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Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017

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2016-2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

FAIR WORK AMENDMENT (REPEAL OF 4 YEARLY REVIEWS AND OTHER MEASURES) BILL 2017

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

(Circulated by authority of the Minister for Employment, Senator the Hon Michaelia Cash)

 

 

 

 

 

 

 



AMENDMENTS TO THE FAIR WORK AMENDMENT (REPEAL OF 4 YEARLY REVIEWS AND OTHER MEASURES) BILL 2017

OUTLINE

The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 (the Bill) amends the Fair Work Act 2009 (the Act) to respond to two recommendations of the Productivity Commission’s Final Report into the Workplace Relations Framework and to respond to two recommendations of the Hon Peter Heerey AM QC’s Report of Inquiry into Complaints about the Honourable Vice President Michael Lawler of the Fair Work Commission and Related Matters .

The amendments to the Bill respond to the report of the Senate Education and Employment Legislation Committee (the Senate Committee) on the Bill, tabled in May 2017.

Amendment to the application of the amendments to the procedural requirements in enterprise bargaining

The amendments provide that Schedule 2 to the Bill, which provides the FWC with the capacity to approve enterprise agreements despite minor procedural or technical errors, which were not likely to have disadvantaged employees, will apply to:

·                     applications to approve enterprise agreements that are made to the FWC on or after the date that the amendments commence;

·                     applications to approve enterprise agreements that were made to the FWC before the date that the amendments commence and that have not yet been determined by the FWC; and

·                     a limited range of appeals against FWC decisions to approve or refuse to approve enterprise agreements that were made before the date that the amendments commence.

Amendment to the application of 4 yearly reviews of modern awards

The amendments will also insert a new subclause in Schedule 4 to the Bill to clarify that the scope of clause 26 extends to incomplete reviews of a modern award as part of the ‘common issues’ stage of the 4 yearly review of modern awards process. The amendment ensures that the review of one or more modern awards commenced, but not concluded by 1 January 2018, may continue until finalised.

This amendment responds to Labor Senators’ additional comments in the report: see paragraphs 1.2 to 1.7.

 



FINANCIAL IMPACT STATEMENT

Nil



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Amendments to the Fair Work Amendment (Repeal of 4 Yearly Review and Other Measures) Bill 2017

The amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of amendments to the Fair Work Amendment (Repeal of 4 Yearly Review and Other Measures) Bill 2017

The amendments provide that Schedule 2 to the Bill, which provides the FWC with the capacity to approve enterprise agreements despite minor procedural or technical errors, which were not likely to have disadvantaged employees, will apply to:

·                     applications to approve enterprise agreements that are made to the FWC on or after the date that the amendments commence;

·                     applications to approve enterprise agreements that were made to the FWC before the date that the amendments commence and that have not yet been determined by the FWC; and

·                     a limited range of appeals against FWC decisions to approve or refuse to approve enterprise agreements that were made before the date that the amendments commence.

The amendments will also insert a new subclause 26(4) in Schedule 4 to the Bill to clarify that the scope of clause 26 extends to incomplete reviews of a modern award as part of the ‘common issues’ stage of the 4 yearly review of modern awards process. This amendment ensures that the review of one or more modern awards commenced, but not concluded by 1 January 2018, may continue until finalised.

Human rights implications

The amendments do not alter the human rights implications of the Bill as expressed in the Statements of Compatibility with Human Rights which accompany the Explanatory Memorandum for the Bill.

Conclusion

These amendments are compatible with human rights.

Minister for Employment, Senator the Hon Michaelia Cash



NOTES ON AMENDMENTS

In these notes on amendments, the following abbreviations are used:

Act

Fair Work Act 2009

amending Act

Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2017

the Bill

Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017

FWC

Fair Work Commission



Amendment 1 - Schedule 4, item 1, page 16 (after line 20), after the definition of Schedule 1 commencement day in clause 25 of Schedule 1

1.                   This amendment inserts a new definition for the term Schedule 2 commencement day , which is defined as the day on which Schedule 2 to the amending Act commences. Schedule 2 will commence the day after the amending Act receives the Royal Assent.

Amendment 2 - Schedule 4, item 1, page 17 (after line 27), at the end of clause 26 of Schedule 1

2.                   This amendment inserts new subclause (4) at the end of new clause 26 in Schedule 4 to the Bill. The amendment clarifies that the scope of clause 26 extends to incomplete reviews of a modern award as part of the ‘common issues’ stage of the 4 yearly review of modern awards process. The amendment ensures that the review of one or more modern awards commenced, but not concluded by 1 January 2018, may continue until finalised.

Amendment 3 - Schedule 4 , item 1 , page 18 (lines 12 to 17)

3.                   This amendment omits clause 28 of Schedule 1 and substitutes new clause 28 concerning the application of the amendments to be made by Schedule 2 to the Bill.

4.                   New paragraph 28(1)(a) provides that the amendments to be made by Schedule 2 to the Bill will apply to applications to approve enterprise agreements that are made to the FWC on or after the day that the amendments commence.

5.                   New paragraph 28(1)(b) provides that the amendments to be made by Schedule 2 to the Bill will apply to applications to approve enterprise agreements that were made to the FWC before the day that the amendments commence, if:

·                     the FWC has not approved or refused to approve the enterprise agreement before the day that the amendments commence (new paragraph 28(2)(a));

·                     the FWC has approved or refused to approve the enterprise agreement and an application to appeal the decision was made to the FWC before the day that the amendments commence, and the FWC has not yet made a final decision on the appeal (new paragraph 28(2)(b)); or

·                     the FWC has approved or refused to approve the enterprise agreement and an application to appeal the decision is made to the FWC after the day that the amendments commence, as long as the application is made within 21 days after the FWC’s decision to approve or refuse to approve the enterprise agreement (new paragraph 28(2)(c)).