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Fair Work (State Referral and Consequential and Other Amendments) Bill 2009

Schedule 16 Prime Minister and Cabinet

Part 1 Consequential amendments

Privacy Act 1988

1  Subsection 6(1) (subparagraph (c)(ii) of the definition of agency )

Repeal the subparagraph, substitute:

                             (ii)  an organisation that is registered under the Fair Work (Registered Organisations) Act 2009 or a branch of such an organisation; or

2  After subsection 6E(1A)

Insert:

Small business operator that is a protected action ballot agent under the Fair Work Act 2009

          (1B)  If a small business operator is the protected action ballot agent for a protected action ballot conducted under Part 3-3 of the Fair Work Act 2009 , this Act applies, with the prescribed modifications (if any), in relation to the activities carried on by the small business operator for the purpose of, or in connection with, the conduct of the protected action ballot, as if the small business operator were an organisation.

Note:          The regulations may prescribe different modifications of the Act for different small business operators. See subsection 33(3A) of the Acts Interpretation Act 1901 .

Small business operator that is an association of employees that is registered or recognised under the Fair Work (Registered Organisations) Act 2009

          (1C)  If a small business operator is an association of employees that is registered or recognised under the Fair Work (Registered Organisations) Act 2009 , this Act applies, with the prescribed modifications (if any), in relation to the activities carried on by the small business operator, as if the small business operator were an organisation (within the meaning of this Act).

Note:          The regulations may prescribe different modifications of the Act for different small business operators. See subsection 33(3A) of the Acts Interpretation Act 1901 .

3  Subsection 6E(3)

Insert:

protected action ballot agent means a person (other than the Australian Electoral Commission) that conducts a protected action ballot under Part 3-3 of the Fair Work Act 2009 .

Note:       The heading to subsection 6E(3) is replaced by the heading “ Definitions ”.

Public Service Act 1999

4  Section 7 (definition of APCS )

Repeal the definition.

5  Section 7 (definition of Australian Fair Pay and Conditions Standard )

Repeal the definition, substitute:

Australian Fair Pay and Conditions Standard has the same meaning as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .

Note:          See Schedules 4 and 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 in relation to the application of the Australian Fair Pay and Conditions Standard.

6  Section 7 (definition of AWA )

Repeal the definition.

7  Section 7 (definition of award )

Repeal the definition.

8  Section 7 (definition of collective agreement )

Repeal the definition.

9  Section 7

Insert:

enterprise agreement has the same meaning as in the Fair Work Act 2009 .

10  Section 7

Insert:

fair work instrument has the same meaning as in the Fair Work Act 2009 .

11  Section 7

Insert:

modern award has the same meaning as in the Fair Work Act 2009 .

12  Section 7

Insert:

National Employment Standards has the same meaning as in the Fair Work Act 2009 .

13  Section 7 (definition of pre-reform AWA )

Repeal the definition.

14  Section 7 (definition of pre-reform certified agreement )

Repeal the definition.

15  Section 7 (definition of workplace agreement )

Repeal the definition.

16  Section 7

Insert:

WR Act collective transitional instrument means an award, a collective agreement or a pre-reform certified agreement (within the meaning of those terms in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ).

17  Section 7

Insert:

WR Act transitional instrument means an award, a workplace agreement, a pre-reform certified agreement, an AWA or a pre-reform AWA (within the meaning of those terms in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ).

18  Subsection 8(1)

Omit “ Workplace Relations Act 1996 ”, substitute “ Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ”.

Note:       The heading to section 8 is replaced by the heading “ Relationship with Fair Work Acts ”.

19  Subsection 8(2)

Omit “ Workplace Relations Act 1996 ”, substitute “ Fair Work Act 2009 or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ”.

20  Subsection 23(2)

Repeal the subsection, substitute:

             (2)  The Classification Rules may apply, adopt or incorporate, with or without modification, any of the provisions of:

                     (a)  a modern award, as in force at a particular time or as in force from time to time; or

                     (b)  a transitional APCS, as in force at a particular time or as in force from time to time.

21  Subsection 23(5)

Repeal the subsection, substitute:

             (5)  If a relevant industrial instrument contains procedures to be followed when reducing the classification, then a reduction is of no effect unless those procedures are followed.

             (6)  In this section:

industrial instrument means:

                     (a)  a modern award; or

                     (b)  an enterprise agreement; or

                     (c)  a workplace determination; or

                     (d)  a WR Act transitional instrument; or

                     (e)  a transitional APCS.

transitional APCS has the meaning given by Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .

workplace determination has the same meaning as in the Fair Work Act 2009 .

22  Subsections 24(1) and (2)

Repeal the subsections, substitute:

             (1)  An Agency Head may from time to time determine in writing the remuneration and other terms and conditions of employment applying to an APS employee or APS employees in the Agency.

Note 1:       Certain terms and conditions of employment are applicable to an APS employee under the Australian Fair Pay and Conditions Standard or the National Employment Standards.

Note 2:       Other Commonwealth laws deal with matters such as superannuation, compensation, long service leave and maternity leave.

          (1A)  A determination under subsection (1) is of no effect to the extent that it would reduce the benefit to an APS employee of an individual term or condition applicable to the employee under:

                     (a)  a fair work instrument; or

                     (b)  a WR Act transitional instrument.

Note:          A determination under subsection (1) would also be of no effect to the extent that it would reduce the benefit to an APS employee of a term or condition applicable to the employee under the Australian Fair Pay and Conditions Standard or the National Employment Standards.

             (2)  A determination under subsection (1) may apply, adopt or incorporate, with or without modification, any of the provisions of:

                     (a)  a fair work instrument; or

                     (b)  a WR Act collective transitional instrument;

as in force from time to time.

Note:          A determination under subsection (1) may apply, adopt or incorporate, with or without modification, any of the provisions of the Australian Fair Pay and Conditions Standard or the National Employment Standards. However, any modification of the provisions of those Standards by a determination under subsection (1) would be of no effect to the extent that it would reduce the benefit to an APS employee of a term or condition applicable to the employee under those Standards.

23  Subsection 24(4)

Repeal the subsection, substitute:

             (4)  The limitation in subsection (1A) does not apply in relation to a determination under subsection (3).

             (5)  A determination under subsection (3) overrides the following, to the extent of any inconsistency:

                     (a)  a determination under subsection (1);

                     (b)  the Australian Fair Pay and Conditions Standard;

                     (c)  the National Employment Standards.

24  Subsection 29(1) (note)

Omit “ Workplace Relations Act 1996 ”, substitute “ Fair Work Act 2009 ”.

25  Paragraphs 72(3)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  a fair work instrument; or

                     (b)  a WR Act transitional instrument; or

                     (c)  a determination under this Act.

26  Paragraph 72(4)(a)

Repeal the paragraph, substitute:

                     (a)  results from:

                              (i)  the making, variation or termination of a modern award, an enterprise agreement or a workplace determination; or

                             (ii)  the variation, termination or replacement of a WR Act transitional instrument; and

27  Subsection 72(6)

Insert:

workplace determination has the same meaning as in the Fair Work Act 2009 .



 

Part 2 Saving provision

28  Saving provision—determinations under subsection 24(1)

If a determination made by an Agency Head under subsection 24(1) of the Public Service Act 1999 was in force immediately before the commencement of this Schedule, the determination continues in force on and after that commencement as if it had been made under subsection 24(1) of that Act, as amended by this Schedule.