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Tuesday, 19 August 2003
Page: 18856

Consideration resumed from 14 August.

Senate's amendments—

(1) Schedule 1, item 1, page 3 (lines 5 to 9), omit the item.

(2) Schedule 1, item 2, page 3 (lines 10 to 23), omit the item.

(3) Schedule 1, item 4, page 3 (lines 26 to 31), omit the item, substitute:

4 At the end of section 149

Add:

(1B) For the purpose of determining whether an employer is a successor, assignee or transmittee of the business or part of the business within the meaning of paragraph (1)(d), the following factors must be considered:

(a) whether the activities performed by the employees in the business or part of the business of the employer who was a party to the industrial dispute are substantially the same as the activities performed by the employees in the business or part of the business of the alleged successor, assignee or transmittee; and

(b) whether the relevant business activities of the employer who was a party to the industrial dispute are substantially the same as the relevant business activities of the alleged successor, assignee or transmittee.

The existence of either or both of these factors would tend to indicate that an employer is a successor, assignee or transmittee within the meaning of paragraph (1)(d).

(1C) For the purpose of determining whether to make an order that an award does not bind, or binds only to a limited extent, a successor, assignee or transmittee within the meaning of paragraph (1)(d), the Commission must consider:

(a) whether the successor, assignee or transmittee is already bound by another award; and

(b) whether the activities performed by the relevant employees in the business of the successor, assignee or transmittee can be separately identified in the business of the successor; and

(c) whether the relevant employees of the successor, assignee or transmittee would be disadvantaged if such an order were made; and

(d) the effect of such an order on the efficiency and productivity of the business.

(4) Schedule 1, page 3 (after line 31), after item 4, insert:

4A After section 149

Insert:

149A MUA here to stay—Persons bound by awards—ships

If:

(a) a ship is engaged in the coasting trade within the meaning of section 7 of the Navigation Act 1912; and

(b) the ship ceases to be engaged in the coasting trade; and

(c) at a later time, the ship operates under a continuing permit issued under section 286 of the Navigation Act 1912;

then, from the later time, an award which bound the employer of the seamen employed on the ship when the ship was engaged in the coasting trade binds, in relation to that ship, the employer of the seamen employed on the ship when it is operating under the continuing permit.

(5) Schedule 1, items 6 to 9, page 4 (lines 1 to 12), omit the items, substitute:

6 At the end of section 170MB

Add:

(4) For the purpose of determining whether a new employer is a successor, assignee or transmittee of the whole or part of a business within the meaning of paragraph (1)(c) or (2)(c), the following factors must be considered:

(a) whether the activities performed by the employees in the business or part of the business of the previous employer are substantially the same as the activities performed by the employees in the business or part of the business of the new employer; and

(b) whether the relevant business activities of the previous employer are substantially the same as the relevant business activities of the new employer.

The existence of either or both of these factors would tend to indicate that the new employer is a successor, assignee or transmittee within the meaning of paragraph (1)(c) or (2)(c).

(6) Schedule 1, item 10, page 5 (after line 12), after subsection 170MBA(2), insert:

(2A) The Commission shall not make an order under subsection 170MBA(2) unless:

(a) the parties to the certified agreement, including the new employer, agree; or

(b) where the majority of employees who are parties to the agreement do not agree to the variation, the Commission is satisfied that:

(i) that variation does not disadvantage employees in relation to their terms and conditions of employment; or

(ii) the variation is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the single business or part.

Note: See subsection 170LT(4) for an example of a case that is not contrary to the public interest.

(2B) In this section, a variation disadvantages employees in relation to their terms and conditions of employment if, on balance, its approval would result in a reduction in the overall terms and conditions of employment of those employees under the existing certified agreement.

Note: Section 170XA contains the no-disadvantage test.

(2C) In making an order under subsection 170MBA(2) the Commission must take into account:

(a) the proposed new terms and conditions that employees would be subject to and the effect of any loss of conditions; and

(b) the length of time remaining on the certified agreement.

(7) Schedule 1, item 10, page 5 (line 22), omit “outgoing”, substitute “incoming”.

(8) Schedule 1, page 8 (after line 9), after item 10, insert:

10A At the end of Division 6 of Part VIB

Add:

170MBB MUA here to stay—Successor employers bound—ships

(1) This section applies where:

(a) a ship is engaged in the coasting trade within the meaning of section 7 of the Navigation Act 1912; and

(b) the ship ceases to be engaged in the coasting trade; and

(c) at a later time, the ship operates under a continuing permit issued under section 286 of the Navigation Act 1912.

(2) If:

(a) the employer of the seamen employed on the ship when the ship was engaged in the coasting trade was bound by a certified agreement when the ship was engaged in the coasting trade; and

(b) the application for certification of the agreement stated that it was made under Division 3;

then, from the later time:

(c) the certified agreement binds, in relation to that ship, the employer of the seamen employed on the ship when it is operating under the continuing permit; and

(d) a reference in this Part to the employer includes a reference to the employer referred to in paragraph (c).

(3) If:

(a) the employer of the seamen employed on the ship when the ship was engaged in the coasting trade was bound by a certified agreement when the ship was engaged in the coasting trade; and

(b) the application for certification of the agreement stated that it was made under Division 2;

then, from the later time:

(c) the certified agreement binds, in relation to that ship, the employer of the seamen employed on the ship when it is operating under the continuing permit, if that employer is a constitutional corporation or the Commonwealth; and

(d) a reference in this Part to the employer includes a reference to the employer referred to in paragraph (c).

(9) Schedule 1, item 11, page 8 (line 10) to page 9 (line 23), omit the item.