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Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008

Schedule 2 Awards

Part 1 Award modernisation

Workplace Relations Act 1996

1  After paragraph 3(g)

Insert:

                    (ga)  establishing a process for making modern awards; and

2  Subsection 4(1)

Insert:

award modernisation process means a process of award modernisation carried out by the Commission in accordance with an award modernisation request.

3  Subsection 4(1)

Insert:

award modernisation request has the meaning given by subsection 576C(1).

4  Subsection 4(1)

Insert:

modern award means an award made by the Commission under section 576G.

5  Subsection 4(1) (definition of proceeding )

Repeal the definition, substitute:

proceeding includes a proceeding relating to an award modernisation process.

6  Subsection 527(5)

Repeal the subsection.

7  Subsection 529(3) (note 1)

Repeal the note.

8  Subsection 529(3) (note 2)

Omit “Note 2”, substitute “Note”.

9  After Part 10

Insert:

Part 10A Award modernisation

Division 1 Preliminary

576A   Object of Part

             (1)  The object of this Part is to provide for the Commission to make modern awards in accordance with an award modernisation request.

             (2)  Modern awards:

                     (a)  must be simple to understand and easy to apply, and must reduce the regulatory burden on business; and

                     (b)  together with any legislated employment standards, must provide a fair minimum safety net of enforceable terms and conditions of employment for employees; and

                     (c)  must be economically sustainable, and promote flexible modern work practices and the efficient and productive performance of work; and

                     (d)  must be in a form that is appropriate for a fair and productive workplace relations system that promotes collective enterprise bargaining but does not provide for statutory individual employment agreements; and

                     (e)  must result in a certain, stable and sustainable modern award system for Australia.

Division 2 Award modernisation process

576B   Commission’s award modernisation function

             (1)  It is a function of the Commission to carry out one or more award modernisation processes.

             (2)  In performing its functions under this Part, the Commission must have regard to the following factors:

                     (a)  promoting the creation of jobs, high levels of productivity, low inflation, high levels of employment and labour force participation, national and international competitiveness, the development of skills and a fair labour market;

                     (b)  protecting the position in the labour market of young people, employees with a disability and employees to whom training arrangements apply;

                     (c)  the needs of the low-paid;

                     (d)  the desirability of reducing the number of awards operating in the workplace relations system;

                     (e)  the need to help prevent and eliminate discrimination on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin, and to promote the principle of equal remuneration for work of equal value;

                      (f)  the need to assist employees to balance their work and family responsibilities effectively, and to improve retention and participation of employees in the workforce;

                     (g)  the safety, health and welfare of employees;

                     (h)  relevant rates of pay in Australian Pay and Classification Scales and transitional awards;

                      (i)  minimum wage decisions of the Australian Fair Pay Commission;

                      (j)  the representation rights, under this Act or the Registration and Accountability of Organisations Schedule, of organisations and transitionally registered associations.

             (3)  In this section:

transitional award has the same meaning as in Schedule 6.

transitionally registered association has the same meaning as in Schedule 10.

576C   Award modernisation request

             (1)  An award modernisation process must be carried out in accordance with a written request (an award modernisation request ) made to the President by the Minister.

             (2)  An award modernisation request must specify:

                     (a)  the award modernisation process that is to be carried out; and

                     (b)  the time by which the award modernisation process must be completed, which must not be later than 2 years after the making of the request; and

                     (c)  any other matter relating to the award modernisation process that the Minister considers appropriate.

             (3)  Without limiting subsection (2), an award modernisation request may also do any of the following:

                     (a)  require the Commission to prepare progress reports on specified matters relating to the award modernisation process and make them available as required by the request;

                     (b)  specify matters (in addition to those referred to in subsection 576J(1) and sections 576K and 576M) about which terms may be included in modern awards;

                     (c)  require the Commission to include in a modern award terms about particular matters, being matters about which terms may be included in a modern award;

                     (d)  give directions about how, or whether, the Commission is to deal with particular matters about which terms may be included in a modern award.

             (4)  The Minister may, by written instrument, vary or revoke an award modernisation request.

             (5)  If the Minister makes an instrument varying an award modernisation request, the instrument may also specify a later time for the completion of the award modernisation process requested. The later time:

                     (a)  may be more than 2 years after the making of the award modernisation request; but

                     (b)  must not be more than 2 years after the making of the instrument varying the award modernisation request.

             (6)  Neither of the following is a legislative instrument:

                     (a)  an award modernisation request;

                     (b)  an instrument made under subsection (4).

576D   Award modernisation request to be published

             (1)  As soon as practicable after receiving an award modernisation request, or an instrument varying or revoking an award modernisation request, the President must give a copy of the request or instrument to a Registrar.

             (2)  As soon as practicable after a Registrar receives a copy of a request or an instrument under subsection (1), the Registrar must publish the request or instrument as follows:

                     (a)  if requirements relating to publication are prescribed by the regulations—in accordance with those requirements;

                     (b)  if no such requirements are prescribed—in such manner as the Registrar thinks appropriate.

576E   Procedure for carrying out award modernisation process

             (1)  As soon as practicable after receiving an award modernisation request, the President must establish one or more Full Benches to carry out the award modernisation process requested.

             (2)  For the purpose of enabling the award modernisation process to be carried out, the President may, at any time while the award modernisation process is being carried out:

                     (a)  give each Full Bench established under subsection (1) directions for carrying out the award modernisation process; and

                     (b)  allocate specified tasks in relation to the award modernisation process to any member of the Commission, and give directions about how those tasks are to be carried out.

             (3)  For the purpose of carrying out the award modernisation process and subject to any directions given by the President under subsection (2), the procedure of a Full Bench is within the absolute discretion of the Full Bench.

             (4)  Without limiting subsection (3), a Full Bench may inform itself in any way it thinks appropriate, including by:

                     (a)  undertaking or commissioning research; or

                     (b)  consulting with any other person, body or organisation in any manner it considers appropriate.

             (5)  To avoid doubt, subsection (4) does not limit the powers of a Full Bench under other provisions of this Act.

Note:          For example, Division 4 of Part 3 confers powers on the Commission that may be applicable in the context of award modernisation.

576F   Completion of award modernisation process

                   The Commission must complete an award modernisation process by the time allowed by the award modernisation request relating to the award modernisation process.

Note:          The time by which an award modernisation process must be completed may be varied under subsection 576C(5).

576G   Full Bench must make modern awards

             (1)  A Full Bench must make one or more modern awards to give effect to the outcome of an award modernisation process.

Note 1:       A modern award must comply with Divisions 3, 4 and 5.

Note 2:       Section 576Y deals with the commencement of a modern award.

             (2)  A modern award must be consistent with the award modernisation request to which the modern award relates.

             (3)  The Commission must not make a modern award other than under subsection (1).

             (4)  A modern award is not a legislative instrument.

576H   Commission may vary modern awards

                   The Commission may make an order varying a modern award if the variation is consistent with the award modernisation request to which the modern award relates.

Division 3 Terms of modern awards

Subdivision A Terms that may be included in modern awards

576J   Matters that may be dealt with by modern awards

General

             (1)  A modern award may include terms about any of the following matters:

                     (a)  minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and:

                              (i)  skill-based classifications and career structures; and

                             (ii)  incentive-based payments, piece rates and bonuses;

Note:       Employee with a disability and junior employee are defined in subsection (3).

                     (b)  type of employment, such as full-time employment, casual employment, regular part-time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;

                     (c)  arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;

                     (d)  overtime rates;

                     (e)  penalty rates, including for any of the following:

                              (i)  employees working unsocial, irregular or unpredictable hours;

                             (ii)  employees working on weekends or public holidays;

                            (iii)  shift workers;

                      (f)  annualised wage or salary arrangements that:

                              (i)  have regard to the patterns of work in an occupation, industry or enterprise; and

                             (ii)  provide an alternative to the separate payment of wages, or salaries, and other monetary entitlements; and

                            (iii)  include appropriate safeguards to ensure that individual employees are not disadvantaged;

                     (g)  allowances, including for any of the following:

                              (i)  expenses incurred in the course of employment;

                             (ii)  responsibilities or skills that are not taken into account in rates of pay;

                            (iii)  disabilities associated with the performance of particular tasks or work in particular conditions or locations;

                     (h)  leave, leave loadings and arrangements for taking leave;

                      (i)  superannuation;

                      (j)  procedures for consultation, representation and dispute settlement.

Other matters

             (2)  A modern award may also include terms about any other matter specified in the award modernisation request to which the modern award relates.

Definitions

             (3)  In this section:

employee with a disability means an employee who is qualified for a disability support pension as set out in section 94 or 95 of the Social Security Act 1991 , or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.

Note:          This definition includes employees under the Supported Wage System endorsed by the Commission in the Full Bench decision dated 10 October 1994 (print L5723).

junior employee means an employee who is under the age of 21.

576K   Terms providing for outworkers

             (1)  A modern award may include terms providing for pay and conditions for outworkers.

             (2)  In this section:

outworker means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.

576L   Terms may only provide a fair minimum safety net

                   A modern award may include terms about the matters referred to in subsection 576J(1) or (2) or section 576K only to the extent that the terms provide a fair minimum safety net.

576M   Incidental and machinery terms

             (1)  A modern award may include terms that are:

                     (a)  incidental to a term that is required or permitted to be in the modern award; and

                     (b)  essential for the purpose of making a particular term operate in a practical way.

             (2)  A modern award may include machinery provisions including, but not limited to, provisions about the following:

                     (a)  commencement;

                     (b)  definitions;

                     (c)  titles;

                     (d)  arrangement;

                     (e)  employers, employees and organisations;

                      (f)  duration of the modern award.

576N   Terms must be in accordance with award modernisation request

             (1)  A modern award must include a term about a matter referred to in subsection 576J(1) or (2) or section 576K or 576M if the award modernisation request to which the modern award relates requires the modern award to include a term about that matter.

             (2)  A term of a modern award about a matter referred to in subsection 576J(1) or (2) or section 576K or 576M must be consistent with any directions in relation to the matter specified in the award modernisation request to which the modern award relates.

Subdivision B Terms that must not be included in modern awards

576P  Terms not permitted by Subdivision A

                   A modern award must not include terms other than those permitted or required by Subdivision A.

576Q   Terms that breach freedom of association provisions

                   A modern award must not include a term that requires or permits, or has the effect of requiring or permitting, any conduct that would contravene Part 16 (Freedom of association).

576R   Terms about right of entry

                   A modern award must not include a term that requires or authorises an officer or employee of an organisation to do any of the following:

                     (a)  enter premises:

                              (i)  occupied by an employer that is bound by the modern award; or

                             (ii)  in which work to which the modern award applies is being carried on;

                     (b)  inspect or view any work, material, machinery, appliance, article, document or other thing on such premises;

                     (c)  interview an employee on such premises.

576S   Terms that are discriminatory

             (1)  A modern award must not include terms that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

             (2)  A modern award does not discriminate against an employee for the purposes of subsection (1) merely because:

                     (a)  it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or

                     (b)  it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:

                              (i)  on the basis of those teachings or beliefs; and

                             (ii)  in good faith.

             (3)  A modern award does not discriminate against an employee for the purposes of subsection (1) merely because it includes terms providing for minimum wages for:

                     (a)  all junior employees, or a class of junior employees; or

                     (b)  all employees with a disability, or a class of employees with a disability; or

                     (c)  all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

             (4)  In this section:

employee with a disability has the same meaning as in section 576J.

junior employee has the same meaning as in section 576J.

576T   Terms that contain State-based differences

             (1)  A modern award must not include 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.

             (2)  Despite subsection (1), a modern award may include terms and conditions of employment of the kind referred to in subsection (1) for a period of up to 5 years starting on the day on which the modern award commences.

             (3)  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 of the kind referred to in subsection (1), those terms and conditions of employment cease to have effect at the end of that period.

Division 4 Who is bound by modern awards

576U   Definitions

                   In this Division:

eligible entity means any of the following entities, other than in the entity’s capacity as an employer:

                     (a)  a constitutional corporation;

                     (b)  the Commonwealth;

                     (c)  a Commonwealth authority;

                     (d)  a body corporate incorporated in a Territory;

                     (e)  a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, in connection with the activity carried on in the Territory.

Note:          In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of the Acts Interpretation Act 1901 .

enterprise award means an award that regulates a term or condition of employment of an employee or employees by an employer in a single business specified in the award.

outworker term means a term of a modern award that is:

                     (a)  about the matter referred to in section 576K; or

                     (b)  incidental to such a matter, and included in the modern award as permitted by subsection 576M(1); or

                     (c)  a machinery provision in respect of such a matter, and included in the modern award as permitted by subsection 576M(2).

576V   Who is bound by a modern award

Modern award binds employers, employees etc. that it is expressed to bind

             (1)  A modern award binds, in accordance with its terms, the employers, employees, organisations and eligible entities that it is expressed to bind.

Modern award must be expressed to bind specified employers and employees

             (2)  A modern award must be expressed to bind the following:

                     (a)  specified employers;

                     (b)  specified employees of employers bound by the modern award, in respect of work that is expressed to be regulated by the modern award.

Modern award must be expressed not to bind employers bound by enterprise awards

             (3)  A modern award must be expressed not to bind an employer who is bound by an enterprise award in respect of an employee to whom the enterprise award applies.

Modern award may be expressed to bind organisations

             (4)  A modern award may be expressed to bind one or more specified organisations in respect of all or specified employees or employers who are bound by the modern award.

Modern award may be expressed to bind eligible entities or employers in relation to outworker terms

             (5)  In addition to the employers, employees and organisations that a modern award is expressed to bind, the modern award may be expressed to bind, but only in relation to outworker terms included in the modern award, an eligible entity or an employer that operates in an industry:

                     (a)  to which the modern award relates; or

                     (b)  in respect of which the outworker terms are applicable.

Modern award must be in accordance with award modernisation request

             (6)  The power of the Commission under subsections (2), (3), (4) and (5) must be exercised in accordance with the award modernisation request to which the modern award relates.

Specification of employers, employees etc. by name or class

             (7)  For the purposes of subsections (2), (3), (4) and (5):

                     (a)  employers may be specified by name or by inclusion in a specified class or specified classes; and

                     (b)  employees must be specified by inclusion in a specified class or specified classes; and

                     (c)  organisations must be specified by name; and

                     (d)  eligible entities may be specified by name or by inclusion in a specified class or specified classes.

             (8)  Without limiting the way in which a class may be described for the purposes of subsection (7), the class may be described by reference to a particular industry or particular kinds of work.

Division 5 Technical matters

576W   Formal requirements of modern awards and variation orders

             (1)  A modern award or an order varying a modern award must:

                     (a)  be in writing; and

                     (b)  be signed by:

                              (i)  if the President is a member of the Full Bench making the modern award or order—the President; or

                             (ii)  if the President is not a member of the Full Bench making the modern award or order—the member of the Full Bench who has seniority under section 65; and

                     (c)  state the day on which it is signed.

             (2)  A modern award must:

                     (a)  have a unique title; and

                     (b)  have a table of contents; and

                     (c)  be expressed in plain English and be easy to understand in structure and content; and

                     (d)  not include terms that are obsolete.

576X   When is a modern award or variation order made

                   A modern award or an order varying a modern award is made on the day on which the modern award or order is signed under paragraph 576W(1)(b).

576Y   Commencement of modern awards and variation orders

             (1)  A modern award or an order varying a modern award must be expressed to commence on:

                     (a)  if the modern award or order is made before the start-up day—the start-up day; or

                     (b)  in any other case—a day that is not earlier than the day on which the modern award or order is made.

Note:          Start-up day is defined in subsection (3).

             (2)  A modern award, or an order varying a modern award, that has not yet commenced must include a statement to this effect.

             (3)  For the purposes of this section, the start-up day is:

                     (a)  unless paragraph (b) applies, 1 January 2010; or

                     (b)  if a later date is prescribed by the regulations—that later date.

576Z   Modern awards and variation orders must be published

             (1)  As soon as practicable after the Commission makes a modern award or an order varying a modern award, the Commission must give to a Registrar:

                     (a)  a copy of the modern award or order; and

                     (b)  written reasons for the modern award or order; and

                     (c)  a statement specifying the employers, employees, organisations and eligible entities bound by the modern award or order.

             (2)  As soon as practicable after a Registrar receives a copy of a modern award or an order varying a modern award under subsection (1), the Registrar must:

                     (a)  give notice to the employers, employees, organisations and eligible entities specified in the statement referred to paragraph (1)(c) of the making of the modern award or order; and

                     (b)  ensure that a copy of the modern award or order, and the written reasons for the modern award or order, are available for inspection at each registry; and

                     (c)  ensure that the modern award or order, and the written reasons for the modern award or order, are published.

             (3)  The Registrar must give the notice required by paragraph (2)(a):

                     (a)  in accordance with any requirements prescribed by the regulations; or

                     (b)  if no such requirements are prescribed—in such manner as the Registrar thinks appropriate.

             (4)  In this section:

eligible entity has the same meaning as in section 576U.

576ZA   Modern awards and variation orders are final

             (1)  A modern award or an order varying a modern award:

                     (a)  is final and conclusive; and

                     (b)  must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

                     (c)  is not subject to prohibition, mandamus or injunction in any court on any account.

             (2)  A modern award or an order varying a modern award is not invalid because it was made by the Commission constituted otherwise than as provided by this Act.

576ZB   Expressions used in modern awards and variation orders

                   Unless the contrary intention appears in a modern award or an order varying a modern award, an expression used in the modern award or order has the same meaning as it has in an Act because of the Acts Interpretation Act 1901 or as it has in this Act.

10  Subclause 22(6) of Schedule 6

Repeal the subclause.

11  Subclause 45(3) of Schedule 8

Repeal the subclause.

12  Subclause 46(3) of Schedule 8 (note)

Repeal the note.



 

Part 2 Repeal of award rationalisation and award simplification provisions

Workplace Relations Act 1996

13  Subsection 4(1) (definition of award )

Repeal the definition, substitute:

award means a pre-reform award.

14  Subsection 4(1) (definition of award rationalisation process )

Repeal the definition.

15  Subsection 4(1) (definition of award rationalisation request )

Repeal the definition.

16  Subsection 4(1) (definition of award simplification process )

Repeal the definition.

17  Paragraph 510(b)

Repeal the paragraph.

18  Subsection 524(1)

Omit “or (3)”.

19  Subsection 524(2)

Omit “a pre-reform award”, substitute “an award”.

20  Subsection 524(3)

Repeal the subsection.

21  Subsection 527(1)

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

             (1)  A term, or more than one term, of an award is a preserved award term if:

                     (a)  the term or terms are about a matter referred to in subsection (2); and

                     (b)  the term or terms were in effect immediately before the reform commencement.

22  Subsection 527(2)

Omit “subsection (1)”, substitute “paragraph (1)(a)”.

23  Section 528

Repeal the section.

24  Subsection 531(2)

Omit “528,”.

25  Paragraph 532(2)(a)

Omit “, 528”.

26  Division 4 of Part 10

Repeal the Division.

27  Paragraphs 552(1)(a) and (b)

Repeal the paragraphs.

28  Subsection 552(1) (note)

Repeal the note.

29  Subsection 552(3)

Repeal the subsection, substitute:

             (3)  The Commission must not vary a facilitative provision within the meaning of section 521 except on a ground set out in section 554.

30  Subparagraph 553(4)(b)(iii)

Repeal the subparagraph.

31  Section 555

Repeal the section.

32  Before subsection 556(1)

Insert:

          (1A)  The Commission must not make an order revoking an award except in accordance with this section.

33  Subsection 557(1) (notes 1 and 2)

Repeal the notes, substitute:

Note 1:       Item 4 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005 provides for the employers, employees and organisations bound by awards.

34  Subsection 557(1) (note 3)

Omit “Note 3”, substitute “Note 2”.

35  Subsection 561(1)

Omit “(1)” (first occurring).

Note:       The heading to section 561 is altered by omitting “ additional matters ” and substituting “ when application may be made ”.

36  Subsection 561(2)

Repeal the subsection.

37  Section 565

Repeal the section.

38  Section 573

Omit “a provision referred to in section 555”, substitute “section 556”.

39  Paragraph 50(1)(a) of Schedule 8

Repeal the paragraph, substitute:

                     (a)  the award is varied under section 558 or 559; and

40  Subclause 50(7) of Schedule 8

Repeal the subclause.