Bills Digest no. 168 2008–09
Fair Work (State Referral and Consequential and Other
Amendments) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Glossary
|
AFPC
|
Australian Fair Pay Commission
|
|
AFPCS
|
Australian Fair Pay and Conditions Standard
|
|
AIRC
|
Australian Industrial Relations Commission
|
|
APCS
|
Australian Pay and Classification Scale
|
|
AWA
|
Australian workplace agreement
|
|
CA
|
Certified agreement
|
|
CP
(IR) Act
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Commonwealth Powers (Industrial Relations) Act 1996 (Vic)
|
|
ER
Act
|
Employment Relations Act 1992 (Vic)
|
|
FW
Act
|
Fair
Work Act 2009
|
|
FW(RO)
Act
|
Fair
Work (Registered Organisations) Act 2009
|
|
FWA
|
Fair
Work Australia
|
|
FWO
|
Fair
Work Ombudsman
|
|
ITEA
|
individual transitional employment agreement
|
|
NES
|
National Employment Standards
|
|
NAPSA
T&C Bill
|
notional agreement preserving State awards
Fair
Work (Transitional Provisions and Consequential Amendments Bill
2009
|
|
this
Bill
|
Fair
Work (State Referral and Consequential and Other Amendments) Bill
2009
|
|
WR
Act
|
Workplace Relations Act 1996
|
Passage history
Date
introduced: 27 May
2009
House: House of Representatives
Portfolio: Education Employment and Workplace
Relations
Commencement:
There are numerous
commencement dates as set out in the table at clause 2 of the Bill.
The bulk of Schedule 1 dealing with referring States commences on
Royal Assent. The majority of the Schedules dealing with
consequential amendments to other legislation commence immediately
after commencement of Part 2-4 of the Fair Work Act 2009,
expected to be 1 July 2009.
Links: The relevant
links to the Bill, Explanatory Memorandum and second reading
speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Bill:
- enables States to refer matters to the Commonwealth for the
purpose of establishing a national workplace relations system under
the Fair Work Act 2009 (the FW Act)
- makes transitional and consequential amendments to other
Commonwealth legislation required as a result of the FW Act and the
Fair Work (Transitional Provisions and Consequential Amendments)
Bill 2009, and
- makes transitional referral arrangements for Victorian
employees and employers, currently covered by the Workplace
Relations Act 1996 as a result of a 1996 reference of
power.
This is the third Bill in the package of workplace relations
legislation aimed at implementing the Government s Forward with
Fairness election commitment.[1] Minister Gillard
foreshadowed this Bill in her second reading speech on the Fair
Work (Transitional Provisions and Consequential Amendments) Bill
2009[2]:
The first bill, which I am introducing here
today, is the Fair Work (Transitional Provisions and Consequential
Amendments) Bill 2009.
[ ]
A further bill will deal with the consequential
amendments to all other Commonwealth legislation, which is likely
to involve amendments to over 70 Commonwealth acts. That further
bill will also deal with amendments consequential on any state
referrals of power that have been completed by that time.
[ ]
The arrangements set out in these two bills
will phase in the new workplace relations system and ensure that
the transition to the new system occurs in a seamless way.[3]
Section 51 (xxxvii) of the Commonwealth Constitution provides
that the Commonwealth Parliament 'may make laws for the peace,
order and good Government of the Commonwealth' with respect to:
Matters referred to the Parliament of the
Commonwealth by the Parliament or Parliaments of any State or
States, but so that the law shall extend only to the States by
whose Parliaments the matters is referred, or which afterwards
adopt the law.
The most recent referral of a State s industrial power occurred
through complimentary federal and state legislation, referring
Victoria s industrial system to the Commonwealth in 1996. The Bills
Digest reporting on the Commonwealth s referral Bill, the Workplace
Relations and Other Legislation Amendment Bill (No 2) 1996,
noted:
The scope of the (1996) Bill is in large
measure determined by the 'matters' formally conferred on the
Commonwealth by the Victorian Parliament via the Commonwealth
Powers (Industrial Relations) Bill 1996 (the Victorian Bill). The
potential reach of Commonwealth law is further restricted by
certain implied constitutional limitations on the capacity of the
Commonwealth to pass laws which may affect functions of a State
which are critical to its capacity to function as a
government.[4]
The 1996 referral was limited. It gave greater effect to federal
instruments, for example allowing Australian Workplace Agreements
and Certified Agreements to be entered into by unincorporated
Victorian businesses. On the other hand, the Victorian state
industrial system remained largely in tact, appearing as a schedule
to the WR Act (Schedule 1A). Critics of the arrangement claimed
that the referral had resulted in the contracting out of the
administration of the state system to the Commonwealth.[5] To overcome the
disadvantage faced by Schedule 1A workers compared to federal award
employees, the Victorian Government referred additional powers to
the Commonwealth to enable the AIRC to make and vary common rule
awards for Victoria by way of the Federal Awards (Uniform
System) Act 2003(Vic).[6] The Explanatory Memorandum incorrectly attributes this
additional referral to the CP(IR) Act (Vic).[7]
Similar constraints and limitations are likely to apply to the
current Bill and complimentary state legislation. In the case of
Victoria, state legislation facilitating a new referral was
introduced into the Victorian Parliament on 2 June 2009. The Fair
Work (Commonwealth Powers) Bill 2009 (Vic) is a move to a
text-based referral, giving the Commonwealth the power to legislate
for the State s entire private sector workforces and much of its
public service with the only matters excluded relating to core
government functions such as the number, identity, appointment and
redundancy of public sector employees and issues related to
essential services employees and the police.[8] A text-based referral[9] was one of the referral options
outlined in the report to the NSW Government on industrial relation
referral options (the Williams report).[10] According to Minister Gillard:
On 4 February 2009, the Victorian Minister for
Industrial Relations, the Hon Martin Pakula MP, wrote to me
confirming the Victorian Government s decision to make a new
text-based referral to underpin the application of the Fair Work
Act to all Victorian employers and their employees with effect from
1 July 2009.
The Australian Government anticipates that the
Victorian Government s Bill to refer legislative power to this
Parliament will be introduced into the Victorian Parliament
shortly, and passed in time to coincide with the commencement of
the Fair Work Act on 1 July 2009.
In respect of other States, she goes on to note that:
The Australian Government is continuing to work
cooperatively with other States to secure references of power in
time for full commencement of the system on 1 January 2010. In this
context, the Government anticipates that the reference framework
provided in the Bill may be further amended to take into account
the views and needs of the other States concerning their national
system participation.[11]
The other States are in different stages of determining what
paths they would take. The positions outlined below should be
regarded as indicative only.
Tasmania: has given in-principle support to
referring powers to the Commonwealth, indicating the referral would
be text-based and would apply only to the private sector.[12]
New South Wales: possibility of a text based referral but may
seek to keep state public servants, local government workers,
health and community workers and Catholic school teachers.[13]
South Australia: has given in-principle support to referring
powers to the Commonwealth, indicating the referral would be
text-based and would apply to the private sector but exclude the
public sector and local government.[14]
Queensland: has indicated in-principle support for participating
in the national system, subject to a number of issues (such as
local government and compliance) being resolved.[15]
Western Australia: has committed only to
working cooperatively to examine harmonising state and federal
laws, where possible.[16]
The Bill s Explanatory Memorandum reports that the measures
proposed by this Bill are Budget neutral.[17]
The provisions in this Schedule should be read in conjunction
with the FW Act. For further background the reader is referred to
the Bills Digest for the Fair Work Bill 2008.[18]
Schedule 1 to this Bill amends the FW Act to insert new
Division 2A, Part 1-3 into the FW Act. New Division 2A
would enable States to refer matters to the Commonwealth with a
view to establishing a uniform national workplace relations system
for employees and employers in the private sector, with scope for
referring States to choose the extent to which the FW Act covers
their public sector workforces.[19]
Items 1-9 replace or insert notes in respect of
the meaning of various key definitions in the FW Act including:
- definitions of employee and national system employee and
employer and national system employer in the FW Act at section 12
and in sections 13 and 14[20]
- the definition of outworker entity in section 12
- the ordinary meaning of employee and employer in subsection
15(1).
The purpose of the amended notes is to cross
reference new definitions in the new state referral provisions in
Division 2A. For example the new note to the definition of national
system employer in section 14 states that section 30D extends the
meaning of national system employer in relation to a referring
State (item 4).
Item 11 inserts new Division
2A Application of the FW Act in a referring State into
Part 1-3.
New section 30A defines a number of terms used
in Division 2A. Of these:
- referral law means the law of the
State that refers matters mentioned in subsection 30B(1) to the
Commonwealth
- referred provisions mean the
provisions of Division 2A of the FW Act to the extent to which they
deal with matters that are included in the legislative powers of
the Parliaments of the States
- referred subject matters include
terms and conditions of employment, including terms and conditions
under which an outworker work is performed; the rights and
responsibilities of employees, employers, independent contractors,
outworkers, outworker entities, associations of employees or
employers concerning freedom of association, discrimination and
termination.
Proposed section 30B defines referring State
and is a key provision. A State is a referring State if its
Parliament refers the matters set out in new subsections
30B(3), 30B(4) and 30B(5) to the
Commonwealth Parliament, to the extent that these matters are not
otherwise within Commonwealth legislative power and are within the
State s legislative power.
- New subsection 30B(3) gives effect to a
reference of matters relating to the text of the referred
provisions in Division 2A. Matters covered by this text will cover
the regulation of unincorporated and public sector employers and
their employees, outworker entities, and certain types of adverse
action.[21]
- New subsection 30B(4) gives effect to a
referral of matters relating to express amendments of the FW Act.
This would allow the Commonwealth to amend the FW Act in relation
to the referred subject matters by making express amendments of the
FW Act. [22]
- Proposed subsection 30B(5) gives effect to a
referral of matters relating to the transition to the national
system. This would enable the Commonwealth to transition Victorian
employers and employees from the system in place under the WR Act
to the new system created by the FW Act as extended in its
operation by the Victorian Bill.[23]
Proposed subsection 30B(2)
clarifies that a State is still a referring State even if the State
s referral law provides for the reference to terminate in certain
circumstances, or if it excludes certain matters relating to State
public sector employment.
Proposed subsection 30A(6)
provides for a State to cease to be a referring State if any or all
of the initial, amendment, or transitional references
terminate.
New sections 30C and 30D are
part of the referred text and extend the existing definitions of
national system employee and national system employer in the FW Act
to include any employee and any employer in a referring State who
would otherwise be outside those definitions.
The Explanatory Memorandum explains how the
initial referral would work in relation to Victoria:
New subsection 30B(3) envisages that a
referring State would refer the provisions of new Division 2A to
the Commonwealth, to the extent that they deal with matters within
the State s legislative power. The matters referred by this text
cover the regulation of unincorporated and public sector employers
and their employees, outworker entities, and certain types of
adverse action.
The FW Act generally applies to national system
employees and national system employers, and the extended
definitions [in new sections 30D and 30E] apply the FW Act in a
referring State, so far as it would not otherwise be supported by
Commonwealth power.
It is anticipated that a reference from
Victoria would enable the Commonwealth to amend the FW Act as
originally enacted to include Division 2A to the extent within
Victoria s legislative power. This would fix Victoria s initial
reference to matters related to the FW Act as it exists at a
particular time.[24]
The Explanatory Memorandum goes on:
New subsection 30B(3) means that only Victoria
is likely to meet the proposed definition of referring State.
However, the framework established by Division 2A would be able to
be amended in future to accommodate references from other
States.[25]
The referred subject matters (defined in new section 30A)
correspond with matters regulated by the FW Act and include those
listed above (eg terms and conditions of employment, the rights and
responsibilities of employees etc)
The definition of excluded subject matters in new
section 30A are specific to Victoria s reference - that is:
- matters dealt with by Victoria s Equal Opportunity Act
1995, which is preserved in its application to national system
employees and employers by subsection 27(1A) of the FW
Act
- matters dealt with by state laws preserved under paragraph
27(1)(c) and subsection 27(2) of the FW Act such as occupational
health and safety, public holidays, outworkers and workplace
surveillance (but not matters prescribed by regulations under
paragraph 27(2)(p)).
Proposed paragraph 30B(2)(b) makes clear that a
State could be a referring State even if the State s referral law
excludes matters relating to State public sector employment.
The Bill however has been drafted in anticipation that Victoria
will refer matters to do with public sector employment, although
this is subject to certain exclusions. The terms State public
sector employee and State public sector employer are defined in
proposed section 30A and according to the
Explanatory Memorandum generally operate to recognise
qualifications on matters expected to be referred by
Victoria.[26] The
Explanatory Memorandum provides a further explanation of the public
sector exclusions in the Victorian reference and examples of how
they would operate.[27]
Schedule 2 relates to the Victorian reference and is in two
Parts: Part 1 amends the T&C Bill and deals with transitional
arrangements in relation to transitional awards and common rules
effecting Victorian employers and employees under the Victorian
reference and Part 2 deals with public sector modern awards and
public sector transitional awards for Victorian employers and
employees.
Item 6 defines State reference transitional
award or common rule to mean a State reference transitional
award or a State reference common rule award (see below).
Items 8 to 10 amend Schedule 3 of the T&C
Bill to replace notes and update definitions. Item
11 inserts a new subitem 3A in item 2 of Schedule 3 to the
T&C Bill, providing that State reference common rules that come
into effect under this Bill are treated as transitional instruments
for the purposes of the T&C Bill. Item 12
amends paragraph 2(5)(a) of Schedule 3 to the T&C Bill to
include State reference transitional awards or common rules in the
definition of award-based transitional instrument. Item
13 inserts a new subitem 2A of Schedule 3
containing the following definitions:
State reference common rule is defined to mean a common
rule term of an award that covers specified State reference
employers and their employees. A common rule is expressed to cover
employers in an industry in respect of their employees. Provisions
giving effect to common rules are underpinned by the Federal
Awards (Uniform System) Act 2003 (Vic) and the Workplace
Relations Amendment (Improved Protection for Victorian Workers) Act
2003 (Cth) in which the Victorian and Commonwealth Parliaments
effected a referral enabling the AIRC to declare a term of a
federal award or order to be a common rule in Victoria for an
industry.
State reference employee is defined to mean an employee
who is a national system employee only because of Victoria s
reference of power.
State reference employer is defined to mean an employer
that is a national system employer only because of Victoria s
reference of power.
State reference transitional award is defined to mean a
transitional award that covers one or more specified State
reference employers and their employees.
Transitional award is defined in continued WR Act s
Schedule 6 and includes a transitional Victorian reference
award.
Proposed subitem 2A(5) splits transitional
awards that cover both State reference employers and their
employees and other employers and employees (that is, employers and
employees that are not from a referring State). This is in
reference to industry awards having been made on an interstate
basis[28]
Item 14 amends Part 2 of
Schedule 3 to the T&C Bill to add a
new item 8A dealing with the continuing
application of clauses 82 to 87 of Schedule 6 to the WR. This
ensures that State reference common rules continue to operate under
the new system and cover the same classes of employers and
employees.
Item 15 inserts a new item 12A
after item 12 of Schedule 3 to
the T&C Bill. New item 12A gives effect to provisions of Part
10 of the WR Act that deal with variation and revocation of
transitional awards by FWA so that these provisions apply from the
WR Act repeal day in relation to State reference transitional
awards.
Item 16 amends Schedule 3 of
the T&C Bill to add new provisions dealing with Victorian
employment agreements, kept in operation by Division 12 of Part 21
of the WR Act. These are individual agreements which either came
into effect under the former Employee Relations Act 1992
(Vic) (ER Act) and were not replaced by an agreement under the WR
Act, or were deemed into existence on the cessation of an ER Act
collective employment agreement. From the WR Act repeal day, any
Victorian employment agreement that is still in force will be
treated as an enforceable contract.
Item 17 amends subitem 2(2A)
of Schedule 6 to the T&C Bill, providing that
a State reference transitional award may also be an enterprise
award-based and as such may apply, for example, to
franchises.[29]
Item 18 amends Schedule 7 to
the T&C Bill with the effect that a State reference
transitional award or common rule is capable of being a designated
award for the purposes of the no-disadvantage test (which is to
apply during the bridging period).
Item 19 amends paragraph
13(2)(a) of Schedule 7 to the T&C
Bill so that a reference to a modern award in that paragraph is
also taken to be a reference to a State reference transitional
award or common rule.
Items 20 and 21 amend
items 18 and 19 of Schedule 7 to
the T&C Bill ensuring that only the relevant unmodernised State
reference transitional award or common rule is used for the purpose
of assessing whether an enterprise agreement passes the better off
overall test.
Item 22 extends the operation of item
21 of Schedule 7 to the T&C Bill so
that it also applies in relation to a State reference transitional
award or common rule.
Item 23 amends paragraph
25(3)(a) of Schedule 7 to the T&C
Bill providing that where a workplace determination is made that
will cover the employee, the workplace determination must also
include outworker terms that are not detrimental to the employee in
any respect, when compared to the State reference transitional
award or common rule.
Item 24 amends the definition of instrument in
item 27 of Schedule 8 to the
T&C Bill so that it also includes a State reference
transitional award (but not a common rule).
Item 25 amends item 5 of
Schedule 9 to the T&C Bill so that certain
provisions of Part 21 of the WR Act do not apply, ensuring that the
transitional standard FMW applies in relation to State reference
employers and employees from the WR Act repeal day, and that the
AIRC may adjust wages whether or not employees work within a
specific work classification.
Item 26 amends paragraph
5(2)(d) of Schedule 10 to the T&C
Bill so that the provisions continuing the application of equal
remuneration orders made under the WR Act also apply in relation to
a State reference transitional award or common rule.
Items 27 and 28 amend
items 2 and 5 of Schedule
11 to the T&C Bill so that Division 5 of Part 11 of
the WR Act (re transmission of awards) has continued application in
relation to State reference transitional awards.
Items 29 and 30 amend
item 8 of Schedule 11 to the
T&C Bill so that the extended application of the FW Act by
Schedule 11 in relation to a transfer of business applies in
relation to a State reference transitional award.
Item 32 amends Schedule 20 to
the WR Act so that continued Schedule 6 does not apply in relation
to State reference transitional awards and State reference common
rules from the WR Act repeal day.
Items 48 and 49 amend item 6 of Schedule 5 to
the T&C Bill, excluding State reference public sector modern
awards from the first 2 year review of modern awards by FWA.
Item 51 inserts a new Schedule
6A after Schedule 6 to the T&C Bill
dealing with State reference public sector modern awards and gives
effect to the State reference public sector transitional award
modernisation process under the T&C Bill.
Item 2 of new Schedule 6A
inserts new definitions into the T&C Bill relating to the State
reference public sector transitional award modernisation
process.
State reference public sector employee means a State
reference employee who is also a State public sector employee.
State reference public sector employer means a State
reference employer that is also a State public sector employer.
Item 3 of new Schedule 6A
establishes the State reference public sector transitional award
modernisation process. State reference public sector modern
award means a modern award that is only expressed to cover one
or more specified State reference public sector employers and State
reference public sector employees of those employers. State
reference public sector transitional award means a State
reference transitional award or common rule that is only expressed
to cover State reference public sector employers and their State
reference public sector employees and also covers relevant
organisations covered by the award.
Item 4 of new Schedule 6A
allows the FWA to make State reference public sector modern awards
to cover the persons identified in an application by a person who
is covered by a State reference public sector transitional award
which must be made between the WR Act repeal day and 31 December
2013.
Item 5 of new Schedule 6A
provides that a State reference public sector transitional award
may be terminated on application to FWA by a State reference public
sector employer or organisation covered by the award between the WR
Act repeal day and 31 December 2013.
Item 6 of new Schedule 6A
provides that after 31 December 2013, FWA is required to deal with
any remaining State reference public sector transitional awards
that have not been modernised, either by varying the coverage of an
appropriate State reference public sector modern award, or by
making a new State reference public sector modern award, to replace
the remaining State reference public sector transitional
awards.
Item 7 of new Schedule 6A
ensures that the modern awards objective and the minimum wages
objective apply to the making of a State reference public sector
modern award.
Items 8 and 9 of new
Schedule 6A set out terms a State reference public sector
modern award must contain including the class or classes of
employers, employees and organisations who are covered by the
award. Terms which may be included in a State reference public
sector modern award are to be similar as for modern awards
generally.
Item 10 of
new Schedule 6A ensures that once a State
reference public sector modern award comes into operation, it
replaces the State reference public sector transitional award that
covered the parties to the modern award by terminating the
transitional award.
Item 11 of new Schedule 6A provides that FWA by mid 2013 must
notify all parties still covered by a State reference public sector
transitional award that FWA will commence the State reference
public sector transitional award modernisation.
Items 13, 14 and 15 of
new Schedule 6A are similar to other provisions of
the FW Act which seek to prevent award modernisation resulting in a
reduction of employee take-home pay. The provisions confirm that
the State public sector transitional award modernisation process is
not intended to result in reduction in take-home pay. They provide
for the FWA to make appropriate orders to effect a remedy and
ensure that such orders apply only to the circumstances of a pay
reduction arising from award modernisation. Items
16 to 18 of new Schedule
6A provide that terms continue to apply to classes of
employees when other instrument commence and that the terms of
take-home pay orders displace terms of other instruments.
Items 19 and 20 of new
Schedule 6A allows the State award modernisation process
and any modernised awards to commence before 1 January 2010.
Items 1 to 3 make amendments
to the definition of outworker entity in section 12 of the FW Act
and are consequential on the extended definition of outworker
entity in proposed section 30F in relation to a referring State.
The amendments essentially align the definition of outworker entity
in relation to a Territory with the definition of outworker entity
in relation to a referring State in proposed section 30F[30]. Under
proposed paragraph 12(e), a person will be an
outworker entity, other than in their capacity as a national system
employer, where:
- the person arranges for work to be performed for the person
(either directly or indirectly)
- the work is of a kind that is often performed by outworkers,
and
- the arrangement is connected with a Territory.
An arrangement is connected with a Territory if
any of the following apply:
- at the time the arrangement is made, one or more parties is in
a Territory
- the work is to be performed in a Territory
- the person arranging the work carries on an activity (whether
of a commercial, governmental or other nature) in a Territory, and
the work is reasonably likely to be performed in that Territory or
in connection with that activity.
Schedule 4 repeals the definition of award in Acts administered
under the Agriculture, Fisheries and Forestry portfolio. The
Explanatory Memorandum states that the purpose is to give the term
award its ordinary meaning which would includes awards and
NAPSAs[31]
continued as transitional award-based instruments under Schedule 3
to the T&C Bill, transitional awards continued under Schedule
20 to the T&C Bill and FW Act modern awards.[32]
The more significant amendments in Schedule 5 are located in
Part 2 and relate to the Human Rights and Equal
Opportunity Commission (HREOC).
The Human Rights and Equal Opportunity Commission Act
1986 permits HREOC to refer to the AIRC allegedly
discriminatory industrial instruments. In particular, existing
section 46PW applies to industrial instruments that have allegedly
authorised an act that would be unlawful under the Sex
Discrimination Act 1984.
Items 73 to 75 would expand
the scope of section 46PW so that industrial instruments that might
breach the Age Discrimination Act 2004 and the
Disability Discrimination Act 1992, (as well as the
Sex Discrimination Act 1984) can also be referred by HREOC
to FWA.
Items 67 to 72 make related
amendments to the FW Act that would allow FWA to deal with matters
referred by HREOC in relation to breaches of the Age Discrimination
Act and the Disability Discrimination Act (as well as the
Sex Discrimination Act).
Items 60 to
66 make consequential amendments to the Age
Discrimination Act and the Disability Discrimination Act to
ensure that the term industrial instruments captures instruments
made under the FW Act and transitional instruments within the
meaning of the T&C Bill.
Part 1 of Schedule 5 contains miscellaneous
consequential amendments to a number of Acts administered under the
Attorney-General s portfolio. For example Part 1 would:
- amend the definitions of registered organisation in various
Acts to ensure that registered organisations and recognised
associations under the FW(RO) Act are included in these
definitions
- replace references to the AIRC with references to FWA in a
number of Acts
- amend the meaning of industrial instrument in the
Bankruptcy Act 1966 so that it encompasses all
Commonwealth, State and Territory laws regulating conditions of
employment and awards, determinations and agreements made under
such laws
- amends the definition of Commonwealth authority in the
Crimes Act 1914 and the Criminal Code Act 1995 so
as to exclude from the definition organisations registered under
the FW(RO) Act
- amend the definition of trade union in the HREOC Act so as to
include registered organisations or recognised associations under
the FW(RO) Act
- amend the Legislative Instruments Act 2003 confirming
that a range of employment related instruments are not to be
considered legislative instruments and subject to the requirements
of the Legislative Instruments Act.
Schedule 6 makes three amendments to definitions in the
Telstra Corporation Act 1991 relating to long service
leave entitlements of Telstra employees. The Explanatory Memorandum
states the provisions have been amended so that they capture
instruments and agreements made under both the WR Act and the FW
Act.[33]
Schedule 7 amends the Naval Defence Act 1910. It
replaces references to minimum standards in the AFPCS and WR Act
awards with references to minimum standards in the NES and, where
applicable, any relevant national minimum wage order or industrial
award.
The majority of amendments in Schedule 8 are consequential
amendments to the Building and Construction Industry
Improvement Act 2005 (the BCII Act). Many of the concepts in
the BCII Act are closely connected to the WR Act and the purpose of
the amendments is to bring terminology and definitions in BCII Act
into line with the FW Act. For example there are amendments
that:
- repeal definitions of building agreement, industrial dispute,
Industrial Registrar, negotiating party
- insert new definitions that specifically draw their meaning
from the FW Act including industrial body, bargaining
representative, industrial body, enterprise agreement, independent
contractor
- reword a number of definitions to reflect the changes brought
about by the FW Act and the T&C Bill including the definition
of award, Commonwealth industrial instrument, designated building
law, occupier, premises, workplace agreement, and
organisation.
It is of note that the amendments to the BCII Act are
consequential on the enactment of the FW Act and do not represent
the substantive reforms promised by the Labor Party prior to the
2007 election. Minister Gillard has recently been reported as
stating that the Government intends to honour its election
commitment to replace the ABCC with a specialist building and
construction division of the inspectorate of FWA on 1 February
2010. There is speculation that introduction of the relevant
legislation is imminent.[34]
Item 1 amends the
definition of trade union in the Equal Opportunity for Women in
the Workplace Act 1999 so as to include registered
organisations, or recognised associations under the FW(RO) Act.
Items 2 and 3amend the
Social Security Act 1991so as to update references to
tribunals which can make orders, directions or injunctions in
relation to industrial action. The tribunals could include FWA or a
prescribed State industrial authority within the meaning of the FW
Act.
Schedule 10 contains miscellaneous consequential amendments to a
number of Acts administered under the Finance and Deregulation
portfolio. For example the Schedule:
- amends the definition of Commonwealth authority in the
Commonwealth Authorities and Companies Act 1997so as to
exclude from the definition organisations registered under the
FW(RO) Act
- amends the definitions of electoral matters in the
Commonwealth Electoral Act 1918 to replace the reference
to WR Act ballots with a reference to FW Act and FW(RO) Act
ballots.
- amends the definition of registered industrial organisation in
the Commonwealth Electoral Act to cover organisations registered
under the FW(RO) Act (rather than those registered under the WR
Act)
- amends and updates definitions in superannuation legislation
including definitions of industrial award and approved organisation
.
Items 1 to 4 amend the
Commonwealth Serum Laboratories Act 1961to remove
references to WR Act awards and agreements and ensure that FW Act
modern awards and enterprise agreements are included in the
definition of industrial instrument.
Items 5 to 9 amend provisions
in the National Health Act 1953relating to the
Pharmaceutical Remuneration Tribunal that are consequential on the
replacement of the AIRC by FWA.
Schedule 12 amends the Migration Act 1958, the main
purpose being to substantially align the powers of inspectors under
the Migration Act with the powers of Fair Work Inspectors under the
FW Act.[35] The
Explanatory Memorandum to the Bill states that this consistency
between the inspection regimes is appropriate because the same
persons may be appointed as inspectors for the purposes of the FW
Act and for the Migration Act, and these inspectors may exercise
their powers under both Acts simultaneously.[36]
The purpose of the Migration Amendment (Worker Protection)
Act 2008 (the 2008 Act) was to amend the Migration Act
1958 to create a new sponsorship framework with heightened
enforcement mechanisms, including civil penalty provisions,
monitoring and investigation powers, and information sharing
provisions.[37] The
2008 Act has not yet commenced operation commencement is to be
either by Proclamation or 9 months after 18 December 2008 (ie Royal
Assent day). The provisions in this Bill would amend the 2008 Act
immediately after commencement.
Inspector powers for the new sponsorship framework are set out
in sections 140X to 140Z. Item 4 would repeal
these provisions and replace them with proposed sections
140X to 140XJ. The new provisions
essentially replicate sections 706 to 714 of the FW Act, with a
couple of notable variations:
- Powers of inspectors to enter premises or places:
proposed section 140XB would allow inspectors to
enter a business premises or another place[38] the
rationale being that it is necessary for inspectors, for the
purposes of sponsorship compliance verification, to be able to
enter places such as residential premises due to the nature of some
of the sponsorship obligations.[39] By way of contrast, Fair Work inspectors may
enter business premises but only enter residential premises in
limited circumstances where reasonably satisfied that work is being
carried out on that premises (section 708 of the FW Act).
- Power to require persons to produce records or
documents: proposed paragraph 140XF(2)(c)
allows a person 7 days to respond to a notice to produce
records or documents. This is in contrast to paragraph 712(2)(c) of
the FW Act that provides a minimum of 14 days to produce records or
documents. The Explanatory Memorandum to the Bill states that there
may be compelling reasons in special cases for requesting
information in as few as 7 days, taking into account the special
vulnerability to exploitation of non-citizens in Australia on
temporary visas. In normal circumstances however inspectors will be
expected to provide sponsors with at least 14 days in which to
respond to a written notice.[40]
Schedule 13 makes only one amendment. It repeals and replaces
section 292 of the Navigation Act 1912 so that it provides
that a transitional APCS, a transitional award, a modern award or a
national minimum wage order which covers seamen employed in any
part of the coasting trade is evidence of the rates of wages in
Australia for those seamen.
Schedule 14 makes consequential amendments to various
definitions in the Independent Contractors Act 2006. For
example the amendments:
- replace a reference to a workplace inspector with a reference
to a Fair Work Inspector
- convert the definition of organisation so that it is an
organisation registered, or association recognised, under the
FW(RO) Act, rather than the WR Act
- amend the definition of State or Territory industrial law so
that it has the same meaning as in the FW Act (rather than in the
WR Act)
Part 1 of Schedule 15 amends the
Parliamentary Service Act 1999and contains consequential
amendments. Amongst other things the amendments update provisions
which currently refer to the AFPCS and WR Act instruments so that
they would encompass the NES and FW Act instruments.
Part 2, item 22 is a saving provision to ensure
the continued operation of any determinations made under subsection
24(1) of the Parliamentary Service Act 1999 before the
commencement this Bill.[41]
The more significant amendments in Schedule 16 relate to the
Privacy Act 1988.
The Privacy Act applies to acts and practices of agencies and
organisations. Organisation is defined at section 6C as an
individual, a body corporate, a partnership, any other
unincorporated association or a trust. The Privacy Act does however
contain a number of exemptions and exceptions. Of specific
relevance to this Bill, the definition of organisation specifically
excludes many small business operators, a small business operator
being defined as those with an annual turnover of $3 million or
less (section 6D). However some small businesses that pose a higher
risk to privacy for example, small businesses that hold health
information and provide health services or those that trade in
personal information are covered by the Act (section 6E).
Under Part 3-3 of the FW Act protected ballot operators have
access to and collect personal information during the course of
their conduct of a protected action ballot.
Item 2 inserts proposed subsection
6E(1B) into the Privacy Act, its purpose being to require
small business operators who are protected action ballot agents to
comply with the Privacy Act in connection with their conduct of a
protected action ballot under Part 3-3 of the FW Act.[42]
Item 2 also inserts proposed subsection
6E(1C) and makes a similar amendment in relation to
employer and employee associations and organisations. Its purpose
is to require registered or recognised associations under the
FW(RO) Act to comply with the Privacy Act.
The purpose of these amendments is to bring both groups under
the obligations of the Privacy Act, despite the fact that they may
in normal circumstances be exempt from that Act because of the
small business exemption.
Schedule 16 also amends the Public Service Act 1999,
the main purpose being to update terminology to take account of the
various instruments that can be made under the FW Act.
Schedule 17 makes consequential
amendments to definitions in various Acts administered by the
Resources, Energy and Tourism portfolio. For example the Schedule
would:
Part 1 of Schedule 18 contains consequential
amendments to various Acts administered by the Treasury portfolio.
For example, the amendments:
Schedule 19 amends the Military Rehabilitation and
Compensation Act 2004 by replacing references to the WR Act
federal minimum wage or to an AFPCS with references to the relevant
minimum wage set by a national minimum wage order under the FW
Act.
Schedule 20 deals with regulations that can be made under this
Act.
Item 1 sets out a general regulation making
power to deal with matters under the Act. Item 2
provides that regulations may modify the transitional Schedules in
the Bill. This would effectively enable delegated legislation to
override an earlier legislation. The Explanatory Memorandum
justifies the provision on the grounds that it would enable any
consequential issues that emerge in the future to be dealt with
without requiring a further Bill.[44] The use of so called Henry VIII clauses [45] can be a source of
concern to the Senate Scrutiny of Bills Committee if the provision
is considered to insufficiently subject the exercise of legislative
power to parliamentary scrutiny. In this case, the Senate Committee
has made no comment.[46]
Item 3 allows regulations to have retrospective
effect. Again, the justification is that this is necessary to
prevent unforseen difficulties that may arise in the transition
from the legal framework of the WR Act to the new Fair Work
system.[47] This
retrospective application is modified to the extent that
subitem 3(2) provides that if a regulation takes
effect before it is registered, a person cannot be convicted of an
offence or ordered to pay a penalty in relation to conduct
contravening the regulation that occurred prior to registration.
Again, the Senate Scrutiny of Bills Committee has made no comment.
[48]
Concluding comments
A revolution is underway with a move to a uniform national
workplace relations system for the private sector underway. The
force to break the ice has been the Commonwealth s reliance on the
Constitution s corporations power in industrial relations
legislation, buttressed with the High Court upholding Work Choices
in 2006. The effect has been to remove key enterprises and possibly
industries of state economies from state industrial
jurisdictions.
Professor Breen Creighton, RMIT law professor, has been reported
as saying the generic approach to referral used in this Bill is
interesting and that if it is successful will be an improvement on
the first Victorian referral under the WR Act. Professor Creighton
says it is possible there will need to be some fine-tuning of the
legislation as States make their referrals a prospect foreshadowed
by Workplace Relations Minister Julia Gillard in her second
reading speech for the Bill.[49] The Bill is to be commended for aiming to avoid
having to legislate in detail for each referral. Whether each of
the referrals will fit the template created by the Bill will depend
on the States' legislation, particularly the extent they go beyond
Victoria in terms of exclusions for employees in areas like the
public service, local government and state-owned
enterprises.[50]
If the five state referrals conclude successful referrals, it
may be difficult for Western Australia to justify its reluctance to
make its referral. Although, notably in other cooperative national
schemes such as family law and de facto relationships, Western
Australia continues to remain apart. On the other hand, if the Rudd
Government concludes a number of successful referrals, it may be
tempted to include a referendum question on private sector
industrial relations in any forthcoming federal election. It would
be difficult to imagine a strong No case being mounted, in light of
referrals and the existing expansion of the federal jurisdiction
since Work Choices .
There appears some general agreement between the Commonwealth
and the states for state public services and local government to
remain under state industrial jurisdictions, although Victoria
proves the point that even these sectors are able to come under
national administration.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2463/2438.
[11]. J Gillard, Second
reading speech: Fair Work (State Referral and Consequential and
Other Amendments) Bill 2009 , House of Representatives,
Debates, 27 May 2009, pp. 4 9.
[13].
Victoria switching to text-based referral, full referral on the
cards for Tasmania, as States take up different positions on
unitary system, Workplaceexpress.com.au, 25 May
2009.
[15].
Queensland the latest to back national IR system, as Victoria and
Canberra sign new deal , Workplaceexpress.com.au, 11 June
2009.
[16]. Bill
dealing with referral to be introduced tomorrow ,
Workplaceexpress.com.au, 26 May 2009.
[20]. The Constitutional underpinning of the FW Act is based
on the defined terms national system employer and national system
employee . For a fuller explanation the reader is referred to the
Fair Work Bill 2008 Bills digest, pp. 17 19.
[31]. NAPSAs
are notional agreement preserving State
awards.
[37]. For
further information the reader is referred to: E. Karlson,
Migration Legislation Amendment (Worker Protection) Bill
2008, Bills digest, no. 51, 2008 09, Parliamentary Library,
Canberra, 2008, viewed 10 June 2009, http://www.aph.gov.au/Library/pubs/bd/2008-09/09bd051.pdf
Steve O'Neill
Mary Anne Neilsen
12 June 2009
Bills Digest Service
Parliamentary Library
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