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Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009

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2008-2009

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009

 

 

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

9.  Schedule 23, items 1 and 2

Immediately after the commencement of Part 2-4 of the Fair Work Act 2009 .

 

10.  Schedule 23, items 3 to 6

Immediately after the commencement of Part 2-2 of the Fair Work Act 2009 .

 

11.  Schedule 23, item 7

Immediately after the commencement of Part 2-3 of the Fair Work Act 2009 .

 

12.  Schedule 23, item 8

Immediately after the commencement of Part 2-8 of the Fair Work Act 2009 .

 

13.  Schedule 23, item 9

Immediately after the commencement of Division 1 of Part 2-9 of the Fair Work Act 2009 .

 

14.  Schedule 23, items 10 to 12

Immediately after the commencement of Part 3-3 of the Fair Work Act 2009 .

 

15.  Schedule 23, items 13 to 21

Immediately after the commencement of Part 4-1 of the Fair Work Act 2009 .

 

16.  Schedule 23, item 22

Immediately after the commencement of section 799 of the Fair Work Act 2009 .

 

[other amendments of the FW Act]

(2)     Schedule 2, item 1, page 5 (line 12), omit “and” (first occurring), substitute “to”.

[the transitional Schedules]

(3)     Schedule  2 , item  2 , page 7 (after line 9) , after the definition of single enterprise , insert:

State and Territory interaction rules : see subitem 5A(2) of Schedule 3.

[State and Territory interaction rules]

(4)     Schedule  2 , item  7 , page 11 (line 7) , omit “ old ”.

[regulations about transitional matters]

(5)     Schedule 2, item 11, page 14 (before line 4), before subitem (1), insert:

Conduct before repeal

[conduct before repeal]

(6)     Schedule 2, item 11, page 14 (after line 7), after subitem (1), insert:

Processes begun before repeal to vary or terminate WR Act instruments

(1A)     If:

                     (a)  a process to vary or terminate a WR Act instrument is begun under the WR Act before the WR Act repeal day; and

                     (b)  the WR Act instrument becomes a transitional instrument because of the operation of Part 2 of Schedule 3;

the WR Act continues to apply, on and after the WR Act repeal day, for the purposes of completing the process.

Orders made before repeal

[conduct before repeal]

(7)     Schedule 2, item 11, page 14 (line 11), omit subitem (3), substitute:

Item subject to this Act

(3)       This item applies subject to this Act.

[conduct before repeal]

(8)     Schedule 2, item 12, page 14 (line 21), after “application”, insert “, other than an interim application,”.

[FWA to take over some processes]

(9)     Schedule 2, item 12, page 14 (line 30), after “(however described)”, insert “, other than an interim process,”.

[FWA to take over some processes]

(10)   Schedule 2, item 12, page 15 (after line 10), at the end of the item, add:

(4)       In this item:

interim application means an application that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.

interim process means a process (however described) that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.

[FWA to take over some processes]

(11)   Schedule 2, item 13, page 15 (after line 14), after paragraph (a), insert:

                    (aa)  provide that subitem 11(1A) does not apply in relation to specified processes;

[conduct before repeal]

(12)   Schedule  3 , page 21 (after line 3) , after item  5 , insert:

5A  Transitional instruments continue to be subject to the same State and Territory interaction rules

(1)       The same State and Territory interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

(2)       State and Territory interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

                     (a)  an instrument prevails over, or excludes, a law of a State or Territory; or

                     (b)  an instrument has effect subject to a law of a State or Territory.

Note:       Most of the State and Territory interaction rules were in the WR Act.

[State and Territory interaction rules]

(13)   Schedule  3 , item  24 , page 32 (line 28) , before “ The ”, insert “ (1) ”.

[transitional instruments and the National Employment Standards]

(14)   Schedule  3 , item  24 , page 33 (after line 13) , at the end of the item, add:

(2)       If:

                     (a)  a transitional instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but

                     (b)  the terms do not include the requirements referred to in subsection (2) of that section;

the instrument is taken to include terms that include the requirements.

[transitional instruments and the National Employment Standards]

(15)   Schedule 3, page 34 (after line 36), after item 28, insert:

28A  Terms of modern awards about outworker conditions continue to apply

(1)       This item applies if, at a particular time:

                     (a)  an agreement-based transitional instrument applies to an employee; and

                     (b)  outworker terms (within the meaning of the FW Act) in a modern award would, but for the transitional instrument, apply to the employee.

(2)       Despite item 28 and despite any terms of the agreement-based transitional instrument that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:

                     (a)  the employee;

                     (b)  the employer;

                     (c)  each employee organisation to which the modern award applies.

(3)       To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.

[terms of modern award about outworker conditions]

(16)   Schedule 3, page 36 (after line 32), at the end of Division 2 of Part 5, add:

31A  Designated outworker terms of award-based transitional instrument continue to apply

(1)       This item applies if, at a particular time:

                     (a)  an enterprise agreement or workplace determination (under the FW Act) applies to an employer; and

                     (b)  an award-based transitional instrument covers the employer (whether the transitional instrument covers the employer in the employer’s capacity as an employer or an outworker entity); and

                     (c)  the transitional instrument includes one or more designated outworker terms.

(2)       Despite item 31, the designated outworker terms of the award-based transitional instrument apply at that time to the following:

                     (a)  the employer;

                     (b)  each employee who is both:

                              (i)  a person to whom the enterprise agreement or workplace determination applies; and

                             (ii)  a person who is covered by the transitional instrument;

                     (c)  each employee organisation that is covered by the transitional instrument.

(3)       To avoid doubt:

                     (a)  award-based transitional instruments are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and

                     (b)  designated outworker terms of an award-based transitional instrument can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and

                     (c)  to the extent to which designated outworker terms of an award-based transitional instrument apply to an employer, an employee or an employee organisation because of subitem (2), the transitional instrument applies to the employer, employee or organisation.

[designated outworker terms of award-based transitional instruments]

(17)   Schedule 4, page 46 (after line 29), at the end of Part 2, add:

4A  References to workplace agreements include references to enterprise agreements

(1)       The provisions of the WR Act that continue to apply because of this Part have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.

(2)       Subitem (1) has effect unless the context otherwise requires and subject to the regulations.

[continued application of Australian Fair Pay and Conditions Standard]

(18)   Schedule  5 , item  2 , page 53 (after line 16) , at the end of the item, add:

(5)       In continuing and completing the Part 10A award modernisation process, the Australian Industrial Relations Commission must have regard to:

                     (a)  the state of the national economy; and

                     (b)  the likely effects on the national economy of any modern award that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation.

[Part 10A award modernisation process]

(19)   Schedule  5 , item  6 , page 56 (after line 3) , after subitem ( 2 ), insert:

(2A)     The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.

[review of modern awards]

(20)   Schedule 6, item 2, page 63 (lines 9 to 16), omit subitem (2), substitute:

             (2)  An enterprise award-based instrument is an award-based transitional instrument to which subitem (2A) or (2B) applies.

          (2A)  This subitem applies to an award-based transitional instrument that is an award, if the award covers employees in:

                     (a)  a single enterprise (or a part of a single enterprise) only; or

                     (b)  one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:

                              (i)  franchisees of the same franchisor; or

                             (ii)  related bodies corporate of the same franchisor; or

                            (iii)  any combination of the above.

          (2B)  This subitem applies to an award-based transitional instrument that is a notional agreement preserving State awards, if the notional agreement includes terms and conditions from a State award that covered employees in:

                     (a)  a single enterprise (or a part of a single enterprise) only; or

                     (b)  one or more enterprises, if the employers all carried on similar business activities under the same franchise and were:

                              (i)  franchisees of the same franchisor; or

                             (ii)  related bodies corporate of the same franchisor; or

                            (iii)  any combination of the above.

[meaning of enterprise award-based instrument]

(21)   Schedule 6, item 2, page 63 (line 27), omit “subitem (2)”, substitute “subitem (2B)”.

[meaning of enterprise award-based instrument]

(22)   Schedule  6 , item  4 , page 64 (lines 30 and 31) , omit “FW (safety net provisions) commencement day”, substitute “WR Act repeal day”.

[enterprise instrument modernisation process]

(23)   Schedule 6, item 4, page 65 (lines 7 to 11), omit paragraphs (5)(b) and (c), substitute:

                     (b)  whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;

                     (c)  the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);

[enterprise instrument modernisation process]

(24)   Schedule 6, item 4, page 65 (after line 26), at the end of subitem (5), add:

Note:       A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.

[enterprise instrument modernisation process]

(25)   Schedule 6, item 4, page 65 (before line 27), before subitem (6), insert:

(5A)     If FWA makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.

Note:       For when a modern enterprise award is in operation, see item 17.

[enterprise instrument modernisation process]

(26)   Schedule 6, item 5, page 65 (lines 32 and 33), omit “FW (safety net provisions) commencement day”, substitute “WR Act repeal day”.

[enterprise instrument modernisation process]

(27)   Schedule 6, item 5, page 66 (lines 10 to 14), omit paragraphs (4)(b) and (c), substitute:

                     (b)  whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;

                     (c)  the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);

[enterprise instrument modernisation process]

(28)   Schedule 6, item 5, page 66 (after line 29), at the end of subitem (4), add:

Note:       A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.

[enterprise instrument modernisation process]

(29)   Schedule 6, item 5, page 66 (line 31), after “the instrument”, insert “, being a day that is not earlier than the FW (safety net provisions) commencement day”.

[enterprise instrument modernisation process]

(30)   Schedule 6, item 6, page 67 (line 3), after “Note”, insert “1”.

[enterprise instrument modernisation process]

(31)   Schedule 6, item 6, page 67 (after line 4), at the end of the item, add:

Note 2:    See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).

[enterprise instrument modernisation process]

(32)   Schedule 6, item 7, page 67 (after line 8), at the end of subitem (1), add:

Note:       See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).

[enterprise instrument modernisation process]

(33)   Schedule 6, item 9, page 69 (after line 35), after subitem (3), insert:

(3A)     Despite subitem (3), if, before the FW (safety net provisions) commencement day, FWA makes a decision not to make a modern enterprise award to replace an enterprise instrument, the decision must not come into operation before the FW (safety net provisions) commencement day.

[enterprise instrument modernisation process]

(34)   Schedule 6, page 73 (before line 2), before item 17, insert:

16A  How the FW Act applies to the modernisation process before the FW (safety net provisions) commencement day

For the purposes of making a modern enterprise award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced:

                     (a)  Part 2-2 (which deals with the National Employment Standards);

                     (b)  section 134 (which deals with the modern awards objective);

                     (c)  Division 3 of Part 2-3 (which deals with terms of modern awards);

                     (d)  section 284 (which deals with the minimum wages objective);

                     (e)  any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).

[enterprise instrument modernisation process]

(35)   Schedule 7, item 13, page 92 (line 9), after “an award”, insert “or a notional agreement preserving State awards”.

[approval of agreement if award etc. contains outworker terms]

(36)   Schedule 7, item 13, page 92 (line 11), omit “outworker terms as defined in section 564 of the WR Act”, substitute “terms that are (or that would be, if the terms were in an award) outworker terms as defined in section 564 of the WR Act”.

[approval of agreement if award etc. contains outworker terms]

(37)   Schedule 7, item 22, page 98 (line 17), before “Subsection”, insert “(1)”.

[special low-paid workplace determinations]

(38)   Schedule 7, item 22, page 98 (after line 22), at the end of the item, add:

(2)       However, subitem (1) does not apply in relation to a workplace determination if:

                     (a)  the collective agreement-based transitional instrument has ceased to operate; and

                     (b)  FWA considers that it is appropriate in the circumstances to make the workplace determination.

(3)       In making a decision for the purposes of paragraph (2)(b) of this item, FWA must take into account the objects set out in section 241 of the FW Act.

[special low-paid workplace determinations]

(39)   Schedule 8, item 4, page 105 (lines 8 to 13), omit paragraph (1)(a), substitute:

                     (a)  the Workplace Authority Director must not consider whether the agreement passes the no-disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 3, unless:

                              (i)  the agreement is lodged before the end of the period (the cut-off period ) of 14 days referred to in subsection 342(1) or (2) of that Act; and

                             (ii)  for a union collective agreement—the agreement was approved before the WR Act repeal day; and

[lodging union collective agreements]

(40)   Schedule 8, item 4, page 105 (lines 20 to 22), omit the note, substitute:

Note:       The general effect of this provision is that unlodged collective agreements (other than union collective agreements) must be lodged within 14 days of being made in order to come into operation. Unlodged union collective agreements must have been approved before the WR Act repeal day and be lodged within 14 days of that approval in order to come into operation. However, late lodgment will not give rise to a civil remedy.

[lodging union collective agreements]

(41)   Schedule 8, item 5, page 106 (lines 24 to 26), omit paragraph (3)(a), substitute:

                     (a)  the period of 37 days beginning on whichever of the following days is later:

                              (i)  the WR Act repeal day;

                             (ii)  the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement; or

[time limits]

(42)   Schedule 8, item 8, page 107 (lines 31 to 36), omit paragraph (1)(a), substitute:

                     (a)  the Workplace Authority Director must not consider whether the varied agreement passes the no-disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 7, unless:

                              (i)  the variation is lodged before the end of the period (the cut-off period ) of 14 days referred to in subsection 375(1) of that Act; and

                             (ii)  for a variation of a union collective agreement or a union greenfields agreement—the variation was approved before the WR Act repeal day; and

[lodging variations of collective agreements]

(43)   Schedule 8, item 8, page 108 (lines 4 to 6), omit the note, substitute:

Note:       The general effect of this provision is that unlodged variations of collective agreements must be lodged within 14 days of being approved in order to come into operation. Unlodged variations of union collective agreements and union greenfields agreements must also have been approved before the WR Act repeal day. However, late lodgment will not give rise to a civil remedy.

[lodging variations of collective agreements]

(44)   Schedule 8, item 9, page 109 (lines 1 to 3), omit paragraph (2)(a), substitute:

                     (a)  the period of 37 days beginning on whichever of the following days is later:

                              (i)  the WR Act repeal day;

                             (ii)  the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement as varied; or

[time limits]

(45)   Schedule 8, item 15, page 113 (lines 13 to 15), omit paragraph (3)(a), substitute:

                     (a)  the period of 37 days beginning on whichever of the following days is later:

                              (i)  the WR Act repeal day;

                             (ii)  the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or

[time limits]

(46)   Schedule 8, item 17, page 115 (lines 1 to 3), omit paragraph (2)(a), substitute:

                     (a)  the period of 37 days beginning on whichever of the following days is later:

                              (i)  the WR Act repeal day;

                             (ii)  the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the variation; or

[time limits]

(47)   Schedule 8, page 124 (after line 3), after item 28, insert:

28A  Variations to pass no-disadvantage test after WR Act repeal day

Despite any other provision of Division 5A of Part 8 of the WR Act, as that Division continues to apply because of this Schedule in relation to:

                     (a)  a workplace agreement; or

                     (b)  a variation of such an agreement under Division 8 of that Part;

only one variation for the purposes of passing the no-disadvantage test of the agreement or variation may be lodged with the Workplace Authority Director on or after the WR Act repeal day.

[variations to pass no-disadvantage test]

(48)   Schedule 9, page 132 (after line 6), after item 5, insert:

5A  References to workplace agreements include references to enterprise agreements

(1)       The provisions of the WR Act that continue to apply because of item 5 have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.

(2)       Subitem (1) has effect unless the context otherwise requires and subject to the regulations.

[continued application of Australian Fair Pay and Conditions Standard]

(49)   Schedule  9 , item  13 , page 137 (after line 3) , at the end of the item, add:

Note:       The AFPCS interaction rules may affect the base rate of pay payable to an employee (see item 22 of Schedule 3).

[universal application of minimum wages to employees]

(50)   Schedule 11, item 6, page 147 (line 17), after “16”, insert “to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ”.

[technical amendment]

(51)   Schedule 11, item 6, page 147 (line 23), after “16”, insert “to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ”.

[technical amendment]

(52)   Schedule 11, item 6, page 147 (line 29), after “16”, insert “to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ”.

[technical amendment]

(53)   Schedule 11, item 6, page 148 (line 3), after “16”, insert “to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ”.

[technical amendment]

(54)   Schedule 11, item 13, page 155 (line 2), at the end of paragraph (3)(f), add “to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ”.

[technical amendment]

(55)   Schedule 14, item 3, page 169 (line 21), omit “subsection 481(1)”, substitute “subsections 481(1) and 483A(1)”.

[right of entry]

(56)   Schedule 14, item 4, page 169 (line 28), omit “(1)”.

[right of entry]

(57)   Schedule 14, item 4, page 169 (line 32) to page 170 (line 2), omit subitem (2).

[right of entry]

(58)   Schedule 14, item 5, page 170 (lines 3 to 10), omit the item.

[right of entry]

(59)   Schedule 16, item 15, page 179 (line 15), omit “ Compliance with continuing ”, substitute “ Continuing ”.

[transmission of WR Act transitional awards]

(60)   Schedule 16, item 15, page 179 (line 16), before “A person”, insert “(1)”.

[transmission of WR Act transitional awards]

(61)   Schedule 16, item 15, page 179 (line 18), omit “This item”, substitute “This subitem”.

[transmission of WR Act transitional awards]

(62)   Schedule 16, item 15, page 179 (line 19), before “continuing”, insert “a”.

[technical amendment]

(63)   Schedule 16, item 15, page 179 (after line 20), at the end of the item, add:

(2)       A transitional employer must not contravene subclause 72J(2) or 72K(1), (2) or (3) of continued Schedule 6.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4-1 of the FW Act).

[transmission of WR Act transitional awards]

(64)   Schedule 16, item 16, page 179 (after line 36), after paragraph (1)(d), insert:

                   (da)  the reference in subsections 540(3) and (4) to a term in an enterprise agreement that would be an outworker term if it were included in a modern award included a reference to a term in a collective agreement-based transitional instrument that would be an outworker term if it were included in an award-based transitional instrument; and

[outworkers]

(65)   Schedule 16, item 16, page 180 (cell at table item 38, column headed “ Civil remedy provision ”), omit the cell, substitute:

2(1) (other than in relation to a contravention or proposed contravention of an outworker term)

[outworkers]

(66)   Schedule 16, item 16, page 180 (cell at table item 39, column headed “ Civil remedy provision ”), omit the cell, substitute:

2(1) (in relation to a contravention or proposed contravention of an outworker term)

[outworkers]

(67)   Schedule 16, item 16, page 180 (cell at table item 40, column headed “ Civil remedy provision ”), omit the cell, substitute:

2(2) (in relation to a contravention or proposed contravention of a collective agreement-based transitional instrument other than a contravention or proposed contravention of a term that would be an outworker term if it were included in an award-based transitional instrument)

[outworkers]

(68)   Schedule 16, item 16, page 180, after table item 40, insert:

40A

2(2) (in relation to a contravention or proposed contravention of a term in a collective agreement-based transitional instrument that would be an outworker term if it were included in an award-based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

[outworkers]

(69)   Schedule 16, item 16, page 185 (table item 60, column 1), omit “15”, substitute “15(1)”.

[transmission of WR Act transitional awards]

(70)   Schedule 16, item 16, page 185 (table item 61, column 1), omit “15”, substitute “15(1)”.

[transmission of WR Act transitional awards]

(71)   Schedule 16, item 16, page 185 (at the end of the table), add:

 

62

15(2)

(a) a transferring transitional employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

 

[transmission of WR Act transitional awards]

(72)   Schedule 16, item 16, page 185 (line 2), omit “38, 39, 48, 60 and 61 in subitem (1)”, substitute “38, 39, 40, 40A 48, 60 and 61 in subitem (1), and the operation of subsections 540(3) and (4) of the FW Act in relation to those table items”.

[outworkers]

(73)   Schedule 17, item 12, page 193 (line 21), omit “Justice”, substitute “Federal Magistrate”.

[jurisdiction of the Federal Magistrates Court]

(74)   Schedule 18, item 4, page 204 (lines 7 to 15), omit subitems (1) and (2), substitute:

The seniority of persons taken to be appointed as Deputy Presidents of FWA under item 1 of this Schedule is, for the purposes of section 619 of the FW Act, to be determined in accordance with the precedence assigned to them as members of the Commission under section 65 of the WR Act.

[seniority of FWA Members]

(75)   Schedule 18, item 10, page 207 (line 16), omit “ Additional function and power of the General Manager ”, substitute “ Staffing arrangements ”.

[staffing arrangements]

(76)   Schedule 18, item 10, page 207 (line 17), before “The”, insert “(1)”.

[staffing arrangements]

(77)   Schedule 18, item 10, page 207 (after line 23), at the end of the item, add:

(2)       The Fair Work Ombudsman may enter into an arrangement with the Workplace Authority Director to provide assistance to the Workplace Authority Director for the purpose of performing functions on and after the WR Act repeal day.

[staffing arrangements]

(78)   Schedule 18, Part 2, page 208 (after line 19), at the end of the Part, add:

11A  Workplace inspectors to become Fair Work Inspectors

(1)       An appointment of a person as a workplace inspector that is in force under section 167 of the WR Act immediately before the WR Act repeal day has effect, for the remainder of the term of the appointment, as if it were an appointment of the person as a Fair Work Inspector under section 700 of the FW Act.

(2)       An identity card issued under section 168 of the WR Act to a person covered by subitem (1) has effect, for the remainder of the person’s term of appointment, as if it were an identity card issued under section 702 of the FW Act.

(3)       Subitem (2) does not apply if the person is issued with an identity card under section 702 of the FW Act.

[Fair Work Inspectors]

(79)   Schedule 18, page 213 (after line 5), after item 20, insert:

20A  Report about unfair dismissal

(1)       The General Manager of FWA must prepare a written report about the first 3 years operation of the unfair dismissal system.

(2)       The report must deal with the experiences employers, and in particular small and medium-sized enterprise employers, and employees have had with the unfair dismissal system.

(3)       To prepare the report, the General Manager of FWA may do the following:

                     (a)  seek public submissions;

                     (b)  conduct surveys of employers, employees and any other persons affected by, or who have had experience with, the unfair dismissal system;

                     (c)  hold public hearings;

                     (d)  gather information in any other way he or she thinks fit.

(4)       Where possible, the report should include:

                     (a)  the number of unfair dismissal applications made; and

                     (b)  the number of persons who were employed by each applicant’s employer; and

                     (c)  the number of applicants who were employed by a small business employer; and

                     (d)  the number of applicants employed by small business employers whose dismissals were not consistent with the Small Business Fair Dismissal Code; and

                     (e)  the number of applicants found to have been unfairly dismissed, and of those applicants:

                              (i)  the number whose reinstatement was ordered by FWA; and

                             (ii)  the number awarded compensation by FWA, and the amounts of that compensation; and

                            (iii)  the number dismissed by a small business employer; and

                      (f)  the number of unfair dismissal applications that were made after the period of 14 days specified in paragraph 394(2)(a) of the FW Act and the number of those applications that were allowed by FWA under subsection 394(3) of the FW Act; and

                     (g)  the number of unfair dismissal applications discontinued, and the stages at which those applications were discontinued; and

                     (h)  the amounts of compensation paid, or the other remedies provided, when unfair dismissal applications were settled.

(5)       The General Manager of FWA must give the Minister the report as soon as practicable and, in any event, within 6 months after the end of the period mentioned in subsection (1).

(6)       The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(7)       Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to the report as if it were a periodic report within the meaning of that definition in subsection 34C(1) of that Act.

(8)       In this item:

applicant means a person who has made an unfair dismissal application.

unfair dismissal system means Part 3-2 of the FW Act.

[report about unfair dismissal system]

(80)   Schedule 18, page 213, after proposed item 20A, insert:

20B  Transferred employees

Existing agreements to continue

(1)       This item applies if:

                     (a)  an APS employee is moved, under paragraph 72(1)(a) of the Public Service Act 1999 , from an old Agency to a new Agency; and

                     (b)  the employee’s employment in the old Agency was subject to:

                              (i)  a collective agreement; or

                             (ii)  an AWA or pre-reform AWA (and therefore also a collective agreement which had no effect while the AWA or pre-reform AWA operated in relation to the employee).

(2)       The collective agreement, AWA or pre-reform AWA, as the case requires, has effect after the move in relation to the employee’s employment as if it had been made with the Agency Head of the new Agency on behalf of the Commonwealth.

Agency Head to determine which agreement applies to new employee

(3)       If:

                     (a)  a new employee is employed in a new Agency; and

                     (b)  more than one collective-based transitional instrument applies to the employment of employees in that Agency;

the Agency Head may determine that any one of those instruments applies to the employment of the new employee.

Regulations

(4)       The regulations may provide for other matters of a transitional nature in relation to the transfer of employees from an old Agency to a new Agency.

Definitions

(5)       In this item:

Agency Head has the same meaning as in the Public Service Act 1999.

new Agency means:

                     (a)  Fair Work Australia; or

                     (b)  the Office of the Fair Work Ombudsman.

new employee , in a new Agency, means an employee who was not moved to the new Agency from an old Agency as mentioned in paragraph (1)(a).

old Agency means:

                     (a)  the Australian Industrial Registry; or

                     (b)  the AFPC Secretariat; or

                     (c)  the Workplace Authority; or

                     (d)  the Office of the Workplace Ombudsman.

[transferred employees]

(81)   Schedule 18, page 213 (after line 8), after item 21, insert:

21A  Paragraph 575(2)(d)

Omit “4”, substitute “3”.

[Minimum Wage Panel

(82)   Schedule 18, page 213, after proposed item 21A, insert:

21B  Paragraph 622(2)(a)

Omit “3”, substitute “2”.

[Minimum Wage Panel

(83)   Schedule 18, page 213, after proposed item 21B, insert:

21C  Before section 630

Insert:

629A   Status of the President

                   The President has the same status as a Judge of the Federal Court.

[Fair Work Australia]

(84)   Schedule 18, page 213, after proposed item 21C, insert:

21D  Subparagraph 654(2)(a)(i)

Omit “that is made under this Act”.

21E  Subparagraph 654(2)(a)(ii)

Omit “that is made or given to FWA under this Act”, substitute “given or made to FWA”.

21F  Paragraph 654(2)(b)

Omit “made under this Act and is”.

[Fair Work Australia]

(85)   Schedule 18, page 213 (after line 8), after proposed item 21F, insert:

21G  After section 796

Insert:

796A   Regulations conferring functions

                   The regulations may confer functions on the following:

                     (a)  FWA;

                     (b)  the General Manager.

[additional functions]

(86)   Schedule 20, items 2 to 4, page 215 (line 19) to page 216 (line 13), omit the items, substitute:

2  General modifications of references to the Australian Industrial Relations Commission etc.

(1)       Continued Schedule 6 applies as if:

                     (a)  a reference in that Schedule to the Australian Industrial Relations Commission (or the Commission) were a reference to FWA; and

                     (b)  without limiting paragraph (a)—a reference in that Schedule to a member of the Commission (or a Commissioner) were a reference to an FWA member; and

                     (c)  a reference in that Schedule to the President were a reference to the President of FWA; and

                     (d)  a reference in that Schedule to a Presidential Member were a reference to the President, or a Deputy President, of FWA; and

                     (e)  a reference in that Schedule to a Full Bench were a reference to a Full Bench of FWA; and

                      (f)  a reference in that Schedule to a Registrar or the Industrial Registrar were a reference to the General Manager of FWA; and

                     (g)  from the time when FWA completes its first annual wage review:

                              (i)  a reference in that Schedule to the AFPC were a reference to FWA; and

                             (ii)  without limiting subparagraph (i)—a reference in that Schedule to wage-setting decisions of the AFPC were a reference to determinations made by FWA in annual wage reviews; and

                     (h)  a reference in that Schedule to the Rules of the Commission were a reference to the procedural rules of FWA; and

                      (i)  a reference to “this Act” (being the WR Act) in any of the following provisions of that Schedule were a reference to “this Act” as defined in section 12 of the FW Act:

                              (i)  subclause 14(2);

                             (ii)  paragraph 44(2)(a);

                            (iii)  clause 70;

                            (iv)  clause 108.

(2)       Subitem (1) has effect unless the context otherwise requires and subject to the regulations.

Note:       For example, paragraph (1)(a) does not apply if the reference is to something that the Australian Industrial Relations Commission did before the WR Act repeal day (or before the reform commencement).

3  Modifications relating to how FWA is to perform functions under continued Schedule 6

(1)       Section 578 of the FW Act applies to the performance of FWA’s functions under continued Schedule 6 as if the reference in paragraph 578(a) to “the objects of this Act, and any objects of the part of the Act” were a reference to the objects of continued Schedule 6.

(2)       Sections 589 to 597 of the FW Act do not apply to the performance of FWA’s functions under this Schedule.

4  Modifications relating to transmission of business

Continued Schedule 6 applies as if:

                     (a)  the reference to clause 72M in:

                              (i)  the note to subclause 72J(2); and

                             (ii)  note 1 to subclauses 72K(1), (2) and (3);

                            were a reference to item 15 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ; and

                     (b)  clause 72M were omitted; and

                     (c)  Division 5 of Part 6A were omitted.

5  Modifications relating to general protections

(1)       Continued Schedule 6 applies as if the reference in clause 19 to Part 16 were a reference to Part 3-1 of the FW Act.

(2)       Continued Schedule 6 applies as if clause 107A were omitted.

6  Modifications relating to meaning of industrial action

Clause 3 of continued Schedule 6 has effect as if:

                     (a)  note 2 to subclause 3(1) were worded as follows: “In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited , PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.”; and

                     (b)  the words in brackets at the end of subclause 3(3) were omitted; and

                     (c)  subclause 3(4), and note 1 to subclause 3(1), were omitted.

7  Modifications relating to secret ballots

(1)       The new ballots compliance provisions (see subitem (2)) apply in relation to a secret ballot ordered by FWA under continued Schedule 6 as if:

                     (a)  the order were a protected action ballot order; and

                     (b)  the ballot were a protected action ballot.

(2)       The new ballots compliance provisions are:

                     (a)  Subdivision E of Division 8 of Part 3-3 of the FW Act; and

                     (b)  Part 4-1 of the FW Act; and

                     (c)  Division 9 of Part 5-1 of the FW Act.

8  Modifications relating to right of entry

(1)       Continued Schedule 6 applies as if clause 105 were omitted.

(2)       Part 3-4 of the FW Act applies in relation to a continuing Schedule 6 instrument as if:

                     (a)  a reference in that Part to a fair work instrument were a reference to a continuing Schedule 6 instrument; and

                     (b)  Division 3 of Part 3-4 were omitted.

9  Modifications relating to employee records etc.

Continued Schedule 6 applies as if the reference in clause 107C to section 836 of the WR Act were a reference to sections 535 and 536 of the FW Act.

10  Modifications relating to compliance

Continued Schedule 6 applies as if clauses 106 and 107 were omitted.

Note 1:    For the obligation to comply with continuing Schedule 6 instruments, see item 15 of Schedule 16.

Note 2:    For the role of Fair Work Ombudsman and Inspectors in relation to continuing Schedule 6 instruments, see item 14 of Schedule 18.

11  Regulations may deal with other matters

The regulations may deal with other matters relating to how the FW Act applies in relation to continuing Schedule 6 instruments.

[modifications of continued Schedule 6]

(87)   Schedule  22 , page 219 (after line 15) , after item  11 , insert:

11A  Section 6 of Schedule 1 (definition of constitutional trade or commerce )

Repeal the definition.

[meanings of federal system employee and federal system employer]

(88)   Schedule  22 , page 219 (after line 28) , after item  14 , insert:

14A  Section 6 of Schedule 1 (definition of designated Commonwealth authority )

Repeal the definition.

14B  Section 6 of Schedule 1 (definition of employee )

Repeal the definition, substitute:

employee has its ordinary meaning, and includes a person who is usually such an employee, but does not include a person on a vocational placement.

14C  Section 6 of Schedule 1 (definition of employer )

Repeal the definition, substitute:

employer has its ordinary meaning, and includes:

                     (a)  a person who is usually such an employer; and

                     (b)  an unincorporated club.

[meanings of federal system employee and federal system employer; meanings of employee and employer]

(89)   Schedule  22 , page 220 (after line 7) , after item  16 , insert:

16A  Section 6 of Schedule 1 (paragraphs (a) and (b) of the definition of federal system employee )

Repeal the paragraphs, substitute:

                     (a)  a national system employee within the meaning of section 13 of the Fair Work Act; or

16B  Section 6 of Schedule 1 (paragraph (c) of the definition of federal system employee )

Omit “either or both of the ways mentioned in paragraphs (a) and (b)”, substitute “the way mentioned in paragraph (a)”.

16C  Section 6 of Schedule 1 (definition of federal system employer )

Repeal the definition, substitute:

federal system employer means a national system employer within the meaning of section 14 of the Fair Work Act.

16D  Section 6 of Schedule 1 (definition of flight crew officer )

Repeal the definition.

[meanings of federal system employee and federal system employer]

(90)   Schedule  22 , page 220 (after line 26) , after item  22 , insert:

22A  Section 6 of Schedule 1 (definition of maritime employee )

Repeal the definition.

[meanings of federal system employee and federal system employer]

(91)   Schedule  22 , page 222 (after line 1) , after item 3 2 , insert:

32A  Section 6 of Schedule 1 (definition of waterside worker )

Repeal the definition.

[meanings of federal system employee and federal system employer]

(92)   Schedule  22 , page 222 (after line 12) , after item  37 , insert:

37A  Subparagraph 18C(3)(c)(i) of Schedule 1

Omit “either or both of the ways mentioned in paragraphs (a) and (b)”, substitute “the way mentioned in paragraph (a)”.

[meanings of federal system employee and federal system employer]

(93)   Schedule  22 , page 222, after proposed item  37A , insert:

37B  Paragraph 18D(1)(a) of Schedule 1

Omit “paragraphs (a) to (g) of the definition of federal system employer in section 6”, substitute “paragraphs (a) to (f) of the definition of national system employer in section 14 of the Fair Work Act”.

37C  Paragraph 18D(3)(a) of Schedule 1

Omit “ federal system employer in section 6”, substitute “ national system employer in section 14 of the Fair Work Act”.

37D  Paragraph 18D(3A)(a) of Schedule 1

Omit “paragraph (b) or (c)”, substitute “paragraph (c)”.

[meanings of federal system employee and federal system employer]

(94)   Schedule  22 , page 222 (before line 13) , before item  38 , insert:

37E  After section 26 of Schedule 1

Insert:

26A   Validation of registration

                   If:

                     (a)  an association was purportedly registered as an organisation under this Act before the commencement of this section; and

                     (b)  the association’s purported registration would, but for this section, have been invalid merely because, at any time, the association’s rules did not have the effect of terminating the membership of, or precluding from membership, persons who were persons of a particular kind or kinds;

that registration is taken, for all purposes, to be valid and to have always been valid.

[validation of registration]

(95)   Schedule  22 , page 222 (after line 24) , after item  40 , insert:

40A  After section 171 of Schedule 1

Insert:

171A   Cessation of membership if member is not an employee etc.

             (1)  If a person is a member of an organisation and the person is not, or is no longer:

                     (a)  if the organisation is an association of employers—a person of a kind mentioned in paragraph 18A(3)(a), (b), (c) or (d); or

                     (b)  if the organisation is an association of employees—a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or

                     (c)  if the organisation is an enterprise association—a person of a kind mentioned in paragraph 18C(3)(a), (b), (c) or (d);

the person’s membership of the organisation immediately ceases.

             (2)  Subsection (1) has effect despite anything in the rules of the organisation.

[cessation of membership]

(96)   Schedule  22 , page 222 (before line 25) , before item  41 , insert:

40B  Paragraph 230(2)(b) of Schedule 1

After “under”, insert “section 171A, or under”.

[cessation of membership]

(97)   Schedule 22, item 49, page 225 (line 10), after “employee”, insert “, or who is in a class of employees prescribed by the regulations”.

[delegation by General Manager]

(98)   Schedule  22 , page 226 (after line 5) , after item  50 , insert:

50A  After section 353 of Schedule 1

Insert:

353A   Representation in proceedings in the Fair Work Division of the Federal Court and Federal Magistrates Court

             (1)  This section applies in relation to a proceeding in the Fair Work Division of the Federal Court, or of the Federal Magistrates Court, other than:

                     (a)  a proceeding in relation to an appeal under section 565 of the Fair Work Act; or

                     (b)  a proceeding in relation to an offence against a law of the Commonwealth.

             (2)  Subject to subsection (4), a party to the proceeding that is an organisation may be represented by:

                     (a)  a member, officer or employee of the organisation; or

                     (b)  a member, officer or employee of a peak council to which the organisation is affiliated.

             (3)  Subject to subsection (4), a party to the proceeding that is not an organisation may be represented by:

                     (a)  a member, officer or employee of an organisation of which the party is a member; or

                     (b)  a member, officer or employee of a peak council to which an organisation of which the party is a member is affiliated.

             (4)  If the proceeding is a proceeding in relation to a question of law referred to the Federal Court under section 608 of the Fair Work Act, a party to the proceeding may only be represented as permitted by subsection (2) or (3) if the Court grants leave.

             (5)  In this section:

party includes an intervener.

[representation in court proceedings]

(99)   Schedule  22 , item  55 , page 227 (lines 9 to 20) , omit the item, substitute:

55  Section 6 of Schedule 1

Insert:

federal counterpart has the meaning given by section 9A.

[federal counterpart]

(100) Schedule  22 , page 228 (after line 3) , after item  58 , insert:

58A  After section 9 of Schedule 1

Insert:

9A   Meaning of federal counterpart

             (1)  For the purposes of this Act, a federal counterpart for a particular association of employers or employees registered under a State or Territory industrial law is an organisation prescribed by the regulations to be a federal counterpart of that association.

             (2)  For the purposes of this Act, if subsection (1) does not apply in relation to a particular association of employers or employees registered under a State or Territory industrial law, a federal counterpart for the association is:

                     (a)  an organisation that has a branch (including a division of such a branch or a constituent part of such a branch) in that State or Territory that has or purports to have:

                              (i)  substantially the same eligibility rules as the association; and

                             (ii)  a history of integrated operation with the association; or

                     (b)  if paragraph (a) does not apply—an organisation of which the association has purported to function as a branch (including a division of a branch or a constituent part of a branch).

[federal counterpart]

(101) Schedule  22 , page 232 (after line 1) , after item 79, insert:

79A  Clause 6 of Schedule 10

Before “The”, insert “(1)”.

[extending the recognition period]

(102) Schedule  22 , item  82 , page 232 (lines 8 to 13) , omit the item, substitute:

82  Subparagraphs 6(c)(i) and (ii) of Schedule 10

Repeal the subparagraphs, substitute:

                              (i)  unless subparagraph (ii) or (iii) applies—the fifth anniversary of the commencement of Part 2 of Schedule 22 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ; or

                             (ii)  if FWA grants the association an extension under subclause (2) of this clause and subparagraph (iii) does not apply—the sixth anniversary of that commencement; or

                            (iii)  if FWA grants the association a further extension under subclause (3) of this clause—the seventh anniversary of that commencement.

82A  At the end of clause 6 of Schedule 10

Add:

             (2)  FWA may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(c)(ii) if FWA is satisfied that the association has made progress towards:

                     (a)  becoming an organisation; or

                     (b)  rationalising its internal affairs with those of its federal counterpart.

             (3)  FWA may, on application by a transitionally recognised association, grant the association a further extension for the purposes of subparagraph (1)(c)(iii) if FWA is satisfied that:

                     (a)  the association has made further progress towards:

                              (i)  becoming an organisation; or

                             (ii)  rationalising its internal affairs with those of its federal counterpart; and

                     (b)  there are extenuating circumstances justifying the further extension.

[extending the recognition period]

(103) Schedule 22, item 89, page 238 (line 13), after “dispute”, insert “(including a threatened, impending or probable dispute)”.

[representation orders]

(104) Schedule  22 , item  96 , page 242 (lines 20 to 22) , omit the item.

[technical correction]

(105) Schedule  22 , items  102 and 103 , page 243 (lines 10 to 15) , omit the items.

[meanings of federal system employee and federal system employer]

(106) Schedule  22 , item  187 , page 251 (lines 10 to 12) , omit the item.

[meanings of federal system employee and federal system employer]

(107) Schedule  22 , items  189 and 190 , page 251 (lines 16 to 21) , omit the items.

[meanings of federal system employee and federal system employer]

(108) Schedule  22 , items  193 and 194 , page 252 (lines 1 to 7) , omit the items, substitute:

193  Section 6 of Schedule 1 (definition of State-registered association )

Omit “Schedule 10 to the Workplace Relations Act”, substitute “Schedule 1”.

194  Section 6 of Schedule 1 (definition of vocational placement )

Omit “the Workplace Relations Act”, substitute “the Fair Work Act”.

[technical correction; meanings of federal system employee and federal system employer]

(109) Schedule  22 , item 627, page 296 (lines 6 to 10) , omit the item, substitute:

627  Transitionally registered associations

For the purposes of the Fair Work (Registered Organisations) Act 2009 , an association that, immediately before the commencement of this item, was a transitionally registered association is taken, on that commencement, to be a transitionally recognised association.

[technical correction]

(110) Page 296 (after line 10) , at the end of the Bill, add:

Schedule 23 Other amendments of the FW Act

   

Fair Work Act 2009

1  At the end of section 3

Add:

             ; and (g)  acknowledging the special circumstances of small and medium-sized businesses.

2  Section 12 (definition of civil remedy provision )

Omit “subsection 539(1)”, substitute “subsections 539(1) and (3)”.

3  Section 63

Before “A”, insert “(1)”.

4  Section 63 (note)

Repeal the note, substitute:

             (2)  The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).

Note:          Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).

5  Section 64

Before “An”, insert “(1)”.

6  Section 64 (note)

Repeal the note, substitute:

             (2)  The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).

Note:          Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with an agreed averaging arrangement (whether the arrangement complies with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging arrangement will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).

7  At the end of subsection 140(1)

Add:

Note:          A person who is an employer may also be an outworker entity (see the definition of outworker entity in section 12).

8  Subsection 312(2)

Repeal the subsection (not including the heading), substitute:

             (2)  Each of the following is a named employer award :

                     (a)  a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;

                     (b)  a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).

Note:          Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise.

9  Part 2-9 (heading)

Repeal the heading, substitute:

Part 2-9—Other terms and conditions of employment

10  Paragraph 411(c)

Omit “; and”, substitute “.”.

11  Paragraph 411(d)

Repeal the paragraph.

12  At the end of Subdivision C of Division 2 of Part 3-3 of Chapter 3

Add:

416A   Employer response action does not affect continuity of employment

                   Employer response action for a proposed enterprise agreement does not affect the continuity of employment of the employees who will be covered by the agreement, for such purposes as are prescribed by the regulations.

13  Subsection 539(2) (cell at table item 2, column headed “Civil remedy provision”)

Repeal the cell, substitute:

45 (other than in relation to a contravention or proposed contravention of an outworker term)

14  Subsection 539(2) (cell at table item 3, column headed “Civil remedy provision”)

Repeal the cell, substitute:

45 (in relation to a contravention or proposed contravention of an outworker term)

15  Subsection 539(2) (cell at table item 4, column headed “Civil remedy provision”)

Repeal the cell, substitute:

50 (other than in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award)

16  Subsection 539(2) (after table item 4)

Insert:

5

50 (in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

17  At the end of section 539

Add:

             (3)  The regulations may provide that a provision set out in the regulations is a civil remedy provision .

             (4)  If the regulations make provision as mentioned in subsection (3):

                     (a)  the regulations must set out:

                              (i)  the persons who would be referred to in column 2; and

                             (ii)  the courts that would be referred to in column 3; and

                            (iii)  the maximum penalty that would be referred to in column 4;

                            of the table in subsection (2) if there were an item for the civil remedy provision in the table; and

                     (b)  this Part has effect as if the matters referred to subparagraphs (a)(i) to (iii) were set out in such an item in the table.

Note:          See section 798 for limits on the penalties that may be set out in the regulations.

18  Subsection 540(2)

Omit “(other than an outworker term)”.

19  Subsection 540(3)

Omit “to items 4, 7 and 14 in the table in subsection 539(2).”, substitute:

                   to:

                     (a)  items 4, 7 and 14 in the table in subsection 539(2); or

                     (b)  a contravention or proposed contravention of:

                              (i)  an outworker term in a modern award; or

                             (ii)  a term in an enterprise agreement that would be an outworker term if it were included in a modern award.

20  Subsection 540(4)

Omit all the words after “proposed contravention”, substitute:

                   of:

                     (a)  an outworker term in a modern award; or

                     (b)  a term in an enterprise agreement that would be an outworker term if it were included in a modern award;

only if the employee organisation is entitled to represent the industrial interests of an outworker to whom the term relates.

21  Subsection 558(2)

Omit “referred to in the relevant item in column 4 of the table in subsection 539(2) for contravening”, substitute “that a court could have ordered the person to pay under section 546 if the court was satisfied that the person had contravened”.

22  Subsections 799(3) and (4)

Repeal the subsections.

Note:       The heading to subsection 799(3) is deleted.

[other amendments of the FW Act]