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Act No. 163 of 2006 as amended, taking into account amendments up to Act No. 73 of 2008
An Act to amend the Workplace Relations Act 1996, and for related purposes
Administered by: Attorney-General's
Registered 29 Jul 2008
Start Date 01 Mar 2007
Table of contents.

Workplace Relations Legislation Amendment (Independent Contractors) Act 2006

Act No. 163 of 2006 as amended

This compilation was prepared on 15 July 2008

[This Act was amended by Act No. 73 of 2008]

Amendments from Act No. 73 of 2008

[Schedule 2 (items 27 and 28) amended item 7 of Schedule 4

Schedule 2 (items 27 and 28) commenced immediately after 12 December 2006]

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  


Contents

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

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

3............ Schedule(s).......................................................................................... 2

Schedule 1—Sham arrangements                                                                                  3

Part 1—General provisions                                                                                           3

Workplace Relations Act 1996                                                                                 3

Part 2—Provision relating to Victoria                                                                        7

Workplace Relations Act 1996                                                                                 7

Schedule 2—Consequential amendments and transitional provisions      8

Part 1—Consequential amendments and transitional provisions relating to TCF outworkers 8

Workplace Relations Act 1996                                                                                 8

Part 2—Consequential amendments relating to unfair contracts                     9

Building and Construction Industry Improvement Act 2005                              9

Workplace Relations Act 1996                                                                                 9

Part 3—Consequential amendments relating to building contractors          10

Building and Construction Industry Improvement Act 2005                            10

Schedule 3—Amendments relating to protecting redundancy entitlements              12

Workplace Relations Act 1996                                                                               12

Schedule 4—Amendments relating to stand downs                                           33

Workplace Relations Act 1996                                                                               33

Schedule 5—Amendments relating to the Australian Fair Pay and Conditions Standard 39

Workplace Relations Act 1996                                                                               39

Schedule 6—Other amendments                                                                                  50

Workplace Relations Act 1996                                                                               50

Workplace Relations Amendment (Work Choices) Act 2005                            60

 


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

[Assented to 11 December 2006]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006.

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.

11 December 2006

2.  Schedule 1

Immediately after the commencement of the provision(s) covered by table item 3.

1 March 2007

3.  Schedule 2

At the same time as Part 2 of the Independent Contractors Act 2006 commences.

1 March 2007

4.  Schedules 3, 4, 5 and 6

The day after this Act receives the Royal Assent.

12 December 2006

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 1Sham arrangements

Part 1General provisions

Workplace Relations Act 1996

1  After Part 21

Insert:

Part 22Sham arrangements

  

900  Misrepresenting an employment relationship as an independent contracting arrangement

             (1)  A person contravenes this subsection if:

                     (a)  the person is a party to a contract with an individual; and

                     (b)  the person makes a representation to the individual that the contract is a contract for services under which the individual performs work, or is to perform work, for the person as an independent contractor; and

                     (c)  the contract, as in force at the time of the representation, is a contract of employment under which the person is the employer of the individual, rather than a contract for services under which the individual performs work as an independent contractor.

Note:          In this subsection, employer and employment have the meanings given by subsections 6(1) and 7(1) respectively.

             (2)  A person does not contravene subsection (1) if the person proves that, at the time the person made the representation concerned, the person did not know that, and was not reckless as to whether, the contract was a contract of employment rather than a contract for services.

Note:          In this subsection, employment has its ordinary meaning—see paragraph 4(2)(pa) of Schedule 2.

             (3)  Subsection (1) is a civil remedy provision.

Note:          Division 3 of Part 14 contains other provisions relevant to civil remedies.

901  Misrepresenting a proposed employment relationship as a proposed independent contract arrangement

             (1)  A person contravenes this subsection if:

                     (a)  the person offers to enter into a contract with an individual; and

                     (b)  the person makes a representation to the individual that the contract, if entered into, would be a contract for services under which the individual would perform work for the person as an independent contractor; and

                     (c)  the contract, if entered into, would be a contract of employment under which the person would be the employer of the individual, rather than a contract for services under which the individual would perform work as an independent contractor.

Note:          In this subsection, employer and employment have the meanings given by subsections 6(1) and 7(1) respectively.

             (2)  A person does not contravene subsection (1) if the person proves that, at the time the person made the representation concerned, the person did not know that, and was not reckless as to whether, if the contract were entered into, the contract would be a contract of employment rather than a contract for services.

Note:          In this subsection, employment has its ordinary meaning—see paragraph 4(2)(pb) of Schedule 2.

             (3)  Subsection (1) is a civil remedy provision.

Note:          Division 3 of Part 14 contains other provisions relevant to civil remedies.

902  Dismissal etc. for purpose of engaging certain persons as independent contractors

             (1)  An employer contravenes this subsection if:

                     (a)  the employer dismisses, or threatens to dismiss, an individual who:

                              (i)  is an employee of the employer; and

                             (ii)  performs particular work for the employer; and

                     (b)  the employer’s sole or dominant purpose in dismissing or threatening to dismiss the individual is to engage the individual as an independent contractor to perform the same work, or substantially the same work, under a contract for services.

             (2)  Subsection (1) is a civil remedy provision.

Note:          Division 3 of Part 14 contains other provisions relevant to civil remedies.

             (3)  In proceedings alleging a contravention of subsection (1) it is presumed, other than in relation to the granting of an interim injunction, that the employer’s sole or dominant purpose was the purpose referred to in paragraph (1)(b), unless the employer proves otherwise.

Note:          Subsection 904(2A) permits the Court to grant an injunction for a breach of this section, and section 838 deals with interim injunctions.

903  Prohibited conduct for purpose of engaging certain persons as independent contractors

             (1)  A person who employs, or has at any time employed, an individual to perform particular work contravenes this subsection if:

                     (a)  the person makes a statement that the person knows is false; and

                     (b)  the person’s intention in making the statement is to persuade or influence the individual to enter into a contract for services under which the individual will perform, as an independent contractor, the same work, or substantially the same work, for the person.

             (2)  Subsection (1) is a civil remedy provision.

Note:          Division 3 of Part 14 contains other provisions relevant to civil remedies.

904  Penalty for contravention

             (1)  The Court may, on application by an eligible person, make an order imposing a pecuniary penalty on a person who has contravened subsection 900(1), 901(1), 902(1) or 903(1).

             (2)  The maximum penalty that may be imposed under subsection (1) is:

                     (a)  60 penalty units for an individual; or

                     (b)  300 penalty units for a body corporate.

          (2A)  If a person has contravened subsection 902(1), the Court may, on application by an eligible person, grant an injunction and make any other orders that the Court considers necessary to stop the contravention or remedy its effects.

          (2B)  Other orders the Court may make under subsection (2A) include (but are not limited to):

                     (a)  if the contravention was constituted by dismissing an employee—an order to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and

                     (b)  in any case—to pay to the person dismissed, or threatened with dismissal, compensation for loss suffered as a result of the dismissal or threatened dismissal.

          (2C)  The Court may make orders under subsection (2A) in addition to, or instead of, imposing a pecuniary penalty.

             (3)  Each of the following is an eligible person for the purposes of this section:

                     (a)  a workplace inspector;

                     (b)  an individual affected by the contravention;

                     (c)  an organisation of employees of which the individual affected by the contravention is (or has applied to become) a member, if it is acting with the written consent of the individual.

905  Meaning of Court

                   In this Part:

Court means the Federal Court of Australia or the Federal Magistrates Court.

2  After paragraph 4(2)(p) of Schedule 2

Insert:

                    (pa)  subsection 900(2);

                    (pb)  subsection 901(2);


 

Part 2Provision relating to Victoria

Workplace Relations Act 1996

3  After Division 11 of Part 21

Insert:

Division 11ASham arrangements

886A  Additional effect of Act—sham arrangements

                   Without affecting its operation apart from this section, section 902 also has effect in relation to the dismissal, or threatened dismissal, by an employer of an employee in Victoria, and for this purpose:

                     (a)  each reference in that section to an employer (within the meaning of that section) is to be read as a reference to an employer (within the meaning of this Division) in Victoria; and

                     (b)  each reference in that section to an employee (within the meaning of that section) is to be read as a reference to an employee (within the meaning of this Division) in Victoria.


 

Schedule 2Consequential amendments and transitional provisions

Part 1Consequential amendments and transitional provisions relating to TCF outworkers

Workplace Relations Act 1996

1  Subparagraph 169(1)(a)(v)

Omit “(other than section 905)”.

2  Subsection 819(1)

Omit “or subparagraph 906(2)(b)(iv), paragraph 906(2)(c) or subsection 906(4)”.

3  Part 22

Repeal the Part.

5  Saving—investigations and proceedings under the Workplace Relations Act 1996 in progress at the reform commencement

(1)        This item applies to an investigation or proceeding in relation to a breach, or suspected breach, of subsection 905(1) of the Workplace Relations Act 1996 as in force before the reform commencement that:

                     (a)  was commenced before the reform commencement under Part 22 of the Workplace Relations Act 1996; and

                     (b)  was not completed or finally determined, as the case requires, before the reform commencement.

(2)        Despite the repeal of Part 22 of the Workplace Relations Act 1996 by item 3 of this Schedule, that Part continues to apply to the investigation or proceeding mentioned in subitem (1) after the reform commencement as if the Part had not been repealed.

(3)        In this item:

            reform commencement means the commencement of Part 2 of the Independent Contractors Act 2006.


 

Part 2Consequential amendments relating to unfair contracts

Building and Construction Industry Improvement Act 2005

6  Section 47

Repeal the section.

6A  Subsection 75(2)

Repeal the subsection.

Workplace Relations Act 1996

7  Sections 832 to 834

Repeal the sections.

Note:       Section 40 of the Independent Contractors Act 2006 is a transitional provision relating to this item.


 

Part 3Consequential amendments relating to building contractors

Building and Construction Industry Improvement Act 2005

8  Subsection 4(1) (paragraph (a) of the definition of designated building law)

After “this Act”, insert “, the Independent Contractors Act 2006”.

9  Subparagraph 10(a)(i)

After “this Act”, insert “, the Independent Contractors Act 2006”.

10  Subparagraph 10(b)(i)

After “this Act,”, insert “the Independent Contractors Act 2006,”.

11  Paragraph 10(d)

After “this Act”, insert “, the Independent Contractors Act 2006”.

12  Paragraph 10(e)

After “this Act” (wherever occurring), insert “, the Independent Contractors Act 2006”.

13  Paragraph 10(f)

After “this Act,”, insert “the Independent Contractors Act 2006,”.

14  Paragraph 67(c)

Before “Workplace”, insert “Independent Contractors Act 2006 or the”.

15  Paragraph 71(1)(b)

Before “Workplace”, insert “Independent Contractors Act 2006 or the”.

16  Subsection 73(3)

Omit “subsection 84(5)”, substitute “subsection 167(7)”.

Note:       This item updates a cross‑reference.

17  After section 73

Insert:

73A  ABC Commissioner or ABC Inspector may institute proceedings under the Independent Contractors Act 2006

             (1)  If a provision of the Independent Contractors Act 2006, or of an instrument under that Act, authorises a workplace inspector (within the meaning of that Act) to make an application to, or otherwise institute proceedings in, a court, the provision is also taken to authorise the ABC Commissioner or an ABC Inspector to make such an application, or institute such proceedings, in any case where the application or proceedings relate to a matter that involves:

                     (a)  a building industry participant; or

                     (b)  building work.

             (2)  If the ABC Commissioner or an ABC Inspector makes such an application, or institutes such proceedings, the Independent Contractors Act 2006 and any such instrument have effect, in relation to the application or proceedings, as if the ABC Commissioner or the ABC Inspector were a workplace inspector (within the meaning of that Act).

             (3)  Directions under subsection 167(7) of the Workplace Relations Act do not apply to the ABC Commissioner or an ABC Inspector in relation to such an application or such proceedings.

18  Paragraph 77(1)(b)

Before “Workplace”, insert “Independent Contractors Act 2006 or the”.

19  Subparagraph 78(2)(d)(i)

After “this Act”, insert “, the Independent Contractors Act 2006”.


 

Schedule 3Amendments relating to protecting redundancy entitlements

  

Workplace Relations Act 1996

1  At the end of subsection 347(7)

Add:

Note:          However, a redundancy provision that was included in a workplace agreement that has ceased operating might be preserved for a period of up to 12 months (see section 399A).

2  Paragraph 393(4)(b)

After “by the agreement”, insert “, or is a bargaining agent doing so at the request of the employer bound by the agreement”.

3  At the end of subsection 393(5)

Add:

             ; and (e)  if the person giving the notice is the employer bound by the agreement, or is a bargaining agent doing so at the request of the employer bound by the agreement—state whether the parties to the workplace agreement will, under section 399A, continue to be bound by one or more redundancy provisions included in the workplace agreement; and

                      (f)  if the parties to the workplace agreement will continue to be so bound—include an annexed copy of the provision or the provisions.

4  Paragraph 394(5)(a)

After “lodges”, insert “, or a bargaining agent lodges at the request of the employer,”.

5  Paragraph 394(5)(c)

Repeal the paragraph, substitute:

                     (c)  a copy of the undertakings was not annexed to the declaration.

6  At the end of subsection 395(1)

Add:

             ; and (c)  if the employer in relation to the agreement, or a bargaining agent at the request of the employer in relation to the agreement, lodges the declaration to terminate the agreement under section 393—the declaration states whether the parties to the agreement will, under section 399A, continue to be bound by one or more redundancy provisions included in the agreement.

7  Subsection 395(2)

Repeal the subsection, substitute:

             (2)  If the employer in relation to the agreement, or a bargaining agent at the request of the employer in relation to the agreement, lodges the declaration to terminate the agreement under section 393, undertakings are lodged in relation to the termination if a copy of the undertakings is annexed to the declaration.

8  After subsection 396(1)

Insert:

          (1A)  If the employer in relation to a workplace agreement, or a bargaining agent at the request of the employer in relation to a workplace agreement, lodged a declaration under subsection 395(1) to terminate the agreement under section 393, the receipt must state whether:

                     (a)  the declaration so lodged states that the parties to the workplace agreement will continue to be bound by one or more redundancy provisions included in the workplace agreement that was terminated; and

                     (b)  a copy of the provision or provisions was annexed to the declaration.

9  At the end of Division 9 of Part 8

Add:

399A  Preservation of redundancy provisions in certain circumstances

             (1)  This section applies if a workplace agreement is terminated unilaterally, in accordance with section 393, by the employer in relation to the agreement or by a bargaining agent at the request of the employer in relation to the agreement.

             (2)  Any party who was bound by the workplace agreement immediately before it ceased operating continues to be bound, immediately after that time, by any redundancy provision that was included in the workplace agreement as if the workplace agreement had continued operating.

          (2A)  Parts 6 and 14 of this Act apply to a redundancy provision referred to in subsection (2) as if the provision was a workplace agreement in operation.

             (3)  A party continues to be bound by a redundancy provision referred to in subsection (2), in relation to an employee who is bound by the redundancy provision, until the earliest of the following:

                     (a)  the end of the period of 12 months from the time that the workplace agreement ceased operating;

                     (b)  the time when the employee ceases to be employed by the employer;

                     (c)  the time when another workplace agreement comes into operation in relation to the employee and the employer.

             (4)  In this section:

redundancy provision means any of the following kinds of provisions:

                     (a)  a provision relating to redundancy pay in relation to a termination of employment;

                     (b)  a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;

                     (c)  a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;

where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.

10  After Division 6 of Part 11

Insert:

Division 6ATransmission of preserved redundancy provisions from workplace agreements

598A  Transmission of preserved redundancy provisions from workplace agreements

             (1)  If:

                     (a)  immediately before the time of transmission:

                              (i)  the old employer; and

                             (ii)  an employee;

                            were bound, under section 399A or because of a previous application of this section, by a redundancy provision that was previously included in a workplace agreement that was terminated; and

                     (b)  the employee is a transferring employee;

the new employer is bound by the redundancy provision in relation to the transferring employee by force of this section.

Note:          The new employer must notify the transferring employee and lodge a copy of the notice with the Employment Advocate (see sections 603A and 603B).

             (2)  Subject to subsection (3), the redundancy provision prevails over any other redundancy provision included in any other instrument that would otherwise have effect, to the extent of any inconsistency.

Period for which new employer remains bound

             (3)  The new employer remains bound by the redundancy provision in relation to the transferring employee, by force of this section, until the earliest of the following:

                     (a)  the end of the period of 12 months from the time that the workplace agreement referred to in paragraph (1)(a) ceased operating;

                     (b)  the time when the transferring employee ceases to be employed by the new employer;

                     (c)  the time when another workplace agreement comes into operation in relation to the new employer and the transferring employee.

Old employer’s rights and obligations that arose before time of transmission not affected

             (4)  This section does not affect the rights and obligations of the old employer that arose before the time of transmission.

Definitions

             (5)  In this section:

instrument means any of the following:

                     (a)  a workplace agreement;

                     (b)  a pre‑reform certified agreement (within the meaning of Schedule 7);

                     (c)  a preserved State agreement;

                     (d)  a notional agreement preserving State awards;

                     (e)  an award.

redundancy provision means any of the following kinds of provisions:

                     (a)  a provision relating to redundancy pay in relation to a termination of employment;

                     (b)  a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;

                     (c)  a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;

where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.

11  After section 603

Insert:

603A  Informing transferring employees about transmission of preserved redundancy provisions

             (1)  This section applies if an employer is bound, by force of section 598A, by one or more redundancy provisions (within the meaning of that section) in relation to a transferring employee.

             (2)  Within 28 days after the transferring employee starts being employed by the employer, the employer must take reasonable steps to give the transferring employee a written notice that complies with subsection (3).

Note:          This is a civil remedy provision, see section 605.

             (3)  The notice must:

                     (a)  identify the redundancy provision or redundancy provisions; and

                     (b)  state that the employer is bound by the provision or provisions; and

                     (c)  specify the date that is 12 months after the time that the workplace agreement that included the provision or provisions ceased operating; and

                     (d)  state that the employer will remain bound by the provision or provisions until that date, or an earlier date in accordance with subsection 598A(3).

             (4)  Subsection (2) does not apply if a workplace agreement comes into operation in relation to the employer and the transferring employee within 14 days of the time of transmission.

603B  Lodging copy of notice about preserved redundancy provisions with Employment Advocate

             (1)  If an employer gives a notice under section 603A to a transferring employee, the employer must lodge a copy of the notice with the Employment Advocate within the period specified in subsection (2). The copy must be lodged in accordance with subsection (3).

Note 1:       This is a civil remedy provision, see section 605.

Note 2:       Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

             (2)  The notice must be lodged within 14 days after the day specified in paragraph (a) or (b):

                     (a)  if the employer gives a notice to an employee in respect of a redundancy provision that was included in an AWA—the day on which that notice is given; or

                     (b)  if the employer gives one or more notices to one or more employees in respect of a redundancy provision that was included in a collective agreement—the earliest day on which a notice was given.

Lodgment with Employment Advocate

             (3)  A notice is lodged with the Employment Advocate in accordance with this subsection only if it 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) does not apply to lodgment of a notice.

12  Subsection 604(1)

After “603”, insert “or 603B”.

13  Subsection 604(2)

After “603”, insert “or 603B (as the case requires)”.

14  Subsection 604(3)

After “603”, insert “or 603B”.

15  At the end of subsection 605(1)

Add:

                   ; (d)  subsection 603A(2);

                     (e)  subsection 603B(1).

16  Subsection 605(5)

After “an instrument”, insert “, or in relation to a preserved redundancy provision that was previously included in an instrument,”.

17  Subsection 605(5) (table item 2)

After “bound by the agreement”, insert “or the redundancy provision”.

17A  Section 717 (note 1 to the definition of applicable provision)

Before “This”, insert “Preserved redundancy provisions are treated as if they were workplace agreements (see for example section 399A).”.

18  At the end of subclause 3(4) of Schedule 7

Add:

Note:          However, a redundancy provision that was included in a pre‑reform certified agreement that has ceased operating might be preserved for a period of up to 12 months (see clause 6A).

19  After clause 6 of Schedule 7

Insert:

6A  Preservation of redundancy provisions in certain circumstances

             (1)  This clause applies if a pre‑reform certified agreement is terminated, on application by the employer in relation to the agreement, by the Commission in accordance with subsection 170MH(3) of the pre‑reform Act.

Note:          Subsection 170MH(3) of the pre‑reform Act continues to apply because of paragraph 2(1)(k) of this Schedule.

             (2)  Any party who was bound by the pre‑reform certified agreement immediately before it ceased operating continues to be bound, immediately after that time, by any redundancy provision that was included in the pre‑reform certified agreement as if the pre‑reform certified agreement had continued operating.

          (2A)  Parts 6 and 14 of this Act apply to a redundancy provision referred to in subclause (2) as if the provision was a pre‑reform certified agreement in operation.

             (3)  Subject to subclause (4), a redundancy provision referred to in subclause (2) prevails over any other redundancy provision included in any other instrument that would otherwise have effect.

             (4)  A party continues to be bound by a redundancy provision referred to in subclause (2), in relation to an employee who is bound by the redundancy provision, until the earliest of the following:

                     (a)  the end of the period of 12 months from the time that the pre‑reform certified agreement ceased operating;

                     (b)  the time when the employee ceases to be employed by the employer;

                     (c)  the time when a workplace agreement comes into operation in relation to the employee and the employer.

             (5)  In this clause:

instrument means either of the following:

                     (a)  a preserved State agreement;

                     (b)  a notional agreement preserving State awards;

                     (c)  an award;

                     (d)  a transitional award (within the meaning of Schedule 6).

redundancy provision means any of the following kinds of provisions:

                     (a)  a provision relating to redundancy pay in relation to a termination of employment;

                     (b)  a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;

                     (c)  a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;

where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.

6B  Notification of preservation of redundancy provisions

             (1)  This clause applies if the parties to a pre‑reform certified agreement will, under clause 6A, continue to be bound by one or more redundancy provisions included in the agreement.

             (2)  The Commission must issue a copy of the order terminating the agreement to:

                     (a)  the employer who will be bound by the redundancy provision or the redundancy provisions; and

                     (b)  any organisation of employees that will be bound by the redundancy provision or the redundancy provisions.

             (3)  The order must:

                     (a)  identify the redundancy provision or the redundancy provisions; and

                     (b)  state that the parties to the agreement will be bound by the provision or provisions; and

                     (c)  specify the date that is 12 months after the time that the order terminating the agreement takes effect; and

                     (d)  state that the parties will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 6A(4).

6C  Employer must notify employees of preserved redundancy provisions

             (1)  An employer that has, under clause 6B, received a copy of an order terminating a pre‑reform certified agreement must take reasonable steps to ensure that all employees who are bound by the agreement immediately before the agreement ceases operating are, within 21 days of the employer receiving a copy of the order, given a copy of the order.

             (2)  Subclause (1) is a civil remedy provision for the purpose of this clause.

Note:          Division 3 of Part 14 contains other provisions relevant to civil remedies.

             (3)  The Court may order a person who has contravened the civil remedy provision to pay a pecuniary penalty.

Note:          Division 3 of Part 14 contains other provisions relevant to civil remedies.

             (4)  The penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in other cases.

             (5)  An application for an order under subclause (3) in relation to a pre‑reform certified agreement may be made by the following persons:

                     (a)  an employee who is bound by the agreement immediately before the agreement ceases operating;

                     (b)  an organisation of employees that is bound by the agreement immediately before the agreement ceases operating;

                     (c)  an organisation of employees that is entitled, under its eligibility rules, to represent the industrial interests of an employee referred to in paragraph (a) and has been requested by the employee to apply for the order on the employee’s behalf;

                     (d)  a workplace inspector.

20  At the end of subclause 18(3) of Schedule 7

Add:

Note:          However, a redundancy provision that was included in a pre‑reform AWA that has ceased operating might be preserved for a period of up to 12 months (see clause 20A).

21  After clause 20 of Schedule 7

Insert:

20A  Preservation of redundancy provisions in certain circumstances

             (1)  This clause applies if a pre‑reform AWA is terminated, on application by the employer in relation to the AWA, by the Commission in accordance with subsection 170VM(3) of the pre‑reform Act.

Note:          Subsection 170VM(3) of the pre‑reform Act continues to apply because of paragraph 17(1)(c) of this Schedule.

             (2)  The employer and the employee in relation to the pre‑reform AWA continue to be bound, immediately after the pre‑reform AWA ceases operating, by any redundancy provision that was included in the pre‑reform AWA as if the pre‑reform AWA had continued operating.

          (2A)  Parts 6 and 14 of this Act apply to a redundancy provision referred to in subclause (2) as if the provision was a pre‑reform AWA in operation.

             (3)  Subject to subclause (4), a redundancy provision referred to in subclause (2) prevails over any other redundancy provision included in any other instrument that would otherwise have effect.

             (4)  The employer continues to be bound by a redundancy provision referred to in subclause (2), in relation to the employee, until the earliest of the following:

                     (a)  the end of the period of 12 months from the time that the pre‑reform AWA ceases operating;

                     (b)  the time when the employee ceases to be employed by the employer;

                     (c)  the time when a workplace agreement comes into operation in relation to the employee and the employer.

             (5)  In this clause:

instrument means any of the following:

                     (a)  a collective agreement;

                     (b)  a pre‑reform certified agreement;

                     (c)  a notional agreement preserving State awards;

                     (d)  an award.

redundancy provision means any of the following kinds of provisions:

                     (a)  a provision relating to redundancy pay in relation to a termination of employment;

                     (b)  a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;

                     (c)  a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;

where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.

20B  Notification of preservation of redundancy provisions

             (1)  This clause applies if the employer and the employee in relation to a pre‑reform AWA will, under clause 20A, continue to be bound by one or more redundancy provisions included in the pre‑reform AWA.

             (2)  The determination issued by the Commission under subsection 170VM(4) of the pre‑reform Act must:

                     (a)  identify the redundancy provision or the redundancy provisions; and

                     (b)  state that the employer and the employee in relation to the pre‑reform AWA will be bound by the provision or provisions; and

                     (c)  specify the date that is 12 months after the time that the determination terminating the pre‑reform AWA takes effect; and

                     (d)  state that the employer and the employee will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 20A(4).

22  After clause 21 of Schedule 8

Insert:

21A  Preservation of redundancy provisions in preserved collective State agreements in certain circumstances

             (1)  This clause applies if a preserved collective State agreement is terminated, on application by the employer in relation to the agreement, by the Commission in accordance with subsection 170MH(3) of the pre‑reform Act.

Note:          Subsection 170MH(3) of the pre‑reform Act applies because of subclause 21(2) of this Schedule and paragraph 2(1)(k) of Schedule 7.

             (2)  Any party who was bound by the preserved collective State agreement immediately before it ceased operating continues to be bound, immediately after that time, by any redundancy provision that was included in the agreement as if the agreement had continued operating.

          (2A)  Parts 6 and 14 of this Act apply to a redundancy provision referred to in subclause (2) as if the provision was a preserved collective State agreement in operation.

             (3)  Subject to subclause (4), a redundancy provision referred to in subclause (2) prevails over any other redundancy provision included in any other instrument that would otherwise have effect.

             (4)  A party continues to be bound by a redundancy provision referred to in subclause (2), in relation to an employee who is bound by the redundancy provision, until the earliest of the following:

                     (a)  the end of the period of 12 months from the time that the preserved collective State agreement ceased operating;

                     (b)  the time when the employee ceases to be employed by the employer;

                     (c)  the time when a workplace agreement comes into operation in relation to the employee and the employer.

             (5)  In this clause:

instrument means any of the following:

                     (a)  a pre‑reform certified agreement (within the meaning of Schedule 7);

                     (b)  a notional agreement preserving State awards;

                     (c)  an award.

redundancy provision means any of the following kinds of provisions:

                     (a)  a provision relating to redundancy pay in relation to a termination of employment;

                     (b)  a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;

                     (c)  a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;

where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.

21B  Notification of preservation of redundancy provisions in preserved collective State agreements

             (1)  This clause applies if the parties to a preserved collective State agreement will, under clause 21A, continue to be bound by one or more redundancy provisions included in the agreement.

             (2)  The Commission must issue a copy of the order terminating the agreement to:

                     (a)  the employer who will be bound by the redundancy provision or the redundancy provisions; and

                     (b)  any organisation that will be bound by the redundancy provision or the redundancy provisions.

             (3)  The order must:

                     (a)  identify the redundancy provision or the redundancy provisions; and

                     (b)  state that the parties to the agreement will be bound by the provision or provisions; and

                     (c)  specify the date that is 12 months after the time that the order terminating the agreement takes effect; and

                     (d)  state that the parties will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 21A(4).

21C  Employer must notify employees of preserved redundancy provisions in preserved collective State agreements

             (1)  An employer that has, under clause 21B, received a copy of an order terminating a preserved collective State agreement must take reasonable steps to ensure that all employees who are bound by the agreement immediately before the agreement ceases operating are, within 21 days of the employer receiving a copy of the order, given a copy of the order.

             (2)  Subclause (1) is a civil remedy provision for the purpose of this clause.

Note:          Division 3 of Part 14 contains other provisions relevant to civil remedies.

             (3)  The Court may order a person who has contravened the civil remedy provision to pay a pecuniary penalty.

Note:          Division 3 of Part 14 contains other provisions relevant to civil remedies.

             (4)  The penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in other cases.

             (5)  An application for an order under subclause (3) in relation to a preserved collective State agreement may be made by the following persons:

                     (a)  an employee who is bound by the agreement immediately before the agreement ceases operating;

                     (b)  an organisation of employees that is bound by the agreement immediately before the agreement ceases operating;

                     (c)  an organisation of employees that is entitled, under its eligibility rules, to represent the industrial interests of an employee referred to in paragraph (a) and has been requested by the employee to apply for the order on the employee’s behalf;

                     (d)  a workplace inspector.

21D  Preservation of redundancy provisions in preserved individual State agreements in certain circumstances

             (1)  This clause applies if a preserved individual State agreement is terminated, on application by the employer in relation to the agreement, by the Commission in accordance with subsection 170VM(3) of the pre‑reform Act.

Note:          Subsection 170VM(3) of the pre‑reform Act applies because of subclause 21(3) of this Schedule and paragraph 17(1)(c) of Schedule 7.

             (2)  The employer and the employee in relation to the preserved individual State agreement continue to be bound, immediately after the agreement ceases operating, by any redundancy provision that was included in the agreement as if the agreement had continued operating.

          (2A)  Parts 6 and 14 of this Act apply to a redundancy provision referred to in subclause (2) as if the provision was a preserved individual State agreement in operation.

             (3)  Subject to subclause (4), a redundancy provision referred to in subclause (2) prevails over any other redundancy provision included in any other instrument that would otherwise have effect.

             (4)  The employer continues to be bound by a redundancy provision referred to in subclause (2), in relation to the employee, until the earliest of the following:

                     (a)  the end of the period of 12 months from the time that the preserved individual State agreement ceases operating;

                     (b)  the time when the employee ceases to be employed by the employer;

                     (c)  the time when a workplace agreement comes into operation in relation to the employee and the employer.

             (5)  In this clause:

instrument means any of the following:

                     (a)  a pre‑reform certified agreement (within the meaning of Schedule 7);

                     (b)  a notional agreement preserving State awards;

                     (c)  an award.

redundancy provision means any of the following kinds of provisions:

                     (a)  a provision relating to redundancy pay in relation to a termination of employment;

                     (b)  a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;

                     (c)  a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;

where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.

21E  Notification of preservation of redundancy provisions

             (1)  This clause applies if the employer and the employee in relation to a preserved individual State agreement will, under clause 21D, continue to be bound by one or more redundancy provisions included in the agreement.

             (2)  The determination issued by the Commission under subsection 170VM(4) of the pre‑reform Act must:

                     (a)  identify the redundancy provision or the redundancy provisions; and

                     (b)  state that the employer and the employee in relation to the preserved individual State agreement will be bound by the provision or provisions; and

                     (c)  specify the date that is 12 months after the time that the determination terminating the agreement takes effect; and

                     (d)  state that the employer and the employee will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 21D(4).

23  After Part 5 of Schedule 9

Insert:

Part 5ATransmission of preserved redundancy provisions

  

27A  Transmission of preserved redundancy provisions

             (1)  If:

                     (a)  immediately before the time of transmission:

                              (i)  the old employer; and

                             (ii)  an employee;

                            were bound, under clause 6A or 20A of Schedule 7, clause 21A or 21D of Schedule 8, or because of a previous application of this clause, by a redundancy provision that was previously included in an agreement that was terminated; and

                     (b)  the employee is a transferring employee;

the new employer is bound by the redundancy provision in relation to the transferring employee by force of this clause.

Note:          The new employer must notify the transferring employee and lodge a copy of the notice with the Employment Advocate (see clauses 29A and 29B).

             (2)  Subject to subclause (3), the redundancy provision prevails over any other redundancy provision included in any other instrument that would otherwise have effect, to the extent of any inconsistency.

Period for which new employer remains bound

             (3)  The new employer remains bound by the redundancy provision in relation to the transferring employee, by force of this clause, until the earliest of the following:

                     (a)  the end of the period of 12 months from the time that the agreement referred to in paragraph (1)(a) ceased operating;

                     (b)  the time when the transferring employee ceases to be employed by the new employer;

                     (c)  the time when a workplace agreement comes into operation in relation to the new employer and the transferring employee.

Old employer’s rights and obligations that arose before time of transmission not affected

             (4)  This clause does not affect the rights and obligations of the old employer that arose before the time of transmission.

Definitions

             (5)  In this clause:

instrument means any of the following:

                     (a)  a workplace agreement;

                     (b)  a pre‑reform certified agreement (within the meaning of Schedule 7);

                     (c)  a preserved State agreement;

                     (d)  a notional agreement preserving State awards;

                     (e)  an award;

                      (f)  a transitional award (within the meaning of Schedule 6).

redundancy provision means any of the following kinds of provisions:

                     (a)  a provision relating to redundancy pay in relation to a termination of employment;

                     (b)  a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;

                     (c)  a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;

where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.

24  After clause 29 of Schedule 9

Insert:

29A  Informing transferring employees about transmission of preserved redundancy provisions

             (1)  This clause applies if an employer is bound, by force of clause 27A, by one or more redundancy provisions (within the meaning of that clause) in relation to a transferring employee.

             (2)  Within 28 days after the transferring employee starts being employed by the employer, the employer must take reasonable steps to give the transferring employee a written notice that complies with subclause (3).

Note:          This is a civil remedy provision, see clause 31.

             (3)  The notice must:

                     (a)  identify the redundancy provision or the redundancy provisions; and

                     (b)  state that the employer is bound by the provision or provisions; and

                     (c)  specify the date that is 12 months after the time that the agreement that included the provision or provisions ceased operating; and

                     (d)  state that the employer will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 27A(3).

             (4)  Subclause (2) does not apply if a workplace agreement comes into operation in relation to the employer and the transferring employee within 14 days of the time of transmission.

29B  Lodging copy of notice about preserved redundancy provisions with Employment Advocate

             (1)  If an employer gives a notice under clause 29A to a transferring employee, the employer must lodge a copy of the notice with the Employment Advocate within the period specified in subclause (2). The copy must be lodged in accordance with subclause (3).

Note 1:       This is a civil remedy provision, see clause 31.

Note 2:       Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

             (2)  The notice must be lodged within 14 days after the day specified in paragraph (a) or (b):

                     (a)  if the employer gives a notice to an employee in respect of a redundancy provision that was included in a pre‑reform AWA or a preserved individual State agreement—the day on which that notice is given; or

                     (b)  if the employer gives one or more notices to one or more employees in respect of a redundancy provision that was included in a pre‑reform certified agreement or a preserved collective State agreement—the earliest day on which a notice was given.

Lodgment with Employment Advocate

             (3)  A notice is lodged with the Employment Advocate in accordance with this subclause only if it 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) does not apply to lodgment of a notice.

25  Subclause 30(1) of Schedule 9

After “29”, insert “or 29B”.

26  Subclause 30(2) of Schedule 9

After “29”, insert “or 29B (as the case requires)”.

27  Subclause 30(3) of Schedule 9

After “29”, insert “or 29B”.

28  At the end of subclause 31(1) of Schedule 9

Add:

                   ; (c)  subclause 29A(2);

                     (d)  subclause 29B(1).

29  Subclause 31(4) of Schedule 9

After “an instrument”, insert “, or in relation to a preserved redundancy provision that was previously included in an instrument,”.

30  Subclause 31(4) of Schedule 9 (table items 2 and 4)

After “bound by the agreement”, insert “or the redundancy provision”.

31  Application

The amendments made by this Schedule apply to agreements that are terminated after this item commences.


 

Schedule 4Amendments relating to stand downs

  

Workplace Relations Act 1996

1  Subsection 4(1)

Insert:

authorised stand down means a stand down of an employee that is authorised as mentioned in subsection 691B(1).

2  Subsection 13(1) (after table item 6)

Insert:

6A

Division 7 of Part 12

Stand downs

Section 691C

3  At the end of paragraph 183(1)(b)

Add:

                            (iv)  any hours in the week when the employee is stood down (but only if the stand down is an authorised stand down);

4  At the end of Part 12

Add:

Division 7Stand downs

691A  Employer may stand down employees in certain circumstances

             (1)  This section applies if:

                     (a)  an employee employed by an employer cannot usefully be employed during a period because of a particular circumstance; and

                     (b)  that circumstance is:

                              (i)  a strike; or

                             (ii)  a breakdown of machinery; or

                            (iii)  a stoppage of work for any cause for which the employer cannot reasonably be held responsible; and

                     (c)  either:

                              (i)  there is no contract of employment, and no industrial instrument, that binds the employer in respect of the employment of the employee and that contains provision for the standing down of the employee during that period because of that circumstance; or

                             (ii)  a contract of employment, or industrial instrument, that binds the employer in respect of the employment of the employee contains provision for the standing down of the employee during that period because of that circumstance, but the employer’s right to stand down the employee is dependent on the employer having to apply to the Commission, a State industrial authority or another person or body for an order or determination (however described) authorising the employer to stand down the employee.

             (2)  If this section applies, the employer:

                     (a)  may stand down the employee during the period referred to in paragraph (1)(a) because of the circumstance referred to in that paragraph; and

                     (b)  if the employer stands down the employee under paragraph (a) of this subsection—may deduct payment for the period during which the employee is stood down.

             (3)  A period during which an employee is stood down under subsection (2) does not break the employee’s continuity of service.

             (4)  A period during which an employee is stood down under subsection (2) counts as service for all purposes.

             (5)  A provision of a contract of employment or an industrial instrument that provides as mentioned in subparagraph (1)(c)(ii) has no effect. However, this section does not otherwise affect the operation of any provision of a contract of employment or industrial instrument that provides for the standing down of employees.

             (6)  In this section:

industrial instrument means any of the following:

                     (a)  a workplace agreement;

                     (b)  an award;

                     (c)  a pre‑reform AWA;

                     (d)  a pre‑reform certified agreement (within the meaning of Schedule 7);

                     (e)  a preserved State agreement;

                      (f)  a notional agreement preserving State awards;

                     (g)  a workplace determination;

                     (h)  an employment agreement (within the meaning of Division 12 of Part 21);

                      (i)  an exceptional matters order (within the meaning of Schedule 7);

                      (j)  a section 170MX award (within the meaning of Schedule 7);

                     (k)  an old IR agreement (within the meaning of Schedule 7).

691B  Prohibition of unauthorised stand downs

             (1)  An employer must not stand down an employee from his or her employment if the stand down is not authorised by:

                     (a)  subsection 691A(2); or

                     (b)  a provision of a contract of employment, or an industrial instrument (within the meaning of section 691A), that is binding on the employer in respect of the employment of the employee (other than a provision that is rendered of no effect by subsection 691A(5)).

Note 1:       Compliance with this subsection is dealt with as follows:

(a)           the model dispute resolution process applies (see subsection (2));

(b)           the Court may grant an injunction (see subsection (3));

(c)           the compliance provisions of Part 14 apply.

Note 2:       If the standing down of an employee is not authorised as mentioned in this subsection, the employee may recover any lost wages by taking appropriate enforcement action (whether under this Act or otherwise).

             (2)  The model dispute resolution process (other than section 697) applies to a dispute under subsection (1).

Note:          The model dispute resolution process is set out in Part 13.

             (3)  The Court, or the Federal Magistrates Court, on application by an employee who has been stood down or by an inspector, may grant an injunction requiring the employer of the employee to cease contravening (or not to contravene) subsection (1).

691C  Extraterritorial extension

             (1)  This Division, and the rest of this Act so far as it relates to this Division, 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 or the employee’s employment (whether those acts, omissions, matters or things 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.

Employee 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 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 Australian‑based employee of an Australian employer; and

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

             (5)  In this section:

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

5  Section 717 (at the end of the definition of applicable provision)

Add:

             ; and (e)  subsection 691B(1) (prohibition of unauthorised stand downs).

6  Subsection 718(1) (at the end of the table)

Add:

8

subsection 691B(1) (prohibition of unauthorised stand downs)

(a) an employee to whom subsection 691B(1) applies;

(b) an inspector

7  Subsection 718(2)

Omit “and 7”, substitute “, 7 and 8”.

8  After Division 7 of Part 21

Insert:

Division 7AStand downs

880A  Additional effect of Act—stand downs

                   Without affecting its operation apart from this section, Division 7 of Part 12 also has effect in relation to the employment of any employee in Victoria, and for this purpose:

                     (a)  each reference in that Division to an employer (within the meaning of that Division) is to be read as a reference to an employer (within the meaning of this Division) in Victoria; and

                     (b)  each reference in that Division to an employee (within the meaning of that Division) is to be read as a reference to an employee (within the meaning of this Division) in Victoria; and

                     (c)  each reference in that Division to employment (within the meaning of that Division) is to be read as a reference to the employment of an employee (within the meaning of this Division) in Victoria.

9  Section 891

Repeal the section.

10  After paragraph 89(1)(a) of Schedule 6

Insert:

                    (aa)  section 691A (as applied by section 880A); and

11  After paragraph 95(a) of Schedule 6

Insert:

                    (aa)  section 691A (as applied by section 880A); and

12  After paragraph 102(a) of Schedule 6

Insert:

                    (aa)  section 691A (as applied by section 880A); and


 

Schedule 5Amendments relating to the Australian Fair Pay and Conditions Standard

  

Workplace Relations Act 1996

1  Subsection 189(1)

Repeal the subsection, substitute:

APCS applies and contains frequency of payment provisions

             (1)  If:

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

                     (b)  the APCS contains frequency of payment provisions that apply in relation to the employee’s employment;

then:

                     (c)  if a workplace agreement that covers the employment of the employee contains frequency of payment provisions:

                              (i)  that apply in relation to the employee’s employment; and

                             (ii)  that provide for payments in respect of periods of one month or less;

                            the employer must comply with those provisions in relation to the employee; or

                     (d)  if paragraph (c) does not apply, and the employee’s contract of employment contains frequency of payment provisions:

                              (i)  that apply in relation to the employee’s employment; and

                             (ii)  that provide for payments in respect of periods of one month or less;

                            the employer must comply with those provisions in relation to the employee; or

                     (e)  if neither paragraph (c) nor (d) applies—the employer must comply with the frequency of payment provisions of the APCS in relation to the employee.

2  After subsection 226(1)

Insert:

          (1A)  An employer only contravenes subsection (1) if the employer requests or requires an employee to work more than the hours mentioned in subsection (1), and the employee works those hours.

3  Section 228

Before “In”, insert “(1)”.

4  Section 228 (at the end of the definition of shift worker)

Add:

Note:          Subsection (2) enables regulations to be made providing that an employee belonging to a specified class is not a shift worker.

5  At the end of section 228

Add:

             (2)  The regulations may provide that an employee:

                     (a)  who is covered by paragraph (a) or (b) of the definition of shift worker in subsection (1); and

                     (b)  who belongs to a class specified in the regulations;

is not a shift worker for the purposes of this Division.

             (3)  Without limiting the way in which a class of employees may be described for the purposes of regulations made under subsection (2), the class may be described by reference to one or more of the following:

                     (a)  a particular industry;

                     (b)  a particular kind of work;

                     (c)  a particular type of employment;

                     (d)  a particular type of shift work (whether described by reference to the organisation or allocation of shifts or otherwise).

6  Paragraph 229(1)(a)

Repeal the paragraph, substitute:

                     (a)  start with:

                              (i)  the specified number of hours; or

                             (ii)  if the specified number of hours is more than 38 hours—38 hours;

7  After subsection 229(4)

Insert:

Certain types of leave not to count as service

          (4A)  For the purposes of subparagraphs (1)(b)(i) and (4)(a)(ii), a period of authorised unpaid leave or unauthorised leave does not count as service in relation to an employee except:

                     (a)  as expressly provided by:

                              (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.

Note:          For whether leave guaranteed under this Part counts as service, see subsections 238(2) (annual leave), 260(2) (paid personal leave), 261(2) (unpaid carer’s leave) and 316(2) (parental leave).

8  Subsection 229(5) (note 3)

Repeal the note.

9  Paragraph 233(1)(c)

Omit all the words after “no less than”, substitute “the rate that, at the time the election is made, is the employee’s basic periodic rate of pay (expressed as an hourly rate); and”.

10  Subsection 235(1)

Omit all the words after “a period,”, substitute “the employee must be paid a rate for each hour (pro‑rated for part hours) of annual leave taken that is no less than the rate that, immediately before the period begins, is the employee’s basic periodic rate of pay (expressed as an hourly rate).”.

11  Subsection 235(2)

Omit all the words after “a particular time,”, substitute “the employee must be paid a rate for each hour (pro‑rated for part hours) of the employee’s untaken accrued annual leave that is no less than the rate that, immediately before that time, is the employee’s basic periodic rate of pay (expressed as an hourly rate).”.

12  At the end of section 236

Add:

Entitlement to leave for all nominal hours in a day also extends to other hours on that day

             (7)  If:

                     (a)  an employee to whom subparagraph 229(1)(a)(ii) applies is entitled to take annual leave on a particular day; and

                     (b)  the entitlement covers all the hours (or part hours) on that day that would count towards the nominal hours worked by the employee in the week that includes that day;

the employer is taken to have authorised the employee to be absent from work for any other hours (or part hours) on that day that the employee would otherwise have worked.

Example:    Bianca is employed by BBB Bakers Pty Ltd. She works 40 hours per week (consisting of 38 hours plus 2 reasonable additional hours).

                   Under subsection 232(2), Bianca is entitled to accrue paid annual leave of 1/13 of her nominal hours worked for each completed 4 week period of continuous service with BBB Bakers. Because of subparagraph 229(1)(a)(ii), Bianca’s nominal hours worked in a week are capped at 38 hours. If Bianca works her normal hours for a 12 month period, she will accrue 152 hours of paid annual leave.

                   The above subsection ensures that Bianca will be able to be absent from work for 4 full 40 hour weeks. Bianca’s absence for the additional 8 hours will not be paid leave, and will not count as service, but it will not break her continuity of service (see subsection (8)).

             (8)  An absence that is taken by subsection (7) to have been authorised:

                     (a)  is not annual leave; and

                     (b)  does not break the employee’s continuity of service; and

                     (c)  does not otherwise count as service.

             (9)  For the purposes of subsection (7), if a shift (or other period of work) occurs partly on 1 day and partly on the next day, the shift (or other period of work) is taken to be a day and the remaining parts of the days are taken not to be part of the day.

           (10)  For the purposes of subsection (7), the regulations may make provision for either or both of the following:

                     (a)  determining what hours (or part hours) on a particular day would count towards the nominal hours worked by an employee in a week;

                     (b)  determining what other hours (or part hours) on a particular day would be hours (or part hours) that an employee would otherwise have worked.

13  Section 240

Insert:

basic periodic rate of pay has the meaning given by section 178.

Note:          See also section 243.

14  Paragraph 241(1)(a)

Repeal the paragraph, substitute:

                     (a)  start with:

                              (i)  the specified number of hours; or

                             (ii)  if the specified number of hours is more than 38 hours—38 hours;

15  After subsection 241(4)

Insert:

Certain types of leave not to count as service

          (4A)  For the purposes of subparagraphs (1)(b)(i) and (4)(a)(ii), a period of authorised unpaid leave or unauthorised leave does not count as service in relation to an employee except:

                     (a)  as expressly provided by:

                              (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.

Note:          For whether leave guaranteed under this Part counts as service, see subsections 238(2) (annual leave), 260(2) (paid personal leave), 261(2) (unpaid carer’s leave) and 316(2) (parental leave).

16  Subsection 241(5) (note 3)

Repeal the note.

17  Section 243

Repeal the section, substitute:

243  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 purposes of the application of this Division in relation to piece rate employees; and

                     (b)  a different definition of nominal hours worked for the purposes of the application of this Division in relation to piece rate employees.

18  After section 245

Insert:

245A  Entitlement to cash out an amount of paid personal/carer’s leave

             (1)  This section applies to an employee if more than the protected amount of paid personal/carer’s leave is credited to the employee.

             (2)  The employee is entitled to forgo an entitlement to take any or all of the amount of paid personal/carer’s leave credited to the employee that exceeds the protected amount of paid personal/carer’s leave 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 paid personal/carer’s leave; and

                     (b)  the employee gives the employer a written election to forgo the amount of paid personal/carer’s 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 paid personal/carer’s leave at a rate that is no less than the rate that, at the time the election is made, is the employee’s basic periodic rate of pay (expressed as an hourly rate); and

                     (d)  the employer authorises the employee to forgo the amount of paid personal/carer’s leave.

Note:          If, under this section, an employee forgoes an entitlement to take an amount of paid personal/carer’s leave, the employee’s employer may deduct that amount from the amount of accrued paid personal/carer’s leave credited to the employee.

             (3)  For the purposes of subsections (1) and (2), the protected amount of paid personal/carer’s leave for the employee is 3/52 of the number of nominal hours worked by the employee for the employer during:

                     (a)  a continuous period of 12 months of service with the employer ending immediately before the day on which the employee makes an election under paragraph (2)(b); or

                     (b)  a sequence of periods totalling 12 months of service with the employer, the last of which ends immediately before the day on which the employee makes an election under paragraph (2)(b).

Note:          The protected amount of paid personal/carer’s leave for an employee whose nominal hours worked for an employer each week over a continuous period of 12 months service with the employer are 38 hours would be 114 hours (which would be equivalent to 15 days of paid personal/carer’s leave for that employee).

             (4)  An employer must not:

                     (a)  require an employee to forgo an entitlement to take an amount of paid personal/carer’s 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 paid personal/carer’s leave.

             (5)  If, under this section, an employee forgoes an entitlement to take an amount of paid personal/carer’s leave, the employer must, within a reasonable period, give the employee the amount of pay that the employee is entitled to receive in lieu of the amount of paid personal/carer’s leave.

19  Section 247

Omit all the words after “a period,”, substitute “the employee must be paid a rate for each hour (pro‑rated for part hours) of paid personal/carer’s leave taken that is no less than the rate that, immediately before the period begins, is the employee’s basic periodic rate of pay (expressed as an hourly rate).”.

20  After section 247

Insert:

247A  Entitlement to leave for all nominal hours in a day also extends to other hours on that day

             (1)  If:

                     (a)  an employee to whom subparagraph 241(1)(a)(ii) applies is entitled to take paid personal/carer’s leave on a particular day; and

                     (b)  the entitlement covers all the hours (or part hours) on that day that would count towards the nominal hours worked by the employee in the week that includes that day;

the employer is taken to have authorised the employee to be absent from work for any other hours (or part hours) on that day that the employee would otherwise have worked.

Example:    Tina is employed by Terrific Videos Pty Ltd. She works 8 hours a day for 5 days a week, giving a weekly total of 40 hours per week (consisting of 38 hours plus 2 reasonable additional hours).

                   Under subsection 246(2), Tina is entitled to accrue paid personal/carer’s leave of 1/26 of her nominal hours worked for each completed 4 week period of continuous service with Terrific Videos. Because of subparagraph 241(1)(a)(ii), Tina’s nominal hours worked in a week are capped at 38 hours. If Tina works her normal hours for a 12 month period, she will accrue 76 hours of paid personal/carer’s leave.

                   The above subsection ensures that Tina will be able (subject to the requirements of this Division relating to entitlement to paid personal/carer’s leave) to be absent from work for 10 full 8 hour days. Tina’s absence for the additional 4 hours over those 10 days will not be paid leave, and will not count as service, but it will not break her continuity of service (see subsection (2)).

             (2)  An absence that is taken by subsection (1) to have been authorised:

                     (a)  is not paid personal/carer’s leave; and

                     (b)  does not break the employee’s continuity of service; and

                     (c)  does not otherwise count as service.

             (3)  For the purposes of subsection (1), if a shift (or other period of work) occurs partly on 1 day and partly on the next day, the shift (or other period of work) is taken to be a day and the remaining parts of the days are taken not to be part of the day.

             (4)  For the purposes of subsection (1), the regulations may make provision for either or both of the following:

                     (a)  determining what hours (or part hours) on a particular day would count towards the nominal hours worked by an employee in a week;

                     (b)  determining what other hours (or part hours) on a particular day would be hours (or part hours) that an employee would otherwise have worked.

21  Section 259

Omit all the words after “a period,”, substitute “the employee must be paid a rate for each hour (pro‑rated for part hours) of compassionate leave taken that is no less than the rate that, immediately before the period begins, is the employee’s basic periodic rate of pay (expressed as an hourly rate).”.

22  Section 262

Before “This”, insert “(1)”.

23  At the end of section 262

Add:

             (2)  This Division establishes minimum entitlements and so is intended to supplement, and not to override, entitlements under other Commonwealth legislation.

24  Section 263

Insert:

basic periodic rate of pay has the meaning given by section 178.

Note:          See also section 264A.

25  Section 263 (definition of employee)

Omit “section 262”, substitute “subsection 262(1)”.

26  Section 263

Insert:

piece rate employee means an employee who is paid a piece rate of pay within the meaning of section 178.

27  At the end of Subdivision A of Division 6 of Part 7

Add:

264A  Regulations may prescribe different definition for piece rate employees

                   The regulations may prescribe a different definition of basic periodic rate of pay for the purposes of the application of this Division in relation to piece rate employees.

28  At the end of subsection 268(2)

Add:

Note:          An employer may ask an employee to give the employer a statement from a medical practitioner as to the employee’s fitness to work (see subsections 274(2) and (2A)).

29  Subsection 268(3)

Omit all the words after “a period,”, substitute “the employee must be paid a rate for each hour (pro‑rated for part hours) of paid leave taken that is no less than the rate that, immediately before the period begins, is the employee’s basic periodic rate of pay (expressed as an hourly rate).”.

30  After subsection 274(2)

Insert:

          (2A)  If the employee takes paid leave under subparagraph 268(2)(b)(i) or (ii) during the period of 6 weeks before the expected date of birth, the employer may, at any time during the period of leave, ask the employee to give the employer a medical certificate from a medical practitioner containing a statement of the medical practitioner’s opinion of whether the employee is fit to work.

31  At the end of subsection 318(3)

Add:

Note:          For the purposes of subsection (3), employer, employee and employment have their ordinary meaning. See sections 5, 6 and 7 and Schedule 2.

32  After paragraph 2(1)(g) of Schedule 2

Insert:

                    (ga)  a reference in Division 7 of Part 7 so far as the reference relates to Division 6 of Part 7 as applied by section 689.

33  After paragraph 3(1)(c) of Schedule 2

Insert:

                    (ca)  a reference in Division 7 of Part 7 so far as the reference relates to Division 6 of Part 7 as applied by section 689.

34  After paragraph 4(1)(c) of Schedule 2

Insert:

                    (ca)  a reference in Division 7 of Part 7 so far as the reference relates to Division 6 of Part 7 as applied by section 689.

35  Saving provision—annual leave

The amendment of the Workplace Relations Act 1996 made by item 6 does not affect any entitlement to annual leave that an employee had accrued before the commencement of that item.

36  Saving provision—paid personal/carer’s leave

The amendment of the Workplace Relations Act 1996 made by item 14 does not affect any entitlement to paid personal/carer’s leave that an employee had accrued before the commencement of that item.


 

Schedule 6Other amendments

  

Workplace Relations Act 1996

1  Paragraph 165(1)(e)

After “purposes of” (first occurring), insert “this paragraph or”.

2  After subsection 165(1)

Insert:

          (1A)  To avoid doubt, a disclosure in accordance with subsection (1) of personal information (within the meaning of the Privacy Act 1988) is taken, for the purposes of that Act, to be authorised by law.

3  At the end of section 170

Add:

             (5)  To avoid doubt, a disclosure in accordance with this section of personal information (within the meaning of the Privacy Act 1988) is taken, for the purposes of that Act, to be authorised by law.

4  Subsection 337(5)

Repeal the subsection, substitute:

             (5)  If a waiver has been made under section 338 in relation to the workplace agreement:

                     (a)  subsection (1) and paragraph (3)(b) do not apply if, before the time the waiver was made, the employer had taken reasonable steps to ensure that all eligible employees in relation to the agreement (as at that time) either had, or had ready access to, the agreement in writing; and

                     (b)  subsection (2) does not apply if, before the time the waiver was made, the employer had taken reasonable steps to ensure that all eligible employees in relation to the agreement (as at that time) had been given an information statement in relation to the agreement that complies with subsection (4).

5  At the end of section 338

Add:

Note:          For the effect of the waiver, see subsection 337(5).

Note:       The heading to section 338 is replaced by the heading “Employees may waive 7‑day period”.

6  At the end of Division 5 of Part 8

Add:

346A  Employer to provide copy of lodged AWA to employee

             (1)  As soon as practicable after an employer lodges an AWA with the Employment Advocate, the employer must give a copy of the AWA to the employee whose employment is subject to the AWA.

             (2)  Subsection (1) is a civil remedy provision.

Note:          See Division 11 for provisions on enforcement.

7  After subsection 347(2)

Insert:

          (2A)  If:

                     (a)  an employer and an employee or employees of the employer, or an organisation of employees, make a workplace agreement (within the meaning of section 333); and

                     (b)  the employer does not lodge that workplace agreement (the unlodged agreement), but subsequently lodges a declaration under subsection 344(2); and

                     (c)  the declaration purports to identify as parties to a workplace agreement:

                              (i)  the employer who lodged the declaration; and

                             (ii)  at least one employee, class of employees or organisation; and

                     (d)  the employer and the other parties identified in the declaration are parties to the unlodged agreement; and

                     (e)  a document that is different from the unlodged agreement is attached to the declaration;

then:

                      (f)  the unlodged agreement comes into operation as a workplace agreement at the time the declaration is lodged; and

                     (g)  the document that is attached to the declaration does not come into operation as a workplace agreement.        

8  Subsection 370(5)

Repeal the subsection, substitute:

             (5)  If a waiver has been made under section 371 in relation to the variation to the workplace agreement:

                     (a)  subsection (1) and paragraph (3)(b) do not apply if, before the time the waiver was made, the employer had taken reasonable steps to ensure that all eligible employees in relation to the agreement (as at that time) either had, or had ready access to, the variation in writing; and

                     (b)  subsection (2) does not apply if, before the time the waiver was made, the employer had taken reasonable steps to ensure that all eligible employees in relation to the agreement (as at that time) had been given an information statement in relation to the variation that complies with subsection (4).

9  At the end of section 371

Add:

Note:          For the effect of the waiver, see subsection 370(5).

Note:       The heading to section 371 is replaced by the heading “Employees may waive 7‑day period”.

10  After paragraph 392(2)(b)

Insert:

                    (ba)  in the case of an AWA—the employee whose employment is subject to the agreement;

11  After paragraph 393(2)(b)

Insert:

                    (ba)  in the case of an AWA—the employee whose employment is subject to the agreement;

12  After paragraph 407(2)(j)

Insert:

                     (ja)  for subsection 346A(1)—30 penalty units;

13  At the end of subsection 482(1)

Add “, whether or not the ballot is completed”.

14  At the end of subsection 482(2)

Add “, whether or not the ballot is completed”.

15  Subsection 482(3)

Omit “have effect”, substitute “are, in relation to completed ballots,”.

16  After paragraph 483(1)(a)

Insert:

                    (aa)  the ballot has been completed; and

Note:       The heading to section 483 is altered by inserting “completed” after “of”.

17  Section 611 (after paragraph (a) of the definition of public holiday)

Insert:

                    (aa)  a day that, under (or in accordance with a procedure under) a law of a State or Territory, is substituted for a day referred to in paragraph (a); and

18  Section 611 (subparagraph (b)(i) of the definition of public holiday)

Repeal the subparagraph.

19  At the end of section 710

Add:

               ; or (c)  the matter is the subject of proceedings or has already been settled as a result of proceedings, whether before a court or another body, under a law of the Commonwealth or of a State or Territory relating to the prevention of discrimination or to equal opportunity.

20  Subparagraph 846(2)(g)(i)

Omit “5”, substitute “10”.

21  Subparagraph 846(2)(g)(ii)

Omit “25”, substitute “50”.

22  Paragraph 864(1)(b)

Repeal the paragraph, substitute:

                     (b)  is:

                              (i)  of a rate provision; or

                             (ii)  of a casual loading provision; or

                            (iii)  of a frequency of payment provision.

23  Subsection 864(4)

Insert:

frequency of payment provision has the same meaning as in Division 2 of Part 7.

24  After paragraph 3(1)(h) of Schedule 2

Insert:

                    (ha)  a reference in Division 2 of Part 4 of Schedule 7.

25  Paragraph 72H(2)(c) of Schedule 6

Omit all the words after “apply”, substitute “according to its terms, to the transferring transitional employee’s employment with the new transitional employer;”.

26  Subclause 72H(2) of Schedule 6

Omit “the transmitted award, to the extent to which it relates to the transferring transitional employee’s employment with the new transitional employer, prevails over that certified agreement to the extent of any inconsistency with that certified agreement.”, substitute “the certified agreement does not apply to the transferring transitional employee.”.

27  Paragraph 77(3)(a) of Schedule 6

Repeal the paragraph, substitute:

                     (a)  the matter referred to in paragraph (1)(g) does not include one or both of the following:

                              (i)  special maternity leave (within the meaning of section 265);

                             (ii)  the entitlement under section 268 to transfer to a safe job or to take paid leave; and

28  Paragraph 97(4)(a) of Schedule 6

Repeal the paragraph, substitute:

                     (a)  the matter referred to in paragraph (2)(ac) does not include one or both of the following:

                              (i)  special maternity leave (within the meaning of section 265);

                             (ii)  the entitlement under section 268 to transfer to a safe job or to take paid leave; and

29  Clause 1 of Schedule 7

Insert:

transitional award has the same meaning as in Schedule 6.

30  At the end of clause 2 of Schedule 7

Add:

Note:          Clause 5 of this Schedule, section 16 and Schedule 8 may also affect the terms and conditions of employment of an employee in relation to whom a pre‑reform certified agreement is in operation.

31  Subclause 5(1) of Schedule 7

Repeal the subclause, substitute:

             (1)  While a pre‑reform certified agreement is in operation, it prevails, to the extent of any inconsistency, over:

                     (a)  a preserved State agreement; or

                     (b)  a notional agreement preserving State awards.

32  At the end of clause 17 of Schedule 7

Add:

Note:          Clause 19 of this Schedule, section 16 and Schedule 8 may also affect the terms and conditions of employment of an employee in relation to whom a pre‑reform AWA is in operation.

33  Paragraph 19(d) of Schedule 7

Repeal the paragraph, substitute:

                     (d)  to the extent of any inconsistency, a notional agreement preserving State awards;

34  Before clause 22 of Schedule 7

Insert:

Division 1Continuing operation of section 170MX awards

35  Clause 22 of Schedule 7

Repeal the clause, substitute:

22  Application of Division

                   This Division applies to a section 170MX award if:

                     (a)  the employer in relation to the section 170MX award:

                              (i)  is an employer (within the meaning of subsection 6(1)) at the reform commencement; or

                             (ii)  becomes such an employer during the transitional period; and

                     (b)  the section 170MX award:

                              (i)  was in force just before the reform commencement; or

                             (ii)  was made after the reform commencement because of Part 8 of this Schedule.

36  Subclause 23(1) of Schedule 7

Omit “the award”, substitute “a section 170MX award to which this Division applies”.

37  Clause 24 of Schedule 7

Omit “the award”, substitute “a section 170MX award to which this Division applies”.

38  Clause 25 of Schedule 7

After “section 170MX award” (wherever occurring), insert “to which this Division applies”.

39  Subclause 26(1) of Schedule 7

After “section 170MX award”, insert “to which this Division applies”.

40  At the end of Part 4 of Schedule 7

Add:

Division 2Special rules for section 170MX awards that bind excluded employers

26A  Application of Division

             (1)  This Division applies to a section 170MX award if:

                     (a)  the employer in relation to the section 170MX award is an excluded employer at the reform commencement; and

                     (b)  the section 170MX award:

                              (i)  was in force just before the reform commencement; or

                             (ii)  was made after the reform commencement because of Part 8 of this Schedule.

             (2)  This Division applies to the section 170MX award while the employer remains an excluded employer during the transitional period.

26B  Cessation of section 170MX award

             (1)  A section 170MX award to which this Division applies ceases to be in operation:

                     (a)  at the end of the transitional period; or

                     (b)  when it has been replaced by a State employment agreement.

             (2)  To avoid doubt, this clause does not affect any rights accrued or liabilities incurred under a section 170MX award to which this Division applies before it ceases to be in operation.

             (3)  To avoid doubt, if the employer in relation to a section 170MX award to which this Division applies becomes an employer (within the meaning of subsection 6(1)) at a time before the end of the transitional period, subclause (1) does not apply after that time.

Note:          On and after that time, Division 1 of this Part applies to the section 170MX award.

             (4)  Once a section 170MX award to which this Division applies has ceased operating, it can never operate again.

26C  Continuing operation of section 170MX awards—under old provisions

             (1)  Subject to this Schedule, provisions of the pre‑reform Act (including regulations made under that Act) relating to section 170MX of the pre‑reform Act continue to apply in relation to a section 170MX award to which this Division applies, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005.

             (2)  Subclause (1) does not apply in relation to the following provisions of the pre‑reform Act:

                     (a)  section 170MN;

                     (b)  subsections 170MZ(4) and (5);

                     (c)  paragraph 170MZ(6)(b);

                     (d)  subsections 170MZ(7) and (8).

26D  Continuing operation of section 170MX awards—under new provisions

                   Subject to this Schedule, the following provisions of this Act apply in relation to a section 170MX award to which this Division applies as if it were a workplace determination:

                     (a)  Part 6;

                     (b)  section 494;

                     (c)  subsection 451(2);

                     (d)  Part 14;

                     (e)  Part 15.

26E  Interaction of section 170MX awards with other instruments

                   While a section 170MX award to which this Division applies is in operation, it prevails over a transitional award to the extent of any inconsistency.

41  Clause 30 of Schedule 7

Repeal the clause, substitute:

30  Relationships between pre‑reform agreements etc. and Australian Fair Pay and Conditions Standard

             (1)  The Australian Fair Pay and Conditions Standard does not apply to an employee in relation to a matter if the employee’s employment is subject to any of the following instruments that deals with that matter in relation to the employee:

                     (a)  a pre‑reform certified agreement;

                     (b)  a pre‑reform AWA;

                     (c)  a section 170MX award.

             (2)  In this clause:

 matter means a matter referred to in subsection 171(2).

Note:          This means that if a pre‑reform certified agreement, a pre‑reform AWA or a section 170MX award deals with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will not apply to the employee in respect of that matter.

                   However, if a pre‑reform certified agreement, a pre‑reform AWA or a section 170MX award does not deal with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will apply to the employee in respect of that matter.

42  At the end of clause 35 of Schedule 7

Insert:

Note:          Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference certified agreement is in operation.

43  At the end of clause 36 of Schedule 7

Insert:

Note:          Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference Division 3 pre‑reform certified agreement is in operation.

44  At the end of clause 37 of Schedule 7

Insert:

Note:          Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference AWA is in operation.

45  Clause 15E of Schedule 8

Repeal the clause, substitute:

15E  Relationship between preserved State agreements and Australian Fair Pay and Conditions Standard

             (1)  The Australian Fair Pay and Conditions Standard does not apply to an employee in relation to a matter if the employee’s employment is subject to a preserved State agreement that deals with that matter in relation to the employee.

             (2)  In this clause:

matter means a matter referred to in subsection 171(2).

Note:          This means that if a preserved State agreement deals with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will not apply to the employee in respect of that matter.

                   However, if a preserved State agreement does not deal with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will apply to the employee in respect of that matter.

46  Clause 44 of Schedule 8

After “for a matter”, insert “in relation to an employee”.

47  Clause 44 of Schedule 8

After “also deals with that matter”, insert “in relation to the employee”.

48  Paragraph 20(2)(b) of Schedule 9

Repeal the paragraph.

Workplace Relations Amendment (Work Choices) Act 2005

49  Paragraph 5A(a) of Schedule 4

After “meaning of”, insert “paragraph 513(4)(b) of”.

50  At the end of item 5A of Schedule 4

Add “, to the extent that the term requires the payment of redundancy pay within the meaning of paragraph 513(4)(b) of the amended Act”.

51  Application of items 4 and 5

The amendments made by items 4 and 5 of this Schedule apply only in relation to waivers under section 338 of the Workplace Relations Act 1996 made on or after the commencement of this item.

52  Application of item 7

(1)        The amendment of the Workplace Relations Act 1996 made by item 7 of this Schedule applies, and is taken always to have applied, on and from the reform commencement to an unlodged agreement, within the meaning of paragraph 347(2A)(b) of the Workplace Relations Act 1996, in relation to which a declaration was lodged on or after the reform commencement.

(2)        In this item:

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

53  Application of items 8 and 9

The amendments made by items 8 and 9 apply only in relation to waivers under section 371 of the Workplace Relations Act 1996 made on or after the commencement of this item.

54  Application of items 13 to 16

The amendments made by items 13 to 16 apply to a ballot in respect of which a ballot order is made under section 462 of the Workplace Relations Act 1996 on or after the commencement of this item.

55  Transitional provision—items 13 to 16

(1)        This item applies to a ballot in respect of which a ballot order was made under section 462 of the Workplace Relations Act 1996 before the commencement of this item if:

                     (a)  the authorised ballot agent for the ballot was the Australian Electoral Commission; and

                     (b)  the Australian Electoral Commission certifies that the ballot had not been completed at the commencement of this item.

(2)        After the commencement of this item, section 483 of the Workplace Relations Act 1996 is taken to apply to the incomplete ballot as if the ballot had been completed at the time of the certification referred to in paragraph (1)(b), so far as section 483 relates to costs:

                     (a)  incurred by the Australian Electoral Commission; and

                     (b)  in respect of which, had the applicant been liable for the costs of the incomplete ballot, the applicant’s liability would have been able to have been discharged under subsections 483(5) and (6).

(3)        To avoid doubt, this item does not affect any liability of the applicant in relation to the cost of holding the incomplete ballot and, in particular, does not impose any additional liability upon the applicant.

56  Application of items 25 and 26

(1)        The amendments of the Workplace Relations Act 1996 made by items 25 and 26 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to a transferring transitional employee.

(2)        In this item:

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

transferring transitional employee has the same meaning as in clause 72H of Schedule 6 to the Workplace Relations Act 1996.

57  Application of items 24, 29 and 34 to 40

(1)        The amendments of the Workplace Relations Act 1996 made by items 24, 29 and 34 to 40 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to a section 170MX award (within the meaning of the Workplace Relations Act 1996).

(2)        However, subitem (1) does not authorise the imposition of a civil penalty under Part 14 of the Workplace Relations Act 1996 for a breach that occurred before the commencement of this item.

(3)        In this item:

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

58  Application of items 31 and 33

(1)        The amendments of the Workplace Relations Act 1996 made by items 31 and 33 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to a pre‑reform certified agreement, a preserved State agreement, a notional agreement preserving State awards or a pre‑reform AWA that is in operation on the reform commencement, whether or not the pre‑reform certified agreement, the preserved State agreement, the notional agreement preserving State awards or the pre‑reform AWA is in operation at the commencement of this item.

(2)        However, subitem (1) does not authorise the imposition of a civil penalty under Part 14 of the Workplace Relations Act 1996 for a breach that occurred before the commencement of this item.

(3)        In this item:

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

59  Application of items 41 and 45

(1)        The amendments of the Workplace Relations Act 1996 made by items 41 and 45 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to an employee (including, but not limited to, for the purposes of Division 7 of Part 7 of that Act).

(2)        However, subitem (1) does not authorise the imposition of a civil penalty under Part 14 of the Workplace Relations Act 1996 for a breach that occurred before the commencement of this item.

(3)        In this item:

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

60  Application of items 46 and 47

(1)        The amendments of the Workplace Relations Act 1996 made by items 46 and 47 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to an employee.

(2)        However, subitem (1) does not authorise the imposition of a civil penalty under Part 14 of the Workplace Relations Act 1996 for a breach that occurred before the commencement of this item.

(3)        In this item:

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

61  Application of item 48

(1)        The amendment of the Workplace Relations Act 1996 made by item 48 of this Schedule applies, and is taken always to have applied, on and from the reform commencement, in relation to a transferring employee.

(2)        However, subitem (1) does not authorise the imposition of a civil penalty under Part 14 of the Workplace Relations Act 1996 for a breach that occurred before the commencement of this item.

(3)        In this item:

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

transferring employee has the same meaning as in clause 20 of Schedule 9 to the Workplace Relations Act 1996.

62  Application of items 49 and 50

(1)        The amendments of the Workplace Relations Amendment (Work Choices) Act 2005 made by items 49 and 50 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to a pre‑reform award or a transitional award within the meaning of the Workplace Relations Act 1996.

(2)        In this item:

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