2010‑2011‑2012

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Fair Work Amendment (Small Business—Penalty Rates Exemption) Bill 2012

No.      , 2012

(Senator Xenophon)

A Bill for an Act to amend the Fair Work Act 2009, and for related purposes

Contents

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

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

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

Schedule 1—Amendments                                                                                                3

Fair Work Act 2009                                                                                                     3

A Bill for an Act to amend the Fair Work Act 2009, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Fair Work Amendment (Small Business—Penalty Rates Exemption) Act 2012.

2  Commencement

                   This Act commences on the day this Act receives the Royal Assent.

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                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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 1—Amendments

Fair Work Act 2009

1  Section 12

Insert:

excluded small business employer: see subsection 155A(2).

2  At the end of Division 3 of Part 2‑3

Add:

155A  Terms dealing with penalty rates payable by excluded small business employers

             (1)  A modern award must not include a term that would require or permit an employer that is an excluded small business employer to pay penalty rates to an employee for work performed for the employer unless the work performed consists of more than:

                     (a)  38 hours of work in total during a week; or

                     (b)  10 hours of work during a 24 hour period.

             (2)  An employer is an excluded small business employer at a particular time if, at that time, the employer employs fewer than 20 employees in:

                     (a)  the restaurant and catering industry; or

                     (b)  the retail industry.

             (3)  For the purpose of calculating the number of employees employed by the employer in an industry at a particular time:

                     (a)  all full‑time and full‑time equivalent employees employed by the employer in the industry at that time are to be counted; and

                     (b)  any other employee employed by the employer in the industry at that time is not to be counted.

             (4)  For the purpose of calculating the number of employees employed by the employer in an industry at a particular time, associated entities within the industry are taken to be one entity.

3  At the end of Schedule 1

Add:

Part 2—Amendments made by the Fair Work Amendment (Small Business—Penalty Rates Exemption) Act 2012

8  Definitions

                   In this Part:

amended Act means this Act as amended by the Fair Work Amendment (Small Business—Penalty Rates Exemption) Act 2012.

commencement means the commencement of this Part.

9  Application of section 155A

                   Section 155A of the amended Act applies from commencement in relation to a modern award that is in operation on or after that commencement, whether the modern award is made before or after that commencement.