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Fair Work Amendment (Transfer of Business) Bill 2012

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2010-2011-2012

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

Fair Work Amendment (Transfer of Business) Bill 2012

 

 

Schedule of the amendments made by the Senate

 

 

 

 

 

(1)     Schedule 1, item 1, page 4 (lines 2 and 3), omit “means a national system employee, and employer means a national system employer”, substitute “and employer have their ordinary meanings”.

(2)     Schedule 1, item 1, page 5 (line 22), omit “paragraphs 768AD(1)(a), (b) and (c)”, substitute “paragraph 768AD(1)(a)”.

(3)     Schedule 1, item 1, page 7 (lines 7 to 20), omit subsection 768AI(1), substitute:

             (1)  If, immediately before the termination time of a transferring employee:

                     (a)  a State award (the original State award ) was in operation under the State industrial law of the State; and

                     (b)  the original State award covered (however described in the original State award or a relevant law of the State) the old State employer and the transferring employee (whether or not the original State award also covered other persons);

then a copied State award for the transferring employee is taken to come into operation immediately after the termination time.

(4)     Schedule 1, item 1, page 8 (line 21) to page 9 (line 3), omit subsection 768AK(1), substitute:

             (1)  If, immediately before the termination time of a transferring employee:

                     (a)  a State employment agreement (the original State agreement ) was in operation under a State industrial law of the State; and

                     (b)  the original State agreement covered (however described in the original State agreement or a relevant law of the State) the old State employer and the transferring employee (whether or not the original State agreement also covered other persons);

then a copied State employment agreement for the transferring employee is taken to come into operation immediately after the termination time.

(5)     Schedule 1, item 1, page 20 (before line 8), before subsection 768AX(1), insert:

Application of this section

          (1A)  This section applies if there is, or is likely to be, a transfer of business.

(6)     Schedule 1, item 1, page 20 (line 31) to page 21 (line 34), omit subsections 768AX(2) and (3), substitute:

Who may apply for a variation

             (2)  FWA may make a variation under subsection (1):

                     (a)  on its own initiative; or

                     (b)  on application by a person who is, or is likely to be, covered by the copied State instrument; or

                     (c)  on application by an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the copied State instrument.

Note:          The copied State instrument for the transferring employee may also cover another transferring employee or a non-transferring employee if a consolidation order is made.

Matters that FWA must take into account

             (3)  In deciding whether to make a variation under subsection (1), FWA must take into account the following:

                     (a)  the views of:

                              (i)  the employees who would be affected by the copied State instrument as varied; and

                             (ii)  the new employer or a person who is likely to be the new employer;

                     (b)  whether any employees would be disadvantaged by the copied State instrument as varied in relation to their terms and conditions of employment;

                     (c)  if the copied State instrument is a copied State employment agreement—the nominal expiry date of the agreement;

                     (d)  whether the copied State instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace;

                     (e)  whether the new employer would incur significant economic disadvantage as a result of the copied State instrument, without the variation;

                      (f)  the degree of business synergy between the copied State instrument, without the variation, and any workplace instrument that already covers the new employer;

                     (g)  the public interest.

(7)     Schedule 1, item 1, page 22 (lines 15 to 20), omit subsection 768AX(6), substitute:

When variation may be made

             (6)  A variation may be made under subsection (1) in relation to a copied State instrument of a transferring employee:

                     (a)  before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and

                     (b)  before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.

Restriction on when variation may come into operation

             (7)  A variation under subsection (1) operates from the day specified in the variation, which may be a day before the variation is made.



 

(8)     Schedule 1, item 1, page 23 (after line 13), after section 768AZ, insert:

768AZA   Orders in relation to a transfer of business

             (1)  This Division provides for orders to be made if there is, or is likely to be, a transfer of business.

             (2)  An order may be made under this Division in relation to a copied State instrument of a transferring employee:

                     (a)  before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and

                     (b)  before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.

(9)     Schedule 1, item 1, page 23 (line 27) to page 24 (line 30), omit subsections 768BA(2), (3) and (4), substitute:

Who may apply for an order

             (2)  FWA may make an order under subsection (1):

                     (a)  on its own initiative; or

                     (b)  on application by any of the following:

                              (i)  a transferring employee or an employee who is likely to be a transferring employee;

                             (ii)  the new employer or a person who is likely to be the new employer;

                            (iii)  an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

                            (iv)  if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that FWA must take into account

             (3)  In deciding whether to make an order under subsection (1), FWA must take into account the following:

                     (a)  the views of:

                              (i)  the employees who would be affected by the order; and

                             (ii)  the new employer or a person who is likely to be the new employer;

                     (b)  whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

                     (c)  if the order relates to a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;

                     (d)  whether the copied State instrument would have a negative impact on the productivity of the new employer’s workplace;

                     (e)  whether the new employer would incur significant economic disadvantage as a result of the copied State instrument covering the new employer;

                      (f)  the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer;

                     (g)  the public interest.

Restriction on when order may come into operation

             (4)  An order under subsection (1) must not come into operation in relation to a particular transferring employee before the later of the following:

                     (a)  the transferring employee’s re-employment time;

                     (b)  the day on which the order is made.

(10)   Schedule 1, item 1, page 25 (line 17) to page 30 (line 15), omit Division 7, substitute:

Division 7 FWA orders about consolidating copied State instruments etc.

Subdivision A Guide to this Division

768BC   What this Division is about

This Division allows FWA to consolidate the various workplace instruments that may apply in the new employer’s workplace. It achieves this by allowing FWA to make an order that a copied State instrument for a particular transferring employee is also a copied State instrument for one or more other transferring employees or non-transferring employees.

Subdivision B deals with consolidating copied State instruments for transferring employees. Under that Subdivision, FWA may make an order that the copied State instrument for a transferring employee (“employee A”) is also the copied State instrument for one or more other transferring employees. If FWA makes a consolidation order for those other transferring employees, then this Act is modified so that the copied State instrument for employee A is also the copied State instrument for those other transferring employees (see section 768BF).

Subdivision C deals with non-transferring employees. Under that Subdivision, FWA may make an order that the copied State instrument for employee A (who is a transferring employee) is also the copied State instrument for one or more non-transferring employees. If FWA makes a consolidation order for those non-transferring employees, then this Act is modified so that the copied State instrument for employee A is also the copied State instrument for those non-transferring employees (see section 768BI).

768BCA   Orders in relation to a transfer of business

             (1)  This Division provides for orders to be made if there is, or is likely to be, a transfer of business.

             (2)  An order may be made under this Division in relation to a copied State instrument of a transferring employee:

                     (a)  before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and

                     (b)  before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.

Subdivision B Consolidation orders in relation to transferring employees

768BD   Consolidation orders in relation to transferring employees

Consolidation order

             (1)  FWA may make an order (a consolidation order ) that a copied State instrument for a transferring employee ( employee A ) is also a copied State instrument for one or more other transferring employees.



 

Who may apply for order

             (2)  FWA may make a consolidation order under subsection (1):

                     (a)  on its own initiative; or

                     (b)  on application by any of the following:

                              (i)  a transferring employee, or an employee who is likely to be a transferring employee;

                             (ii)  the new employer or a person who is likely to be the new employer;

                            (iii)  an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i).

Matters that FWA must take into account

             (3)  In deciding whether to make a consolidation order under subsection (1), FWA must take into account the following:

                     (a)  the views of:

                              (i)  the employees who would be affected by the order; and

                             (ii)  the new employer or a person who is likely to be the new employer;

                     (b)  whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

                     (c)  if the order relates to a copied State employment agreement—the nominal expiry date of the agreement;

                     (d)  whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer’s workplace;

                     (e)  whether the new employer would incur significant economic disadvantage if the order were not made;

                      (f)  the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer;

                     (g)  the public interest.

Restriction on when order may come into operation

             (4)  A consolidation order under subsection (1) must not come into operation in relation to a particular transferring employee (other than employee A) before the later of the following:

                     (a)  the transferring employee’s re-employment time;

                     (b)  the day on which the order is made.

768BE   Consolidation order to deal with application and coverage

             (1)  A consolidation order under subsection 768BD(1) must specify when the copied State instrument for employee A applies to, and covers:

                     (a)  another transferring employee; and

                     (b)  the new employer in relation to the other transferring employee; and

                     (c)  an employee organisation in relation to the other transferring employee;

which must not be before the other transferring employee’s re-employment time.

             (2)  Once the consolidation order comes into operation in relation to the other transferring employee, the copied State instrument for the other transferring employee ceases to operate.



 

768BF   Effect of this Act after a consolidation order is made

                   If FWA makes a consolidation order under subsection 768BD(1), then this Act has effect in relation to a particular transferring employee (other than employee A), from the time the order comes into operation in relation to that employee, as if a reference in relation to that employee to the copied State instrument for that employee were a reference to the copied State instrument for employee A.

Subdivision C Consolidation orders in relation to non-transferring employees

768BG   Consolidation orders in relation to non-transferring employees

Consolidation order

             (1)  FWA may make an order (a consolidation order ) that a copied State instrument for a transferring employee ( employee A ) also is, or will be, a copied State instrument for one or more non-transferring employees who perform, or are likely to perform, the transferring work.

Non-transferring employees

             (2)  A non-transferring employee of a new employer is a national system employee of the new employer who is not a transferring employee.

Who may apply for order

             (3)  FWA may make a consolidation order under subsection (1):

                     (a)  on its own initiative; or

                     (b)  on application by any of the following:

                              (i)  a non-transferring employee who performs, or is likely to perform, the transferring work;

                             (ii)  the new employer or a person who is likely to be the new employer;

                            (iii)  an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

                            (iv)  if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that FWA must take into account

             (4)  In deciding whether to make a consolidation order under subsection (1), FWA must take into account the following:

                     (a)  the views of:

                              (i)  the employees who would be affected by the order; and

                             (ii)  the new employer or a person who is likely to be the new employer;

                     (b)  whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

                     (c)  if the order relates to a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;

                     (d)  whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer’s workplace;

                     (e)  whether the new employer would incur significant economic disadvantage if the order were not made;

                      (f)  the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer;

                     (g)  the public interest.

Restriction on when order may come into operation

             (5)  A consolidation order under subsection (1) must not come into operation in relation to a particular non-transferring employee before the later of the following:

                     (a)  the time when the non-transferring employee starts to perform the transferring work for the new employer;

                     (b)  the day on which the order is made.

768BH   Consolidation order to deal with application and coverage

             (1)  A consolidation order under subsection 768BG(1) must specify when the copied State instrument for employee A applies to, and covers:

                     (a)  a non-transferring employee; and

                     (b)  the new employer in relation to the non-transferring employee; and

                     (c)  an employee organisation in relation to the non-transferring employee;

in relation to the transferring work.

             (2)  If an enterprise agreement covers the non-transferring employee and the new employer, the order must also specify that the agreement does not cover:

                     (a)  the non-transferring employee; or

                     (b)  the new employer in relation to the non-transferring employee; or

                     (c)  an employee organisation in relation to the non-transferring employee;

in relation to that work.

768BI   Effect of this Act after a consolidation order is made

                   If FWA makes a consolidation order under subsection 768BG(1), then this Act has effect in relation to a particular non-transferring employee, from the time the order comes into operation in relation to that employee, as if:

                     (a)  the copied State instrument for employee A were also the copied State instrument for that employee; and

                     (b)  that employee were a transferring employee in relation to that copied State instrument.

(11)   Schedule 1, item 1, page 43 (table item 3, column 1), after “item 13”, insert “(other than note 1 and note 2)”.

(12)   Schedule 1, item 3, page 47 (lines 10 to 12), omit the item, substitute:

3  Section 9A

Repeal the section, substitute:

9A   Application, transitional and saving provisions for amendments (Schedules)

                   The Schedules contain application, transitional and saving provisions relating to amendments of this Act.

Note:          Application, transitional and saving provisions relating to the enactment of this Act, and States becoming referring States, are in the Transitional Act.

(13)   Schedule 1, items 14 and 15, page 48 (line 22) to page 49 (line 2), omit the items.



 

(14)   Schedule 1, page 49 (after line 14), after item 18, insert:

18A  Section 12

Insert:

local government employee has the same meaning as in subsection 30K(1).

18B  Section 12

Insert:

local government employer has the same meaning as in subsection 30K(1).

(15)   Schedule 1, item 24, page 50 (line 12), omit “subparagraph 768AK(1)(b)(i)”, substitute “paragraph 768AK(1)(a)”.

(16)   Schedule 1, item 25, page 50 (line 16), omit “subparagraph 768AI(1)(b)(i)”, substitute “paragraph 768AI(1)(a)”.

(17)   Schedule 1, item 34, page 51 (line 24), after “law enforcement officer of the State”, insert “but does not include a local government employee of the State”.

(18)   Schedule 1, item 35, page 52 (lines 14 and 15), omit “law enforcement officers of the State”, substitute “a law enforcement officer of the State but does not include a local government employer of the State”.

(19)   Schedule 1, page 54 (after line 31), after item 54, insert:

54A  Subsection 341(5)

Omit “Part 2-8 (which deals”, substitute “Part 2-8 or 6-3A (which deal”.

(20)   Schedule 1, page 56 (after line 8), after item 62, insert:

62A  Section 795A

Repeal the section, substitute:

795A   The Schedules

                   The Schedules have effect.

Note:          The Schedules contain application, transitional and saving provisions relating to amendments of this Act.



 

(21)   Schedule 1, item 67, page 56 (line 22) to page 57 (line 16), omit the item, substitute:

67  After Schedule 1

Insert:

Schedule 2 Amendments made by the Fair Work Amendment (Transfer of Business) Act 2012

Note:       See section 795A.

   

   

1   Definitions

                   In this Schedule:

amending Act means the Fair Work Amendment (Transfer of Business) Act 2012 .

commencement means the commencement of this Schedule.

2   Application of the amendments made by the amending Act

                   The amendments made by the amending Act apply in relation to a transfer of business referred to in Part 6-3A (as inserted by item 1 of Schedule 1 to the amending Act), but only if the connection between the old State employer and the new employer referred to in paragraph 768AD(1)(d) (as inserted by that item) occurs on or after commencement.

 

 

 

 

 

Rosemary Laing

Clerk of the Senate

 

 

The Senate

26 November 2012