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Fair Work Amendment (Right to Request Casual Conversion) Bill 2019

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2016-2017-2018-2019

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Fair Work Amendment (Right to Request Casual Conversion) Bill 2019

 

 

(1)     Schedule 1, page 3 (line 2) to page 14 (line 12), omit the Schedule, substitute:

Schedule 1 Amendments

   

Fair Work Act 2009

1  After paragraph 5(8)(a)

Insert:

                    (aa)  provided by a secure employment order (see Part 2-7A); and

2  Section 12

Insert:

secure employment arrangement means ongoing employment on a part-time or full-time basis.

3  Section 12

Insert:

secure employment order : see subsection 306D(1).

4  Section 12

Insert:

small business exempt casual : a casual employee is a small business exempt casual if:

                     (a)  the employer is a small business employer; and

                     (b)  the employee has been employed by the employer for a period of less than 3 months; and

                     (c)  the employee had not been employed by the employer at any time in the 3 months prior to the period of employment referred to in paragraph (b) commencing.

5  After paragraph 43(2)(a)

Insert:

                    (aa)  those terms and conditions arising from a secure employment order (see Part 2-7A); and

6  After paragraph 172(1)(c)

Insert:

                    (ca)  matters pertaining to secure employment arrangements, including moving from casual employment to secure employment arrangements;

7  After Part 2-7

Insert:

Part 2-7A Secure employment arrangements

Division 1 Introduction

306A   Guide to this Part

This Part provides for transition to, and maintenance of, secure employment arrangements.

Division 1 deals with preliminary matters.

Division 2 deals with requests to change from casual employment to secure employment arrangements.

Division 3 provides for the making of secure employment orders by the FWC for employees or prospective employees if a request is refused under Division 2.

306B   Meanings of employee and employer

                   In this Part, employee means a national system employee, and employer means a national system employer.

Division 2 Requests for secure employment arrangements

306C   Requests to change from casual employment to secure employment arrangements

             (1)  A casual employee may request the employer, in writing, for a secure employment arrangement.

             (2)  An employee organisation that is entitled to represent casual employees may, if asked to do so by one or more of the employees, request the employer, in writing, for a secure employment arrangement for that employee or those employees.

             (3)  The employer must give the employee or organisation a written response to the request within 21 days, stating whether the employer grants or refuses the request.

             (4)  If the employer refuses the request, the employer’s written response must include details of the reasons for the refusal.

             (5)  This section does not apply in relation to a small business exempt casual.

Division 3 Secure employment orders

306D   FWC may make secure employment order

             (1)  The FWC may, on application in accordance with section 306E, make any order (a secure employment order ) it considers appropriate to provide, or to maintain, secure employment arrangements for the person or persons to whom the order will apply.

             (2)  A secure employment order may apply to:

                     (a)  any one of the following persons (a relevant person ):

                              (i)  a casual employee;

                             (ii)  a prospective employee who, if employed at the time the application for the order was made, would be a casual employee; or

                     (b)  two or more relevant persons; or

                     (c)  a class of relevant persons.

             (3)  Without limiting paragraph (2)(c), the class may be described by reference to one or more of the following:

                     (a)  a particular industry or part of an industry;

                     (b)  a particular kind of work;

                     (c)  a particular type of employment;

                     (d)  a particular employer.

             (4)  A secure employment order must specify the employer or employers who are required to comply with the order, being the employer or employers of the relevant person, relevant persons or class of relevant persons to whom the order applies.

             (5)  Despite subsection (2), a secure employment order cannot apply to a small business exempt casual. However, if the FWC is satisfied that a small business is continuously engaging employees as small business exempt casuals for a purpose other than the genuine operational needs of the business, a secure employment order may apply to those small business exempt casuals.

306E   Application for secure employment order

             (1)  An application for a secure employment order may be made only in relation to a request refused under section 306C.

             (2)  The application may be made by:

                     (a)  if the employee made the request—any of the following:

                              (i)  the employee;

                             (ii)  an organisation that is entitled to represent the interests of the employee, if asked by the employee to make the application;

                            (iii)  the Age Discrimination Commissioner, the Disability Discrimination Commissioner or the Sex Discrimination Commissioner; or

                     (b)  if an organisation made the request—the organisation.

306F   Matters for FWC to consider

                   In deciding whether, or the terms on which, to make a secure employment order, the FWC must have regard to the following:

                     (a)  that all casual employees should be entitled to be ongoing employees, unless there are serious countervailing business reasons relating to the specific needs of an employer’s business;

                     (b)  any other matter the FWC considers relevant.

306G   Content of orders affecting more than one person

             (1)  Orders providing or maintaining secure employment arrangements for more than one relevant person may include one or more of the following:

                     (a)  an order requiring that all the relevant persons who are long term casual employees be offered or be subject to a secure employment arrangement;

                     (b)  an order providing for a process by which all the relevant persons who have been employed by the employer for a certain period of time can elect to or be subject to a secure employment arrangement;

                     (c)  an order specifying the terms of secure employment arrangements under which casual loadings would be phased out over a period of time so as to avoid a drop in employee remuneration;

                     (d)  an order implementing secure employment arrangements in such stages (as provided in the order) as the FWC thinks appropriate;

                     (e)  an order requiring the employer to provide information to the FWC for the purposes of monitoring the staged implementation of secure employment arrangements;

                      (f)  an order regulating the engagement of prospective employees on a casual basis or a secure employment basis;

                     (g)  an order regulating the employer’s use of arrangements that are not secure work arrangements:

                              (i)  in relation to casual employees; and

                             (ii)  in circumstances in which secure work arrangements could be used.

             (2)  Subsection (1) does not limit the orders that the FWC may make under this section.

306H   Implementation of secure employment order in stages

                   A secure employment order may implement secure employment arrangements in such stages (as provided in the order) as the FWC thinks appropriate.

306J   Contravening a secure employment order

                   An employer must not contravene a secure employment order.

Note:          This section is a civil remedy provision (see Part 4-1).

306K   Inconsistency with modern awards and enterprise agreements

                   A term of a modern award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a secure employment order that applies to the employee.

8  Subsection 539(2) (after table item 9)

Insert:

 

Part 2-7A—Secure employment arrangements

9A

306J

(a) a person to whom a secure employment order applies;

(b) an organisation entitled to represent a person to whom a secure employment order applies

(a) the Federal Court;

(b) the Federal Circuit Court;

(c) an eligible State or Territory court

for a serious contravention—600 penalty units; or

otherwise—60 penalty units

 

9  After paragraph 557(2)(f)

Insert:

                    (fa)  section 306J (which deals with contraventions of secure employment orders);

10  After paragraph 557C(3)(f)

Insert:

                    (fa)  section 306J (which deals with contraventions of secure employment orders);

11  After paragraph 558B(7)(f)

Insert:

                    (fa)  section 306J (which deals with contraventions of secure employment orders);

12  After paragraph 576(1)(f)

Insert:

                    (fa)  secure employment arrangements (Part 2-7A);

13  After paragraph 653(1)(c)

Insert:

                    (ca)  conduct research into the operation of Part 2-7A in relation to requests for secure employment arrangements; and

14  Subparagraph 653(1)(d)(i)

Repeal the subparagraph, substitute:

                              (i)  the circumstances in which such requests are made; and

15  After paragraph 675(2)(e)

Insert:

                    (ea)  a secure employment order;

16  At the end of subsection 716(1)

Add:

                   ; (g)  a term of a secure employment order.

[secure employment arrangements]