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Workplace Relations Amendment (Minimum Entitlements for Victorian Workers) Bill 2001
Schedule 1 Matters concerning Victoria

Part 1 Amendment of the Workplace Relations Act 1996

1  After subsection 45(3)

Insert:

          (3A)  The Full Bench must, on application, grant to a Minister of Victoria, on behalf of the Government of Victoria, leave to intervene in the following cases:

                     (a)  an appeal against a decision of a member of the Commission made under section 170MW in relation to a bargaining period for negotiating a proposed agreement if one or more of the employees to be covered by the proposed agreement is an employee in Victoria;

                     (b)  an appeal against a decision of a member of the Commission made under section 501.

2  Subsection 86(1)

Repeal the subsection, substitute:

Purpose for which powers of inspectors can be exercised

             (1)  The powers of an inspector under this section may be exercised for the purpose of ascertaining whether awards and certified agreements, and the requirements of this Act, are being, or have been, observed.

Powers of inspectors

          (1A)  The powers of an inspector are:

                     (a)  to, without force, enter:

                              (i)  premises on which the inspector has reasonable cause to believe that work to which an award or certified agreement applies is being or has been performed; or

                             (ii)  a place of business in which the inspector has reasonable cause to believe that there are documents relevant to the purpose set out in subsection (1); and

                     (b)  on premises or in a place referred to in paragraph (a):

                              (i)  to inspect any work, material, machinery, appliance, article or facility; and

                             (ii)  as prescribed, to take samples of any goods or substances; and

                            (iii)  to interview any employee; and

                            (iv)  to require a person having the custody of, or access to, a document relevant to that purpose to produce the document to the inspector within a specified period; and

                             (v)  to inspect, and make copies of or take extracts from, a document produced to him or her; and

                     (c)  to require a person, by notice, to produce to the inspector a document relevant to the purpose set out in subsection (1).

When may the powers be exercised?

          (1B)  An inspector may exercise the powers in subsection (1A) at any time during ordinary working hours or at any other time at which it is necessary to do so for the purpose set out in subsection (1).

3  Subsection 86(2)

Omit “subparagraph (1)(b)(iv)”, substitute “subparagraph (1A)(b)(iv)”.

4  Subsection 86(3)

Omit “subsection (2)”, substitute “paragraph (1A)(c) or subsection (2)”.

5  After subsection 86(4)

Insert:

Notices under paragraph (1A)(c)

          (4A)  The notice referred to in paragraph (1A)(c) must:

                     (a)  be in writing; and

                     (b)  be served on the person; and

                     (c)  require the person to produce the document at a specified place within a specified period of not less than 14 days.

Service may be effected by sending the notice to the person’s fax number.

Person must produce document even if it may incriminate them

          (4B)  A person is not excused from producing a document under paragraph (1A)(c) on the ground that the production of the document may tend to incriminate the person.

Limited use immunity for documents produced

          (4C)  If an individual produces a document under paragraph (1A)(c), the document produced and any information or thing (including any document) obtained as a direct or indirect consequence of the production of the document is not admissible in evidence against the individual in any criminal proceedings unless it is proceedings for an offence against section 305.

6  At the end of section 86

Add:

Extended meaning of award

             (6)  In this section, a reference to an award includes a reference to a contract of employment with an employee in Victoria (other than an employment agreement). The terms of the award, in this case, are taken to be the minimum terms and conditions of employees in Victoria applicable under subsection 500(1).

Definitions used in this section

             (7)  In this section:

employee in Victoria has the same meaning as the term employee has in section 489.

employment agreement has the same meaning it has in section 489.

7  After subsection 170MW(1)

Insert:

          (1A)  The Commission must, on application, grant to a Minister of Victoria, on behalf of the Government of Victoria, leave to intervene in proceedings under subsection (1) if one or more of the employees to be covered by the proposed agreement is an employee in Victoria.

8  Section 305

Omit “86(1)(b)(iv)”, substitute “86(1A)(b)(iv), paragraph 86(1A)(c)”.

9  At the end of subsection 501(1)

Add:

Note:          See also section 501A.

10  After subsection 501(2)

Insert:

          (2A)  The Commission must, on application, grant to a Minister of Victoria, on behalf of the Government of Victoria, leave to intervene in proceedings under subsection (1).

11  After section 501

Insert:

501A   Supported Wage System—minimum wage

             (1)  For the purposes of Schedule 1A, the Commission may, by order, determine that the Supported Wage System applies to the employment of employees within a work classification.

Note:          The Supported Wage System was endorsed by the Commission in the Full Bench decision dated 10 October 1994 (print L5723).

             (2)  If the Commission makes an order under subsection (1), the minimum wage for the purposes of Schedule 1A for employees whose wages are set under the Supported Wage System is the supported wage rate worked out in accordance with the Supported Wage System and not the relevant minimum wage otherwise applicable to those employees under paragraph 1(1)(c) of that Schedule.

             (3)  If the Supported Wage System requires a supported wage rate to be worked out by reference to another wage rate, then, for the purposes of subsection (2), the supported wage rate is to be worked out by reference to the minimum wage that would otherwise apply to those employees under paragraph 1(1)(c) of Schedule 1A.

             (4)  The Commission may only make an order under subsection (1) on application by:

                     (a)  an employee, or group of employees, within the work classification; or

                     (b)  an employer of such an employee or group of employees; or

                     (c)  the Minister; or

                     (d)  an organisation that is entitled to represent the industrial interests of one or more of the employees within the work classification; or

                     (e)  an organisation of which an employer of employees within the work classification is a member.

12  Subsection 502(1)

After “subsection 501(2)”, insert “or 501A(2)”.

13  After subsection 502(5)

Insert:

          (5A)  The Commission must, on application, grant to a Minister of Victoria, on behalf of the Government of Victoria, leave to intervene in proceedings under subsection (5).

14  Section 503

After “section 501”, insert “or 501A”.

15  Subsection 506(2)

Repeal the subsection, substitute:

             (2)  Subject to sections 507 and 508, if a contract of employment, other than an employment agreement, with an employee in Victoria does not at any time comply with a minimum term or condition of employment applicable under subsection 500(1), sections 178 and 179 apply as if that minimum term or condition were a term of an award binding the parties to the contract.

             (3)  Subsection (2) does not imply that an employee who is a party to an agreement referred to in that subsection may not take proceedings in an eligible court to recover money owed under the contract of employment as if the contract of employment did comply with that minimum term or condition of employment.

Note:       The heading to section 506 is omitted and the following heading substituted “ Penalties and recovery of wages—application of sections 178 and 179 to Victorian employees ”.

16  At the end of Subdivision B of Division 3 of Part XV

Add:

509A   Stand down provisions in a contract of employment (other than an employment agreement)

             (1)  If a contract of employment with an employee in Victoria (other than an employment agreement) does not contain provision for the standing-down of employees who cannot be usefully employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible, the contract is taken to include the provision mentioned in subsection (2).

             (2)  The provision is that:

                     (a)  the employer may deduct payment for any part of a day during which an employee cannot usefully be employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible; and

                     (b)  this does not break the continuity of employment of the employee for the purpose of any entitlements.

17  Heading to Subdivision D of Division 3 of Part XV

Repeal the heading, substitute:

Subdivision D Records relating to certain employees

18  Section 514

Repeal the section, substitute:

514   Making and retaining employment records

             (1)  This section applies to persons who are employees in Victoria and who are not employed under an award, a certified agreement or an AWA.

             (2)  The regulations may make provision in relation to:

                     (a)  the making and retention by employers of records relating to the employment of persons who are employees to whom this section applies; and

                     (b)  the inspection of such records.

             (3)  The regulations may require employers of persons who are employees to whom this section applies to issue pay slips to those persons at such times, and containing such particulars, as are prescribed.

Note:          The requirements concerning the making and keeping of records and the issuing of pay slips in relation to persons who are employees in Victoria but who are covered by awards, certified agreements or AWAs are to be found in section 353A.

19  Section 532

Repeal the section.

20  At the end of section 533

Add:

             (4)  A person is not entitled to apply for an order under this section in respect of a breach of a minimum term or condition of employment applicable under subsection 500(1) if the person has already sought a penalty under section 178 (as that section applies under section 506) in respect of that breach.

21  Paragraphs 1(1)(a) and (b) of Schedule 1A

Repeal the paragraphs, substitute:

                     (a)  except in the case of an employee engaged in casual or seasonal work—paid annual leave for each year worked (see clause 1A for the calculation of the number of hours of annual leave and further details about taking this leave);

                     (b)  except in the case of an employee engaged in casual or seasonal work—paid personal leave (see clauses 1B to 1D for the calculation of personal leave and further details about taking this leave);

                    (ba)  except in the case of an employee engaged in casual or seasonal work—paid bereavement leave (see clause 1E for the details about taking this leave);

22  Paragraph 1(1)(c) of Schedule 1A

Before “the greater of”, insert “unless paragraph (ca) applies—”.

23  After paragraph 1(1)(c) of Schedule 1A

Insert:

                    (ca)  if the employee’s wages are set under the Supported Wage System—the supported wage rate for the employee worked out in accordance with the Supported Wage System;

24  At the end of subclause 1(1) of Schedule 1A

Add:

                    ; (f)  if an employee works in excess of 38 hours in a working week—to be paid for the excess hours at the hourly rate set out in subclause (3).

25  At the end of clause 1 of Schedule 1A

Add:

Rate of pay for hours in excess of 38

             (3)  Unless an employee and employer agree to a higher hourly rate of pay, the rate of pay for hours that an employee works in excess of 38 hours in a working week is the hourly rate for the work classification of the employee applicable under section 501 or 501A.

26  At the end of Part 1 of Schedule 1A

Add:

1A   Annual leave

Calculation of annual leave

             (1)  To work out the number of hours of annual leave that an employee is entitled to:

                     (a)  first, work out the number of ordinary hours the employee worked in the year, or part of the year, as the case may be; and

                     (b)  second, divide that number by 48; and

                     (c)  third, multiply that number of hours by 4.

Rules about annual leave

             (2)  Annual leave:

                     (a)  accrues on a pro-rata basis and is cumulative; and

                     (b)  is credited on the anniversary of the employee’s employment; and

                     (c)  counts as service for all purposes; and

                     (d)  is to be paid at the employee’s ordinary hourly rate of pay; and

                     (e)  is to be paid at the time that the employee commences annual leave or leaves his or her employment, as the case may be; and

                      (f)  must be taken within 12 months after the end of the year in which it accrued unless the employee and the employer have agreed otherwise; and

                     (g)  must be taken by an employee when directed to take it by the employer, if the employer directs the employee to do so because the employer shuts down his or her business for a period.

1B   Personal leave

When personal leave may be used

             (1)  Subject to clauses 1C and 1D, an employee is entitled to paid personal leave when he or she is absent from work in the following circumstances:

                     (a)  due to personal illness or injury ( sick leave );

                     (b)  for the purposes of caring for a member of the employee’s immediate family or member of the employee’s household who is sick and requires the employee’s care and support ( carer’s leave ).

Note:       For immediate family see clause 1F.

Accrual of personal leave credit

             (2)  An employee accrues personal leave as follows:

                     (a)  if the employee has worked for the employer for less than 12 months—one day for each completed 6 weeks;

                     (b)  if the employee has worked for the employer for 12 months or more—8 days for each year.

Employees who work part-time accrue personal leave on a pro-rata basis.

Accumulation of personal leave

             (3)  At the end of each year of employment, an employee’s unused personal leave accrues by the lesser of:

                     (a)  8 days; or

                     (b)  the balance of the employee’s unused personal leave.

1C   Sick leave

Employee’s responsibilities

             (1)  An employee’s entitlement to sick leave is conditional on the employee promptly notifying the employer of:

                     (a)  any illness or injury that will cause him or her to be absent from work; and

                     (b)  the approximate period of that absence.

Employer may require medical certificate etc.

             (2)  If required by the employer, an employee who takes sick leave must establish by producing a medical certificate or making a statutory declaration that he or she was unable to work because of injury or personal illness.

Post sick leave payment

             (3)  After the first 5 months of service, an employee must be paid for any sick leave taken during that period to which he or she was not entitled, due to insufficient service, up to a maximum of 4 days.

Sick leave and workers’ compensation

             (4)  An employee is not entitled to take sick leave during any period for which he or she is receiving compensation payable under a law relating to workers’ compensation.

1D   Carer’s leave

Up to 5 days’ personal leave may be taken as carer’s leave

             (1)  An employee is entitled to use up to 5 days’ personal leave each year to care for a member of his or her immediate family or a member of his or her household who is ill and requires the employee’s care and support. However, an employee is not entitled to take carer’s leave for a particular period if another person has taken leave to care for the person for the same period.

Employee’s responsibility

             (2)  An employee’s entitlement to carer’s leave is conditional on the employee promptly notifying the employer of his or her inability to attend for duty.

Employer may require medical certificate etc.

             (3)  If required by the employer, an employee who takes carer’s leave must establish by producing a medical certificate, or making a statutory declaration:

                     (a)  the nature of the illness of the person cared for; and

                     (b)  the need of that person for care and support by another person.

1E   Bereavement leave

             (1)  An employee is entitled to take up to 2 days’ paid bereavement leave on the death of a member of the employee’s immediate family or household. The 2 days need not be consecutive.

Note:          For immediate family see clause 1F.

             (2)  The employee must give the employer such evidence of the death as the employer reasonably requires.

1F   Definitions

                   In this Part:

de facto spouse , in relation to an employee, means a person of the opposite sex to the employee who lives with the employee as his or her husband or wife on a bona fide domestic basis.

immediate family , in relation to an employee, includes:

                     (a)  a spouse of the employee (including a former spouse, a de facto spouse and a former de facto spouse); and

                     (b)  a child (including an adopted child, a step-child or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or spouse of the employee.



 

Part 2 Application and saving provisions

27  Definition

In this Part:

Principal Act means the Workplace Relations Act 1996 .

28  Application of item 1

The amendment of the Principal Act made by item 1 applies to:

                     (a)  appeals to the Full Bench instituted under section 45 of the Principal Act but not determined before the commencement of that item; and

                     (b)  appeals to the Full Bench under that section instituted on or after that commencement.

29  Application of item 7

The amendment of the Principal Act made by item 7 applies to:

                     (a)  applications made under section 170MW of the Principal Act but not determined as at the commencement of that item; and

                     (b)  applications made under that section on or after that commencement.

30  Application of item 10

The amendment of the Principal Act made by item 10 applies to:

                     (a)  applications made under section 501 of the Principal Act but not determined as at the commencement of that item; and

                     (b)  applications made under that section on or after that commencement.

31  Application of item 13

The amendment of the Principal Act made by item 13 applies to:

                     (a)  proceedings before the Full Bench under section 502 of the Principal Act but not determined as at the commencement of that item; and

                     (b)  proceedings referred to the Full Bench under that section on or after that commencement.

32  Application of item 15

The amendment of the Principal Act made by item 15 applies only in relation to a breach of a minimum term or condition of employment applicable to an employee under subsection 500(1) of that Act if that breach occurs on or after the commencement of that item.

33  Saving provision in relation to certain regulations made for the purposes of sections 353A and 514 of the Principal Act

(1)        Any regulations made for the purposes of section 353A of the Principal Act and dealing with record keeping in relation to employees covered by an employment agreement (within the meaning of Part XV) that are in force immediately before the commencement of items 17, 18 and 19 continue in force, on and after that day, as if they were regulations made to deal with that matter for the purposes of subsection 514(2) of that Act as amended by those items.

(2)        Any regulations made for the purposes of section 514 of the Principal Act that are in force immediately before the commencement of item 18 continue in force, on and after that day, as if they were regulations made for the purposes of subsection 514(3) of that Act as amended by that item.

34  Application of items 21 and 26—annual leave

(1)        The amendments of the Principal Act made by items 21 and 26 (except the insertion of clause 1E of Schedule 1A) apply to the calculation of an employee’s annual leave in respect of:

                     (a)  the first year of the employee’s employment that commences on or after the commencing day; and

                     (b)  each subsequent year of the employee’s employment.

(2)        For the purpose of the application of subitem (1) to an employee engaged before the commencing day and continuing in that employment on that day, the reference in paragraph (1)(a) to the first year of the employee’s employment that commences after the commencing day is a reference to the year commencing on the first anniversary of that engagement occurring on or after that day.

(3)        The rule in subitem (1) applies even if an employee only works part of a year.

(4)        To avoid doubt, the amendments made by items 21 and 26 do not affect any annual leave accumulated by an employee under Schedule 1A of the Principal Act before the commencing day.

(5)        In this item:

commencing day means the day that items 21 and 26 of this Schedule commence.

35  Application of items 21 and 26—personal leave

(1)        The amendments of the Principal Act made by items 21 and 26 (except the insertion of clause 1E of Schedule 1A) apply to:

                     (a)  the calculation of an employee’s personal leave in respect of:

                              (i)  the first year of the employee’s employment that commences on or after the commencing day; and

                             (ii)  each subsequent year of the employee’s employment; and

                     (b)  personal leave taken on or after the commencing day.

(2)        For the purpose of the application of paragraph (1)(a) to an employee engaged before the commencing day and continuing in that employment on that day, the reference in subparagraph (1)(a)(i) to the first year of the employee’s employment that commences after the commencing day is a reference to the year commencing on the first anniversary of that engagement occurring on or after that day.

(3)        The rule in paragraph (1)(a) applies even if an employee only works part of a year.

(4)        Any sick leave accumulated by an employee under paragraph 1(1)(b) of Schedule 1A as in force immediately before the commencing day is taken to be personal leave accumulated by the employee as at the commencing day.

(5)        In this item:

commencing day means the day that items 21 and 26 of this Schedule commence.

36  Bereavement leave

Clause 1E of Schedule 1A of the Principal Act applies in relation to deaths that occur on or after the commencement of item 26.