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Fair Work Amendment (State Referrals and Other Measures) Bill 2009

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2008-2009

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Fair Work Amendment (State Referrals and Other Measures) Bill 2009

 

 

(1)     Clause 2, page 3 (table item 10, 1st column), omit “items 1”, substitute “items 1A”.

[transitional pay equity orders]

(2)     Clause 2, page 3 (table item 13, 1st column), omit “Part 1”, substitute “items 1A to 17”.

[eligible State or Territory court; the WR Act award modernisation process]

(3)     Clause 2, page 3 (after table item 13), insert:

13A.  Schedule 3, items 17A to 17E

The day this Act receives the Royal Assent.

 

[the WR Act award modernisation process]

(4)     Schedule 1, page 9 (after line 14), after item 27, insert:

27A  Subsection 30B(1)

After “State has”, insert “, before 1 July 2009,”.

[Division 2A referrals]

(5)     Schedule 2, page 23 (before line 7), before item 1, insert:

1A  Item 2 of Schedule 2

Insert:

affected employee of an employer: see subitem 43(6) of Schedule 3 and subitem 30A(4) of Schedule 3A.

[transitional pay equity orders]

(6)     Schedule 2, page 28 (after line 6), after item 36, insert:

36A  Item 2 of Schedule 2

Insert:

transitional pay equity order : see subitem 43(1) of Schedule 3 and subitem 30A(1) of Schedule 3A.

[transitional pay equity orders]

(7)     Schedule 2, page 31 (after line 25), after item 53, insert:

53A  At the end of Schedule 3

Add:

Part 8—Transitional pay equity order taken to have been made by FWA—Division 2B State reference transitional awards

43  FWA taken to have made a transitional pay equity order to continue the effect of State pay equity orders

(1)       On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order ) under this item.

(2)       The transitional pay equity order applies to an employer if:

                     (a)  a modern award applies to the employer on or after the Division 2B referral commencement; and

                     (b)  the employer is prescribed by the regulations for the purposes of this paragraph, or is included in a class of employers prescribed by the regulations for the purposes of this paragraph; and

                     (c)  immediately before the Division 2B referral commencement, a transitional award (the relevant transitional award ) applied to the employer.

Note:       Transitional award has the same meaning as in Schedule 6 to the WR Act. Schedule 6 is continued in operation by Schedule 20 to this Act.

(3)       An employer must not be prescribed by regulations for the purposes of paragraph (2)(b) unless:

                     (a)  an order, decision or determination of a State industrial body (the source pay equity order ) would have applied to the employer if the relevant transitional award had not applied to the employer; and

                     (b)  the source pay equity order satisfies subitem (4).

(4)       A source pay equity order satisfies this subitem if it:

                     (a)  was made before 15 September 2009; and

                     (b)  provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and

                     (c)  was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and

                     (d)  is prescribed by the regulations for the purposes of this paragraph.

(5)       If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid if the source pay equity order had applied to the employer in respect of the period.

(6)       An employee of an employer to which this item applies is an affected employee of the employer if the employee performs work of a kind, at a classification level (however described), in relation to which the source pay equity order determines a base rate of pay.

(7)       The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.

(8)       A term of a modern award is of no effect to the extent that:

                     (a)  an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and

                     (b)  the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).

(9)       However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (8)(a).

[transitional pay equity orders]

(8)     Schedule 2, item 54, page 40 (after line 30), after subitem 8(2), insert:

(2A)     However, if the term provides for disputes relating to matters arising under the source agreement to be settled by a State industrial body, then, despite anything in the source agreement or a law of the source State:

                     (a)  the State industrial body may settle, or decline to settle, such a dispute; and

                     (b)  FWA may settle such a dispute if the State industrial body:

                              (i)  ceases to exist; or

                             (ii)  declines to settle the dispute.

[disputes arising under Division 2B State employment agreements]

(9)     Schedule 2, item 54, page 54 (after line 2), after Division 1, insert:

Division 1A—Transitional pay equity order taken to have been made by FWA—Division 2B State awards

30A  FWA taken to have made a transitional pay equity order to continue the effect of State pay equity orders

(1)       On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order ) under this item.

(2)       The transitional pay equity order applies to an employer if:

                     (a)  a Division 2B State award that applies to the employer terminates at a time (the termination time ) after the Division 2B referral commencement; and

                     (b)  the base rate of pay payable immediately before the termination time to some or all of the employees to whom the Division 2B State award applied was determined in whole or part by, or in accordance with, an order, decision or determination (the source pay equity order ) of a State industrial body that:

                              (i)  was made before 15 September 2009; and

                             (ii)  provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and

                            (iii)  was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and

                     (c)  immediately after the termination time, a modern award applies to the employer.

Note:       After the Division 2B referral commencement, a source pay equity order may have effect either because of subitem 3(3) of this Schedule, or because the terms of the source pay equity order had been incorporated in the source award from which the Division 2B State award was derived.

(3)       If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid under the Division 2B State award in respect of that period, assuming that:

                     (a)  the Division 2B State award had not terminated; and

                     (b)  the base rate of pay had continued to be determined in whole or part by, or in accordance with, the source pay equity order in respect of that period.

(4)       An employee of an employer to which this item applies is an affected employee of the employer if:

                     (a)  all of the following conditions are satisfied:

                              (i)  the employee was employed by the employer at the termination time;

                             (ii)  the Division 2B State award applied to the employee at the termination time;

                            (iii)  the employee’s base rate of pay under the Division 2B State award was determined in whole or part by, or in accordance with, the source pay equity order at the termination time; or

                     (b)  all of the following conditions are satisfied:

                              (i)  the employee becomes employed by the employer after the termination time;

                             (ii)  a Division 2B State award would have applied to the employee if he or she had been employed by the employer immediately before the termination time;

                            (iii)  the employee’s base rate of pay under the Division 2B State award would have been determined in whole or part by, or in accordance with, the source pay equity order at the termination time.

(5)       The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.

(6)       A term of a modern award is of no effect to the extent that:

                     (a)  an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and

                     (b)  the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).

(7)       However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (6)(a).

[transitional pay equity orders]

(10)   Schedule 2, item 56, page 73 (lines 13 to 18), omit subitem 16(5), substitute:

(5)       If, had an employee’s employment been terminated for redundancy (however described) before the Division 2B referral commencement, a State industrial body could have made an order giving the employee an entitlement to redundancy pay (however described):

                     (a)  the terms and conditions of the employee’s employment referred to in subitem (4) are taken to have provided for an entitlement to redundancy pay; and

                     (b)  paragraph 121(1)(b) of the FW Act does not apply in relation to the employee during the period of 12 months starting on the Division 2B referral commencement.

Note:       Because of paragraph (b), the employee may therefore be entitled to redundancy pay under section 119 of the FW Act if the employee’s employment is terminated during the 12 month period starting on the Division 2B referral commencement, even if the employer is a small business employer.

[entitlement to redundancy pay]

(11)   Schedule 2, page 81 (after line 3), after item 68, insert:

68A  At the end of Schedule 7

Add:

Part 7—Transitional provision about the operation of the better off overall test if a transitional pay equity order applies

28  Operation of better off overall test if a transitional pay equity order applies to employer

(1)       This item applies to an enterprise agreement, or a variation of an enterprise agreement, if:

                     (a)  an application for approval of the agreement or variation has been made under the FW Act; and

                     (b)  FWA must decide whether the agreement, or the agreement as proposed to be varied, passes the better off overall test; and

                     (c)  an employer covered by the agreement, or the agreement as proposed to be varied, is an employer to which a transitional pay equity order applies; and

                     (d)  an employee covered by the agreement, or the agreement as proposed to be varied, is an affected employee of the employer referred to in paragraph (c).

(2)       For the purposes of determining whether the affected employee would be better off overall if the agreement, or the agreement as proposed to be varied, applied to the employee than if the relevant modern award applied to the employee, the base rate of pay payable under the relevant modern award to the employee is taken to be increased so that it is equal to the amount payable to the employee under the transitional pay equity order.

Note:       For the meanings of transitional pay equity order and affected employee , see item 2 of Schedule 2.

[transitional pay equity orders]

(12)   Schedule 2, page 92 (after line 28), after item 110, insert:

110A  After item 7 of Schedule 16

Insert:

7A  Compliance with transitional pay equity orders and orders to continue effect of terms relating to long service leave

(1)       A person must not contravene a term of a transitional pay equity order that applies to the person.

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

(2)       A person must not contravene an order under item 30 of Schedule 3A that continues the effect of terms of a Division 2B State award relating to long service leave.

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

[compliance]

(13)   Schedule 2, page 95 (before line 1), before item 117, insert:

116A  Subitem 16(1) of Schedule 16 (after table item 48)

Insert:

48A

7A(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

48B

7A(2)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

[compliance]

(14)   Schedule 3, page 100 (before line 4), before item 1, insert:

1A  Section 12 (after paragraph (c) of the definition of eligible State or Territory court )

Insert:

                    (ca)  the Industrial Court of New South Wales;

[eligible State or Territory court]

(15)   Schedule 3, item 4, page 102 (lines 16 and 17), omit “referring State”, substitute “State that is a referring State as defined in section 30B or 30L”.

[referring State]

(16)   Schedule 3, item 5, page 102 (lines 26 and 27), omit “referring State”, substitute “State that is a referring State as defined in section 30B or 30L”.

[referring State]

(17)   Schedule 3, item 6, page 103 (lines 1 and 2), omit “referring State”, substitute “State that is a referring State as defined in section 30B or 30L”.

[referring State]

(18)   Schedule 3, Part 1, page 105 (after line 23), at the end of the Part, add:

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

17A   After subitem 2(3) of Schedule 5

Insert:

(3A)     Part 10A of the WR Act applies as if:

                     (a)  a reference to an employee were a reference to a national system employee; and

                     (b)  a reference to an employer were a reference to a national system employer; and

                     (c)  all the words after “eligible entity” in paragraph 576K(2)(b) were omitted and the words “may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers” were substituted; and

                     (d)  the definition of eligible entity in section 576U were omitted; and

                     (e)  subsection 576Z(4) were omitted; and

                      (f)  a reference to an eligible entity were a reference to an outworker entity within the meaning of the FW Act; and

                     (g)  subsection 576K(1) were omitted; and

                     (h)  a reference to an outworker in subsection 576K(2) were a reference to an outworker within the meaning of the FW Act; and

                      (i)  the definition of outworker term in section 576U were omitted; and

                      (j)  a reference to an outworker term in section 576V were a reference to an outworker term within the meaning of the FW Act.

[the WR Act award modernisation process]

(19)   Schedule 3, Part 1, page 105, after proposed item 17A, insert:

17B  Subitems 5(1) and (3) of Schedule 6A

After “FWA” (wherever occurring), insert “or the Commission”.

17C  Subitem 5(3) of Schedule 6A

Omit all the words after “miscellaneous modern award)”, substitute “that, at the time of the termination, is or is likely to be in operation and that is appropriate for them”.

17D  Subitems 5(4) and (5) of Schedule 6A

After “FWA”, insert “or the Commission”.

17E  At the end of item 5 of Schedule 6A

Add:

(6)       If the Commission terminates the current award, the termination is taken, after the Commission has ceased to exist, to have been made by FWA.

Note:       Schedule 18 provides for when the Commission ceases to exist.

[the WR Act award modernisation process]