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Schedule 3—FWC Members

Schedule 3 FWC Members

   

Fair Work Act 2009

1  After section 641A

Insert:

641B   Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

             (1)  The object of this section is to modify the application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (the JMIPC Act ) so as to allow a Commission to be established by the Houses of Parliament to investigate and report on alleged misbehaviour or incapacity of an FWC Member, so the Houses can be well-informed to consider whether to pray for:

                     (a)  the termination of the FWC Member’s appointment under section 641; or

                     (b)  the removal of the FWC Member from office under section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act.

             (2)  The JMIPC Act applies, in addition to its general application, as if a provision of that Act referred to in an item in column 1 of the following table were amended as specified in column 2 of the item.

 

Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

Item

Column 1

Provision of the JMIPC Act

Column 2

Amendment

1

Subsection 3(1)

Omit “a Commonwealth judicial officer”, substitute “an FWC Member”.

2

Subsection 3(1)

Omit all the words after “whether to”, substitute:

“pray for:

(a) for a non-transitioned FWC Member—the termination of the FWC Member’s appointment under section 641 of the FW Act; or

(b) for a transitioned FWC Member—the removal of the FWC Member from office under section 82 or 86 of the WR Act (as those sections continue to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act).”.

3

Paragraph 3(2)(b)

Omit “removal of a Commonwealth judicial officer under paragraph 72(ii) of the Constitution”, substitute “termination of appointment or removal from office of an FWC Member under the relevant provisions referred to in subsection (1)”.

4

Section 4

Omit “a Commonwealth judicial officer (that is, a High Court judge or a judge of the Federal Court of Australia, the Family Court of Australia or the Federal Circuit Court of Australia)”, substitute “an FWC Member”.

5

Section 4

Omit “removal of the judicial officer, the judicial officer may be removed by the Governor-General in Council in accordance with paragraph 72(ii) of the Constitution”, substitute “termination of appointment or removal from office of the FWC Member, the FWC Member’s appointment may be terminated, or the FWC Member may be removed from office, by the Governor-General in Council under the applicable provisions of the FW Act or the WR Act”.

6

Section 7

Insert:

FW Act means the Fair Work Act 2009 .

FWC Member has the same meaning as in the FW Act and includes a transitioned FWC Member.

FW Transitional Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .

7

Section 7 (definition of incapacity )

Omit the definition (including the note), substitute:

incapacity :

(a) in relation to the termination of appointment of a non-transitioned FWC Member under section 641 of the FW Act—has the same meaning as in that section; and

(b) in relation to the removal of a transitioned FWC Member from office under section 82 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and

(c) in relation to the removal of a transitioned FWC Member from office under section 86 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and

(d) in relation to the termination of appointment of a member of the Commission under section 73 of this Act—has its ordinary meaning.

8

Section 7 (definition of misbehaviour )

Omit the definition (including the note), substitute:

misbehaviour :

(a) in relation to the termination of appointment of a non-transitioned FWC Member under section 641 of the FW Act—has the same meaning as in that section; and

(b) in relation to the removal of a transitioned FWC Member from office under section 82 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and

(c) in relation to the removal of a transitioned FWC Member from office under section 86 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and

(d) in relation to the termination of appointment of a member of the Commission under section 73 of this Act—has its ordinary meaning.

9

Section 7

Insert:

non-transitioned FWC Member means an FWC Member who is not a transitioned FWC Member.

10

Section 7 (definition of proved )

Omit the definition, substitute:

proved :

(a) in relation to the termination of appointment of a non-transitioned FWC Member for misbehaviour under paragraph 641(a) of the FW Act—has the same meaning as in that paragraph; and

(b) in relation to the termination of appointment of a non-transitioned FWC Member for incapacity under paragraph 641(b) of the FW Act—means the grounds referred to in that paragraph are established; and

(c) in relation to the removal of a transitioned FWC Member from office for misbehaviour or incapacity under section 82 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and

(d) in relation to the removal of a transitioned FWC Member from office for misbehaviour or incapacity under section 86 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section.

11

Section 7

Insert:

transitioned FWC Member means a person who is taken to be appointed as an FWA Member under item 1 of Schedule 18 to the FW Transitional Act.

WR Act has the same meaning as in the FW Transitional Act.

WR Act repeal day has the same meaning as in the FW Transitional Act.

12

Section 8

Omit “a Commonwealth judicial officer”, substitute “an FWC Member”.

13

Section 8

Omit “removal of the judicial officer, the judicial officer may be removed by the Governor-General in Council in accordance with paragraph 72(ii) of the Constitution”, substitute “termination of appointment or removal from office of the FWC Member, the FWC Member’s appointment may be terminated, or the FWC Member may be removed from office, by the Governor-General in Council under the applicable provisions of the FW Act or the WR Act”.

14

Subsection 9(1)

Omit “Commonwealth judicial officer”, substitute “FWC Member”.

15

Subsection 9(1) (note 2)

Omit “Commonwealth judicial officer”, substitute “FWC Member”.

16

Paragraph 16(1)(b)

Omit “a Commonwealth judicial officer”, substitute “an FWC Member”.

17

Subsection 19(6)

After paragraph 19(6)(c), insert:

(ca) an investigation into a complaint about an FWC Member; and

18

Subsection 20(2)

Omit “a Commonwealth judicial officer”, substitute “an FWC Member”.

19

Subsection 20(2)

Omit “the Commonwealth judicial officer” (wherever occurring), substitute “the FWC Member”.

20

Section 21

Omit “a Commonwealth judicial officer” (wherever occurring), substitute “an FWC Member”.

21

Paragraph 23(3)(a)

Omit “Commonwealth judicial officer to whom the investigation relates to perform his or her duties as such an officer”, substitute “FWC Member to whom the investigation relates to perform his or her duties as an FWC Member”.

22

Paragraph 23(3)(b) and subparagraph 23(3)(c)(i)

Omit “judiciary”, substitute “Fair Work Commission”.

23

Subparagraph 23(3)(c)(ii)

Omit “Commonwealth judicial officer”, substitute “FWC Member”.

24

Subsection 24(4) (heading)

Omit “ Commonwealth judicial officer ”, substitute “ FWC Member ”.

25

Subsections 24(4) and (5)

Omit “Commonwealth judicial officer” (wherever occurring), substitute “FWC Member”.

26

Paragraph 24(7)(c)

Omit “Commonwealth judicial officer”, substitute “FWC Member”.

27

Subdivision D of Division 2 of Part 3 (heading)

Omit “ Commonwealth judicial officer ”, substitute “ FWC Member ”.

28

Section 45 (heading)

Omit “ Commonwealth judicial officer ”, substitute “ FWC Member ”.

29

Subsections 45(1) and 46(2)

Omit “Commonwealth judicial officer”, substitute “FWC Member”.

 

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

2  At the end of Part 1 of Schedule 18

Add:

6A  Dealing with a complaint about an FWC Member

(1)       This item applies in relation to an FWC member who is a person taken to have been appointed as an FWA Member under item 1 of this Schedule.

(2)       Section 581A of the FW Act (which deals with the President handling complaints about FWC Members) applies after the commencement of this item in relation to a complaint made about the performance of the FWC Member as if the following amendments were made:

                     (a)  paragraph (4)(b) of that section—omit “termination of the appointment of the FWC Member”, substitute “removal of the FWC Member from office”;

                     (b)  the note to subsection (4) of that section—omit “The appointment of an FWC Member may be terminated under section 641”, substitute “An FWC Member may be removed from office under section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act,”;

                     (c)  subparagraph (a)(i) of the definition of relevant belief in section 12 of the FW Act—omit “terminating the appointment of the FWC Member in accordance with section 641”, substitute “removing the FWC Member from office in accordance with section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act”.

Note:       Paragraph (2)(c) alters the meaning of relevant belief in subparagraphs 581A(2)(a)(ii) and (iii) of the FW Act.

(3)       Section 641A of the FW Act (which deals with the Minister handling complaints about FWC Members) applies after the commencement of this item in relation to a complaint made about the performance of the FWC Member as if the following amendments were made:

                     (a)  paragraph (a) of that section—omit “termination of the appointment of the FWC Member; and”, substitute “removal of the FWC Member from office.”;

                     (b)  paragraph (b) of that section—omit the paragraph;

                     (c)  note 1 to that section—omit “The appointment of an FWC Member may be terminated under section 641”, substitute “An FWC Member may be removed from office under section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act,”;

                     (d)  note 2 to that section—omit the note.

(4)       For the purposes of subitems (2) and (3), it does not matter whether:

                     (a)  the complaint is made before or after the commencement of this item; or

                     (b)  the complaint relates to the performance of the FWC Member before or after the commencement of this item.

(5)       In this item:

FWC Member has the same meaning as in the FW Act.