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A Bill for an Act to amend the Fair Work Act 2009, and for related purposes
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Registered 21 May 2018
Introduced HR 21 May 2018
Table of contents.

2016‑2017‑2018

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Fair Work Amendment (Making Australia More Equal) Bill 2018

 

No.      , 2018

 

(Mr Bandt)

 

 

 

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............ Schedules............................................................................................ 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 is the Fair Work Amendment (Making Australia More Equal) Act 2018.

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.  The whole of this Act

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Note:          This table relates only to the provisions of this Act as originally enacted.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                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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

  

Fair Work Act 2009

1  Subsection 9(5B)

Repeal the subsection, substitute:

          (5B)  Part 6‑4B contains special provisions about workers. It allows the FWC to make minimum entitlements orders that extend provisions of this Act, modern awards or enterprise agreements to workers. It also allows a worker who has been bullied at work to apply for the FWC for an order to stop the bullying.

2  Section 12 (at the end of the definition of employee)

Add:

Note 4:       See also Division 1A of Part 6‑4B (minimum entitlements orders).

3  Section 12 (at the end of the definition of employer)

Add:

Note 4:       See also Division 1A of Part 6‑4B (minimum entitlements orders).

4  Section 12

Insert:

minimum entitlements order: see subsection 789FBA(1).

5  Section 12 (at the end of the definition of national system employee)

Add:

Note 3:       See also Division 1A of Part 6‑4B (minimum entitlements orders).

6  Section 12 (at the end of the definition of national system employer)

Add:

Note 3:       See also Division 1A of Part 6‑4B (minimum entitlements orders).

7  Paragraph 576(1)(q)

Repeal the paragraph, substitute:

                     (q)  workers (Part 6‑4B).

8  Paragraph 675(2)(j)

Before “Part 6‑4B”, insert “Division 2 of”.

9  Part 6‑4B (heading)

Repeal the heading, substitute:

Part 6‑4BWorkers

10  Section 789FA

Repeal the section, substitute:

789FA  Guide to this Part

This Part contains special provisions about workers.

Division 1A provides for the making of minimum entitlements orders by FWC that extend provisions of this Act, or modern awards or enterprise agreements, to workers.

Division 2 allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

11  Before Division 2 of Part 6‑4B

Insert:

Division 1AMinimum entitlements orders

789FBA  Minimum entitlements orders

             (1)  The FWC may make an order (a minimum entitlements order) that:

                     (a)  the provisions of this Act specified in the order; or

                     (b)  a modern award specified in the order; or

                     (c)  an enterprise agreement specified in the order;

apply to work performed by the workers to whom the order applies for the constitutionally‑covered businesses required to comply with the order.

Workers to whom the order may apply

             (2)  A minimum entitlements order may apply (subject to subsections (4) and (5)) to:

                     (a)  a worker; or

                     (b)  two or more workers; or

                     (c)  a class of workers.

             (3)  Without limiting paragraph (2)(c), the class may be described by reference to one or more of the following:

                     (a)  a particular industry or part of an industry;

                     (b)  a particular kind of work;

                     (c)  workers who perform work for a particular constitutionally‑covered business.

             (4)  A minimum entitlements order must not apply to a worker unless the FWC is satisfied that the worker’s terms and conditions as affected by the order will, considered on an overall basis, be no less favourable than the worker’s terms and conditions before the order is made.

             (5)  A minimum entitlements order must not apply to a worker who carries out work as:

                     (a)  a student gaining work experience; or

                     (b)  a volunteer (within the meaning of the Work Health and Safety Act 2011).

Order must specify businesses required to comply with order

             (6)  A minimum entitlements order must specify, for each worker to whom the order applies:

                     (a)  the constitutionally‑covered business or businesses; or

                     (b)  the class of constitutionally‑covered businesses;

required to comply with the order in relation to any work performed for the constitutionally‑covered business by the worker.

             (7)  Without limiting subsection (6) a class of constitutionally‑covered businesses may be described by reference to either or both of the following:

                     (a)  a particular industry or part of an industry;

                     (b)  a particular kind of work.

789FBB  When does a worker perform work for a constitutionally‑covered business?

             (1)  A worker performs work for a constitutionally‑covered business for the purposes of a minimum entitlements order, if:

                     (a)  the worker performs work directly or indirectly for the constitutionally‑covered business; or

                     (b)  the worker performs work directly for another entity, and the constitutionally‑covered business carries on a business of arranging for workers, including the worker, to perform work for that other entity.

             (2)  Without limiting paragraph (1)(a), a worker indirectly performs work for a constitutionally‑covered business if the work benefits the constitutionally‑covered business, irrespective of the legal relationship (contractual or otherwise) between the worker and the constitutionally‑covered business.

             (3)  If, because of the operation of subsection (1), a worker performs the same work for 2 or more constitutionally‑covered businesses, the FWC may specify any or all of those constitutionally‑covered businesses for the worker in a minimum entitlements order that applies to the worker.

789FBC  Effect of a minimum entitlements order

             (1)  If the FWC makes a minimum entitlements order, the provisions, modern award or enterprise agreement specified in the order apply to work performed by a worker to whom the order applies for a constitutionally‑covered business required to comply with the order in relation to that work, as if:

                     (a)  any reference to an employee (within the ordinary meaning of that expression), or a national system employee, also included a reference to the worker; and

                     (b)  any reference to an employer (within the ordinary meaning of that expression), or a national system employer, also included a reference to the constitutionally‑covered business.

Example:    If a minimum entitlements order specifies a modern award, the award applies to the worker, in relation to work performed for the constitutionally‑covered business, as if the worker were an employee. The obligation to comply with the modern award is in section 45 (in Part 2‑1).

             (2)  The provisions, modern award or enterprise agreement specified in the order apply as referred to in subsection (1):

                     (a)  from the time or times specified in the order (which must not be earlier than the time the order is made); and

                     (b)  with such other modifications (if any) as are specified in the order.

789FBD  Application for a minimum entitlements order

                   The FWC may make a minimum entitlements order only on application by:

                     (a)  a worker to whom the order will apply; or

                     (b)  an organisation that is entitled to represent the industrial interests of the worker, workers or class of workers to whom the order will apply; or

                     (c)  an organisation that would, if a worker to whom the order will apply were instead an employee, be entitled to represent the industrial interests of the worker.

789FBE  Matters for FWC to consider

                   In deciding whether, or the terms on which, to make a minimum entitlements order, the FWC must as far as practicable give effect to the principle that all workers should be entitled to minimum terms and conditions that are no less favourable than those of employees performing the same work.