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Previous Fragment    
Workplace Relations and Other Legislation Amendment (Small Business and Other Measures) Bill 2001
Schedule 3 AWAs

Part 1 Amendments

Workplace Relations Act 1996

1  Divisions 1, 2, 3, 4, 5 and 6 of Part VID

Repeal the Divisions, substitute:

Division 1 Preliminary

Subdivision A Outline of Part

170VA   Outline of Part

             (1)  This Part deals with the making, approval and operation of:

                     (a)  Australian Workplace Agreements (AWAs); and

                     (b)  agreements to extend, vary or terminate AWAs (ancillary agreements).

             (2)  Division 1 contains provisions dealing with the interpretation and scope of this Part.

             (3)  Division 2 sets out the requirements for making an AWA.

             (4)  Division 3 deals with the approval process for AWAs.

             (5)  Division 4 sets out the effect of an AWA on awards, agreements and laws. It also:

                     (a)  sets out obligations breach of which may lead to a civil penalty; and

                     (b)  deals with the conduct of industrial action by a party to an AWA during the AWA’s period of operation before its nominal expiry date.

             (6)  Division 5 deals with agreements to extend, vary or terminate AWAs. The Division contains the following Subdivisions:

                     (a)  Subdivision A dealing with the making and approval of extension agreements;

                     (b)  Subdivision B dealing with the making and approval of variation agreements;

                     (c)  Subdivision C dealing with the making and approval of agreements to terminate AWAs and other mechanisms for terminating AWAs.

             (7)  Division 7 deals with enforcement and remedies in relation to AWAs and ancillary agreements.

             (8)  Division 8 deals with limited immunity for industrial action.

             (9)  Division 9 contains miscellaneous matters in relation to AWAs and ancillary agreements.

Subdivision B Interpretation

170VAA   Definitions

                   In this Part, unless the contrary intention appears:

ancillary document means any of the following:

                     (a)  a variation agreement;

                     (b)  an extension agreement;

                     (c)  a termination agreement;

                     (d)  a termination notice.

approval notice means an approval notice issued by the Employment Advocate under Division 3 or 5.

approved means approved under Division 3 or 5 by the Employment Advocate.

AWA has a meaning affected by section 170VAB and subsections 170VCB(3) and 170VEG(3).

AWA date means the date on which the employer and employee sign the AWA or, if they sign on different dates, the later of those dates.

bargaining agent means a person or group of persons duly appointed as a bargaining agent under section 170WEA.

constitutional trade or commerce means trade or commerce:

                     (a)  between Australia and a place outside Australia; or

                     (b)  between the States; or

                     (c)  within a Territory, between a State and a Territory or between 2 Territories.

eligible court means any of the following:

                     (a)  the Federal Court of Australia;

                     (b)  a District, County or Local Court;

                     (c)  a magistrate’s court.

employee has a meaning affected by section 170VAB.

employer has a meaning affected by section 170VAB.

existing employee , in relation to an AWA, means an employee who signed the AWA after commencing the employment to which the AWA relates.

extension agreement means an agreement to extend the nominal expiry date of an AWA.

new employee , in relation to an AWA, means an employee who signed the AWA before, or at the time of, commencing the employment to which the AWA relates.

no-disadvantage test means the no-disadvantage test set out in Part VIE.

nominal expiry date means the nominal expiry date that applies under section 170VBC.

party , in relation to an AWA or ancillary document, means the employer or employee.

period of operation , in relation to an AWA, means the period of operation as determined under section 170VBD.

refusal notice means a refusal notice issued by the Employment Advocate under Division 3 or 5.

relevant or designated award means the relevant or designated award that is used when applying the no-disadvantage test set out in Part VIE.

State agreement means an employment agreement made under, or for the purposes of, a law of a State.

termination agreement means an agreement to terminate an AWA.

variation agreement means an agreement to vary an AWA.

verified copy , in relation to a document,means a copy that is certified as being a true copy of the document.

170VAB   Proposed AWAs and ancillary documents—interpretation

             (1)  So far as the context permits, a reference in this Part to an AWA or ancillary document includes a reference to a proposed AWA or ancillary document.

             (2)  In relation to a proposed AWA or ancillary document, a reference to the employer or employee is a reference to the person who will be the employer or employee when the AWA or ancillary document starts to operate.

Subdivision C Scope of this Part etc.

170VAC   Scope of this Part

                   An AWA is of no effect unless at least one of the following applies at the AWA date:

                     (a)  the employer is a constitutional corporation;

                     (b)  the employer is the Commonwealth;

                     (c)  the employee’s primary workplace is in a Territory;

                     (d)  the employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade or commerce;

                     (e)  the employee is a maritime employee and the employee’s employment is in connection with constitutional trade or commerce;

                      (f)  the employee is a flight crew officer and the employee’s employment is in connection with constitutional trade or commerce.

170VAD   AWAs and ancillary documents only have effect as provided by this Part

                   An AWA or ancillary document has effect as provided by this Part, and not otherwise.

Division 2 Making an AWA

170VB   Employer and employee may make an AWA

             (1)  An employer and employee may make a written agreement, called an Australian workplace agreement (an AWA ), that deals with matters pertaining to the relationship between an employer and employee.

             (2)  The requirements set out in the following sections must be satisfied in relation to the AWA:

                     (a)  section 170VBA (making an AWA);

                     (b)  section 170VBB (content of an AWA).

             (3)  The AWA may be made before commencement of the employment.

170VBA   Making an AWA

             (1)  An AWA must be signed and dated by the employer and the employee who are parties to it.

             (2)  The employee must genuinely consent to the terms and conditions in the AWA.

             (3)  The employer must give the employee a copy of the AWA.

Note:          This section is a civil penalty provision (see section 170VV).

             (4)  Before the employee signs the AWA, the employer must:

                     (a)  give the employee a copy of an information statement prepared by the Employment Advocate (see subsection (5)); and

                     (b)  explain the effect of the AWA to the employee.

             (5)  The information statement prepared by the Employment Advocate for the purposes of paragraph (4)(a) must include information about the following matters, but may include other information:

                     (a)  Commonwealth statutory entitlements;

                     (b)  occupational health and safety law;

                     (c)  services provided by the Employment Advocate;

                     (d)  bargaining agents.

Note:          For more information on bargaining agents, see section 170WEA.

             (6)  The employee may withdraw his or her consent to the AWA by giving written notice of the withdrawal of consent to the employer before the end of the cooling-off period.

Note:          The employee may withdraw his or her consent to the AWA even after the employer has applied to the Employment Advocate for approval of the AWA (see subsections 170VC(5) and (6)).

             (7)  The cooling-off period is the period of:

                     (a)  5 days after the day on which a new employee signs the AWA; and

                     (b)  14 days after the day on which an existing employee signs the AWA.

170VBB   Content of AWA

Must be included

             (1)  The AWA must include the provisions relating to discrimination that are prescribed by the regulations. If the AWA does not in fact include those provisions, the AWA is taken to include those provisions.

             (2)  The AWA must include a dispute resolution procedure. If the AWA does not in fact include a dispute resolution procedure, the AWA is taken to include the model procedure that is prescribed by the regulations.

             (3)  A dispute resolution procedure that is included in an AWA under subsection (2), or prescribed by the regulations for the purposes of subsection (2), may confer powers on the Commission to settle disputes between the parties to the AWA about the application or interpretation of the AWA. The Commission may exercise those powers.

Must not be included

             (4)  The AWA must not include any provisions that prohibit or restrict disclosure of details of the AWA by either party to another person.

             (5)  The AWA must not include any objectionable provisions within the meaning of section 298Z.

170VBC   Nominal expiry date of AWA

             (1)  An AWA may specify a date as its nominal expiry date. The date cannot be more than 3 years after the AWA date.

             (2)  If no date is specified, then the nominal expiry date is the third anniversary of the AWA date.

170VBD   Period of operation of AWA

                   Subject to section 170VCE, an AWA for an employee starts operating on the later of:

                     (a)  the AWA date; or

                     (b)  the day specified in the AWA as the starting day; or

                     (c)  if the employee is a new employee—the day the employment commences;

and stops operating at the earlier of the following times:

                     (d)  if no application is made to the Employment Advocate to approve the AWA within the period of 60 days starting on the AWA date—the start of the day after the end of that period;

                     (e)  the end of the day when a refusal notice is issued in relation to the AWA;

                      (f)  the time when a termination under section 170VEN, 170VEO or 170VEQ takes effect;

                     (g)  the time when another AWA between the employer and employee starts to operate.

Note:          See also section 170VCA which deals with the effect of the employee’s withdrawal of consent to the AWA.

Division 3 Approval of AWAs

170VC   Applications for approval of AWAs

             (1)  An employer must apply, in writing, to the Employment Advocate for approval of an AWA to which the employer is a party unless the employee withdraws his or her consent to the AWA before the end of the cooling-off period referred to in subsection 170VBA(7).

             (2)  The application must be made before the end of the period of 60 days starting on the AWA date.

Note:          Section 170VCE sets out the consequences of failure to apply for approval by the deadline.

             (3)  An application must be accompanied by:

                     (a)  a copy of the AWA; and

                     (b)  any other information that the Employment Advocate requires, by notice published in the Gazette , for the purpose of performing his or her functions.

             (4)  Two or more agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

             (5)  Before the end of the cooling-off period referred to in subsection 170VBA(7), an employee referred to in subsection 170VBA(6) may withdraw his or her consent to the AWA by giving to the employer and the Employment Advocate written notice of the withdrawal of consent.

             (6)  The employee must lodge the written notice of withdrawal of consent with the Employment Advocate within 7 days after giving notice of withdrawal to the employer.

170VCA   Consequences for AWA of employee’s withdrawal of consent

                   If:

                     (a)  an employee referred to in subsection 170VBA(6) or 170VC(5) withdraws his or her consent to the AWA before the end of the cooling-off period referred to in subsection 170VBA(7); and

                     (b)  apart from this section, the AWA would have already started to operate;

the AWA is taken not to have started to operate.

170VCB   Employment Advocate must approve, or refuse to approve, AWA

Must approve if AWA passes the no-disadvantage test etc.

             (1)  The Employment Advocate must approve an AWA if:

                     (a)  the application for approval of the AWA is made in accordance with section 170VC; and

                     (b)  the AWA satisfies the requirements of section 170VBA; and

                     (c)  the AWA complies with section 170VBB; and

                     (d)  the AWA passes the no-disadvantage test.

Approval if concerns resolved

             (2)  If the Employment Advocate has concerns about whether the AWA meets the requirements of subsection (1), the Employment Advocate must give the parties to the AWA an opportunity to:

                     (a)  take any action (including giving undertakings); or

                     (b)  give to the Employment Advocate any information sought by the Employment Advocate.

The Employment Advocate must approve the AWA if satisfied that, because of the action taken or information given, those concerns are resolved.

             (3)  An undertaking accepted by the Employment Advocate is taken to be included in the AWA.

Approval if no disadvantage to parties

             (4)  The Employment Advocate may approve the AWA if he or she:

                     (a)  is not satisfied that the requirements of subsection 170VBA(1) are met; but

                     (b)  is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

Approval if not contrary to the public interest

             (5)  The Employment Advocate may approve the AWA if the Employment Advocate:

                     (a)  is not satisfied that the AWA passes the no-disadvantage test; but

                     (b)  is satisfied that it is not contrary to the public interest to approve the AWA.

             (6)  In deciding whether approval of an AWA is not contrary to the public interest, the Employment Advocate must apply the principles (if any) referred to in section 170VCC.

Otherwise, approval refused

             (7)  If the Employment Advocate is not required to approve the AWA and does not approve the AWA under subsection (4) or (5), the Employment Advocate must refuse to approve it.

170VCC   Principles for deciding whether approval of an AWA etc. is not contrary to the public interest

             (1)  The President may establish principles to provide general guidance to the Employment Advocate concerning whether approval of an AWA (or approval of an AWA as varied) is not contrary to the public interest.

             (2)  The President may establish principles:

                     (a)  on his or her own initiative; or

                     (b)  on application by the Employment Advocate.

             (3)  If the Employment Advocate applies to the President for the establishment of principles, the President must take such steps as the President considers appropriate to obtain the Employment Advocate’s views about the proposed principles.

170VCD   Employment Advocate must issue approval or refusal notice

             (1)  If the Employment Advocate approves an AWA, the Employment Advocate must issue an approval notice to the employer.

             (2)  If the Employment Advocate refuses to approve an AWA, the Employment Advocate must issue a refusal notice to the employer.

             (3)  If a designated award applies to the AWA to which the approval notice or refusal notice relates, the Employment Advocate must identify the award in the notice.

             (4)  The Employment Advocate must also include in an approval notice a copy of each of the following:

                     (a)  the provisions relating to discrimination referred to in subsection 170VBB(1) (if they are taken to be included in the AWA because of that subsection);

                     (b)  the model procedure relating to a dispute resolution procedure referred to in subsection 170VBB(2) (if it is taken to be included in the AWA because of that subsection);

                     (c)  a copy of each undertaking (if any) in relation to the AWA that is taken to be included in the AWA because of subsection 170VCB(3).

170VCE   Consequences for AWA of failure to apply for approval, or refusal of approval

             (1)  If no application is made for approval of an AWA within the period of 60 days after the AWA date:

                     (a)  if the AWA has already started operating—the AWA ceases to operate after the end of that period; and

                     (b)  if the AWA has not already started operating—the AWA does not start to operate; and

                     (c)  the Employment Advocate cannot approve the AWA.

             (2)  If the Employment Advocate issues a refusal notice in relation to the AWA:

                     (a)  if the AWA has already started operating—the AWA ceases operating at the end of the day when the refusal notice is issued; and

                     (b)  if the AWA has not already started operating—the AWA does not start to operate; and

                     (c)  the Employment Advocate cannot approve the AWA.

170VCF   Employer must give copies of documents to employee

             (1)  As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the AWA was made a copy of:

                     (a)  the notice; and

                     (b)  any material that is taken to be included in the AWA because of subsections 170VBB(1) and (2) and subsection 170VCB(3).

Note:          This subsection is a civil penalty provision (see section 170VV).

             (2)  The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

Note:          This subsection is a civil penalty provision (see section 170VV).

Division 4 Effect of an AWA

170VD   Effect of AWA on awards and agreements

             (1)  During its period of operation, an AWA operates to the exclusion of any award that would otherwise apply to the employee’s employment. This subsection has effect subject to subsections (2) and (3).

             (2)  An AWA is of no effect if it is made:

                     (a)  after the commencement of an award that is made under subsection 170MX(3) and applies to the employee’s employment; and

                     (b)  before the nominal expiry date of the award.

             (3)  An AWA does not operate to the exclusion of an exceptional matters order, but prevails over an exceptional matters order to the extent of any inconsistency.

             (4)  During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee’s employment.

             (5)  The relationship between an AWA and a certified agreement is as follows:

                     (a)  a certified agreement prevails over the AWA to the extent of any inconsistency if:

                              (i)  the certified agreement is in operation at the time the AWA comes into operation; and

                             (ii)  the nominal expiry date of the certified agreement is after the date on which the AWA comes into operation; and

                            (iii)  the certified agreement does not expressly allow a subsequent AWA to operate to the exclusion of the certified agreement or to prevail over the certified agreement to the extent of any inconsistency;

                     (b)  a certified agreement that comes into operation after the nominal expiry date of the AWA prevails over the AWA to the extent of any inconsistency;

                     (c)  in all other cases, the AWA operates to the exclusion of any certified agreement that would otherwise apply to the employee’s employment.

170VDA   Effect of AWA on other laws

State law

             (1)  Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency.

             (2)  Provisions in an AWA that deal with the following matters operate subject to the provisions of any State law that deals with the matter:

                     (a)  occupational health and safety;

                     (b)  workers’ compensation;

                     (c)  apprenticeship;

                     (d)  any other matter prescribed by the regulations.

             (3)  If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the AWA.

Prescribed conditions of employment

             (4)  To the extent of any inconsistency, an AWA prevails over prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.

             (5)  In this section:

Commonwealth law means an Act or any regulations or other instrument made under an Act.

prescribed conditions means conditions that are identified by the regulations.

State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or State agreement.

170VDB   Parties must not breach AWA

                   A party to an AWA must not breach the AWA.

Note:          This section is a civil penalty provision (see section 170VV).

170VDC   Industrial action etc. by party to AWA

             (1)  During the period of operation of an AWA before its nominal expiry date, the employee must not engage in industrial action in relation to the employment to which the AWA relates.

Note:          This subsection is a civil penalty provision (see section 170VV).

             (2)  During the period of operation of an AWA before its nominal expiry date, the employer must not lock out the employee for the purpose of supporting or advancing claims in respect of the employee’s employment.

Note:          This subsection is a civil penalty provision (see section 170VV).

170VDD   Employer’s successor and AWA to which employer is a party

             (1)  If:

                     (a)  an employee who is a party to an AWA becomes an employee of a new employer because the new employer is a successor to the whole or any part of the previous employer’s business or undertaking; and

                     (b)  at the succession time at least one of the following applies:

                              (i)  the new employer is a constitutional corporation;

                             (ii)  the new employer is the Commonwealth;

                            (iii)  the employee’s primary workplace is in a Territory;

                            (iv)  the new employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade or commerce;

                             (v)  the employee is a maritime employee and the employee’s employment is in connection with constitutional trade or commerce;

                            (vi)  the employee is a flight crew officer and the employee’s employment is in connection with constitutional trade or commerce;

then the new employer replaces the previous employer as a party to the AWA from the succession time.

             (2)  The succession does not affect the rights and obligations of the previous employer that arose before the succession.

             (3)  In this section:

successor means a successor, transmittee or assignee.

Division 5 Extending, varying or terminating an AWA

Subdivision A Extension agreements

170VE   Agreement to extend AWA’s nominal expiry date

             (1)  An employer and employee may make a written agreement that extends the nominal expiry date of an AWA to which they are parties. The extended date cannot be more than 3 years after the AWA date.

             (2)  An extension agreement may only be made before the nominal expiry date of the AWA.

             (3)  An extension agreement is made when it is signed and dated by the employer and the employee who are parties to it.

             (4)  The employee must genuinely consent to making the extension agreement.

             (5)  The employee may withdraw his or her consent to the extension agreement by giving written notice of the withdrawal of consent to the employer and the Employment Advocate before the end of the cooling-off period.

             (6)  The cooling-off period is the period of 14 days after the day on which the employee signs the agreement.

             (7)  Subject to section 170VEC, the extension agreement takes effect on the day on which the employer and the employee sign the agreement, or if they sign on different days, the later of those days.

170VEA   Application for approval of extension agreement

             (1)  An employer must apply, in writing, to the Employment Advocate for approval of an extension agreement to which the employer is a party. An application for approval must be made within the period of 60 days starting on the day when the agreement takes effect.

Note:          Subsection 170VEC(1) sets out the consequences of failure to apply for approval before the end of that period.

             (2)  An application must be accompanied by:

                     (a)  a copy of the extension agreement; and

                     (b)  any other information that the Employment Advocate requires, by notice published in the Gazette , for the purpose of performing his or her functions.

             (3)  Two or more extension agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

170VEB   Employment Advocate must approve, or refuse to approve, extension agreement

Approval if sections 170VE and 170VEA satisfied

             (1)  The Employment Advocate must approve the extension agreement if:

                     (a)  the application for approval of the extension agreement is made in accordance with section 170VEA; and

                     (b)  the extension agreement satisfies the requirements of section 170VE.

Approval if no disadvantage to parties

             (2)  The Employment Advocate may approve the extension agreement if he or she:

                     (a)  is not satisfied that the requirements of subsection 170VE(3) are met; but

                     (b)  is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

Approval notice etc.

             (3)  If the Employment Advocate approves an extension agreement, the Employment Advocate must:

                     (a)  issue an approval notice to the employer; and

                     (b)  give a copy of the extension agreement as approved to the employer.

Refusal of approval and refusal notice

             (4)  If the Employment Advocate is not required to approve the extension agreement and does not approve the extension agreement under subsection (2), the Employment Advocate must:

                     (a)  refuse to approve the extension agreement; and

                     (b)  issue a refusal notice to the employer.

Note:          Subsection 170VEC(2) sets out the consequences of the issuing of a refusal notice.

Employer must give certain documents to employee

             (5)  As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the extension agreement was made a copy of:

                     (a)  the notice; and

                     (b)  the extension agreement (if it was approved).

Note:          This subsection is a civil penalty provision (see section 170VV).

             (6)  The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

Note:          This subsection is a civil penalty provision (see section 170VV).

170VEC   Consequences for extension agreement of failure to apply for approval or refusal of approval

             (1)  If no application is made for approval of an extension agreement within the period of 60 days starting on the day when the agreement took effect:

                     (a)  the extension agreement ceases to have effect after the end of that period; and

                     (b)  the Employment Advocate cannot approve the extension agreement.

             (2)  If the Employment Advocate issues a refusal notice in relation to the extension agreement, the extension agreement ceases to have effect at the end of the day when the refusal notice is issued.

Subdivision B Variation agreements

170VED   Agreement to vary an AWA

             (1)  An employer and employee may make a written agreement varying an AWA. A variation agreement is made when it is signed and dated by the employer and the employee who are parties to it.

Note:          A variation agreement may vary the AWA’s nominal expiry date. However, the extended date cannot be more than 3 years after the AWA date (see sections 170VBC and 170VE).

             (2)  The employee may withdraw his or her consent to the variation agreement by giving written notice of the withdrawal of consent to the employer and the Employment Advocate before the end of the cooling-off period.

             (3)  The cooling-off period is the period of 14 days after the day on which the employee signs the agreement.

             (4)  Subject to sections 170VEF and 170VEJ, the variation agreement takes effect on:

                     (a)  the day on which the employer and employee sign the variation agreement, or if they sign on different days, the later of those days; and

                     (b)  if a day is specified in the variation agreement as the date of effect and that day is later than the day under paragraph (a)—the day specified in the agreement.

             (5)  Sections 170VBA and 170VBB apply to the AWA as varied in the same way as those sections apply to the original AWA.

170VEE   Applications for approval of variation agreements

             (1)  An employer must apply, in writing, to the Employment Advocate for approval of a variation agreement to which the employer is a party unless the employee withdraws his or her consent to the variation agreement before the end of the cooling-off period referred to in subsection 170VED(3).

             (2)  An application for approval must be made within the period of 60 days starting on:

                     (a)  the day on which the employer and the employee sign the variation agreement; or

                     (b)  if they sign on different days—the later of those days.

Note:          Subsection 170VEJ(1) sets out the consequences of failure to apply for approval by the deadline.

             (3)  An application must be accompanied by:

                     (a)  a copy of the variation agreement; and

                     (b)  any other information that the Employment Advocate requires, by notice published in the Gazette , for the purpose of performing his or her functions.

             (4)  Two or more variation agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

170VEF   Consequences for variation agreement of employee’s withdrawal of consent

                   If:

                     (a)  an employee referred to in subsection 170VED(2) withdraws his or her consent to the variation agreement before the end of the cooling-off period referred to in subsection 170VED(3); and

                     (b)  apart from this section, the variation agreement would already have taken effect;

the variation agreement is taken not to have taken effect.

170VEG   Employment Advocate must approve, or refuse to approve, variation agreement

Approval if AWA, as varied, passes the no-disadvantage test etc.

             (1)  The Employment Advocate must approve a variation agreement if:

                     (a)  the application for approval of the variation agreement is made in accordance with section 170VEE; and

                     (b)  the variation agreement satisfies the requirements of section 170VBA as it applies to those agreements; and

                     (c)  the AWA as varied complies with section 170VBB as it applies to variation agreements; and

                     (d)  the AWA, as varied, passes the no-disadvantage test.

Approval if concerns resolved

             (2)  If the Employment Advocate has concerns about whether the AWA meets the requirements of subsection (1), the Employment Advocate must give the parties to the AWA an opportunity to:

                     (a)  take any action (including giving undertakings); or

                     (b)  give to the Employment Advocate any information sought by the Employment Advocate.

The Employment Advocate must approve the AWA if satisfied that, because of the action taken or information given, those concerns are resolved.

             (3)  An undertaking accepted by the Employment Advocate is taken to be included in the AWA as varied.

Approval if no disadvantage to parties

             (4)  The Employment Advocate may approve the variation agreement if he or she:

                     (a)  is not satisfied that the requirements of subsection 170VBA(1) (as it applies to the variation agreement) are met in all respects; but

                     (b)  is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

Approval if not contrary to the public interest

             (5)  The Employment Advocate may approve the variation agreement if the Employment Advocate:

                     (a)  is not satisfied that the AWA as varied passes the no-disadvantage test; but

                     (b)  is satisfied that it is not contrary to the public interest to approve the variation agreement.

             (6)  In deciding whether approval of a variation agreement is not contrary to the public interest, the Employment Advocate must apply the principles (if any) referred to in section 170VCC.

Otherwise, approval refused

             (7)  If the Employment Advocate is not required to approve the variation agreement and does not approve the variation agreement under subsection (4) or (5), the Employment Advocate must refuse to approve it.

170VEH   Employment Advocate must issue approval or refusal notice

             (1)  If the Employment Advocate approves a variation agreement, the Employment Advocate must:

                     (a)  issue an approval notice to the employer; and

                     (b)  give a copy of the variation agreement as approved to the employer.

             (2)  If the Employment Advocate refuses to approve a variation agreement, the Employment Advocate must issue a refusal notice to the employer.

Note:          Subsection 170VEJ(2) sets out the consequences of the issuing of a refusal notice.

170VEI   Employer must give copies of documents to employee

             (1)  As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the variation agreement was made a copy of:

                     (a)  the notice; and

                     (b)  the variation agreement as approved (if it was approved); and

                     (c)  any material that is taken to be included in the AWA because of paragraph 170VEG(1)(c) or subsection 170VEG(3).

Note:          This subsection is a civil penalty provision (see section 170VV).

             (2)  The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

Note:          This subsection is a civil penalty provision (see section 170VV).

170VEJ   Consequences for variation agreement of failure to apply for approval or refusal of approval

             (1)  If no application is made for approval of a variation agreement before the end of the period referred to in subsection 170VEE(2):

                     (a)  if the variation agreement has already taken effect—the variation agreement ceases to have effect after the end of that period; and

                     (b)  if the variation agreement has not already taken effect—the variation agreement does not take effect; and

                     (c)  the Employment Advocate cannot approve the variation agreement.

             (2)  If the Employment Advocate issues a refusal notice in relation to the variation agreement:

                     (a)  if the variation agreement has already taken effect—the variation agreement ceases to have effect at the end of the day when the refusal notice is issued; and

                     (b)  if the variation agreement has not already taken effect—the variation agreement does not take effect.

Subdivision C Terminating an AWA

170VEK   Terminating an AWA

                   This Subdivision sets out the 3 ways in which an AWA may be terminated:

                     (a)  termination by a termination agreement (see sections 170VEL to 170VEN); and

                     (b)  termination by the Employment Advocate (see section 170VEO); and

                     (c)  termination in accordance with the AWA (see sections 170VEP and 170VEQ).

170VEL   Termination agreement

             (1)  At any time, the employer and employee may make a written agreement to terminate the AWA.

             (2)  A termination agreement is made when it is signed and dated by the employer and the employee who are parties to it.

             (3)  The employee must genuinely consent to making the termination agreement.

             (4)  The employee may withdraw his or her consent to the termination agreement by giving written notice of the withdrawal of consent to the employer and the Employment Advocate before the end of the cooling-off period.

             (5)  The cooling-off period is the period of 14 days after the day on which the employee signs the agreement.

             (6)  A termination agreement must be approved by the Employment Advocate under section 170VEN. If approved, the agreement takes effect:

                     (a)  at the end of the day on which an approval notice is issued for the termination agreement; or

                     (b)  if a time for termination is specified in the termination agreement and that time is later than the time under paragraph (a)—at the time specified in the termination agreement.

If the Employment Advocate refuses to approve the termination agreement, it does not take effect.

170VEM   Application for approval of termination agreement

             (1)  An employer must apply, in writing, to the Employment Advocate for approval of a termination agreement to which the employer is a party.

             (2)  The application must be made within the period of 60 days starting when the termination agreement is made.

             (3)  An application must be accompanied by:

                     (a)  a copy of the termination agreement; and

                     (b)  any other information that the Employment Advocate requires, by notice published in the Gazette , for the purpose of performing his or her functions.

             (4)  Two or more termination agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

170VEN   Employment Advocate must approve, or refuse to approve, termination agreement

Approval if sections 170VEL and 170VEM are satisfied

             (1)  The Employment Advocate must approve the termination agreement if:

                     (a)  the application for approval of the termination agreement is made in accordance with section 170VEM; and

                     (b)  the termination agreement satisfies the requirements of section 170VEL.

Approval if no disadvantage to parties

             (2)  The Employment Advocate may approve the termination agreement if he or she:

                     (a)  is not satisfied that the requirements of subsection 170VEL(2) are met; but

                     (b)  is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

Approval notice

             (3)  If the Employment Advocate approves a termination agreement, the Employment Advocate must issue an approval notice to the employer.

Refusal of approval and refusal notice

             (4)  If the Employment Advocate is not required to approve the termination agreement and does not approve the termination agreement under subsection (2), the Employment Advocate must:

                     (a)  refuse to approve the termination agreement; and

                     (b)  issue a refusal notice to the employer.

Employer must give certain documents to employee

             (5)  As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the termination agreement was made a copy of:

                     (a)  the notice; and

                     (b)  the termination agreement (if it was approved).

Note:          This subsection is a civil penalty provision (see section 170VV).

             (6)  The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

Note:          This subsection is a civil penalty provision (see section 170VV).

170VEO   Termination by Employment Advocate

             (1)  After the nominal expiry date of an AWA, the Employment Advocate may, on application in writing by either party, terminate the AWA if the Employment Advocate considers that it is not contrary to the public interest to do so.

             (2)  Before making a determination for the purposes of subsection (1), the Employment Advocate must take such steps as he or she thinks appropriate to obtain the views of each of the parties to the AWA about whether the AWA should be terminated.

             (3)  The Employment Advocate must issue a copy of its determination to the parties.

             (4)  A determination under subsection (3) takes effect at the end of the day on which the Employment Advocate issues copies of its determination, or at such later time as is specified in the determination.

170VEP   Termination in accordance with the AWA

             (1)  After the nominal expiry date of an AWA, the employer or the employee may apply, in writing, to the Employment Advocate for approval to terminate the AWA in a manner provided for in the AWA.

             (2)  As soon as practicable after making the application, the applicant must give written notice of the application to the other party to the AWA.

             (3)  An application must be accompanied by:

                     (a)  details of the manner provided for in the AWA to terminate the AWA; and

                     (b)  any other information that the Employment Advocate requires, by notice published in the Gazette , for the purpose of performing his or her functions.

             (4)  The termination of 2 or more AWAs may be covered by the same notice of application if:

                     (a)  the applicant is the employer; and

                     (b)  the employer is a party to all the AWAs.

The terminations need not be in the same terms.

             (5)  A termination referred to in subsection (1) must be approved by the Employment Advocate under section 170VEQ. If approved, the termination takes effect:

                     (a)  at the end of the day on which an approval notice is issued in relation to the termination; or

                     (b)  if a time for termination is specified in the application and that time is later than the time under paragraph (a)—at the time specified in the application.

If the Employment Advocate refuses to approve the termination, it does not take effect.

170VEQ   Employment Advocate must approve, or refuse to approve, terminations under AWAs

Approval if section 170VEP etc. satisfied

             (1)  The Employment Advocate must approve an application made under section 170VEP if:

                     (a)  the application is made in accordance with section 170VEP; and

                     (b)  the applicant has notified the other party of the application; and

                     (c)  the termination is in accordance with the AWA.

Approval notice

             (2)  If the Employment Advocate approves the application, the Employment Advocate must issue an approval notice to the applicant.

Refusal of approval and refusal notice

             (3)  If the Employment Advocate is not required to approve the termination, the Employment Advocate must:

                     (a)  refuse to approve the termination; and

                     (b)  issue a refusal notice to the applicant.

Applicant must give certain documents to other party

             (4)  As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the applicant must give the other party to the AWA copy of the notice.

Note:          This subsection is a civil penalty provision (see section 170VV).

             (5)  The applicant must give the other party to the AWA any other document prescribed by the regulations, within the period required by the regulations.

Note:          This subsection is a civil penalty provision (see section 170VV).

2  At the end of subsection 170VV(1)

Add:

A contravention is not an offence.

Note:       The heading to section 170VV is replaced by the heading “ Civil penalties ”.

3  Subsection 170VV(3)

Repeal the subsection, substitute:

             (3)  An application for an order under subsection (1) that relates to an AWA or ancillary document may be made by:

                     (a)  a party to the AWA or ancillary document; or

                     (b)  the Employment Advocate; or

                     (c)  an authorised officer.

4  Subsection 170VV(4) (definition of penalty provision )

Repeal the subsection, substitute:

             (4)  In this section:

penalty provision means:

                     (a)  subsection 170VBA(3); or

                     (b)  subsection 170VCF(1) or (2); or

                     (c)  section 170VDB; or

                     (d)  subsection 170VDC(1) or (2); or

                     (e)  subsection 170VEB(5) or (6); or

                      (f)  subsection 170VEI(1) or (2); or

                     (g)  subsection 170VEN(5) or (6); or

                     (h)  subsection 170VEQ(4) or (5); or

                      (i)  subsection 170WE(1); or

                      (j)  subsection 170WEA(2) or (4); or

                     (k)  subsection 170WF(1); or

                      (l)  subsection 170WG(1) or (2); or

                    (m)  section 170WH.

5  After section 170VV

Insert:

170VVA   Eligible court may order employer to pay underpayment to employee

             (1)  If, in a proceeding against an employer under section 170VV, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under the AWA, the court may order the employer to pay to the employee the amount of the underpayment.

             (2)  An order must not be made under subsection (1) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceedings.

6  At the end of section 170VW

Add:

             (3)  This section does not apply to the extent that the amount of the loss or damage has been recovered by the employee who is a party to the AWA because of an order made under section 170VVA.

7  Section 170VX

Repeal the section, substitute:

170VX   Compensation for shortfall in entitlements—AWA not operating

             (1)  If an AWA stops operating in the circumstances set out in subsection (2) and the amount worked out under paragraph (a) below is less than the amount worked out under paragraph (b) below, the employee (or the Employment Advocate, or an authorised officer, on the employee’s behalf) is entitled to recover the shortfall from the employer in an eligible court:

                     (a)  the total value of the entitlements to which the employee became entitled under the AWA for the period it was in operation;

                     (b)  the total value of the entitlements to which the employee would have been entitled for that period (if the AWA had not been made) under the relevant award in respect of the employment to which the AWA relates.

             (2)  The circumstances are where the AWA stops operating because of one of the following:

                     (a)  the employer’s failure to apply for approval of the AWA within the period of 60 days after the AWA date;

                     (b)  the issue of a refusal notice in relation to the AWA.

170VXA   Compensation for shortfall in entitlements—AWA approved after employer’s action

             (1)  This section applies if:

                     (a)  the Employment Advocate approved an AWA under subsection 170VCB(2) because the employer took action referred to in that subsection; and

                     (b)  the AWA was operating before it was approved.

             (2)  If the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b), the employee (or the Employment Advocate, or an authorised officer, on the employee’s behalf) is entitled to recover the shortfall from the employer in an eligible court:

                     (a)  the total value of the entitlements to which the employee became entitled under the AWA for the period it was operating before it was approved;

                     (b)  the total value of the entitlements to which the employee would have been entitled for that period if the AWA, as given to the Employment Advocate for approval, had taken account of the action taken by the employer.

170VXB   Compensation for shortfall in entitlements—variation agreement ceasing to have effect

             (1)  If a variation agreement ceases to have effect in the circumstances set out in subsection (2) and the amount worked out under paragraph (a) below is less than the amount worked out under paragraph (b) below, the employee (or the Employment Advocate, or an authorised officer, on the employee’s behalf) is entitled to recover the shortfall in an eligible court:

                     (a)  the total value of the entitlements to which the employee became entitled under the AWA, as varied, for the period during which the variation agreement had taken effect;

                     (b)  the total value of the entitlements to which the employee would have been entitled for that period under the AWA before it was varied.

             (2)  The circumstances are where the variation agreement ceases to have effect because of one of the following:

                     (a)  the employer’s failure to apply for approval of the variation agreement before the end of the period referred to in subsection 170VEE(2);

                     (b)  the issue of a refusal notice in relation to the variation agreement.

170VXC   Compensation for shortfall in entitlements—variation agreement approved after employer’s action

             (1)  This section applies if:

                     (a)  the Employment Advocate approved a variation agreement under subsection 170VEG(2) because the employer took action referred to in that subsection; and

                     (b)  the variation agreement had taken effect before it was approved.

             (2)  If the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b), the employee (or the Employment Advocate, or an authorised officer, on the employee’s behalf) is entitled to recover the shortfall from the employer in an eligible court:

                     (a)  the total value of the entitlements to which the employee became entitled under the AWA, as varied, for the period during which the variation had taken effect;

                     (b)  the total value of the entitlements to which the employee would have been entitled for that period if the variation agreement, as given to the Employment Advocate for approval, had taken account of the action taken by the employer.

8  At the end of subsection 170WE(1)

Add:

Note:          This subsection is a civil penalty provision (see section 170VV).

9  Before section 170WF

Insert in Division 9:

170WEA   Bargaining agents

             (1)  An employer or employee may appoint a person to be his or her bargaining agent in relation to the making, approval, variation or termination of an AWA. The appointment must be made in writing.

             (2)  Subject to subsection (3), an employer or employee must not refuse to recognise a bargaining agent duly appointed by the other party for the purposes of subsection (1).

Note:          This subsection is a civil penalty provision (see section 170VV).

             (3)  Subsection (2) does not apply if the person refusing has not been given a copy of the bargaining agent’s instrument of appointment before the refusal.

             (4)  An employer or employee must not coerce, or attempt to coerce, the other party:

                     (a)  to appoint, or not to appoint, a particular person as an authorised bargaining agent; or

                     (b)  to terminate the appointment of an authorised bargaining agent.

Note:          This subsection is a civil penalty provision (see section 170VV).

             (5)  In this section:

person includes a group of persons.

10  At the end of subsection 170WF(1)

Add:

Note:          This subsection is a civil penalty provision (see section 170VV).

11  At the end of subsection 170WG(1)

Add:

Note:          This subsection is a civil penalty provision (see section 170VV).

12  At the end of subsection 170WG(2)

Add:

Note:          This subsection is a civil penalty provision (see section 170VV).

13  Section 170WH

Repeal the section, substitute:

170WH   Information must not be false or misleading

                   A person must not give the Employment Advocate information for the purposes of this Part that the person knows, or ought reasonably to know, is false or misleading.

Note:          This section is a civil penalty provision (see section 170VV).

14  Subsection 170WHA(1)

Omit “filing,”.

15  Sections 170WHB, 170WHC and 170WHD

Repeal the sections.

16  Subsection 170WI(1)

Omit “filed with”, substitute “given to”.

17  Subsection 170WI(1)

Omit “or Commission”.

18  Paragraph 170WI(2)(a)

Omit “filed”, substitute “given to the Employment Advocate”.

19  Paragraph 170WI(2)(b)

Omit “or Commission”.

20  Paragraph 170WI(2)(c)

Repeal the paragraph, substitute:

                     (c)  that an approval notice or refusal notice was issued for a specified AWA or ancillary document on a specified day.

21  Paragraph 170WL(d)

Repeal the paragraph.



 

Part 2 Application and saving provisions

22  Application of items 1, 4, 7, 9 and 13 to 20

The amendments made by items 1, 4, 7, 9 and 13 to 20 apply to AWAs, extension agreements, variation agreements and termination agreements made after the commencement of this Schedule.

23  Application of items 3, 5 and 6

The amendments made by items 3, 5 and 6 apply to AWAs, extension agreements, variation agreements and termination agreements whether made before, on or after the commencement of this Schedule.

24  Saving—AWAs

(1)        This item applies to an AWA if the AWA:

                     (a)  was approved under section 170VPB or 170VPG of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

                     (b)  was in force immediately before that commencement.

(2)        The AWA has effect, after that commencement, as if it had been approved under section 170VCB of the amended Act.

25  Saving—extension agreements

(1)        This item applies to an extension agreement for an AWA if:

                     (a)  the extension agreement was approved under section 170VPD of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

                     (b)  the AWA was in force immediately before that commencement.

(2)        The extension agreement has effect, after that commencement, as if it had been approved under section 170VEB of the amended Act.

26  Saving—variation agreements

(1)        This item applies to a variation agreement in relation to an AWA:

                     (a)  if the variation agreement was approved under section 170VPC or 170VPH of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

                     (b)  the AWA was in force immediately before that commencement.

(2)        The variation agreement has effect, after that commencement, as if it had been approved under section 170VEG of the amended Act.

27  Saving—termination agreements

(1)        This item applies to a termination agreement for an AWA if:

                     (a)  the termination agreement was approved under section 170VPD of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

                     (b)  the AWA was in force immediately before that commencement.

(2)        The termination agreement has effect, after that commencement, as if it had been approved under section 170VEN of the amended Act.

28  Saving—regulations made for purposes of former sections 170VG and 170VR

If:

                     (a)  regulations were made for the purposes of the former provision referred to in column 2 of the table; and

                     (b)  the regulations were in force immediately before the commencement of this Schedule;

the regulations have effect, after that commencement, as if they had been made for the purposes of the new provision referred to in column 3.

 

Regulations continue to have effect

Column 1

Item

Column 2

Former provision

Column 3

New provision

1

subsection 170VG(1)

subsection 170VBB(1)

2

subsection 170VG(3)

subsection 170VBB(2)

3

subsection 170VR(4)

subsection 170VDA(4)

29  Saving— Gazette notices

If:

                     (a)  a notice was published in the Gazette for the purposes of the former provision referred to in column 2 of the table; and

                     (b)  the notice was in force immediately before the commencement of this Schedule;

the notice has effect, after that commencement, as if it had been published in the Gazette for the purposes of the new provision referred to in column 3.

 

Gazette notices continue to have effect

Column 1

Item

Column 2

Former provision

Column 3

New provision

1

paragraph 170VO(1)(c)

paragraph 170VC(3)(b)

2

paragraph 170VO(3)(c)

paragraph 170VEE(3)(b)

3

paragraph 170VO(4)(b)

paragraph 170VEA(2)(b)

4

paragraph 170VO(5)(b)

paragraph 170VEM(3)(b)

5

paragraph 170VO(6)(b)

paragraph 170VEP(3)(b)

30  Saving— prescribed conditions

(1)        This item applies to conditions identified by regulations if:

                     (a)  the regulations were made for the purposes of the definition of prescribed conditions in subsection 170VR(5) of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

                     (b)  the regulations were in force immediately before that commencement.

(2)        The regulations have effect, after that commencement, as if they had been made for the purposes of the definition of prescribed conditions in subsection 170VDA(5) of the amended Act.

31  Saving—appointment of bargaining agent

(1)        This item applies to an appointment of a bargaining agent if:

                     (a)  the appointment was made under subsection 170VK(1) of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

                     (b)  the appointment was in force immediately before that commencement.

(2)        The appointment has effect, after that commencement, as if it had been made under subsection 170WEA(1) of the amended Act.

32  Definitions

In this Part:

amended Act means the Workplace Relations Act 1996 as amended by this Schedule.

former provision means a provision of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule.

new provision means a provision of the Workplace Relations Act 1996 as in force immediately after the commencement of this Schedule.



 

Schedule 4 Certified agreements

Part 1 Amendments

Workplace Relations Act 1996

1  Paragraph 170LJ(3)(a)

Repeal the paragraph, substitute:

                     (a)  all the persons whose employment will be subject to the agreement, and who are employed on the day 14 days before approval is given, either have, or have ready access to, the agreement, in writing, at least 14 days before that approval is given; and

                    (aa)  any person first employed less than 14 days before approval is given and whose employment will be subject to the agreement, either has, or has ready access to, the agreement, in writing, before that approval is given; and

2  After subsection 170LJ(3)

Insert:

          (3A)  The employer must, within the period of 7 days beginning on the day (the relevant day ) on which the agreement is approved, take reasonable steps to inform each person whose employment will be subject to the agreement that the person may, no later than 28 days after the relevant day, request the Commission to hold a hearing in relation to whether the agreement should be certified.

3  Subsection 170LK(2)

Repeal the subsection, substitute:

             (2)  The employer must take reasonable steps to ensure that:

                     (a)  all the persons whose employment will be subject to the agreement, and who are employed on the day 14 days before the agreement is made, have at least 14 days’ written notice of the intention to make the agreement; and

                     (b)  any person whose employment will be subject to the agreement, and who is first employed less than 14 days before the agreement is made, has written notice of the intention to make the agreement before the agreement is made; and

                     (c)  before the agreement is made, the terms of the agreement are explained to all the persons.

The agreement must not be made before the 14 days mentioned in paragraph (a) have passed.

4  Subsection 170LK(7)

Repeal the subsection, substitute:

             (7)  The employer must, within the period of 7 days beginning on the day (the relevant day ) on which the agreement is made, take reasonable steps to inform each person whose employment will be subject to the agreement that the person may, no later than 28 days after the relevant day, request the Commission to hold a hearing in relation to whether the agreement should be certified.

5  Subsection 170LK(8)

Omit “subsections (2), (3), (5) and (7)”, substitute “subsections (2), (3) and (5)”.

6  At the end of section 170LK

Add:

Note:          The Commission may still certify an agreement if those steps are not taken again: see subsection 170LT(11).

7  Paragraph 170LR(2)(a)

Repeal the paragraph, substitute:

                     (a)  all the persons whose employment will be subject to the agreement, and who are employed on the day 14 days before approval is given, either have, or have ready access to, the agreement, in writing, at least 14 days before that approval is given; and

                    (aa)  any person first employed less than 14 days before approval is given and whose employment will be subject to the agreement, either has, or has ready access to, the agreement, in writing, before that approval is given; and

8  At the end of section 170LR

Add:

             (3)  The employer must, within the period of 7 days beginning on the day (the relevant day ) on which the agreement is approved, take reasonable steps to inform each person whose employment will be subject to the agreement that the person may, no later than 28 days after the relevant day, request the Commission to hold a hearing in relation to whether the agreement should be certified.

9  Subsection 170LT(7)

Omit “paragraph 170LJ(3)(b), subsection 170LK(7) or paragraph 170LR(2)(b)”, substitute “paragraph 170LJ(3)(b), 170LK(2)(c) or 170LR(2)(b)”.

10  At the end of section 170LT

Add:

           (11)  Subsection 170LK(8) (which deals with variations of proposed agreements) does not prevent the Commission from certifying an agreement if:

                     (a)  the proposed agreement was varied as mentioned in that subsection; and

                     (b)  the requirements of that subsection were not satisfied; and

                     (c)  the Commission is satisfied that no person whose employment would be covered by the proposed agreement suffered detriment as a result of that failure.

11  After section 170LV

Insert:

170LVA   Hearings not required

             (1)  The Commission must make a decision whether or not to certify an agreement without holding a hearing unless:

                     (a)  the Commission is not satisfied that it can make that decision with the information available to it; or

                     (b)  any of the following persons requests the Commission, in accordance with subsection (2), to hold such a hearing and the Commission is satisfied that there are reasonable grounds for doing so:

                              (i)  the employer;

                             (ii)  a person whose employment will be subject to the agreement;

                            (iii)  if the agreement is made in accordance with section 170LJ or 170LL or Division 3—one or more organisations of employees that made the agreement with the employer;

                            (iv)  if the agreement is made in accordance with section 170LK—an organisation of employees that has notified the Commission, and the employer, in writing that it wants to be bound by the agreement;

                             (v)  a person prescribed by the regulations.

             (2)  The request must be made no later than 28 days after:

                     (a)  if the agreement is made in accordance with section 170LJ—the day on which the agreement is approved as mentioned in subsection 170LJ(2); or

                     (b)  if the agreement is made in accordance with section 170LK or 170LL—the day on which the agreement is made; or

                     (c)  if the agreement is made in accordance with Division 3—the day on which the agreement is approved as mentioned in subsection 170LR(1).

12  Subsection 170MC(1)

Omit “certified agreement”, substitute “certified agreement made in accordance with section 170LJ or 170LK or Division 3”.

13  Paragraphs 170MC(1)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  if the agreement was made in accordance with section 170LJ or Division 3—the employer and the one or more organisations bound by the agreement; or

                     (b)  if the agreement was made in accordance with section 170LK—the employer;

14  After subsection 170MC(2)

Insert:

          (2A)  If one or more organisations are bound by an agreement made in accordance with section 170LK, the Commission must give each organisation an opportunity to make submissions before approving the extension.

          (2B)  However, such an organisation may only make a submission if the organisation has at least one member:

                     (a)  whose employment is subject to the agreement; and

                     (b)  whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

                     (c)  who requested the organisation to make a submission.

15  After subsection 170MC(4)

Insert:

          (4A)  The employer must, within the period of 7 days beginning on the extension day, take reasonable steps to inform each person whose employment is subject to the agreement on the extension day that the person may, no later than 28 days after the extension day, request the Commission to hold a hearing in relation to whether the extension should be approved.

          (4B)  In subsection (4A), extension day means the day on which the employer and the one or more organisations bound by the agreement, or the employer, extended the nominal expiry date of the agreement under subsection (1).

16  Subsection 170MC(5)

Repeal the subsection, substitute:

             (5)  This section does not apply to an agreement to which subsection 170LT(3) applied, in circumstances covered by the example in subsection 170LT(4) (short-term business crises).

17  Paragraphs 170MD(1)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  if the agreement was made in accordance with section 170LJ or 170LL or Division 3—the employer and the one or more organisations bound by the agreement; or

                     (b)  if the agreement was made in accordance with section 170LK—the employer;

18  After subsection 170MD(2)

Insert:

          (2A)  If one or more organisations are bound by an agreement made in accordance with section 170LK, the Commission must give each organisation an opportunity to make submissions before approving the variation.

          (2B)  However, such an organisation may only make a submission if the organisation has at least one member:

                     (a)  whose employment is, or will be, subject to the agreement; and

                     (b)  whose industrial interests the organisation is entitled to represent in relation to work that is, or will be, subject to the agreement; and

                     (c)  who requested the organisation to make a submission.

19  After subsection 170MD(5)

Insert:

          (5A)  The employer must, within the period of 7 days beginning on the variation day, take reasonable steps to inform each person whose employment is subject to the agreement on the variation day that the person may, no later than 28 days after the variation day, request the Commission to hold a hearing in relation to whether the variation should be approved.

          (5B)  In subsection (5A), variation day means the day on which the employer and the one or more organisations bound by the agreement, or the employer, varied the agreement under subsection (1).

20  Paragraphs 170MG(1)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  if the agreement was made in accordance with section 170LJ or 170LL or Division 3—the employer and the one or more organisations bound by the agreement; or

                     (b)  if the agreement was made in accordance with section 170LK—the employer;

21  After subsection 170MG(2)

Insert:

          (2A)  If one or more organisations are bound by an agreement made in accordance with section 170LK, the Commission must give each organisation or organisations an opportunity to make submissions before approving the termination.

          (2B)  However, such an organisation may only make a submission if the organisation has at least one member:

                     (a)  whose employment is subject to the agreement; and

                     (b)  whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

                     (c)  who requested the organisation to make a submission.

22  At the end of section 170MG

Add:

             (5)  The employer must, within the period of 7 days beginning on the termination day, take reasonable steps to inform each person whose employment is subject to the agreement on the termination day that the person may, no later than 28 days after the termination day, request the Commission to hold a hearing in relation to whether the termination should be approved.

             (6)  In subsection (5), termination day means the day on which the employer and the one or more organisations bound by the agreement, or the employer, terminated the agreement under subsection (1).

23  Paragraph 170MH(1)(c)

Before “an organisation”, insert “if the agreement was made in accordance with section 170LJ or 170LL or Division 3—”.

24  After subsection 170MH(2)

Insert:

          (2A)  However, the Commission may only obtain the views of an organisation that is bound by an agreement made in accordance with section 170LK if the organisation has at least one member:

                     (a)  whose employment is subject to the agreement; and

                     (b)  whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

                     (c)  who requested the organisation to give the Commission views about whether the agreement should be terminated.

25  Paragraph 170MHA(2)(c)

Before “an organisation”, insert “if the agreement was made in accordance with section 170LJ or 170LL or Division 3—”.

26  After subsection 170MHA(3)

Insert:

          (3A)  If one or more organisations are bound by an agreement made in accordance with section 170LK, the Commission must give each organisation an opportunity to make submissions before approving the termination.

          (3B)  However, such an organisation may only make a submission if the organisation has at least one member:

                     (a)  whose employment is subject to the agreement; and

                     (b)  whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

                     (c)  who requested the organisation to make a submission.

27  At the end of Division 7 of Part VIB

Add:

170MHB   Hearings not required

             (1)  The Commission must make a decision whether or not to extend, vary or terminate an agreement without holding a hearing unless:

                     (a)  the Commission is not satisfied that it can make that decision with the information available to it; or

                     (b)  any of the following persons requests the Commission, in accordance with subsection (2), to hold such a hearing and the Commission is satisfied that there are reasonable grounds for doing so:

                              (i)  the employer;

                             (ii)  an employee whose employment is subject to the agreement;

                            (iii)  one or more organisations bound by the agreement;

                            (iv)  a person prescribed by the regulations.

             (2)  The request must be made no later than 28 days after:

                     (a)  if the nominal expiry date of the agreement was extended under subsection 170MC(1)—the day on which that occurred; or

                     (b)  if the agreement was varied under subsection 170MD(1)—the day on which that occurred; or

                     (c)  if the agreement was terminated under subsection 170MG(1)—the day on which that occurred; or

                     (d)  if an application under subsection 170MH(1) or 170MHA(1) was made to the Commission to have the agreement terminated or to have the termination approved (as the case may be)—the day on which that occurred.



 

Part 2 Application and transitional provisions

28  Application of items 1 to 11

The amendments made by items 1 to 11 apply in relation to any agreement where the application to certify the agreement is made after the commencement of this Schedule. The amendments also apply in relation to the applications to certify those agreements.

29  Application of items 12 to 27

The amendments made by items 12 to 27 apply to a decision made by the Commission after the commencement of this Schedule about the extension, variation or termination of a certified agreement in respect of applications for the extension, variation or termination made after that commencement.

30  Transitional provision—Rules of Commission

Within 8 months after the commencement of this Schedule, the President must, under section 48 of the Workplace Relations Act 1996 , vary the Rules of the Commission to allow applications to the Commission under Part VIB of that Act, and ancillary documents in relation to such applications, to be given in electronic form.



 

Schedule 5 Secondary boycotts

Part 1 Amendments

Trade Practices Act 1974

1  Paragraph 87(1A)(b)

Omit “(other than section 45D or 45E)”.

2  Paragraph 87(1B)(a)

Omit “(other than section 45D or 45E)”.



 

Part 2 Application provision

3  Application

The amendments made by this Schedule apply only to conduct engaged in after the commencement of this Schedule.



 

Schedule 6 Federal awards

Part 1 Amendments

Workplace Relations Act 1996

1  Subsection 101(1)

After “subsection (2)”, insert “and sections 101A and 101B”.

2  After section 101

Insert:

101A   When Commission must not make findings under section 101

                   If a party (the initiator ) notifies an alleged industrial dispute under section 99 on the grounds that another party has not agreed to the demands set out in a log of claims that the initiator served on the other party, then the Commission must not make any findings under section 101 in relation to that dispute unless the Commission is satisfied that:

                     (a)  the log of claims was accompanied by a notice containing information of the kind prescribed by the regulations when it was served; and

                     (b)  the dispute was notified under section 99 at least 28 days after the log of claims was served; and

                     (c)  at least 28 days before the day fixed for the initial proceedings in relation to the dispute, the initiator served each person alleged to be a party to the dispute with a notice specifying the time and place fixed for the proceedings; and

                     (d)  the log of claims does not include any demand that:

                              (i)  requires conduct that would contravene Part XA; or

                             (ii)  a provision be included in an award that the Commission is prevented from including under subsection 89A(6A); or

                            (iii)  an objectionable provision (within the meaning of section 170MDB) be included in an agreement; or

                            (iv)  an objectionable provision (within the meaning of section 298Z) be included in an award or agreement; or

                             (v)  does not pertain to the relationship between employers and employees.

101B   Findings in relation to employers in small business

             (1)  This section applies if an organisation of employees notifies an alleged industrial dispute under section 99 on the grounds that one or more employers (each of which is a notified employer ) have not agreed to the demands set out in a log of claims that the organisation served on those employers.

             (2)  Before making any findings under section 101 in relation to that dispute, the Commission must give each notified employer a notice in writing requesting that the employer inform the Commission, within the period specified in the notice, whether the employer employed less than 20 people on the service day.

             (3)  The Commission must not, in relation to the making of any findings under section 101 in relation to that dispute, determine that a notified employer, who informed the Commission under subsection (2) that the employer employed less than 20 people on the service day, is a party to that dispute unless:

                     (a)  the Commission is not satisfied that the employer employed less than 20 people on the service day; or

                     (b)  the Commission is satisfied that the employer employs a member of that organisation.

             (4)  Before making an award in relation to that dispute, the Commission must give each notified employer:

                     (a)  determined to be a party to the dispute; and

                     (b)  who informed the Commission under subsection (2) that the employer employed less than 20 people on the service day; and

                     (c)  who the Commission is satisfied employed less than 20 people on the service day;

a notice in writing inviting the employer to make written comments on the proposed award within the period specified in the notice.

             (5)  In this section, service day , in relation to a notified employer, means the day the log of claims was served on the employer.

             (6)  For the purposes of this section, in working out if a notified employer employed less than 20 people on the service day, include any casual employee who had been engaged on a regular and systematic basis for a sequence of periods of employment of at least 12 months (but do not include any other casual employee).

3  After section 290

Insert:

290A   Certificate to the effect that an employee is a member of an organisation

             (1)  If a Registrar is satisfied, on application by an organisation of employees for the purposes of section 101B, that an employee of an employer is a member of that organisation, the Registrar may issue a certificate to that effect.

             (2)  The certificate must not identify any of the employees concerned. However, it must identify the organisation and the employer.

             (3)  The certificate is, for all purposes of this Act, evidence of the matters in the certificate.



 

Part 2 Application provision

4  Application of items 1, 2 and 3

The amendments made by items 1, 2 and 3 apply in relation to an alleged industrial dispute that is notified after the commencement of this Schedule.



 

Schedule 7 Entry and inspection of premises by organisations

Part 1 Amendments

Workplace Relations Act 1996

1  After subsection 285B(2)

Insert:

          (2A)  The person is only entitled to enter premises under subsection (2) if the organisation of which the person is an officer or employee has an invitation that meets the requirements of section 285CA.

2  Paragraph 285B(3)(a)

After “suspected breach”, insert “and relate to the employment of members of the organisation of which the person is an officer or employee”.

3  Paragraph 285B(3)(c)

After “who are”, insert “willing to be interviewed and are”.

4  After subsection 285B(3)

Insert:

          (3A)  The person must not, for the purpose of investigating the suspected breach, inspect or make copies of any document of the kind mentioned in subparagraphs (3)(a)(i) to (iii) that does not relate to the employment of members of the organisation of which the person is an officer or employee.

Note:          This subsection is a civil penalty provision—see section 285F.

5  Subsection 285C(2)

Repeal the subsection, substitute:

             (2)  The person is only entitled to enter premises under subsection (1) if the organisation of which the person is an officer or employee has an invitation that meets the requirements of section 285CA.

          (2A)  The person is only entitled to enter the premises during working hours and may only hold the discussions during the employees’ meal-time or other breaks.

          (2B)  If an officer or employee of an organisation enters premises under subsection (1) on a particular day, then none of the following:

                     (a)  that officer or employee;

                     (b)  any other officer or employee of the organisation;

may enter the premises under subsection (1) during the period of 6 months beginning on that day.

6  After section 285C

Insert:

285CA   Requirements of employee invitation to enter premises

             (1)  An organisation has an invitation that meets the requirements of this section in relation to entry to premises if the invitation:

                     (a)  is in writing and is signed by at least one employee who works at the premises and is a member of the organisation; and

                     (b)  is given to the organisation, or to an officer or employee of the organisation; and

                     (c)  is a current invitation.

             (2)  An invitation is a current invitation for the purposes of this section if the invitation is:

                     (a)  given to the organisation, or to an officer or employee of the organisation, no earlier than 3 months before the proposed entry; or

                     (b)  certified under section 291B no earlier than 3 months before the proposed entry.

Note:          An organisation must have an invitation that meets the requirements of this section before powers of entry can be exercised on behalf of the organisation—see subsections 285B(2A) and 285C(2).

285CB   Protection of inviting employee’s identity

             (1)  An invitation that meets the requirements of section 285CA may specify that the identity of the employee, or of each employee, giving the invitation is confidential.

             (2)  If the invitation does not so specify, the organisation to whom the invitation is given must ask the employee, or each employee, if he or she wishes his or her identity to be confidential.

Note:          This subsection is a civil penalty provision—see section 285F.

             (3)  If an employee (the inviting employee ) has informed the organisation that his or her identity in relation to the invitation is to be confidential, the organisation must not reveal the inviting employee’s identity to:

                     (a)  the inviting employee’s employer; or

                     (b)  the occupier of the premises to which the invitation relates.

Note:          This subsection is a civil penalty provision—see section 285F.

7  Section 285D

Repeal the section, substitute:

285D   Obligations on entering premises

             (1)  If:

                     (a)  a person seeks to enter, or is on, premises in accordance with section 285B or 285C; and

                     (b)  the relevant employer, or the occupier of the premises, requests the person to:

                              (i)  show his or her invitation; or

                             (ii)  show his or her permit;

the person must not, under section 285B or 285C, enter or remain on the premises unless he or she complies with the request.

Note:          This subsection is a civil penalty provision—see section 285F.

             (2)  If the person is requested to show the invitation, the person complies with the request if he or she shows the person making the request a copy of the invitation or a copy of a certificate issued under section 291B in relation to the invitation.

             (3)  Subsection (2) is not to be taken to limit the means by which a person is able to comply with the request referred to in that subsection.

             (4)  Immediately upon entering the premises under section 285B or 285C, the person must take all reasonable steps to provide the relevant employer, and the occupier of the premises, with a card made available to the person under section 285DC.

Note 1:       This subsection is a civil penalty provision—see section 285F.

Note 2:       Cards under section 285DC must contain the information set out in Schedule 9 and the phone numbers of the Office of the Employment Advocate.

             (5)  In this section:

relevant employer means the employer of the employee or employees who gave the invitation.

285DA   Notification of entry to premises

             (1)  A person must not seek to enter premises and exercise powers under section 285B or 285C unless:

                     (a)  the person has given the relevant employer (a notified party ), and the occupier of the premises (also a notified party ), at least 5 working days’ notice, in writing, of the person’s intention to do so; and

                     (b)  the notice specifies the day (the nominated day ) on which entry is proposed; and

                     (c)  the notice specifies whether entry to the premises is proposed under section 285B or 285C; and

                     (d)  the notice contains the information set out in Schedule 9 and contains the relevant phone number of the Office of the Employment Advocate.

Note 1:       This subsection is a civil penalty provision—see section 285F.

Note 2:       Cards under section 285DC must contain the phone numbers of the Office of the Employment Advocate.

             (2)  At least 1 working day before the nominated day, a notified party may give the person a notice in writing specifying another day on which the person may enter the premises. That other day must be no more than 5 working days after the nominated day.

             (3)  If a notified party gives the person such a notice, the party must give the other notified party a copy of the notice.

             (4)  Subject to subsection (5), if a notified party gives the person such a notice, the person may enter the premises only on the day specified in the notice.

             (5)  If:

                     (a)  both notified parties give the person such a notice; and

                     (b)  the notices specify different days on which the person may enter the premises;

the person may enter the premises only on the later of those days.

             (6)  In this section:

relevant employer means the employer of the employee or employees who gave the invitation.

285DB   Premises used for residential purposes

                   A person is not, in exercising any powers under section 285B or 285C, entitled to enter any part of premises used for residential purposes, except with the permission of the occupier.

285DC   Entry cards

             (1)  The Industrial Registrar must ensure that cards:

                     (a)  containing the information set out in Schedule 9; and

                     (b)  containing phone numbers of the Office of the Employment Advocate;

are prepared and made available to persons holding permits in force under this Division.

             (2)  The cards are to be in such form as the Industrial Registrar considers appropriate.

8  After section 285E

Insert:

285EA   Prohibited conduct—employers

             (1)  An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

                     (a)  dismiss an employee;

                     (b)  injure an employee in his or her employment;

                     (c)  alter the position of an employee to the employee’s prejudice;

                     (d)  discriminate against an employee.

Note:          This subsection is a civil penalty provision—see section 285F.

             (2)  Conduct referred to in subsection (1) is for a prohibited reason if it is carried out because the employee has given, or proposes to give, to an organisation, or to an officer or employee of an organisation, an invitation to enter premises under section 285B or 285C.

285EB   Prohibited conduct—organisations

             (1)  An organisation, or an officer or member of an organisation, must not take, or threaten to take, industrial action whose aim, or one of whose aims, is to coerce a person to breach section 285EA.

Note:          This subsection is a civil penalty provision—see section 285F.

             (2)  An organisation, or an officer or member of an organisation, must not, for a prohibited reason, or for reasons that include a prohibited reason, take or threaten to take, any action whose aim, or one of whose aims, is to prejudice a person in the person’s employment.

Note:          This subsection is a civil penalty provision—see section 285F.

             (3)  An organisation, or an officer or member of an organisation, must not, for a prohibited reason, or for reasons that include a prohibited reason, impose, or threaten to impose, a penalty, forfeiture or disability of any kind on a person who is a member of the organisation.

Note:          This subsection is a civil penalty provision—see section 285F.

             (4)  Conduct referred to in subsection (2) or (3) is for a prohibited reason if it is carried out because the person:

                     (a)  has refused to give to the organisation, or to an officer or employee of the organisation, an invitation to enter premises under section 285B or 285C; or

                     (b)  has given to another organisation, or to an officer or employee of another organisation, an invitation to enter premises under section 285B or 285C.

             (5)  An organisation, or an officer or member of an organisation, must not make it a condition of a person becoming a member of the organisation that the person give the organisation, or an officer or employee of the organisation, an invitation to enter premises under section 285B or 285C.

Note:          This subsection is a civil penalty provision—see section 285F.

             (6)  An organisation, or an officer or member of an organisation, must not harass a member of the organisation to give the organisation, or an officer or employee of the organisation, an invitation to enter premises under section 285B or 285C.

Note:          This subsection is a civil penalty provision—see section 285F.

9  Subsection 285F(1) (definition of penalty provision )

Repeal the definition, substitute:

penalty provision means subsection 285A(5), 285B(3A), 285CB(2) or (3), 285D(1) or (4), 285DA(1), 285E(1), (2), (3) or (4), 285EA(1) or 285EB(1), (2), (3), (5) or (6).

10  After section 291A

Insert:

291B   Certificate as to invitation to enter premises

             (1)  If a Registrar is satisfied, on application by an organisation, that:

                     (a)  an invitation to enter specified premises has been given to the organisation no earlier than 3 months before the organisation’s application to the Registrar is made; and

                     (b)  the invitation meets the requirements of paragraphs 285CA(1)(a) and (b);

the Registrar must issue a certificate to that effect.

             (2)  For the purposes of this section, an invitation is taken to have been given to an organisation if it is given to an officer or employee of the organisation.

             (3)  The certificate must not identify any of the employees who signed the invitation. However, it must identify the organisation to whom the invitation was given, the premises to which the invitation relates, the employer of the employees and the occupier of those premises.

             (4)  The certificate is, for all purposes of this Act, evidence that the invitation was given and that it met the requirements of section 285CA.

11  Before Schedule 10

Insert:

Schedule 9 Information relating to entry to premises under section 285B or 285C

Note:       See sections 285DA and 285DC.

   

When does a union official have a right to enter a workplace under federal law?

                   The federal Workplace Relations Act 1996 allows unions to enter work premises. The Act imposes rights and obligations on unions, employers and occupiers of premises. The rights and obligations are outlined below. Penalties may apply to a person who does not act in accordance with these rights and obligations.

                   If you have any queries or concerns, call the Office of the Employment Advocate.

                   A union official may enter business premises either to:

                        •  Investigate suspected breaches of the Workplace Relations Act 1996 , an award, a certified agreement or order of the Australian Industrial Relations Commission; or

                        •  Hold discussions with employees (but only once every 6 months and only where there is a federal award in operation).

                   But a union official may only enter if:

                        •  The union official has a current permit to enter premises; and

                        •  The union has a written invitation from a member of the union employed at the premises; and

                        •  The invitation is less than three months old; and

                        •  The union has given written notice to the employer and the occupier of the premises 5 working days before the proposed date of entry; and

                        •  The union has stated in the notice whether it is entering the premises to investigate a suspected breach or hold discussions with employees.

What if the day proposed by the union is not convenient?

                   Employers and occupiers both have a right to specify that the union enter the premises on an alternative day to the one the union has proposed in the notice.

                        •  The alternative day must be within 5 working days after the day proposed by the union.

                        •  The union must be notified in writing of the alternative day.

                        •  The union must receive this notification of the alternative at least 1 working day before the day that the union proposed.

                   In many cases the employer and the occupier of the premises will be the same person. Where they are not the same person, both parties have a right to propose an alternative day.

                   If one of these parties notifies the union of an alternative day that is different from the day notified by the other party, the union official may enter the premises on the later of the two days.

What can employers or occupiers do?

                   Employers and occupiers are entitled to:

                        •  See a copy of the union official’s permit; and

                        •  See a copy of the invitation from a member of the union or a certificate from the Industrial Registrar confirming that an invitation has been made.

                   The employer/occupier must not:

                        •  Refuse or unduly delay entry or intentionally hinder or obstruct a union where the union has fulfilled the requirements outlined above; or

                        •  Refuse to let the union look at records of union members that may be relevant to a suspected breach, that is, time sheets, pay sheets and other such documents, but not an Australian Workplace Agreement (AWA) or any document which shows any of the content of an AWA.

What can union officials do?

                   Where a union official is investigating a suspected breach, the union is entitled to:

                        •  Inspect records of union members that may be relevant to the suspected breach, that is, time sheets, pay sheets and other such documents, but not an Australian Workplace Agreement (AWA) or any document which shows any of the content of an AWA; and

                        •  Make copies of these records; and

                        •  Inspect work, material, machinery or appliance that may be relevant to the breach; and

                        •  Interview employees about the suspected breach.

                   A union official must not:

                        •  Inspect records of employees who are not members of that union; or

                        •  Intentionally hinder or obstruct any employer or employee; or

                        •  Enter the premises outside of normal working hours; or

                        •  Enter the premises more than once every 6 months for the purpose of holding discussions with employees; or

                        •  If entering for the purpose of holding discussions with employees, hold these discussions other than during meal times and other breaks.



 

Part 2 Application and transitional provisions

12  Application and transitional provision

(1)        Subject to this item, the amendments made by items 1 to 7 and 9 to 11 apply on and after the commencing day.

(2)        Subsections 285B(2A) and 285C(2) of the Workplace Relations Act 1996 do not apply to a person before the day that occurs 14 days after the commencing day.

(3)        A notice given by a person under subsection 285D(2) of the Workplace Relations Act 1996 before the commencing day continues to have effect on and after the commencing day, but only in relation to any entry to the premises that occurs before the day that occurs 14 days after the commencing day.

(4)        The amendment made by item 2 does not apply in relation to a notice given by a person under subsection 285D(2) of the Workplace Relations Act 1996 before the commencing day.

(5)        If:

                     (a)  a person gave a notice under subsection 285D(2) of the Workplace Relations Act 1996 before the commencing day; and

                     (b)  the person enters the premises under section 285C of that Act after the commencing day and before the day that occurs 14 days after the commencing day;

that entry is to be disregarded for the purposes of subsection 285C(2B) of that Act.

(6)        Paragraph 285D(1)(b) of the Workplace Relations Act 1996 , insofar as it requires a person to comply with a requirement to show an employer or occupier the person’s invitation to enter premises, does not apply to a person before the day that occurs 14 days after the commencing day.

(7)        Subsection 285D(4) of the Workplace Relations Act 1996 does not apply to a person before the day that occurs 14 days after the commencing day.

(8)        In this item:

commencing day means the day on which this Schedule commences.

13  Application of item 8

The amendment made by item 8 applies only in relation to conduct engaged in after the commencement of this Schedule.



 

Schedule  8 Contracts for services

Part 1 Amendments

Workplace Relations Act 1996

1  After paragraph 45(1)(eaa)

Insert:

                  (eab)  a decision of a member of the Commission under section 170MDB to vary, or not to vary, a certified agreement;

2  After paragraph 45(3)(ba)

Insert:

                (baaa)  in the case of an appeal under paragraph (1)(eab):

                              (i)  a person bound by the certified agreement; or

                             (ii)  an employee whose employment is subject to the certified agreement; or

                            (iii)  any person who wishes to enter into a contract for services with an employer who is bound by the agreement; or

                            (iv)  the Minister;

3  After subsection 89A(6)

Insert:

          (6A)  Subject to subsection (6B), the Commission’s power to make or vary an award in relation to matters covered by subsection (2), or to include in an award provisions of the kind mentioned in subsection (6), does not include:

                     (a)  the power to restrict an employer in any way in relation to the entry into contracts for services; or

                     (b)  the power to restrict an employer in any way in relation to the inclusion of terms or conditions in contracts for services.

          (6B)  However, the Commission may include in a TCF award provisions that have the effect of restricting employers from entering into contracts for services unless those contracts provide that the work concerned is to be performed on terms and conditions that are at least as favourable as those that would otherwise apply under the award in relation to that work.

          (6C)  In subsection (6B), TCF award means an award regulating employment in the textiles, clothing and footwear industry.

4  After subsection 170LU(2A)

Insert:

          (2B)  Despite section 170LT, the Commission must refuse to certify an agreement if the Commission is satisfied that it contains provisions that:

                     (a)  restrict an employer in any way in relation to the entry into contracts for services; or

                     (b)  restrict an employer in any way in relation to the inclusion of terms or conditions in contracts for services;

whether or not those provisions would in any case be void because of section 170LZA.

5  At the end of Division 5 of Part VIB

Add:

170LZA   Provisions of certified agreements restricting employers from entering into contracts for services

                   A provision of a certified agreement is void to the extent that it:

                     (a)  restricts an employer in any way in relation to the entry into contracts for services; or

                     (b)  restricts an employer in any way in relation to the inclusion of terms or conditions in contracts for services.

6  After paragraph 170MD(7)(c)

Insert:

                    (ca)  section 170MDB (which deals with the removal of provisions relating to the entry into contracts for services); or

7  After section 170MDA

Insert:

170MDB   Removal of provisions relating to the entry into contracts for services from certified agreements

             (1)  If, on application by a person mentioned in subsection (2), the Commission is satisfied that a certified agreement contains objectionable provisions, the Commission must vary the agreement so as to remove those provisions.

             (2)  The application may be made by:

                     (a)  a person bound by the certified agreement; or

                     (b)  an employee whose employment is subject to the certified agreement; or

                     (c)  any person who wishes to enter into a contract for services with an employer who is bound by the agreement; or

                     (d)  the Minister.

             (3)  In this section:

objectionable provisions are provisions that:

                     (a)  restrict an employer in any way in relation to the entry into contracts for services; or

                     (b)  restrict an employer in any way in relation to the inclusion of terms or conditions in contracts for services;

whether or not those provisions would in any case be void because of section 170LZA.



 

Part 2 Application and transitional provisions

8  Application of items 1, 2, 4, 5, 6 and 7

The amendments made by items 1, 2, 4, 5, 6 and 7 apply after the commencement of this Schedule in relation to any certified agreement (whether certified before or after that commencement).

9  Application of item 3

The amendment made by item 3 applies in relation to:

                     (a)  an industrial dispute that the Commission began to deal with, or had dealt with, before the commencement of this Schedule; and

                     (b)  an industrial dispute that the Commission begins to deal with after the commencement of this Schedule.

10  Transitional provision—review of certain awards

(1)        Within 12 months after this Schedule commences, the Commission must review all awards containing clauses that:

                     (a)  restrict an employer in any way in relation to the entry into contracts for services; or

                     (b)  restrict an employer in any way in relation to the inclusion of terms or conditions in contracts for services.

(2)        Subitem (1) does not apply to clauses in an award regulating employment in the textiles, clothing and footwear industry that restrict employers from entering into contracts for services unless those contracts provide that the work concerned is to be performed on terms and conditions that are at least as favourable as those that would otherwise apply under the award in relation to that work.

(3)        The Commission may, after considering appropriate alternatives, vary an award to remove such clauses.

(4)        Any clause of a kind referred to in paragraph (1)(a) or (b) that is contained in an award ceases to have effect at the end of 12 months after this Schedule commences.

(5)        After the end of the period of time mentioned in subitem (4), the Commission may vary any award to remove any clauses that have ceased to have effect because of subitem (4).