Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the Fair Work Act 2009, and for related 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 31 Aug 2016
Introduced HR 31 Aug 2016

 

2016

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

FAIR WORK AMENDMENT (RESPECT FOR EMERGENCY SERVICES VOLUNTEERS) BILL 2016

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment, Senator the Hon Michaelia Cash)

 

 

 

 

 

 

 



FAIR WORK AMENDMENT (RESPECT FOR EMERGENCY SERVICES VOLUNTEERS) BILL 2016

OUTLINE

The Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016 (the Bill) amends the Fair Work Act 2009 (Fair Work Act) to implement the Government’s commitment to protect emergency service bodies and their volunteers by providing that an enterprise agreement cannot include terms that undermine the capacity of volunteer emergency services bodies to properly manage their volunteer operations, or terms that are inconsistent with State or Territory laws that regulate such bodies.

The Bill achieves this by amending the definition of unlawful terms to include an objectionable emergency management term that cannot be included in an enterprise agreement that covers a designated emergency management body. A designated emergency management body is:

·                    a body that is, or is a part of, a fire-fighting body or a State Emergency Service of a State or Territory (however described), or is a recognised emergency management body that is prescribed by the regulations; and

·                    a body that is, or is a part of a body that is, established for a public purpose by or under a Commonwealth, State or Territory law.

An enterprise agreement that covers a designated emergency management body cannot include an objectionable emergency management term – that is, a term that has, or is likely to have, the effect of:

·                    restricting or limiting the body’s ability to engage or deploy its volunteers; provide support or equipment to those volunteers; manage its relationship with, or work with, any recognised emergency management body in relation to those volunteers; otherwise manage its operations in relation to those volunteers; or

·                    requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of engaging or deploying its volunteers; providing support or equipment to those volunteers; managing its relationship with, or working with, any recognised emergency management body in relation to those volunteers; otherwise managing its operations in relation to those volunteers; or

·                    restricting or limiting the body’s ability to recognise, value, respect or promote the contribution of its volunteers to the well-being and safety of the community; or

·                    requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function, or duty that affects or could affect its volunteers.

The Bill also provides an entitlement to certain volunteer bodies to make submissions to the Fair Work Commission in relation to matters about enterprise agreements or workplace determinations that affect, or could affect, the volunteers of a designated emergency management body. In order to be entitled to make a submission, a body must be either:

·                    a body corporate that has a history of representing the interests of the volunteers of the designated emergency management body and is not prescribed by the regulations; or

·                    any other body prescribed by the regulations.

The Bill does not go beyond the Commonwealth’s legislative power having regard to the scope of the references of workplace relations matters to the Commonwealth by all States, except Western Australia.


Financial Impact Statement

Nil


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016

The Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The object of the Fair Work Act 2009 (Fair Work Act) is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians.

The Fair Work Act provides for the making of enterprise agreements through collective bargaining, particularly at the enterprise level. In approving an enterprise agreement, the Fair Work Commission (FWC) must be satisfied that the agreement does not include any unlawful terms. A term of an enterprise agreement has no effect to the extent that it is an unlawful term. The inclusion of an unlawful term does not affect the validity of an enterprise agreement.

This Bill amends the Fair Work Act to implement the Government’s commitment to protect emergency services bodies and their volunteers by providing that an enterprise agreement cannot include terms that undermine the capacity of volunteer emergency services bodies to properly manage their volunteer operations, or terms that are inconsistent with State or Territory laws that regulate such bodies.

The Bill achieves this by amending the definition of unlawful terms in enterprise agreements to include an objectionable emergency management term that cannot be included in an agreement that covers a designated emergency management body. An objectionable emergency management term is a term that has, or is likely to have, the effect of:

·                    restricting or limiting the body’s ability to engage or deploy its volunteers; provide support or equipment to those volunteers; manage its relationship with, or work with, any recognised emergency management body in relation to those volunteers; or otherwise manage its operations in relation to those volunteers; or

·                    requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of engaging or deploying its volunteers; providing support or equipment to those volunteers; managing its relationship with, or working with, any recognised emergency management body in relation to those volunteers; or otherwise managing its operations in relation to those volunteers; or

·                    restricting or limiting the body’s ability to recognise, value, respect or promote the contribution of its volunteers to the well-being and safety of the community; or

·                    requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function, or duty that affects or could affect its volunteers.

These amendments apply only to enterprise agreements covering certain emergency services volunteer bodies, which are defined in the Bill as designated emergency management bodies. A designated emergency management body is:

·                    a body that is, or is a part of, a fire-fighting or State Emergency Service body (however described), or a recognised emergency management body that is prescribed by the regulations, and

·                    a body that is, or is a part of a body that is, established for a public purpose under a Commonwealth, State or Territory law.

For the purposes of the Bill, a person is defined as a volunteer of a designated emergency management body if the person engages in activities with the body on a voluntary basis (whether or not the person receives payment such as an honorarium or gratuity), and is a member, or has a member-like association with, the body.

The Bill also provides an entitlement to certain volunteer bodies to make submissions to the FWC in relation to matters about enterprise agreements or workplace determinations that affect, or could affect, the volunteers of a designated emergency management body.

The amendments made by the Bill apply to enterprise agreements approved, and workplace determinations made, before or after commencement. The Bill does not have any retrospective effect, as an objectionable emergency management term will only cease to have effect from the commencement of the amendments. This is consistent with the exisiting provisions of the Fair Work Act dealing with unlawful terms, including objectionable terms, which provide that such a term is of no effect.

Human rights implications

The Bill engages the following rights:

·                    the right to work in Article 6(1) of the International Covenant on Civil Economic Social and Cultural Rights (ICESCR);

·                    the right to just and favourable conditions of work in Article 7 of the ICESCR;

·                    the right to equality and non-discrimination in Article 2(1) and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2(2) of the ICESCR;

·                    the right to freedom of association in Article 22 of the ICCPR; and

·                    the right to form and join trade unions in Article 8 of the ICESCR.

The definition of ‘human rights’ in the Human Rights (Parliamentary Scrutiny) Act 2011 relates to the core seven United Nations human rights treaties. However, the content of the rights to work and rights in work in the ICESCR can usefully be informed by specific obligations in treaties of the International Labour Organisation (ILO), such as the Right to Organise and Collective Bargaining Convention 1949 (No. 98), which protects the right of employees to collectively bargain for terms and conditions of employment.

Right to work and rights in work

Article 6(1) of the ICESCR recognises the right to work and obliges States Parties to take appropriate steps to safeguard this right. The United Nations Committee on Economic, Social and Cultural Rights (CESCR) has stated that the right to work in Article 6 includes elements of availability, accessibility, acceptability and quality of work. It is both an individual and a collective right and implies a right not to be unfairly deprived of employment (CESCR, General Comment No. 18: The Right to Work (Art. 6 of the Covenant), 6 February 2006, E/C.12/GC/18, paragraph 6).

Article 7 of ICESCR requires that States Parties recognise the right to just and favourable conditions of work. This encompasses a number of elements, including (among other things) remuneration which provides all workers with fair wages and equal remuneration for work of equal value, and safe and healthy working conditions.

The provisions of the Fair Work Act dealing with the making of enterprise agreements through collective bargaining establish the legislative framework for the full realisation of the right to work and the right to just and favourable conditions of work. Within this framework, enterprise agreements provide for the terms and conditions of employment for employees.

The objective of this Bill is to protect the role of emergency services volunteers. As it is not directed towards employees, there is a prima facie question of whether the Bill engages the right to work and rights in work. To the extent that a term of an enterprise agreement is an objectionable emergency management term that affects both volunteers and employees, it may engage the right to work and rights in work. However, the extent to which the Bill engages such rights, and either promotes or limits these rights, is dependent on the nature of the particular term that is an objectionable emergency management term. Any limits to these rights would be an indirect effect of the operation of the Bill, that would be reasonable, necessary and proportionate to the legitimate objective of protecting the role of emergency services volunteers, and the broader community that the volunteers serve.

Collective bargaining

Article 4 of the ILO Right to Organise and Collective Bargaining Convention 1949 (No. 98) protects the right of employees to collectively bargain for terms and conditions of employment. It requires States Parties to (among other things) take measures appropriate to national conditions to encourage and promote machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

Part 2-4 of the Fair Work Act provides for the making of enterprise agreements through collective bargaining, particularly at the enterprise level. Enterprise agreements cannot include any unlawful terms, and any term that is an unlawful term has no effect.

The effect of the Bill will be that where a designated emergency management body is bargaining with its employees for a proposed enterprise agreement, the parties should have regard to the roles of the body’s volunteers and take steps to ensure that the agreement does not include any objectionable emergency management terms. This will enhance the integrity of collectively bargained terms and conditions of employment contained in the enterprise agreement.

Right to equality and non-discrimination

Articles 2(1) of the ICCPR and 2(2) of the ICESCR apply to discrimination affecting the rights set out in each Covenant. Both articles provide that laws of a State Party to the Covenant must undertake to respect and ensure that all individuals are provided the rights recognised in the Covenant without any distinction of any kind.

Article 26 of the ICCPR applies to the actions of government and extends beyond the rights set out in the Covenants. It provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

The United Nations Human Rights Committee in its General Comment 18 on Non‑Discrimination has advised that the term:

... should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.

Not every differentiation of treatment will constitute discrimination. If the differential treatment is reasonable and objective and if the aim is to achieve a purpose that is legitimate under the Covenant, it will not be discriminatory (UN Human Rights Committee (HRC), CCPR General Comment No. 18: Non-discrimination, 10 November 1989, paragraphs 7 and 13).

The Fair Work Act is designed to have general application to all workplaces within Australia. Within this legislative framework, however, it is important to recognise that particular sectors have unique characteristics that are not fully catered for in legislation of general application. In these circumstances, it is appropriate to apply differential treatment to these particular sectors.

The amendments relating to objectionable emergency management terms apply only to enterprise agreements covering designated emergency management bodies. To the extent that the amendments only apply to enterprise agreements covering this particular group and their employees, the Bill engages but does not limit the right to equality and non-discrimination.

The difference in treatment in this case is a proportionate measure adopted in pursuit of the legitimate goal of protecting the role of emergency services volunteers and ensuring that designated emergency management bodies have the capacity to properly manage their volunteer operations during times of critical need. In the absence of these amendments, the terms of an enterprise agreement, which relate to the terms and conditions of employment for employees, may directly or indirectly impact on volunteers in such a way that their contribution is marginalised to the significant detriment of the broader Australian community.

Right to freedom of assembly and association

The right to freedom of assembly and association is set out in Article 22 of the ICCPR. This article provides that everyone shall have the right to freedom of association with others, including the right to form and join trade unions. Freedom of association may be subject to restrictions imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of rights and freedoms of others.

Article 8 of the ICESCR also requires States Parties to undertake to ensure the right of everyone to form trade unions and join the trade union of his or her choice, and the right of trade unions to operate freely.

An object of the Fair Work Act is to enable fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented.

This Bill encourages employers, employees and volunteers to work together cooperatively and harmoniously, particularly in situations of an emergency or natural disaster.

This Bill ensures the right to freedom of assembly and association to the extent that it promotes the rights of persons who are members, or who have a member-like association, with a designated emergency services body and wish to be engaged by the body on a voluntary basis to achieve a common goal.

Conclusion

The Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that it may limit human rights and freedoms, those limitations are reasonable, necessary and proportionate in the pursuit of legitimate objectives.

Minister for Employment, Senator the Hon Michaelia Cash

 


NOTES ON CLAUSES

In these notes on clauses, the following abbreviations are used:

Fair Work Act

Fair Work Act 2009

Fair Work Regulations

Fair Work Regulations 2009

FWC

Fair Work Commission

the Bill

Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016

 

Clause 1 – Short title

1.                  Clause 1 provides for the short title of the Act to be the Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016.

Clause 2 – Commencement 

2.                  Clause 2 provides for the provisions of the Bill to commence the day after the Royal Assent.

Clause 3 – Schedules

3.                  Clause 3 of the Bill provides that legislation that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule, and any other item in a Schedule has effect according to its terms.


 

Schedule 1 – Amendments


Fair Work Act 2009

Item 1 – Section 12

4.                  Section 12 contains the Dictionary to the Fair Work Act. Item 1 inserts three new signpost definitions of the terms ‘designated emergency management body’, ‘objectionable emergency management term of an enterprise agreement’ and ‘volunteer of a designated emergency management body’ into the Dictionary, which are set out in new section 195A (inserted by item 4).

Item 2 – At the end of subsection 29(2)

5.                  This item inserts a legislative note at the end of subsection 29(2) of the Fair Work Act.

6.                  Section 29 deals with the interaction of modern awards and enterprise agreements with State and Territory laws. Subsection 29(1) provides that a modern award or enterprise agreement prevails over a State or Territory law to the extent of any inconsistency. However, subsection 29(2) provides that, notwithstanding subsection 29(1), a modern award or enterprise agreement is subject to any of the State or Territory laws that are saved by section 27, as well as any State or Territory laws prescribed by the regulations.

7.                  The legislative note refers the reader to new paragraphs 194(baa) and 195(1)(d), which deal with objectionable emergency management terms concerning State and Territory laws, and the effect of paragraph 253(1)(b) of the Fair Work Act.

Item 3 – After paragraph 194(b)

8.                  In approving an enterprise agreement, the FWC must be satisfied that the agreement does not include any unlawful terms (subsection 186(4)). Section 194 of the Fair Work Act specifies the terms of an enterprise agreement that are unlawful terms. Paragraph 253(1)(b) of the Fair Work Act provides that a term of an enterprise agreement has no effect to the extent that it is an unlawful term.

9.                  Item 3 amends section 194 to insert new paragraph 194(baa), which provides that a term of an enterprise agreement that is an objectionable emergency management term is an unlawful term. An objectionable emergency management term is defined in new section 195A, inserted by item 4 of the Bill.

Item 4 – At the end of Subdivision D of Division 4 of Part 2-4

10.              Item 4 inserts new section 195A, which sets out the terms of an enterprise agreement that are objectionable emergency management terms. A term of an enterprise agreement that covers a designated emergency management body (as defined in new subsections 195A(4) and (5)) is an unlawful term if it is an objectionable emergency management term.

11.              Subsection 195A(1) provides that a term of an enterprise agreement is an objectionable emergency management term if an employer covered by the agreement is a designated emergency management body and the term has, or is likely to have, the effect of:

·                    restricting or limiting the body’s ability to engage or deploy its volunteers; provide support or equipment to those volunteers; manage its relationship with, or work with, any recognised emergency management body (within the meaning in subsection 109(3)) in relation to those volunteers; otherwise manage its operations in relation to those volunteers (paragraph 195A(1)(a)); or

·                    requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of engaging or deploying its volunteers; providing support or equipment to those volunteers; managing its relationship with, or working with, any recognised emergency management body (within the meaning in subsection 109(3)) in relation to those volunteers; otherwise managing its operations in relation to those volunteers (paragraph 195A(1)(b)); or

·                    restricting or limiting the body’s ability to recognise, value, respect or promote the contribution of its volunteers to the well-being and safety of the community (paragraph 195A(1)(c)); or

·                    requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function, or duty that affects or could affect its volunteers (paragraph 195A(1)(d)).

12.              The requirements of an objectionable emergency management term all concern the body’s volunteers. In this way, the provisions are directed at volunteer-based organisations and do not apply where a designated emergency management body does not have its own volunteers.

13.              The effect of an objectionable emergency management term could be direct or indirect, in that it may be evident on its face or in its practical application. For a term to be likely to have an effect described in paragraphs 195A(1)(a), (b), (c) or (d), it is intended that it be more probable than not for it to have that effect.

14.              An objectionable emergency management term could be, for example, a term of enterprise agreement that provides that a designated emergency management body:

·                    consult, or reach agreement with, another person or body about a matter that is likely to have an effect on its volunteers;

·                    act other than in accordance with a law of a State or Territory that establishes the body and provides for the engagement of volunteers.

15.              A particular term of an enterprise agreement may fall within one or more of the paragraphs in subsection 195A(1). For example, a term that has the effect of restricting or limiting a body’s capacity to manage its operations in relation to its volunteers (subparagraph 195A(1)(a)(iv)) could also require the body to act other than in accordance with a State or Territory law that imposes a duty on the body in relation to its volunteers (paragraph 195A(1)(d)).

16.              The paragraphs in subsection (1) do not limit each other (subsection 195A(3)). Subsection 195A(3) makes clear that if a term of an enterprise agreement has, or is likely to have, any of the effects described in the paragraphs in subsection 195A(1), it will be an objectionable emergency management term.

17.              Subsection 195A(2) sets out the circumstances where a term of an enterprise agreement which provides for consultation will not be an objectionable emergency management term.

18.              Under new paragraph 195A(2)(a), a consultation term in an enterprise agreement that provides for consultation and representation of employees in relation to major workplace changes and roster changes, as required by subsections 205(1) and (1A) of the Fair Work Act, is not an objectionable emergency management term, provided that it does not deal with any other matter that has, is likely to have, an effect referred to in paragraphs 195A(1)(a), (b), (c) or (d).

19.              New paragraph 195A(2)(b) makes clear that where an enterprise agreement contains the model consultation term, as prescribed in the Fair Work Regulations, that term is not an objectionable emergency management term.

20.              Where an enterprise agreement does not include a consultation term that meets the requirements of subsections 205(1) and (1A) or it is an objectionable emergency management term, the FWC must note in its decision to approve the agreement that the model consultation term is taken to be a term of the agreement (paragraph 201(1)(b), and subsection 205(2) as amended by item 5).

21.              New subsection 195A(4) provides a definition of a designated emergency management body. A body is a designated emergency body if:

·                    the body is, or is a part of, a fire-fighting body or a State Emergency Service of a State or Territory (however described), or is a recognised emergency management body (within the meaning in subsection 109(3)) that is prescribed by the regulations; and

·                    the body is, or is a part of a body that is, established for a public purpose by or under a Commonwealth, State or Territory law.

22.              These requirements are intended to ensure the provisions dealing with objectionable emergency management terms only apply to volunteer-based emergency management bodies; not to other bodies such as, for example, religious and charitable organisations.

23.              The ACT State Emergency Service and the Northern Territory Emergency Service would be a State Emergency Service of a State or Territory.

24.              For a body to be prescribed in the regulations as a designated emergency management body, it must be a recognised emergency management body as defined in subsection 109(3) of the Fair Work Act. It must also be established for a public purpose by or under a Commonwealth, State or Territory law in accordance with paragraph 195A(4)(b).

25.              The regulations may also prescribe a body, or a part of a body, with the effect that the body, or a part of the body, is not a designated emergency management body for the purposes of subsection 195A(5). This would have the effect of excluding a body that would otherwise fall within the definition in subsection 195A(4).

26.              New subsection 195A(6) defines a volunteer of a designated emergency management body as a person:

·                    who engages in activities with the body on a voluntary basis – in assessing whether activities are undertaken on a voluntary basis, any honorarium, gratuity or similar payment is not considered to undermine the voluntary nature of the activity; and

·                    is a member of, or has a member-like association with, the body – meaning that the term only applies to those volunteers who are formally associated with the body.

27.              This definition is only relevant to the provisions dealing with objectionable emergency management terms. It applies to all persons that are members of, or have a member-like association with, a designated emergency management body and are engaged in activities on a voluntary basis, regardless of whether or not they are engaged in emergency management activities.

28.              New subsection 195A(7) limits the application of subsection 195A(1), as affected by subsection 195A(2), in relation to certain terms that would otherwise be an objectionable emergency management term. It provides that:

·                    if a term deals to any extent with directions to perform work or not to perform work (including directions about the time, location or particular way in which work is to be performed, or not performed) relating to the provision of essential services or to emergency situations; and

·                    the application of subsection 195A(1) in relation to the term would be beyond the legislative power of the Commonwealth to the extent that it deals with such directions;

then the term is not an objectionable emergency management term to that extent.

Item 5 – Subsection 205(2)

29.              The Fair Work Act requires all enterprise agreements to contain a consultation term that provides for the matters set out in subsections 205(1) and (1A). Subsection 205(2) provides that where an enterprise agreement does not include such a consultation term, the model consultation term will be taken to be a term of the agreement. The model consultation term is prescribed in the Fair Work Regulations.

30.              This item, which is consequential on the amendment made by item 4, amends subsection 205(2) to make clear that an enterprise agreement is also taken to include the model consultation term if the consultation term that was included in the agreement is an objectionable emergency management term.

Item 6 – After section 254

Item 7 – Section 258 (paragraph relating to Division 7)

Item 8 – After section 281

31.              Items 6 and 8 insert new sections 254A and 281AA to provide an entitlement for certain volunteer bodies to make a submission in relation to a matter before the FWC. A volunteer body is entitled to make a submission if the matter arises under Part 2-4 (enterprise agreements) or Part 2-5 (workplace determinations) of the Fair Work Act and where the matter affects, or could affect, the volunteers of a designated emergency management body (as defined in new subsection 195A(4)).

32.              In order to be entitled to make a submission, a body must be either:

·                    a body corporate that has a history of representing the interests of the volunteers of the designated emergency management body; or

·                    any other body prescribed by the regulations.

33.              Item 7 amends the Guide to Part 2-5 to make clear that Division 7 deals with other matters relating to workplace determinations, consequential on the amendment in item 8.

Item 9 – In the appropriate position in Schedule 1

New Part 3 – Amendments made by the Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016

34.              Item 9 provides for the application of the amendments made by the Bill, by inserting a new Part 3 into Schedule 1 of the Fair Work Act.

New clause 13 – Definitions

35.              This new clause defines the terms amended Act and commencement for the purposes of this new Part.

New clause 14 – Application of amendments – objectionable emergency management terms

36.              New subclause 14(1) provides that the amendments relating to objectionable emergency management terms apply to enterprise agreements approved, and workplace determinations made, before or after commencement. This means that:

·                    the FWC must be satisfied that enterprise agreements approved on or after the day of commencement do not include any objectionable emergency management terms (subsection 186(4) of the Fair Work Act);

·                    workplace determinations made by the FWC on or after the day of commencement must not include any objectionable emergency management terms (paragraph 272(3)(b) of the Fair Work Act); and

·                    an objectionable emergency management term in an existing enterprise agreement and workplace determination will be of no effect from commencement in accordance with paragraph 253(1)(b) of the Fair Work Act (note that subsection 279(1) provides that a workplace determination operates as if it were an enterprise agreement).

37.              The Bill does not have any retrospective effect. Objectionable emergency management terms only cease to have effect from commencement of the amendments contained in the Bill. The Bill does not affect any action taken in reliance on an objectionable emergency management term before commencement.

38.              New subclause 14(2) makes clear that certain volunteer bodies are entitled to make submissions in relation to a matter that is before the FWC under new sections 254A (relating to enterprise agreements) and 281AA (relating to workplace determinations), even if the matter was before the FWC before commencement.

39.              New subclause 14(3) makes clear that in relation to enterprise agreements that were approved before commencement, but that include an objectionable emergency management term, the terms of the agreement have effect after commencement to the extent that they can in accordance with the Act and within the scope of the Commonwealth’s legislative power.