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Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009

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5817

2008-2009

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009

 

 

(1)     Schedule 3, item 23, page 34 (lines 5 to 11), omit subitem (1) and note 1, substitute:

(1)       Where a transitional instrument deals with a matter that is dealt with under the National Employment Standards, the transitional instrument is of no effect to the extent that the overall entitlements of the transitional instrument in relation to the matter are detrimental to the employee when compared to the overall entitlements of the National Employment Standards in relation to the matter.

[no detriment rule]

(2)     Schedule 3, item 23, page 34 (line 23), omit “in any respect”.

[no detriment rule]

(3)     Schedule 5, item 2, page 58 (line 23), after “employment”, insert “, on business profitability”.

[Part 10A award modernisation process]

(4)     Schedule 5, page 66 (after line 11), at the end of the Schedule, add:

Part 4—Relief from increased labour costs

14  Part 10A award modernisation process is not intended to result in an increase in labour costs

(1)       The Part 10A award modernisation process is not intended to result in an increase in labour costs for employers.

(2)       An employer’s labour costs in respect of an employee or outworker is the actual cost to the employer to employ the employee or engage the outworker:

                     (a)  including wages and incentive-based payments, and additional amounts such as allowances and overtime; and

                     (b)  disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.

Note:       Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.

(3)       An employer suffers a modernisation-related increase in labour costs in respect to any employee or outworker if, and only if:

                     (a)  a modern award made in the Part 10A award modernisation process starts to apply to the employer when the award comes into operation; and

                     (b)  the employer’s labour costs are higher after the modern award comes into operation than the employer’s labour costs were immediately before the modern award came into operation; and

                     (c)  the increase in labour costs is attributable to the Part 10A award modernisation process.

15  Orders remedying an increase in labour costs

(1)       If FWA is satisfied that an employer, or a class of employers, to whom a modern award applies has suffered a modernisation-related increase in labour costs, FWA may make an order ( a relief from increased labour costs order ) varying particular terms of the modern award as they relate to the employer or the class of employers that FWA considers appropriate to remedy the situation.

(2)       FWA may make a relief from increased labour costs order on application by:

                     (a)  an employer who has suffered a modernisation-related increase in labour costs; or

                     (b)  an organisation that is entitled to represent the industrial interests of such employer.

(3)       FWA must not make a relief from increased labour costs order in relation to an employer or a class of employers if:

                     (a)  FWA considers that the modernisation-related increase in labour costs is minor or insignificant; or

                     (b)  FWA is satisfied that the employer or employers have been adequately compensated in other ways for the increase, such as through increased productivity or flexibility.

(4)       FWA must ensure that a relief from increased labour costs order is expressed so that it does not apply to an employer unless the employer has actually suffered a modernisation-related increase in labour costs.

16  Relief from increased labour costs order continues to have effect as long as modern award continues to cover the employer or employers

A relief from increased labour costs order in relation to an employer or a class of employers to whom a particular modern award applies continues to have effect (subject to the terms of the order) for so long as the modern award continues to cover the employer or employers, even if it stops applying to the employer or employers because an enterprise agreement starts to apply.

17  Inconsistency with modern awards and enterprise agreements

A term of a modern award or an enterprise agreement has no effect in relation to an employer to the extent that it is less beneficial to the employer than a term of a relief from increased labour costs order that applies to the employer.

18  Application of provisions of FW Act to relief from increased labour costs orders

The FW Act applies as if the following provisions of that Act included a reference to a relief from increased labour costs order:

                     (a)  subsection 675(2);

                     (b)  subsection 706(2).

[increased labour costs]

(5)     Schedule 5, page 66 (after line 11), at the end of the Schedule, add:

Part 5—Factors requiring award modernisation request

Workplace Relations Act 1996

19  After section 576C

Insert:

576CA  Minister must make award modernisation request

             (1)  If the Minister has made or varied an award modernisation request to accommodate one industry based on any of the factors set out in subsection (2), the Minister must also make or vary an award modernisation request ordering the Commission to create a modern award to accommodate every other industry in which any of those factors exist.

             (2)  The factors are:

                     (a)  the potential for the modern award to impact upon continuing business viability;

                     (b)  low profit margins;

                     (c)  peak operating times;

                     (d)  limited capacity to bear significant cost increases;

                     (e)  different business models and streams of revenue from other activities;

                      (f)  the labour-intensive nature of the industry;

                     (g)  high labour costs as a proportion of total expenses;

                     (h)  high award reliance.

[factors requiring Minister to make award modernisation request]

(6)     Schedule 5, page 66 (after line 11), at the end of the Schedule, add:

Part 6—Superannuation

Fair Work Act 2009

20  At the end of paragraph 139(1)(i)

Add “but ensuring that employers can nominate any complying superannuation fund as the default fund”.

Workplace Relations Act 1996

21  At the end of paragraph 576J(1)(i)

Add “but ensuring that employers can nominate any complying superannuation fund as the default fund”.

[default superannuation funds]

(7)     Schedule 5, page 66 (after line 11), at the end of the Schedule, add:

Part 7—State-based differences

Workplace Relations Act 1996

22  Section 576T

Repeal the section, substitute:

576T  Terms that contain State-based differences

             (1)  For a period of 5 years starting on the day on which a modern award commences, the award is to reflect the State and Territory differences in previously existing awards.

             (2)  If, at the end of the period of 5 years starting on the day on which a modern award commences, the modern award includes terms and conditions of employment that:

                     (a)  are determined by reference to State or Territory boundaries; or

                     (b)  do not have effect in each State and Territory;

those terms and conditions cease to have effect at the end of that period.

             (3)  The Commission may reduce the 5 year period referred to in subsection (1) only if it is satisfied that it is appropriate to do so, having regard to:

                     (a)  the views of the sector which the modern award is intended to cover; and

                     (b)  the impact on employment within the sector which the modern award is intended to cover.

[State-based differences in modern awards]

(8)     Schedule 22, page 257 (after line 15), at the end of section 137A, add:

Application of right of entry penalties to employers

             (8)  An employer who refuses entry to an employee organisation on the grounds of seeking an order or interim order under this section, and acts expeditiously and in good faith in seeking that order, is not subject to right of entry penalties under Part 3-4 of this Act.

[protection for employers in demarcation disputes]

(9)     Schedule 22, page 257 (after line 32), after paragraph 137B(1)(e), insert:

                    (ea)  the views of the employer; and

[employer’s views in demarcation disputes]

(10)   Schedule 22, page 257 (after line 33), after subsection137B(1), insert:

          (1A)  For the purposes of paragraph (1)(d), any agreement or understanding includes prior judicial and administrative decisions under previous legislation or involving related or predecessor employee organisations.

[legal history of demarcation disputes]