under this section may, if the Full Bench thinks appropriate, be dealt with together.

44M  Compulsory conferences

             (1)  For the purpose of the performance of a function, or the exercise of a power, of the Commission under this Act or the Registration and Accountability of Organisations Schedule, a member of the Commission may, on the initiative of the member or on application made by a party to, or intervener in, the proceeding, direct a person to attend, at a specified time and place, a conference to be presided over by a member of the Commission or another person nominated by the President.

Note:          Contravening a direction may be an offence under section 300.

             (2)  A direction may be given to anyone whose presence at the conference the member considers would help in the performance of a function under this Act or the Registration and Accountability of Organisations Schedule.

             (3)  The conference must be held in private except to the extent that the person presiding over the conference directs that it be held in public.

             (4)  This section does not apply to the performance of a function under Part VC.

44N  Power to override certain laws affecting public sector employment

             (1)  In so far as the performance of its functions under this Act or the Registration and Accountability of Organisations Schedule involves public sector employment, the Commission may, where it considers it proper to do so, make an award or order that is not, or in its opinion may not be, consistent with a relevant law of the Commonwealth or of an internal Territory.

             (2)  In this section:

enactment means an ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by the Northern Territory (Self-Government) Act 1978.

relevant law means a law of the Commonwealth or an internal Territory relating to matters pertaining to the relationship between employers and employees in public sector employment, other than:

                     (a)  the Safety, Rehabilitation and Compensation Act 1988, the Long Service Leave (Commonwealth Employees) Act 1976, the Superannuation Act 1976 or the Superannuation Act 1990; or

                     (b)  a prescribed Act or enactment, or prescribed provisions of an Act or enactment.

             (3)  This section does not apply to the performance of a function under Part VIA.

44O  State authorities may be restrained from dealing with matter that is before the Commission

             (1)  If it appears to a Full Bench that a State industrial authority is dealing or is about to deal with a matter that is the subject of a proceeding before the Commission under this Act or the Registration and Accountability of Organisations Schedule, the Full Bench may make an order restraining the State industrial authority from dealing with the matter.

             (2)  The State industrial authority must, in accordance with the order, cease dealing or not deal, as the case may be, with the matter.

             (3)  An order, award, decision or determination of a State industrial authority made in contravention of the order of a Full Bench under this section is, to the extent of the contravention, void.

44P  Joint sessions of Commission

                   If:

                     (a)  the President considers that a question is common to 2 or more proceedings before the Commission; and

                     (b)  the Commission is not constituted by the same person or persons for the purposes of each proceeding;

the President may direct that the Commission constituted by all the persons who constitute the Commission for the purposes of the proceedings may take evidence or hear argument, or take evidence and hear argument, as to the question for the purposes of both or all of the proceedings.

44Q  Revocation and suspension of awards and orders

             (1)  An organisation, a person interested or the Minister may apply to the President, and a member of the Commission or a Registrar may refer a matter to the President, for action by a Full Bench under this section.

             (2)  If an application is made to the President under subsection (1), the President must establish a Full Bench to hear and determine the application.

             (3)  If a matter is referred to the President under subsection (1), the President may establish a Full Bench to hear and determine the matter.

             (4)  If it appears to the Full Bench:

                     (a)  that an organisation has contravened this Act, the Registration and Accountability of Organisations Schedule or an award or order of the Commission; or

                     (b)  that a substantial number of the members of an organisation refuse to accept employment either at all or in accordance with existing awards or orders; or

                     (c)  that for any other reason an award or order should be suspended or revoked in whole or part;

the Full Bench may, subject to such conditions as it thinks appropriate, make an order revoking, or suspending for such period as it thinks appropriate, the award or order or any of the terms of the award or an order.

             (5)  The Full Bench may also make such other orders as it thinks appropriate in relation to the operation of:

                     (a)  if the Full Bench revokes or suspends an award or order on a ground referred to in paragraph (4)(a) or (b)—any other award or order that binds the organisation; or

                     (b)  in any other case—any other award or order that applies in relation to the employment of:

                              (i)  members of an organisation that is bound by the revoked or suspended award or order; or

                             (ii)  persons eligible to be members of such an organisation.

             (6)  The revocation or suspension of all or any of the terms of an award or order may be expressed to apply only in relation to:

                     (a)  a particular organisation or person bound by the award or order; or

                     (b)  a particular branch of an organisation; or

                     (c)  a particular class of members of an organisation; or

                     (d)  a particular locality.

21  Paragraph 45(1)(a)

Repeal the paragraph.

22  Paragraph 45(1)(b)

Omit all the words from and including “Commission, ”, substitute “Commission; and”.

23  Paragraph 45(1)(d)

Omit “111(1)(g)”, substitute “44I(1)(e)”.

24  Paragraph 45(1)(da)

Repeal the paragraph.

25  Paragraphs 45(1)(e) and (eaa)

Repeal the paragraphs.

26  Paragraph 45(1)(eba)

Omit “or certified agreement under section 298Z”, substitute “under section 273”.

27  Paragraphs 45(1)(ea) and (eb)

Repeal the paragraphs.

28  Paragraph 45(1)(ed)

Omit “certified agreement”, substitute “workplace agreement”.

29  Paragraphs 45(3)(ab) and (ac)

Repeal the paragraphs, substitute:

                    (ab)  in the case of an appeal under paragraph (1)(b) against an order that was made under subsection 125E(1) or subclause 14(1) or 23(1) of Schedule 16—by the person who applied for the order or any person who made submissions to the Commission on whether the order should be made; and

                    (ac)  in the case of an appeal under paragraph (1)(c) against a decision not to make an order under subsection 125E(1) or subclause 14(1) or 23(1) of Schedule 16—by the person who applied for the order;

30  Paragraphs 45(3)(ad), (b) and (ba)

Repeal the paragraphs.

31  Subparagraphs 45(3)(baa)(i) and (ii)

Repeal the subparagraphs, substitute:

                              (i)  an employer, employee or organisation bound by the award; or

32  Paragraph 45(3)(bab)

Repeal the paragraph.

33  Paragraph 45(3)(bb)

Omit “under section 111A”, substitute “or workplace agreement”.

34  Subsection 45(3) (note)

Repeal the note.

35  Subsection 45(3A)

Repeal the subsection.

36  Subsection 45(3B)

Repeal the subsection.

37  Paragraph 45(7)(d)

Omit “111(1)(g)”, substitute “44I(1)(e)”.

38  Subsection 45(9)

Repeal the subsection.

39  Paragraph 45A(1)(b)

Omit all the words after “Commission”, substitute “in proceedings under that Schedule, other than an order made by consent of the parties to the proceeding; and”.

40  Paragraph 45A(1)(d)

Omit “111(1)(g)”, substitute “44I(1)(e)”.

41  Paragraph 45A(7)(d)

Omit “111(1)(g)”, substitute “44I(1)(e)”.

42  Subsections 48(1A) and (1B)

Repeal the subsections.

43  Sections 83BB and 83BC

Repeal the sections, substitute:

83BB  Functions of the Employment Advocate

             (1)  The functions of the Employment Advocate are:

                     (a)  to promote the making of workplace agreements; and

                     (b)  to provide assistance and advice to employees and employers (especially employers in small business) in relation to workplace agreements; and

                     (c)  to provide education and information to employees and employers in relation to workplace agreements; and

                     (d)  to promote better work and management practices through workplace agreements; and

                     (e)  to accept lodgment of:

                              (i)  workplace agreements; and

                             (ii)  notices about transmission of instruments; and

                      (f)  to provide advice to employees and employers about awards and the Australian Fair Pay and Conditions Standard; and

                     (g)  to provide aggregated statistical information to the Minister; and

                     (h)  to authorise multiple-business agreements in accordance with the regulations; and

                      (i)  to give to the Minister, in accordance with the regulations, information and copies of documents; and

                      (j)  to disclose information that relates to the functions of workplace inspectors to workplace inspectors in response to requests from workplace inspectors; and

                     (k)  to disclose information to workplace inspectors that the Employment Advocate considers on reasonable grounds is likely to assist the inspectors in performing their functions; and

                      (l)  to analyse workplace agreements; and

                    (m)  to perform any other function conferred on the Employment Advocate by this Act, another Act, the regulations or the Registration and Accountability of Organisations Schedule.

             (2)  In performing his or her functions relating to workplace agreements, the Employment Advocate must encourage parties to agreement-making to take account of the needs of workers in disadvantaged bargaining positions (for example: women, people from a non-English speaking background, young people, apprentices, trainees and outworkers).

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

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

                     (b)  the need to prevent and eliminate discrimination on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

             (4)  Regulations made for the purposes of paragraph (1)(i) may require that documents given to the Minister are given with such deletions as are necessary to prevent the identification of individuals to whom the documents refer.

83BC  Minister’s directions to Employment Advocate

             (1)  The Minister may, by legislative instrument, give directions specifying the manner in which the Employment Advocate must exercise or perform the powers or functions of the Employment Advocate.

             (2)  The directions must not be about a particular workplace agreement.

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

44  Subsection 83BE(2)

Omit “under Part VID relating to the approval of AWAs and ancillary documents”, substitute “relating to the authorisation of multiple-business agreements”.

45  Subsection 83BE(3)

Repeal the subsection.

46  Division 2 of Part IVA

Repeal the Division.

47  Section 83BS

Repeal the section, substitute:

83BS  Identity of parties to AWAs not to be disclosed

             (1)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the information is protected information; and

                     (c)  the discloser has reasonable grounds to believe that the information will identify another person as being, or having been, a party to an AWA; and

                     (d)  the disclosure is not made by the discloser in the course of performing functions or duties as a workplace agreement official; and

                     (e)  the disclosure is not required or permitted by this Act, by another Act, by regulations made for the purposes of another provision of this Act or by regulations made for the purposes of another Act; and

                      (f)  the person whose identity is disclosed has not, in writing, authorised the disclosure.

Penalty:  Imprisonment for 6 months.

             (2)  In this section:

protected information, in relation to a person, means information that the person acquired:

                     (a)  in the course of performing functions or duties, or exercising powers, as a workplace agreement official; or

                     (b)  from a workplace agreement official who acquired the information as mentioned in paragraph (a).

workplace agreement official means:

                     (a)  the Employment Advocate; or

                     (b)  a delegate of the Employment Advocate; or

                     (c)  a member of the staff assisting the Employment Advocate under section 83BD.

48  Section 83BT

Omit “AWAs or ancillary documents”, substitute “workplace agreements”.

49  Part V (heading)

Repeal the heading, substitute:

Part VWorkplace inspectors

50  Subsection 84(1)

Before “inspectors”, insert “workplace”.

51  Subsection 84(2)

Repeal the subsection, substitute:

             (2)  The Minister may, by instrument, appoint as a workplace inspector:

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

                     (b)  a person, other than a person mentioned in paragraph (a).

52  Subsection 84(3)

Repeal the subsection, substitute:

             (3)  A person appointed under paragraph (2)(a) is appointed for the period specified in regulations made for the purposes of this subsection.

          (3A)  A person appointed under paragraph (2)(b) is appointed for the period specified in the person’s instrument of appointment, which must not be longer than the period specified in regulations made for the purposes of this subsection.

53  Subsection 84(4)

Omit “an inspector has such powers and functions in relation to the observance of this Act, awards and certified agreements as are conferred by this Act”, substitute “a workplace inspector has the powers and functions conferred on a workplace inspector by this Act or by the regulations or by another Act”.

54  Subsection 84(4A)

Omit “an inspector has such powers and functions in relation to the observance of this Act, awards and certified agreements as are conferred on an inspector by this Act and”, substitute “a workplace inspector has only such of the powers and functions mentioned in subsection (4) as are”.

55  Subsection 84(5)

Omit “by notice published in the Gazette”, substitute “by legislative instrument”.

56  Subsection 84(6)

Omit “An inspector shall”, substitute “A workplace inspector must”.

57  Subsection 85(2)

Omit “shall”, substitute “must”.

58  At the end of section 85

Add:

             (3)  A person commits an offence if:

                     (a)  the person ceases to be a workplace inspector; and

                     (b)  the person does not return the person’s identity card to the Secretary of the Department within 14 days of so ceasing.

Penalty:  1 penalty unit.

             (4)  Subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

59  Subsection 86(1)

Repeal the subsection, substitute:

Purpose for which powers of inspectors can be exercised

             (1)  The powers of a workplace inspector under this section may be exercised:

                     (a)  for the purpose of determining whether any of the following are being, or have been, observed:

                              (i)  workplace agreements;

                             (ii)  awards;

                            (iii)  the Australian Fair Pay and Conditions Standard;

                            (iv)  minimum entitlements and orders under Part VIA;

                             (v)  the requirements of this Act (other than section 541) and the regulations; or

                     (b)  for the purposes of a provision of the regulations that confers powers or functions on inspectors.

Note:          Workplace determinations are treated for the purposes of the Act as if they were collective agreements (see section 113F). Undertakings are treated the same way (see section 103M). This means that inspectors also have powers in relation to those instruments.

60  Subparagraph 86(1A)(a)(i)

Omit “an award or certified agreement”, substitute “an instrument or entitlement mentioned in subparagraphs (1)(a)(i) to (iv)”.

61  Subparagraph 86(1A)(b)(iii)

Omit “any employee”, substitute “any person”.

62  At the end of paragraph 86(1A)(b)

Add:

                            (vi)  to require a person to tell the inspector who has custody of a document; and

63  Paragraph 86(1A)(c)

Omit “to the inspector a document relevant to the purpose set out in subsection (1)”, substitute “a document to the inspector”.

64  At the end of subsection 86(1A)

Add:

Note:          Contravening a requirement under subparagraph (b)(iv) or paragraph (c) may be an offence under section 305.

65  Subsection 86(4B)

Omit “paragraph (1A)(c)”, substitute “this section”.

66  Subsection 86(4C)

Omit “paragraph (1A)(c)”, substitute “this section”.

67  Subsections 86(6) and (7)

Repeal the subsections, substitute:

In Australia’s exclusive economic zone

             (6)  Subsection (1A) extends to premises, and places of business, that:

                     (a)  are in Australia’s exclusive economic zone; and

                     (b)  are owned or occupied by an Australian employer.

This subsection has effect subject to Australia’s obligations under international law concerning jurisdiction over ships that fly the flag of a foreign country and aircraft registered under the law of a foreign country.

On Australia’s continental shelf outside exclusive economic zone

             (7)  Subsection (1A) also extends to premises, and places of business, that:

                     (a)  are outside the outer limits of Australia’s exclusive economic zone, but in, on or over a part of Australia’s continental shelf that is prescribed by the regulations for the purposes of this subsection; and

                     (b)  are connected with the exploration of the continental shelf or the exploitation of its natural resources; and

                     (c)  meet the requirements that are prescribed by the regulations for that part.

Note:          The regulations may prescribe different requirements relating to different parts of Australia’s continental shelf. The regulations may need to do so to give effect to Australia’s international obligations.

68  After section 86

Insert:

86A  Disclosure of information by inspectors

             (1)  A workplace inspector may disclose information acquired by the inspector in the course of exercising powers, or performing functions, as a workplace inspector, if the inspector considers on reasonable grounds that it is necessary or appropriate to do so in the course of exercising his or her powers, or performing his or her functions, as an inspector.

             (2)  A workplace inspector may disclose information to an officer of the Department administered by the Minister who administers the Migration Act 1958 if the inspector considers on reasonable grounds that the disclosure of the information is likely to assist the officer in the administration of that Act.

             (3)  The regulations may authorise workplace inspectors to disclose information of the prescribed kind, to officers of the Commonwealth of the prescribed kind, for prescribed purposes.

             (4)  A workplace inspector may disclose information to an officer of a State who has powers, duties or functions that relate to the administration of a workplace relations or other system relating to terms and conditions, or incidents, of employment, if the inspector considers on reasonable grounds that the disclosure of the information is likely to assist the officer in the administration of that system.

69  Section 87

Repeal the section.

70  Section 88

Repeal the section.

71  Parts VA and VI

Repeal the Parts, substitute:

Part VAThe Australian Fair Pay and Conditions Standard

Division 1Preliminary

89  Purpose of Part

             (1)  The purpose of this Part is to set out key minimum entitlements of employment.

             (2)  The key minimum entitlements relate to the following matters:

                     (a)  basic rates of pay and casual loadings (see Division 2);

                     (b)  maximum ordinary hours of work (see Division 3);

                     (c)  annual leave (see Division 4);

                     (d)  personal leave (see Division 5);

                     (e)  parental leave and related entitlements (see Division 6).

             (3)  The provisions of Divisions 2 to 6 constitute the Australian Fair Pay and Conditions Standard.

89A  Operation of the Australian Fair Pay and Conditions Standard

             (1)  The Australian Fair Pay and Conditions Standard provides key minimum entitlements of employment for the employees to whom it applies.

             (2)  The Australian Fair Pay and Conditions Standard prevails over a workplace agreement or a contract of employment that operates in relation to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee.

             (3)  The regulations may prescribe:

                     (a)  what a particular respect is or is not for the purposes of subsection (2); or

                     (b)  the circumstances in which the Australian Fair Pay and Conditions Standard provides or does not provide a more favourable outcome in a particular respect.

Example 1: The way in which particular amounts of annual leave are accrued could be prescribed as a particular respect under paragraph (3)(a).

Example 2: Both the Standard and a workplace agreement require an employee to attest to certain matters in a statutory declaration made for the purposes of maternity leave. The matters required by the agreement are different in some respects from those set out in the Standard. Regulations made for the purposes of paragraph (3)(b) could prescribe the matters to be attested in a statutory declaration as a circumstance in which the Standard is not taken to provide a more favourable outcome.

89B  Australian Fair Pay and Conditions Standard cannot be excluded

                   A term of a workplace agreement or a contract has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard or any part of it.

89C  This Part does not apply in relation to prescribed employees in Australia

             (1)  This Part does not apply in relation to:

                     (a)  an employee in Australia who is prescribed by the regulations as an employee in relation to whom this Part does not apply; or

                     (b)  the employee’s employer.

Note 1:       In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

Note 2:       The regulations may prescribe the employee by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003.

             (2)  Before the Governor-General makes regulations prescribing an employee as an employee in relation to whom this Part does not apply, the Minister must be satisfied that this Part should not apply to the employee because there is not a sufficient connection between the employee’s employment and Australia.

89D  Extraterritorial extension

             (1)  This Part, and the rest of this Act so far as it relates to this Part, extend:

                     (a)  to an employee outside Australia who meets any of the conditions in this section; and

                     (b)  to the employee’s employer (whether the employer is in or outside Australia); and

                     (c)  to acts, omissions, matters and things relating to the employee (whether they are in or outside Australia).

Note:          In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

In Australia’s exclusive economic zone

             (2)  One condition is that the employee is in Australia’s exclusive economic zone and either:

                     (a)  is an employee of an Australian employer and is not prescribed by the regulations as an employee to whom this subsection does not apply; or

                     (b)  is an employee prescribed by the regulations as an employee to whom this subsection applies.

Note:          The regulations may prescribe the employee by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003.

On Australia’s continental shelf outside exclusive economic zone

             (3)  Another condition is that the employee:

                     (a)  is outside the outer limits of Australia’s exclusive economic zone, but is in, on or over a part of Australia’s continental shelf that is prescribed by the regulations for the purposes of this subsection, in connection with the exploration of the continental shelf or the exploitation of its natural resources; and

                     (b)  meets the requirements that are prescribed by the regulations for that part.

Note:          The regulations may prescribe different requirements relating to different parts of Australia’s continental shelf. The regulations may need to do so to give effect to Australia’s international obligations.

Outside Australia’s exclusive economic zone and continental shelf

             (4)  Another condition is that the employee:

                     (a)  is neither in Australia’s exclusive economic zone nor in, on or over a part of Australia’s continental shelf described in paragraph (3)(a); and

                     (b)  is an employee of an Australian employer; and

                     (c)  is an Australian-based employee or bound by a workplace agreement that binds the employer too; and

                     (d)  is not prescribed by the regulations as an employee to whom this subsection does not apply.

             (5)  Another condition is that the employee:

                     (a)  is neither in Australia’s exclusive economic zone nor in, on or over a part of Australia’s continental shelf described in paragraph (3)(a); and

                     (b)  is an Australian-based employee of an employer that is not an Australian employer; and

                     (c)  is bound by a workplace agreement that binds the employer too; and

                     (d)  is not prescribed by the regulations as an employee to whom this subsection does not apply.

Definition

             (6)  In this section:

this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.

89E  Model dispute resolution process

                   The model dispute resolution process applies to a dispute about entitlements under Divisions 3 to 6.

Note:          The model dispute resolution process is set out in Part VIIA.

Division 2Wages

Subdivision APreliminary

90  AFPC’s wage-setting parameters etc.

                   In exercising any of its powers under this Division, the AFPC must act in accordance with section 7J (AFPC’s wage-setting parameters).

Note 1:       Any additional considerations or limitations on the exercise of the AFPC’s powers are set out in the various sections of this Division (including sections 90A and 90ZR).

Note 2:       The AFPC must ensure that APCSs do not (after 3 years) continue to contain coverage rules that are described by reference to State or Territory boundaries—see section 90ZB.

90A  AFPC to have regard to recommendations of Award Review Taskforce

                   In exercising any of its powers under this Division, the AFPC is to have regard to any relevant recommendations made by the Award Review Taskforce.

90B  Definitions

                   In this Division:

APCS means a preserved APCS or a new APCS.

Note:          APCS is short for Australian Pay and Classification Scale.

APCS piece rate employee means an employee in relation to whom the following paragraphs are satisfied:

                     (a)  the employee’s employment is covered by an APCS;

                     (b)  the rate provisions of the APCS determine one or more basic piece rates of pay that apply to the employment of the employee.

basic periodic rate of pay means a rate of pay for a period worked (however the rate is described) that does not include incentive-based payments and bonuses, loadings, monetary allowances, penalty rates or any other similar separately identifiable entitlements. The meaning of basic periodic rate of pay is also affected by section 90ZF.

Note:          Most of the kinds of entitlement excluded from this definition are allowable award matters (see section 116).

basic piece rate of pay means a piece rate of pay, other than a piece rate of pay that is payable, as an incentive-based payment or bonus, in addition to a basic periodic rate of pay.

Note:          Incentive-based payments and bonuses are allowable award matters.

casual loading: the meaning of casual loading is affected by section 90ZF.

casual loading provisions has the meaning given by section 90C.

classification has the meaning given by section 90D.

coverage provisions means:

                     (a)  for a pre-reform wage instrument—all provisions (whether of that instrument or of another instrument or law), as in force on the reform comparison day, that would have affected the determination of whether the employment of any particular employee was covered by the instrument on that day; or

                     (b)  for an APCS—provisions of the APCS that determine whether the employment of a particular employee is covered by the APCS.

Note:          For a preserved APCS, the coverage provisions will (at least initially) be the coverage provisions for the pre-reform wage instrument from which the APCS is derived (see paragraph 90ZD(1)(f)).

covered: for when the employment of a particular employee is covered by a particular APCS, see sections 90Z and 90ZA.

current circumstances of employment, in relation to an employee, includes any current circumstance of or relating to the employee’s employment.

default casual loading percentage has the meaning given by subsection 90I(1).

derived from: for when a preserved APCS is derived from a particular pre-reform wage instrument, see subsection 90ZD(2).

employee with a disability means an employee who is qualified for a disability support pension as set out in section 94 or 95 of the Social Security Act 1991, or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.

FMW for an employee: for when there is an FMW for an employee, see section 90P.

Note:          FMW is short for Federal Minimum Wage.

junior employee means an employee who is under the age of 21.

new APCS has the meaning given by subsection 90ZJ(1).

piece rate of pay means a rate of pay that is expressed as a rate for a quantifiable output or task (as opposed to being expressed as a rate for a period worked).

Note:          The following are examples of piece rates of pay:

(a)           a rate of pay calculated by reference to number of articles produced;

(b)           a rate of pay calculated by reference to number of kilometres travelled;

(c)           a rate of pay calculated by reference to number of articles delivered;

(d)           a rate of pay calculated by reference to number of articles sold;

(e)           a rate of pay calculated by reference to number of tasks performed.

pre-reform federal wage instrument means:

                     (a)  an award (as defined in subsection 4(1) of this Act as in force immediately before the reform commencement) as in force immediately before the reform commencement, but not including:

                              (i)  an order under section 120A of this Act as then in force; or

                             (ii)  an award under section 170MX of this Act as then in force; or

                     (b)  sections 552 and 555 of this Act as in force immediately before the reform commencement; or

                     (c)  a law, or a provision of a law, of the Commonwealth, being a law or provision:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or

                     (d)  an instrument made under a law, or a provision of a law, of the Commonwealth, being an instrument:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph.

Note:          For when regulations made for the purpose of paragraph (c) or (d) may be expressed to take effect, see section 90ZI.

pre-reform non-federal wage instrument means a pre-reform State wage instrument or a pre-reform Territory wage instrument.

pre-reform State wage instrument means:

                     (a)  a State award (as defined in subsection 4(1) of this Act as in force immediately before the reform commencement) as in force immediately before the reform commencement; or

                     (b)  a law, or a provision of a law, of a State, being a law or provision:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that entitled employees, or a particular class of employees, to payment of a particular rate of pay; or

                     (c)  a law, or a provision of a law, of a State, being a law or provision:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or

                     (d)  an instrument made under a law, or a provision of a law, of a State, being an instrument:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph.

Note:          For when regulations made for the purpose of paragraph (c) or (d) may be expressed to take effect, see section 90ZI.

pre-reform Territory wage instrument means:

                     (a)  a law, or a provision of a law, of a Territory, being a law or provision:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that entitled employees, or a particular class of employees, to payment of a particular rate of pay; or

                     (b)  a law, or a provision of a law, of a Territory, being a law or provision:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or

                     (c)  an instrument made under a law, or a provision of a law, of a Territory, being an instrument:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph.

Note:          For when regulations made for the purpose of paragraph (b) or (c) may be expressed to take effect, see section 90ZI.

pre-reform wage instrument means a pre-reform federal wage instrument or a pre-reform non-federal wage instrument.

preserved APCS has the meaning given by subsection 90ZD(1).

pro-rata disability pay method means a method for determining a rate of pay for employees with a disability, being a method that determines the rate by reference to the relative capacities of those employees.

rate provisions has the meaning given by section 90E.

reform comparison day means the day before the day on which the reform commencement occurs.

special FMW has the meaning given by section 90S.

standard FMW has the meaning given by section 90Q.

90C  Meaning of casual loading provisions

             (1)  For the purposes of this Division, casual loading provisions, of a pre-reform wage instrument or an APCS, are provisions of the instrument or APCS that determine a casual loading payable to an employee, or an employee of a particular classification, in addition to a basic periodic rate of pay.

             (2)  The means by which such provisions may determine a casual loading include the following, or any combination of any of the following:

                     (a)  direct specification of the loading;

                     (b)  identification of the loading by reference to other provisions (whether or not of the same instrument or APCS);

                     (c)  direct specification, or identification by reference to other provisions (whether or not of the same instrument or APCS), of a method for calculating the loading.

             (3)  Subject to the regulations, a method referred to in subsection (2) may provide for a person or body to determine a loading in a particular way. For the purposes of this Division, a loading determined by the person or body in that way is taken to be a loading determined by the provisions that specify or identify the method.

90D  Meaning of classification

             (1)  For the purposes of this Division, a classification of employees is a classification or category of employees, however described in the pre-reform wage instrument or APCS concerned.

             (2)  A classification or category of employees may be described by reference to matters including (but not limited to) any of the following, or any combination of any of the following:

                     (a)  the nature of work performed by employees;

                     (b)  the skills or qualifications or employees;

                     (c)  the level of responsibility or experience of employees;

                     (d)  whether employees are junior employees, or a particular class of junior employees;

                     (e)  whether employees are employees with a disability, or are a particular class of employees with a disability;

                      (f)  whether employees are employees to whom training arrangements, or are a particular class of employees to whom training arrangements, apply.

90E  Meaning of rate provisions

             (1)  For the purposes of this Division, rate provisions, of a pre-reform wage instrument or an APCS, are provisions of the instrument or APCS that determine a basic periodic rate of pay, or basic piece rates of pay, payable to an employee, or an employee of a particular classification.

             (2)  The means by which such provisions may determine a basic periodic rate of pay, or a basic piece rate of pay, include the following, or any combination of any of the following:

                     (a)  direct specification of a rate;

                     (b)  identification of a rate by reference to other provisions (whether or not of the same instrument or APCS);

                     (c)  direct specification, or identification by reference to other provisions (whether or not of the same instrument or APCS), of a method for calculating a rate.

             (3)  Subject to the regulations, a method referred to in subsection (2) may provide for a person or body to determine a rate in a particular way. For the purposes of this Division, a rate determined by the person or body in that way is taken to be a rate determined by the provisions that specify or identify the method.

Subdivision BGuarantee of basic rates of pay

90F  The guarantee

Guarantee of APCS basic periodic rates of pay

             (1)  If:

                     (a)  the employment of an employee is covered by an APCS; and

                     (b)  the employee is not an APCS piece rate employee;

the employee must be paid a basic periodic rate of pay for each hour worked (pro-rated for parts of hours worked) that is at least equal to the basic periodic rate of pay (the guaranteed basic periodic rate of pay) that is payable to the employee under the APCS.

Note:          For provisions affecting what hours count as hours worked for this subsection, see section 90G.

Guarantee of APCS piece rates of pay

             (2)  If:

                     (a)  the employment of an employee is covered by an APCS; and

                     (b)  the employee is an APCS piece rate employee;

the employee must be paid basic piece rates of pay for his or her work that are at least equal to the basic piece rates of pay (the guaranteed basic piece rates of pay) that are payable to the employee under the APCS.

Guarantee of standard FMW

             (3)  If:

                     (a)  the employment of an employee is not covered by an APCS; and

                     (b)  the employee is not a junior employee, an employee with a disability, or an employee to whom a training arrangement applies;

the employee must be paid a basic periodic rate of pay for each hour worked (pro-rated for parts of hours worked) that is at least equal to the standard FMW (the guaranteed basic periodic rate of pay).

Note:          For provisions affecting what hours count as hours worked for this subsection, see section 90G.

Guarantee of special FMW

             (4)  If:

                     (a)  the employment of an employee is not covered by an APCS; and

                     (b)  the employee is a junior employee, an employee with a disability, or an employee to whom a training arrangement applies; and

                     (c)  there is a special FMW for the employee;

the employee must be paid a basic periodic rate of pay for each hour worked (pro-rated for parts of hours worked) that is at least equal to that special FMW (the guaranteed basic periodic rate of pay).

Note:          For provisions affecting what hours count as hours worked for this subsection, see section 90G.

90G  Provisions affecting what hours count as hours worked

Hours worked generally means hours required to be worked

             (1)  Subject to subsection (2), for the purpose of subsections 90F(1), (3) and (4), a reference to an hour (or part of an hour) worked by an employee is a reference to an hour (or part of an hour) that the employee worked and that he or she was required to work.

Hours worked includes hours that would have been worked on public holidays (but not for casual employees)

             (2)  For the purpose of the application of subsection 90F(1), (3) or (4) in relation to an employee who is not a causal employee, a reference to an hour (or part of an hour) worked includes a reference to an hour (or part of an hour) that would have been worked by the employee on a particular day, had it not been a public holiday.

             (3)  For the purpose of subsection (2), a public holiday is a day declared by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of that State or Territory, as a public holiday by people who work in that State, Territory or region, other than:

                     (a)  a union picnic day; or

                     (b)  a day, or kind of day, that is excluded by regulations made for the purposes of this paragraph from counting as a public holiday.

An APCS may determine that hours attending off-the-job training count as hours worked

             (4)  If an APCS includes provisions that determine, in relation to employees to whom training arrangements apply, whether hours attending off-the-job training (including hours attending an educational institution) count as hours for which a basic periodic rate of pay is payable, those provisions have effect for the purposes of subsection 90F(1).

Hours worked do not include periods of industrial action during which section 114 prohibits payment

             (5)  For the purpose of subsections 90F(1), (3) and (4), a reference to an hour (or part of an hour) worked by an employee does not include a reference to any period in relation to which the employer is prohibited by section 114 from making a payment to the employee.

Subdivision CGuarantee of casual loadings

90H  The guarantee

             (1)  This section applies to a casual employee for whom, under section 90F, there is a guaranteed basic periodic rate of pay, other than a casual employee in relation to whom the following paragraphs are satisfied:

                     (a)  subsection 90F(1) applies to the employee;

                     (b)  the APCS that covers the employment of the employee does not contain casual loading provisions under which a casual loading is payable to the employee;

                     (c)  the employee’s employment is not covered by a collective agreement or an AWA.

             (2)  The casual employee must be paid, in addition to his or her actual basic periodic rate of pay, a casual loading that is at least equal to the guaranteed casual loading percentage of that actual basic periodic rate of pay.

Note:          The employee’s actual basic periodic rate of pay should at least equal the guaranteed basic periodic rate of pay under section 90F.

             (3)  The guaranteed casual loading percentage is:

                     (a)  if the guaranteed basic periodic rate of pay for the employee under section 90F is a basic periodic rate of pay payable under an APCS, and the employee’s employment is not covered by a collective agreement or an AWA—the percentage that is the casual loading payable to the employee under casual loading provisions of the APCS; or

                     (b)  if the guaranteed basic periodic rate of pay for the employee under section 90F is a basic periodic rate of pay payable under an APCS, and the employee’s employment is covered by a collective agreement or an AWA—the default casual loading percentage (regardless of what casual loading, if any, might otherwise be payable under casual loading provisions of the APCS); or

                     (c)  if the guaranteed basic periodic rate of pay is the FMW for the employee—the default casual loading percentage.

90I  Default casual loading percentage

             (1)  The default casual loading percentage is 20%, subject to the power of the AFPC to adjust the percentage.

             (2)  Any adjustment of the default casual loading percentage must be such that the adjusted rate is still expressed as a percentage.

90J  Adjustment of default casual loading percentage

             (1)  The AFPC may adjust the default casual loading percentage.

             (2)  The power to adjust the default casual loading percentage is subject to:

                     (a)  sections 90 and 90A; and

                     (b)  subsection 90I(2); and

                     (c)  section 90K; and

                     (d)  section 90N; and

                     (e)  section 90ZR.

90K  Only one default casual loading percentage

                   The AFPC must ensure that there is only ever one default casual loading percentage at any one time.

Subdivision DGuarantee against reductions below pre-reform commencement rates

90L  The guarantee where only basic periodic rates of pay are involved

             (1)  This section applies if:

                     (a)  the AFPC proposes to exercise any of the following powers (subject to subsection (4)):

                              (i)  adjusting the standard FMW;

                             (ii)  adjusting a preserved APCS;

                            (iii)  determining or adjusting a new APCS;

                            (iv)  revoking a preserved or new APCS; and

                     (b)  immediately after the exercise of the power takes effect, there will, under section 90F, be a guaranteed basic periodic rate of pay (the resulting guaranteed basic periodic rate) for a particular employee affected by the exercise of the power; and

                     (c)  immediately after the reform commencement (and after any relevant adjustments mentioned in sections 90ZE to 90ZH took effect), there would, under section 90F, have been a guaranteed basic periodic rate of pay (the commencement guaranteed basic periodic rate) for the employee if the employee had at that time been in his or her current circumstances of employment.

             (2)  The AFPC must ensure that the result of the exercise of the power, so far as it affects the employee, is such that the resulting guaranteed basic periodic rate of pay for the employee will not be less than the commencement guaranteed basic periodic rate of pay for the employee.

             (3)  In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.

             (4)  This section does not limit the AFPC’s power to make APCSs for the purpose of section 90ZP or 90ZQ, or to adjust APCSs made for the purpose of either of those sections.

90M  The guarantee where basic piece rates of pay are involved

             (1)  This section applies if:

                     (a)  the AFPC proposes to exercise any of the following powers (subject to subsection (4)):

                              (i)  adjusting the standard FMW;

                             (ii)  adjusting a preserved APCS;

                            (iii)  determining or adjusting a new APCS;

                            (iv)  revoking a preserved or new APCS; and

                     (b)  either or both of the following subparagraphs apply in relation to a particular employee who will be affected by the exercise of the power:

                              (i)  immediately after the exercise of the power takes effect, there will, under section 90F, be guaranteed basic piece rates of pay for the employee;

                             (ii)  immediately after the reform commencement (and after any relevant adjustments mentioned in sections 90ZE to 90ZH took effect), there would, under section 90F, have been guaranteed basic piece rates of pay for the employee if the employee had at that time been in his or her current circumstances of employment.

             (2)  The AFPC must exercise the power in a way that it considers will not result in an employee of average capacity, after the exercise of the power takes effect, being entitled to less basic pay per week than he or she would have been entitled to because of this Division immediately after the reform commencement if the employee had at that time been in his or her current circumstances of employment.

             (3)  In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.

             (4)  This section does not limit the AFPC’s power to make APCSs for the purpose of section 90ZP or 90ZQ, or to adjust APCSs made for the purpose of either of those sections.

90N  The guarantee for casual loadings that apply to basic periodic rates of pay

             (1)  This section applies in relation to the exercise by the AFPC of any of the following powers:

                     (a)  adjusting a preserved APCS;

                     (b)  determining or adjusting a new APCS;

                     (c)  revoking a preserved or new APCS;

                     (d)  adjusting the default casual loading percentage.

             (2)  The AFPC must ensure that the result of the exercise of the power, so far as it affects any particular employee to whom this Division applies (other than an employee who will, after the exercise of the power, be an APCS piece rate employee), is such that the resulting guaranteed casual loading percentage for the employee will not be less than the commencement guaranteed casual loading percentage for the employee.

             (3)  For the purposes of subsection (2):

                     (a)  the resulting guaranteed casual loading percentage for the employee is the guaranteed casual loading percentage referred to in section 90H for the employee, as it will be immediately after the exercise of the power takes effect; and

                     (b)  subject to subsection (4), the commencement guaranteed casual loading percentage for the employee is the percentage that, immediately after the reform commencement (and after any relevant adjustments mentioned in sections 90ZE to 90ZH took effect), would have been the guaranteed casual loading percentage referred to in section 90H for the employee if the employee had, at that time, been in his or her current circumstances of employment.

             (4)  If:

                     (a)  the employee is a casual employee; and

                     (b)  the resulting guaranteed casual loading percentage is the default casual loading percentage because of subsection 90H(3);

the commencement guaranteed casual loading percentage for the employee is taken to be the default casual loading percentage, as it was immediately after the reform commencement.

             (5)  In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.

Subdivision EThe guarantee against reductions below Federal Minimum Wages (FMWs)

90O  The guarantee

             (1)  Subject to subsection (3), when exercising its power to make an APCS, or to adjust an APCS, the AFPC must ensure that the rate provisions in the APCS are such that the resulting APCS basic periodic rate of pay for each employee:

                     (a)  whose employment will be covered by the APCS immediately after the exercise of the power; and

                     (b)  for whom there will be an FMW immediately after the exercise of the power; and

                     (c)  who will not be an APCS piece rate employee immediately after the exercise of the power;

is not less than that FMW.

Note 1:       This section does not apply to rates determined by rate provisions as initially included in a preserved APCS from a pre-reform wage instrument as mentioned paragraph 90ZD(1)(a). However, this section does apply to any subsequent adjustment of those rate provisions, or to any new APCS that replaces the preserved APCS.

Note 2:       See also section 90ZC (deeming APCS rates to at least equal FMW rates after first exercise of powers under this Division by the AFPC).

             (2)  For the purposes of subsection (1), the resulting APCS basic periodic rate of pay for an employee is the basic periodic rate of pay that will be payable to the employee under the APCS immediately after the exercise of the power by the AFPC takes effect.

             (3)  The requirement in subsection (1) does not apply in relation to a special FMW unless the determination of the special FMW includes a statement to the effect that the special FMW is a minimum standard for all APCSs, for a class of APCSs that includes the APCS or for the particular APCS (see section 90T).

             (4)  In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.

Subdivision FFederal Minimum Wages (FMWs)

90P  When is there an FMW for an employee?

             (1)  There is an FMW for an employee if the employee is not:

                     (a)  a junior employee; or

                     (b)  an employee with a disability; or

                     (c)  an employee to whom a training arrangement applies; or

                     (d)  an APCS piece rate employee.

The FMW for the employee is the standard FMW.

             (2)  There is an FMW for a junior employee (other than an APCS piece rate employee) if the AFPC has determined a special FMW that applies to all junior employees, or to a class of junior employees that includes the employee. The FMW for the employee is that special FMW.

             (3)  There is an FMW for an employee with a disability (other than an APCS piece rate employee) if the AFPC has determined a special FMW that applies to all employees with a disability, or to a class of employees with a disability that includes the employee. The FMW for the employee is that special FMW.

             (4)  There is an FMW for an employee to whom a training arrangement applies (other than an APCS piece rate employee) if the AFPC has determined a special FMW that applies to all employees to whom training arrangements apply, or to a class of employees to whom training arrangements apply that includes the employee. The FMW for the employee is that special FMW.

90Q  Standard FMW

             (1)  The standard FMW is $12.75 per hour, subject to the power of the AFPC to adjust the standard FMW.

             (2)  Any adjustment of the standard FMW must be such that the adjusted rate is still expressed as a monetary amount per hour.

90R  Adjustment of standard FMW

             (1)  The AFPC may adjust the standard FMW.

             (2)  The power to adjust the standard FMW is subject to:

                     (a)  sections 90 and 90A; and

                     (b)  section 90L; and

                     (c)  section 90M; and

                     (d)  subsection 90Q(2); and

                     (e)  section 90ZR.

90S  Determination of special FMWs

                   The AFPC may determine a special FMW for any of the following:

                     (a)  all junior employees, or a class of junior employees;

                     (b)  all employees with a disability, or a class of employees with a disability;

                     (c)  all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

90T  AFPC to state whether special FMW is a minimum standard for APCSs

             (1)  When determining a special FMW, the AFPC must consider whether the FMW is to operate as a minimum standard for all, or one or more, APCSs.

             (2)  If the AFPC considers that the special FMW should operate as a minimum standard for all APCSs, the AFPC must, in the instrument determining the special FMW, include a statement to that effect.

             (3)  If the AFPC considers that the special FMW should operate as a minimum standard for one or more (but not all) APCSs, the AFPC must, in the instrument determining the special FMW, include a statement to that effect that identifies those APCSs, whether by description of a class or identification of the particular APCS or APCSs.

             (4)  If the AFPC considers that the special FMW should not operate as a minimum standard for any APCS, the AFPC must, in the instrument determining the special FMW, include a statement to that effect.

90U  How a special FMW is to be expressed

             (1)  A special FMW is to be expressed in a way that produces a monetary amount per hour.

             (2)  The means by which a special FMW may be expressed to produce a monetary amount per hour include:

                     (a)  specification of a monetary amount per hour; or

                     (b)  specification of a method for calculating a monetary amount per hour.

             (3)  Any adjustment of a special FMW must be such that the adjusted special FMW still complies with this section.

90V  Adjustment of a special FMW

             (1)  The AFPC may adjust a special FMW.

             (2)  The power to adjust a special FMW is subject to:

                     (a)  sections 90 and 90A; and

                     (b)  section 90U; and

                     (c)  section 90ZR.

             (3)  The AFPC may adjust statements of a kind mentioned in section 90T that are included in the instrument determining the special FMW.

Subdivision GAustralian Pay and Classification Scales (APCSs): general provisions

90W  What is an APCS?

             (1)  An APCS is a set of provisions relating to pay and loadings for particular employees that complies with this Subdivision.

             (2)  An APCS is either:

                     (a)  a preserved APCS (see section 90ZD); or

                     (b)  a new APCS (see section 90ZJ).

90X  What must or may be in an APCS?

             (1)  An APCS must contain:

                     (a)  either or both of the following:

                              (i)  rate provisions determining basic periodic rates of pay for employees whose employment is covered by the APCS;

                             (ii)  rate provisions determining basic piece rates of pay for employees whose employment is covered by the APCS; and

                     (b)  if the rate provisions determine different rates of pay for employees of different classifications—provisions describing those classifications; and

                     (c)  coverage provisions.

             (2)  An APCS may also contain:

                     (a)  casual loading provisions determining casual loadings for employees whose employment is covered by the APCS and for whom there are not basic piece rates of pay; and

                     (b)  if the casual loading provisions determine different casual loadings for employees of different classifications—provisions describing those classifications; and

                     (c)  provisions that determine, in relation to employees to whom training arrangements apply, whether hours attending off-the-job training (including hours attending an educational institution) count as hours for which a basic periodic rate of pay is payable; and

                     (d)  other incidental provisions.

             (3)  Rate provisions or casual loading provisions in an APCS must not include provisions under which a rate or casual loading provided for by the APCS will or may be increased by operation of the provisions and without anyone having to take any other action.

Note:          This does not prevent an APCS, or an adjustment of an APCS, from being expressed to take effect at a future date. However, it does prevent an APCS from containing provisions under which (for example):

(a)           there will be one or more specified increases of a rate or loading at a specified future time or times; or

(b)           rates of pay or loading are indexed periodically.

             (4)  The AFPC must not include in a new APCS, or adjust a preserved or new APCS so that it includes, provisions that:

                     (a)  determine whether an employer who acquires a business (whether by transfer or in some other way) is covered by the APCS; or

                     (b)  give a person or body a power to make a decision that affects whether a person is covered by the APCS; or

                     (c)  give the Commission a direct or indirect role in determining a rate of pay or loading.

Note:          A preserved APCS may contain provisions referred to in subsection (4) that were contained in the pre-reform wage instrument from which the APCS is derived, but the effect of those provisions is limited by sections 90Z and 90ZE.

             (5)  An APCS must not contain any provisions that purport to limit the duration of the APCS.

             (6)  Subject to the regulations, an APCS must not contain any other provisions.

90Y  How pay rates and loadings are to be expressed in an APCS

             (1)  Rate provisions in an APCS must be such that basic periodic rates of pay determined by the provisions are expressed as a monetary amount per hour.

             (2)  Rate provisions in an APCS must be such that basic piece rates of pay determined by the provisions are expressed as a monetary amount.

             (3)  Casual loading provisions in an APCS must be such that casual loadings determined by the provisions are expressed as percentages to be applied to basic periodic rates of pay.

             (4)  The AFPC must ensure these rules are complied with in exercising its powers to adjust a preserved APCS or make or adjust a new APCS.

90Z  When is employment covered by an APCS?

             (1)  The question whether the employment of a particular employee is covered by a particular APCS is to be determined by reference to the coverage provisions of the APCS.

             (2)  If coverage provisions of a preserved APCS include provisions that determine whether an employer who acquires a business (whether by transfer or in some other way) is covered by the APCS, those provisions only have effect, for the purpose of determining whether the employment of a particular employee is covered by the APCS, in relation to acquisitions of businesses that occurred before the reform commencement.

             (3)  If coverage provisions of a preserved APCS include provisions that give a person or body a power to make a decision that affects whether a person is covered by the APCS, those provisions only have effect, for the purpose of determining whether the employment of a particular employee is covered by the APCS, in relation to decisions made by the person or body before the reform commencement.

90ZA  What if 2 or more APCSs would otherwise cover an employee?

             (1)  If, but for this section, 2 or more APCSs would cover the employment of the same employee, the employment of the employee is taken to be covered only by the APCS that prevails.

             (2)  Apply the following rules to work out which APCS prevails:

                     (a)  the preserved APCS derived from the pre-reform federal wage instrument referred to in paragraph (b) of the definition of pre-reform federal wage instrument in section 90B (as that preserved APCS is adjusted from time to time) prevails over any other APCS;

                     (b)  subject to paragraph (a), an APCS made in accordance with Subdivision L (as that APCS is adjusted from time to time) prevails over any other APCS;

                     (c)  subject to paragraphs (a) and (b):

                              (i)  a new APCS prevails over a preserved APCS; and

                             (ii)  a preserved APCS that is derived from a pre-reform federal wage instrument prevails over a preserved APCS that is derived from a pre-reform non-federal wage instrument;

                     (d)  subject to paragraphs (a), (b) and (c):

                              (i)  as between 2 or more APCSs that are made or adjusted on different days, the APCS that is made or adjusted on the more recent day prevails; and

                             (ii)  as between 2 or more APCSs that are made or adjusted on the same day, the APCS that is more generous to the employee prevails.

             (3)  For the purpose of this section, all preserved APCSs are taken to have been made on the day on which the reform commencement occurs.

90ZB  AFPC to remove coverage rules described by reference to State or Territory boundaries

             (1)  The AFPC must (through exercise of its powers to adjust, revoke and make APCSs) ensure that, by the end of the period of 3 years starting on the reform commencement, all APCSs comply with the following rules:

                     (a)  the question whether the employment of a particular employee is covered by an APCS must not be determined by reference to State or Territory boundaries;

                     (b)  the question whether a particular employee is entitled to a particular basic periodic rate of pay, basic piece rate of pay, or casual loading provided for by an APCS must not be determined by reference to State or Territory boundaries.

             (2)  In complying with this obligation, the AFPC must do so in a way that also complies with the rest of this Division, including (in particular) sections 90L, 90M, 90N and 90O.

90ZC  Deeming APCS rates to at least equal FMW rates after first exercise of AFPC’s powers takes effect

             (1)  This section applies at all times after the first exercise of powers by the AFPC under this Division takes effect. If the first exercise of powers involves the exercise of powers taking effect at different times, this section applies at all times after the earliest of those times.

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

                     (a)  there is an FMW for an employee at a particular time when this section applies; and

                     (b)  an APCS that covers the employment of the employee determines a basic periodic rate of pay for the employee at that time that is less than that FMW;

the basic periodic rate of pay determined by the APCS for the employee at that time is taken to be equal to the rate that is the FMW for the employee at that time.

Note:          This subsection ensures that the employee will, under subsection 90F(1), be guaranteed a rate that equals the FMW rate, rather than the lower APCS rate.

             (3)  Subsection (2) does not apply in relation to a special FMW and a particular APCS unless the determination of the special FMW includes a statement to the effect that the special FMW is a minimum standard for all APCSs, for a class of APCSs that includes the APCS or for the particular APCS (see section 90T).

Subdivision HAustralian Pay and Classification Scales: preserved APCSs

90ZD  Deriving preserved APCSs from pre-reform wage instruments

             (1)  If a pre-reform wage instrument contains rate provisions determining one or more basic periodic rates of pay, or basic piece rates of pay, payable to employees, then, from the reform commencement, there is taken to be a preserved APCS that includes (subject to this Subdivision):

                     (a)  those rate provisions; and

                     (b)  if those rate provisions determine different basic periodic rates of pay, or different basic piece rates of pay, for employees of different classifications—the provisions of the instrument that describe those classifications; and

                     (c)  any casual loading provisions of the instrument that determine casual loadings payable to employees, other than employees for whom the instrument provides basic piece rates of pay; and

                     (d)  if the casual loading provisions determine different casual loadings for employees of different classifications—the provisions of the instrument that describe those classifications; and

                     (e)  any provisions of the instrument that determine, in relation to employees to whom training arrangements apply, whether hours attending off-the-job training (including hours attending an educational institution) count as hours for which a basic periodic rate of pay is payable; and

                      (f)  the coverage provisions for the instrument.

             (2)  The preserved APCS is derived from the pre-reform wage instrument.

             (3)  Subject to the regulations, the preserved APCS is taken not to include any provision of the pre-reform wage instrument which, after the adjustments referred to in sections 90ZE to 90ZH take effect, will not comply with the requirements of sections 90X and 90Y.

Note:          For when regulations made for the purpose of subsection (3) may be expressed to take effect, see section 90ZI.

             (4)  The adjustments referred to in sections 90ZE to 90ZH are, subject to the regulations, to be made in the following order:

                     (a)  adjustments referred to in section 90ZE;

                     (b)  adjustments referred to in section 90ZF;

                     (c)  adjustments referred to in section 90ZG;

                     (d)  adjustments referred to in subsection 90ZH(1).

Note:          For when regulations made for the purpose of subsection (4) may be expressed to take effect, see section 90ZI.

90ZE  Notional adjustment: rates and loadings determined as for reform comparison day

Rate provisions

             (1)  Subject to subsections (2) and (3), if rate provisions included in a preserved APCS as mentioned in section 90ZD would, apart from this subsection, determine a basic periodic rate of pay otherwise than by direct specification of the monetary amount of the rate, then the APCS is taken to be adjusted as necessary immediately after the reform commencement so that those rate provisions instead directly specify, as that rate of pay, the rate as determined by the provisions for the reform comparison day.

             (2)  Subsection (1) does not apply to the rate provisions included in the preserved APCS derived from the pre-reform federal wage instrument referred to in paragraph (b) of the definition of pre-reform federal wage instrument in section 90B.

             (3)  If the rate provisions included in a preserved APCS as mentioned in section 90ZD determine a basic periodic rate of pay by (or by referring to) a pro-rata disability pay method, subsection (1) applies to any other rate of pay that the method refers to, but does not otherwise apply to the method.

             (4)  If the rate provisions included in a preserved APCS as mentioned in section 90ZD determine a basic piece rate of pay by (or by referring to) a method, subsection (1) does not apply to the rate provisions that determine that rate.

             (5)  The regulations may provide for other situations in which subsection (1) is not to apply to rate provisions, or is to apply with specified modifications.

Note:          For when regulations made for the purpose of subsection (5) may be expressed to take effect, see section 90ZI.

Casual loading provisions

             (6)  If casual loading provisions included in a preserved APCS as mentioned in section 90ZD would, apart from this subsection, determine a loading otherwise than by direct specification of the loading, then the APCS is taken to be adjusted as necessary immediately after the reform commencement so that those loading provisions instead directly specify, as that loading, the loading as determined by the provisions for the reform comparison day.

90ZF  Notional adjustment: deducing basic periodic rate of pay and casual loading from composite rate

                   If:

                     (a)  a particular rate of pay determined by rate provisions included in a preserved APCS as mentioned in section 90ZD would, apart from this subsection, be a basic periodic rate of pay for a casual employee; and

                     (b)  the rate of pay is, by an amount (the inbuilt casual loading amount), higher than it would have been if the employee had not been a casual employee; and

                     (c)  apart from this subsection, the preserved APCS does not contain casual loading provisions that determine a casual loading for the employee;

the APCS is taken to be adjusted as necessary immediately after the reform commencement so that:

                     (d)  the rate provisions instead determine a basic periodic rate of pay for the employee that equals the rate referred to in paragraph (a), reduced by the inbuilt casual loading amount; and

                     (e)  the preserved APCS contains casual loading provisions that determine a casual loading for the employee that equals the inbuilt casual loading amount.

90ZG  Notional adjustment: how basic periodic rates and loadings are expressed

             (1)  If a particular basic periodic rate of pay determined by rate provisions included in a preserved APCS as mentioned in section 90ZD would, apart from this subsection, be expressed as a monetary amount for a period other than an hour (for example, it would be expressed as a rate for a week), the rate provisions are taken to be adjusted as necessary immediately after the reform commencement so that they produce the result that the rate is expressed as the equivalent monetary hourly rate.

             (2)  If a particular casual loading determined by casual loading provisions included in a preserved APCS as mentioned in section 90ZD would, apart from this subsection, be expressed as an amount of money that is to be added to a basic periodic rate of pay, the loading provisions are taken to be adjusted as necessary immediately after the reform commencement so that they produce the result that the loading is expressed as the equivalent percentage of the basic periodic rate of pay.

90ZH  Regulations dealing with notional adjustments

             (1)  The regulations may provide for other adjustments (including by determining methods for working out adjustments) that are to be taken to be made to a preserved APCS.

             (2)  The regulations may determine methods for working out the adjustments mentioned in any of sections 90ZE to 90ZG, or may otherwise clarify the operation of any aspect of those sections. Those sections have effect accordingly.

Note:          For when regulations made for the purpose of this section may be expressed to take effect, see section 90ZI.

90ZI  Certain regulations relating to preserved APCSs may take effect before registration

             (1)  This section applies to regulations made for the purpose of any of the following provisions:

                     (a)  paragraph (c) or (d) of the definition of pre-reform federal wage instrument in section 90B;

                     (b)  paragraph (c) or (d) of the definition of pre-reform State wage instrument in section 90B;

                     (c)  paragraph (b) or (c) of the definition of pre-reform Territory wage instrument in section 90B;

                     (d)  subsection 90ZD(3) or (4);

                     (e)  subsection 90ZE(5);

                      (f)  section 90ZH.

             (2)  Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations to which this section applies may be expressed to take effect from a date before the regulations are registered under that Act.

             (3)  If regulations to which this section applies take effect before their registration under the Legislative Instruments Act 2003, those regulations are not to be taken into account in determining the effect of sections 90F, 90H, 90L, 90M and 90N in relation to periods of employment before the registration of those regulations.

Subdivision IAustralian Pay and Classification Scales: new APCSs

90ZJ  AFPC may determine new APCSs

             (1)  The AFPC may determine an APCS (a new APCS).

             (2)  The power to determine a new APCS is subject to:

                     (a)  sections 90 and 90A; and

                     (b)  section 90L; and

                     (c)  section 90M; and

                     (d)  section 90N; and

                     (e)  section 90O; and

                      (f)  section 90X; and

                     (g)  section 90Y; and

                     (h)  Subdivision L; and

                      (i)  section 90ZR.

Subdivision JAustralian Pay and Classification Scales: duration, adjustment and revocation of APCSs (preserved or new)

90ZK  Duration of APCSs

                   An APCS continues to have effect indefinitely (subject to revocation or adjustment by the AFPC under this Subdivision, and to the rules in section 90ZA about when one APCS prevails over another).

90ZL  Adjustment of APCSs

             (1)  The AFPC may adjust an APCS.

             (2)  The power to adjust an APCS is subject to:

                     (a)  sections 90 and 90A; and

                     (b)  section 90L; and

                     (c)  section 90M; and

                     (d)  section 90N; and

                     (e)  section 90O; and

                      (f)  section 90X; and

                     (g)  section 90Y; and

                     (h)  Subdivision K; and

                      (i)  section 90ZR.

90ZM  Revocation of APCSs

             (1)  The AFPC may revoke an APCS.

             (2)  The power to revoke an APCS is subject to:

                     (a)  sections 90 and 90A; and

                     (b)  section 90L; and

                     (c)  section 90M; and

                     (d)  section 90N; and

                     (e)  section 90ZR.

Subdivision KAdjustments to incorporate 2005 Safety Net Review etc.

90ZN  Adjustments to incorporate 2005 Safety Net Review

             (1)  This section applies in relation to a preserved APCS if:

                     (a)  the APCS is derived from a pre-reform federal wage instrument referred to in paragraph (a) of the definition of pre-reform federal wage instrument in section 90B; and

                     (b)  either:

                              (i)  in accordance with the Commission’s wage fixing principles that applied at that time, the Commission (before the reform commencement) adjusted the instrument in accordance with the Commission’s 2004 Safety Net Review decision; or

                             (ii)  the instrument took effect after the Commission’s 2004 Safety Net Review decision; and

                     (c)  the Commission did not, before the reform commencement, adjust the instrument in accordance with the Commission’s 2005 Safety Net Review decision.

             (2)  The AFPC must adjust the rate provisions of the preserved APCS to increase rates in accordance with the Commission’s 2005 Safety Net Review decision (if applicable).

             (3)  The adjustment must be made as part of the first exercise of the powers of the AFPC under this Division.

             (4)  After the adjustment has been made, section 90L has effect in relation to an employee as if the adjustment had been made to the pre-reform federal wage instrument immediately before the reform commencement.

Note:          This subsection ensures that the post-adjustment rate is the rate against which compliance with the guarantee in section 90L is measured.

90ZO  Regulations may require adjustments to incorporate other decisions

             (1)  The regulations may require the AFPC to adjust rate provisions in a class of preserved APCSs that are derived from non-federal pre-reform wage instruments to increase rates to take account of decisions that were made before the reform commencement but that were not given effect to in those instruments before the reform commencement.

             (2)  Regulations made for the purposes of subsection (1) may also modify how section 90L applies in relation to any APCSs that are so adjusted.

Subdivision LSpecial provisions relating to APCSs for employees with disabilities and employees to whom training arrangements apply

90ZP  Employees with disabilities

             (1)  If the AFPC considers that there should be an APCS that applies to all, or a class of, employees with a disability that determines basic periodic rates of pay for those employees, the AFPC must determine an APCS containing rate provisions that determine basic periodic rates of pay for those employees, and that so determines those rates as rates specific to employees with disabilities.

Note:          The usual provisions relating to the content of an APCS apply (see Subdivision G).

             (2)  The determination of the APCS must include a statement to the effect that it is determined for the purpose of this section.

Note:          APCSs determined for the purpose of this section generally prevail over all other APCSs—see section 90ZA.

             (3)  The APCS (the special APCS) is taken not to cover the employment of a particular employee if:

                     (a)  there is another APCS that covers the employment of the employee (disregarding the effect that paragraph 90ZA(2)(b) would otherwise have because of the special APCS); and

                     (b)  that other APCS determines a basic periodic rate of pay specifically for a particular class of employees with disabilities; and

                     (c)  the employee’s employment is covered by that other APCS because the employee is a member of that class; and

                     (d)  that class is the same as, or is a subclass of, the employees whose employment would otherwise be covered by the special APCS.

             (4)  This section does not limit the powers of the AFPC to determine APCSs, or to revoke or adjust APCSs (including APCSs determined for the purpose of this section).

90ZQ  Employees to whom training arrangements apply

             (1)  If the AFPC considers that there should be an APCS that applies to all, or a class of, employees to whom training arrangements apply that determines basic periodic rates of pay that are payable to those employees, the AFPC must determine an APCS containing rate provisions that determine basic periodic rates of pay to be payable to those employees, and that so determines those rates as rates specific to employees to whom training arrangements apply.

Note:          The usual provisions relating to the content of an APCS apply (see Subdivision G).

             (2)  The determination of the APCS must include a statement to the effect that it is determined for the purpose of this section.

Note:          APCSs determined for the purpose of this section generally prevail over all other APCSs—see section 90ZA.

             (3)  The APCS (the special APCS) is taken not to cover the employment of a particular employee if:

                     (a)  there is another APCS that covers the employment of the employee (disregarding the effect that paragraph 90ZA(2)(b) would otherwise have because of the special APCS); and

                     (b)  that other APCS determines a basic periodic rate of pay specifically for a particular class of employees to whom training arrangements apply; and

                     (c)  the employee’s employment is covered by that other APCS because the employee is a member of that class; and

                     (d)  that class is the same as, or is a subclass of, the employees whose employment would otherwise be covered by the special APCS.

             (4)  The AFPC must, as part of the first exercise of the powers of the AFPC under this Division, consider whether it should determine APCSs for the purpose of this section. This does not limit the AFPC’s power to consider whether it should determine APCSs for the purpose of this section at other times.

             (5)  This section does not limit the powers of the AFPC to determine APCSs, or to revoke or adjust APCSs (including APCSs determined for the purpose of this section).

Subdivision MMiscellaneous

90ZR  Anti-discrimination considerations

             (1)  Without limiting sections 90 and 90A, in exercising any of its powers under this Division, the AFPC is to:

                     (a)  apply the principle that men and women should receive equal remuneration for work of equal value; and

                     (b)  have regard to the need to provide pro-rata disability pay methods for employees with disabilities; and

                     (c)  take account of the principles embodied in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004 relating to discrimination in relation to employment; and

                     (d)  take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:

                              (i)  preventing discrimination against workers who have family responsibilities; or

                             (ii)  helping workers to reconcile their employment and family responsibilities; and

                     (e)  ensure that its decisions do not contain provisions that discriminate on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

             (2)  For the purposes of the Acts referred to in paragraph (1)(c), and of paragraph (1)(e), the AFPC does not discriminate against an employee or employees by (in accordance with this Division) determining or adjusting rate provisions in an APCS that determine a basic periodic rate of pay, or by (in accordance with this Division) determining or adjusting a special FMW, for:

                     (a)  all junior employees, or a class of junior employees; or

                     (b)  all employees with a disability, or a class of employees with a disability; or

                     (c)  all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

Division 3Maximum ordinary hours of work

Subdivision APreliminary

91  Employees to whom Division applies

                   This Division applies to all employees.

91A  Definitions

                   In this Division:

authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:

                     (a)  by an employee’s employer; or

                     (b)  by or under a term or condition of an employee’s employment; or

                     (c)  by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.

employee means an employee to whom this Division applies under section 91.

91B  Agreement between employees and employers

Via a workplace agreement

             (1)  For the purposes of this Division, an employee and an employer are taken to agree about a particular matter in a particular way if a provision of a workplace agreement binding the employee and the employer specifies that the matter is to be dealt with in that way.

Via an award

             (2)  For the purposes of this Division, an employee and an employer are taken to agree about a particular matter in a particular way if a term of an award that binds the employee and the employer specifies that the matter is to be dealt with in that way.

Via other means

             (3)  To avoid doubt, nothing in this section prevents employees and employers agreeing about matters by other means.

Subdivision BGuarantee of maximum ordinary hours of work

91C  The guarantee

             (1)  An employee must not be required by an employer to work more than:

                     (a)  an average of 38 hours per week over the employee’s applicable averaging period; and

                     (b)  reasonable additional hours.

Note 1:       An employee and an employer may agree that the employee is to work less than an average of 38 hours per week over the employee’s applicable averaging period.

Note 2:       The requirement for an employee to work a particular number of hours may come, for example, from an award or a workplace agreement.

Average hours per week worked

             (2)  For the purposes of this section, if, for a continuous period (the employment period) of less than 12 months immediately before a particular time, an employee has been an employee of a particular employer, the employee’s applicable averaging period at the time is:

                     (a)  a period that the employee and the employer have agreed to in writing that is shorter than the employment period and finishes at the end of the employment period; or

                     (b)  if the employee and the employer have not agreed to a period in accordance with paragraph (a)—the employment period.

             (3)  For the purposes of this section, if, for a continuous period (the employment period) of at least 12 months immediately before a particular time, an employee has been an employee of a particular employer, the employee’s applicable averaging period at the time is:

                     (a)  a period that the employee and the employer have agreed to in writing that is shorter than 12 months and finishes at the end of the employment period; or

                     (b)  if the employee and the employer have not agreed to a period in accordance with paragraph (a)—the last 12 months of the employment period.

             (4)  For the purposes of calculating the average number of hours that an employee has worked per week over the employee’s applicable averaging period, the hours worked by the employee are taken to include any hours of authorised leave taken by the employee during that period.

Reasonable additional hours

             (5)  For the purposes of paragraph (1)(b), in determining whether additional hours that an employee is required by an employer to work are reasonable additional hours, all relevant factors must be taken into account. Those factors may include, but are not limited to, the following:

                     (a)  any risk to the employee’s health and safety that might reasonably be expected to arise if the employee worked the additional hours;

                     (b)  the employee’s personal circumstances (including family responsibilities);

                     (c)  the operational requirements of the workplace, or enterprise, in relation to which the employee is required to work the additional hours;

                     (d)  any notice given by the employer of the requirement that the employee work the additional hours;

                     (e)  any notice given by the employee of the employee’s intention to refuse to work the additional hours.

Division 4Annual leave

Subdivision APreliminary

92  Employees to whom Division applies

                   This Division applies to all employees other than casual employees.

92A  Definitions

                   In this Division:

annual leave has the meaning given by subsection 92D(1).

authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:

                     (a)  by an employee’s employer; or

                     (b)  by or under a term or condition of an employee’s employment; or

                     (c)  by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.

basic periodic rate of pay has the meaning given by section 90B.

Note:          See also section 92C.

continuous service, in relation to a period of an employee’s service with an employer, means service with the employer as an employee (other than a casual employee) during the whole of the period, including (as a part of the period) any period of authorised leave.

employee means an employee to whom this Division applies under section 92.

nominal hours worked: the number of nominal hours worked by an employee for an employer during a period means the sum of:

                     (a)  the number of hours during the period that the employee both was required to work, and did work, for the employer (excluding any reasonable additional hours during that period that the employee both was required to work, and did work, for the employer); and

                     (b)  the number of hours of paid authorised leave taken by the employee from his or her employment with the employer during the period.

Example:    A workplace agreement requires an employee to work for an employer an average of 38 hours per week. The employee works 38 hours for the employer during a week, and takes no paid authorised leave during that week. So the number of nominal hours worked by the employee for the employer during that week is 38.

Note 1:       Nominal hours worked by an employee for an employer during a period do not include hours of unpaid authorised leave taken by the employee during the period.

Note 2:       The requirement for an employee to work a particular number of hours may come, for example, from an award or a workplace agreement.

Note 3:       For the guarantee relating to maximum ordinary hours of work (including reasonable additional hours), see Division 3.

Note 4:       See also section 92C.

piece rate employee means an employee who is paid a piece rate of pay within the meaning of section 90B.

public holiday means a day declared by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of that State or Territory, as a public holiday by people who work in that State, Territory or region, other than:

                     (a)  a union picnic day; or

                     (b)  a day, or kind of day, that is excluded by regulations made for the purposes of this paragraph from counting as a public holiday.

shift worker means:

                     (a)  an employee who:

                              (i)  is employed in a business in which shifts are continuously rostered 24 hours a day for 7 days a week; and

                             (ii)  is regularly rostered to work those shifts; and

                            (iii)  regularly works on a Sunday or public holiday; or

                     (b)  an employee of a type that is prescribed by regulations made for the purposes of this paragraph.

92B  Agreement between employees and employers

Via a workplace agreement

             (1)  For the purposes of this Division, an employee and an employer are taken to agree about a particular matter in a particular way if a provision of a workplace agreement binding the employee and the employer specifies that the matter is to be dealt with in that way.

Via other means

             (2)  To avoid doubt, nothing in this section prevents employees and employers agreeing about matters by other means.

92C  Regulations may prescribe different definitions for piece rate employees

                   The regulations may prescribe:

                     (a)  a different definition of basic periodic rate of pay for the purpose of the application of this Division in relation to piece rate employees; and

                     (b)  a different definition of nominal hours worked for the purpose of the application of this Division in relation to piece rate employees.

Subdivision BGuarantee of annual leave

92D  The guarantee

             (1)  For the purposes of this Division, annual leave means leave to which an employee is entitled under this Subdivision.

All employees to whom this Division applies

             (2)  An employee is entitled to accrue an amount of paid annual leave, for each completed 4 week period of continuous service with an employer, of 1/13 of the number of nominal hours worked by the employee for the employer during that 4 week period.

Example:    An employee whose nominal hours worked for a 12 month period were 38 hours per week would be entitled under this subsection to 152 hours of annual leave (which would be the equivalent of 4 weeks of annual leave if his or her nominal hours worked remained unchanged).

Additional leave entitlement for shift workers

             (3)  An employee is also entitled to accrue an amount of paid annual leave, for each completed 12 month period of continuous service with an employer, of 1/52 of the number of nominal hours worked by the employee, for the employer, as a shift worker during that 12 month period.

Example:    A shift worker whose nominal hours worked for a 12 month period were 38 hours per week, and who worked as a shift worker throughout that period, would be entitled under this subsection to an additional 38 hours of annual leave (which would be the equivalent of one week of annual leave if his or her nominal hours worked remained unchanged).

92E  Entitlement to cash out annual leave

             (1)  An employee is entitled to forgo an entitlement to take an amount of annual leave credited to the employee by an employer if:

                     (a)  a provision in a workplace agreement binding the employee and the employer entitles the employee to forgo the entitlement to the amount of annual leave; and

                     (b)  the employee gives the employer a written election to forgo the amount of annual leave; and

                     (c)  a provision in a workplace agreement binding the employee and the employer entitles the employee to receive pay in lieu of the amount of annual leave at a rate that is no less than the employee’s basic periodic rate of pay at the time that the election is made; and

                     (d)  the employer authorises the employee to forgo the amount of annual leave.

             (2)  However, during each 12 month period, an employee is not entitled to forgo an amount of annual leave credited to the employee by an employer that is equal to more than 1/26 of the nominal hours worked by the employee for the employer during the period.

             (3)  An employer must not:

                     (a)  require an employee to forgo an entitlement to take an amount of annual leave; or

                     (b)  exert undue influence or undue pressure on an employee in relation to the making of a decision by the employee whether or not to forgo an entitlement to take an amount of annual leave.

Subdivision CAnnual leave rules

92F  Annual leave—accrual, crediting and accumulation rules

Accrual

             (1)  Annual leave accrues on a pro-rata basis.

Crediting

             (2)  Each month an employer must credit to an employee of the employer the amount (if any) of annual leave accrued by the employee under subsection 92D(2) since the employer last credited to the employee an amount of annual leave accrued under that subsection.

             (3)  Each year an employer must credit to an employee of the employer the amount (if any) of annual leave accrued by the employee under subsection 92D(3) since the employer last credited to the employee an amount of annual leave accrued under that subsection.

Accumulation

             (4)  Annual leave is cumulative.

92G  Annual leave—payment rules

             (1)  If an employee takes annual leave during a period, the annual leave must be paid at a rate that is no less than the employee’s basic periodic rate of pay immediately before the period begins.

             (2)  If the employment of an employee who has not taken an amount of accrued annual leave ends at a particular time, the employee’s untaken accrued annual leave must be paid at a rate that is no less than the employee’s basic periodic rate of pay at that time.

92H  Rules about taking annual leave

General rules

             (1)  Subject to this section and section 92E, an employee is entitled to take an amount of annual leave during a particular period if:

                     (a)  at least that amount of annual leave is credited to the employee; and

                     (b)  the employee’s employer has authorised the employee to take the annual leave during that period.

             (2)  To avoid doubt, there is no maximum or minimum limit on the amount of annual leave that an employer may authorise an employee to take.

             (3)  Any authorisation given by an employer enabling an employee to take annual leave during a particular period is subject to the operational requirements of the workplace or enterprise in respect of which the employee is employed.

             (4)  An employer must not unreasonably:

                     (a)  refuse to authorise an employee to take an amount of annual leave that is credited to the employee; or

                     (b)  revoke an authorisation enabling an employee to take annual leave during a particular period.

Shut downs

             (5)  An employee must take an amount of annual leave during a particular period if:

                     (a)  the employee is directed to do so by the employee’s employer because, during that period, the employer shuts down the business, or any part of the business, in which the employee works; and

                     (b)  at least that amount of annual leave is credited to the employee.

Extensive accumulated annual leave

             (6)  An employee must take an amount of annual leave during a particular period if:

                     (a)  the employee is directed to do so by his or her employer; and

                     (b)  at the time that the direction is given, the employee has annual leave credited to him or her of more than 1/13 of the number of nominal hours worked by the employee for the employer during the period of 104 weeks ending at the time that the direction is given; and

                     (c)  the amount of annual leave that the employee is directed to take is less than, or equal to, 1/4 of the amount of credited annual leave of the employee at the time that the direction is given.

Subdivision DService: annual leave

92I  Annual leave—service

             (1)  A period of annual leave does not break an employee’s continuity of service.

             (2)  Annual leave counts as service for all purposes except as prescribed by the regulations.

Division 5Personal leave

Subdivision APreliminary

93  Employees to whom Division applies

             (1)  Subject to this section, this Division applies to all employees other than casual employees.

             (2)  This Subdivision, Subdivision C and sections 93O and 93P apply to all employees.

93A  Definitions

                   In this Division:

authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:

                     (a)  by an employee’s employer; or

                     (b)  by or under a term or condition of an employee’s employment; or

                     (c)  by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.

carer’s leave has the meaning given by paragraph 93D(b).

child includes the following:

                     (a)  an adopted child;

                     (b)  a stepchild;

                     (c)  an exnuptial child;

                     (d)  an adult child.

compassionate leave has the meaning given by subsection 93Q(1).

continuous service, in relation to a period of an employee’s service with an employer, means service with the employer as an employee (other than a casual employee) during the whole of the period, including (as a part of the period) any period of authorised leave.

de facto spouse, of an employee, means a person of the opposite sex to the employee who lives with the employee as the employee’s husband or wife on a genuine domestic basis although not legally married to the employee.

employee, when used in a provision of this Division, means an employee to whom the provision applies under section 93.

immediate family: the following are members of an employee’s immediate family:

                     (a)  a spouse, child, parent, grandparent, grandchild or sibling of the employee;

                     (b)  a child, parent, grandparent, grandchild or sibling of a spouse of the employee.

medical certificate means a certificate signed by a medical practitioner.

medical practitioner means a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

nominal hours worked: the number of nominal hours worked by an employee for an employer during a period means the sum of:

                     (a)  the number of hours during the period that the employee both was required to work, and did work, for the employer (excluding any reasonable additional hours during that period that the employee both was required to work, and did work, for the employer); and

                     (b)  the number of hours of paid authorised leave taken by the employee from his or her employment with the employer during the period.

Example:    A workplace agreement requires an employee to work for an employer an average of 38 hours per week. The employee works 38 hours for the employer during a week, and takes no paid authorised leave during that week. So the number of nominal hours worked by the employee for the employer during that week is 38.

Note 1:       Nominal hours worked by an employee for an employer during a period do not include hours of unpaid authorised leave taken by the employee during the period.

Note 2:       The requirement for an employee to work a particular number of hours may come, for example, from an award or a workplace agreement.

Note 3:       For the guarantee relating to maximum ordinary hours of work (including reasonable additional hours), see Division 3.

Note 4:       See also section 93C.

permissible occasion, for unpaid carer’s leave, has the meaning given by subsection 93J(1).

personal/carer’s leave has the meaning given by section 93D.

piece rate employee means an employee who is paid a piece rate of pay within the meaning of section 90B.

sick leave has the meaning given by paragraph 93D(a).

spouse includes the following:

                     (a)  a former spouse;

                     (b)  a de facto spouse;

                     (c)  a former de facto spouse.

93B  Agreement between employees and employers

Via a workplace agreement

             (1)  For the purposes of this Division, an employee and an employer are taken to agree about a particular matter in a particular way if a provision of a workplace agreement binding the employee and the employer specifies that the matter is to be dealt with in that way.

Via other means

             (2)  To avoid doubt, nothing in this section prevents employees and employers agreeing about matters by other means.

93C  Regulations may prescribe different definitions for piece rate employees

                   The regulations may prescribe a different definition of nominal hours worked for the purpose of the application of this Division in relation to piece rate employees.

93D  Meaning of personal/carer’s leave

                   For the purposes of this Division, personal/carer’s leave is:

                     (a)  paid leave (sick leave) taken by an employee because of a personal illness, or injury, of the employee; or

                     (b)  paid or unpaid leave (carer’s leave) taken by an employee to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

                              (i)  a personal illness, or injury, of the member; or

                             (ii)  an unexpected emergency affecting the member.

 Subdivision BGuarantee of paid personal/carer’s leave

93E  The guarantee

             (1)  Subject to this Subdivision, an employee is entitled to paid personal/carer’s leave if the employee complies with the notice and documentation requirements under Subdivision D, to the extent to which they apply to the employee.

Note:          The entitlement is subject to the restrictions in sections 93F, 93H and 93I.

             (2)  An employee is taken not to have been entitled to a period of paid personal/carer’s leave at any time after the start of the period if:

                     (a)  Subdivision D:

                              (i)  required the employee to give notice or a document (the required notice or document) to his or her employer; and

                             (ii)  allowed the employee to give the required notice or document to his or her employer after the start of the leave; and

                     (b)  when the employee started the leave, the employee had not given his or her employer the required notice or document; and

                     (c)  the employee did not later give the required notice or document to his or her employer within the period required under Subdivision D.

Note:          Under Subdivision D, an employee may be required to give his or her employer notice, a medical certificate or a statutory declaration (depending on the circumstances).

93F  Paid personal/carer’s leave—accrual, crediting and accumulation rules

Entitlement to take credited leave

             (1)  Subject to this Subdivision, an employee is entitled to take an amount of paid personal/carer’s leave if, under this section, that amount of leave is credited to the employee.

Accrual

             (2)  An employee is entitled to accrue an amount of paid personal/carer’s leave, for each completed 4 week period of continuous service with an employer, of 1/26 of the number of nominal hours worked by the employee for the employer during that 4 week period.

Example:    An employee whose nominal hours worked for an employer each week over a 12 month period are 38 hours would be entitled to accrue 76 hours paid personal/carer’s leave (which would amount to 2 weeks of paid personal/carer’s leave for that employee) over the period.

             (3)  Paid personal/carer’s leave accrues on a pro-rata basis.

Crediting

             (4)  Each month, an employer must credit to an employee of the employer the amount (if any) of paid personal/carer’s leave accrued by the employee since the employer last credited to the employee an amount of paid personal/carer’s leave accrued under this section.

Accumulation

             (5)  Paid personal/carer’s leave is cumulative.

93G  Paid personal/carer’s leave—payment rule

                   If an employee takes paid personal/carer’s leave during a period, the employer must pay the employee for that period the amount the employee would reasonably have expected to be paid by the employer if the employee had worked during that period.

93H  Paid sick leave—no entitlement if workers’ compensation received

                   An employee is not entitled to take paid sick leave for a period during which the employee is absent from work because of a personal illness, or injury, for which the employee is receiving compensation payable under a law of the Commonwealth, a State or a Territory relating to workers’ compensation.

93I  Paid carer’s leave—annual limit

             (1)  This section applies to an employee if, at a particular time, the employee:

                     (a)  is employed by an employer; and

                     (b)  for a continuous period of at least 12 months immediately before the time, has been in continuous service with the employer.

             (2)  The employee is not entitled to take paid carer’s leave from his or her employment with the employer at the time if, during the period of 12 months ending at the time, the employee has already taken a total amount of paid carer’s leave from that employment of 1/26 of the nominal hours worked by the employee for the employer during that period.

Example:    An employee whose nominal hours worked for an employer each week were 38 hours during a 12 month period of continuous service with the employer would not be entitled to take any paid carer’s leave from his or her employment with the employer if the employee had, during the period, already taken 76 hours paid carer’s leave (which amounted to 2 weeks paid carer’s leave for that employee) from that employment.

Subdivision CGuarantee of unpaid carer’s leave

93J  The guarantee

             (1)  Subject to this Subdivision, an employee is entitled to a period of up to 2 days unpaid carer’s leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household, requires care or support during such a period because of:

                     (a)  a personal illness, or injury, of the member; or

                     (b)  an unexpected emergency affecting the member.

Note 1:       This entitlement extends to casual employees (see section 93).

Note 2:       The entitlement is subject to the restrictions in sections 93K and 93L.

             (2)  An employee is entitled to unpaid carer’s leave only if the employee complies with the notice and documentation requirements under Subdivision D, to the extent to which they apply to the employee.

             (3)  An employee is taken not to have been entitled to a period of unpaid carer’s leave at any time after the start of the period if:

                     (a)  Subdivision D:

                              (i)  required the employee to give notice or a document (the required notice or document) to his or her employer; and

                             (ii)  allowed the employee to give the required notice or document to his or her employer after the start of the leave; and

                     (b)  when the employee started the leave, the employee had not given his or her employer the required notice or document; and

                     (c)  the employee did not later give the required notice or document to his or her employer within the period required under Subdivision D.

Note:          Under Subdivision D, an employee may be required to give his or her employer notice, a medical certificate or a statutory declaration (depending on the circumstances).

93K  Unpaid carer’s leave—how taken

                   An employee who is entitled to a period of unpaid carer’s leave under section 93J for a particular permissible occasion is entitled to take the unpaid carer’s leave as:

                     (a)  a single, unbroken, period of up to 2 days; or

                     (b)  any separate periods to which the employee and his or her employer agree.

93L  Unpaid carer’s leave—paid personal leave exhausted

                   An employee is entitled to unpaid carer’s leave for a particular permissible occasion during a particular period only if the employee cannot take an amount of any of the following types of paid leave during the period:

                     (a)  paid personal/carer’s leave;

                     (b)  any other authorised leave of the same type as personal/carer’s leave.

Subdivision DNotice and evidence requirements: personal/carer’s leave

93M  Sick leave—notice

             (1)  To be entitled to sick leave during a period, an employee must give his or her employer notice in accordance with this section that the employee is (or will be) absent from his or her employment during the period because of a personal illness, or injury, of the employee.

             (2)  The notice must be given to the employer as soon as reasonably practicable (which may be at a time before or after the sick leave has started).

             (3)  The notice must be to the effect that the employee requires (or required) leave during the period because of a personal illness, or injury, of the employee.

             (4)  This section does not apply to an employee who could not comply with it because of circumstances beyond the employee’s control.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

93N  Sick leave—medical certificate

             (1)  This section applies if an employer requires his or her employee to give the employer a medical certificate in relation to a period of sick leave taken (or to be taken) by the employee.

             (2)  To be entitled to sick leave during the period, the employee must give the employer a medical certificate from a medical practitioner in accordance with this section.

             (3)  The medical certificate must be given to the employer as soon as reasonably practicable (which may be at a time before or after the sick leave has started).

             (4)  The medical certificate must include a statement to the effect that, in the medical practitioner’s opinion, the employee was, is, or will be unfit for work during the period because of a personal illness or injury.

             (5)  This section does not apply to an employee who could not comply with it because of circumstances beyond the employee’s control.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

93O  Carer’s leave—notice

             (1)  To be entitled to carer’s leave during a period, an employee must give his or her employer notice in accordance with this section.

             (2)  The notice must be given to the employer as soon as reasonably practicable (which may be at a time before or after the carer’s leave has started).

             (3)  The notice must be to the effect that the employee requires (or required) leave during the period to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires (or required) care or support because of:

                     (a)  a personal illness, or injury, of the member; or

                     (b)  an unexpected emergency affecting the member.

             (4)  This section does not apply to an employee who could not comply with it because of circumstances beyond the employee’s control.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

93P  Carer’s leave—documentary evidence

             (1)  This section applies if, in relation to carer’s leave taken (or to be taken) by an employee during a period (the relevant period) to provide care or support to a member of the employee’s immediate family or a member of the employee’s household, the employee’s employer requires the employee to give the employer a document (the required document) of whichever of the following types applies:

                     (a)  if the care or support is required because of a personal illness, or injury, of the member—a medical certificate from a medical practitioner;

                     (b)  if the care or support is required because of an unexpected emergency affecting the member—a statutory declaration made by the employee.

             (2)  To be entitled to carer’s leave during the relevant period, the employee must give the employer the required document in accordance with this section.

             (3)  The required document must be given to the employer as soon as reasonably practicable (which may be at a time before or after the carer’s leave has started).

             (4)  If the required document is a medical certificate, it must include a statement to the effect that, in the opinion of the medical practitioner, the member of the employee’s immediate family, or of the employee’s household, who requires (or required) care or support has, had, or will have a personal illness or injury during the relevant period.

             (5)  If the required document is a statutory declaration, it must include a statement to the effect that the employee requires (or required) leave during the period to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires (or required) care or support, during the relevant period, because of an unexpected emergency affecting the member.

             (6)  This section does not apply to an employee who could not comply with it because of circumstances beyond the employee’s control.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

Subdivision EGuarantee of compassionate leave

93Q  The guarantee

             (1)  For the purposes of this Division, compassionate leave is paid leave taken by an employee:

                     (a)  for the purposes of spending time with a person who:

                              (i)  is a member of the employee’s immediate family or a member of the employee’s household; and

                             (ii)  has a personal illness, or injury, that poses a serious threat to his or her life; or

                     (b)  after the death of a member of the employee’s immediate family or a member of the employee’s household.

             (2)  An employee is entitled to a period of 2 days of compassionate leave if:

                     (a)  a member of the employee’s immediate family or a member of the employee’s household:

                              (i)  contracts a personal illness that poses a serious threat to his or her life; or

                             (ii)  sustains a personal injury that poses a serious threat to his or her life; or

                            (iii)  dies; and

                     (b)  the employee gives his or her employer any evidence that the employer reasonably requires of the illness, injury or death.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

93R  Taking compassionate leave

                   An employee who is entitled to a period of compassionate leave under section 93Q is entitled to take the compassionate leave as:

                     (a)  a single, unbroken period of 2 days; or

                     (b)  2 separate periods of 1 day each; or

                     (c)  any separate periods to which the employee and his or her employer agree.

93S  Compassionate leave—payment rule

                   If an employee takes compassionate leave during a period, the employer must pay the employee for that period the amount the employee would reasonably have expected to be paid by the employer if the employee had worked during that period.

Subdivision FPersonal leave: service

93T  Paid personal leave—service

             (1)  A period of paid personal leave does not break an employee’s continuity of service.

             (2)  Paid personal leave counts as service for all purposes except as prescribed by the regulations.

             (3)  In this section:

paid personal leave means paid personal/carer’s leave or compassionate leave.

93U  Unpaid carer’s leave—service

             (1)  A period of unpaid carer’s leave does not break an employee’s continuity of service.

             (2)  However, a period of unpaid carer’s leave does not otherwise count as service except:

                     (a)  as expressly provided by or under:

                              (i)  a term or condition of the employee’s employment; or

                             (ii)  a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory; or

                     (b)  as prescribed by the regulations.

Division 6Parental leave

Subdivision APreliminary

94  Employees to whom Division applies

                   This Division applies to all employees, other than casual employees who are not eligible casual employees.

94A  Definitions

                   In this Division:

adoption agency means an agency, office, court or other entity that is authorised under a law of the Commonwealth, a State, a Territory or a foreign country to perform functions in relation to adoption.

adoption leave has the meaning given by subsection 94ZL(1).

authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:

                     (a)  by an employee’s employer; or

                     (b)  by or under a term or condition of an employee’s employment; or

                     (c)  by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.

continuous service, in relation to a period of an employee’s service with an employer, means service with the employer as an employee during the whole of the period, including (as a part of the period) any of the following periods:

                     (a)  a period of authorised leave;

                     (b)  a period (the casual period) during which the employee was a casual employee, if:

                              (i)  during the casual period, the employee was engaged on a regular and systematic basis by the employer; and

                             (ii)  during the casual period, the employee had a reasonable expectation of continuing employment by the employer.

day of placement: the day of placement of a child with an employee for an adoption is:

                     (a)  subject to paragraph (b), the earlier of the following days:

                              (i)  the day on which the employee first takes custody of the child for the adoption;

                             (ii)  the day on which the employee starts any travel that is reasonably necessary to take custody of the child for the adoption; or

                     (b)  if the child’s adoption by an employee is authorised by an adoption agency after the child has started living with the employee (unless the employee has travelled overseas to take custody of the child for an adoption intended to occur in Australia)—the day on which the adoption is authorised by the agency.

de facto spouse, of an employee, means a person of the opposite sex to the employee who lives with the employee as the employee’s husband or wife on a genuine domestic basis although not legally married to the employee.

eligible casual employee has the meaning given by section 94B.

eligible child has the meaning given by section 94ZJ.

employee means an employee to whom this Division applies under section 94.

expected date of birth, of a child of an employee who is or was pregnant, means:

                     (a)  if, to comply with a requirement under Subdivision C, the employee has given her employer a medical certificate stating the expected date of birth of the child or a date that would be, or would have been, the expected date of birth of the child—the stated date; or

                     (b)  if the employee could not comply with a requirement mentioned in paragraph (a) because of circumstances beyond her control—the date of birth of the child that could reasonably be expected if the pregnancy were to go to full term.

long adoption leave has the meaning given by paragraph 94ZL(1)(b).

long paternity leave has the meaning given by paragraph
94T(1)(b).

maternity leave has the meaning given by subsection 94C(1).

medical certificate means a certificate signed by a medical practitioner.

medical practitioner means a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

ordinary maternity leave has the meaning given by paragraph 94C(1)(b).

paternity leave has the meaning given by subsection 94T(1).

placement, of a child, means:

                     (a)  subject to paragraph (b)—the placement, by an adoption agency, of the child into the custody of an employee for adoption; or

                     (b)  if the child’s adoption by an employee is authorised by an adoption agency after the child has started living with the employee—the authorisation of the adoption by the adoption agency.

Note:          Day of placement is also defined in this section.

pre-adoption leave has the meaning given by subsection 94ZK(2).

pregnancy-related illness means an illness related to pregnancy.

primary care-giver, of a child, means a person who assumes the principal role of providing care and attention to the child.

short adoption leave has the meaning given by paragraph 94ZL(1)(a).

short paternity leave has the meaning given by paragraph 94T(1)(a).

special maternity leave has the meaning given by paragraph 94C(1)(a).

spouse includes the following:

                     (a)  a former spouse;

                     (b)  a de facto spouse;

                     (c)  a former de facto spouse.

94B  Meaning of eligible casual employee

             (1)  For the purposes of this Division, an eligible casual employee is a casual employee:

                     (a)  who has been engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months; and

                     (b)  who, but for an expected birth or an expected placement of a child, would have a reasonable expectation of continuing engagement by the employer on a regular and systematic basis.

             (2)  Without limiting subsection (1), for the purposes of this Division, a casual employee is also an eligible casual employee if:

                     (a)  the employee was engaged by a particular employer on a regular and systematic basis for a sequence of periods during a period (the first period of employment) of less than 12 months; and

                     (b)  at the end of the first period of employment, the employee ceased, on the employer’s initiative, to be so engaged by the employer; and

                     (c)  the employer later again engaged the employee on a regular and systematic basis for a further sequence of periods during a period (the second period of employment) that started not more than 3 months after the end of the first period of employment; and

                     (d)  the combined length of the first period of employment and the second period of employment is at least 12 months; and

                     (e)  the employee, but for an expected birth or an expected placement of a child, would have a reasonable expectation of continuing engagement by the employer on a regular and systematic basis.

Subdivision BGuarantee of maternity leave

94C  The guarantee

             (1)  For the purposes of this Division, maternity leave is:

                     (a)  unpaid leave (special maternity leave) taken by an employee because:

                              (i)  she is pregnant, and has a pregnancy-related illness; or

                             (ii)  she has been pregnant, and the pregnancy has ended within 28 weeks before the expected date of birth of the child otherwise than by the birth of a living child; or

                     (b)  a single, unbroken period of unpaid leave (ordinary maternity leave) taken in respect of the birth, or the expected birth, of a child of an employee (other than leave taken as special maternity leave).

             (2)  Subject to this Subdivision and Subdivision D, an employee is entitled to maternity leave if:

                     (a)  she complies with the documentation requirements under Subdivision C, to the extent to which they apply to her; and

                     (b)  immediately before the expected date of birth of the child:

                              (i)  she has, or will have, completed at least 12 months continuous service with her employer; or

                             (ii)  she is, or will be, an eligible casual employee.

Note:          Entitlement to maternity leave is subject to the restrictions in sections 94D and 94E and Subdivision D.

             (3)  An employee is taken not to have been entitled to a period of maternity leave at any time after the start of the period if:

                     (a)  Subdivision C:

                              (i)  required the employee to give a document (the required document) to her employer; and

                             (ii)  allowed the employee to give the required document to her employer after the start of the leave; and

                     (b)  when the employee started the leave, the employee had not given her employer the required document; and

                     (c)  the employee did not later give the required document to her employer within the period required under Subdivision C.

Note:          Under Subdivision C, an employee may be required to give her employer a medical certificate, an application or a statutory declaration (depending on the circumstances).

             (4)  Subject to this Division, an employee may take special maternity leave, ordinary maternity leave, or both.

94D  Period of maternity leave

             (1)  In this section:

related authorised leave, in relation to maternity leave taken (or to be taken) by an employee, means any of the following types of authorised leave other than the maternity leave:

                     (a)  authorised leave (other than paid leave under subparagraph 94F(2)(b)(i) or (ii)) taken by the employee because of any of the following:

                              (i)  her pregnancy;

                             (ii)  the birth of the child;

                            (iii)  the end of her pregnancy otherwise than by the birth of a living child;

                            (iv)  the death of the child;

                     (b)  paternity leave, or any other authorised leave of the same type as paternity leave, taken by the employee’s spouse because of the birth of the child.

             (2)  An employee may take a period of maternity leave as part of a continuous period including any other authorised leave.

             (3)  The maximum total amount of maternity leave (including special maternity leave and ordinary maternity leave) to which an employee is entitled in relation to the birth of a child is 52 weeks, less an amount equal to the total amount of related authorised leave taken:

                     (a)  by the employee before or after the maternity leave; and

                     (b)  by the employee’s spouse before, during or after the maternity leave.

Example:    Rosa is a pregnant employee entitled to maternity leave. She has taken 2 weeks of special maternity leave, but no other authorised leave. Rosa intends to take authorised leave because of the birth consisting of 4 weeks of annual leave and 12 weeks of long service leave, and a period of ordinary maternity leave.

                   Rosa’s spouse Jim intends to take 1 week of short paternity leave.

                   The maximum amount of ordinary maternity leave to which Rosa is entitled is 33 weeks, worked out as follows:

(a)           the maximum entitlement of any employee to maternity leave is 52 weeks;

(b)           the maximum amount of ordinary maternity leave available to Rosa must be reduced by 2 weeks for her special maternity leave;

(c)           the maximum amount must also be reduced by 16 weeks for Rosa’s annual leave and long service leave;

(d)           the maximum amount must be further reduced by 1 week for Jim’s short paternity leave.

94E  Period of special maternity leave

             (1)  An employee is not entitled to a period of special maternity leave longer than the period stated in a medical certificate given to the employer for the purposes of section 94G.

Note:          Section 94G requires an employee to give her employer a medical certificate (and other documents) in order to be entitled to special maternity leave. However, the section does not apply to an employee who could not comply with the section because of circumstances beyond her control (see subsection 94G(5)).

             (2)  In addition, a period of special maternity leave must end before the employee starts any continuous period of leave including (or constituted by) ordinary maternity leave.

94F  Transfer to a safe job

             (1)  This section applies to an employee if:

                     (a)  she is entitled to ordinary maternity leave; and

                     (b)  she has already complied with the documentation requirements under sections 94H and 94I; and

                     (c)  the employee gives her employer a medical certificate from a medical practitioner containing a statement to the effect that, in the medical practitioner’s opinion, the employee is fit to work, but that it is inadvisable for her to continue in her present position for a stated period because of:

                              (i)  illness, or risks, arising out of her pregnancy; or

                             (ii)  hazards connected with that position.

             (2)  If this section applies to an employee:

                     (a)  if the employee’s employer thinks it to be reasonably practicable to transfer the employee to a safe job—the employer must transfer the employee to the safe job, with no other change to the employee’s terms and conditions of employment; or

                     (b)  if the employee’s employer does not think it to be reasonably practicable to transfer the employee to a safe job:

                              (i)  the employee may take paid leave immediately for a period ending at the time mentioned in paragraph (4)(b); or

                             (ii)  the employer may require the employee to take paid leave immediately for a period ending at the time mentioned in paragraph (4)(b).

             (3)  If the employee takes paid leave under subparagraph (2)(b)(i) or (ii) during a period, the employer must pay the employee for that period the amount the employee would reasonably have expected to be paid by the employer if the employee had worked during that period.

             (4)  If the employee takes paid leave under subparagraph (2)(b)(i) or (ii):

                     (a)  the entitlement to leave is in addition to any other leave entitlement she has; and

                     (b)  the period of leave ends at the earliest of whichever of the following times is applicable:

                              (i)  the end of the period stated in the medical certificate;

                             (ii)  if the employee’s pregnancy results in the birth of a living child—the end of the day before the date of birth;

                            (iii)  if the employee’s pregnancy ends otherwise than with the birth of a living child—the end of the day before the end of the pregnancy.

             (5)  To avoid doubt, this section applies whether the employee gives the medical certificate to the employer because of a request under subsection 94L(2) or otherwise.

Subdivision CMaternity leave: documentation

94G  Special maternity leave—documentation

Requirement for application

             (1)  To be entitled to special maternity leave during a period, an employee must give her employer a written application for special maternity leave, in accordance with this section, stating the first and last days of the period.

Pregnancy-related illness—medical certificate

             (2)  An application for special maternity leave required because of a pregnancy-related illness must be accompanied by a medical certificate from a medical practitioner containing the following statements of the medical practitioner’s opinion:

                     (a)  a statement that the employee is pregnant;

                     (b)  a statement of the expected date of birth;

                     (c)  a statement to the effect that the employee is (or was) unfit to work for a stated period because of a pregnancy-related illness.

End of pregnancy—medical certificate and statutory declaration

             (3)  An application for special maternity leave required because of the end of the employee’s pregnancy otherwise than by the birth of a living child must be accompanied by:

                     (a)  a medical certificate from a medical practitioner containing the following statements of the medical practitioner’s opinion:

                              (i)  a statement that the employee was pregnant, but that the pregnancy has ended otherwise than by the birth of a living child;

                             (ii)  a statement of what the expected date of birth would have been if the pregnancy had gone to full term;

                            (iii)  a statement that the pregnancy ended on a stated day within 28 weeks before the expected date of birth;

                            (iv)  a statement to the effect that the employee is (or was) unfit for work during a stated period; and

                     (b)  a statutory declaration made by the employee stating the following:

                              (i)  the first and last days of the period (or periods) of any other authorised leave taken by the employee because of a pregnancy-related illness or the end of the pregnancy;

                             (ii)  that the employee will not engage in any conduct inconsistent with her contract of employment while on maternity leave.

Time for giving application to employer

             (4)  The application, medical certificate and statutory declaration (if required) must be given to the employer before, or as soon as reasonably practicable after, starting a continuous period of leave including (or constituted by) the special maternity leave.

Section does not apply if could not be complied with

             (5)  This section does not apply to an employee who could not comply with the section because of circumstances beyond her control.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

94H  Ordinary maternity leave—medical certificate

Requirement for medical certificate

             (1)  To be entitled to ordinary maternity leave, an employee must give her employer a medical certificate from a medical practitioner in accordance with this section.

General rules

             (2)  The medical certificate must contain the following statements of the medical practitioner’s opinion:

                     (a)  a statement that the employee is pregnant;

                     (b)  a statement of the expected date of birth.

             (3)  The medical certificate mentioned in subsection (2) must be given to the employer no later than 10 weeks before the expected date of birth (as stated in the certificate).

Premature birth or other compelling reason

             (4)  However, subsections (2) and (3) do not apply if it was not reasonably practicable for a medical certificate mentioned in subsection (2) to be given to the employer by the time required by subsection (3) because of:

                     (a)  the premature birth of the employee’s child; or

                     (b)  any other compelling reason.

             (5)  If subsections (2) and (3) do not apply:

                     (a)  subject to paragraph (b), as soon as reasonably practicable before the birth of the child (which may be at a time before or after the maternity leave has started) the employee must give the employer a medical certificate from a medical practitioner containing the following statements of the medical practitioner’s opinion:

                              (i)  a statement that the employee is pregnant;

                             (ii)  a statement of the expected date of birth if the pregnancy were to go to full term; or

                     (b)  if it was not reasonably practicable for the employee to comply with paragraph (a) before the birth of the child—as soon as reasonably practicable after the birth of the child (which may be at a time before or after the maternity leave has started) the employee must give the employer a medical certificate from a medical practitioner containing the following statements of the medical practitioner’s opinion (or knowledge):

                              (i)  a statement of the actual date of birth;

                             (ii)  a statement of the expected date of birth as at the 70th day before the actual date of birth.

Section does not apply if could not be complied with

             (6)  This section does not apply to an employee who could not comply with the section because of circumstances beyond her control.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

94I  Ordinary maternity leave—application

Requirement for application

             (1)  To be entitled to ordinary maternity leave during a period, an employee must give her employer a written application for ordinary maternity leave in accordance with this section stating the first and last days of the period.

General rule

             (2)  The application must be given to the employer no later than 4 weeks before the first day of the intended continuous period of leave including (or constituted by) ordinary maternity leave.

Premature birth or other compelling reason

             (3)  However, subsection (2) does not apply if it was not reasonably practicable for the employee to comply with it because of:

                     (a)  the premature birth of the employee’s child; or

                     (b)  any other compelling reason.

             (4)  If subsection (2) does not apply, the application must be made as soon as reasonably practicable (which may be at a time before or after the maternity leave has started).

Statutory declaration with application

             (5)  The application must be accompanied by a statutory declaration made by the employee stating the following:

                     (a)  the first and last days of the period (or periods) of any other authorised leave (other than paid leave under subparagraph 94F(2)(b)(i) or (ii)) intended to be taken (or already taken) by the employee because of her pregnancy or the expected birth;

                     (b)  the first and last days of the period (or periods) of any paternity leave, or any other authorised leave of the same type as paternity leave, intended to be taken (or already taken) by the employee’s spouse because of the expected birth;

                     (c)  that the employee intends to be the child’s primary care-giver at all times while on maternity leave;

                     (d)  that the employee will not engage in any conduct inconsistent with her contract of employment while on maternity leave.

Section does not apply if could not be complied with

             (6)  This section does not apply to an employee who could not comply with the section because of circumstances beyond her control.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

Subdivision DMaternity leave: from start to finish

94J  Maternity leave—start of leave

                   Subject to section 94L, an employee may start a continuous period of leave including (or constituted by) ordinary maternity leave to which she is entitled at any time within 6 weeks before the expected date of birth of the child.

94K  Requirement to take leave—for 6 weeks after birth

                   A continuous period of leave including (or constituted by) ordinary maternity leave must include a period of leave of at least 6 weeks starting from the date of birth of the child.

94L  Requirement to take leave—within 6 weeks before birth

             (1)  This section applies to an employee if:

                     (a)  she is entitled to ordinary maternity leave; and

                     (b)  she has already complied with the documentation requirements under sections 94H and 94I.

             (2)  If the employee continues to work, during the period of 6 weeks before the expected date of birth, the employer may ask the employee to give the employer a medical certificate from a medical practitioner containing the following statement or statements of the medical practitioner’s opinion:

                     (a)  a statement of whether the employee is fit to work;

                     (b)  if, in the opinion of the medical practitioner, the employee is fit to work—a statement of whether it is inadvisable for the employee to continue in her present position for a stated period because of:

                              (i)  illness, or risks, arising out of the pregnancy; or

                             (ii)  hazards connected with the position.

Note:          Under section 94F, the employee is entitled to be transferred to a safe job or to paid leave (depending on the circumstances) if the employee gives the employer a medical certificate stating that the employee is fit to work, but that illness or risks arising out of the employee’s pregnancy or hazards connected with the work assigned to the employee make it inadvisable for the employee to continue in her present position.

             (3)  The employer may require the employee to start a continuous period of leave including (or constituted by) maternity leave as soon as reasonably practicable, if the employee:

                     (a)  does not give the employer the requested certificate within 7 days after the request; or

                     (b)  within 7 days after the request for the certificate, gives the employer a medical certificate stating that the employee is unfit to work.

94M  End of pregnancy—effect on ordinary maternity leave entitlement

             (1)  This section applies if the pregnancy of an employee ends otherwise than by the birth of a living child.

             (2)  If, when the pregnancy ended, the employee had not yet started a period of ordinary maternity leave, the employee is not, or is no longer, entitled to ordinary maternity leave in relation to the previously expected birth.

Note:          However, the employee may be entitled to take special maternity leave because of the end of the pregnancy. An application for special maternity leave may be made after the leave has started (see section 94G).

             (3)  If, when the pregnancy ended, the employee had started a period of ordinary maternity leave, the employee’s entitlement to ordinary maternity leave in relation to the previously expected birth is not affected by the end of the pregnancy.

Note:          The employee may shorten the period of ordinary maternity leave by agreement with the employer under section 94P. However, to take advantage of the return to work guarantee under section 94R, the employee must also give the employer at least 4 weeks written notice of the proposed day of her return to work.

94N  Death of child—effect on ordinary maternity leave entitlement

             (1)  This section applies if:

                     (a)  an employee gives birth to a living child, but the child later dies; and

                     (b)  when the child died, the employee had started a period of ordinary maternity leave in relation to the child’s birth.

             (2)  Subject to subsections (3) and (4), the employee’s entitlement to the ordinary maternity leave is not affected by the death of the child.

Note:          The employee may shorten the period of ordinary maternity leave by agreement with the employer under section 94P. However, to take advantage of the return to work guarantee under section 94R, the employee must also give the employer at least 4 weeks written notice of the proposed day of her return to work.

             (3)  The employee’s employer may give the employee written notice that, from a stated day, any untaken ordinary maternity leave that the employee remains entitled to at the stated day is cancelled with effect from that day.

             (4)  The day stated in the notice must be no earlier than the later of the following days:

                     (a)  the day that is 4 weeks after the day the notice was given;

                     (b)  the day that is 6 weeks after the date of birth.

             (5)  The employee’s entitlement to any untaken ordinary maternity leave in relation to the birth ends with effect from the day stated in the notice.

94O  End of ordinary maternity leave if employee stops being primary care-giver

             (1)  This section applies if:

                     (a)  during a substantial period while an employee is on ordinary maternity leave after the birth of a living child, the employee is not the child’s primary care-giver; and

                     (b)  having regard to the length of that period and to any other relevant circumstances, it is reasonable to expect that the employee will not again become the child’s primary care-giver within a reasonable period.

             (2)  The employee’s employer may give the employee written notice that, from a stated day no earlier than 4 weeks after the day the notice is given, any untaken ordinary maternity leave that the employee remains entitled to at the stated day is cancelled with effect from that day.

             (3)  The employee’s entitlement to any untaken ordinary maternity leave in relation to the birth ends with effect from the day stated in the notice.

94P  Variation of period of ordinary maternity leave

             (1)  This section applies after an employee has started a continuous period of leave including (or constituted by) ordinary maternity leave.

             (2)  Subject to Subdivision B and sections 94N and 94O:

                     (a)  the employee may extend the period of maternity leave once by giving her employer 14 days written notice before the end of the period stating the period by which the leave is extended; and

                     (b)  the period of maternity leave may be further extended by agreement between the employee and her employer.

             (3)  Subject to section 94K, the period of maternity leave may be shortened by written agreement between the employee and her employer.

Note:          However, to take advantage of the return to work guarantee under section 94R, the employee must also give her employer at least 4 weeks written notice of the proposed day for her return to work.

94Q  Employee’s right to terminate employment during maternity leave

             (1)  An employee may terminate her employment at any time during a period of maternity leave or leave under subparagraph 94F(2)(b)(i) or (ii).

             (2)  The employee’s right to terminate her employment is subject to any notice required to be given by the employee by or under:

                     (a)  a term or condition of her employment; or

                     (b)  a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.

94R  Return to work guarantee—maternity leave

             (1)  This section applies to an employee who returns to work after a period of leave including (or constituted by) maternity leave (the maternity-related leave period) if:

                     (a)  the employee gives her employer written notice of the proposed day of her return to work no later than 4 weeks before that day; or

                     (b)  the period of leave includes (or is constituted by) special maternity leave, and does not include any ordinary maternity leave; or

                     (c)  the employee’s entitlement to ordinary maternity leave ends under section 94N or 94O.

             (2)  This section also applies if an employee returns to work after a period of leave under subparagraph 94F(2)(b)(i) or (ii).

             (3)  Subject to subsections (4) and (5), the employee is entitled to return:

                     (a)  unless paragraph (b) or (c) applies—to the position she held immediately before the start of the maternity-related leave period; or

                     (b)  if she was promoted or voluntarily transferred to a new position (other than to a safe job under paragraph 94F(2)(a)) during the maternity-related leave period—to the new position; or

                     (c)  if paragraph (b) does not apply, and she began working part-time because of her pregnancy—to the position she held immediately before starting to work part-time.

             (4)  If subsection (3) would, apart from this subsection, entitle the employee to return to a position that the employee had been transferred to under paragraph 94F(2)(a), the employee is instead entitled to return to the position she held immediately before the transfer.

             (5)  If the position (the former position) no longer exists, and the employee is qualified and able to work for her employer in another position, the employee is entitled to return to:

                     (a)  that position; or

                     (b)  if there are 2 or more such positions—whichever position is nearest in status and remuneration to the former position.

94S  Replacement employees—maternity leave

             (1)  Before an employer engages an employee (a primary replacement) to do the work of another employee because the other employee is taking a continuous period of leave including (or constituted by) maternity leave, the employer must tell the primary replacement:

                     (a)  that the engagement to do that work is temporary; and

                     (b)  what the rights of the employee taking maternity leave are under section 94R when she returns to work after the period of leave.

             (2)  Before an employer engages an employee (a secondary replacement) to do the work of another employee (the primary replacement) because the primary replacement has been temporarily promoted or transferred to do the work of a third employee while the third employee is taking a continuous period of leave including (or constituted by) maternity leave, the employer must tell the secondary replacement:

                     (a)  that the engagement to do that work is temporary; and

                     (b)  what the rights of the employee taking maternity leave are under section 94R when she returns to work after the period of leave.

             (3)  In this section:

employee has the meaning given by subsection 4AA(1).

Subdivision EGuarantee of paternity leave

94T  The guarantee

             (1)  For the purposes of this Division, paternity leave is:

                     (a)  a single, unbroken period of unpaid leave (short paternity leave) of up to one week taken by a male employee within the week starting on the day his spouse begins to give birth; or

                     (b)  a single, unbroken period of unpaid leave (long paternity leave), other than short paternity leave, taken by a male employee after his spouse gives birth to a living child so that the employee can be the child’s primary care-giver.

             (2)  Subject to this Subdivision and Subdivision G, an employee is entitled to paternity leave if:

                     (a)  he complies with the documentation requirements under Subdivision F, to the extent to which they apply to him; and

                     (b)  immediately before the first day on which the paternity leave is, or is to be, taken:

                              (i)  he has, or will have, completed at least 12 months continuous service with his employer; or

                             (ii)  he is, or will be, an eligible casual employee.

Note:          Entitlement to paternity leave is subject to the restrictions in sections 94U and 94W and Subdivision G.

             (3)  An employee is taken not to have been entitled to a period of paternity leave at any time after the start of the period if:

                     (a)  Subdivision F:

                              (i)  required the employee to give a document (the required document) to his employer; and

                             (ii)  allowed the employee to give the required document to his employer after the start of the leave; and

                     (b)  when the employee started the leave, the employee had not given his employer the required document; and

                     (c)  the employee did not later give the required document to his employer within the period required under Subdivision F.

Note:          Under Subdivision F, an employee may be required to give his employer a medical certificate, an application or a statutory declaration (depending on the circumstances).

             (4)  Subject to this Division, an employee may take short paternity leave, long paternity leave, or both.

94U  Period of paternity leave

             (1)  In this section:

related authorised leave, in relation to paternity leave taken (or to be taken) by an employee because his spouse has given birth to a living child, means any of the following types of authorised leave other than the paternity leave:

                     (a)  authorised leave taken by the employee because of any of the following:

                              (i)  the birth of the child;

                             (ii)  the death of the child;

                     (b)  maternity leave, or any other authorised leave of the same type as maternity leave, taken by the employee’s spouse because of the birth of the child or the pregnancy.

             (2)  An employee may take a period of paternity leave as part of a continuous period including any other authorised leave.

             (3)  The maximum total amount of paternity leave (including short paternity leave and long paternity leave) to which an employee is entitled in relation to the birth of a child by his spouse is 52 weeks, less an amount equal to the total amount of related authorised leave taken:

                     (a)  by the employee before or after the paternity leave; and

                     (b)  by the spouse before, during or after the paternity leave.

Example:    Max’s spouse Rachel is pregnant, and Max is an employee entitled to paternity leave. He intends to take 2 periods of authorised leave because of the birth of the child. The first is to consist of 5 weeks: 1 week of short paternity leave and 4 weeks of annual leave. The second is to consist of a later period of long paternity leave starting 20 weeks after the birth, when Max is to be the primary care-giver for the child after Rachel returns to work.

                   Rachel has not taken any special maternity leave or other authorised leave during her pregnancy. She intends to take 20 weeks of maternity leave because of the birth of the child.

                   The maximum amount of long paternity leave to which Max is entitled is 27 weeks, worked out as follows:

(a)           the maximum entitlement of any employee to paternity leave is 52 weeks;

(b)           the maximum amount of long paternity leave available to Max must be reduced by 1 week for his short paternity leave;

(c)           the maximum amount must also be reduced by 4 weeks for Max’s annual leave;

(d)           the maximum amount must be further reduced by 20 weeks for Rachel’s maternity leave.

Note:          A period of long paternity leave must end within 12 months after the date of birth of the child (see section 94ZB).

94V  Short paternity leave—concurrent leave taken by spouse

                   An employee may take short paternity leave in relation to the birth of a child by his spouse while the spouse is taking any authorised leave, including maternity leave (if any), in relation to the birth.

94W  Long paternity leave—not to be concurrent with maternity leave taken by spouse

                   A period of long paternity leave taken by an employee in relation to the birth of a child by his spouse must not include any period during which the spouse is taking maternity leave, or any other authorised leave of the same type as maternity leave, because of the birth.

Subdivision FPaternity leave: documentation

94X  Paternity leave—medical certificate

Requirement for medical certificate

             (1)  To be entitled to paternity leave, an employee must give his employer a medical certificate from a medical practitioner in accordance with this section.

             (2)  The medical certificate must contain the following statements of the medical practitioner’s opinion (or knowledge):

                     (a)  if the child has not yet been born:

                              (i)  the name of the employee’s spouse; and

                             (ii)  that the employee’s spouse is pregnant; and

                            (iii)  the date on which the birth is expected;

                     (b)  if the child has been born:

                              (i)  the name of the employee’s spouse; and

                             (ii)  the actual date of birth of the child.

General rule

             (3)  The medical certificate must be given to the employer no later than 10 weeks before the date stated in the certificate.

Premature birth or other compelling reason

             (4)  However, the medical certificate must be given to the employer as soon as reasonably practicable (which may be at a time before or after the paternity leave has started) if it was not reasonably practicable for the employee to comply with subsection (3) because of:

                     (a)  the premature birth of the child; or

                     (b)  any other compelling reason.

Section does not apply if could not be complied with

             (5)  This section does not apply to an employee who could not comply with the section because of circumstances beyond his control.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

94Y  Short paternity leave—application

             (1)  To be entitled to short paternity leave during a period, an employee must give his employer a written application for short paternity leave, in accordance with this section, stating the first and last days of the period.

             (2)  The application must be given to the employer as soon as reasonably practicable on or after the first day of the period of leave.

             (3)  This section does not apply to an employee who could not comply with the section because of circumstances beyond his control.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

94Z  Long paternity leave—documentation

Requirement for application

             (1)  To be entitled to long paternity leave during a period, an employee must give his employer a written application for long paternity leave in accordance with this section stating the first and last days of the period.

General rule

             (2)  The application must be given to the employer no later than 10 weeks before the first day of the intended continuous period of leave including (or constituted by) the long paternity leave.

Premature birth or other compelling reason

             (3)  However, the application must be made as soon as reasonably practicable (which may be at a time before or after the long paternity leave has started) if it was not reasonably practicable for the employee to comply with subsection (2) because of:

                     (a)  the premature birth of the child; or

                     (b)  any other compelling reason.

Statutory declaration with application

             (4)  The application must be accompanied by a statutory declaration made by the employee stating the following:

                     (a)  the first and last days of the period (or periods) of any other authorised leave intended to be taken (or already taken) by the employee because of the birth or the expected birth;

                     (b)  the first and last days of the period (or periods) of any maternity leave, or any other authorised leave of the same type as maternity leave, intended to be taken (or already taken) by the employee’s spouse because of the pregnancy, the birth or the expected birth;

                     (c)  that the employee intends to be the child’s primary care-giver at all times while on long paternity leave;

                     (d)  that the employee will not engage in any conduct inconsistent with his contract of employment while on long paternity leave.

Section does not apply if could not be complied with

             (5)  This section does not apply to an employee who could not comply with the section because of circumstances beyond his control.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

Subdivision GPaternity leave: from start to finish

94ZA  Short paternity leave—when taken

                   An employee may take short paternity leave to which he is entitled at any time within the week starting on the day his spouse begins to give birth.

Note:          Short paternity leave must be taken in a single, unbroken period (see section 94T). The combined total of paternity leave and related authorised leave taken by the employee and his spouse must be no more than 52 weeks (see section 94U). Short paternity leave may be taken concurrently with any authorised leave taken by the employee’s spouse in relation to the birth of the child (see section 94V).

94ZB  Long paternity leave—when taken

                   An employee may take long paternity leave to which he is entitled at any time within 12 months after the date of birth of the child.

Note:          Long paternity leave must be taken in a single, unbroken period (see section 94T). The combined total of paternity leave and related authorised leave taken by the employee and his spouse must be no more than 52 weeks (see section 94U). Long paternity leave must not be taken concurrently with any maternity leave, or any other authorised leave of the same type as maternity leave, taken by the employee’s spouse because of the birth of the child (see section 94W).

94ZC  End of pregnancy—effect on paternity leave

             (1)  This section applies if the pregnancy of an employee’s spouse ends otherwise than by the birth of a living child.

             (2)  The employee is not, or is no longer, entitled to paternity leave in relation to the pregnancy.

             (3)  To avoid doubt, this section does not affect any entitlement of an employee to short paternity leave that was taken by the employee in expectation of the birth.

94ZD  Death of child—effect on paternity leave

             (1)  This section applies if an employee’s spouse gives birth to a living child, but the child later dies.

             (2)  If, when the child died, the employee had not yet started a period of paternity leave in relation to the birth, the employee is not, or is no longer, entitled to that leave.

             (3)  Subject to subsections (4) and (5), if, when the child died, the employee had started a period of paternity leave in relation to the birth, the employee’s entitlement to the leave is not affected by the death of the child.

Note:          The employee may shorten a period of long paternity leave by agreement with the employer under section 94ZF. However, if the period of leave including (or constituted by) long paternity leave is longer than 4 weeks, to take advantage of the return to work guarantee under section 94ZH, the employee must also give the employer at least 4 weeks written notice of the proposed day of his return to work.

             (4)  The employee’s employer may give the employee written notice that, from a stated day no earlier than 4 weeks after the day the notice is given, any untaken long paternity leave that the employee remains entitled to at the stated day is cancelled with effect from that day.

             (5)  The employee’s entitlement to any untaken long paternity leave in relation to the birth ends with effect from the day stated in the notice.

94ZE  End of long paternity leave if employee stops being primary care-giver

             (1)  This section applies if:

                     (a)  during a substantial period while an employee is on long paternity leave after the birth of a living child, the employee is not the child’s primary care-giver; and

                     (b)  having regard to the length of that period and to any other relevant circumstances, it is reasonable to expect that the employee will not again become the child’s primary care-giver within a reasonable period.

             (2)  The employee’s employer may give the employee written notice that, from a stated day no earlier than 4 weeks after the day the notice is given, any untaken long paternity leave that the employee remains entitled to at the stated day is cancelled with effect from that day.

             (3)  The employee’s entitlement to any untaken long paternity leave in relation to the birth ends with effect from the day stated in the notice.

94ZF  Variation of period of long paternity leave

             (1)  This section applies after an employee has started a continuous period of leave including (or constituted by) long paternity leave.

             (2)  Subject to Subdivision E and sections 94ZB, 94ZD and 94ZE:

                     (a)  the employee may extend the period of long paternity leave once by giving his employer 14 days written notice before the end of the period stating the period by which the leave is extended; and

                     (b)  the period of long paternity leave may be further extended by agreement between the employee and his employer.

             (3)  The period of long paternity leave may be shortened by written agreement between the employee and his employer.

Note:          However, if the period of leave including (or constituted by) long paternity leave is longer than 4 weeks, to take advantage of the return to work guarantee under section 94ZH, the employee must also give his employer at least 4 weeks written notice of the proposed day of his return to work.

94ZG  Employee’s right to terminate employment during paternity leave

             (1)  An employee may terminate his employment at any time during a period of paternity leave.

             (2)  The employee’s right to terminate his employment is subject to any notice required to be given by the employee by or under:

                     (a)  a term or condition of his employment; or

                     (b)  a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.

94ZH  Return to work guarantee—paternity leave

             (1)  This section applies to an employee who returns to work after a period of leave including (or constituted by) paternity leave (the paternity-related leave period) if:

                     (a)  the paternity-related leave period is 4 weeks or less; or

                     (b)  if the paternity-related leave period is longer than 4 weeks—the employee has given his employer written notice of the proposed day of his return to work no later than 4 weeks before that day; or

                     (c)  the employee’s entitlement to long paternity leave ends under section 94ZD or 94ZE.

             (2)  The employee is entitled to return:

                     (a)  unless paragraph (b) or (c) applies—to the position he held immediately before the start of the paternity-related leave period; or

                     (b)  if he was promoted or voluntarily transferred to a new position during the paternity-related leave period—to the new position; or

                     (c)  if paragraph (b) does not apply, and he began working part-time because of his spouse’s pregnancy—to the position he held immediately before starting to work part-time.

             (3)  However, if the position (the former position) no longer exists, and the employee is qualified and able to work for his employer in another position, the employee is entitled to return to:

                     (a)  that position; or

                     (b)  if there are 2 or more such positions—whichever position is nearest in status and remuneration to the former position.

94ZI  Replacement employees—long paternity leave

             (1)  Before an employer engages an employee (a primary replacement) to do the work of another employee because the other employee is taking a continuous period of leave including (or constituted by) paternity leave, the employer must tell the primary replacement:

                     (a)  that the engagement to do that work is temporary; and

                     (b)  what the rights of the employee taking paternity leave are under section 94ZH when he returns to work after the period of leave.

             (2)  Before an employer engages an employee (a secondary replacement) to do the work of another employee (the primary replacement) because the primary replacement has been temporarily promoted or transferred to do the work of a third employee while the third employee is taking a continuous period of leave including (or constituted by) paternity leave, the employer must tell the secondary replacement:

                     (a)  that the engagement to do that work is temporary; and

                     (b)  what the rights of the employee taking paternity leave are under section 94ZH when he returns to work after the period of leave.

             (3)  In this section:

employee has the meaning given by subsection 4AA(1).

Subdivision HGuarantee of adoption leave

94ZJ  Meaning of eligible child

                   For the purposes of this Division, a child is an eligible child in relation to an employee with whom the child is, or is to be, placed for adoption, if the child:

                     (a)  is (or will be) under the age of 5 years as at the day of placement or the proposed day of placement; and

                     (b)  has not (or will have not) previously lived continuously with the employee for a period of 6 months or more as at the day of placement or the proposed day of placement; and

                     (c)  is not a child or step-child of the employee or the employee’s spouse.

94ZK  The guarantee—pre-adoption leave

             (1)  This section applies if an employee is seeking to obtain approval to adopt an eligible child.

Entitlement to leave

             (2)  The employee is entitled to a period of up to 2 days unpaid leave (pre-adoption leave) to attend any interviews or examinations required to obtain the approval.

             (3)  However, the employee is not entitled to take a period of pre-adoption leave if:

                     (a)  the employee could take other authorised leave instead for the same period for the purpose mentioned in subsection (2); and

                     (b)  the employee’s employer directs the employee to take such leave for the period.

             (4)  An employee who is entitled to a period of pre-adoption leave is entitled to take the leave as:

                     (a)  a single, unbroken, period of up to 2 days; or

                     (b)  any separate periods to which the employee and his or her employer agree.

Agreement between employees and employers

             (5)  For the purposes of paragraph (4)(b), an employee and an employer are taken to agree about a particular matter in a particular way if a provision of a workplace agreement binding the employee and the employer specifies that the matter is to be dealt with in that way.

             (6)  To avoid doubt, subsection (5) does not prevent employees and employers agreeing about matters by other means.

94ZL  The guarantee—adoption leave

             (1)  For the purposes of this Division, adoption leave is:

                     (a)  a single, unbroken period of unpaid leave (short adoption leave) of up to 3 weeks taken by an employee within the 3 weeks starting on the day of placement of an eligible child with the employee for adoption; or

                     (b)  a single, unbroken period of unpaid leave (long adoption leave), other than short adoption leave, taken by an employee after the day of placement of an eligible child with the employee for adoption so that the employee can be the child’s primary care-giver.

             (2)  Subject to this Subdivision and Subdivision J, an employee is entitled to adoption leave if:

                     (a)  the employee complies with the applicable documentation requirements under Subdivision I; and

                     (b)  immediately before the first day on which the adoption leave is, or is to be, taken:

                              (i)  the employee has, or will have, completed at least 12 months continuous service with his or her employer; or

                             (ii)  the employee is, or will be, an eligible casual employee.

Note:          Entitlement to adoption leave is subject to the restrictions in sections 94ZM and 94ZO and Subdivision J.

             (3)  Subject to this Division, an employee may take short adoption leave, long adoption leave, or both.

94ZM  Period of adoption leave

             (1)  In this section:

related authorised leave, in relation to adoption leave taken (or to be taken) by an employee because of the placement of a child with the employee and the employee’s spouse, means any of the following types of authorised leave other than pre-adoption leave:

                     (a)  authorised leave, other than adoption leave, taken by the employee because of the placement of the child with the employee;

                     (b)  adoption leave, or any other authorised leave of the same type as adoption leave, taken by the spouse because of the placement of the child with the employee.

             (2)  An employee may take a period of adoption leave as part of a continuous period including any other authorised leave.

             (3)  The maximum total amount of adoption leave (including short adoption leave and long adoption leave) that an employee is entitled to in relation to a placement is 52 weeks, less an amount equal to the total amount of related authorised leave taken:

                     (a)  by the employee before or after the adoption leave; and

                     (b)  by the employee’s spouse before or after the adoption leave.

Example:    Susan and her spouse Ali propose to adopt a child, and both are employees entitled to adoption leave. Because of the placement of the child, Susan intends to take authorised leave consisting of 3 weeks of short adoption leave, 4 weeks of annual leave, 12 weeks of long service leave and a period of long adoption leave.

                   Because of the placement of the child, Ali intends to take 3 weeks of short adoption leave.

                   The maximum amount of long adoption leave to which Susan is entitled is 30 weeks, worked out as follows:

(a)           the maximum entitlement of any employee to adoption leave is 52 weeks;

(b)           the maximum amount of long adoption leave available to Susan must be reduced by 3 weeks for her short adoption leave;

(c)           the maximum amount must also be reduced by 16 weeks for Susan’s annual leave and long service leave;

(d)           the maximum amount must also be further reduced by 3 weeks for Ali’s short adoption leave.

Note:          A period of long adoption leave must end within 12 months after the day of placement of the child (see section 94ZU).

94ZN  Short adoption leave—concurrent leave taken by spouse

                   An employee may take short adoption leave in relation to the placement of a child while his or her spouse is taking any authorised leave, including adoption leave (if any), in relation to the placement.

94ZO  Long adoption leave—not to be concurrent with adoption leave taken by spouse

                   A period of long adoption leave taken by an employee in relation to the placement of a child with the employee and the employee’s spouse must not include any period during which the spouse is taking adoption leave, or any other authorised leave of the same type as adoption leave, because of the placement.

Subdivision IAdoption leave: documentation

94ZP  Adoption leave—notice

Requirement for notice

             (1)  To be entitled to adoption leave, an employee must give his or her employer notice in accordance with this section.

Note:          After an employee has given his or her employer notice in accordance with this section, the employee will have satisfied the notice requirement in relation to the employee’s entitlement to both short adoption leave and long adoption leave.

Notices to be given to the employer

             (2)  An employee must give written notice to his or her employer of the employee’s intention to apply for adoption leave as soon as reasonably practicable after receiving notice (a placement approval notice) of the approval of the placement of an eligible child with the employee.

             (3)  An employee must give written notice to his or her employer of the day when the placement of an eligible child with the employee is expected to start as soon as reasonably practicable after receiving notice (a placement notice) of the expected day.

             (4)  An employee must give written notice to his or her employer of the first and last days of the periods of short and long adoption leave (or of either type of leave) the employee intends to apply for because of the placement:

                     (a)  if the employee receives a placement notice about the placement within the period of 8 weeks after receiving the placement approval notice—before the end of that 8 week period; or

                     (b)  if the employee receives a placement notice about the placement after the end of the period of 8 weeks after receiving the placement approval notice—as soon as reasonably practicable after receiving the placement notice.

Adoption of a relative of the employee

             (5)  If an eligible child who is to be adopted by an employee is a relative of the employee, and the employee decides to take the child into custody pending the authorisation of the placement of the child with the employee, the employee must:

                     (a)  give notice to his or her employer of the employee’s decision as soon as reasonably practicable after the decision is made; and

                     (b)  give the notices required by subsections (2), (3) and (4) in accordance with those subsections.

Note:          The employee’s entitlement to adoption leave after taking the child into custody starts when the adoption is authorised (this is the day of placement of the child—see definition of day of placement in section 94A).

Adoption process started before engagement with the employer

             (6)  If, before starting an employee’s current period of engagement with his or her employer, the employee had already received a placement approval notice or a placement notice, or had made a decision to take a child into custody as mentioned in subsection (5), the employee must give the notices required by this section to the employer as soon as reasonable practicable after starting the period of engagement.

Note:          However, the employee is only entitled to take either short or long adoption leave if the employee will have completed 12 months continuous service with the employer immediately before the first day on which the leave is to be taken, or if the employee is an eligible casual employee (see section 94ZL).

If employee cannot comply

             (7)  A notice under this section must be given to the employee’s employer as soon as reasonably practicable before the first day of adoption leave taken by the employee, if the employee cannot comply with subsection (2), (3), (4), (5) or (6) because of:

                     (a)  the day when the placement is expected to start; or

                     (b)  any other compelling reason.

             (8)  In this section:

relative, of an employee, means:

                     (a)  a grandchild, nephew, niece or sibling of the employee; or

                     (b)  a grandchild, nephew, niece or sibling of the employee’s spouse.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

94ZQ  Short adoption leave—application

Requirement for application

             (1)  To be entitled to short adoption leave during a period, an employee must give his or her employer a written application for short adoption leave, in accordance with this section, stating the first and last days of the period.

General rule

             (2)  The application must be given to the employer no later than 14 days before the proposed day of placement of the child.

If employee cannot comply with general rule

             (3)  The application must be given to the employer as soon as reasonably practicable before the first day of the short adoption leave applied for if the employee cannot comply with subsection (2) because of:

                     (a)  the day when the placement is expected to start; or

                     (b)  any other compelling reason.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

94ZR  Long adoption leave—application

Requirement for application

             (1)  To be entitled to long adoption leave during a period, an employee must give his or her employer a written application for long adoption leave, in accordance with this section, stating the first and last days of the period.

General rule

             (2)  The application must be given to the employer no later than 10 weeks before the first day of the proposed continuous period of leave including (or constituted by) the long adoption leave applied for.

If employee cannot comply with general rule

             (3)  The application must be given to the employer as soon as reasonably practicable before the first day of the long adoption leave applied for if the employee cannot comply with subsection (2) because of:

                     (a)  the day when the placement is expected to start; or

                     (b)  any other compelling reason.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

94ZS  Adoption leave—additional documents

             (1)  To be entitled to adoption leave, an employee must give his or her employer documents as required by this section.

             (2)  The documents required by this section must be given to the employer:

                     (a)  before the employee begins the period of adoption leave; or

                     (b)  if the employee is taking both short and long adoption leave—before the employee begins the period of short adoption leave.

             (3)  The employee must give his or her employer the following documents:

                     (a)  a statement from an adoption agency of the day when the placement is expected to start;

                     (b)  a statutory declaration in accordance with subsection (4) made by the employee.

             (4)  The statutory declaration must state the following:

                     (a)  whether the employee is taking short adoption leave, long adoption leave, or both;

                     (b)  the first and last days of the period (or periods) of any other authorised leave taken, or intended to be taken, by the employee because of the placement of the child;

                     (c)  the first and last days of the period (or periods) of adoption leave, or any other authorised leave of the same type as adoption leave, taken, or intended to be taken, by the employee’s spouse because of the placement of the child;

                     (d)  that the child is an eligible child;

                     (e)  for any period of long adoption leave to be taken by the employee—that the employee intends to be the child’s primary care-giver at all times while on the long adoption leave;

                      (f)  that the employee will not engage in any conduct inconsistent with his or her contract of employment while on adoption leave.

Note:          The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.

Subdivision JAdoption leave: from start to finish

94ZT  Short adoption leave—when taken

                   An employee may take short adoption leave to which he or she is entitled at any time within the period of 3 weeks starting on the day of placement of the child.

Note:          Short adoption leave must be taken in a single, unbroken period (see section 94ZL). The combined total of adoption leave and related authorised leave taken by the employee and his or her spouse must be no more than 52 weeks (see section 94ZM). Short adoption leave may be taken concurrently with any authorised leave taken by the employee’s spouse (see section 94ZN).

94ZU  Long adoption leave—when taken

                   An employee may take long adoption leave to which he or she is entitled at any time within 12 months after the day of placement of the child.

Note:          Long adoption leave must be taken in a single, unbroken period (see section 94ZL). The combined total of adoption and authorised leave taken by the employee and his or her spouse must be no more than 52 weeks (see section 94ZM). Long adoption leave must not be taken concurrently with any adoption leave, or any other authorised leave of the same type as adoption leave, taken by the employee’s spouse because of the placement (see section 94ZO).

94ZV  Placement does not proceed—effect on adoption leave

             (1)  This section applies if a proposed placement of a child with an employee:

                     (a)  is cancelled before it starts, whether at the initiative of an adoption agency, another body, or the employee; or

                     (b)  starts but is later discontinued for any reason (including the death of the child).

             (2)  If, when this section first applies, the employee had not yet started a period of adoption leave in relation to the placement, the employee is not, or is no longer, entitled to the leave.

             (3)  Subject to subsections (4) and (5), if, when this section applies, the employee had started a period of adoption leave in relation to the placement, the employee’s entitlement to the adoption leave is not affected by the cancellation or discontinuation of the placement.

Note:          The employee may shorten a period of long adoption leave by agreement with the employer under section 94ZX. However, if the period of leave including (or constituted by) long adoption leave is longer than 4 weeks, to take advantage of the return to work guarantee under section 94ZZ, the employee must also give the employer at least 4 weeks written notice of the proposed day of his or her return to work.

             (4)  The employee’s employer may give the employee written notice that, from a stated day no earlier than 4 weeks after the day the notice is given, any untaken long adoption leave that the employee remains entitled to at the stated day is cancelled with effect from that day.

             (5)  The employee’s entitlement to any untaken long adoption leave in relation to the placement ends with effect from the day stated in the notice.

94ZW  End of long adoption leave if employee stops being primary care-giver

             (1)  This section applies if:

                     (a)  during a substantial period while an employee is on long adoption leave after the placement of a child with the employee, the employee is not the child’s primary care-giver; and

                     (b)  having regard to the length of that period and to any other relevant circumstances, it is reasonable to expect that the employee will not again become the child’s primary care-giver within a reasonable period.

             (2)  The employee’s employer may give the employee written notice that, from a stated day no earlier than 4 weeks after the day the notice is given, any untaken long adoption leave that the employee remains entitled to at the stated day is cancelled with effect from that day.

             (3)  The employee’s entitlement to any untaken long adoption leave in relation to the placement ends with effect from the day stated in the notice.

94ZX  Variation of period of long adoption leave

             (1)  This section applies after an employee has started a continuous period of leave including (or constituted by) long adoption leave.

             (2)  Subject to Subdivision H and sections 94ZU, 94ZV and 94ZW:

                     (a)  the employee may extend the period of long adoption leave once by giving his or her employer 14 days written notice before the end of the period stating the period by which the leave is extended; and

                     (b)  the period of long adoption leave may be further extended by agreement between the employee and his or her employer.

             (3)  The period of long adoption leave may be shortened by written agreement between the employee and his or her employer.

Note:          However, if the period of leave including (or constituted by) long adoption leave is longer than 4 weeks, to take advantage of the return to work guarantee under section 94ZZ, the employee must also give his or her employer at least 4 weeks written notice of the proposed day for his or her return to work.

94ZY  Employee’s right to terminate employment during adoption leave

             (1)  An employee may terminate his or her employment at any time during a period of adoption leave.

             (2)  The employee’s right to terminate his or her employment is subject to any notice required to be given by the employee by or under:

                     (a)  a term or condition of his or her employment; or

                     (b)  a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.

94ZZ  Return to work guarantee—adoption leave

             (1)  This section applies to an employee who returns to work after a period of leave including (or constituted by) adoption leave (the adoption-related leave period) if:

                     (a)  the adoption-related leave period is 4 weeks or less; or

                     (b)  if the adoption-related leave period is longer than 4 weeks—the employee has given his or her employer written notice of the proposed day of his or her return to work no later than 4 weeks before that day; or

                     (c)  the employee’s entitlement to long adoption leave ends under section 94ZV or 94ZW.

             (2)  The employee is entitled to return:

                     (a)  unless paragraph (b) applies—to the position he or she held immediately before the start of the adoption-related leave period; or

                     (b)  if he or she was promoted or voluntarily transferred to a new position during the adoption-related leave period—to the new position.

             (3)  However, if the position (the former position) no longer exists, and the employee is qualified and able to work for his or her employer in another position, the employer must employ the employee in:

                     (a)  that position; or

                     (b)  if there are 2 or more such positions—whichever position is nearest in status and remuneration to the former position.

94ZZA  Replacement employees—long adoption leave

             (1)  Before an employer engages an employee (a primary replacement) to do the work of another employee because the other employee is taking a continuous period of leave including (or constituted by) adoption leave, the employer must tell the primary replacement:

                     (a)  that the engagement to do that work is temporary; and

                     (b)  what the rights of the employee taking adoption leave are under section 94ZZ when he or she returns to work after the period of leave.

             (2)  Before an employer engages an employee (a secondary replacement) to do the work of another employee (the primary replacement) because the primary replacement has been temporarily promoted or transferred to do the work of a third employee while the third employee is taking a continuous period of leave including (or constituted by) adoption leave, the employer must tell the secondary replacement:

                     (a)  that the engagement to do that work is temporary; and

                     (b)  what the rights of the employee taking adoption leave are under section 94ZZ when he or she returns to work after the period of leave.

             (3)  In this section:

employee has the meaning given by subsection 4AA(1).

Subdivision KParental leave: service

94ZZB  Parental leave and service

             (1)  A period of parental leave does not break an employee’s continuity of service.

             (2)  However, a period of parental leave does not otherwise count as service except:

                     (a)  for the purpose of determining the employee’s entitlement to a later period of leave under this Division; or

                     (b)  as expressly provided by or under:

                              (i)  a term or condition of the employee’s employment; or

                             (ii)  a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory; or

                     (c)  as prescribed by the regulations.

             (3)  In this section:

parental leave means any of the following:

                     (a)  maternity leave;

                     (b)  paid leave under subparagraph 94F(2)(b)(i) or (ii);

                     (c)  paternity leave;

                     (d)  pre-adoption leave;

                     (e)  adoption leave.

Part VBWorkplace agreements

Division 1Preliminary

95  Definitions

                   In this Part:

Court means the Federal Court of Australia or the Federal Magistrates Court.

new business has the meaning given by section 95B.

prohibited content has the meaning given by section 101D.

undertakings means undertakings mentioned in section 103M.

95A  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 Act 2001 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.

95B  New business

                   For the purposes of sections 96C and 96D, an agreement relates to a new business if:

                     (a)  the agreement relates to:

                              (i)  a new business, new project or new undertaking that the employer in relation to the agreement is proposing to establish; or

                             (ii)  if the employer in relation to the agreement is an entity mentioned in paragraph 95A(1)(b)—new activities proposed to be carried on by the employer; and

                     (b)  the business, project or undertaking is, or the activities are, a single business (or a part of a single business).

95C  AWAs with Commonwealth employees

             (1)  An Agency Head (within the meaning of the Public Service Act 1999) may act on behalf of the Commonwealth in relation to AWAs with persons in the Agency who are engaged under the Public Service Act 1999.

             (2)  A Secretary of a Department (within the meaning of the Parliamentary Service Act 1999) may act on behalf of the Commonwealth in relation to AWAs with persons in the Department who are engaged under the Parliamentary Service Act 1999.

95D  Extended operation of Part in relation to proposed workplace agreements

                   So far as the context permits:

                     (a)  a reference in this Part to a workplace agreement includes a reference to a proposed workplace agreement; and

                     (b)  a reference in this Part to an employer, in relation to a workplace agreement, includes a reference to a person who will be an employer in relation to a proposed agreement when it comes into operation; and

                     (c)  a reference in this Part to an employee, in relation to a workplace agreement, includes a reference to a person who will be an employee in relation to a proposed agreement when it comes into operation.

95E  Extraterritorial extension

             (1)  This Part, and the rest of this Act so far as it relates to this Part, extends to persons, acts, omissions, matters and things outside Australia that are connected with a workplace agreement relating to an Australian-based employee or an Australian employer.

Note:          In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

             (2)  In this section:

this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.

Division 2Types of workplace agreements

96  Australian workplace agreements (AWAs)

             (1)  An employer may make an agreement (an Australian workplace agreement or AWA) in writing with a person whose employment will be subject to the agreement.

             (2)  An AWA may be made before commencement of the employment.

96A  Employee collective agreements

                   An employer may make an agreement (an employee collective agreement) in writing with persons employed at the time in a single business (or part of a single business) of the employer whose employment will be subject to the agreement.

96B  Union collective agreements

                   An employer may make an agreement (a union collective agreement) in writing with one or more organisations of employees if, when the agreement is made, each organisation:

                     (a)  has at least one member whose employment in a single business (or part of a single business) of the employer 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.

96C  Union greenfields agreements

             (1)  An employer may make an agreement (a union greenfields agreement) in writing with one or more organisations of employees if:

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

                     (b)  the agreement is made before the employment of any of the persons:

                              (i)  who will be necessary for the normal operation of the business; and

                             (ii)  whose employment will be subject to the agreement; and

                     (c)  each organisation meets 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.

96D  Employer greenfields agreements

                   An employer may make an agreement (an employer greenfields agreement) in writing if:

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

                     (b)  the agreement is made before the employment of any of the persons:

                              (i)  who will be necessary for the normal operation of the business; and

                             (ii)  whose employment will be subject to the agreement.

96E  Multiple-business agreements

             (1)  A multiple-business agreement is an agreement that:

                     (a)  relates to any combination or combinations of the following:

                              (i)  one or more single businesses;

                             (ii)  one or more parts of single businesses;

                            carried on by one or more employers; and

                     (b)  would be a collective agreement of a type mentioned in section 96A, 96B, 96C or 96D but for the matter in paragraph (a).

Note:          For civil remedy provisions dealing with the making or variation of a multiple-business agreement, see sections 99A and 102I.

             (2)  So far as the context permits, this Part (apart from this Division) has effect in relation to a multiple-business agreement of a particular type as if the agreement were a collective agreement (other than a multiple-business agreement) of that type.

             (3)  So far as the context permits, this Part (apart from this Division) has effect in relation to a multiple-business agreement with more than one employer as if a reference to the employer in relation to an agreement were a reference to an employer in relation to the agreement.

96F  Authorisation of multiple-business agreements

             (1)  An employer may apply to the Employment Advocate for an authorisation to make or vary a multiple-business agreement.

             (2)  The regulations may set out a procedure for applying to the Employment Advocate for the authorisation. The Employment Advocate need not consider an application if it is not made in accordance with the procedure.

             (3)  The Employment Advocate must not grant the authorisation unless he or she is satisfied that it is in the public interest to do so, having regard to:

                     (a)  whether the matters dealt with by the agreement (or the agreement as varied) could be more appropriately dealt with by a collective agreement other than a multiple-business agreement; and

                     (b)  any other matter specified in regulations made for the purposes of this subsection.

96G  When a workplace agreement is made

                   For the purposes of this Act, a workplace agreement is made at whichever of the following times is applicable:

                     (a)  for an AWA—the time when the AWA is approved in accordance with section 98C;

                     (b)  for an employee collective agreement—the time when the agreement is approved in accordance with section 98C;

                     (c)  for a union collective agreement—the time when the employer and the organisation or organisations agree to the terms of the agreement;

                     (d)  for a union greenfields agreement—the time when the employer and the organisation or organisations agree to the terms of the agreement;

                     (e)  for an employer greenfields agreement—the time when the employer lodges the agreement (see section 99B).

Division 3Bargaining agents

97  Bargaining agents—qualifications

             (1)  For the purposes of sections 97A and 97B, a person can be a bargaining agent in relation to a workplace agreement at a particular time only if the person meets the requirements in this section at that time.

             (2)  The person must meet the requirements (if any) specified in the regulations.

             (3)  If the person is an organisation of employees:

                     (a)  at least one person whose employment is or will be subject to the agreement must be a member of the organisation; and

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

97A  Bargaining agents—AWAs

             (1)  An employer or employee may appoint a person to be his or her bargaining agent in relation to the making, variation or termination of an AWA. The appointment must be made in writing.

Note:          Subsection 104(3) provides a civil remedy for coercion in relation to appointments under this subsection.

             (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)  Subsection (2) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

97B  Bargaining agents—employee collective agreements

             (1)  An employee whose employment is or will be subject to an employee collective agreement may request another person (the bargaining agent) to represent the employee in meeting and conferring with the employer about the making or variation of the agreement.

Note:          Subsection 104(4) provides a civil remedy for coercion in relation to requests under this subsection.

             (2)  An employee whose employment is or will be subject to an employer greenfields agreement may request another person (the bargaining agent) to represent the employee in meeting and conferring with the employer about the variation of the agreement.

Note:          Subsection 104(4) provides a civil remedy for coercion in relation to requests under this subsection.

             (3)  The employer must give the bargaining agent a reasonable opportunity to meet and confer with the employer about the agreement during the period:

                     (a)  beginning 7 days before the agreement or variation is approved in accordance with section 98C or section 102F; and

                     (b)  ending when the agreement or variation is approved.

             (4)  Subsection (3) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

             (5)  The requirement in subsection (3) ceases to apply to the employer if at any time after the request is made the employee withdraws the request.

             (6)  The Employment Advocate may issue a certificate that he or she is satisfied of one of the following matters if he or she is so satisfied:

                     (a)  on application by a bargaining agent—that the employee has made a request in accordance with subsection (1) or (2) for the bargaining agent to represent the employee in meeting and conferring with the employer;

                     (b)  on application by the employer—that, after the making of the request, the requirement in subsection (3) for the employer to give a reasonable opportunity to the bargaining agent to meet and confer, has, because of subsection (5) or section 97, ceased to apply to the employer.

             (7)  The certificate must not identify any of the employees concerned. However, it must identify the bargaining agent, the employer and the agreement.

             (8)  The certificate is, for all purposes of this Act, prima facie evidence that the employee or employees made the request or that the requirement has ceased to apply.

Division 4Pre-lodgment procedure

97C  Eligible employee

                   For the purposes of this Division, an eligible employee in relation to a workplace agreement is:

                     (a)  in the case of an AWA—the person whose employment will be subject to the AWA; or

                     (b)  in the case of a collective agreement—a person employed by the employer whose employment will be subject to the agreement.

98  Providing employees with ready access and information statement

             (1)  If an employer intends to have a workplace agreement (other than a greenfields agreement) approved under section 98C, the employer must take reasonable steps to ensure that all eligible employees in relation to the agreement either have, or have ready access to, the agreement in writing during the period:

                     (a)  beginning 7 days before the agreement is approved; and

                     (b)  ending when the agreement is approved.

             (2)  The employer must take reasonable steps to ensure that all eligible employees in relation to the agreement are given an information statement at least 7 days before the agreement is approved.

             (3)  Despite subsections (1) and (2), if the agreement is a collective agreement and a person becomes an eligible employee at a time during the period mentioned in subsection (1), the employer must take reasonable steps to ensure that:

                     (a)  the person is given an information statement at or before that time; and

                     (b)  the person either has, or has ready access to, the agreement in writing during the period:

                              (i)  beginning at that time; and

                             (ii)  ending when the agreement is approved under section 98C.

             (4)  The information statement mentioned in subsection (2) and paragraph (3)(a) must contain:

                     (a)  information about the time at which and the manner in which the approval will be sought under section 98C; and

                     (b)  if the agreement is an AWA—information about the effect of sections 97 and 97A (which deal with bargaining agents); and

                     (c)  if the agreement is an employee collective agreement—information about the effect of sections 97 and 97B (which deal with bargaining agents); and

                     (d)  any other information that the Employment Advocate requires by notice published in the Gazette.

             (5)  If a waiver has been made under section 98A in relation to the workplace agreement, subsection (1) and paragraph (3)(b) do not apply in relation to a time after the waiver takes effect.

             (6)  For the purposes of this section, if the workplace agreement incorporates terms from an industrial instrument mentioned in subsection 101C(2), the eligible employees have ready access to the workplace agreement only if they have ready access to that instrument in writing.

             (7)  To avoid doubt, if the content of the workplace agreement is changed during the period mentioned in subsection (1), the change results in a separate workplace agreement for the purposes of this section.

Note:          If the content of an agreement for which the employer intends to seek approval is changed, the procedural steps set out in subsections (1), (2) and (3) must be repeated for the resulting separate agreement.

Contravention—ready access

             (8)  An employer contravenes this subsection if:

                     (a)  the employer lodges a workplace agreement; and

                     (b)  the employer failed to comply with subsection (1) or (if applicable) paragraph (3)(b) in relation to the agreement.

Contravention—information statement

             (9)  An employer contravenes this subsection if:

                     (a)  the employer lodges a workplace agreement; and

                     (b)  the employer failed to comply with subsection (2) or (if applicable) paragraph (3)(a) in relation to the agreement.

           (10)  Subsections (8) and (9) are civil remedy provisions.

Note:          See Division 11 for provisions on enforcement.

           (11)  An employer cannot contravene subsection (8) or (9) more than once in relation to the lodgment of a particular workplace agreement.

98A  Employees may waive ready access

             (1)  The persons mentioned in subsection (2) may make a waiver under this section in relation to a workplace agreement.

             (2)  The persons are all the eligible employees at the time the waiver is made.

             (3)  The waiver must be in writing and dated.

             (4)  The waiver is made when all the persons mentioned in subsection (2) sign the waiver.

             (5)  The waiver takes effect when it is made.

98B  Prohibition on withdrawal from union collective agreement

             (1)  An employer that has made a union collective agreement must take reasonable steps to seek approval for the agreement under section 98C, within a reasonable period after the agreement was made.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

98C  Approval of a workplace agreement

             (1)  An AWA is approved if:

                     (a)  the AWA is signed and dated by the employee and the employer; and

                     (b)  those signatures are witnessed; and

                     (c)  if the employee is under the age of 18 years:

                              (i)  the AWA is signed and dated by an appropriate person (such as a parent or guardian of the employee, but not the employer) on behalf of the employee, for the purpose of indicating that person’s consent to the employee making the AWA; and

                             (ii)  that person is aged at least 18 years; and

                            (iii)  that person’s signature is witnessed.

             (2)  An employee collective agreement or union collective agreement is approved if:

                     (a)  the employer has given all of the persons employed at the time whose employment will be subject to the agreement a reasonable opportunity to decide whether they want to approve the agreement; and

                     (b)  either:

                              (i)  if the decision is made by a vote—a majority of those persons who cast a valid vote decide that they want to approve the agreement; or

                             (ii)  otherwise—a majority of those persons decide that they want to approve the agreement.

98D  Employer must not lodge unapproved agreement

             (1)  An employer contravenes this subsection if:

                     (a)  the employer lodges a workplace agreement (other than a greenfields agreement); and

                     (b)  the agreement has not been approved in accordance with section 98C.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

Division 5Lodgment

99  Employer must lodge certain workplace agreements with the Employment Advocate

             (1)  If an AWA, an employee collective agreement or a union collective agreement has been approved in accordance with section 98C, the employer must lodge the agreement, in accordance with section 99B, within 14 days after the approval.

             (2)  If a union greenfields agreement has been made, the employer must lodge the agreement, in accordance with section 99B, within 14 days after the agreement was made.

             (3)  Subsections (1) and (2) are civil remedy provisions.

Note:          See Division 11 for provisions on enforcement.

99A  Lodging multiple-business agreement without authorisation

             (1)  An employer contravenes this section if:

                     (a)  the employer lodges a multiple-business agreement; and

                     (b)  the agreement has not been authorised under section 96F.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

99B  Lodging of workplace agreement documents with the Employment Advocate

             (1)  The employer in relation to a workplace agreement lodges the workplace agreement with the Employment Advocate if:

                     (a)  the employer lodges a declaration under subsection (2); and

                     (b)  a copy of the workplace agreement is annexed to the declaration.

             (2)  An employer lodges a declaration with the Employment Advocate if:

                     (a)  the employer gives it to the Employment Advocate; and

                     (b)  it meets the form requirements mentioned in subsection (3).

Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

             (3)  The Employment Advocate may, by notice published in the Gazette, set out requirements for the form of a declaration for the purposes of paragraph (2)(b).

             (4)  A declaration is given to the Employment Advocate for the purposes of subsection (2) only if the declaration is actually received by the Employment Advocate.

Note:          This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) and section 160 of the Evidence Act 1995 do not apply to lodgment of a declaration.

             (5)  The Employment Advocate is not required to consider or determine whether any of the requirements of this Part have been met in relation to the making or content of anything annexed to a declaration lodged in accordance with subsection (2).

99C  Employment Advocate must issue receipt for lodgment of declaration for workplace agreement

             (1)  If a declaration is lodged under subsection 99B(2), the Employment Advocate must issue a receipt for the lodgment.

             (2)  The Employment Advocate must give a copy of the receipt to:

                     (a)  the employer in relation to the workplace agreement; and

                     (b)  if the workplace agreement is an AWA—the employee; and

                     (c)  if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.

99D  Employer must notify employees after lodging workplace agreement

             (1)  An employer that has received a receipt under section 99C in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment is subject to the agreement when the employer receives the receipt are given a copy of the receipt within 21 days.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

             (3)  This section does not apply in relation to a greenfields agreement.

Division 6Operation of workplace agreements and persons bound

100  When a workplace agreement is in operation

             (1)  A workplace agreement comes into operation on the day the agreement is lodged.

             (2)  A workplace agreement comes into operation even if the requirements in Divisions 3 and 4 have not been met in relation to the agreement.

             (3)  A multiple-business agreement comes into operation only if it has been authorised under section 96F.

             (4)  A workplace agreement ceases to be in operation if:

                     (a)  it is terminated in accordance with Division 9; or

                     (b)  in the case of an AWA—it is replaced by another AWA; or

                     (c)  the Court declares it to be void under paragraph 105F(a).

             (5)  A collective agreement ceases to be in operation in relation to an employee if it has:

                     (a)  passed its nominal expiry date; and

                     (b)  been replaced by another collective agreement in relation to that employee.

Note:          Part VIAA sets out the circumstances in which a workplace agreement binding an employer because of transmission of business will cease to operate.

             (6)  A multiple-business agreement ceases to operate in relation to a single business (or a part of a single business) if:

                     (a)  the multiple-business agreement came into operation on a particular day; and

                     (b)  a collective agreement (other than a multiple-business agreement) was lodged on a later day; and

                     (c)  the multiple-business agreement and the collective agreement apply in relation to the same single business (or the same part of the single business).

 Example:   Employers A, B and C lodge a multiple-business agreement which has a nominal expiry date 5 years after it is lodged. Six months later employer B lodges a collective agreement that applies in relation to its single business. This means that the multiple-business agreement ceases to operate in relation to that single business.

             (7)  If a workplace agreement has ceased operating under subsection (4), it can never operate again.

             (8)  If a workplace agreement has ceased operating in relation to an employee because of subsection (5), the agreement can never operate again in relation to that employee.

             (9)  If a multiple-business agreement has ceased operating in relation to a single business (or a part of a single business), the agreement can never operate again in relation to that single business (or part of a business).

           (10)  If:

                     (a)  a person or entity is the employer bound by a workplace agreement; and

                     (b)  the person or entity ceases to be an employer within the meaning of subsection 4AB(1);

the agreement ceases to be in operation.

           (11)  Despite subsection (10), if the agreement mentioned in that subsection is a multiple-business agreement, it ceases to be in operation only in relation to a single business or part of a single business carried on by the person or entity.

100A  Relationship between overlapping workplace agreements

             (1)  Only one workplace agreement can have effect at a particular time in relation to a particular employee.

             (2)  A collective agreement has no effect in relation to an employee while an AWA operates in relation to the employee.

             (3)  If:

                     (a)  a collective agreement (the first agreement) binding an employee is in operation; and

                     (b)  another collective agreement (the later agreement) binding the employee is lodged before the nominal expiry date of the first agreement;

the later agreement has no effect in relation to the employee until the nominal expiry date of the first agreement.

Note:          After that date, the first agreement ceases operating in relation to the employee (see subsection 100(5)), and the later agreement takes effect in relation to the employee.

100B  Effect of awards while workplace agreement is in operation

                   An award has no effect in relation to an employee while a workplace agreement operates in relation to the employee.

100C  Workplace agreement displaces certain Commonwealth laws

             (1)  To the extent of any inconsistency, a workplace agreement displaces prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.

             (2)  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.

100D  Persons bound by workplace agreements

                   A workplace agreement that is in operation binds:

                     (a)  the employer in relation to the agreement; and

                     (b)  all persons whose employment is, at any time when the agreement is in operation, subject to the agreement; and

                     (c)  if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations of employees with which the employer made the agreement.

Note:          A person can be bound by a workplace agreement because of Part VIAA (which deals with transmission of business).

Division 7Content of workplace agreements

Subdivision ARequired content

Note:       For the operation of the Australian Fair Pay and Conditions Standard, see Part VA.

101  Nominal expiry date

             (1)  The nominal expiry date of a workplace agreement is:

                     (a)  in the case of a greenfields agreement:

                              (i)  if a date is specified in the agreement as its nominal expiry date, and that date is no later than the first anniversary of the date on which the agreement was lodged—that specified date; or

                             (ii)  otherwise—the first anniversary of the date on which the agreement was lodged; or

                     (b)  otherwise:

                              (i)  if a date is specified in the agreement as its nominal expiry date, and that date is no later than the fifth anniversary of the date on which the agreement was lodged—that specified date; or

                             (ii)  otherwise—the fifth anniversary of the date on which the agreement was lodged.

             (2)  However, if the agreement has been varied to extend its nominal expiry date, the nominal expiry date of the agreement is:

                     (a)  in the case of a greenfields agreement—the earlier of the following dates:

                              (i)  the date specified in the agreement as varied as its nominal expiry date;

                             (ii)  the first anniversary of the date on which the agreement was lodged; or

                     (b)  otherwise—the earlier of the following dates:

                              (i)  the date specified in the agreement as varied as its nominal expiry date;

                             (ii)  the fifth anniversary of the date on which the agreement was lodged.

101A  Workplace agreement to include dispute settlement procedures

             (1)  A workplace agreement must include procedures for settling disputes (dispute settlement procedures) about matters arising under the agreement between:

                     (a)  the employer; and

                     (b)  the employees whose employment will be subject to the agreement.

             (2)  If a workplace agreement does not include dispute settlement procedures, the agreement is taken to include the model dispute resolution process mentioned in Part VIIA.

101B  Protected award conditions

             (1)  This section applies if:

                     (a)  a person’s employment is subject to a workplace agreement; and

                     (b)  protected award conditions would have effect (but for the agreement) in relation to the employment of the person.

             (2)  Those protected award conditions:

                     (a)  are taken to be included in the workplace agreement; and

                     (b)  have effect in relation to the employment of that person; and

                     (c)  have that effect subject to any terms of the workplace agreement that expressly exclude or modify all or part of them.

             (3)  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.

outworker conditions means conditions (other than pay) for outworkers, but only to the extent necessary to ensure that their overall conditions of employment are fair and reasonable in comparison with the 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.

protected allowable award matters means the following matters:

                     (a)  rest breaks;

                     (b)  incentive-based payments and bonuses;

                     (c)  annual leave loadings;

                     (d)  observance of days declared by or under a law of a State or Territory to be observed generally within that State or Territory, or a region of that State or Territory, as public holidays by employees who work in that State, Territory or region, and entitlements of employees to payment in respect of those days;

                     (e)  monetary allowances for:

                              (i)  expenses incurred in the course of employment; or

                             (ii)  responsibilities or skills that are not taken into account in rates of pay for employees; or

                            (iii)  disabilities associated with the performance of particular tasks or work in particular conditions or locations;

                      (f)  loadings for working overtime or for shift work;

                     (g)  penalty rates;

                     (h)  outworker conditions;

                      (i)  any other matter specified in the regulations.

Note:          These matters are the same as certain allowable award matters mentioned in section 116.

protected award conditions means the terms of an award, as in force from time to time, to the extent that those terms:

                     (a)  are about protected allowable award matters; and

                     (b)  are not about:

                              (i)  matters mentioned in section 116B; or

                             (ii)  any other matters specified in the regulations.

101C  Calling up content of other documents

             (1)  A workplace agreement may incorporate by reference terms from an industrial instrument mentioned in subsection (2) only if the requirements in subsection (3) are satisfied.

             (2)  The industrial instruments are as follows:

                     (a)  a workplace agreement;

                     (b)  an award.

Note:          For pre-reform certified agreements, see clause 9 in Schedule 14.

             (3)  The requirements are as follows:

                     (a)  if the industrial instrument is an award:

                              (i)  just before the agreement is made the award regulates any term or condition of employment of persons engaged in a particular kind of work; and

                             (ii)  the employment of a person engaged in that kind of work will be subject to the agreement when the agreement comes into operation; and

                            (iii)  the award is binding on the employer in relation to the agreement just before the agreement is made;

                     (b)  if the industrial instrument is a workplace agreement—it regulates, just before the agreement mentioned in subsection (1) is made, the employment of at least one person whose employment will be subject to the agreement mentioned in subsection (1) when that agreement comes into operation.

             (4)  If those requirements are satisfied, the workplace agreement may incorporate terms by reference from the industrial instrument:

                     (a)  as in operation just before the agreement is made; or

                     (b)  as varied from time to time.

             (5)  A term of a workplace agreement is void to the extent that:

                     (a)  it incorporates by reference terms from an industrial instrument mentioned in subsection (2); and

                     (b)  the requirements in subsection (3) are not satisfied.

             (6)  A term of a workplace agreement is void to the extent that it incorporates by reference terms from any of the following instruments (other than an instrument mentioned in subsection (2)):

                     (a)  an award or agreement regulating terms and conditions of employment that is in force under a law of a State (other than a contract of employment);

                     (b)  an agreement, arrangement, deed or memorandum of understanding, that:

                              (i)  regulates terms and conditions of employment; and

                             (ii)  was created by a process of collective negotiation;

                     (c)  an industrial instrument specified in the regulations.

             (7)  A term of a workplace agreement is void to the extent that it applies or adopts terms from an instrument mentioned in subsection (2) or (6), without incorporating those terms by reference in accordance with this section.

Subdivision BProhibited content

101D  Prohibited content

                   The regulations may specify matters that are prohibited content for the purposes of this Act.

101E  Employer must not lodge agreement containing prohibited content

             (1)  An employer contravenes this subsection if:

                     (a)  the employer lodges a workplace agreement (or a variation to a workplace agreement); and

                     (b)  the agreement (or the agreement as varied) contains prohibited content; and

                     (c)  the employer was reckless as to whether the agreement (or the agreement as varied) contains prohibited content.

             (2)  Subsection (1) does not apply if:

                     (a)  before the agreement (or variation) was lodged, the Employment Advocate advised the employer that the agreement (or the agreement as varied) did not contain prohibited content; and

                     (b)  that advice was in the form specified in regulations made for the purposes of this subsection.

             (3)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

101F  Prohibited content in workplace agreement is void

                   A term of a workplace agreement is void to the extent that it contains prohibited content.

Note 1:       The Employment Advocate can vary the workplace agreement to remove prohibited content (see section 101K).

Note 2:       For civil remedy provisions relating to including prohibited content in a workplace agreement, see sections 101E, 101M and 101N.

101G  Initiating consideration of removal of prohibited content

             (1)  The Employment Advocate may exercise his or her power under section 101K to vary a workplace agreement to remove prohibited content:

                     (a)  on his or her own initiative; or

                     (b)  on application by any person.

             (2)  This section and sections 101H, 101I and 101K are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Employment Advocate’s decision whether to make a variation under section 101K.

101H  Employment Advocate must give notice that he or she is considering variation

             (1)  If the Employment Advocate is considering making a variation to a workplace agreement under section 101K, the Employment Advocate must give the persons mentioned in subsection (2) a written notice meeting the requirements in subsection 101I(1).

             (2)  The persons are:

                     (a)  the employer in relation to the workplace agreement; and

                     (b)  if the workplace agreement is an AWA—the employee; and

                     (c)  if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.

101I  Matters to be contained in notice

             (1)  The requirements mentioned in subsection 101H(1) are that the notice must:

                     (a)  be dated; and

                     (b)  state that the Employment Advocate is considering making the variation; and

                     (c)  state the reasons why the Employment Advocate is considering making the variation; and

                     (d)  set out the terms of the variation; and

                     (e)  invite each person mentioned in subsection (2) to make a written submission to the Employment Advocate about whether the Employment Advocate should make the variation; and

                      (f)  state that any submission must be made within the period (the objection period) of 28 days after the date of the notice.

             (2)  The persons are:

                     (a)  the employer in relation to the workplace agreement; and

                     (b)  each person whose employment is subject to the agreement at the date of the notice; and

                     (c)  if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.

101J  Employer must ensure employees have ready access to notice

             (1)  An employer that has received a notice under section 101H in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment is subject to the agreement at a time during the objection period are given a copy of the notice as soon as practicable.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

101K  Employment Advocate must remove prohibited content from agreement

             (1)  If the Employment Advocate is satisfied that a term of the workplace agreement contains prohibited content, the Employment Advocate must vary the agreement so as to remove that content.

             (2)  In making a decision under subsection (1), the Employment Advocate must consider all written submissions (if any) received within the objection period from persons mentioned in subsection 101I(2).

             (3)  The Employment Advocate must not make the variation before the end of the objection period.

             (4)  If the Employment Advocate decides to make the variation, he or she must:

                     (a)  give the persons mentioned in subsection 101H(2) written notice of the decision, including the terms of the variation; and

                     (b)  if the workplace agreement is a collective agreement—publish a notice in the Gazette stating that the variation has been made and setting out particulars of the variation.

101L  Employer must give employees notice of removal of prohibited content

             (1)  An employer that has received a notice under subsection 101K(4) in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment is subject to the agreement when the employer receives the notice are given a copy of the notice within 21 days.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

101M  Seeking to include prohibited content in an agreement

             (1)  A person contravenes this subsection if:

                     (a)  the person seeks to include a term:

                              (i)  in a workplace agreement in the course of negotiations for the agreement; or

                             (ii)  in a variation to a workplace agreement in the course of negotiations for the variation; and

                     (b)  that term contains prohibited content; and

                     (c)  the person is reckless as to whether the term contains prohibited content.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

101N  Misrepresentations about prohibited content

             (1)  A person contravenes this subsection if:

                     (a)  the person makes a misrepresentation in relation to a workplace agreement (or a variation to a workplace agreement) that a particular term does not contain prohibited content; and

                     (b)  the person is reckless as to whether the term contains prohibited content.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

Division 8Varying a workplace agreement

Subdivision AGeneral

102  Varying a workplace agreement

             (1)  The following persons may make a variation, in writing, to a workplace agreement that is in operation:

                     (a)  in the case of an AWA—the employer and the employee;

                     (b)  in the case of an employee collective agreement or an employer greenfields agreement—the employer and the persons whose employment will be subject to the agreement as varied;

                     (c)  in the case of a union collective agreement or a union greenfields agreement—the employer and the one or more organisations of employees that are bound by the agreement.

Example:    A workplace agreement may be varied to provide additional pay.

             (2)  A workplace agreement cannot be varied except in accordance with:

                     (a)  this Division; or

                     (b)  section 101K (which deals with prohibited content); or

                     (c)  section 352A (which deals with discriminatory agreements); or

                     (d)  an order of the Court under section 105G.

Note:          Subsection (2) would not apply where the obligations under the agreement can change because of the terms of the agreement itself.

102A  When a variation to a workplace agreement is made

                   For the purposes of this Act, a variation to a workplace agreement is made at whichever of the following times is applicable:

                     (a)  for an AWA—the time when the variation is approved in accordance with section 102F;

                     (b)  for an employee collective agreement—the time when the variation is approved in accordance with section 102F;

                     (c)  for a union collective agreement—the time when the employer and the organisation or organisations agree to the terms of the variation;

                     (d)  for a union greenfields agreement—the time when the employer and the organisation or organisations agree to the terms of the variation;

                     (e)  for an employer greenfields agreement—the time when the employer lodges the variation (see section 102J).

Subdivision BPre-lodgment procedure for variations

102B  Eligible employee in relation to variation of workplace agreement

                   For the purposes of this Subdivision, an eligible employee in relation to a variation to a workplace agreement is:

                     (a)  in the case of an AWA—the employee; or

                     (b)  in the case of a collective agreement:

                              (i)  a person whose employment is subject to the agreement; or

                             (ii)  a person employed by the employer whose employment will be subject to the agreement as varied.

102C  Providing employees with ready access and information statement

             (1)  If an employer intends to have a variation to a workplace agreement approved under section 102F, the employer must take reasonable steps to ensure that all eligible employees in relation to the variation either have, or have ready access to, the variation in writing during the period:

                     (a)  beginning 7 days before the variation is approved; and

                     (b)  ending when the variation is approved.

             (2)  The employer must take reasonable steps to ensure that all eligible employees in relation to the variation are given an information statement at least 7 days before the variation is approved.

             (3)  Despite subsections (1) and (2), if the variation is to a collective agreement and a person becomes an eligible employee at a time during the period mentioned in subsection (1), the employer must take reasonable steps to ensure that:

                     (a)  the person is given an information statement at or before that time; and

                     (b)  the person either has, or has ready access to, the variation in writing during the period:

                              (i)  beginning at that time; and

                             (ii)  ending when the variation is approved under section 102F.

             (4)  The information statement mentioned in subsection (2) and paragraph (3)(a) must contain:

                     (a)  information about the time at which and the manner in which the approval will be sought under section 102F; and

                     (b)  if the relevant workplace agreement is an AWA—information about the effect of sections 97 and 97A (which deal with bargaining agents); and

                     (c)  if the relevant workplace agreement is an employee collective agreement or employer greenfields agreement—information about the effect of sections 97 and 97B (which deal with bargaining agents); and

                     (d)  any other information that the Employment Advocate requires by notice published in the Gazette.

             (5)  If a waiver has been made under section 102D in relation to the variation, subsection (1) and paragraph (3)(b) do not apply in relation to a time after the waiver takes effect.

             (6)  For the purposes of this section, if because of the variation, the agreement as varied would incorporate terms from an industrial instrument mentioned in subsection 101C(2), the eligible employees have ready access to the variation only if they have ready access to that instrument in writing.

             (7)  To avoid doubt, if the content of the variation is changed during the period mentioned in subsection (1), the change results in a separate variation for the purposes of this section.

Note:          If the content of a variation for which the employer intends to seek approval is changed, the procedural steps set out in subsections (1), (2) and (3) must be repeated for the resulting separate variation.

Contravention—ready access

             (8)  An employer contravenes this subsection if:

                     (a)  the employer lodges a variation to a workplace agreement; and

                     (b)  the employer failed to comply with subsection (1) or (if applicable) paragraph (3)(b) in relation to the variation.

Contravention—information statement

             (9)  An employer contravenes this subsection if:

                     (a)  the employer lodges a variation to a workplace agreement; and

                     (b)  the employer failed to comply with subsection (2) or (if applicable) paragraph (3)(a) in relation to the variation.

           (10)  Subsections (8) and (9) are civil remedy provisions.

Note:          See Division 11 for provisions on enforcement.

           (11)  An employer cannot contravene subsection (8) or (9) more than once in relation to the lodgment of a particular variation.

102D  Employees may waive ready access

             (1)  The persons mentioned in subsection (2) may make a waiver under this section in relation to a variation to a workplace agreement.

             (2)  The persons are all the eligible employees at the time the waiver is made.

             (3)  The waiver must be in writing and dated.

             (4)  The waiver is made when all the persons mentioned in subsection (2) sign the waiver.

             (5)  The waiver takes effect when it is made.

102E  Prohibition on withdrawal from variation to union collective agreement

             (1)  An employer that has made a variation to a union collective agreement or a union greenfields agreement must take reasonable steps to seek approval for the variation under section 102F, within a reasonable period after the variation was made.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

102F  Approval of a variation to a workplace agreement

             (1)  A variation to an AWA is approved if:

                     (a)  the variation is signed and dated by the employee and the employer; and

                     (b)  those signatures are witnessed; and

                     (c)  if the employee is under the age of 18 years:

                              (i)  the variation is signed and dated by an appropriate person (such as a parent or guardian of the employee, but not the employer) on behalf of the employee, for the purpose of indicating that person’s consent to the employee making the variation; and

                             (ii)  that person is aged at least 18 years; and

                            (iii)  that person’s signature is witnessed.

             (2)  A variation to a collective agreement is approved if:

                     (a)  the employer has given all of the persons employed at the time whose employment:

                              (i)  is subject to the agreement; or

                             (ii)  will be subject to the agreement as varied;

                            a reasonable opportunity to decide whether they want to approve the variation; and

                     (b)  either:

                              (i)  if the decision is made by a vote—a majority of those persons who cast a valid vote decide that they want to approve the variation; or

                             (ii)  otherwise—a majority of those persons decide that they want to approve the variation.

102G  Employer must not lodge unapproved variation

             (1)  An employer contravenes this section if:

                     (a)  the employer lodges a variation to a workplace agreement; and

                     (b)  the variation has not been approved in accordance with section 102F.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

Subdivision CLodgment of variations

102H  Employer must lodge variations with the Employment Advocate

             (1)  If a variation has been approved in accordance with section 102F, the employer must lodge the variation, in accordance with section 102J, within 14 days after the variation was approved.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

102I  Lodging variation to multiple-business agreement without authorisation

             (1)  An employer contravenes this subsection if:

                     (a)  the employer lodges a variation to a multiple-business agreement; and

                     (b)  the variation has not been authorised under section 96F.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

102J  Lodging of variation documents with the Employment Advocate

             (1)  The employer in relation to a variation to a workplace agreement lodges the variation with the Employment Advocate if:

                     (a)  the employer lodges a declaration under subsection (2); and

                     (b)  a copy of the variation is annexed to the declaration.

             (2)  An employer lodges a declaration with the Employment Advocate if:

                     (a)  the employer gives it to the Employment Advocate; and

                     (b)  it meets the form requirements mentioned in subsection (3).

Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

             (3)  The Employment Advocate may, by notice published in the Gazette, set out requirements for the form of a declaration for the purposes of paragraph (2)(b).

             (4)  A declaration is given to the Employment Advocate for the purposes of subsection (2) only if the declaration is actually received by the Employment Advocate.

Note:          This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) and section 160 of the Evidence Act 1995 do not apply to lodgment of a declaration.

             (5)  The Employment Advocate is not required to consider or determine whether any of the requirements of this Part have been met in relation to the making or content of anything annexed to a declaration lodged in accordance with subsection (2).

102K  Employment Advocate must issue receipt for lodgment of declaration for variation

             (1)  If a declaration is lodged under subsection 102J(2), the Employment Advocate must issue a receipt for the lodgment.

             (2)  The Employment Advocate must give a copy of the receipt to:

                     (a)  the employer in relation to the relevant workplace agreement; and

                     (b)  if the relevant workplace agreement is an AWA—the employee; and

                     (c)  if the relevant workplace agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.

102L  Employer must notify employees after lodging variation

             (1)  An employer that has received a receipt under section 102K in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment is subject to the agreement when the employer receives the receipt are given a copy of the receipt within 21 days.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

Subdivision DWhen a variation comes into operation

102M  When a variation comes into operation

             (1)  A variation to a workplace agreement comes into operation when the variation is lodged with the Employment Advocate in accordance with section 102J.

             (2)  The variation comes into operation even if the requirements in Division 3 and Subdivision B of this Division have not been met in relation to the variation.

Division 9Terminating a workplace agreement

Subdivision AGeneral

103  Types of termination

             (1)  A workplace agreement may be terminated:

                     (a)  by approval (see Subdivisions B and C); or

                     (b)  unilaterally (see Subdivision D).

             (2)  A workplace agreement is terminated when:

                     (a)  a termination of the agreement is lodged with the Employment Advocate in accordance with section 103H; or

                     (b)  a declaration to terminate the agreement in accordance with subsection 103K(2) is lodged with the Employment Advocate in accordance with section 103N; or

                     (c)  a declaration to terminate the agreement in accordance with subsection 103L(2) is lodged with the Employment Advocate in accordance with section 103N.

Subdivision BTermination by approval (pre-lodgment procedure)

103A  Terminating a workplace agreement by approval

                   A workplace agreement may be terminated in accordance with this Subdivision by the following:

                     (a)  in the case of an AWA—the employer and the employee;

                     (b)  in the case of an employee collective agreement or an employer greenfields agreement—the employer and the employees whose employment is subject to the agreement;

                     (c)  in the case of a union collective agreement or a union greenfields agreement—the employer and the one or more organisations of employees that are bound by the agreement.

103B  Eligible employee in relation to termination of workplace agreement

                   For the purposes of this Subdivision, an eligible employee in relation to a termination of a workplace agreement in accordance with this Subdivision is:

                     (a)  in the case of an AWA—the employee; or

                     (b)  in the case of a collective agreement—a person employed at the time whose employment is subject to the agreement.

103C  Providing employees with information statement

             (1)  If an employer intends to have the termination of a workplace agreement approved under section 103E, the employer must take reasonable steps to ensure that all eligible employees in relation to the termination are given an information statement at or before the start of the period of 7 days ending when the termination is approved.

             (2)  Despite subsection (1), if the relevant workplace agreement is a collective agreement and a person becomes an eligible employee at a time during the period mentioned in subsection (1), the employer must take reasonable steps to ensure that the person is given an information statement at or before that time.

             (3)  The information statement mentioned in subsections (1) and (2) must contain:

                     (a)  information about the time at which and the manner in which the approval will be sought under section 103E; and

                     (b)  if the relevant workplace agreement is an AWA—information about the effect of sections 97 and 97A (which deal with bargaining agents); and

                     (c)  any other information that the Employment Advocate requires by notice published in the Gazette.

Contravention—information statement

             (4)  An employer contravenes this subsection if:

                     (a)  the employer lodges a declaration to terminate a workplace agreement; and

                     (b)  the employer failed to comply with subsection (1) or (if applicable) subsection (2) in relation to the termination.

             (5)  Subsection (4) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

             (6)  An employer cannot contravene subsection (4) more than once in relation to the lodgment of a particular termination.

103D  Prohibition on withdrawal from variation to union collective agreement

             (1)  An employer that has agreed to terminate a union collective agreement or a union greenfields agreement with the organisation or organisations bound by the agreement must take reasonable steps to seek approval for the termination under section 103E, within a reasonable period after agreeing to do so.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

103E  Approval of a termination

             (1)  A termination of an AWA is approved if:

                     (a)  the employer and employee make a written termination agreement to terminate the AWA; and

                     (b)  the termination agreement is signed and dated by the employee and the employer; and

                     (c)  those signatures are witnessed; and

                     (d)  if the employee is under the age of 18 years:

                              (i)  the termination agreement is signed and dated by an appropriate person (such as a parent or guardian of the employee, but not the employer) on behalf of the employee, for the purpose of indicating that person’s consent to the employee terminating the AWA; and

                             (ii)  that person is aged at least 18 years; and

                            (iii)  that person’s signature is witnessed.

             (2)  A termination of a collective agreement is approved if:

                     (a)  the employer has given all of the persons employed at the time whose employment is subject to the agreement a reasonable opportunity to decide whether they want to approve the termination; and

                     (b)  either:

                              (i)  if the decision is made by a vote—a majority of those persons who cast a valid vote decide that they want to approve the termination; or

                             (ii)  otherwise—a majority of those persons decide that they want to approve the termination.

103F  Employer must not lodge unapproved termination

             (1)  An employer contravenes this subsection if:

                     (a)  the employer lodges a termination of a workplace agreement; and

                     (b)  the termination has not been approved in accordance with section 103E.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

Subdivision CTermination by approval (lodgment)

103G  Employer must lodge termination with the Employment Advocate

             (1)  If a termination has been approved in accordance with section 103E, the employer must lodge the termination, in accordance with section 103H, within 14 days after the termination was approved.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

103H  Lodging termination documents with the Employment Advocate

             (1)  The employer in relation to a workplace agreement to be terminated lodges the termination with the Employment Advocate if:

                     (a)  the employer lodges a declaration under subsection (2) for the termination of the workplace agreement; and

                     (b)  if the workplace agreement is an AWA—a copy of the termination agreement is annexed to the declaration.

             (2)  An employer lodges a declaration with the Employment Advocate if:

                     (a)  the employer gives it to the Employment Advocate; and

                     (b)  it meets the form requirements mentioned in subsection (3).

Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

             (3)  The Employment Advocate may, by notice published in the Gazette, set out requirements for the form of a declaration for the purposes of paragraph (2)(b).

             (4)  A declaration is given to the Employment Advocate for the purposes of subsection (2) only if the declaration is actually received by the Employment Advocate.

Note:          This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) and section 160 of the Evidence Act 1995 do not apply to lodgment of a declaration.

             (5)  The Employment Advocate is not required to consider or determine whether any of the requirements of this Division (other than this section) have been met in relation to the termination.

103I  Employment Advocate must issue receipt for lodgment of declaration for termination

             (1)  If a declaration is lodged under subsection 103H(2), the Employment Advocate must issue a receipt for the lodgment.

             (2)  The Employment Advocate must give a copy of the receipt to:

                     (a)  the employer in relation to the relevant workplace agreement; and

                     (b)  if the relevant workplace agreement is an AWA—the employee; and

                     (c)  if the relevant workplace agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.

103J  Employer must notify employees after lodging termination

             (1)  An employer that has received a receipt under section 103I in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment was subject to the agreement just before the declaration was lodged are given a copy of the receipt within 21 days.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

Subdivision DUnilateral termination after nominal expiry date

103K  Unilateral termination in a manner provided for in workplace agreement

             (1)  This section applies if a workplace agreement provides for a manner of terminating the agreement after its nominal expiry date.

             (2)  Any of the following persons may terminate the agreement by lodging a declaration in accordance with section 103N:

                     (a)  the employer in relation to the agreement;

                     (b)  a majority of the employees whose employment is subject to the agreement when the notice mentioned in subsection (4) is given;

                     (c)  in the case of an AWA—a bargaining agent at the request of the employer or the employee;

                     (d)  an organisation of employees that is bound by the agreement.

Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

             (3)  However, this may be done only if:

                     (a)  the nominal expiry date of the workplace agreement has passed; and

                     (b)  all the requirements in the agreement for terminating the agreement are met.

             (4)  At least 14 days before the lodgment, the person or persons intending to lodge the declaration must take reasonable steps to ensure that the following are given written notice of the termination:

                     (a)  the employer in relation to the agreement;

                     (b)  each employee whose employment is subject to the agreement when the notice is given;

                     (c)  an organisation of employees that is bound by the agreement.

             (5)  The notice must:

                     (a)  state that the workplace agreement is to be terminated in the manner provided for by the agreement; and

                     (b)  be in the form (if any) that the Employment Advocate requires by notice published in the Gazette; and

                     (c)  contain the information (if any) that the Employment Advocate requires by notice published in the Gazette.

             (6)  A person contravenes this subsection if:

                     (a)  the person lodges a declaration to terminate a workplace agreement under subsection (2); and

                     (b)  the person failed to comply with subsection (4) or (5).

             (7)  Subsection (6) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

             (8)  This section does not apply in relation to a multiple-business agreement.

103L  Unilateral termination with 90 days written notice

             (1)  This section applies whether or not a workplace agreement provides for a manner of terminating the agreement after its nominal expiry date.

             (2)  Any of the following persons may terminate the agreement by lodging a declaration in accordance with section 103N:

                     (a)  the employer in relation to the agreement;

                     (b)  a majority of the employees whose employment is subject to the agreement when the notice mentioned in subsection (4) is given;

                     (c)  in the case of an AWA—a bargaining agent at the request of the employer or the employee;

                     (d)  an organisation of employees that is bound by the agreement.

Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

             (3)  However, this may be done only if the nominal expiry date of the workplace agreement has passed.

             (4)  At least 90 days before the lodgment, the person or persons intending to lodge the declaration must take reasonable steps to ensure that:

                     (a)  the following are given written notice of the termination:

                              (i)  the employer in relation to the agreement;

                             (ii)  each employee whose employment is subject to the agreement when the notice is given;

                            (iii)  an organisation of employees that is bound by the agreement; and

                     (b)  if the person giving the notice is the employer bound by the agreement—a written copy of the undertakings (if any) made by the employer under section 103M.

             (5)  The notice must:

                     (a)  state that the workplace agreement is to be terminated; and

                     (b)  specify the day on which the person or persons propose to lodge the notice; and

                     (c)  be in the form (if any) that the Employment Advocate requires by notice published in the Gazette; and

                     (d)  contain the information (if any) that the Employment Advocate requires by notice published in the Gazette.

             (6)  A person contravenes this subsection if:

                     (a)  the person lodges a declaration to terminate a workplace agreement under subsection (2); and

                     (b)  the person failed to comply with subsection (4) or (5).

Note:          See Division 11 for provisions on enforcement.

             (7)  Subsection (6) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

             (8)  This section does not apply in relation to a multiple-business agreement.

103M  Undertakings about post-termination conditions

             (1)  An employer intending to terminate a workplace agreement under subsection 103L(2) may make undertakings as to the terms and conditions of employment of employees who were bound by the workplace agreement just before it was terminated.

             (2)  The undertakings come into operation on the day that the workplace agreement is terminated.

             (3)  The undertakings cease to operate in relation to an employee when the employee’s employment becomes subject to a later workplace agreement.

             (4)  Subject to this section, the following provisions apply to the undertakings as if they were a workplace agreement in operation:

                     (a)  Part VIII;

                     (b)  Part V;

                     (c)  any other provision of this Act specified in the regulations.

             (5)  An employer contravenes this subsection if:

                     (a)  the employer lodges a declaration to terminate a workplace agreement under subsection (2); and

                     (b)  the employer has made undertakings in relation to that termination; and

                     (c)  the employer did not annex a copy of the undertakings to the declaration.

             (6)  Subsection (5) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

             (7)  If undertakings have ceased operating in relation to an employee because of subsection (3), they can never operate again in relation to that employee.

103N  Lodging unilateral termination documents with the Employment Advocate

             (1)  A person lodges a declaration to terminate a workplace agreement under section 103K or 103L with the Employment Advocate if:

                     (a)  the person gives it to the Employment Advocate; and

                     (b)  it meets the form requirements mentioned in subsection (3).

Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

             (2)  If the person is the employer in relation to the agreement, the employer lodges undertakings in relation to the termination if:

                     (a)  the employer lodges a declaration under subsection (1); and

                     (b)  a copy of the undertakings is annexed to the declaration.

             (3)  The Employment Advocate may, by notice published in the Gazette, set out requirements for the form of a declaration for the purposes of paragraph (1)(b).

             (4)  A declaration is given to the Employment Advocate for the purposes of subsection (1) only if the declaration is actually received by the Employment Advocate.

Note:          This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) and section 160 of the Evidence Act 1995 do not apply to lodgment of a declaration.

             (5)  The Employment Advocate is not required to consider or determine whether any of the requirements of this Subdivision (apart from this section) have been met in relation to the termination.

103O  Employment Advocate must issue receipt for lodgment of declaration for notice of termination

             (1)  If a declaration is lodged under subsection 103N(1) the Employment Advocate must issue a receipt for the lodgment.

             (2)  The Employment Advocate must give a copy of the receipt to:

                     (a)  the person that lodged the declaration; and

                     (b)  the employer in relation to the relevant workplace agreement; and

                     (c)  if the relevant workplace agreement is an AWA—the employee; and

                     (d)  if the relevant workplace agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.

103P  Employer must notify employees after lodging notice of termination

             (1)  An employer that has received a receipt under section 103O in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment was subject to the agreement just before the declaration was lodged are given a copy of the receipt within 21 days.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

Subdivision EEffect of termination

103Q  When a termination takes effect

                   A termination takes effect even if:

                     (a)  the requirements in Division 3 have not been met in relation to the termination; or

                     (b)  in the case of a termination mentioned in paragraph 103(2)(a)—the requirements in Subdivision B have not been met in relation to the termination; or

                     (c)  in the case of a termination mentioned in paragraph 103(2)(b) or (c)—the requirements in subsections 103K(4) and (5) and 103L(4) and (5) have not been met in relation to the termination.

103R  Consequence of termination of agreement—application of other industrial instruments

             (1)  An industrial instrument mentioned in subsection (3) has no effect in relation to an employee if:

                     (a)  a workplace agreement operated in relation to the employee; and

                     (b)  the workplace agreement was terminated.

Note 1:       See Part VA for the operation of the Australian Fair Pay and Conditions Standard in these circumstances.

Note 2:       See subsections 103M(2), (3) and (4) for the operation of undertakings (if any) in these circumstances.

             (2)  Subsection (1) operates in relation to the period:

                     (a)  starting when the agreement is terminated; and

                     (b)  ending when another workplace agreement comes into operation in relation to the employee.

             (3)  The industrial instruments are as follows:

                     (a)  a workplace agreement;

                     (b)  an award.

Division 10Prohibited conduct

104  Coercion and duress

             (1)  A person must not:

                     (a)  engage in or organise, or threaten to engage in or organise, any industrial action; or

                     (b)  take, or threaten to take, other action; or

                     (c)  refrain, or threaten to refrain, from taking any action;

with intent to coerce another person to agree, or not to agree, to make, approve, lodge, vary or terminate a collective agreement.

             (2)  Subsection (1) does not apply to protected action (within the meaning of 108).

             (3)  A person must not coerce, or attempt to coerce, an employer or employee in relation to an AWA:

                     (a)  to appoint, or not to appoint, a particular person as a bargaining agent under subsection 97A(1); or

                     (b)  to terminate the appointment of a bargaining agent appointed under subsection 97A(1).

             (4)  A person must not coerce, or attempt to coerce, an employee of an employer:

                     (a)  not to make a request mentioned in subsection 97B(1) or (2) in relation to a collective agreement; or

                     (b)  to withdraw such a request.

             (5)  A person must not apply duress to an employer or employee in connection with an AWA.

             (6)  To avoid doubt, an employer does not apply duress to an employee for the purposes of subsection (5) merely because the employer requires the employee to make an AWA with the employer as a condition of employment.

             (7)  Subsections (1), (3), (4) and (5) are civil remedy provisions.

Note:          See Division 11 for provisions on enforcement.

104A  False or misleading statements

             (1)  A person contravenes this section if:

                     (a)  the person makes a false or misleading statement to another person; and

                     (b)  the person is reckless as to whether the statement is false or misleading; and

                     (c)  the making of that statement causes the other person:

                              (i)  to make, approve, lodge, vary or terminate a workplace agreement; or

                             (ii)  not to make, approve, lodge, vary or terminate a workplace agreement.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

104B  Employers not to discriminate between unionist and non-unionist

             (1)  An employer must not, in negotiating a collective agreement, or a variation to a collective agreement, 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)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

Division 11Contravention of civil remedy provisions

Note:       For other rules about civil remedy provisions, see Division 4 of Part VIII.

Subdivision AGeneral

105  General powers of Court not affected by this Division

                   This Division does not affect the following:

                     (a)  the powers of the Court under Part XIV;

                     (b)  any other powers of the Court.

105A  Workplace inspector may take over proceeding

             (1)  A workplace inspector may take over a proceeding that was instituted or is being carried on by another person for an order under this Division.

             (2)  If a workplace inspector takes over such a proceeding, he or she may:

                     (a)  carry it on further; or

                     (b)  decline to carry it on further (whether immediately or at a later stage of the proceeding).

105B  Standing for civil remedies

             (1)  Any of the following persons may apply to the Court for an order under this Division in relation to a workplace agreement:

                     (a)  an employee who is or will be bound by the agreement;

                     (b)  if the person who contravened the civil remedy provision was not the employer in relation to the agreement, and the provision is mentioned in subsection (2)—the employer;

                     (c)  an organisation of employees that is or will be bound by the agreement;

                     (d)  an organisation of employees that represents an employee who is or will be bound by the agreement (subject to subsection (3));

                     (e)  if the agreement is an AWA—a bargaining agent of the employee or of the employer;

                      (f)  a workplace inspector;

                     (g)  a person specified in regulations made for the purposes of this paragraph.

             (2)  The provisions are as follows:

                     (a)  subsection 97A(2);

                     (b)  subsection 101M(1);

                     (c)  subsection 101N(1);

                     (d)  subsection 103K(6);

                     (e)  subsection 103L(6);

                      (f)  subsection 104(1);

                     (g)  subsection 104(3);

                     (h)  subsection 104(5);

                      (i)  subsection 104A(1).

             (3)  An organisation of employees that represents an employee (as mentioned in paragraph (1)(d)) must not apply on behalf of an employee for a penalty or other remedy under this Division in relation to a contravention of a civil remedy provision unless:

                     (a)  the employee has requested the organisation to apply on the employee’s behalf; and

                     (b)  a member of the organisation is employed by the employee’s employer; and

                     (c)  the organisation is entitled, under its eligibility rules, to represent the industrial interests of the employee.

Subdivision BPecuniary penalty for contravention of civil remedy provisions

105C  Application of Subdivision

                   This Subdivision applies to a contravention by a person of a civil remedy provision in this Part.

105D  Court may order pecuniary penalty

             (1)  The Court may order the person who contravened the civil remedy provision to pay a pecuniary penalty of up to:

                     (a)  if the person is an individual—the maximum number of penalty units specified in subsection (2); or

                     (b)  if the person is a body corporate—5 times the maximum number of penalty units specified in subsection (2).

             (2)  The maximum number of penalty units is as follows:

                     (a)  for subsection 97A(2)—30 penalty units;

                     (b)  for subsection 97B(3)—30 penalty units;

                     (c)  for subsection 98(8)—30 penalty units;

                     (d)  for subsection 98(9)—30 penalty units;

                     (e)  for subsection 98B(1)—30 penalty units;

                      (f)  for subsection 98D(1)—60 penalty units;

                     (g)  for subsection 99(1)—30 penalty units;

                     (h)  for subsection 99(2)—30 penalty units;

                      (i)  for subsection 99A(1)—60 penalty units;

                      (j)  for subsection 99D(1)—30 penalty units;

                     (k)  for subsection 101E(1)—60 penalty units;

                      (l)  for subsection 101J(1)—30 penalty units;

                    (m)  for subsection 101L(1)—30 penalty units;

                     (n)  for subsection 101M(1)—60 penalty units;

                     (o)  for subsection 101N(1)—60 penalty units;

                     (p)  for subsection 102C(8)—30 penalty units;

                     (q)  for subsection 102C(9)—30 penalty units;

                      (r)  for subsection 102E(1)—30 penalty units;

                      (s)  for subsection 102G(1)—60 penalty units;

                      (t)  for subsection 102H(1)—30 penalty units;

                     (u)  for subsection 102I(1)—60 penalty units;

                     (v)  for subsection 102L(1)—30 penalty units;

                    (w)  for subsection 103C(4)—30 penalty units;

                     (x)  for subsection 103D(1)—30 penalty units;

                     (y)  for subsection 103F(1)—60 penalty units;

                      (z)  for subsection 103G(1)—30 penalty units;

                    (za)  for subsection 103J(1)—30 penalty units;

                    (zb)  for subsection 103K(6)—60 penalty units;

                    (zc)  for subsection 103L(6)—60 penalty units;

                    (zd)  for subsection 103M(5)—30 penalty units;

                    (ze)  for subsection 103P(1)—30 penalty units;

                    (zf)  for subsection 104(1)—60 penalty units;

                    (zg)  for subsection 104(3)—60 penalty units;

                    (zh)  for subsection 104(4)—60 penalty units;

                     (zi)  for subsection 104(5)—60 penalty units;

                     (zj)  for subsection 104A(1)—60 penalty units;

                    (zk)  for subsection 104B(1)—60 penalty units.

Subdivision COther remedies for contravention of certain civil remedy provisions

105E  Application of Subdivision

                   This Subdivision applies to a contravention by a person of any of the following civil remedy provisions in relation to a workplace agreement:

                     (a)  subsection 98D(1);

                     (b)  subsection 102G(1);

                     (c)  subsection 103F(1);

                     (d)  subsection 103K(6);

                     (e)  subsection 103L(6);

                      (f)  subsection 104(1);

                     (g)  subsection 104(5);

                     (h)  subsection 104A(1).

105F  Court may declare workplace agreement or part of workplace agreement void

                   The Court may make an order:

                     (a)  declaring that the workplace agreement is void; or

                     (b)  declaring that specified terms of the workplace agreement are void.

105G  Court may vary terms of workplace agreement

                   The Court may make an order varying the terms of the workplace agreement.

105H  Court may order that workplace agreement continues to operate despite termination

             (1)  This section applies if the workplace agreement has been terminated as a result of the contravention mentioned in section 105E.

             (2)  The Court may make an order declaring that the workplace agreement continues to operate despite the termination.

105I  Date of effect and preconditions for orders under sections 105F, 105G and 105H

             (1)  An order under section 105F, 105G or 105H takes effect from the date of the order or a later date specified in the order.

             (2)  The Court may make an order under section 105F, 105G or 105H only to the extent that the Court considers appropriate to remedy the following:

                     (a)  all or part of any loss or damage resulting from the contravention mentioned in section 105E;

                     (b)  prevention or reduction of all or part of that loss or damage.

105J  Court may order compensation

                   The Court may make an order that the person mentioned in section 105E pay compensation of such amount as the Court considers appropriate for any loss or damage resulting from the contravention suffered by an employee whose employment is subject to the agreement.

105K  Court may order injunction

             (1)  The Court may grant an injunction requiring the person mentioned in section 105E to cease contravening (or not to contravene) the civil remedy provision.

             (2)  Subsection (1) also applies in relation to a contravention of subsection 104B(1).

Part VCIndustrial action

Division 1Preliminary

106  Definitions

             (1)  In this Part:

authorised ballot agent means an authorised ballot agent as defined in section 109A for the purpose of Division 4.

bargaining period has the meaning given by section 107.

Court means the Federal Court of Australia or the Federal Magistrates Court.

industrial action has the meaning given by section 106A.

initiating notice has the meaning given by section 107.

initiating party has the meaning given by section 107.

negotiating party has the meaning given by section 107.

pattern bargaining has the meaning given by section 106B.

proposed collective agreement has the meaning given by section 107.

protected action has the meaning given by section 108.

protected action ballot means a ballot under Division 4.

             (2)  Expressions used in this Part that are also used in Part VB have the same meanings in this Part as they have in that Part.

106A  Meaning of industrial action

             (1)  For the purposes of this Act, industrial action means any action of the following kinds:

                     (a)  the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

                     (b)  a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

                     (c)  a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

                     (d)  the lockout of employees from their employment by the employer of the employees;

but does not include the following:

                     (e)  action by employees that is authorised or agreed to by the employer of the employees;

                      (f)  action by an employer that is authorised or agreed to by or on behalf of employees of the employer;

                     (g)  action by an employee if:

                              (i)  the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

                             (ii)  the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Note 1:       See also subsection (4), which deals with the burden of proof of the exception in subparagraph (g)(i) of this definition.

Note 2:       The issue of whether action that is not industrial in character is industrial action was considered by the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290. In that case, the Full Bench of the Commission drew a distinction between an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment as being clearly engaged in industrial action and an employee who does not attend for work on account of illness.

             (2)  For the purposes of this Act:

                     (a)  conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that employees are required to perform in the course of their employment; and

                     (b)  a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.

Meaning of lockout

             (3)  For the purposes of this section, an employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Burden of proof

             (4)  Whenever a person seeks to rely on subparagraph (g)(i) of the definition of industrial action in subsection (1), that person has the burden of proving that subparagraph (g)(i) applies.

106B  Meaning of pattern bargaining

What is pattern bargaining?

             (1)  For the purposes of this Part, a course of conduct by a person is pattern bargaining if:

                     (a)  the person is a negotiating party to 2 or more proposed collective agreements; and

                     (b)  the course of conduct involves seeking common wages or conditions of employment for 2 or more of those proposed collective agreements; and

                     (c)  the course of conduct extends beyond a single business.

Exception: terms or conditions determined as national standards

             (2)  The course of conduct is not pattern bargaining to the extent that the negotiating party is seeking, for 2 or more of the proposed collective agreements, terms or conditions of employment determined by the Full Bench in a decision establishing national standards.

Exception: genuinely trying to reach an agreement for a single business or part of a single business

             (3)  The course of conduct, to the extent that it relates to a particular single business or part of a single business, is not pattern bargaining if the negotiating party is genuinely trying to reach an agreement for the business or part.

             (4)  For the purposes of subsection (3), factors relevant to working out whether the negotiating party is genuinely trying to reach an agreement for a single business or part of a single business include (but are not limited to) the following:

                     (a)  demonstrating a preparedness to negotiate an agreement which takes into account the individual circumstances of the business or part;

                     (b)  demonstrating a preparedness to negotiate a workplace agreement with a nominal expiry date which takes into account the individual circumstances of the business or part;

                     (c)  negotiating in a manner consistent with wages and conditions of employment being determined as far as possible by agreement between the employer and its employees at the level of the single business or part;

                     (d)  agreeing to meet face-to-face at reasonable times proposed by another negotiating party;

                     (e)  considering and responding to proposals made by another negotiating party within a reasonable time;

                      (f)  not capriciously adding or withdrawing items for bargaining.

             (5)  Whenever a person seeks to rely on subsection (3), the person has the burden of proving that subsection (3) applies.

             (6)  This section does not affect, and is not affected by, the meaning of the term “genuinely trying to reach an agreement”, or any variant of the term, as used elsewhere in this Act.

Division 2Bargaining periods

107  Initiation of bargaining period

             (1)  This section applies in relation to a collective agreement that a person referred to in subsection (2) wants to try to make if the agreement, if made:

                     (a)  will be made under section 96A or 96B; and

                     (b)  will not be:

                              (i)  a multiple-business agreement; or

                             (ii)  an agreement with 2 or more corporations that are treated as one employer because of paragraph 95A(2)(b).

             (2)  If:

                     (a)  an employer; or

                     (b)  an organisation of employees; or

                     (c)  an employee acting on his or her own behalf and on behalf of other employees;

wants to try to make a collective agreement to which this section applies 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 agreement.

Note:          This subsection has effect subject to subsections 107F(2), 107G(12) and (13), 107H(6) and (7) and 112(6).

             (3)  The bargaining period is initiated by the initiating party giving written notice (the initiating notice) to each other negotiating party and to the Commission stating that the initiating party intends to try to make a collective agreement to which this section applies (the proposed collective agreement) with the other negotiating parties under section 96A or 96B.

             (4)  Each of the following is a negotiating party in relation to the proposed collective agreement:

                     (a)  the initiating party;

                     (b)  if the initiating party is an employer who intends to try to make the proposed collective agreement under section 96A—the employees at the time whose employment will be subject to the proposed collective agreement;

                     (c)  if the initiating party is an employer who intends to try to make the proposed collective agreement under section 96B—the organisation or organisations who are proposed to be bound by the proposed collective agreement;

                     (d)  if the initiating party is an organisation of employees—the employer who is proposed to be bound by the proposed collective 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 proposed collective agreement and the employees whose employment will be subject to the proposed collective agreement.

107A  Employee may appoint agent to initiate bargaining period

             (1)  A person referred to in paragraph 107(2)(c) who wishes to initiate a bargaining period under section 107, without disclosing the person’s identity to the person’s employer, may appoint an agent to initiate the bargaining period on the person’s behalf.

             (2)  If a person has appointed an agent under subsection (1), the notice to the Commission under subsection 107(3) must be accompanied by a document containing the person’s name.

             (3)  The regulations may make provision in relation to the qualifications and appointment of agents appointed under this section.

107B  Identity of person who has appointed agent not to be disclosed

Disclosure by Commission prohibited

             (1)  The Commission must not disclose information that the Commission has reasonable grounds to believe will identify a person who has appointed an agent under section 107A as a person who has initiated a bargaining period under section 107.

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

                     (a)  the disclosure is required or authorised by this Act or by another Act, by regulations made for the purposes of another provision of this Act, or by regulations made for the purposes of another Act;

                     (b)  the person whose identity is disclosed has, in writing, authorised the disclosure.

Disclosure by person prohibited

             (3)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the information is protected information; and

                     (c)  the person has reasonable grounds to believe that the information will identify another person as a person referred to in subsection (1); and

                     (d)  the disclosure is not made by the person in the course of performing functions or duties:

                              (i)  as a Registry official; or

                             (ii)  as, or on behalf of, an authorised ballot agent; and

                     (e)  the disclosure is not required or authorised by this Act or by another Act, by regulations made for the purposes of another provision of this Act, or by regulations made for the purposes of another Act; and

                      (f)  the person whose identity is disclosed has not, in writing, authorised the disclosure.

Penalty:  Imprisonment for 6 months.

             (4)  In this section:

protected information, in relation to a person, means information that the person acquired:

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

                     (b)  in the course of performing functions or duties as, or on behalf of, an authorised ballot agent; or

                     (c)  from a person referred to in paragraph (a) or (b) who acquired the information as mentioned in paragraph (a) or (b).

Registry official means:

                     (a)  the Industrial Registrar; or

                     (b)  a member of the staff of the Industrial Registry (including a Deputy Industrial Registrar).

107C  Particulars to accompany notice

                   An initiating notice is to be accompanied by particulars of:

                     (a)  the single business or part of the single business to be covered by the proposed collective agreement; and

                     (b)  the types of employees whose employment will be subject to the proposed collective agreement and the other persons who will be bound by the proposed collective agreement; and

                     (c)  the matters that the initiating party proposes should be dealt with by the proposed collective agreement; and

                     (d)  the proposed nominal expiry date of the proposed collective agreement; and

                     (e)  any other matters prescribed by the regulations.

107D  When bargaining period begins

                   A bargaining period begins at the end of 7 days after:

                     (a)  the day on which the initiating notice was given; or

                     (b)  if the notice was given to different persons on different days—the later or latest of those days.

107E  When bargaining period ends

                   A bargaining period ends if any of the following events occurs:

                     (a)  a collective agreement under section Agt60 or 96B is made by the employer and any one or more of the other negotiating parties;

                     (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 a collective agreement under section 96A or 96B with that other party or those other parties;

                     (c)  the bargaining period is terminated under section 107G, 107H or 112.

107F  Power of Commission to restrict initiation of new bargaining periods

             (1)  This section applies if a bargaining period (the former bargaining period) in relation to a proposed collective agreement has ended because a negotiating party (the former negotiating party) has given a notice under paragraph 107E(b).

             (2)  Subject to this section, the Commission may, by order, declare that, during a specified period, a specified former negotiating party, or a specified employee of the employer:

                     (a)  is not allowed to initiate a new bargaining period in relation to specified matters that were dealt with by the proposed collective agreement; or

                     (b)  may initiate a bargaining period only on conditions specified in the order.

             (3)  The Commission must not make an order under subsection (2) unless:

                     (a)  the Commission has given the former negotiating parties an opportunity to be heard; and

                     (b)  the Commission considers that it is in the public interest to make the order; and

                     (c)  either subsection (4) or (5) applies.

             (4)  The Commission may make an order under subsection (2):

                     (a)  on application by a former negotiating party; and

                     (b)  if, assuming the former bargaining period had not ended, the Commission could make an order under subsection 107G(1) because a circumstance set out in subsection 107G(2), (7) or (8) exists or existed.

             (5)  The Commission may make an order under subsection (2):

                     (a)  on its own initiative, or on application by a former negotiating party; and

                     (b)  if, assuming the former bargaining period had not ended, the Commission could make an order under subsection 107G(1) because a circumstance set out in subsection 107G(3) exists or existed.

107G  Suspension and termination of bargaining periods—general powers of Commission

Suspension or termination required if certain circumstances exist

             (1)  Subject to subsection (9), the Commission must, by order, suspend or terminate a 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), (3) (7) and (8) exists or existed.

Circumstance—failing to genuinely try to reach agreement etc.

             (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 collective 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 orders or directions of the Commission made during the bargaining period that relate to, or that relate to industrial action relating to, the making of the proposed collective agreement or to a matter that has arisen in the negotiations for the proposed collective agreement.

Note:          The issue of whether or not a negotiating party is genuinely trying to reach agreement with the other negotiating parties was considered by Justice Munro in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Print T1982.

Circumstance—industrial action endangering life etc.

             (3)  A circumstance for the purposes of subsection (1) is that:

                     (a)  industrial action to support or advance claims in respect of the proposed collective agreement is being taken, or is threatened, impending or probable; and

                     (b)  that industrial action is adversely affecting, or would adversely affect, the employer or employees of the employer; and

                     (c)  that industrial action is threatening, or would threaten:

                              (i)  to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

                             (ii)  to cause significant damage to the Australian economy or an important part of it.

Note:          See also Division 8 (about workplace determinations once a bargaining period has been terminated).

             (4)  If an application is made to the Commission for an order under subsection (1) on the grounds of or including a circumstance set out in subsection (3), the Commission must, as far as practicable, hear and determine the application within 5 days after the application is made.

             (5)  If subsection (4) applies to an application and the Commission is unable to determine the application within the period referred to in that subsection, the Commission must, within that period, make an interim order suspending the bargaining period until the application is determined.

             (6)  If the Commission makes an order under subsection (1) terminating a bargaining period in a circumstance set out in subsection (3), the Commission must send each of the negotiating parties a notice:

                     (a)  setting out the effect of Division 8; and

                     (b)  informing the negotiating parties that they may agree to submit the matters at issue to an alternative dispute resolution process conducted by the Commission or another provider (see Divisions 4 and 6 of Part VIIA).

Circumstance—organisations and employees who are not members

             (7)  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.

Circumstance—demarcation disputes

             (8)  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.

Orders on application or Commission’s initiative

             (9)  The Commission:

                     (a)  may not make an order under subsection (1), in a circumstance set out in subsection (2), (7) or (8), 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.

Application does not have to identify bargaining periods

           (10)  An application may be made to the Commission for an order under subsection (1) for the suspension or termination of whatever bargaining periods apply to:

                     (a)  a specified business, or any part of that business; or

                     (b)  a specified part of a specified business;

without specifically identifying the bargaining periods. The application has effect as if it were an application for the suspension or termination of the bargaining period, or each of the bargaining periods, that applies to the specified business (or any part of it), or to the specified part of the business, as the case requires.

Note:          The other requirements of this section must still be complied with in relation to the application.

           (11)  If subsection (10) applies to an application, the Commission must satisfy itself as to which bargaining periods the application has effect in relation to.

Restrictions on initiating new bargaining periods

           (12)  An order under subsection (1) suspending a bargaining period may, if the Commission considers it to be appropriate, contain a declaration that, during some or all of the period while the suspension has effect, 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 collective agreement; or

                     (b)  may initiate such a bargaining period only on conditions specified in the declaration.

           (13)  An order under subsection (1) terminating a bargaining period may, if the Commission considers it to be appropriate, 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 collective agreement; or

                     (b)  may initiate such a bargaining period only on conditions specified in the declaration.

Extension of notice period required by subsection 107K(3)

           (14)  In an order under subsection (1), the Commission may, if it is satisfied, in relation to any industrial action that might be taken (by virtue of section 107K) after the end of the period of suspension, that there are exceptional circumstances justifying the period of written notice required by subsection 107K(3) being longer than 3 days, specify a longer period, of up to 7 days.

107H  Suspension and termination of bargaining periods—pattern bargaining

Suspension or termination required for pattern bargaining

             (1)  The Commission must, by order, suspend a bargaining period for a period specified in the order, or terminate the bargaining period, if:

                     (a)  a negotiating party, or a person prescribed by the regulations, applies to the Commission for an order under this section; and

                     (b)  another negotiating party is engaged in pattern bargaining in relation to the proposed collective agreement.

Note:          For other provisions relating to pattern bargaining, see:

(a)           section 108D; and

(b)           section 109L; and

(c)           section 111A.

Negotiating parties must be given the opportunity to be heard

             (2)  The Commission must not make an order under subsection (1) unless it has given the negotiating parties the opportunity to be heard.

Commission may suspend or terminate as it considers appropriate

             (3)  If the Commission is required by subsection (1) to make an order under that subsection, then regardless of the order applied for:

                     (a)  the order may be for the suspension or termination of the bargaining period, as the Commission considers appropriate; and

                     (b)  any period of suspension specified in the order must be such a period as the Commission considers appropriate.

Application does not have to identify bargaining periods

             (4)  An application may be made to the Commission for an order under subsection (1) for the suspension or termination of whatever bargaining periods apply to:

                     (a)  a specified business, or any part of that business; or

                     (b)  a specified part of a specified business;

without specifically identifying the bargaining periods. The application has effect as if it were an application for the suspension or termination of the bargaining period, or each of the bargaining periods, that applies to the specified business (or any part of it), or to the specified part of the business, as the case requires.

Note:          The other requirements of this section must still be complied with in relation to the application.

             (5)  If subsection (4) applies to an application, the Commission must satisfy itself as to which bargaining periods the application has effect in relation to.

Restrictions on initiating new bargaining periods

             (6)  An order under subsection (1) suspending a bargaining period may, if the Commission considers it to be appropriate, contain a declaration that, during some or all of the period while the suspension has effect, 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 collective agreement; or

                     (b)  may initiate such a bargaining period only on conditions specified in the declaration.

             (7)  An order under subsection (1) terminating a bargaining period may, if the Commission considers it to be appropriate, 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 collective agreement; or

                     (b)  may initiate such a bargaining period only on conditions specified in the declaration.

Extension of notice period required by subsection 107K(3)

             (8)  In an order under subsection (1) suspending a bargaining period, the Commission may, if it is satisfied, in relation to any industrial action that might be taken (by virtue of section 107K) after the end of the period of suspension, that there are exceptional circumstances justifying the period of written notice required by subsection 107K(3) being longer than 3 days, specify a longer period, of up to 7 days.

107I  Suspension of bargaining periods—cooling off

Suspension if would assist in resolving matters at issue

             (1)  The Commission must, by order, suspend a bargaining period for a period specified in the order if:

                     (a)  a negotiating party applies to the Commission for the bargaining period to be suspended under this section; and

                     (b)  protected action is being taken in respect of the proposed collective agreement; and

                     (c)  the Commission considers that the suspension is appropriate, having regard to:

                              (i)  whether suspending the bargaining period would be beneficial to the negotiating parties because it would assist in resolving the matters at issue; and

                             (ii)  the duration of the action; and

                            (iii)  whether suspending the bargaining period would be contrary to the public interest or inconsistent with the objects of this Act; and

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

Period of suspension

             (2)  The period of suspension specified in the order must be a period that the Commission considers appropriate.

Extension of suspension

             (3)  The Commission must, by order, extend the period of suspension by a specified period that the Commission considers appropriate if:

                     (a)  a negotiating party applies to the Commission for the period of suspension to be extended; and

                     (b)  the Commission considers that the extension is appropriate, having regard to:

                              (i)  the matters referred to in paragraph (1)(c); and

                             (ii)  whether the negotiating parties, during the period of suspension, genuinely tried to reach an agreement.

             (4)  The Commission must not make an order under subsection (3) extending the period of suspension if that period has previously been extended.

Negotiating parties must be given opportunity to be heard

             (5)  The Commission must not make an order under subsection (1) or (3) unless it has given the negotiating parties the opportunity to be heard.

Commission to inform negotiating parties that they may submit matters at issue for alternative dispute resolution

             (6)  If the Commission makes an order under subsection (1) or (3), the Commission must send each of the negotiating parties a notice informing the negotiating parties that they may agree to submit the matters at issue to an alternative dispute resolution process conducted by the Commission or another provider (see Part VIIA).

Extension of notice period required by subsection 107K(3)

             (7)  In an order under subsection (1) or (3), the Commission may, if it is satisfied, in relation to any industrial action that might be taken (by virtue of section 107K) after the end of the period of suspension, that there are exceptional circumstances justifying the period of written notice required by subsection 107K(3) being longer than 3 days, specify a longer period, of up to 7 days.

107J  Suspension of bargaining periods—significant harm to third party

Suspension if industrial action threatens significant harm to a person

             (1)  The Commission must, by order, suspend a bargaining period for a period specified in the order if:

                     (a)  industrial action is being taken in respect of the proposed collective agreement; and

                     (b)  an application for the bargaining period to be suspended under this section is made to the Commission by or on behalf of:

                              (i)  an organisation, person or body directly affected by the action (other than a negotiating party); or

                             (ii)  the Minister; and

                     (c)  the Commission considers that the action is adversely affecting the employer or employees of the employer; and

                     (d)  the Commission considers that the action is threatening to cause significant harm to any person (other than a negotiating party); and

                     (e)  the Commission considers that the suspension is appropriate, having regard to:

                              (i)  whether suspending the bargaining period would be contrary to the public interest or inconsistent with the objects of this Act; and

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