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Monday, 18 November 1996
Page: 5526


Senator CAMPBELL (Parliamentary Secretary to the Treasurer)(8.40 p.m.) —I move:

(142)   Schedule 13, page 154 (line 2) to page 175 (line 3), omit the Schedule, substitute:

Schedule 13—Amendments relating to no-disadvantage test

Workplace Relations Act 1996

1 After Part VID

   Insert:

Part VIE—No-disadvantage test

170X Interpretation

   In this Part, unless the contrary intention appears:

   agreement means:

   (a)   a certified agreement; or

   (b)   an AWA.

   approved apprenticeship means an apprenticeship approved by an approving authority for the purposes of section 170XD.

   approved traineeship means a traineeship other than:

   (a)   a National Training Wage traineeship; or

   (b)   a Career Start traineeship; or

   (c)   an Australian Traineeship System traineeship;

   approved by an approving authority for the purposes of section 170XC.

   approving authority means any person or unincorporated body that:

   (a)   is a State or Territory training authority that exercises approval powers in relation to traineeships or apprenticeships; or

   (b)   is an Industry Training Advisory Body; or

   (c)   meets the criteria prescribed for the purposes of this definition;

   and is declared in writing to be an approving authority for the purposes of this Part by:

   (d)   the Minister for Employment, Education, Training and Youth Affairs; or

   (e)   the Minister for Schools, Vocational Education and Training.

   award includes a State award, but does not include:

   (a)   an exceptional matters order; or

   (b)   an award under section 170MX.

   designated award , in relation to a person to whom an agreement will apply, means an award that the Employment Advocate under section 170XE, or the Commission under section 170XF, has determined to be appropriate for the purpose of deciding whether the agreement passes the no-disadvantage test.

   initial day means:

   (a)   in relation to an AWA—the day on which it was made; or

   (b)   in relation to a certified agreement—the day on which it was certified by the Commission.

   relevant award , in relation to a person to whom an agreement will apply, means an award:

   (a)   regulating any term or condition of employment of persons engaged in the same kind of work as that of the person under the agreement; and

   (b)   that, immediately before the initial day of the agreement, is binding on the person's employer.

170XA When does an agreement pass the no-disadvantage test?

(1)   An agreement passes the no-disadvantage test if it does not disadvantage employees in relation to their terms and conditions of employment.

(2)   Subject to sections 170XB, 170XC and 170XD, an agreement disadvantages employees in relation to their terms and conditions of employment only if its approval or certification would result, on balance, in a reduction in the overall terms and conditions of employment of those employees under:

   (a)   relevant awards or designated awards; and

   (b)   any other law of the Commonwealth, or of a State or Territory, that the Employment Advocate or the Commission (as the case may be) considers relevant.

170XB Special case—employee eligible for the Supported Wage System

If an agreement provides for the payment of wages to an employee who is eligible for the Supported Wage System at a rate that is not less than the rate set in accordance with that System for the employee, the approval or certification of the agreement is not to be taken to result in a reduction of the employee's wages.

Note:   The Supported Wage System was endorsed by the Commission in the Full Bench decision dated 10 October 1994 (print L5723).

170XC Special case—employee undertaking approved traineeship

(1)   If an agreement provides for the payment of wages to an employee undertaking an approved traineeship at a rate that is not less than the appropriate percentage of the rate ( benchmark rate ) that would be applicable to the employee under the relevant award or designated award (as the case may be) if:

   (a)   that award applied to him or her; and

   (b)   he or she were not undertaking the traineeship;

   the approval or certification of the agreement is not to be taken to result in a reduction of the employee's wages.

(2)   For the purposes of subsection (1), the appropriate percentage of the benchmark rate is such percentage of that rate as is determined in writing by the approving authority having regard to the reduction in the productive time of an employee undertaking the approved traineeship due to time spent in training.

(3)   If the agreement adopts, as the qualification for a wage level, a criterion determined by the approving authority instead of the criterion applying under the relevant award or designated award (as the case may be), that award is taken, for the purposes of this section, to have effect as if the criterion determined by the approving authority were substituted for the last-mentioned criterion.

170XD Special case—employee undertaking approved apprenticeship

(1)   This section applies if:

   (a)   an agreement provides for the payment of wages to an employee undertaking an approved apprenticeship in a particular trade, occupation or kind of work; and

   (b)   there is a relevant award or designated award regulating the payment of wages to employees undertaking an apprenticeship ( benchmark apprenticeship ) in the same trade, occupation or kind of work.

(2)   The approval or certification of the agreement is to be taken to result in a reduction of the employee's wages only if the agreement provides for the payment of wages to employees undertaking the approved apprenticeship at a rate that is less than the rate applicable under the relevant award or designated award (as the case may be) to employees undertaking the benchmark apprenticeship adjusted (if necessary) as provided in subsection (3).

(3)   For the purposes of subsection (2), the rate that is applicable to an employee undertaking the benchmark apprenticeship is to be adjusted to take into account the proportionate difference, as determined by the approving authority, between the productive time of an employee under the approved apprenticeship and the productive time of an employee under the benchmark apprenticeship.

(4)   If the agreement adopts, as the qualification for a wage level, a criterion determined by the approving authority instead of the criterion applying under the relevant award or designated award (as the case may be), that award is taken, for the purposes of this section, to have effect as if the criterion determined by the approving authority were substituted for the last-mentioned criterion.

170XE Determination of designated award or awards for the purposes of an AWA

(1)   If:

   (a)   an employer proposes to make an AWA with a person; and

   (b)   there is no relevant award in relation to the person;

   the employer must apply in writing to the Employment Advocate for the making of a determination under subsection (2).

(2)   Upon application, the Employment Advocate must determine, and inform the employer in writing, that an award or awards (being an award or awards under this Act regulating terms or conditions of employment of employees engaged in the same kind of work as that of the person under the AWA) are appropriate for the purpose of deciding whether the agreement passes the no-disadvantage test.

170XF Determination of designated award or awards for the purposes of a certified agreement

(1)   If:

   (a)   an employer or organisation of employees proposes to make a certified agreement; and

   (b)   there is no relevant award in relation to some or all of the persons to whom the agreement will apply;

   the employer or organisation may apply in writing to the Commission for the making of a determination under subsection (2).

(2)   Upon application, the Commission must determine, and inform the employer or organisation in writing, that an award or awards (being an award or awards under this Act regulating terms or conditions of employment of persons engaged in the same kind of work as that of those persons under the agreement) are appropriate for the purpose of deciding whether the agreement passes the no-disadvantage test.

2 At the end of paragraphs 359(2)(a) to (e)

   Add "and".

3 After paragraph 359(2)(f)

   Insert:

      (fa)   the delegation, by an approving authority that is a State or Territory training authority, of any of its functions and powers under Part VIE; and

I table a letter which was included in the agreement between the government and the Democrats. It is a letter to Senator Kernot.