Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2003

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2002-2003

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002

 

 

(1)     Clause 2, page 2 (at the end of the table), add:

4.  Schedule 3

A single day to be fixed by Proclamation.

 

5.  Schedule 4

The later of:

(a) at the same time as the provisions covered by table item 4; and

(b) immediately after the commencement of item 3 of Schedule 2 to this Act.

 

[common rules]

(2)     Clause 2, page 2 (after line 6), after subclause (2), insert:

          (2A)  A Proclamation under item 4 of the table must not specify a day that occurs before the day on which section 52 of the Federal Awards (Uniform System) Act 2003 of Victoria commences.

[common rules]

(3)     Schedule 1, item 26, page 10 (line 24) to page 11 (line 1), omit subclause 1A(1), substitute:

Calculation of annual leave

             (1)  An employee is entitled to annual leave, for each year worked, of the number of hours calculated by multiplying by 4 the usual number of ordinary hours worked by the employee per week during the year.

          (1A)  However, if the variations from week to week in the number of ordinary hours worked by the employee during the year are such that there is no such usual number of hours, the employee is entitled to annual leave, for that year, of the number of hours calculated by:

                     (a)  working out the average number of ordinary hours per week the employee worked during the year; and

                     (b)  multiplying that number of hours by 4.

          (1B)  For the purposes of subclauses (1) and (1A):

                     (a)  hours when the employee is absent from work on paid leave, including (but not limited to) paid annual leave, paid personal leave or paid bereavement leave; and

                     (b)  hours when the employee is absent from work because of a public holiday (being ordinary hours the employee would otherwise have been required to work on that day);

are to be counted as if they were ordinary hours worked by the employee.

[annual leave]

(4)     Schedule 1, item 26, page 11 (line 8), after “is to be paid at”, insert “the rate that, immediately before the leave is taken, is”.

[annual leave]

(5)     Schedule 1, item 26, page 11 (after line 18), at the end of subclause 1A(2), add:

Note:          One situation in which an employee’s annual leave entitlement will be affected by pro-rating as mentioned in paragraph (a) is when the employee is employed for less than a full year.

[annual leave]

(6)     Schedule 2, item 3, page 20 (line 7), omit “or (5) (as appropriate)”.

[contract outworkers]

(7)     Schedule 2, item 3, page 20 (lines 22 and 23), omit “This subsection is subject to subsection (5).”.

[contract outworkers]

(8)     Schedule 2, item 3, page 20 (lines 26 to 31), omit subsection (5).

[contract outworkers]

(9)     Page 28 (after line 7), at the end of the Bill, add:

Schedule 3 Common rules

Part 1 Common rules generally

Workplace Relations Act 1996

1  After paragraph 45(1)(d)

Insert:

                   (da)  a declaration made by a member of the Commission under a provision of Division 5 of Part VI, or a decision by a member of the Commission not to make such a declaration; and

2  Before paragraph 45(3)(b)

Insert:

                   (ad)  in the case of an appeal under paragraph (1)(da) against a declaration under a provision of Division 5 of Part VI—by an organisation or person to whom the common rule applies; and

3  Before subsection 45(4)

Insert:

          (3B)  The Full Bench must, on application, grant to a Minister of Victoria, on behalf of the Government of Victoria, leave to intervene in an appeal against a decision of a member of the Commission made under section 141 or subsection 142(5) (as that section or subsection has effect because of subsection 493A(2)).

4  At the end of subsection 141(1)

Add:

Note:          The Commission may also make common rule declarations for Victoria (see section 493A).

5  At the end of section 141

Add:

             (5)  In deciding whether to declare a term of an award to be a common rule under subsection (1) or (2), the Commission must take into account the following:

                     (a)  the importance of avoiding overlap of awards and minimising the number of awards applying in relation to particular employers;

                     (b)  for a declaration under subsection (1)—whether there are other awards applying to work performed in the industry in relation to which the industrial dispute arose, and if so, the extent to which the first-mentioned award is the most relevant and appropriate award for the work performed in that industry;

                     (c)  for a declaration under subsection (2)—whether there are other awards applying to work performed in the public sector employment in relation to which the industrial dispute arose, and if so, the extent to which the first-mentioned award is the most relevant and appropriate award for the work performed in that public sector employment.

             (6)  If:

                     (a)  an application is before the Commission, which if granted, would result in the Commission declaring a term of an award to be a common rule under subsection (1); and

                     (b)  there is another award applying to work performed in the industry in relation to which the industrial dispute arose;

the Commission may, on application or on its own initiative, declare a term of the other award to be a common rule under subsection (1). This subsection does not limit the Commission’s powers under this section.

             (7)  If:

                     (a)  an application is before the Commission, which if granted, would result in the Commission declaring a term of an award to be a common rule under subsection (2); and

                     (b)  there is another award applying to work performed in the public sector employment in relation to which the industrial dispute arose;

the Commission may, on application or on its own initiative, declare a term of the other award to be a common rule under subsection (2). This subsection does not limit the Commission’s powers under this section.

             (8)  In deciding whether to exercise the power conferred by subsection (6) or (7), the Commission must take into account the following:

                     (a)  the matters mentioned in paragraph (5)(a);

                     (b)  for an exercise of power under subsection (6)—the extent to which the other award mentioned in paragraph (6)(b) is the most relevant and appropriate award for the work performed in the industry concerned;

                     (c)  for an exercise of power under subsection (7)—the extent to which the other award mentioned in paragraph (7)(b) is the most relevant and appropriate award for the work performed in the public sector employment concerned.

             (9)  Without limiting the conditions, exceptions and limitations that can be specified in a declaration of a common rule under subsection (1) or (2), the Commission may specify a condition in such a declaration that the common rule is to come into force for a specified employer, or specified class of employers, on a specified day later than the day on which the declaration is made.

           (10)  Unless the Commission is satisfied that there are exceptional circumstances, a declaration of a common rule under subsection (1) or (2) cannot come into force before the day on which the declaration is made.

           (11)  For the purposes of this Act, an organisation is an organisation to which a common rule applies if the organisation is bound by the term of the award, or the variation, to which the relevant declaration relates.

6  After section 141

Insert:

141A   Reference of application for declaration to Full Bench

             (1)  This section applies to an application for a declaration under a provision of this Division.

             (2)  A reference in this section to a part of an application includes a reference to a question arising in relation to an application.

             (3)  If a proceeding in relation to an application is before a member of the Commission, any of the following:

                     (a)  a party to the proceeding;

                     (b)  the Minister;

                     (c)  if a Minister of Victoria has intervened in the proceedings in accordance with section 141B—that Minister, on behalf of the Government of Victoria;

may apply to the member to have the application, or a part of the application, dealt with by a Full Bench because the application or the part of the application is of such importance that, in the public interest, it should be dealt with by a Full Bench.

             (4)  If an application is made under subsection (3) to a member of the Commission other than the President, the member must refer the application to the President to be dealt with.

             (5)  The President must confer with the member about whether the application under subsection (3) should be granted.

             (6)  The President must grant the application under subsection (3) if the President is of the opinion that the application or the part of the application is of such importance that, in the public interest, it should be dealt with by a Full Bench.

             (7)  If the President grants an application under subsection (3), the Full Bench must, subject to subsection (8), hear and determine the application or the part of the application and, in the hearing, may have regard to any evidence given, and any arguments adduced, in proceedings in relation to the application, or the part of the application, before the Full Bench commenced the hearing.

             (8)  If the President grants an application under subsection (3) in relation to an application:

                     (a)  the Full Bench may refer a part of the application to a member of the Commission to hear and determine; and

                     (b)  the Full Bench must hear and determine the rest of the application.

             (9)  The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.

           (10)  The member must, after making such investigation (if any) as is necessary, provide a report to the President or Full Bench, as the case may be.

           (11)  The President may, before a Full Bench has been established for the purpose of hearing and determining, under this section, an application or part of an application, authorise a member of the Commission to take evidence for the purposes of the hearing, and:

                     (a)  the member has the powers of a person authorised to take evidence under subsection 111(3); and

                     (b)  the Full Bench must have regard to the evidence.

141B   Intervention by Minister of Victoria

                   The Commission must, on application, grant to a Minister of Victoria, on behalf of the Government of Victoria, leave to intervene in proceedings in which it is proposed to make a declaration of a common rule under section 141, or a declaration under subsection 142(5) (as that section or subsection has effect because of subsection 493A(2)).

7  At the end of Division 5 of Part VI

Add:

142A   Applying single common rule to a business of employer

             (1)  This section applies if:

                     (a)  a declaration (the old declaration ) of a common rule is in force under subsection 141(1) or (2); and

                     (b)  the common rule applies in relation to a business carried on by an employer; and

                     (c)  the Commission has decided to make a declaration (the new declaration ) under subsection 141(1) or (2) of another common rule (the new common rule ) that could apply in relation to that business of the employer; and

                     (d)  the new common rule is not a variation of a term of an award to which the first-mentioned common rule relates.

             (2)  The Commission may specify in the new declaration that the new common rule does not apply in relation to that business of the employer.

             (3)  In deciding whether to make that specification, the Commission must take into account the matters referred to in subsection 141(5).

             (4)  This section does not limit the conditions, exceptions and limitations that can be specified in a declaration under subsection 141(1) or (2).

142B   Application of section 109 to declarations under this Division

                   Section 109 applies to a declaration under this Division, or a decision not to make such a declaration, as if it were an order in relation to an industrial dispute.

142C   Common rule taken to be award

                   To avoid doubt, a common rule declared under subsection 141(1) or (2) is taken to be an award of the Commission for the purposes of sections 152, 170LY and 170VQ.

Part 2 Common rules in relation to Victoria

Workplace Relations Act 1996

8  After section 493

Insert:

493A   Additional effect of Act—common rules

             (1)  The object of this section is to provide access for all employees in Victoria to the award safety net of fair and enforceable minimum wages and conditions of employment established and maintained by the Commission in accordance with Part VI.

             (2)  Without affecting its operation apart from this section, this Act also has effect, subject to this section, as if a reference in section 141 or 142 to a Territory were a reference to Victoria.

             (3)  To avoid doubt, regulations prescribing requirements for any of the following:

                     (a)  publication of a notice in accordance with paragraph 141(4)(a);

                     (b)  giving notice of a place and time in accordance with subsection 142(3);

                     (c)  publication of a notice in accordance with subsection 142(4);

may specify particular requirements for the publication, or the giving of notice, in accordance with paragraph 141(4)(a) or subsection 142(3) or (4) (as those provisions have effect because of subsection (2) of this section).

             (4)  Despite subsection 152(1), this section is not intended to exclude or limit the operation of a law of Victoria that is capable of operating concurrently with this section. In particular, a common rule as it has effect because of this section is not intended to exclude or limit the operation of a law of Victoria that is capable of operating concurrently with the common rule.

9  At the end of section 508

Add:

             (2)  To avoid doubt, a common rule declared under subsection 141(1) (as it has effect because of subsection 493A(2)) is taken to be an award of the Commission for the purposes of subsection (1).

Part 3 Application and transitional provisions

10  Application of item 5

The amendment of the Workplace Relations Act 1996 made by item 5 of this Schedule applies to applications for a declaration under a provision of Division 5 of Part VI of the Workplace Relations Act 1996 made on or after the commencement of that item.

11  Application of item 7—section 142A

Section 142A of the Workplace Relations Act 1996 (as inserted by item 7 of this Schedule) applies in relation to the making of a new declaration mentioned in paragraph 142A(1)(c), regardless of whether the old declaration mentioned in paragraph 142A(1)(a) was made before, on or after the commencement of that item.

12  Application of item 8

The amendment of the Workplace Relations Act 1996 made by item 8 of this Schedule applies in relation to awards made before, on or after the commencement of that item.

13  Transitional—date when common rule comes into force

(1)       If the Commission makes a declaration of common rule under section 141 of the Workplace Relations Act 1996 (as it has effect because of subsection 493A(2) of that Act) within the period of 12 months starting on the day on which this item commences, the declaration comes into force immediately after the end of that period.

(2)       Subitem (1) does not apply if the Commission specifies a condition in the declaration that the common rule is to come into force after the end of that period.

[common rules]

(10)   Page 28, at the end of the Bill (after proposed Schedule 3), add:

Schedule 4 Common rules and contract outworkers in Victoria in the textile, clothing and footwear industry

   

Workplace Relations Act 1996

1  At the end of Subdivision A of Division 2 of Part XVI

Add:

540A   Concurrent operation of Victorian laws

                   This Part is not intended to exclude or limit the operation of a law of Victoria that is capable of operating concurrently with this Part.

2  Subsection 541(1)

After “subsection (3)”, insert “or (5) (as appropriate)”.

3  At the end of subsection 541(3)

Add “This subsection is subject to subsection (5).”.

4  After subsection 541(4)

Insert:

             (5)  If:

                     (a)  both of these conditions are satisfied:

                              (i)  the contract outworker or other individual is subject to one or more terms of an award that are common rules under Division 5 of Part VI;

                             (ii)  that term or those terms provide for him or her to be entitled to be paid an amount for performing the work; or

                     (b)  in a case where paragraph (a) does not apply—both of the conditions mentioned in that paragraph would be satisfied, if he or she had performed the work as an employee in or about any premises in Victoria;

the statutory amount owed to him or her is the greater of the following amounts:

                     (c)  the amount mentioned in subparagraph (a)(ii);

                     (d)  the amount that would have been worked out under subsection (3) in relation to his or her performance of the work, if this subsection did not operate.

Example:    The term of an award that is a common rule under Division 5 of Part VI provides for a contract worker to be paid an amount for the work that is higher than the amount worked out in accordance with clause 1 of Schedule 1A. Therefore, the statutory amount owed to the worker is the amount provided for by the term of the award.

5  Application of items 2, 3 and 4

The amendments made by items 2, 3 and 4 of this Schedule apply to work performed after the commencement of this Schedule under a contract for services, whether or not the contract was entered into before or after that commencement.

[common rules]