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A Bill for an Act to amend the Fair Work Act 2009, and for other purposes
Administered by: Employment
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 03 Dec 2015
Introduced HR 03 Dec 2015
Table of contents.

2013‑2014‑2015

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Fair Work Amendment (Remaining 2014 Measures) Bill 2015

 

No.      , 2015

 

(Employment)

 

 

 

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

  

  


Contents

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

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

3............ Schedules............................................................................................ 3

Schedule 1—Amendments                                                                                                4

Part 1—Payment for annual leave                                                                          4

Fair Work Act 2009                                                                                                     4

Part 2—Taking or accruing leave while receiving workers’ compensation            5

Fair Work Act 2009                                                                                                     5

Part 3—Individual flexibility arrangements                                                      6

Division 1—Modern awards (genuine needs statements)                                    6

Fair Work Act 2009                                                                                                     6

Division 2—Modern awards (other matters)                                                          6

Fair Work Act 2009                                                                                                     6

Division 3—Enterprise agreements                                                                           7

Fair Work Act 2009                                                                                                     7

Part 4—Transfer of business                                                                                    10

Fair Work Act 2009                                                                                                   10

Part 5—Right of entry                                                                                                11

Fair Work Act 2009                                                                                                   11

Part 6—FWC hearings and conferences                                                            17

Fair Work Act 2009                                                                                                   17

Schedule 2—Application and transitional provisions                                    19

Fair Work Act 2009                                                                                                   19

 

 


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

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Fair Work Amendment (Remaining 2014 Measures) Act 2015.

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

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1, Parts 1 and 2

The day after this Act receives the Royal Assent.

 

3.  Schedule 1, Part 3, Division 1

The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent.

 

4.  Schedule 1, Part 3, Divisions 2 and 3

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

5.  Schedule 1, Part 4

The day after this Act receives the Royal Assent.

 

6.  Schedule 1, Part 5

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

7.  Schedule 1, Part 6

The day after this Act receives the Royal Assent.

 

8.  Schedule 2

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation 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 1Amendments

Part 1Payment for annual leave

Fair Work Act 2009

1  Subsection 55(4) (paragraph (b) of note 2)

Omit “99).”, substitute “99); or”.

2  Subsection 55(4) (at the end of note 2)

Add:

(c)    that provide that if, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employee is to be paid the amount that would have been payable to the employee had the employee taken that period of leave (that amount may be higher than the amount required by subsection 90(2)).

3  Subsection 90(2)

Repeal the subsection, substitute:

             (2)  If, at the time (the termination time) when the employment of an employee ends, the employee has a period of untaken paid annual leave:

                     (a)  the employer must pay the employee a rate for each hour of the employee’s untaken paid annual leave; and

                     (b)  that rate must not be less than the rate that, immediately before the termination time, is the employee’s base rate of pay (expressed as an hourly rate).

Note:          See also section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Part 2Taking or accruing leave while receiving workers’ compensation

Fair Work Act 2009

4  Subsection 130(2)

Repeal the subsection.

Part 3Individual flexibility arrangements

Division 1—Modern awards (genuine needs statements)

Fair Work Act 2009

5  After paragraph 144(4)(c)

Insert:

                    (ca)  require the employer to ensure that any individual flexibility arrangement includes a statement by the employee setting out why the employee believes (at the time of agreeing to the arrangement) that the arrangement:

                              (i)  meets the genuine needs of the employee; and

                             (ii)  results in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to; and

Division 2—Modern awards (other matters)

Fair Work Act 2009

6  Paragraph 144(4)(d)

Repeal the paragraph, substitute:

                     (d)  require the employer to ensure that any individual flexibility arrangement agreed to under the term must be able to be terminated:

                              (i)  by either the employee, or the employer, giving 13 weeks notice of termination, in writing, to the other party to the arrangement; or

                             (ii)  by the employee and the employer at any time if they agree, in writing, to the termination; and

7  At the end of subsection 144(4)

Add:

Note:          Benefits other than an entitlement to a payment of money may be taken into account for the purposes of paragraph (c).

8  At the end of subsection 145(3)

Add:

Note:          An employer does not contravene a flexibility term in the circumstances set out in section 145AA.

9  After section 145

Insert:

145AA  Contravention of flexibility term by employer

                   An employer does not contravene a flexibility term of a modern award in relation to a particular individual flexibility arrangement if, at the time when the arrangement is made, the employer reasonably believes that the requirements of the term were complied with, so far as the requirements are applicable to the arrangement.

Division 3—Enterprise agreements

Fair Work Act 2009

10  Before paragraph 203(2)(a)

Insert:

                    (aa)  if the enterprise agreement includes terms that deal with one or more of the following matters:

                              (i)  arrangements about when work is performed;

                             (ii)  overtime rates;

                            (iii)  penalty rates;

                            (iv)  allowances;

                             (v)  leave loading;

                            provide that the effect of those terms may be varied by an individual flexibility arrangement agreed to under the flexibility term; and

11  Paragraph 203(2)(a)

Omit “the terms”, substitute “any other terms”.

12  At the end of subsection 203(4)

Add:

Note:          Benefits other than an entitlement to a payment of money may be taken into account for the purposes of this subsection.

13  After subsection 203(4)

Insert:

Requirement for genuine needs statement

          (4A)  The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term includes a statement by the employee setting out why the employee believes (at the time of agreeing to the arrangement) that the arrangement:

                     (a)  meets the genuine needs of the employee; and

                     (b)  results in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to.

14  Paragraph 203(6)(a)

Omit “written notice of not more than 28 days”, substitute “13 weeks notice of termination, in writing, to the other party to the arrangement”.

15  At the end of subsection 204(3)

Add:

Note:          An employer does not contravene a flexibility term in the circumstances set out in section 204A.

16  Subsection 204(4)

Repeal the subsection, substitute:

Arrangement may be terminated by agreement or notice

             (4)  The flexibility term is taken to provide (in addition to any other means of termination of the arrangement that the term provides) that the arrangement can be terminated:

                     (a)  by either the employee, or the employer, giving written notice of not more than 28 days; or

                     (b)  by the employee and the employer at any time if they agree, in writing, to the termination.

17  After section 204

Insert:

204A  Contravention of flexibility term by employer

                   An employer does not contravene a flexibility term of an enterprise agreement in relation to a particular individual flexibility arrangement if, at the time when the arrangement is made, the employer reasonably believes that the requirements of the term were complied with, so far as the requirements are applicable to the arrangement.

Part 4Transfer of business

Fair Work Act 2009

18  Section 12 (paragraph (a) of the definition of transfer of business)

Omit “subsection 311(1)”, substitute “subsections 311(1) and (1A)”.

19  After subsection 311(1)

Insert:

          (1A)  However, there is not a transfer of business if:

                     (a)  the new employer is an associated entity of the old employer when the employee becomes employed by the new employer; and

                     (b)  before the termination of the employee’s employment with the old employer, the employee sought to become employed by the new employer at the employee’s initiative.

20  At the end of section 768AD

Add:

Exception

             (5)  Subsections (2), (3) and (4) do not apply if:

                     (a)  the new employer is an associated entity of the old State employer when the person becomes employed by the new employer as mentioned in paragraph (1)(b); and

                     (b)  before the termination of the person’s employment with the old State employer, the person sought to become employed by the new employer at the person’s initiative.

             (6)  For the purposes of sections 768BL, 768BM and 768BN, assume that subsection (5) of this section had not been enacted.

Part 5Right of entry

Fair Work Act 2009

21  Section 12 (definition of accommodation arrangement)

Repeal the definition.

22  Section 12

Insert:

invitation certificate: see subsection 520A(1).

23  Section 12 (definition of transport arrangement)

Repeal the definition.

24  Section 478

Omit:

Division 7 deals with accommodation and transport arrangements in remote areas.

25  Section 484

Repeal the section, substitute:

484  Entry to hold discussions

Permit holder’s organisation is covered by an enterprise agreement

             (1)  A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

                     (a)  who perform work on the premises; and

                     (b)  whose industrial interests the permit holder’s organisation is entitled to represent; and

                     (c)  who wish to participate in those discussions;

if:

                     (d)  an enterprise agreement applies to work performed on the premises; and

                     (e)  the permit holder’s organisation is covered by the enterprise agreement.

Note 1:       A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2:       A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 3:       Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold the relevant discussions on the premises.

Permit holder’s organisation is not covered by an enterprise agreement

             (2)  A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

                     (a)  who perform work on the premises; and

                     (b)  whose industrial interests the permit holder’s organisation is entitled to represent; and

                     (c)  who wish to participate in those discussions;

if:

                     (d)  either:

                              (i)  an enterprise agreement applies to work performed on the premises, but the enterprise agreement does not cover the permit holder’s organisation; or

                             (ii)  no enterprise agreement applies to work performed on the premises; and

                     (e)  a member, or prospective member, of the permit holder’s organisation:

                              (i)  who performs work on the premises; and

                             (ii)  whose industrial interests the organisation is entitled to represent;

                            has invited the organisation to send a representative to the premises for the purposes of holding those discussions.

Note 1:       The FWC may issue an invitation certificate under section 520A. The certificate will state that the FWC is satisfied that the organisation has been invited.

Note 2:       A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 3:       A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 4:       Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold the relevant discussions on the premises.

26  Sections 492 and 492A

Repeal the sections, substitute:

492  Conduct of interviews in particular room etc.

             (1)  The permit holder must comply with any reasonable request by the occupier of the premises to:

                     (a)  conduct interviews or hold discussions in a particular room or area of the premises; or

                     (b)  take a particular route to reach a particular room or area of the premises.

Note:          The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

             (2)  Without limiting when a request under subsection (1) might otherwise be unreasonable, a request under paragraph (1)(a) is unreasonable if:

                     (a)  the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or

                     (b)  the request is made with the intention of:

                              (i)  intimidating persons who might participate in the interviews or discussions; or

                             (ii)  discouraging persons from participating in the interviews or discussions; or

                            (iii)  making it difficult for persons to participate in the interviews or discussions, whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason.

             (3)  However, a request under subsection (1) is not unreasonable only because the room, area or route is not that which the permit holder would have chosen.

             (4)  The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.

27  Subsection 505(1)

Repeal the subsection, substitute:

             (1)  The FWC may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).

Note:          Sections 491, 492 and 499 deal with requests for permit holders to use particular rooms or areas, and comply with occupational health and safety requirements.

28  Subsection 505(5)

Repeal the subsection, substitute:

             (5)  In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable.

29  Subsection 505A(4)

Repeal the subsection.

30  Subsection 505A(6)

Repeal the subsection, substitute:

             (6)  In dealing with the dispute, the FWC must take into account:

                     (a)  fairness between the parties concerned; and

                     (b)  if the dispute relates to an employer—the combined impact on the employer’s operations of entries onto the premises by permit holders of organisations; and

                     (c)  if the dispute relates to an occupier of premises—the combined impact on the occupier’s operations of entries onto the premises by permit holders of organisations.

             (7)  For the purposes of paragraphs (6)(b) and (c), it is immaterial whether the organisations, or their permit holders, are parties to the dispute.

31  After Subdivision D of Division 6 of Part 3‑4

Insert:

Subdivision DAInvitation certificates

520A  Invitation certificates

             (1)  The FWC must, on application by an organisation, issue a certificate (an invitation certificate) to the organisation if the FWC is satisfied that:

                     (a)  a member, or prospective member, of the organisation performs work on particular premises; and

                     (b)  the organisation is entitled to represent the industrial interests of the member or prospective member; and

                     (c)  the member or prospective member has invited the organisation to send a representative to the premises for the purposes of holding discussions with one or more employees or TCF award workers.

             (2)  An invitation certificate must state the following:

                     (a)  the premises to which it relates;

                     (b)  the organisation to which it relates;

                     (c)  that the FWC is satisfied of the matters referred to in paragraphs (1)(a), (b) and (c).

             (3)  The FWC must specify an expiry date in an invitation certificate. The certificate ceases to have effect at the end of that date.

             (4)  In specifying an expiry date in an invitation certificate, the FWC must comply with any limitations, restrictions or requirements prescribed by the regulations.

             (5)  An invitation certificate must not reveal the identity of the member or prospective member to whom it relates.

32  Paragraphs 521(a), (b), (c) and (d)

Omit “and affected member certificates”, substitute “, affected member certificates and invitation certificates”.

33  Division 7 of Part 3‑4

Repeal the Division.

34  Subsection 539(2) (cell at table item 25, column headed “Civil remedy provision”)

Omit:

521C(3)
521D(3)

35  After paragraph 601(5)(f)

Insert:

                    (fa)  a decision to issue, or to refuse to issue, an invitation certificate under section 520A;

Part 6FWC hearings and conferences

Fair Work Act 2009

36  Section 12

Insert:

designated application‑dismissal power means:

                     (a)  the power conferred by section 399A (which deals with dismissing applications for orders under Division 4 of Part 3‑2); or

                     (b)  the power conferred by section 587 to dismiss an application for an order under Division 4 of Part 3‑2.

Note:          Division 4 of Part 3‑2 deals with remedies for unfair dismissal of employees.

37  Section 397

Before “The FWC”, insert “(1)”.

38  At the end of section 397

Add:

             (2)  This section does not apply for the purposes of deciding whether to exercise a designated application‑dismissal power.

39  At the end of section 399

Add:

Designated application‑dismissal power

             (4)  To avoid doubt, a reference in this section to a hearing in relation to a matter arising under this Part includes a reference to a hearing for the purposes of deciding whether to exercise a designated application‑dismissal power.

40  After section 399A

Insert:

399B  Hearings and conferences—dismissing applications

             (1)  If the FWC decides not to hold a hearing, or conduct a conference, for the purposes of deciding whether to exercise a designated application‑dismissal power, the FWC must, before deciding whether to exercise the power:

                     (a)  invite the parties to the matter concerned to provide further information that relates to whether the power should be exercised; and

                     (b)  take account of any such information.

             (2)  If, as a result of information provided as mentioned in subsection (1), the FWC considers that it would be desirable to hold a hearing, or conduct a conference, for the purposes of deciding whether to exercise a designated application‑dismissal power, the FWC may do so.

             (3)  An invitation under paragraph (1)(a) must:

                     (a)  be given by written notice to the parties to the matter concerned; and

                     (b)  specify the time by which the information referred to in the invitation is to be provided.

41  Subsection 587(1) (note)

Omit “Note”, substitute “Note 1”.

42  At the end of subsection 587(1)

Add:

Note 2:       Section 399 deals with hearings for the purposes of deciding whether to exercise the power conferred by this section to dismiss an application for an order under Division 4 of Part 3‑2.

Note 3:       Section 399B sets out requirements that apply if the FWC decides not to hold a hearing, or conduct a conference, for the purposes of deciding whether to exercise the power conferred by this section to dismiss an application for an order under Division 4 of Part 3‑2.

Schedule 2Application and transitional provisions

  

Fair Work Act 2009

1  At the end of the Act

Add:

Schedule 5AAmendments made by the Fair Work Amendment (Remaining 2014 Measures) Act 2015

Note:       See section 795A.

  

  

1  Definitions

                   In this Schedule:

amending Act means the Fair Work Amendment (Remaining 2014 Measures) Act 2015.

2  Part 1 of Schedule 1 to the amending Act

                   The amendments made by Part 1 of Schedule 1 to the amending Act apply in relation to the end of the employment of an employee, if the end of the employment occurs after the commencement of that Part.

3  Part 2 of Schedule 1 to the amending Act

                   The amendment made by Part 2 of Schedule 1 to the amending Act applies in relation to a compensation period beginning after the commencement of that Part.

4  Division 1 of Part 3 of Schedule 1 to the amending Act

                   Paragraph 144(4)(ca) applies in relation to a modern award that is in operation after the commencement of Division 1 of Part 3 of Schedule 1 to the amending Act, whether or not the award was made before the commencement of that Division.

5  FWC to vary certain modern awards—genuine needs statement

Scope

             (1)  This clause applies in relation to a modern award if:

                     (a)  the award is in operation at any time during the period of 6 months ending at the commencement of Division 1 of Part 3 of Schedule 1 to the amending Act; and

                     (b)  at any time during that 6‑month period, the award includes a flexibility term that does not comply with paragraph 144(4)(ca) (if it were assumed that paragraph 144(4)(ca) applied in relation to the award).

Variation

             (2)  The FWC must, before the commencement of Division 1 of Part 3 of Schedule 1 to the amending Act, make a determination varying the modern award so as to ensure that the flexibility term complies with paragraph 144(4)(ca).

             (3)  A determination made under subclause (2) comes into operation at (and takes effect from) the commencement of Division 1 of Part 3 of Schedule 1 to the amending Act.

             (4)  Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2‑3.

6  Division 2 of Part 3 of Schedule 1 to the amending Act

                   Section 145AA applies in relation to an individual flexibility arrangement made after the commencement of Division 2 of Part 3 of Schedule 1 to the amending Act.

7  Division 3 of Part 3 of Schedule 1 to the amending Act

             (1)  The amendments of subsections 203(2) and (6) made by Division 3 of Part 3 of Schedule 1 to the amending Act apply in relation to an enterprise agreement made after the commencement of that Division.

             (2)  Subsection 203(4A) applies in relation to an enterprise agreement made after the commencement of Division 3 of Part 3 of Schedule 1 to the amending Act.

             (3)  The amendment of section 204 made by Division 3 of Part 3 of Schedule 1 to the amending Act applies in relation to an enterprise agreement made after the commencement of that Division.

             (4)  Section 204A applies in relation to an individual flexibility arrangement made after the commencement of Division 3 of Part 3 of Schedule 1 to the amending Act.

8  Part 4 of Schedule 1 to the amending Act

             (1)  Subsection 311(1A) applies in relation to an employee who becomes employed by a new employer after the commencement of Part 4 of Schedule 1 to the amending Act.

             (2)  Subsections 768AD(5) and (6) apply in relation to a person who becomes employed by a new employer after the commencement of Part 4 of Schedule 1 to the amending Act.

9  Part 5 of Schedule 1 to the amending Act

             (1)  The amendments made by item 26 of Schedule 1 to the amending Act apply in relation to interviews conducted, and discussions held, after the commencement of that item.

             (2)  The amendments of section 505A made by Part 5 of Schedule 1 to the amending Act apply to a dispute if the FWC commences to deal with the dispute:

                     (a)  on its own initiative after the commencement of that Part; or

                     (b)  on application made after the commencement of that Part.

10  Part 6 of Schedule 1 to the amending Act

                   The amendments made by Part 6 of Schedule 1 to the amending Act apply in relation to an application for an order under Division 4 of Part 3‑2, if the application was made after the commencement of Part 6 of Schedule 1 to the amending Act.