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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

 

THE SENATE

 

 

 

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009

 

 

(1)     Clause 2, page 2 (table item 9, column 1), omit “and 2”, substitute “to 2E”.

[meanings of service and continuous service]

(2)     Clause 2, page 2 (after table item 13), insert:

13A.  Schedule 23, items 9A and 9B

Immediately after the commencement of Part 3-1 of the Fair Work Act 2009 .

 

[termination of employment]

(3)     Clause 2, page 2 (after table item 15), insert:

15A.  Schedule 23, item 21A

Immediately after the commencement of Part 6-1 of the Fair Work Act 2009 .

 

15B.  Schedule 23, items 21B and 21C

Immediately after the commencement of Part 6-4 of the Fair Work Act 2009 .

 

[multiple actions; termination of employment]

(4)     Page 165 (before line 1) , before Schedule  13 , insert:

Schedule 12A Unfair dismissal

   

1  Meanings of employee and employer

In this Schedule, employee and employer have their ordinary meanings.

2  Meaning of small business employer , for unfair dismissal purposes, prior to 1 January 2011

(1)       For the purposes of the application of Part 3-2 of the FW Act in relation to the dismissal of a person before 1 January 2011, a national system employer is a small business employer if, and only if, the employer’s number of full-time equivalent employees, worked out under this item, is less than 15 at the earlier of the following times (the notice or dismissal time ):

                     (a)  the time when the person is given notice of the dismissal;

                     (b)  immediately before the dismissal.

(2)       The employer’s number of full-time equivalent employees at the notice or dismissal time is worked out as follows:

Method statement

Step 1.   For each person who was an employee of the employer at any time during the period of 4 weeks immediately preceding the day on which the notice or dismissal time occurs, work out the number of ordinary hours (including parts of hours) of the person as the employer’s employee during the period.

                   Note:             Subitem (3) sets out what are a person’s ordinary hours.

Step 2.   If, during the period, the person took leave to which subitem (4) applies, work out the number of hours of leave to which that subitem applies that the person took during the period.

Step 3.    Add together all of the numbers of ordinary hours worked out under step 1, and subtract all of the number of hours of leave worked out under step 2.

Step 4.    Divide by 152 the number worked out under step 3. The result is the employer’s number of full-time equivalent employees at the notice or dismissal time.

                   Note:             The number 152 is based on the maximum number of hours that a full-time employee would work in 4 weeks (being 38 hours per week) excluding reasonable additional hours.

(3)       For the purposes of step 1 of the method statement in subitem (2), the ordinary hours of work of a person as the employer’s employee are:

                     (a)  to the extent that a modern award, enterprise agreement or workplace determination applied to the person, and the person was not a casual employee—the ordinary hours of work specified or provided for in that award, agreement or determination; or

                     (b)  to the extent that a transitional instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 33 of Schedule 3; or

                     (c)  to the extent that:

                              (i)  a State industrial instrument applied to the person as a non-national system employee; and

                             (ii)  the instrument specified, or provided for the determination of, the person’s ordinary hours of work, and

                            (iii)  the person was not a casual employee;

                            the ordinary hours of work as specified in, or determined in accordance with, that instrument; or

                     (d)  to the extent that no such award, agreement, determination or instrument applied to the person, and the person was not a casual employee:

                              (i)  if the person was a national system employee—the person’s ordinary hours of work under section 20 of the FW Act; or

                             (ii)  if the person was a non-national system employee—what would have been the person’s ordinary hours of work under that section if the person had been a national system employee; or

                     (e)  to the extent that the person was a casual employee—the lesser of:

                              (i)  152 hours; and

                             (ii)  the number of hours actually worked by the person.

(4)       This subitem applies to leave, whether paid or unpaid, that the person took if:

                     (a)  the person was entitled to the leave in connection with:

                              (i)  the birth of a child of the person or the person’s spouse or de facto partner; or

                             (ii)  the placement of a child with the person for adoption; and

                     (b)  the duration of the period of leave has been at least 4 weeks;

            whether or not the person took any other kind of paid leave while taking that leave.

(5)       For the purposes of this item, a national system employer and the employer’s associated entities are taken to be one entity.

(6)       This item has effect despite section 23 of the FW Act.

[unfair dismissal]

(5)     Schedule 13, item 13, page 172 (line 16), omit “item 15”, substitute “items 14A and 15”.

[protected action ballot orders]

(6)     Schedule 13, page 172 (after line 27), after item 14, insert:

14A   FWA may order that industrial action is taken to be authorised by a protected action ballot

             (1)  A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.

             (2)  The application must be made within 28 days after the WR Act repeal day.

             (3)  FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:

                     (a)  on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and

                     (b)  all such industrial action organised or engaged in by the person was:

                              (i)  authorised by a protected action ballot under section 478 of the WR Act; and

                             (ii)  protected action within the meaning of the WR Act; and

                     (c)  the person did not first organise or engage in such industrial action on or after the WR Act repeal day; and

                     (d)  no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and

                     (e)  the proposed enterprise agreement will cover those employees; and

                      (f)  the person is genuinely trying to reach agreement in relation to the proposed enterprise agreement; and

                     (g)  it is reasonable in all the circumstances to make the order.

             (4)  Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:

                     (a)  will be covered by the proposed enterprise agreement; and

                     (b)  were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.

             (5)  For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.

[protected action ballot orders]

(7)     Schedule  22 , page 246 (after line 28) , after item  62 , insert:

62A  Subsection 158(1) of Schedule 1

Repeal the subsection, substitute:

             (1)  A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

                     (a)  in the case of a change in the name of the organisation—FWA consents to the change under this section; or

                     (b)  in the case of an alteration of the eligibility rules of the organisation:

                              (i)  FWA consents to the alteration under this section; or

                             (ii)  the General Manager consents to the alteration under section 158A.

[altering eligibility rules]

(8)     Schedule  22 , item  63 , page 246 (line 29) to page 247 (line 24) , to be opposed .

[altering eligibility rules]

(9)     Schedule  22 , page 247 (before line 25) , before item  64 , insert:

63A  After section 158 of Schedule 1

Insert:

158A   Alteration of eligibility rules of organisation by General Manager

             (1)  The General Manager must, on application by an organisation in accordance with subsection (2), consent to an alteration of the eligibility rules of the organisation to extend them to apply to persons within the eligibility rules of an association of employers or employees that is registered under a State or Territory industrial law, if the General Manager is satisfied:

                     (a)  that the alteration has been made under the rules of the organisation; and

                     (b)  that the organisation is a federal counterpart of the association; and

                     (c)  that the alteration will not extend the eligibility rules of the organisation beyond those of the association; and

                     (d)  that the alteration will not apply outside the limits of the State or Territory for which the association is registered; and

                     (e)  as to such other matters (if any) as are prescribed by the regulations.

Note:          If the General Manager consents to the alteration, FWA may make orders that reflect State representation orders (see section 137F).

             (2)  The application must not be made before 1 January 2011, or such later day as the Minister declares in writing.

             (3)  A declaration made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.

             (4)  If the General Manager consents, under subsection (1), to an alteration, the alteration takes effect on:

                     (a)  if a day is specified in the consent—that day; or

                     (b)  in any other case—the day of the consent.

[altering eligibility rules]

(10)   Schedule  22 , item  82 , page 249 (lines 18 to 21) , omit subparagraph 6 ( c )( i ), substitute:

                              (i)  unless subparagraph (ii) or (iii) applies—the fifth anniversary of the earliest day on which an organisation can make an application in accordance with subsection 158A(2); or

[extending the recognition period]

(11)   Schedule  22 , item  82 , page 249 (line 25) , omit “ commencement ”, substitute “day”.

[extending the recognition period]

(12)   Schedule  22 , item  82 , page 249 (line 28) , omit “ commencement ”, substitute “day”.

[extending the recognition period]

(13)   Schedule 22, item 89, page 257 (line 23), omit “employee organisations”, substitute “organisations of employees”.

[technical correction]

(14)   Schedule  22 , item  89 , page 258 (after line 12) , at the end of section  137B , add:

             (3)  If:

                     (a)  the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and

                     (b)  because of the alteration, members of an association of employees registered under a State or Territory industrial law have become eligible for membership of the organisation;

a reference in this section to the organisation includes a reference to the association referred to in paragraph (b) of this subsection.

[deciding whether to make representation orders]

(15)   Schedule  22 , item  89 , page 258 (after line 30) , after the heading to Part  4 , insert:

137F   FWA may make orders reflecting State representation orders

             (1)  If:

                     (a)  the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and

                     (b)  because of the alteration, members of an association of employees that is registered under a State or Territory industrial law (a State registered association ) have become eligible for membership of the organisation; and

                     (c)  immediately before the alteration took effect, an order (a State representation order ) was in force that:

                              (i)  was made by a State industrial authority in relation to the State registered association; and

                             (ii)  was an order of the same kind as, or of a similar kind to, an order that FWA could make under this Chapter in relation to an organisation;

FWA may, on application by the organisation or by a party to the State representation order, make an order in relation to the organisation that is to the same effect, or substantially the same effect, as the State representation order.

             (2)  The order under subsection (1) applies to each organisation that is:

                     (a)  a federal counterpart of the State registered association; or

                     (b)  a federal counterpart of any other association of employees:

                              (i)  that is registered under a State or Territory industrial law; and

                             (ii)  to which the State representation order applied.

[State representation orders]

( 16 )   Schedule  22 , item  353 , page 285 (lines 24 and 25) , to be opposed .

[altering eligibility rules]

( 17 )   Schedule  22 , page 286 (after line 9) , after item  359 , insert:

359A  Subsection 158(5) of Schedule 1

Omit “the Commission” (wherever occurring), substitute “FWA”.

[altering eligibility rules]

(18)   Schedule 23 , page 315 (after line 10), after item 2, insert :

2A  At the end of subsection 22(2)

Add:

                   ; (c)  any other period of a kind prescribed by the regulations.

2B  After subsection 22(3)

Insert:

          (3A)  Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.

2C  Paragraph 22(4)(a)

Repeal the paragraph, substitute:

                     (a)  a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:

                              (i)  any period of unauthorised absence; or

                             (ii)  any other period of a kind prescribed by the regulations; and

2D  Paragraph 22(4)(b)

Omit “of unauthorised absence”, substitute “referred to in subparagraph (a)(i) or (ii)”.

2E  After subsection 22(4)

Insert:

          (4A)  Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.

[meanings of service and continuous service]

(19)   Schedule 23, page 316 (after line 26), after item 9, insert:

9A  At the end of subsection 371(2)

Add “, or within such period as a court allows on an application made during or after those 14 days”.

9B  At the end of section 371

Add:

Note:          In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988 .

[termination of employment]

(20)   Schedule 23, page 319 (after line 29), after item 21, insert:

21A  Paragraph 722(a)

Omit “5 of Part 6-1”, substitute “3 of Part 6-4”.

21B  At the end of subsection 779(2)

Add “, or within such period as a court allows on an application made during or after those 14 days”.

21C  At the end of section 779

Add:

Note:          In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988 .

[multiple actions; termination of employment]