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Fair Work Bill 2009

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2008-2009

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Fair Work Bill 2008

 

 

(1)     Clause 12, page 20 (lines 10 and 11), omit “who is also a police, stipendiary or special magistrate”.

[definitions]

(2)     Clause 539, page 428 (lines 17 to 19), omit “if an undertaking given by the person in relation to the contravention has not been withdrawn (see subsection 715(4))”, substitute “in certain cases where an undertaking or compliance notice has been given (see subsections 715(4) and 716(4A))”.

[compliance notice]

(3)     Clause 544, page 441 (line 15), after “Note” insert “1”.

[underpayments]

(4)     Clause 544, page 441 (after line 17), at the end of the clause, add:

Note 2:       For time limits on orders relating to underpayments, see subsection 545(5).

[underpayments]

(5)     Clause 545, page 442 (after line 24), at the end of the clause, add:

Time limit for orders in relation to underpayments

             (5)  A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.

[underpayments]

(6)     Clause 573, page 458 (lines 21 and 22), omit “Division 7 deals with FWA’s seal, reviews and reports, and disclosing information obtained by FWA.”, substitute “Division 7 deals with FWA’s seal. It also deals with other powers and functions of the President and the General Manager (including in relation to annual reports, reports on making enterprise agreements, arrangements with certain courts, and disclosing information obtained by FWA).”.

[functions of the General Manager]

(7)     Page 459 (after line 2), after clause 574, insert:

574A   Schedule 1

                   Schedule 1 has effect.

[early commencement]

(8)     Clause 576, page 461 (line 12), after “section 650”, insert “or 653A”.

[functions of FWA]

(9)     Clause 576, page 461 (after line 12), after paragraph (2)(c), insert:

                    (ca)  mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court of Australia Act 1976 or section 34 of the Federal Magistrates Act 1999 , have been referred by the Fair Work Division of the Federal Court or Federal Magistrates Court to FWA for mediation;

[functions of FWA]

(10)   Clause 596, page 470 (lines 14 and 15), omit paragraph (4)(b), substitute:

                     (b)  is an employee or officer of:

                              (i)  an organisation; or

                             (ii)  an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009 ; or

                            (iii)  a peak council; or

                            (iv)  a bargaining representative;

                            that is representing the person; or

[representation by lawyers]

(11)   Clause 625, page 485 (after line 12), after paragraph (2)(d), insert:

                   (da)  publishing the results of a protected action ballot under section 457;

[delegation by President]

(12)   Clause 625, page 485 (after line 21), at the end of subclause (2), add:

                    ; (i)  any function or power prescribed by the regulations.

[delegation by President]

(13)   Heading to Division 7, page 501 (lines 2 and 3), omit the heading, substitute:

Division 7 Seals and additional powers and functions of the President and the General Manager

[functions of the General Manager]

(14)   Heading to clause 653, page 502 (line 5), omit the heading, substitute “ Reports about making enterprise agreements, individual flexibility arrangements etc. ”.

[report by General Manager]

(15)   Clause 653, page 502 (lines 6 to 11), omit subclause (1), substitute:

Review and research

             (1)  The General Manager must:

                     (a)  review the developments, in Australia, in making enterprise agreements; and

                     (b)  conduct research into the extent to which individual flexibility arrangements under modern awards and enterprise agreements are being agreed to, and the content of those arrangements; and

                     (c)  conduct research into the operation of the provisions of the National Employment Standards relating to:

                              (i)  requests for flexible working arrangements under subsection 65(1); and

                             (ii)  requests for extensions of unpaid parental leave under subsection 76(1); and

                     (d)  conduct research into:

                              (i)  the circumstances in which employees make such requests; and

                             (ii)  the outcome of such requests; and

                            (iii)  the circumstances in which such requests are refused.

          (1A)  The review and research must be conducted in relation to each of the following periods:

                     (a)  the 3 year period that starts when this section commences;

                     (b)  each later 3 year period.

[report by General Manager]

(16)   Clause 653, page 502 (lines 12 and 13), omit “review the effects that such bargaining has had”, substitute “, in conducting the review and research, consider the effect that the matters referred to in paragraphs (1)(a) to (d) have had”.

[report by General Manager]

(17)   Clause 653, page 502 (line 24), after “review”, insert “and research”.

[report by General Manager]

(18)   Page 502 (after line 31), after clause 653, insert:

653A   Arrangements with the Federal Court and the Federal Magistrates Court

                   The General Manager may make a written arrangement with the Federal Court or the Federal Magistrates Court for FWA to provide administrative support to the Fair Work Division of the Court.

[functions of the General Manager]

(19)   Clause 655, page 503 (line 29), omit “under this Act”, substitute “of FWA”.

[disclosure of information by FWA]

(20)   Clause 657, page 505 (after line 8), after subclause (1), insert:

          (1A)  The General Manager also has the following functions:

                     (a)  any function conferred on him or her by a fair work instrument;

                     (b)  any function conferred on him or her by a law of the Commonwealth.

Note:          Sections 653 and 653A confer additional functions and powers on the General Manager.

[functions of the General Manager]

(21)   Clause 657, page 505 (lines 9 and 10), omit the note.

[functions of the General Manager]

(22)   Clause 657, page 505 (line 12), omit “assisting the President”, substitute “performing his or her functions”.

[functions of the General Manager]

(23)   Clause 658, page 505 (lines 24 and 25), omit “the General Manager’s review of developments in making enterprise agreements”, substitute “the conduct by the General Manager of the review and research, and the preparation of the report,”.

[report by General Manager]

(24)   Clause 671, page 509 (line 14), omit “in relation to assisting the President”.

[functions of the General Manager]

(25)   Clause 713, page 530 (lines 6 to 12), omit subclause (2), substitute:

             (2)  However, in the case of an individual none of the following are admissible in evidence against the individual in criminal proceedings:

                     (a)  the record or document produced;

                     (b)  producing the record or document;

                     (c)  any information, document or thing obtained as a direct or indirect consequence of producing the record or document;

                     (d)  any record or document that is inspected or copied under paragraph 709(e);

                     (e)  any information, document or thing obtained as a direct or indirect consequence of inspecting or copying a record or document under paragraph 709(e).

[self-incrimination]

(26)   Clause 716, page 533 (after line 11), after subclause (4), insert:

Relationship with civil remedy provisions

          (4A)  An inspector must not apply for an order under Division 2 of Part 4-1 in relation to a contravention of a civil remedy provision by a person if:

                     (a)  the inspector has given the person a notice in relation to the contravention; and

                     (b)  either of the following subparagraphs applies:

                              (i)  the notice has not been withdrawn, and the person has complied with the notice;

                             (ii)  the person has made an application under section 717 in relation to the notice that has not been completely dealt with.

Note:          A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.

          (4B)  A person who complies with a notice in relation to a contravention of a civil remedy provision is not taken:

                     (a)  to have admitted to contravening the provision; or

                     (b)  to have been found to have contravened the provision.

[compliance notice]

(27)   Page 575 (after line 13), at the end of the Bill, add:

Schedule 1 Transitional provisions

Note:       See section 574A.

   

   

1   Definitions

             (1)  For the purposes of this Schedule, unless a contrary intention appears, expressions used in this Schedule that are defined in the Workplace Relations Act 1996 (other than Schedule 1 to that Act) have the same meanings as they have in that Act.

             (2)  If:

                     (a)  a provision of this Schedule uses an expression defined in both the Workplace Relations Act 1996 and this Act; and

                     (b)  it is clear from the context of the provision which of those meanings is intended to apply in that provision;

the expression has that meaning.

2   Appointments to Fair Work Australia

             (1)  An appointment that is:

                     (a)  to an office of the Commission mentioned in a table item below; and

                     (b)  in force immediately before the commencement time for the table item;

is taken, after that time, to be an appointment, under section 626 of this Act, to the office of FWA mentioned in the table item.

Note:          The person continues to be appointed to the Commission (see subclause (3)).

 

Appointments to FWA

 

Item

Column 1

Office of the Commission

Column 2

Office of FWA

Column 3

Commencement time

1

President of the Commission

President of FWA

The day proclaimed for the purposes of item 2 of the table in subsection 2(1) of this Act.

2

Vice President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of this Act.

3

Senior Deputy President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

4

Deputy President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of this Act.

5

Commissioner of the Commission

Commissioner of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of this Act.

 

             (2)  Subclause (1) does not apply to a member of the Commission who:

                     (a)  was appointed as a member of a prescribed State industrial authority (within the meaning of the Workplace Relations Act 1996 ) before being appointed as a member of the Commission; and

                     (b)  still holds that appointment as a member of the prescribed State industrial authority.

Dual appointments

             (3)  Despite any provision of the Workplace Relations Act 1996 or this Act, a person who is taken to have been appointed as an FWA Member under this clause continues also to hold office under the Workplace Relations Act 1996 .

Note:          The terms and conditions of a person who is taken to have been appointed as an FWA Member are the terms and conditions that attach to his or her appointment under the Workplace Relations Act 1996 (see clause 3).

3   Terms and conditions

             (1)  A person who is taken to have been appointed as an FWA Member under clause 2:

                     (a)  holds office under this Act on the same terms and conditions as attach, or attached, to his or her appointment under the Workplace Relations Act 1996 (including under subsections 63(2) and (3) of that Act); and

                     (b)  is entitled to the same designation as he or she is, or was, entitled to in relation to his or her appointment under the Workplace Relations Act 1996 (including the designation the person has, or had, because of subsection 80(2) of the Industrial Relations (Consequential Provisions) Act 1988 ).

             (2)  To avoid doubt, subclause (1):

                     (a)  has effect despite subsections 633(1) and 644(1) of this Act; and

                     (b)  continues the operation of the Judges’ Pensions Act 1968 in relation to a person taken to have been appointed under clause 2 and to whom that Act applied as a member of the Commission.

             (3)  For the purposes of determining the remuneration of a person who is taken to have been appointed as an FWA Member under clause 2:

                     (a)  sections 635 and 637 of this Act do not apply; and

                     (b)  sections 79 and 81 of the Workplace Relations Act 1996 continue to apply in relation to the person’s appointment as both an FWA Member and a member of the Commission.

4   Seniority of FWA Members

             (1)  If a person who is a member of the Commission is taken to have been appointed as an FWA Member under clause 2, the day on which the person’s appointment took effect is, for the purposes of section 619 of this Act, taken to be the day on which the person was appointed as such a member of the Commission.

             (2)  If 2 or more such persons were appointed to the Commission on the same day, their seniority is, for the purposes of section 619 of this Act, to be determined in accordance with the precedence assigned to them under section 65 of the Workplace Relations Act 1996 .

5   Procedural rules

                   Section 609 of this Act has effect, in relation to any time at which the President is the only FWA Member, as if the words “After consulting the other FWA Members,” were omitted from subsection (1) of that section.

6   Transfer of assets and liabilities

             (1)  The person referred to in column 1 of an item of the following table must arrange for the transfer, on the first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of this Act, of assets and liabilities of the body referred to in column 2 of the item of the following table to the body referred to in column 3 of the item of the following table.

 

Transfer of assets and liabilities

 

Item

Column 1

Office-holder who enters arrangement with FWA

Column 2

Body whose assets and liabilities are transferred

Column 3

Body to which assets and liabilities are transferred

1

Director of the AFPC Secretariat

AFPC Secretariat

FWA

2

Industrial Registrar

Australian Industrial Registry

FWA

3

Workplace Authority Director

Workplace Authority

Office of the Fair Work Ombudsman

4

Workplace Ombudsman

Office of the Workplace Ombudsman

Office of the Fair Work Ombudsman

             (2)  Despite subclause (1), the Minister may, before the day mentioned in that subclause, determine one or more of the following by writing:

                     (a)  that some or all assets and liabilities of the body (as specified in the determination) are to be transferred to a different body (as specified in the determination) from the one referred to in column 3 of the table;

                     (b)  that some or all assets and liabilities of the body (as specified in the determination) are to be transferred on a different day (as specified in the determination) from the one referred to in subclause (1);

                     (c)  that some or all assets and liabilities of the body (as specified in the determination) are to be transferred in accordance with regulations made, or to be made, for the purposes of this paragraph.

             (3)  A determination under subclause (2):

                     (a)  has effect accordingly; and

                     (b)  is not a legislative instrument.

             (4)  In this clause, a reference to an asset of a body includes a reference to a record or any other information that is in the custody of, or under the control of, the body.

7   Additional function and power of the General Manager

                   The General Manager of FWA may enter into an arrangement with the person referred to in column 1 of an item of the following table for FWA to provide assistance to the body referred to in column 2 of the item for the purpose of performing functions on and after the WR Act repeal day.

 

Arrangements between FWA and body

 

Item

Column 1

Office-holder who enters arrangement with FWA

Column 2

Body to which assistance is provided

1

Industrial Registrar

Australian Industrial Registry

2

Workplace Authority Director

Workplace Authority

3

Director of the AFPC Secretariat

AFPC Secretariat

 

[early commencement]