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2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
WORKPLACE RELATIONS LEGISLATION AMENDMENT (INDEPENDENT
CONTRACTORS) BILL 2006
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Employment and Workplace Relations, the
Honourable Kevin Andrews MP)
Outline
WORKPLACE RELATIONS LEGISLATION AMENDMENT (INDEPENDENT
CONTRACTORS) BILL 2006
OUTLINE
The proposed Government amendments to Schedules 1 and 2 of the Bill would amend
provisions relating to independent contracting arrangements. The amendments would further
refine and strengthen the Government's commitment to ensure that genuine working
relationships are upheld.
The amendments would:
· amend the sham penalty provisions (proposed sections 900 and 901) so that the defence of
recklessness is available to a person who breaches the civil remedy provision. This would
achieve greater consistency with other similar provisions in the Workplace Relations Act
1996 (WR Act);
· amend the remedies available under the re-engagement penalty (proposed section 902) to
allow the Federal Court of Australia and the Federal Magistrates Court to order the
reinstatement of, or the payment of compensation to, a person dismissed in breach of this
provision. The amendment would also allow the courts to issue interim injunctions to
prevent contraventions of the proposed provision; and
· make consequential amendments to the Building and Construction Industry Improvement
Act 2005 (BCII Act) to allow the Australian Building and Construction (ABC)
Commissioner and an ABC Inspector to investigate and bring court proceedings in relation
to alleged breaches of the sham penalty provisions, and provisions of the Independent
Contractors Act 2006 (IC Act).
The proposed Government amendments would also insert 4 new Schedules which would make
amendments to a number of provisions in the WR Act.
Schedule 3 contains amendments relating to protecting redundancy entitlements. It would
provide for the preservation of agreement-based redundancy provisions for a maximum period of
12 months after a workplace agreement, pre-reform certified agreement (CA), pre-reform
Australian workplace agreement (AWA) or a preserved State agreement (PSA) is terminated
either unilaterally with 90 days written notice, or by the Australian Industrial Relations
Commission (AIRC) where it is not contrary to the public interest, on application by the
employer. In addition, the measures will provide for the treatment of preserved redundancy
provisions on transmission of business.
Schedule 4 would insert new provisions dealing with the standing down of employees in certain
circumstances where work is unavailable due to events out of the control of the employer.
Schedule 5 would make a number of technical amendments to Part 7 of the Act relating to the
Standard, including amendments that would:
· modify the frequency of payment guarantee, so that a contract of employment or workplace
agreement guarantees an employee frequency of payment for periods of one month or less
the employer must comply with such provisions;
· cap the accrual of annual and personal/carer's leave so that leave does not accrue in respect
of hours worked above 38 hours per week;
Senate page 1 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Outline
· change the payment rule for personal/carer's leave, compassionate leave and leave for
pregnant employees who cannot be transferred to a safe job, so that an employee is entitled
to be paid a rate for each hour of leave taken at his or her hourly basic periodic rate of pay
(consistent with the payment rule for annual leave); and
· enable an employee to request to cash out an amount of paid personal/carer's leave each
year, provided that a minimum balance of at least 15 days leave remains available after
cashing out (for full-time employees, pro rata for part-time employees).
Schedule 6 would make a number of technical amendments including:
· clarifying the relationship between the Standard and pre-reform CAs, pre-reform AWAs,
section 170MX awards and PSAs to ensure that if such an instrument does not deal with
one or more of the minimum entitlements covered by the Standard, an employee will have
the benefit of the Standard in respect of those entitlements;
· ensuring that employees may waive both the requirement to have a workplace agreement
and the requirement to have the information statement for seven days before approving that
agreement or a variation to it;
· enabling Notional Agreements Preserving State Awards (NAPSA) and PSAs to operate,
within certain limitations, in conjunction with pre-reform CAs and AWAs;
· clarifying that a term of a NAPSA is only unenforceable in relation to a particular
employee, where the Standard also provides for a matter in relation to that employee;
· amending the rules which provide for the continuing operation of s170MX awards; and
· other miscellaneous technical amendments.
Senate page 2 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
NOTES ON AMENDMENTS
Amendment No. 1 - Clause 2, page 2 (at the end of the table)
1. This is a commencement clause. It indicates that Schedules 3, 4, 5 and 6 commence the day
after the day on which this Act receives the Royal Assent.
Amendment No. 2 - Schedule 1, item 1, page 3 (lines 24 to 31)
2. This amendment would omit proposed subsection 900(2) and substitute a new provision.
3. Proposed section 900 would allow a civil penalty to be imposed by the Federal Court or the
Federal Magistrates Court on persons who misrepresent an existing employment relationship as
an independent contracting arrangement. Subsection (2), as it is proposed to be amended, would
provide a defence to the civil penalty if the person proves that at the time the representation was
made, the person did not know that the contract formed an employment rather than an
independent contracting arrangement and nor were they reckless as to the nature of the contract.
`Recklessness' will take its common law meaning as the Commonwealth Criminal Code does
not apply to the civil remedy provisions in the WR Act.
Amendment No. 3 - Schedule 1, item 1, page 4 (lines 20 to 28)
4. This amendment would omit proposed subsection 901(2) and substitute a new provision.
5. Proposed section 901 would allow a civil penalty to be imposed by the Federal Court or the
Federal Magistrates Court on persons who misrepresent a proposed employment relationship as
an independent contracting arrangement. Subsection (2), as it is proposed to be amended, would
provide a defence to the civil penalty if the person proves that at the time the representation was
made, the person did not know that the contract would, if entered into, form an employment
rather than an independent contracting arrangement and they were not reckless as to the nature of
the proposed contract.
Amendment No. 4 - Schedule 1, item 1, page 5 (lines 16 to 19)
6. This amendment would omit proposed subsection 902(3) and substitute a new provision. It
is a technical correction to remove an incorrect reference to proceedings under Division 3 of Part
14 (Compliance), as proceedings would be brought under proposed Part 22 (Sham arrangements)
of the WR Act.
7. This amendment would also insert a legislative note to proposed section 902, consequential
upon amendment 4, referring the reader to proposed subsection 904(2A) which would allow the
Federal Court or the Federal Magistrates Court to grant an injunction for a breach of the section.
The note would also alert readers to section 838 of the WR Act.
Amendment No. 5 - Schedule 1, item 1, page 6 (after line 8)
8. This amendment would add three new subsections to proposed section 904 which relates to
orders the Federal Court or the Federal Magistrates Court may make where a person has
contravened subsection 902(1). Proposed subsection 902(1) would provide that a civil penalty
could apply if an employer dismisses, or threatens to dismiss, an employee with the sole or
dominant purpose of re-engaging that employee as an independent contractor to do the same, or
substantially the same, work.
Senate page 3 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
9. Proposed subsection 904(2A) would allow the Federal Court or the Federal Magistrates
Court to grant an injunction and make any other orders it considers necessary to stop a breach of
subsection 902(1) or to remedy the effects of a breach. Proposed subsection 904(2B) would
outline some of the `other orders' the court could make which are alluded to in proposed
subsection (2A). These other orders include reinstatement of a dismissed employee and
compensation for an employee who has been dismissed or threatened with dismissal to
compensate them for any loss suffered as a result.
10. Proposed subsection 904(2C) would provide that the orders the court could make under
subsection (2A) may be made instead of, or as well as, any pecuniary penalty imposed under
proposed section 904.
Amendment No. 6 - Schedule 2, item 2, page 8 (lines 9 to 12)
11. This amendment would omit item 2 of the Bill and substitute a new provision. This
amendment is consequential on the repeal of existing Part 22 of the WR Act dealing with
contract outworkers in Victoria in the textile, clothing and footwear industry (see item 3 of
Schedule 2 of this Bill) and the removal of proposed Part 4 of the Independent Contractors Bill
2006.
Amendment No. 7 - Schedule 2, item 4, page 8 (lines 15 to 21)
12. This amendment would delete item 4 of Schedule 2 of the Bill. This amendment is
consequential on the repeal of existing Part 22 of the WR Act (see item 3 of Schedule 2 of this
Bill) and the removal of proposed Part 4 of the Independent Contractors Bill 2006 (IC Bill).
Amendment No. 8 - Schedule 2, page 10 (after line 6)
13. This amendment would insert a new item in the Bill.
New item 6A - Subsection 75(2)
14. This item would repeal subsection 75(2) of the BCII Act which relates to the jurisdiction of
the Federal Magistrates Court in unfair contract matters involving building work. The repeal of
this subsection is a consequence of the repeal of section 47 of the BCII Act by item 6 of
Schedule 2 of the Bill.
Amendment No. 9 - Schedule 2, page 10 (after line 11)
15. This amendment would insert new Part 3 into Schedule 2 of the Bill. The new Part would
make amendments to the BCII Act as a consequence of the enactment of the IC Bill.
New Part 3 - Consequential amendments relating to building contractors
Building and Construction Industry Improvement Act 2005
New Item 8 - Subsection 4(1) (paragraph (a) of the definition of `designated building law'
16. This item would amend the definition of designated building law to include the IC Act.
Senate page 4 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
New Item 9 - Subparagraph 10(a)(i)
New Item 10 - Subparagraph 10(b)(i)
New Item 11 - Paragraph 10(d)
New Item 12 - Paragraph 10(e)
New Item 13 - Paragraph 10(f)
17. These items would amend section 10 of the BCII Act which sets out the functions of the
ABC Commissioner. These amendments would require the ABC Commissioner to:
· monitor and promote compliance with the IC Act;
· investigate suspected contraventions of the IC Act by building industry participants;
· provide assistance and advice to building industry participants regarding their rights and
obligations under the IC Act;
· provide representation to a building industry participant who is, or might become, a party to
a proceeding under the IC Act; and
· disseminate information about the IC Act affecting building industry participants.
New Item 14 - Paragraph 67(c)
18. This item would make a consequential amendment to paragraph 67(c) of the BCII Act. The
effect of the amendment would be to allow the ABC Commissioner to publish details of non-
compliance with the IC Act of a building industry participant.
New Item 15 - Paragraph 71(1)(b)
19. This item would make a consequential amendment to paragraph 71(1)(b) of the BCII Act.
The effect of the amendment would be to allow the ABC Commissioner to intervene before a
court in civil proceedings regarding matters that arise under the IC Act.
New Item 16 - Subsection 73(3)
20. This item would make a technical amendment to subsection 73(3) of the BCII Act by
updating a cross-reference to the WR Act. The section of the WR Act referred to in
subsection 73(3) was renumbered by the Workplace Relations Amendment (Work Choices) Act
2005 (the Work Choices Act).
New Item 17 - After section 73
21. This item would insert new section 73A in the BCII Act.
22. The effect of this amendment would be to empower the ABC Commissioner or an ABC
Inspector to institute proceedings under the IC Act.
23. Proposed subsections 73A(1) and (2) would provide that where the IC Act authorises a
workplace inspector to institute proceedings in a court, the provision is to be read as also
Senate page 5 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
authorising the ABC Commissioner or an ABC Inspector to make such an application where the
proceedings involve matters that involve either a building industry participant or building work.
24. Proposed subsection 73A(3) would provide that directions issued by the Minister under
subsection 167(7) of the WR Act to workplace inspectors do not apply to the ABC
Commissioner or ABC Inspectors when instituting proceedings under the IC Act.
New item 18 - Paragraph 77(1)(b)
25. This item would make a consequential amendment to paragraph 77(1)(b) of the BCII Act.
The effect of this amendment would be to ensure that no one is liable to civil proceedings for
loss, damage or injury suffered by another person because of anything done (or omitted to be
done) in good faith and without negligence by a protected person in the exercise, or purported
exercise, of their functions under the IC Act.
26. Protected person is defined in subsection 77(2) of the BCII Act.
New item 19 - Subparagraph 78(2)(d)(i)
27. This item would make a consequential amendment to subparagraph 78(2)(d)(i) of the BCII
Act. The effect of this amendment would be to allow the making of regulations under the BCII
Act that require a building industry participant to notify the ABC Commissioner of an
application made to a court under the IC Act.
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Notes on amendments
New Schedule 3 - Amendments relating to protecting redundancy entitlements
Amendment No. 10 - Page 10, at the end of the Bill (after proposed Part 3 of Schedule 2)
28. Amendment No. 14 would insert Schedule 3 into the Bill. The items in this Schedule would
amend the WR Act to provide for the preservation of agreement-based redundancy provisions
for a maximum period of 12 months after the agreement is terminated.
29. These measures would apply in relation to workplace agreements, pre-reform certified
agreements, pre-reform Australian workplace agreements, and PSAs (individual and collective).
30. In the case of a workplace agreement, redundancy provisions would be preserved where the
agreement is unilaterally terminated by the employer with 90 days notice. In the case of a pre-
reform CA, pre-reform AWA and a PSA, redundancy provisions would be preserved where the
agreement is terminated by the AIRC on application by the employer, where it is not contrary to
the public interest.
31. The amendments in Schedule 3 would also provide for the treatment of preserved
redundancy provisions on transmission of business.
Item 1 - At the end of subsection 347(7)
32. This item would insert a legislative note which would indicate that the operation of section
399A may apply in relation to a terminated workplace agreement, that is, that redundancy
provisions in a terminated workplace agreement may continue to have effect for a period of up to
12 months after the agreement is terminated.
Item 2 - Paragraph 393(4)(b)
33. This item would require a bargaining agent that has been requested by an employer to lodge
a section 393 declaration to take reasonable steps to ensure that a written copy of any
undertakings in relation to the terminated workplace agreement is given to those parties
mentioned in paragraph 393(4)(a).
34. The intention is to ensure that obligations in section 393 are also imposed on an employer
where a bargaining agent has acted on behalf of that employer.
Item 3 - At the end of subsection 393(5)
35. Subsection 393(5) sets out the form and content of the unilateral termination notice.
36. This item would amend subsection 393(5) so that the notice must state whether the parties to
the workplace agreement will continue to be bound by one or more redundancy provisions
included in the agreement pursuant to section 399A. This obligation would apply only where an
employer bound by the workplace agreement, or a bargaining agent that has been requested by
the employer, gives notice of the unilateral termination.
37. This item would also provide that if the parties bound by the workplace agreement will
continue to be bound by a redundancy provision or provisions under section 399A, the notice
must include an annexed copy of the redundancy provision/s.
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Notes on amendments
Item 4 - Paragraph 394(5)(a)
38. Paragraph 394(5)(a) provides that an employer contravenes the subsection if it has made an
undertaking in relation to a termination of a workplace agreement under section 393 and does
not annex a copy of the undertaking to a declaration to terminate that is lodged.
39. This item would ensure that subsection 394(5) also applies to a bargaining agent that lodges
a declaration to terminate a workplace agreement at the request of an employer bound by the
agreement.
40. The intention is to ensure that obligations in section 394 are also imposed on an employer
where a bargaining agent is acting on behalf of that employer.
Item 5 - Paragraph 394(5)(c)
41. This item is consequential on Item 4 and would repeal and replace paragraph 394(5)(c). The
effect of the amendment would be to ensure that a copy of the undertakings must be annexed by
either the employer bound by the agreement, or a bargaining agent that lodges a declaration to
terminate a workplace agreement at the request of an employer bound by the agreement.
Item 6 - At the end of subsection 395(1)
42. Section 395 deals with the lodgement of unilateral termination documents with the
Employment Advocate.
43. This item would amend subsection 395(1) so that a declaration to terminate a workplace
agreement under section 393 must state whether the parties to the agreement will continue to be
bound by one or more redundancy provisions pursuant to section 399A. This amendment would
apply where an employer that is bound by the agreement, or a bargaining agent that is requested
by an employer bound by the agreement, lodges a declaration to terminate a workplace
agreement.
Item 7 - Subsection 395(2)
44. The amendment proposed by this item is consequential on item 6 and would repeal and
replace subsection 395(2).
45. Proposed subsection 395(2) would provide that undertakings are lodged in relation to a
termination of an agreement under section 393, if an employer bound by the agreement or a
bargaining agent that is requested by an employer bound by the agreement, lodges a declaration
to terminate a workplace agreement under subsection (1) and annexes a copy of the undertakings
to the declaration.
Item 8 After subsection 396(1)
46. Section 396 provides that the Employment Advocate must issue a receipt for a lodgement of
a declaration of termination of a workplace agreement. Additionally, the section sets out the
persons that must be given a receipt of lodgement.
47. This amendment would insert new subsection 396(1A) to provide additional requirements in
relation to a receipt issued by the Employment Advocate where an employer or an employer's
Senate page 8 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
bargaining agent who acts at the employer's request, lodges a notice under section 393 and a
declaration of termination under section 395 of the Act.
48. Where this is the case, the receipt must state whether or not the section 395 declaration itself
states that there are redundancy provisions which will continue to operate, and if so, if the
declaration has an annexed copy of those provisions.
49. The intention is that parties bound by the preserved redundancy provisions are made aware
that the employer or the employer's bargaining agent has declared that there are redundancy
provisions in the agreement that may continue to operate under section 399A of the WR Act.
The amendment does not require the Employment Advocate to assess whether or not the
workplace agreement has redundancy provisions that may continue to apply.
Item 9 - At the end of Division 9 of Part 8
50. This item would insert new section 399A into the Act to deal with the preservation of
redundancy provisions which are included in workplace agreements, when the agreement is
terminated.
51. Subsection 399A(2A) would ensure that Parts 6 (workplace inspectors) and 14 (compliance)
of the Act apply to preserved redundancy provisions which were initially included in a
workplace agreement, as if the redundancy provisions were a workplace agreement in operation.
Section 399A Preservation of redundancy provisions in certain circumstances
52. Proposed subsection 399A(1) would provide that the section applies if a workplace
agreement is terminated under section 393 by an employer that is bound by the agreement, or by
a bargaining agent at the request of an employer that is bound by a workplace agreement.
53. This means that redundancy provisions that are in a workplace agreement will only be
preserved by section 399A if the workplace agreement is terminated unilaterally with 90 days
written notice on application by an employer or the employer's bargaining agent. Therefore,
section 399A will not apply, for example, where a workplace agreement is terminated by
approval under Subdivision B of Division 9 of Part 8 of the WR Act.
54. Subsection 399A(2) would provide that any party that was bound by the workplace
agreement just before it was terminated will continue to be bound by any redundancy provision
that was included in the agreement. This means that an employer, employee or an organisation
of employees may continue to be bound by redundancy provisions that were included in a
workplace agreement despite the agreement ceasing to be in operation because of the
termination.
55. The redundancy provisions will have effect as if they are included in a workplace agreement
that is still operating - that is, the provisions can be enforced as if they were still included in an
instrument. This means, for example, the provisions can be enforced by an employee who was
bound by them immediately before the employee was terminated on the grounds of operational
requirements.
56. Subsection 399A(3) would provide that a party ceases to be bound by the redundancy
provisions in relation to an employee who is also bound by the redundancy provision if one of
the following occurs, whichever occurs first:
Senate page 9 Workplace Relations Legislation Amendment
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Notes on amendments
· the end of the period of 12 months from the time the workplace agreement was terminated;
· the employee is no longer employed by the employer; or
· a new workplace agreement comes into operation in relation to the employee and employer.
57. The intention is that the parties will continue to be bound by a preserved redundancy
provision for a maximum period of 12 months, unless the employee ceases employment with the
employer, or a new workplace agreement comes into operation.
58. Subsection 399A(4) would provide a definition of `redundancy provision' for the purposes
of section 399A. Redundancy provision means any provision, including incidental and
machinery provisions, about redundancy pay to the extent that the provision relates to a
termination of employment at the initiative of the employer on the grounds of genuine
operational requirements or because the employer is insolvent. This is consistent with the
definition of redundancy pay in relation to awards in subsection 513(4) of the WR Act.
59. This means that section 399A may operate to preserve a broad range of redundancy
provisions which relate to a termination of employment, for example clauses that deal with
redundancy pay where:
· an employer arranges suitable alternative employment for an employee;
· an employer is unable to meet its redundancy pay obligations;
· there is a transmission of business from the employer to a new employer.
60. However, section 399A would not operate to preserve a redundancy pay provision which
related to, for example, entitlements payable on resignation of employment by an employee.
Item 10 - After Division 6 of Part 11
61. This amendment would insert a new Division into Part 11 of the WR Act to deal with the
transmission of preserved redundancy provisions which were initially included in a workplace
agreement where there is a transmission of business between an old employer and a new
employer.
Division 6A Transmission of preserved redundancy provisions from workplace agreements
62. It is intended that the transfer of preserved redundancy provisions in a transmission of
business are dealt with similarly to other instruments in Part 11 of the WR Act. Therefore, the
definition and application provisions in Divisions 1 and 2 of Part 11 of the WR Act also apply,
where relevant, to Division 6A.
598A Transmission of preserved redundancy provisions from workplace agreements
63. Proposed subsection 598A(1) would provide that a new employer is bound by a redundancy
provision in relation to a transferring employee, if immediately before the time of transmission,
the old employer and the employee were bound under section 399A, or under a previous
application of section 598, by a preserved redundancy provision. This means that a new
employer would not be bound by a preserved redundancy provision if it does not employ any
transferring employees.
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Notes on amendments
64. The proposed legislative note would indicate that the new employer has notification
obligations in relation to transferring employees as provided by sections 603A and 603B.
65. New subsection 598A(2) would provide that subject to subsection (3), the transferred
redundancy provision will prevail over any other instrument that might apply to the transferred
employee, to the extent of any inconsistency.
66. New subsection 598A(3) would provide that a new employer and a transferring employee
will remain bound by a preserved redundancy provision until the first of the following occurs:
· the end of the period of 12 months from the time that the workplace agreement that initially
contained the redundancy provisions was terminated. This means that the date that the
redundancy provisions cease to apply to the new employer is the same date that the
provisions would have ceased to apply to the old employer. The intention is that the new
employer's obligations with respect to the redundancy provisions match the old employer's.
The obligations do not start afresh on transmission;
· the transferring employee ceases to be employed by the new employer;
· the new employer and the transferring employee become bound by a new workplace
agreement.
67. New subsection 598A(4) would provide that section 598A does not affect any rights or
obligations of the old employer that may have arisen before the time of transmission.
68. This means, for example, that subsection 598A(1) will not operate to transfer liability for
accrued employee entitlements to a new employer from an old employer. However, note that the
redundancy provisions may provide that accrued entitlements become the responsibility of the
new employer.
69. Subsection 598A(5) would define `instrument' and `redundancy provision' for the purposes
of section 598A.
70. Instrument means:
· a workplace agreement - as defined in section 4 of the WR Act;
· a pre-reform CA - as defined in clause 1 of Schedule 7 to the WR Act;
· a preserved State agreement - as defined in clause 1 of Schedule 8 to the WR Act;
· a notional agreement preserving State awards - as defined in clause 1 of Schedule 8 to the
WR Act;
· an award - as defined in section 4 of the WR Act.
71. `Redundancy provision' means any provision, including incidental and machinery
provisions, that are about redundancy pay to the extent that the provision relates to a termination
of employment. The termination of employment must be at the initiative of the employer on the
grounds of operational requirements or because the employer is insolvent.
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Notes on amendments
Item 11 - After section 603
72. This amendment would insert new sections 603A and 603B in the WR Act to create
notification obligations for new employers in respect of transferred preserved redundancy
provisions. The effect of the provisions would be to require the new employer to inform the
transferring employee about the continued operation of the preserved redundancy provisions,
and to lodge the relevant notice with the Employment Advocate.
603A Informing transferring employees about transmission of preserved redundancy
provisions
73. Proposed subsection 603A(1) would provide that section 603A applies if an employer is
bound by one or more transferred preserved redundancy provisions under section 598A.
74. Subsection 603A(2) would provide that the new employer must take reasonable steps to give
a transferring employee written notice that complies with subsection 603A(3) within 28 days of
the employee commencing employment with the new employer.
75. The proposed legislative note would indicate that subsection 603A(2) is a civil remedy
provision. The note would also indicate that section 605 is relevant to the operation of section
603A. Section 605 which deals with civil remedies for the purposes of Part 11 of the WR Act.
76. Subsection 603A(3) would set out what the written notice must contain.
77. The notice must:
· identify the redundancy provision or provisions that have transferred to the new employer as
a result of the transmission of business;
· state that the new employer is bound by those transferred redundancy provision or provisions
as if they were the old employer;
· provide the date which is 12 months after the time that the workplace agreement that initially
included the redundancy provision or provisions was terminated; and
· provide that the new employer will be bound by the transferred redundancy provisions as if
they were part of a workplace agreement until the date which is 12 months after the time that
the workplace agreement that initially included the redundancy provision/s was terminated,
or alternatively, that the new employer will be bound until an earlier date as dealt with in
subsection 598A(3). (Section 598A(3) deals with the time that a new employer and
transferring employee are bound by transferring redundancy provisions).
78. Subsection 603A(4) would have the effect of relieving the new employer from the
notification obligations outlined in subsection 603A(2) if the new employer and the transferring
employee make a new workplace agreement within 14 days of the time of transmission.
79. The reason for removing the notification requirement in this situation is that the preserved
redundancy clauses would cease to operate soon after the time of transmission, making
notification redundant.
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Notes on amendments
603B Lodging copy of notice about preserved redundancy provisions with Employment
Advocate
80. Proposed subsection 603B(1) would provide that an employer must lodge a copy of any
notice given to a transferring employee under section 603A with the Employment Advocate.
81. Proposed Note 1 would indicate that section 603B is a civil remedy provision. The Note
would also indicate that section 605 is relevant to the operation of section 603B which deals with
civil penalties for the purposes of Part 11 of the WR Act.
82. Proposed Note 2 would refer to obligations imposed by sections 137.1 and 137.2 of the
Criminal Code Act 1995 in relation to the provision of information of documents.
83. Proposed subsection 603B(2) would deal with the lodgement of the notice for redundancy
provisions that were initially included in either an AWA or a collective agreement.
84. For an AWA, notice must be lodged with the Employment Advocate within 14 days after
the day on which notice is given by an employer to an employee under section 603A.
85. For a collective agreement, notice must be lodged with the Employment Advocate within 14
days of the earliest day on which notice was given by the employer to an employee under section
603A.
86. Proposed subsection 603B(3) would provide that a notice is lodged in accordance with this
section only once it is actually received by the Employment Advocate.
87. The proposed note would explain that subsection 603B(3) departs from section 29 of the
Acts Interpretation Act 1901 (AI Act). Section 29 of the AI Act provides that service of a
document is normally effected when it is `properly prepaid, addressed and posted'.
Item 12 - Subsection 604(1)
Item 13 - Subsection 604(2)
Item 14 - Subsection 604(3)
88. These items would amend section 604 so that the provision also applies where a lodgement
of notice occurs under section 603B.
89. Section 604 deals with the issuing of receipts by the Employment Advocate in relation to
lodgement of notifications.
Item 15 - At the end of subsection 605(1)
90. This item would amend subsection 605(1) to ensure that notification obligations created by
subsections 603(A)(2) and 603B(1) are civil remedy provisions. (Subsection 605(1) sets out the
provisions in Division 8 that are civil remedy provisions).
Item 16 - Subsection 605(5)
91. This item would amend subsection 605(5) to ensure that the provisions which set out who
can apply for an order in relation to a civil remedy provision also apply with respect to a
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(Independent Contractors) Bill 2006
Notes on amendments
preserved redundancy provision that was previously included in an AWA or collective
agreement.
92. In particular, this item would amend subsection 605(5) to ensure that an application for an
order may be made by those persons listed in Items 1 and 2 in relation to a preserved redundancy
provision that was initially included in either an AWA or collective agreement.
Item 17 - Subsection 605(5) (table item 2)
93. This item would amend paragraph (b) in table Item 2 in order to refer also to organisations
of employees that are bound by preserved redundancy provisions. This amendment will enable
an organisation of employees that is bound by the preserved redundancy provision to make an
application for an order under subsection 605(2).
Item 17A -
94. Item 17A would amend the first legislative note to section 717. The legislative note
currently provides that undertakings and workplace determinations are treated as if they are
collective agreements for the purposes of the Act. The item would ensure that the note also
indicates that preserved redundancy provisions are treated as workplace agreements for the
purposes of the Act. For example, preserved redundancy provisions that were initially included
in an AWA will be treated as if the provisions are themselves an AWA.
95. This amendment would alert the reader to the fact that penalties can be imposed and
underpayments recovered in the event that a redundancy provision is breached.
Item 18 - At the end of subclause 3(4) of Schedule 7
96. The proposed legislative note would indicate that clause 6A may affect the operation of a
terminated pre-reform certified agreement, that is, that redundancy provisions in a terminated
pre-reform CA may continue to have effect after the agreement is terminated.
Item 19 - After clause 6 of Schedule 7
97. This item would insert new clause 6A into Schedule 7 to the WR Act to deal with the
preservation of redundancy provisions that are contained in a CA, when the agreement is
terminated. The item would also insert new clauses 6B and 6C, which deal with notification
obligations in relation to preserved redundancy provisions.
98. Subclause 6A(2A) would ensure that Parts 6 (workplace inspectors) and 14 (compliance) of
the Act apply to preserved redundancy provisions that were initially included in a pre-reform
certified agreement, as if they were a pre-reform certified agreement in operation.
99. Note that clauses 6 and 16 of Schedule 7 to the Act provide that a pre-reform certified
agreement is treated as if it is a collective agreement for Parts 6 and 14 of the Act.
6A Preservation of redundancy provisions in certain circumstances
100. Proposed subclause 6A(1) would provide that the section applies if a pre-reform CA is
terminated by the AIRC on application by an employer that is bound by the agreement. The
section would only apply when the AIRC terminates an agreement where it satisfied that it is not
Senate page 14 Workplace Relations Legislation Amendment
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Notes on amendments
contrary to the public interest to do so, in accordance with subsection 170MH(3) of the pre-
reform WR Act.
101. This means that redundancy provisions that are in a pre-reform CA will only be preserved
by clause 6A if the pre-reform CA is terminated under subsection 170MH(3) on application by
an employer. Therefore, redundancy provisions will not continue to operate after a pre-reform
CA has been terminated, for example, where a valid majority of employees approve the
termination pursuant to section 170MG of the pre-reform WR Act.
102. The proposed note at the end of subclause 6A(1) would indicate that subsection 170MH(3)
of the pre-reform WR Act continues to operate because of paragraph 2(1)(k) of Schedule 7.
103. Subclause 6A(2) would provide that any party that was bound by the pre-reform CA just
before it was terminated will continue to be bound by any redundancy provision that was
included in the agreement. This means that an employer, employee or an organisation of
employees may continue to be bound by redundancy provisions included in a pre-reform CA
despite the agreement ceasing to be in operation because of the termination.
104. The redundancy provisions will have effect as if they are included in a pre-reform CA that
is still operating - that is, the provisions can be enforced as if they were still included in an
instrument. This means, for example, the provisions can be enforced by an employee who was
bound by them immediately before the employee was terminated on the grounds of genuine
operational requirements.
105. Subclause 6A(3) would deal with the interaction of preserved redundancy provisions with
other instruments that may also apply to the parties. Relevantly, a preserved redundancy
provision will override any other redundancy provision included in any other instrument that
may have effect. `Instrument' is a defined term for the purposes of clause 6A.
106. However, this interaction rule operates subject to subclause 6A(4).
107. Subclause 6A(4) provides that a party ceases to be bound by the redundancy provisions in
relation to an employee who is also bound by the redundancy provision if one of the following
occurs, whichever occurs first:
· the end of the period of 12 months from the time the pre-reform CA was terminated;
· the employee is no longer employed by the employer; or
· a new workplace agreement comes into operation in relation to the employee and employer.
108. The intention is that the parties will continue to be bound by a preserved redundancy
provision for a maximum period of 12 months, unless the employee ceases employment with the
employer, or a workplace agreement comes into operation.
109. Subclause 6A(5) would provide definitions of `instrument' and `redundancy provision' for
the purposes of clause 6A.
110. Instrument means:
· a preserved State agreement - as defined in clause 1 of Schedule 8 to the WR Act;
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Notes on amendments
· a notional agreement preserving State awards - as defined in clause 1 of Schedule 8 to the
WR Act;
· an award - as defined in section 4 of the WR Act;
· a transitional award - as defined in clause 2 of Schedule 6 to the WR Act.
111. `Redundancy provision' means any provision, including incidental and machinery
provisions, that are about redundancy pay to the extent that the provision relates to a termination
of employment at the initiative of the employer on the grounds of operational requirements or
because the employer is insolvent.
112. This means that clause 6A may operate to preserve a broad range of redundancy provisions
which relate to a termination of employment, for example clauses that deal with redundancy pay
where:
· an employer arranges suitable alternative employment for an employee;
· an employer is unable to meet its redundancy pay obligations;
· there is a transmission of business from the employer to a new employer.
113. However, clause 6A would not operate to preserve a redundancy pay provision which
related to, for example, entitlements payable on resignation of employment by an employee.
6B Notification of preservation of redundancy provisions
114. Proposed clause 6B would create notification obligations for the AIRC in certain
circumstances.
115. Subclause 6B(1) would provide that notification obligations only arise where redundancy
provisions have been preserved under clause 6A.
116. Subclause 6B(2) would ensure that where the AIRC makes an order terminating a pre-
reform CA under subsection 170MH(3) of the pre-reform WR Act, a copy of that order is given
to an employer and any organisation of employees that will be bound by the redundancy
provisions.
117. Subclause 6B(3) would set out what must be included in the Commission's order.
118. The order must:
· identify any redundancy provision or provisions in the pre-reform CA that will continue to
operate after the agreement is terminated;
· explain that the parties bound by the pre-reform CA will continue to be bound by the
preserved redundancy provision or provisions;
· specify the date that is 12 months from the time the order terminating the agreement takes
effect;
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· explain that the parties will remain bound by the preserved redundancy provisions until that
date, or an earlier date in accordance with subclause 6A(4). (Subclause 6A(4) outlines when
parties will stop being bound by preserved redundancy clauses in relation to an employee).
119. The intention of clause 6B is to ensure that parties bound by the preserved redundancy
clauses are informed of their continuing rights and obligations in relation to redundancy pay.
6C Employer must notify employees of preserved redundancy provisions
120. Proposed clause 6C would create notification obligations for an employer bound by a pre-
reform CA in certain circumstances.
121. Subclause 6C(1) would provide that an employer that has received a copy of an order
terminating a pre-reform CA must take reasonable steps to ensure that all employees that were
bound by the agreement just before it was terminated by the AIRC are given a copy of the
notice. The employer must do so within 21 days of receiving the copy.
122. Subclause 6C(2) would provide that subclause (1) is a civil remedy provision.
123. The note to subclause 6C(2) would indicate that Division 3 of Part 14 of the Act contains
other provisions about civil remedies which may be relevant.
124. Subclause 6C(3) would provide that the Court may order a person that has contravened
subclause (1) to pay a pecuniary penalty.
125. The note to subclause 6C(3) would indicate that Division 3 of Part 14 of the WR Act
contains other provisions about civil remedies which may be relevant.
126. Subclause 6C(4) would provide that the penalty cannot be more than 300 penalty units for
a body corporate or 60 penalty units in other cases, eg for an individual.
127. Subclause 6C(5) would deal with who can make an application for a civil remedy order in
relation to the employer's obligation under subclause (1) to give employees a copy of the
AIRC's order.
128. Relevantly, an employee or an organisation of employees that was bound by the pre-reform
CA just before it was terminated can apply for an order. Additionally, an organisation of
employees that is entitled, under its eligibility rules to represent the industrial interests of an
employee bound by the pre-reform CA, has at least one member that is employed by the
employer, and that has been requested to do so by the employee may also apply. Finally, a
workplace inspector also has standing to apply for an order under this subclause.
Item 20 - At the end of subclause 18(3) of Schedule 7
129. This item would insert a legislative note under subclause 18(3) to direct the reader to
consider the operation of clause 20A in relation to a terminated pre-reform AWA, that is, that
redundancy provisions in a terminated pre-reform AWA may continue to have effect after the
agreement is terminated.
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Notes on amendments
Item 21 - After clause 20 of Schedule 7
130. This item would insert new clause 20A into Schedule 7 to the WR Act to deal with the
preservation of redundancy provisions that are contained in a pre-reform AWA, when the
agreement is terminated. The item would also insert clause 20B, which would deal with
notification obligations in relation to preserved redundancy provisions.
131. Subclause 20A(2A) would ensure that Parts 6 (workplace inspectors) and 14 (compliance)
of the Act apply to the preserved redundancy provisions that were initially included in a pre-
reform AWA, as if they were a pre-reform AWA in operation.
132. Note that clause 20 of Schedule 7 to the Act provides that a pre-reform AWA is treated as
if it is an AWA for Parts 6 and 14 of the Act.
20A Preservation of redundancy provisions in certain circumstances
133. New subclause 20A(1) would provide that the section applies if a pre-reform AWA is
terminated by the AIRC on application by an employer that is bound by the agreement. The
section would only apply when the AIRC terminates an agreement in accordance with subsection
170VM(3) of the pre-reform WR Act, that is, where it is satisfied that it is not contrary to the
public interest to do so.
134. This means that redundancy provisions that are in a pre-reform AWA will only be
preserved by clause 20A if the pre-reform AWA is terminated under subsection 170MH(3) on
application by an employer. Therefore, redundancy provisions will not continue to operate after
a pre-reform AWA has been terminated, for example, because the employer and employee
bound by the agreement agree to terminate the agreement in writing pursuant to subsections
170VM(1) and (2) of the pre-reform WR Act.
135. The proposed note to subclause (1) would inform the reader that subsection 170VM(3) of
the pre-reform WR Act continues to operate because of paragraph 17(1)(c) of Schedule 7.
136. Subclause 20A(2) would provide that the employer and employee that were bound by the
pre-reform AWA just before it was terminated will continue to be bound by any redundancy
provision that was included in the agreement. The redundancy provisions would have effect as
if they are included in a pre-reform AWA that is still operating - that is, the provisions can be
enforced as if they were still included in an instrument. This means, for example, the provisions
can be enforced by an employee who was bound by them immediately before the employee was
terminated on the grounds of genuine operational requirements.
137. Subclause 20A(3) would deal with the interaction of preserved redundancy provisions with
other instruments that may also apply to the employer and employee. Relevantly, a preserved
redundancy provision will override any other redundancy provision included in any other
instrument that may have effect. `Instrument' is a defined term for the purposes of clause 20A.
138. However, this interaction rule operates subject to subclause 20A(4).
139. Subclause 20A(4) would provide that an employer ceases to be bound by the redundancy
provisions in relation to an employee who is also bound by the redundancy provision if one of
the following occurs, whichever occurs first:
· the end of the period of 12 months from the time the pre-reform AWA was terminated;
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Notes on amendments
· the employee is no longer employed by the employer; or
· a new workplace agreement comes into operation in relation to the employee and employer.
140. The intention is that the parties will continue to be bound by a preserved redundancy
provision for a maximum period of 12 months, unless the employee is no longer employed by
the employer, or a new workplace agreement comes into operation.
141. Subclause 20A(5) would provide definitions of `instrument' and `redundancy provision'
for the purposes of clause 20A.
142. Instrument means:
· a collective agreement - as defined in section 4 of the WR Act;
· a pre-reform CA - as defined in clause 1 of Schedule 7 to the WR Act;
· a notional agreement preserving State awards - as defined in clause 1 of Schedule 8 to the
WR Act;
· an award - as defined in clause 4 of the WR Act.
143. `Redundancy provision' means any provision, including incidental and machinery
provisions, that are about redundancy pay to the extent that the provision relates to a termination
of employment at the initiative of the employer on the grounds of operational requirements or
because the employer is insolvent.
144. This means that clause 20A may operate to preserve a broad range of redundancy
provisions which relate to a termination of employment, for example clauses that deal with
redundancy pay where:
· an employer arranges suitable alternative employment for an employee;
· an employer is unable to meet its redundancy pay obligations;
· there is a transmission of business from the employer to a new employer.
145. However, clause 20A would not operate to preserve a redundancy pay provision which
related to, for example, entitlements payable on resignation of employment by an employee.
20B Notification of preservation of redundancy provisions
146. Proposed clause 20B would create notification obligations for the AIRC in certain
circumstances.
147. Subclause 20B(1) would provide that notification obligations only arise where redundancy
provisions have been preserved under clause 20A.
148. Subclause 20B(2) would affect the operation of subsection 170VM(4) of the pre-reform
WR Act. Currently, subsection 170VM(4) of the pre-reform WR Act provides that the AIRC
must issue a copy of its determination terminating a pre-reform AWA to the parties bound by the
AWA and to the Employment Advocate.
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149. Subclause 20B(2) would ensure that the determination:
· identifies any redundancy provision or provisions in the pre-reform AWA that will continue
to operate after the agreement is terminated;
· explains that the employer and employee will continue to be bound by the preserved
redundancy provision or provisions;
· specify the date that is 12 months from the time the order terminating the agreement takes
effect;
· explain that the employer and employee will remain bound by the preserved redundancy
provision or provisions until that date, or one earlier in accordance with subclause 20A(4).
(Subclause 20A(4) outlines when parties will stop being bound by preserved redundancy
clauses in relation to an employee).
150. The intention of clause 20B is to ensure that an employer and employee bound by the
preserved redundancy clauses are informed of their continuing rights and obligations in relation
to redundancy pay.
Item 22 - After clause 21 of Schedule 8
151. This item would insert new clauses 21A, 21B, 21C, 21D and 21E into the WR Act to deal
with the preservation of redundancy provisions that are contained in a PSA, when the agreement
is terminated. These new clauses would also deal with notification obligations in relation to
preserved redundancy provisions.
152. The preservation of redundancy provisions in relation to PSAs are dealt with separately
depending on whether the instrument is a preserved collective State agreement or an preserved
individual State agreement.
153. Subclause 21A(2A) would ensure that Parts 6 (workplace inspectors) and 14 (compliance)
of the Act apply to the preserved redundancy provisions that were initially included in a
preserved collective State agreement, as if they were a preserved collective State agreement in
operation.
154. Note that subclauses 20(1) and 20(2) of Schedule 8 to the Act provide that a preserved
collective State agreement should be treated as if it is a collective agreement in relation to
workplace inspectors and enforcement. The effect of subclause 21A(2A) therefore, is that Parts
6 and 14 of the Act apply to preserved redundancy provisions which were initially included in a
preserved collective State agreement, as if the redundancy provisions were a collective
agreement in operation.
155. Subclause 21D(2A) would ensure that Parts 6 (workplace inspectors) and 14 (compliance)
of the Act apply to the preserved redundancy provisions that were initially included in a
preserved individual State agreement, as if they were a preserved individual State agreement in
operation.
156. Note that subclauses 20(3) and 20(4) of Schedule 8 to the Act provide that a preserved
individual State agreement should be treated as if it is an AWA in relation to workplace
inspectors and enforcement. The effect of subclause 21D(2A) therefore, is that Parts 6 and 14 of
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Notes on amendments
the Act apply to preserved redundancy provisions which were initially included in a preserved
individual State agreement, as if the redundancy provisions were an AWA in operation.
21A Preservation of redundancy provisions in preserved collective State agreements in
certain circumstances
157. Proposed subclause 21A(1) would provide that the section applies if a preserved collective
State agreement is terminated by the AIRC, on application by an employer who is bound by the
agreement. The section would only apply when the AIRC terminates an agreement where it is
satisfied that it is not contrary to the public interest to do so, in accordance with subsection
170MH(3) of the pre-reform WR Act.
158. This means that redundancy provisions will only be preserved by clause 21A if the PSA is
terminated under subsection 170MH(3) on application by an employer. Therefore, redundancy
provisions will not continue to operate after a PSA has been terminated, for example, where a
valid majority of employees approve the termination under section 170MG of the pre-reform
WR Act.
159. The proposed note to subclause 21A(1) would inform the reader that subsection 170MH(3)
of the pre-reform Act operates in relation to preserved collective State agreements because of
subclause 21(2) of Schedule 8 to the Act and paragraph 2(1)(k) of Schedule 7. Subclause 21(2)
provides that a preserved collective State agreement can only be terminated in the same way a
CA could have been terminated under the pre-reform WR Act.
160. Subclause 21A(2) would provide that any party that was bound by the preserved collective
State agreement just before it was terminated will continue to be bound by any redundancy
provision that was included in the agreement. This means that an employer, employee or an
organisation of employees may continue to be bound by redundancy provisions included in the
preserved collective State agreement despite the agreement ceasing to be in operation because of
the termination.
161. The redundancy provisions would have effect as if they are included in a preserved
collective State agreement that is still operating - that is, the provisions can be enforced as if
they were still included in an instrument. This means, for example, the provisions can be
enforced by an employee who was bound by them immediately before the employee was
terminated on the grounds of genuine operational requirements.
162. Subclause 21A(3) would deal with the interaction of preserved redundancy provisions with
other instruments that may also apply to the parties. Relevantly, a preserved redundancy
provision will override any other redundancy provision included in any other instrument that
may have effect. Instrument is a defined term for the purposes of clause 21A.
163. However, this interaction rule operates subject to subclause 21A(4).
164. Subclause 21A(4) provides that a party ceases to be bound by the redundancy provisions in
relation to an employee who is also bound by the redundancy provision if one of the following
occurs, whichever occurs first:
· the end of the period of 12 months from the time the preserved collective State agreement
was terminated;
· the employee is no longer employed by the employer; or
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Notes on amendments
· a new workplace agreement comes into operation in relation to the employee and employer.
165. The intention is that the parties will continue to be bound by a preserved redundancy
provision for a maximum period of 12 months, unless the employee ceases employment with the
employer or a new workplace agreement comes into operation.
166. Subclause 21A(5) would provide definitions of `instrument' and `redundancy' for the
purposes of clause 21A.
167. `Instrument' means:
· a pre-reform certified agreement - as defined in clause 1 of Schedule 7 to the WR Act;
· a notional agreement preserving State awards - as defined in clause 1 of Schedule 8 to the
WR Act;
· an award - as defined in section 4 of the WR Act.
168. `Redundancy provision' means any provision, including incidental and machinery
provisions, that are about redundancy pay to the extent that the provision relates to a termination
of employment at the initiative of the employer on the grounds of operational requirements or
because the employer is insolvent.
169. This means that clause 21A may operate to preserve a broad range of redundancy
provisions which relate to a termination of employment, for example clauses that deal with
redundancy pay where:
· an employer arranges suitable alternative employment for an employee;
· an employer is unable to meet its redundancy pay obligations;
· there is a transmission of business from the employer to a new employer.
170. However, clause 21A would not operate to preserve a redundancy pay provision which
related to, for example, entitlements payable on resignation of employment by an employee.
21B Notification of preservation of redundancy provisions in preserved collective State
agreements
171. Proposed clause 21B would create notification obligations for the AIRC in certain
circumstances.
172. Subclause 21B(1) would provide that notification obligations only arise where redundancy
provisions have been preserved under clause 21A.
173. Subclause 21B(2) would ensure that where the AIRC makes an order terminating a
preserved collective State agreement under subsection 170MH(3) of the pre-reform WR Act that
a copy of that order is given to an employer and any organisation of employees who will be
bound by the redundancy provisions.
174. Subclause 21B(3) would set out what must be included in the AIRC's order.
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Notes on amendments
175. The order must:
· identify any redundancy provision or provisions in the preserved collective State agreement
that will continue to operate after the agreement is terminated;
· explain that the parties bound by the preserved collective State agreement will continue to be
bound by the preserved redundancy provision or provisions;
· specify the date that is 12 months from the time the order terminating the agreement takes
effect;
· explain that the parties will remain bound by the preserved redundancy provision or
provisions until that date, or an earlier date in accordance with subclause 21A(4). (Subclause
21A(4) outlines when parties will stop being bound by preserved redundancy clauses in
relation to an employee).
176. The intention of clause 21B is to ensure that parties bound by the preserved redundancy
clauses are informed of their continuing rights and obligations in relation to redundancy pay.
21C Employer must notify employees of preserved redundancy provisions in preserved
collective State agreements
177. Proposed clause 21C would create notification obligations for an employer bound by a
preserved collective State agreement in certain circumstances.
178. Subclause 21C(1) would provide that an employer who has received a copy of an order
terminating a preserved collective State agreement must take reasonable steps to ensure that all
employees that were bound by the agreement just before it was terminated by the AIRC are
given a copy of the notice. The employer must do so within 21 days of receiving the copy.
179. Subclause 21C(2) would provide that subclause (1) is a civil remedy provision.
180. The note to subclause 21C(2) would indicate that Division 3 of Part 14 of the WR Act
contains other provisions about civil remedies which may be relevant.
181. Subclause 21C(3) would provide that the Court may order a person who has contravened
subclause (1) to pay a pecuniary penalty.
182. The note to subclause 21C(3) would indicate that Division 3 of Part 14 of the WR Act
contains other provisions about civil remedies which may be relevant.
183. Subclause 21C(4) would provide that the penalty cannot be more than 300 penalty units for
a body corporate or 60 penalty units in other cases, eg for an individual.
184. Subclause 21C(5) would deal with who can make an application for a civil remedy order in
relation to the employer's obligation under subclause (1) to give employees a copy of the
AIRC's order.
185. Relevantly, an employee or an organisation of employees that was bound by the preserved
collective State agreement just before it was terminated can apply for an order. Additionally, an
organisation of employees that is entitled, under its eligibility rules to represent the industrial
interests of an employee bound by the preserved collective State agreement, has at least one
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Notes on amendments
member employed by the employer, and that has been requested to do so by the employee, may
also apply. Finally, a workplace inspector also has standing to apply for an order under this
subclause.
21D Preservation of redundancy provisions in preserved individual State agreements
certain circumstances
186. Proposed subclause 21D(1) would provide that the section applies if a preserved individual
State agreement is terminated by the AIRC, on application by an employer who is bound by the
agreement. The section would only apply when the AIRC terminates an agreement where it is
satisfied that it is not contrary to the public interest to do so, in accordance with subsection
170VM(3) of the pre-reform WR Act.
187. This means that redundancy provisions that are in a preserved individual State agreement
will only be preserved by clause 21D if the preserved individual State agreement is terminated
under subsection 170VM(3) on application by an employer.
188. Therefore, redundancy provisions will not continue to operate after a preserved individual
State agreement has been terminated, for example, because the employer and employee bound
by the agreement agree to terminate the agreement in writing pursuant to subsections 170VM(1)
and (2) of the pre-reform WR Act.
189. The proposed note at the end of subclause (1) would inform the reader that
subsection 170VM(3) of the pre-reform WR Act operates because of subclause 21D(3) of
Schedule 8 and paragraph 17(1)(c) of Schedule 7.
190. Subclause 21D(2) would provide that the employer and employee that were bound by the
preserved individual State agreement just before it was terminated will continue to be bound by
any redundancy provision or provisions that were included in the agreement despite the
agreement ceasing to be in operation because of the termination.
191. The redundancy provisions will have effect as if they are included in a preserved individual
State agreement that is still operating - that is, the provisions can be enforced as if they were still
included in an instrument. This means, for example, the provisions can be enforced by an
employee who was bound by them immediately before the employee was terminated on the
grounds of genuine operational requirements.
192. Subclause 21D(3) would deal with the interaction of preserved redundancy provisions with
other instruments that may also apply to the employer and employee. Relevantly, a preserved
redundancy provision will override any other redundancy provision included in any other
instrument that may have effect. `Instrument' is a defined term for the purposes of clause 21D.
193. However, this interaction rule operates subject to subclause 21D(4).
194. Subclause 21D(4) provides that an employer ceases to be bound by the redundancy
provisions in relation to an employee who is also bound by the redundancy provision if one of
the following occurs, whichever occurs first:
· the end of the period of 12 months from the time the preserved individual State agreement was
terminated;
· the employee is no longer employed by the employer; or
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Notes on amendments
· a new workplace agreement comes into operation in relation to the employee and employer.
195. The intention is that the parties will continue to be bound by a preserved redundancy
provision for a maximum period of 12 months, unless the employee ceases employment with the
employer, or a new workplace agreement comes into operation.
196. Subclause 21D(5) would provide definitions of `instrument' and `redundancy provision'
for the purposes of clause 21D.
197. `Instrument' means:
· a pre-reform certified agreement - as defined in clause 1 of Schedule 7 to the WR Act;
· a notional agreement preserving State awards - as defined in clause 1 of Schedule 8 to the WR
Act;
· an award - as defined in clause 4 of the WR Act.
198. `Redundancy provision' means any provision, including incidental and machinery
provisions that are about redundancy pay to the extent that the provision relates to redundancy
pay in relation to a termination of employment at the initiative of the employer on the grounds of
operational requirements or because the employer is insolvent.
199. This means that clause 21D may operate to preserve a broad range of redundancy
provisions which relate to a termination of employment, for example clauses that deal with
redundancy pay where:
· an employer arranges suitable alternative employment for an employee;
· an employer is unable to meet its redundancy pay obligations;
· there is a transmission of business from the employer to a new employer.
200. However, clause 21D would not operate to preserve a redundancy pay provision which
related to, for example, entitlements payable on resignation of employment by an employee.
21E Notification of preservation of redundancy provisions
201. Proposed clause 21E would create notification obligations for the AIRC in certain
circumstances.
202. Subclause 21E(1) would provide that notification obligations only arise where redundancy
provisions have been preserved under clause 21D.
203. Subclause 21E(2) would affect the operation of subsection 170VM(4) of the pre-reform
WR Act. Currently, subsection 170VM(4) provides that the AIRC must issue a copy of its
determination terminating a preserved individual State agreement to the parties bound by the
agreement and to the Employment Advocate.
204. Subclause 21E(2) would ensure that the determination:
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Notes on amendments
· identifies any redundancy provision or provisions in the preserved collective State agreement
that will continue to operate after the agreement is terminated;
· explains that the employer and employee will continue to be bound by the preserved
redundancy provision or provisions;
· specify the date that is 12 months from the time the order terminating the agreement takes
effect;
· explain that the employer and employee will remain bound by the preserved redundancy
provision or provisions until that date, or an earlier date in accordance with subclause 21D(4).
(Subclause 21D(4) outlines when parties will stop being bound by preserved redundancy
clauses in relation to an employee).
205. The intention of clause 21E is to ensure that an employer and employee bound by the
preserved redundancy clauses are informed of their continuing rights and obligations in relation
to redundancy pay.
Item 23 - After Part 5 of Schedule 9
206. This item would insert a new Part 5A into Schedule 9 to the WR Act to deal with the
transmission of preserved redundancy provisions which were initially included in a pre-reform
AWA, a pre-reform CA or a PSA, where there is a transmission of business between an old
employer and a new employer.
207. It is intended that the transfer of preserved redundancy provisions in a transmission of
business are dealt with similarly to other instruments in Schedule 9 to the WR Act. Therefore,
the definition and application provisions in Parts 1 and 2 of Schedule 9 to the WR Act also
apply, where relevant, to Part 5A.
Clause 27A Transmission of preserved redundancy provisions
208. New subclause 27A(1) would provide that a new employer is bound by a redundancy
provision in relation to a transferring employee, if immediately before the time of transmission
the old employer and the employee were bound by a preserved redundancy provision under
clauses 6A or 20A of Schedule 7, or clauses 21A or 21D of Schedule 8, or under a previous
application of subclause 27A(1). This means that a new employer will not be bound by a
preserved redundancy provision if it does not employ any transferring employees.
209. The note to subclause 27A(1) would direct the reader to the new employer's notification
obligations in relation to transferring employees that are set out in clauses 29A and 29B.
210. New subclause 27A(2) would provide that subject to subclause (3), the transferred
redundancy provision will prevail over any other instrument that might apply to the transferred
employee, to the extent of any inconsistency.
211. New subclause 27A(3) would provide that a new employer and a transferring employee
will remain bound by a preserved redundancy provision until one of the following occurs,
whichever occurs first:
· the end of the period of 12 months from the time that the agreement that initially contained the
redundancy provisions was terminated. This means that the date that the redundancy
Senate page 26 Workplace Relations Legislation Amendment
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Notes on amendments
provisions cease to apply to the new employer is the same date that the provisions would have
ceased to apply to the old employer. The intention is that the new employer's obligations with
respect to the redundancy provisions match the old employer's. The obligations do not start
afresh on transmission.
· the transferring employee ceases to be employed by the new employer;
· the new employer and the transferring employee become bound by a new workplace
agreement.
212. New subsection 27A(4) would provide that section 27A does not affect any rights or
obligations of the old employer that may have arisen before the time of transmission.
213. This means, for example, that subclause 27A(1) will not operate to transfer liability for
accrued employee entitlements to a new employer from an old employer. However, note that the
redundancy provisions may provide that accrued entitlements become the responsibility of the
new employer.
214. Subclause 27A(5) would define `instrument' and `redundancy provision' for the purposes
of section 27A.
215. `Instrument' means:
· a workplace agreement - as defined in section 4 of the WR Act;
· a pre-reform CA - as defined in clause 1 of Schedule 7 to the WR Act;
· a preserved State agreement - as defined in clause 1 of Schedule 8 to the WR Act;
· a notional agreement preserving State awards - as defined in clause 1 of Schedule 8 to the WR
Act;
· an award - as defined in section 4 of the WR Act;
· a transitional award, as defined in clause 2 of Schedule 6 to the WR Act.
216. `Redundancy provision' means any provision, including incidental and machinery
provisions, that are about redundancy pay in relation to a termination of employment. The
termination of employment must be at the initiative of the employer on the grounds of
operational requirements or because the employer is insolvent.
Item 24 - After clause 29 of Schedule 9
217. This item would insert new sections 29A and 29B to create notification obligations for new
employers in respect of transferred preserved redundancy provisions. The effect of the
provisions would be to require the new employer to inform the transferring employee about the
continued operation of the preserved redundancy provisions, and to lodge the relevant notice
with the Employment Advocate.
Senate page 27 Workplace Relations Legislation Amendment
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Notes on amendments
29A Informing transferring employees about transmission of preserved redundancy
provisions
218. Proposed subclause 29A(1) would provide that clause 29A applies if an employer is bound
by one or more transferred preserved redundancy provisions under clause 27A.
219. Subclause 29A(2) would provide that the new employer must take reasonable steps to give
a transferring employee written notice that complies with subclause (3) within 28 days of the
employee commencing employment with the new employer.
220. The proposed note would indicate that subclause 29A(2) is a civil remedy provision. The
note would also direct the reader to clause 31 which deals with civil penalties for the purposes of
Schedule 9 to the WR Act.
221. Subclause 29A(3) would set out what the written notice must contain.
222. The notice must:
· identify the redundancy provision or provisions that have transferred to the new employer as a
result of the transmission of business;
· state that the new employer is bound by those transferred redundancy provision or provisions
as if they were the old employer;
· provide the date which is 12 months after the time that the agreement that initially included
the redundancy provision or provisions was terminated; and
· provide that the new employer will be bound by the transferred redundancy provisions as if
they were part of an agreement until the date which is 12 months after the time that the
agreement that initially included the redundancy provision or provisions was terminated, or
alternatively, that the new employer will be bound until an earlier date in accordance
subclause 27A(3). (Subclause 27A(3) deals with the time that a new employer and
transferring employee are bound by transferring redundancy provisions).
223. Subclause 29A(4) would have the effect of relieving the new employer from the
notification obligations outlined in subclause 29A(2) if the new employer and the transferring
employee make a new workplace agreement within 14 days of the time of transmission.
224. The reason for removing the notification requirements in this situation is that the preserved
redundancy clauses would cease to operate soon after the time of transmission, making
notification redundant.
29B Lodging copy of notice about preserved redundancy provisions with Employment
Advocate
225. Proposed subclause 29B(1) would provide that an employer must lodge a copy of any
notice given to a transferring employee under clause 29A with the Employment Advocate.
226. Proposed Note 1 would indicate that clause 29B is a civil remedy provision. The note
would also direct the reader to clause 31 which deals with civil penalties for the purposes of
Schedule 9 to the WR Act.
Senate page 28 Workplace Relations Legislation Amendment
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Notes on amendments
227. Note 2 would refer to obligations imposed by sections 137.1 and 137.2 of the Criminal
Code Act 1995 in relation to the provision of information of documents.
228. Subclause 29B(2) would deal with the lodgement of the notice for both redundancy
provisions that were initially included in a pre-reform AWA or preserved individual State
agreement or a pre-reform CA or preserved State collective agreement.
229. For a pre-reform AWA or preserved individual State agreement, notice must be lodged
with the Employment Advocate within 14 days after the day on which notice is given by an
employer to an employee under section 29A.
230. For a pre-reform CA or preserved State collective agreement, notice must be lodged with
the Employment Advocate within 14 days of the earliest day on which notice was given by the
employer to an employee under section 29A.
231. New subclause 29B(3) would provide that a notice is lodged in accordance with this
section only once it is actually received by the Employment Advocate.
232. The proposed note at the end of subclause 29B(3) would explain that subclause 29B(3)
departs from section 29 of the Acts Interpretation Act 1901 (AI Act). Section 29 of the AI Act
provides that service of a document is normally effected when it is `properly prepaid, addressed
and posted'.
Item 25 - Subclause 30(1) of Schedule 9
Item 26 - Subclause 30(2) of Schedule 9
Item 27 - Subclause 30(3) of Schedule 9
233. These items would amend subclause 30(1) of Schedule 9 to the WR Act so that it also
applies where a lodgement of notice occurs under clause 29B.
234. Clause 30 deals with the issuing of receipts by the Employment Advocate in relation to
lodgement of notifications.
Item 28 - At the end of subclause 31(1) of Schedule 9
235. This item would amend subclause 31(1) of Schedule 9 to the WR Act to ensure that
notification obligations created by subclauses 29A(2) and 29B(1) are civil remedy provisions.
(Subclause 31(1) sets out the clauses in Part 6 that are civil remedy provisions).
Item 29 - Subclause 31(4) of Schedule 9
236. This item would amend subclause 31(4) of Schedule 9 to the WR Act to ensure that the
provisions which state the persons that can apply for an order in relation to a civil remedy
provision also apply with respect to a preserved redundancy provision that was previously
included in a pre-reform AWA, pre-reform CA or PSA.
237. In particular, this item would amend subclause 31(4) to ensure that an application for an
order may be made by those persons listed in Items 1, 2 and 4 in relation to a preserved
redundancy provision that was initially included in a pre-reform AWA, pre-reform CA, or a
PSA.
Senate page 29 Workplace Relations Legislation Amendment
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Notes on amendments
Item 30 - Subclause 31(4) of Schedule 9 (table items 2 and 4)
238. This amendment would amend paragraph (b) in table Item 2 and paragraph (b) in table item
4 in order to ensure that the clause refers also to organisations of employees that are bound by
redundancy provisions. This amendment will enable an organisation of employees that is bound
by the redundancy provision to make an application for an order under subclause 31(4).
Item 31 - Application
239. This application provision would provide that the amendments made by items 1 - 30 of
this Schedule only apply to a workplace agreement, pre-reform AWA, pre-reform CA, or PSA
that is terminated after this item commences.
Senate page 30 Workplace Relations Legislation Amendment
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Notes on amendments
Schedule 4 - Amendments relating to stand downs
Amendment 11
240. Item 11 inserts a new Schedule of amendments relating to stand downs.
Workplace Relations Act 1996
Item 1 Subsection 4(1)
241. Subsection 4(1) would insert a definition for an authorised stand down as provided for in
proposed subsection 691B(1).
Item 2 - Section 13(1) (after table item 6)
242. Subsection 13(1) of the WR Act lists provisions of the WR Act that have extraterritorial
application. Item 2 would add a reference to the proposed section 691C to the list in subsection
13(1).
Item 3 - At the end of paragraph 183(1)(b)
243. Proposed subparagraph 183(1)(b)(iv) is an amendment consequential on proposed section
691A. The proposed subparagraph makes it clear that any period of stand down does not count
as an employee's guaranteed hours, for the purposes of the wage guarantee under the Standard as
long as the stand down of the employee is an authorised stand down, as defined under the WR
Act.
Item 4 - At the end of Part 12
New Division 7 - Stand downs
244. Item 3 would insert a new Division 7 in Part 12 of the WR Act, dealing with stand downs
of employees.
New section 691A
245. Proposed section 691A provides a default right for an employer to stand down an
employee, if the employee could not be usefully employed because of particular circumstances
being:
· any strike (which would include a strike by a third party which affects the employer);
· breakdown of machinery; or
· any stoppage of work for any cause for which the employer cannot reasonably be held
responsible (this would include, but is not limited, to natural disasters).
246. Under proposed subsection 691A(1), the stand down right would apply where there is no
contract of employment or industrial instrument that provides for a stand down for the relevant
circumstance. Alternatively, the right would apply where the provision for a stand down in a
contract of employment or industrial instrument requires third party authorisation. Under
proposed section 691A(5) a provision for third party authorisation has no effect.
Senate page 31 Workplace Relations Legislation Amendment
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Notes on amendments
247. If proposed subsection 691A(1) applies, under proposed section 691(2), an employer may
deduct payment, otherwise payable to an employee, during the stand down period.
248. Proposed subsections 691A(3) - (4) ensure the maintenance of entitlements, other than
payment, that would otherwise have accrued to an employee who is stood down. Accordingly,
proposed subsection 691A(3) would ensure that the period the employee is stood down does not
break the employee's continuity of service. Proposed section 691(4) would ensure that the period
of stand down counts as service for all purposes. Proposed subsections 691A(3) and (4) are in
similar terms to existing subsection 238(1) and (2) (in relation to annual leave), and subsection
260(1) and (2) of the WR Act (in relation to paid personal leave). This means that an employee
that is stood down continues to accrue, for example, annual and personal/carer's leave, at least to
the extent provided under the Part 7 of the WR Act.
249. Proposed subsection 691A(6) would define the term `industrial instrument' for the purpose
of proposed section 691A.
New section 691B
250. Proposed section 691B provides that an employer must not stand down an employee unless
the stand down is authorise under subsection 691A(2) or an applicable provision of an industrial
instrument (as defined) or a contract of employment. This proposed amendment ensures that an
employee will only be stood down where it is permissible to do so under legislation, an industrial
instrument or a contract of employment. An employer who choses to stand down a employee
where there is no authority to do so will be subject to a civil penalty under Part 14 of the WR Act
(see Item 5 of this Schedule). The employer may also breach an applicable contract of
employment or industrial agreement, which reflects current law.
251. The penalties that may be imposed under Part 14 are consistent with the penalties that
apply in relation to the breaches of the meal breaks and public holidays provisions.
252. Proposed subsection 691B(2) would provide that the model dispute resolution process
applies to any dispute arising under this section. The proposed provision makes it clear that
section 697 of the WR Act does not apply.
253. Proposed subsection 691B(3) also provides that a employee that has been stood down or a
workplace inspector can seek an injunction from the Federal Court of Australia or the Federal
Magistrates Court to require an employee to not stand down employees where it is not
authorised. For example, where the employer cannot demonstrate that employees cannot be
usefully employed, or where it is unclear that the strike, breakdown or stoppage is responsible
for the lack of work.
254. This is consistent with injunctive relief that is already available under the WR Act in
relation to public holiday entitlements (as per section 616 of the WR Act) as well as in relation
to the Australian Fair Pay and Conditions Standard (as per Division 7 of Part 7 of the WR Act).
New section 691C
255. Proposed subsection 691C(1) would extend the application of proposed Division 7 of Part
12, and the rest of the WR Act as it relates to that Division 7, to employees outside Australia and
their employers provided they meet the requirements of this section. The legislative note to
subsection 691C(1) clarifies that, for the purposes of section 691C Australia includes the
Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea.
Senate page 32 Workplace Relations Legislation Amendment
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Notes on amendments
256. Under proposed subsection 691C(2), in Australia's exclusive economic zone, the stand
down provision would apply in respect of employees of Australian employers (defined in
subsection 4(1)) unless regulations were made to provide that the provision does not apply.
Regulations could also extend the operation of the provision to employees in the exclusive
economic zone.
257. Under proposed subsection 691C(3), the stand down provision would only apply to
employees in, on or over Australia's continental shelf beyond the exclusive economic zone, if
regulations prescribed the part of the continental shelf where the employee was located and the
employee met the requirements prescribed by the regulations.
258. Under proposed subsection 691C(4), the stand down provision would apply outside
Australia and the exclusive economic zone and continental shelf, to Australian-based employees
of Australian employers (as those expressions would be defined in subsection 4(1)). Regulations
could be made to prescribe an employee outside Australia and the exclusive economic zone and
continental shelf as an employee to whom the provision does not apply.
259. Subsection 691C(5) would provide a specific definition of this WR Act for the purposes of
section 691C. This is because the definition of this WR Act in subsection 4(1) (which would
otherwise apply) does not include the Registration and Accountability of Organisations Schedule
and regulations made under it. The specific definition would ensure that the extraterritorial
extension under subsection 170AD(1) would apply to that Schedule and those regulations so far
as they relate to Division 7 of Part 12.
260. In making regulations under proposed subsections 691C(2)-(4), account would be taken of
Australia's international law obligations, including obligations in relation to foreign-flagged
ships and foreign registered aircraft.
Item 5 Section 717 (at the end of the definition of applicable provision)
261. Proposed section 717 is merely a technical amendment to extend the existing penalty
provisions in Part 14 of the WR Act (which deals with compliance) to the prohibition of
unauthorised stand downs.
262. The maximum penalty would be 60 penalty units for an individual or 300 penalty units for
a body corporate.
Item 6 Subsection 718(1) (at the end of the table)
263. The proposed subsection 718(1) merely adds to the table the persons who may apply for a
penalty or other remedy under Division 2 in relation to a breach of the stand down provisions
such as an employee to whom proposed subsection 691B(1) applies and an inspector.
Item 7 Subsection 718(2)
264. Proposed subsection 718(2) is a technical amendment to apply penalty provisions to an
employee who has been stood down and it is an unauthorised stand down.
Senate page 33 Workplace Relations Legislation Amendment
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Notes on amendments
Item 8 - After Division 7A of Part 21
Division 7A- Stand downs
265. Item 8 would insert a new division 7A of Part 21 of the WR Act. Part 21 generally extends
and includes additional provisions in the WR Act as a result of the referral of certain matters to
the Parliament of the Commonwealth by the Commonwealth Powers (Industrial Relations) Act
1996 of Victoria (the Victorian reference Act).
266. New section 880A in proposed Division 7A of Part 21 would extend the application of
proposed Division 7 of Part 12 to cover employers and the employment of any employee in
Victoria, to whom the Act applies because of the Victorian reference Act.
Item 9 - Section 891
267. Item 9 would repeal existing section 891, which provides for a stand down provision in
Victorian employment agreements. The repeal of section 891 is consequent on the new stand
down provision in section 691A and its operation in Victoria pursuant to section 880A.
Items 10, 11 and 12
268. Items 10, 11 and 12 would respectively amend paragraph 89(1)(a), 95(a) and 102(a) of
Part 7 of Schedule 6 to the Act. Part 7 relates to transitional arrangements for Victorian
employers and employees bound by federal awards.
269. The proposed amendments would ensure that the stand down right in proposed section
691A would apply to a common rule, Victorian reference award and a transitional award in
Victoria (other than a Victorian reference award), as if those instruments were an award
mentioned in section 691A.
Senate page 34 Workplace Relations Legislation Amendment
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Notes on amendments
Schedule 5 - Amendments relating to the Australian Fair Pay and Conditions Standard
270. This amendment would insert Schedule 5 into the Bill. The items in this Schedule would
amend Part 7 of the Act which establishes the Standard.
Item 1 - Subsection 189(1)
271. Item 1 would repeal and replace subsection 189(1) to modify the guarantee of frequency of
payment for employees whose employment is covered by an Australian Pay and Classification
Scale (APCS) that makes provision for their frequency of payment. The proposed amendment
would provide that a frequency of payment provision in an APCS apply where the workplace
agreement or contract of employment does not otherwise provide a frequency of payment in
accordance with paragraphs (c) and (d).
272. Proposed paragraph 189(1)(c) would provide that if a workplace agreement that covers the
employee's employment and guarantees an employee frequency of payment in respect of periods
of one month or less the employer must comply with such provisions.
273. If paragraph 189(1)(c) did not apply, then proposed paragraph 189(1)(d) would provide
that if a written contract of employment covers the employee's employment and guarantees the
employee frequency of payment in respect of periods of one month or less the employer must
comply with such provisions.
274. This means that the frequency of payment provisions in an APCS would only apply if a
written contract of employment or workplace agreement provides for a frequency of payment of
more than one month.
Item 2 - After subsection 226(1)
275. This amendment is a technical amendment to clarify the circumstances in which an
employer can be held to have contravened subsection 226(1), which provides that an employee
must not be required or requested to work more than a certain number of hours in a week.
Proposed subsection 226(1A) would make it clear that a breach of subsection 226(1) by an
employer can only occur if the employee is required or requested to work additional hours and
the employee actually works those additional hours. An employer cannot be held to have
breached subsection 226(1) for merely requesting an employee to work more than 38 hours or
reasonable additional hours.
Item 3 - Section 228
Item 4 - Section 228 (at the end of the definition of shift worker)
Item 5 - At the end of section 228
276. These items would amend section 228 of Division 4 of Part 7 of the Act to enable
regulations to be made to exclude shift workers in a specified class, or classes, from the
entitlement under subsection 232(3) to accrue an additional week of paid annual leave each year.
277. Under section 228 of the Act, a shift worker is defined as an employee who:
Senate page 35 Workplace Relations Legislation Amendment
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Notes on amendments
· works in a business in which shifts are continuously rostered 24 hours a day for seven days a
week:
· is regularly rostered to work those shifts: and
· regularly works on Sundays and public holidays.
278. The definition of `shift worker' is broad and may extend the minimum entitlement to an
additional week of annual leave for employees in industries who did not previously have such
entitlements.
279. The proposed amendment would enable the Regulations to more precisely target the
additional annual leave entitlement (proposed subsection 228(2)).
280. Proposed subsection 228(3) would provide (without limiting scope of the
regulation-making power) that a specified class may be described by reference to a particular
industry, particular kinds of work (for example, by occupation), a particular type of employment
or a particular type of shift work.
281. Item 3 is a minor technical amendment consequential on item 5.
282. Item 4 would insert a note after the definition of shift worker in section 228, cross-
referencing new subsection 228(2).
Item 6 - Paragraph 229(1)(a)
283. This item would repeal and replace paragraph 229(1)(a) of Part 7 of the Act. This
provision forms the basis for the calculation of annual leave entitlements under the Standard for
employees who work specified hours.
284. Under the Act, employees (other than casuals) are entitled to accrue annual leave on the
basis of their nominal hours worked for each completed four week period of continuous service
(subsection 232(2)). Nominal hours worked is defined in section 229 of the Act. Provision is
made for employee whose hours of work are specified, unspecified, or variable.
285. For employees who are employed to work a specified number of hours per week, nominal
hours worked is defined as the employee's specified hours less hours of leave that do not count
as service and/or hours of industrial action (subsection 229(1)).
· An employee's weekly hours of work (and thus their specified hours) may be averaged over
a period of up to 12 months by written agreement between the employer and employee under
subparagraph 226(1)(a)(ii) of the Act.
286. The term specified hours is not defined in the Act, but can be taken to mean those hours
identified or set down in advance as the hours normally to be worked by the employee. Contrary
to the intention of the legislation, this is likely to include regular overtime.
287. Accordingly, under the Act as currently drafted, an employee who is regularly required to
work more than 38 hours per week would be entitled to accrue and be paid leave on the basis of
both ordinary and overtime hours. This is an unintended consequence of the way the accrual
rule was drafted.
Senate page 36 Workplace Relations Legislation Amendment
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Notes on amendments
288. Under proposed new subparagraph 229(1)(a), the base number of weekly hours for
calculating annual leave would be the employee's specified hours, up to a maximum of 38 hours
per week. The effect of the amendment would be that, under the Standard, an employee would
not accrue annual leave in respect of hours above 38 hours per week. This would be broadly
consistent with pre-reform arrangements under awards and agreements, in which leave generally
accrued on the basis of ordinary time hours (that is, overtime hours were not included).
289. The proposed amendment would only affect the minimum entitlement under the Standard
for employees whose specified hours are more than 38 hours per week. It would remain open for
employers and employees to agree to more favourable arrangements in workplace agreements or
contracts of employment.
290. The amendment would not affect leave accrual for employees whose specified hours are
less than 38 hours per week. Nor would it affect employees who are not engaged to work
specified hours, as the number of weekly hours that may form part of the annual leave accrual
calculation for these employees is already set at the lesser of 38 hours, or the actual hours
worked by the employee (subsection 229(4)).
291. The proposed amendment would not affect arrangements for annual leave accrual in pre-
reform certified agreements (CAs) and AWAs. Further, where an award provides a more
generous annual entitlement to annual leave than the Standard, the award entitlement applies in
full (including any related administrative arrangements, such as accrual rules) to the exclusion of
the Standard.
Item 7 - After subsection 229(4)
Item 8 - Subsection 229(4) (note 3)
292. Item 7 would insert a new subsection 229(4A) in Division 4 of Part 7 of the Workplace
Relations Act 1996 (the Act), which would clarify that periods of authorised unpaid leave and
unauthorised leave do not count as service for the purposes of annual leave accrual under the
Standard, unless specific provision is made for this to occur.
293. Under the Standard, annual leave accrues for each completed four week period of
continuous service on the basis of 1/13th of an employee's nominal hours worked (subsection
232(2)). An employee's nominal hours worked exclude hours of leave that do not count as
service, and periods of industrial action.
294. Before the commencement of the Work Choices Act Amendments, unpaid leave did not
count as service unless provided for by an award, workplace agreement, or contract of
employment. The intention was to retain this under the Standard. However, there has been
some confusion as to whether annual leave under the Standard accrues while an employee is on
leave without pay.
295. This amendment clarifies the original intention by expressly providing that the types of
leave that count as service may be governed by the Act, or by an applicable contract, workplace
agreement, or award. The Act only deals with the 'service status' of the types of leave to which
an employee is entitled under the Standard. The Act makes clear that unpaid carer's leave and
unpaid parental leave do not count as service (the effect of this being that leave does not accrue
in respect of such periods), but in other cases whether unpaid leave counts as service will depend
on the terms of an applicable contract, agreement, or award.
Senate page 37 Workplace Relations Legislation Amendment
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Notes on amendments
296. New subparagraph 229(4A) would make clear that periods of authorised unpaid leave and
unauthorised leave do not count as service for the purposes of calculating an employee's
nominal hours worked (under subparagraphs 229(1)(b)(i) and 229(4)(a)(ii)), unless otherwise
expressly provided by:
· a term or condition of the employee's employment;
· a Commonwealth, State or Territory law or instrument; or
· the regulations.
297. The proposed note under subsection 229(4A) would identify the sections of the Act that
deal with the service status of the types of leave an employee is entitled to under the Standard.
Illustrative example
For the past four weeks Amy worked 38 hours in each of weeks 1, 2 and 4, and took authorised
leave without pay in week 3. Amy's absence in week 3 does not break her continuity of service
(that is, it does not interrupt the four week period over which leave accrues). However, Amy
would not accrue annual leave in respect of week 3, as unpaid leave does not count as service for
the purpose of determining an employee's nominal hours worked.
298. Item 8 is a minor technical amendment consequential to item 7. This item would repeal
note (3) at the end of section 229. This note is no longer necessary in light of the proposed new
note under section 229(4A).
Item 9 - Paragraph 233(1)(c)
Item 10 - Subsection 235(1)
Item 11 - Subsection 235(2)
299. Section 235 currently provides that, under the Standard, an employee on annual leave is
entitled to be paid the employee's basic periodic rate of pay applying at the time immediately
before the period of leave begins.
300. Item 10 is a technical amendment to subsection 235(1) of the Act. The amendment would
clarify that an employee on annual leave is entitled to be paid for each hour (or part hour) of
leave taken at his or her basic periodic rate of pay expressed as an hourly rate (reflecting the fact
that this is how annual leave accrues under the Standard).
· The basic periodic rate of pay under section 235 refers to the employee's actual basic
periodic rate of pay - which may be their guaranteed basic periodic rate of pay (the rate that
is payable under an Australian Pay and Classification Scale), or, if an employee is bound by
a contract of employment or workplace agreement, to the rate specified in that instrument.
Senate page 38 Workplace Relations Legislation Amendment
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Notes on amendments
Illustrative Example
Bec is employed by Clifford's Crazy Cricket Store Pty Ltd.
Under her contract of employment, she is entitled to be paid $25 per hour, including $5 per hour
in allowances. However, under an applicable pay scale, Bec is guaranteed $15 per hour (her
guaranteed basic periodic rate of pay).
Under the annual leave payment rule in subsection 233(1), Bec is entitled to be paid $20 per
hour during the leave period.
301. The amendments made by items 9 and 11 are consequential on proposed item 10.
302. Item 9 would amend paragraph 233(1)(c) of the Act so that where an employee forgoes an
amount of annual leave under section 233, the payment rate for the amount of leave forgone
would be the employee's hourly basic periodic rate of pay.
303. Item 11 would amend subsection 235(2) to clarify that an employee whose employment is
terminated is entitled to be paid for each hour (or part hour) of any untaken annual leave at his or
her hourly basic periodic rate of pay.
Item 12 - At the end of section 236
304. This item would insert proposed new subsections 236(7) to 236(10) in Division 5 of Part 7
of the Act. These provisions would set out new administrative rules about the taking of annual
leave for employees affected by the proposed amendment that would cap nominal hours worked
for the purposes of annual leave accrual at 38 hours per week (see item 6).
305. Proposed subsection 236(7) would apply to employees affected by the cap on the number
of hours that may form part of the annual leave accrual calculation under new subparagraph
229(1)(a)(ii) - that is, it applies to employees whose nominal hours worked would otherwise (in
the absence of item 6) be more than 38.
306. For employees who work 38 hours per week or less, the amount of leave taken will
generally correspond to the hours that count towards determining the employee's nominal hours
worked. However, where an employee who works more than 38 hours per week takes annual
leave, the number of hours leave to which the employee is entitled will be affected as a result of
capping leave accrual under the proposed amendment in item 6.
307. To ensure that an employee affected by item 6 remains entitled to four full weeks of annual
leave, under proposed subsection 236(7), such an employee is entitled to be absent not only for
the hours (or part hours) that count towards determining their nominal hours worked, but also for
any other hours (or part hours) that the employee would otherwise have worked on that day.
This additional time is not paid leave and is not deducted from the employee's leave balance.
308. Where the entitlement is not equivalent to the employee's nominal hours worked on that
day (because leave is taken for only part of a day), the provision is not relevant and does not
apply.
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Notes on amendments
309. The amendment is necessary because, under the amendment proposed in item 6, an issue
may arise as to the duration of days or weeks of annual leave an employee may take as a result of
capping annual leave accrual at 38 hours per week.
310. Under the Act as currently drafted, an employee who works 40 hours per week (8 hours per
day) accrues 160 hours of paid annual leave each year - the equivalent of 4 weeks at 40 hours
each (assuming no deductions for periods of leave that do not count as service or industrial
action). Under the proposed amendment under item 6, this employee would accrue 152 hours of
paid annual leave each year - the equivalent of 3.8 weeks of 40 hours each.
311. This amendment would ensure that an employee affected by the proposed capping of leave
in item 6 remains entitled to four full weeks of annual leave. That is, she would be entitled to
paid annual leave for the hours that would count towards her nominal hours worked (152 hours),
and to be absent for other hours that she would have worked during the period (8 hours).
312. The proposed amendment includes an example that illustrates the intended operation of
subsection 236(7). For the purpose of the example, it is assumed that the additional 2 hours of
work that the employee is required to work above 38 hours in a week are reasonable additional
hours under paragraph 226(1)(b).
313. Proposed subsection 236(8) would make clear that any absence taken to be authorised
under subsection 236(7) is not paid annual leave and does not count as service for the purpose of
leave accrual under the Standard. However, such absence does not break an employee's
continuity of service.
314. Proposed subsection 236(9) would provide for what constitutes a `day' where a shift or
other type of working arrangement is spread over two consecutive days. This would be achieved
by effectively deeming a shift spread over two days to be a day, while the remaining parts of the
day in which the shift falls would be taken not to be part of the day.
315. Proposed subsection 236(10) would enable regulations to be made for the purpose of
determining:
· what hours in a day count towards an employee's weekly nominal hours worked; and
· what hours in a day would be hours in a day that an employee would otherwise work.
316. The purpose of the proposed regulation making power is to ensure that regulations can be
made to ensure that the intended objectives of amendment can be achieved, and to address any
unintended consequences.
317. This amendment would have no application for employees who work 38 hours per week or
less. This is because these employees would not be affected by the amendment proposed in item
6.
Item 13 - Section 240
318. Item 13 is consequential to item 19, and would provide that `basic periodic rate of pay' has
the meaning given by section 178.
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Notes on amendments
Item 14 - Paragraph 241(1)(a)
319. This item would repeal and replace paragraph 241(1)(a) in Part 7 of the Act. This
provision forms the basis for the calculation of personal/carer's leave entitlements under the
Standard.
320. This item would have the same effect in relation to personal/carer's leave as Item 6 would
have in relation to annual leave. Under proposed new subparagraph 241(1)(a), the base number
of weekly hours for calculating the personal/carer's leave entitlement of employees engaged for
a specified number of hours would be the employee's specified hours, up to a maximum of 38
hours per week.
Item 15 - After subsection 241(4)
Item 16 - After subsection 241(4) (note 3)
321. Item 15 would insert a new subsection 241(4A) in Part 7 of the Act. This provision would
clarify that periods of authorised unpaid leave and unauthorised leave do not count as service for
the purposes of accrual of personal/carer's leave under the Standard.
322. Items 15 and 16 would have the same effect in relation to personal/carer's leave as Items 7
and 8 in relation to annual leave.
Item 17 - Section 243
323. Item 17 is consequential on the amendment proposed in item 19, and would enable
regulations to be made prescribing the basic periodic rate for pay for piece rate employees. This
proposed amendment is consistent with paragraph 231(a) of the Act, which provides that for the
purpose of the annual leave payment rule, the regulations may prescribe a different definition of
basic periodic rate of pay in relation to piece rate employees. Regulation 7.7A (Division 4, Part
7, Chapter 2) of the Workplace Relations Regulations 2006 was made under this provision and
prescribes such a definition.
Item 18 - After section 245
324. This item would insert proposed new section 245A in Division 5 of Part 7 of the Act.
325. The proposed new section would enable an employee to request to cash out an amount of
paid personal/carer's leave each year, provided that a minimum balance of at least 15 days leave
remains available after cashing out (for full-time employees, pro rata for part-time employees).
· Under the Workplace Relations Regulations 2006 the ability to cash out personal/carer's
leave is currently limited - the minimum entitlement to personal/carer's leave under the
Standard cannot be cashed out, and only amounts of personal carer's leave above the
Standard minimum entitlement can be cashed out.
326. The proposed amendment is intended to provide flexibility for employers and employees to
manage personal/carer's leave balances in ways that suit their particular circumstances, while
ensuring that a minimum amount of leave is available to an employee in the event of illness or
injury.
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Notes on amendments
327. Proposed new subsection 245A(1) would provide that cashing out is only available for
employees who have been credited with more than the protected amount of paid personal/carer's
leave.
328. The protected amount of personal/carer's leave would be no less than 3/52 of the nominal
hours worked by the employee during the previous 12 months of service (or sequence of periods
totalling 12 months of service) prior to the election to cash out being made (see proposed
subsection 245A(3)). For an employee whose weekly nominal hours worked over a continuous
period of 12 months service are 38 hours, the protected amount of personal/carer's leave would
be 114 hours. This is equivalent to 15 days of personal/carer's leave.
329. Cashing out would be subject to a number of conditions under the proposed amendment
(proposed subsection 245A(2)).
330. A workplace agreement would need to include a specific provision that entitles the
employee to elect to cash out an amount of personal/carer's leave, and to be paid (within a
reasonable period) an amount in lieu of the personal/carer's leave, at a rate that is no less than
the employee's hourly basic periodic rate of pay (which means that leave would not be able to be
cashed out at a `discounted' rate).
331. An employee would need to make a separate written request to cash out personal/carer's
leave that has been credited to the employee (it would not be possible to cash out leave in
advance of it being credited), and the employer would need to agree before any cashing out
occurs. An employer would be prohibited from requiring or pressuring an employee to cash out
personal/carer's leave. These protections reflect the protections already provided for the cashing
out of annual leave (section 233).
332. The note under subsection 245A(2) would make clear that if an employee cashes out an
amount of paid personal/carer's leave, the employer is entitled to deduct the amount of leave
forgone from the employee's credited leave balance.
333. The proposed amendment would not affect personal/carer's leave that accrued before the
Standard applied to an employee (that is, on 27 March 2006, or on a later date, after the
termination or replacement of a pre-reform AWA or CA). The arrangements that apply to this
leave are as follows:
· It is possible for the parties to agree to cash out some or all of the employee's accrued pre-
reform personal/carer's leave entitlement in a workplace agreement (regulation 2.23A of
Chapter 7 of the Workplace Relations Regulations 2006 makes clear that the Standard does
not apply to personal/carer's leave that accrued before the Standard applied to an employee,
for a transitional period of five years. Such a provision in a workplace agreement is not
prohibited content).
· For employees bound by an award, the rules set out in the pre-reform award continue to
apply to pre-reform personal/carer's leave.
· Under clause 30 of Schedule 7 of the Act (as amended by item 41 of Schedule 6) the
Standard does not apply to employees bound by a pre-reform CA or AWA. This means that
the arrangements and rules for cashing out personal/carer's leave (if any) in that pre-reform
agreement would continue to apply until the agreement is terminated or replaced.
Senate page 42 Workplace Relations Legislation Amendment
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Notes on amendments
Item 19 - Section 247
334. Section 247 currently provides that an employee who takes paid personal/carer's leave is to
be paid at the rate the employee would reasonably have expected to be paid had the employee
worked during the period of leave. The same payment rule applies in relation to compassionate
leave (section 259) and to paid leave for pregnant employees in the event that transfer to a safe
job is not possible (subsection 268(3)).
335. Under the existing payment rule for personal/carer's leave, an employee who takes leave is
entitled to his or her basic rate of pay, as well as (for example) any allowances, overtime
loadings and penalty rates that the employee could reasonably have expected to be paid had they
worked during the period of leave. This is not consistent with arrangements in many pre-reform
awards and agreements, in which leave is paid at the employee's ordinary rate of pay.
336. Item 19 would amend section 247 of the Act to change the payment rule for
personal/carer's leave, so that an employee who takes this form of leave is entitled to be paid for
each hour (or part hour) of leave at the employee's basic periodic rate of pay (expressed as an
hourly rate) immediately before the period of leave begins. This is consistent with the payment
arrangements for annual leave (as amended by item 10).
Item 20 - After section 247
337. This item would insert proposed new section 247A in Part 7 of the Act. This section would
set out new administrative rules about the taking of personal/carer's leave, for employees
affected by the proposed amendment that would cap personal/carer's leave accrual at 38 hours
per week.
338. This item would have the same effect in relation to personal/carer's leave as item 12 would
have in relation to annual leave.
339. Under proposed section 247A, an employee whose specified hours of work are more than
38 hours per week would be entitled to be absent from work for a full day on each occasion that
she takes personal/carer's leave. For example, an employee who works 40 hours per week
would be entitled to paid personal/carer's leave for the hours that would count towards her
nominal hours worked on that day (7.6 hours), and to be absent for other hours that she would
have worked during the period (0.4 hours).
Item 21 - Section 259
340. This item would have the same effect in relation to compassionate leave as item 19 would
have in relation to personal/carer's leave.
341. Item 21 would amend the payment rule for compassionate leave in section 259, so that an
employee who takes this form of leave is entitled to be paid for each hour (or part hour) of leave
at the employee's basic periodic rate of pay (expressed as an hourly rate) immediately before the
period of leave begins.
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Notes on amendments
Item 22 - Section 262
Item 23 - At the end of section 262
Item 25 - Section 263 (definition of employee)
342. Item 23 would insert a new subsection 262(2) in Division 6 of Part 7 of the Act (which
deals with the parental leave entitlement under the Standard). This new subsection would clarify
that the parental leave entitlement under the Standard is intended to supplement, and not to
override, entitlements under other Commonwealth legislation.
343. The proposed amendment is necessary to make clear that the parental leave provisions of
the Act operate in conjunction with the Maternity Leave (Commonwealth Employees) Act 1973.
344. Items 22 and 25 are minor technical amendments consequential on item 23.
Item 24 - Section 263
Item 26 - Section 263
Item 27 - At the end of Subdivision A of Division 6 of Part 7
Item 29 - Subsection 268(3)
345. These items would have the same effect in relation to paid leave for pregnant employees
for whom transfer to a safe job is not possible, as items 13, 17 and 19 would have in relation to
personal/carer's leave.
346. Under subsection 268(2) of the Act, a pregnant employee who is entitled to maternity leave
is eligible to be transferred to a safe job if she provides a medical certificate stating that she is fit
to work, but is unable to continue in her present position due to risks associated with the
pregnancy or position. If transferring the employee to a safe job is not reasonably practicable for
the employer, the employee is entitled to paid leave during the period she is unable to continue
in her present position as stated in the medical certificate or until the date of birth (whichever is
earlier). Currently, an employee who takes this form of leave is entitled to be paid the amount
she would reasonably have expected to be paid if she had worked during that period.
347. Item 29 would amend the payment rule for this form of leave, so that so that an employee
is entitled to be paid for each hour (or part hour) of leave at the employee's basic periodic rate of
pay (expressed as an hourly rate) immediately before the period of leave begins.
348. Items 24, 26 and 27 are consequential on proposed item 29.
349. Item 24 would provide that `basic periodic rate of pay' has the meaning given by section
178. Item 26 would insert a definition of piece rate employee. Item 27 would insert a new
proposed section 264A that would allow for regulations to be made prescribing a definition of
basic periodic rate for pay for piece rate employees.
Senate page 44 Workplace Relations Legislation Amendment
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Notes on amendments
Item 28 - At the end of subsection 268(2)
Item 30 - After subsection 274(2)
350. The proposed amendments made by Items 30 and 28 are required to address an
inconsistency in the application of the rules governing an employer's right to require an
employee to commence unpaid maternity leave.
351. Under the Standard, an employee who continues to work within six weeks prior to the
estimated date of birth can be asked by her employer to provide a medical certificate as to
whether she is fit to work during that period. If the medical certificate indicates that the
employee is not fit to work, the employer may require the employee to start maternity leave,
which is unpaid under the Standard (subsection 274(2)).
352. Under subsection 268(2) of the Act, a pregnant employee who is entitled to maternity leave
is eligible to be transferred to a safe job if she provides a medical certificate stating that she is fit
to work, but is unable to continue in her present position due to risks associated with the
pregnancy or position. Where transfer to a safe job is not practicable, an employee is entitled to
take paid leave. However, in these circumstances there is no equivalent right for an employer to
direct an employee to take unpaid maternity leave within six weeks before the expected date of
birth, even though the employee may be unfit for any kind of work.
353. The proposed amendments made by items 30 and 28 would rectify this anomaly.
354. Item 30 would insert a new subsection 274(2A) in section 274 of the Act. The new
provision would provide that if an employee takes paid leave in lieu of transfer to a safe job
under subparagraphs 268(2)(b)(i) or (ii), an employer may, during the 6 weeks prior to the
expected date of birth, request a medical certificate stating whether the employee is fit to work
during that period. Under existing subsection 274(3), an employer may direct an employee to
take unpaid leave if the medical certificate indicates that the employee is unfit for work.
355. Item 28 would insert a legislative note under subsection 268(2) of the Act
cross-referencing proposed subparagraph 274(2A).
Item 31 - At the end of subsection 318(3)
Item 32 - After paragraph 2(1)(g) of Schedule 2
Item 33 - After paragraph 3(1)(c) of Schedule 2
Item 34 - After paragraph 4(1)(c) of Schedule 2
356. Section 689 of the Act extends the parental leave provisions of the Standard to all
employees, not only those of constitutional corporations and other employers who fall within the
scope of subsection 6(1) of the Act. This `extended' operation of the parental leave provisions is
underpinned by the external affairs power of the Constitution, as these provisions give effect to
international conventions.
357. Under Division 7 of Part 7 of the Act, civil remedies are available for contravention of the
Standard by employers. In general, civil remedies are constitutionally limited to contraventions
of the Standard by employers within the meaning of subsection 6(1) of the Act. However,
Senate page 45 Workplace Relations Legislation Amendment
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Notes on amendments
subsection 318(3) extends the availability of civil remedies to breaches of the parental leave
provisions as they apply because of section 689.
358. Item 31 would insert a note at the end of subsection 318(3) of Part 7, which would confirm
that the references to employer, employee and employment have their ordinary meaning for the
purposes of that subsection.
359. Schedule 2 to the Act makes extra provision for definitions used in the Act. Clauses 2, 3,
and 4 of Schedule 2 provide a list of references in the Act to the terms `employer', `employee'
and `employment' respectively, where these terms are to have their ordinary meaning. Items 32,
33 and 34 would insert new paragraphs 2(1)(ga), 3(1)(ca) and 4(1)(ca) into Schedule 2 to add the
references to these terms in Division 7 of Part 7, so far as the references relate to the parental
leave provisions as they apply because of section 689.
Item 35 - Saving provision - annual leave
360. Item 35 would make clear that proposed item 6 does not affect any entitlement to annual
leave that an employee had accrued before the commencement of the amendment. The effect of
this is that employees would not lose any accrued entitlements to annual leave.
Item 36 - Saving provision - paid personal/carer's leave
361. This item would make clear that proposed item 14 does not apply in relation to
personal/carer's leave entitlements that accrued before the commencement of item 14. This item
would have the same effect in relation to personal/carer's leave as item 35 would have in relation
to annual leave.
Senate page 46 Workplace Relations Legislation Amendment
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Notes on amendments
Schedule 6 - Other amendments
Amendment 13
362. This item would insert a new Schedule of miscellaneous technical amendments.
Item 1 - Paragraph 165(1)(e)
363. This amendment would clarify that regulations can be made to permit disclosures of
protected information in the circumstances that are prescribed.
Item 2 - After subsection 165(1)
364. This amendment will make it clear that a disclosure of protected information in the
circumstances permitted under subsection 165(1) or any regulations made under paragraph
165(1)(e) is taken to be authorised by law for the purposes of the Privacy Act 1988 (Privacy
Act).
Item 3 - At the end of section 170
365. This amendment will make it clear that a disclosure of information by a workplace
inspector in the circumstances permitted under section 170 or any regulations made under
subsection 170(3) is taken to be authorised by law for the purposes of the Privacy Act.
Item 4 - Subsection 337(5)
Item 8 - Subsection 370(5)
366. Items 4 and 8 would amend subsections 337(5) and 370(5) to give effect to the policy
intention that the employees who are a party to a proposed workplace agreement, or variation of
an existing workplace agreement, may waive the requirement to have the information statement
for 7 days prior to approving the agreement. This rectifies a drafting oversight within the Work
Choices Act amendments. These amendments would clarify the intended operation of these
provisions, particularly in situations where the employer gives the employees the information
statement at the same time as the proposed agreement or proposed variation.
367. New subsections 337(5) and 370(5) would provide that where a waiver has been made by
the eligible employees under existing section 338, or 371 with respect to variations, then the
requirement for the employees to:
· have, or have ready access to the proposed agreement or variation (proposed paragraph
337(5)(a) and 370(5)(a)); and
· have the information statement (proposed paragraph 337(5) and 370(5))
for 7 days before the agreement or variation can be approved would no longer apply.
368. The intended effect of these amendments would be to ensure that employees may waive
both the requirement to have (or have ready access to) the proposed agreement, or variation, and
the information statement for 7 days before being able to approve the proposed agreement or
variation. The employee may choose to make a waiver, under existing sections 338 or 371, at
Senate page 47 Workplace Relations Legislation Amendment
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Notes on amendments
any time after having received both the proposed agreement, or variation, and the information
statement.
Illustrative Example
DJ Designs recently recruited Rose as an artist. After Rose and her manager discussed and
agreed to the terms of the AWA, the manager called Rose into his office, and gave her the final
version of the AWA, and the information statement obtained from the Office of the Employment
Advocate website. Included in the package of documents Rose was given a form allowing her to
waive the requirement to have the proposed AWA, and the information statement, for the
remainder of the 7 day period.
Rose read the information statement, and then the proposed AWA. As all the terms and
conditions she had agreed to with her manager were included in the AWA, Rose felt she did not
need any more time to consider it. She then signed the waiver before calling in her manager's
secretary to witness her signature on the AWA.
Item 5 - At the end of section 338
Item 9 - At the end of section 371
369. Items 5 and 9 propose technical amendments to sections 338 and 371.
370. Items 5 and 9 would, respectively, insert legislative notes to sections 337 and 371 to direct
the reader to subsections 337(5) and 370(5), as amended, for the effect of the waiver.
371. These items would also change the heading of these sections to be "Employees may waive
7 day period". The new headings would more accurately reflect the operation of these sections.
Item 6 - At the end of Division 5 of Part 8
New section 346A
372. This item would insert new section 346A into Part 8 of the WR Act. New section 346A
would require an employer that lodges an AWA with the Employment Advocate to give a copy
of that lodged AWA to the employee whose employment is subject to the AWA. The employer
would be required to provide the copy of the lodged AWA to the employee as soon as
practicable after lodgement.
373. New subsection 346A(2) would provide that subsection 346A(1) is a civil penalty
provision. The note under subsection 346A(2) would refer to Division 11 of Part 8. Under these
provisions the Court may order a pecuniary penalty of up to 30 penalty units against an employer
that that fails to provide a copy of the lodged AWA to the employee.
Item 7 - After subsection 347(2)
374. This item would insert new subsection 347(2A), which would provide that where parties
make a workplace agreement within the meaning of section 333, but the employer subsequently
lodges a declaration attaching a document that is different to that agreement, the agreement that
Senate page 48 Workplace Relations Legislation Amendment
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Notes on amendments
was originally made (`the unlodged agreement') comes into operation as the workplace
agreement, and the lodged agreement does not come into operation.
375. This amendment is an exception to the general rule expressed in subsection 347(1) that a
workplace agreement comes into operation on the day it is lodged.
Item 10 - After paragraph 392(2)(b)
376. This item would provide that an employee can unilaterally terminate an AWA in a manner
provided for in the AWA by lodging a declaration in accordance with section 395. This
amendment corrects a drafting oversight.
Item 11 - After paragraph 393(2)(b)
377. This item would provide that an employee can unilaterally terminate an AWA with 90
days' written notice by lodging a declaration in accordance with section 395. This amendment
corrects a drafting oversight.
Item 12 - After paragraph 407(2)(j)
378. This item would amend subsection 407(2) to insert new paragraph (ja). The effect of this
amendment would be that the Court will be able to order a pecuniary penalty of up to 30 penalty
units for breach of subsection 346A(1) - the requirement on the employer to provide an
employee with a copy of an AWA as soon as practicable after it has been lodged.
Item 13 - At the end of subsection 482(1)
Item 14 - At the end of subsection 482(2)
379. Subsections 482(1) and 482(2) provide that applicants and joint applicants for a ballot
order are liable for the costs of carrying out that ballot. Items 13 and 14 would amend these
subsections to make it clear that applicants and joint applicants will be liable for the cost of
carrying out the ballot even in circumstances where the ballot is not completed.
Item 15 - Subsection 482(3)
380. Subsection 482(3) provides that the liability of an applicant for the cost of carrying out a
ballot is subject to subsections 483(3) and 483(6), which provide for the Commonwealth being
partially liable for the costs of a ballot if certain conditions are met. Item 15 would amend
subsection 482(3) to clarify that subsections 483(3) and 483(6) would only operate in relation to
completed ballots.
Item 16 - After paragraph 483(1)(a)
381. Subsection 483(1) sets out the circumstances which must be satisfied before the Industrial
Registrar will make a determination as to the reasonableness of costs incurred by an authorised
ballot agent in relation to carrying out the ballot. Where the Industrial Registrar has made a
determination as to the reasonable costs of a ballot conducted by an authorised ballot agent the
Commonwealth will then be liable to pay the authorised ballot agent 80 per cent of that amount.
Item 16 would amend subsection 483(1) by inserting a requirement that the ballot be completed
for the Industrial Registrar to be able to make a determination as to the reasonable ballot costs.
Senate page 49 Workplace Relations Legislation Amendment
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Notes on amendments
382. This item would also amend the heading of section 483 to make clear that the
Commonwealth has partial liability for the cost of completed ballots.
Item 17 - Section 611 (after paragraph (a) of the definition of public holiday)
Item 18 - Section 611 (subparagraph (b)(i) of the definition of public holiday)
383. Section 611 sets out a definition of public holiday for the purposes of Division 2 of Part 12
of the Act. Paragraph 611(a) prescribes certain public holidays which are common to all States
and Territories. Paragraph 611(b) also provides that a public holiday includes any other day
declared by or under a State or Territory law to be observed as a public holiday, but specifically
excludes certain days, including a day in substitution for one of the public holidays specifically
mentioned in paragraph 611(a).
384. The proposed amendment would amend the definition of public holiday in section 611 to
also include a day that is substituted under a State or Territory law for one of the public holidays
specifically mentioned in paragraph 611(a).
385. The effect of the proposed amendment would provide that an employee may refuse a
request by the employee's employer to work on a holiday that is substituted for one of the days
specifically mentioned in paragraph 611(a) if the employee has reasonable grounds for doing so.
Illustrative example
In a particular year, Australia Day falls on Saturday, 26 January. Under the law of a State, the
following Monday, 28 January, is declared to be a substitute day for the `Australia Day' public
holiday. An employee would have the right to refuse, on reasonable grounds, to work on both
Australia Day (26 January) as well as the substitute public holiday (28 January).
Item 19 - At the end of section 710
386. This item would include an additional ground upon which the AIRC must refuse to conduct
dispute resolution in relation to a dispute resolution process in a workplace agreement.
387. The AIRC must refuse to conduct dispute resolution if the matter in dispute is currently the
subject of proceedings, or has been settled in proceedings, under a Commonwealth, State or
Territory law relating to the prevention of discrimination or equal opportunity.
388. This would mean that, for example, if a complaint about alleged discrimination in the
workplace is settled in conciliation before the Human Rights and Equal Opportunity
Commission, neither the employer nor employee concerned could seek an additional settlement
by pursuing the same issue pursuant to Part 13 of the WR Act.
Item 20 - Subparagraph 846(2)(g)(i)
389. This item would increase the maximum pecuniary penalty under the Act for a breach of a
civil remedy provision in the regulations by an individual from 5 penalty units to 10 penalty
units.
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Notes on amendments
Item 21 - Subparagraph 846(2)(g)(ii)
390. This item would increase the maximum pecuniary penalty under the Act applicable for a
breach of a civil remedy provision in the regulations by a corporation from 25 penalty units to 50
penalty units.
Item 22 - Paragraph 864(1)(b)
Item 23 - Subsection 864(4)
391. These items are technical amendments to the Victorian wage provisions of the Act. The
proposed amendments would specifically empower the Australian Fair Pay Commission to be
able to adjust frequency of payment provisions in an Australian Pay and Classification Scale that
applies to Victorian employees within the meaning of section 858 as it can currently for other
employees under the Act.
Item 24 - After paragraph 3(1)(h) of Schedule 2
392. This amendment would provide that a reference to employer in the newly created Division
2 of Part 4 of Schedule 7 to the Act would be a reference to employer with its ordinary meaning.
This amendment is consequential upon the amendment made in item 40.
Item 25 - Paragraph 72H(2)(c) of Schedule 6
Item 26 - Subclause 72H(2) of Schedule 6
393. These items would amend subclause 72H(2) of Schedule 6 so that a new transitional
employer's existing certified agreement does not apply to a transferring transitional employee.
394. These amendments would ensure that the interaction rules in clause 72H are consistent
with the other transmission of business interaction rules in the Act.
395. The effect of these amendments would be to ensure that a transferring transitional
employee retains the benefit of his or her transmitted transitional award for a maximum period of
12 months.
Item 27 - Paragraph 77(3)(a) of Schedule 6
Item 28 - Paragraph 97(4)(a) of Schedule 6
396. Items 27 and 28 would repeal subparagraphs 77(3)(a) and 97(4)(a) of Schedule 6 to the Act
respectively, and substitute new subparagraphs 77(3)(a) and 97(4)(a).
397. Award terms about parental leave (as well as those about annual leave and personal/carer's
leave) are preserved, and continue to apply if they provide an employee with a more generous
leave entitlement than the Standard. In relation to employees and employers within the meaning
of subsections 5(1) and 6(1) of the Act, regulations can be made under subsection 527(8) to
exclude certain specified entitlements under the Standard from the `more generous' comparison
with preserved award terms. Where such regulations are made, this means that these
entitlements under the Standard apply irrespective of the outcome of the more generous test.
Senate page 51 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
398. One of the entitlements in respect of what the regulations can be (and have been) made is
the entitlement under section 268 of the Act to be transferred to a safe job, or to take paid leave
if a safe job is not practicable. Under the Standard, a pregnant employee is entitled to be
transferred to a safe job if she provides her employer with a medicate certificate stating that she
is fit to work but is unable to continue in her present position because of illness or risks arising
out of the pregnancy (section 268). If transferring the employee to a safe job is not reasonably
practicable, the employee is entitled to paid leave during the period she is unable to continue in
her present position as stated in the medical certificate, or until the date of birth (whichever is
earlier).
399. Terms about parental leave are also preserved terms in transitional awards that bind
Victorian employers and employees. Under subclauses 77(3) and 97(4) of Schedule 6 to the Act,
regulations can be made similar to those that can be made under subsection 527(8). However, in
one respect the relevant entitlement that can be prescribed by these regulations is not correctly
identified under these subclauses. Subparagraphs 77(3)(a)(ii) and 97(4)(a)(ii) refer to the
entitlement to paid leave where transfer to a safe job is not practicable, but do not refer to the
right to transferred to a safe job. This is an unintended anomaly.
400. The proposed amendments made by these items would correct this anomaly, by repealing
the existing provisions and inserting new subparagraphs (consistent with the regulation-making
power in subparagraph 527(8)(a)(ii) of the Act) that refer to the entitlement under section 268 to
transfer to a safe job or to take paid leave. The reference to special maternity leave is unchanged
from the existing provisions.
Item 29 - Clause 1 of Schedule 7
401. This item would provide a definition of transitional award for the purposes of Schedule 7.
Item 30 - At the end of clause 2 of Schedule 7
Item 32 - At the end of clause 17 of Schedule 7
402. These items would insert a legislative note. The note would alert the reader to other
provisions of the WR Act that affect the operation of a pre-reform certified agreement or
pre-reform AWA, respectively.
403. The note would make clear that an employer or employee who is party to, or bound by, a
pre-reform federal agreement would also be bound by section 16 of the WR Act upon the
commencement of Schedule 1 of the Work Choices Act amendments). Section 16 provides for
the WR Act to operate to the exclusion of certain State or Territory laws.
404. Furthermore, an employer or employee who is party to, or bound by, a pre-reform federal
agreement may also be bound by one of the instruments created by Schedule 8 (Transitional
treatment of State employment agreements and State awards). Schedule 8 has created two new
federal instruments: a PSA and a NAPSA:
405. Part 2 of Schedule 8 provides for PSAs, which are derived from the terms of a State
employment agreement, State award, and particular State laws that applied to a particular
employee immediately before the commencement of Schedule 1 of the Work Choices Act
amendments; and
Senate page 52 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
406. Part 3 of Schedule 8 provides for NAPSAs, which are derived from the terms of a State
award and/or particular State laws that applied to a particular employee immediately before the
commencement of the Work Choices Act.
407. The additional reference in the Note:
· at the end of clause 2 of Schedule 7 - to clause 5 of Schedule 7; and
· at the end of clause 17 of Schedule 7 - to clause 19 of Schedule 7,
is relevant to determining the relationship between the particular pre-reform federal agreement
and the instruments created by Schedule 8.
Item 31 - Subclause 5(1) of Schedule 7
408. This item would repeal and replace subclause 5(1) of Schedule 7.
409. Before the Work Choices Act amendments, a certified agreement would prevail to the
extent of any inconsistency over a State award or State agreement. As a result, an employee's
terms and conditions of employment could be determined by a certified agreement that operated
in conjunction with a State agreement and/or State award.
410. Clause 5 of Schedule 7 deals with the interaction between a pre-reform certified agreement
and other instruments that determine terms and conditions of employment, including PSAs and
NAPSAs.
411. Subclause 5(1) currently provides that a pre-reform certified agreement operates to the
exclusion of a PSA or NAPSA with the consequence that the terms in the PSA or NAPSA will
not operate at all. For example, employees may be covered by a pre-reform federal agreement
that is only about redundancy, with other terms and conditions of employment being derived
from a State agreement, award, or law. Prior to the Work Choices Act amendments, these State
instruments and State laws would have operated in conjunction with the certified agreement to
the extent of any inconsistency. The effect of subclause 5(1) is that the employees' terms and
conditions of employment are only regulated by the pre-reform certified agreement dealing with
redundancy. Therefore, the NAPSA or PSA based on the State instrument no longer applies.
412. The proposed technical amendment would restore the arrangements that applied before the
Work Choices Act amendments, and enable PSAs and NAPSAs to operate to the extent of any
inconsistency with a pre-reform certified agreement.
Item 33 - Paragraph 19(d) of Schedule 7
413. This item would repeal and replace paragraph 19(d) of Schedule 7.
414. Clause 19 of Schedule 7 deals with the interaction between a pre-reform AWA and other
instruments that determine terms and conditions of employment, including PSAs and NAPSAs.
415. Paragraph 19(d) currently provides that a NAPSA has no effect in relation to an employee
while a pre-reform AWA is in operation.
416. The proposed amendment would provide that a pre-reform AWA would prevail to the
extent of any inconsistency over a NAPSA.
Senate page 53 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
Item 34 - Before clause 22 of Schedule 7
417. This item would create a Division 1 from the existing clause 22 through to clause 26, and is
consequential on the creation of Division 2 by item 40.
Division 1 - Continuing operation of section 170MX awards
Item 35 - Clause 22 of Schedule 7
418. The effect of the amendment proposed by this item would be to limit the application of
Division 1 to section 170MX awards which relate to employers (within the meaning of
subsection 6(1)) or persons who become such an employer during the transitional period (as
defined in clause 1 of Schedule 7 as being the period of five years from reform commencement).
Item 36 - Subclause 23(1) of Schedule 7
Item 37 - Clause 24 of Schedule 7
Item 38 - Clause 25 of Schedule 7
Item 39 - Subclause 26(1) of Schedule 7
419. These items would make amendments to Part 4 of Schedule 7 to the Act, consequential
upon the amendment proposed by item 35.
Item 40 - At the end of Part 4 of Schedule 7
Division 2 - Special rules for section 170MX awards that bind excluded employers
420. This item would insert a new Division 2 into Part 4 of Schedule 7 to the Act to deal with
section 170MX awards that bind excluded employers.
26A Application of Division
421. Clause 26A would provide that Division 2 of Part 4 of Schedule 7 applies to a section
170MX award in force just before the reform commencement or which came into force after the
reform commencement because of Part 8 of Schedule 7 and which binds an excluded employer,
while they remain an excluded employer during the transitional period.
26B Cessation of section 170MX award
422. New subclause 26B(1) would provide that a section 170MX award that binds an excluded
employer will cease to have effect at the end of the transitional period or if replaced by a State
employment agreement. This clarifies that an excluded employer will revert back to the
applicable State system either at the end of the transitional period or if they enter into an
agreement under applicable State legislation.
423. Subclause 26B(2) would clarify, for the avoidance of doubt, that the cessation of a section
170MX award would not affect any rights accrued or liabilities incurred under the section
170MX award while in operation.
424. Subclause 26B(3) and the accompanying note would clarify that Division 1 will apply to an
excluded employer who becomes an employer (within the meaning of subsection 6(1)) before
Senate page 54 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
the end of the transitional period, and that Division 2 will cease to apply from the time that they
become such an employer.
425. Subclause 26B(4) would provide that where a section 170MX award has ceased operating
it can never operate again.
26C Continuing operation of section 170MX awards - under old provisions
426. Subclause 26C(1) would provide that provisions of the pre-reform Act (including
regulations made under the pre-reform Act) which relate to section 170MX awards would
continue to apply in relation a section 170MX award binding an excluded employer.
427. Subclause 26C(2) would provide exceptions to the application of provisions of the pre-
reform Act. This would include the removal of the AIRC's power in relation to revocation,
variation and termination of a section 170MX award binding an excluded employer, except
where it is being varied in cases of ambiguity or uncertainty, and the removal of provisions
relating to bargaining periods and industrial action.
26D Continuing operation of section 170MX awards - under new provisions
428. Clause 26D would provide that certain provisions under the Act (as it applies after the
reform commencement) would apply in relation to section 170MX awards binding an excluded
employer, as if they are workplace determinations under the Act. These provisions would apply:
(a) Part 6 - which would give certain enforcement and compliance functions in relation to
section 170MX awards to workplace inspectors;
(b) section 494 - which would prevent parties subject to a section 170MX award which has
not passed its nominal expiry date from taking protected industrial action;
(c) subsection 451(2) - which would prohibit parties subject to a section 170MX award from
applying for a secret ballot for protected industrial action until after the nominal expiry date of
the award;
(d) Part 14 - which would allow section 170MX awards to be enforced under the Act;
(e) and ?Part 15 - which would apply the right of entry provisions for collective agreements to
section 170MX awards.
26E Interaction of section 170MX awards with other instruments
1. Subclause 26E would provide that while a section 170MX award operates in relation to an
excluded employer and its employees the section 170MX award will prevail over a transitional
award to the extent of any inconsistency. This preserves the interaction between industrial
instruments capable of applying to an excluded employee during the transitional period.
Item 41 - Clause 30 of Schedule 7
2. This item would repeal and replace clause 30 of Schedule 7 to the WR Act.
3. Clause 30 of Schedule 7 currently provides that the Standard does not apply to an employee
whose employment is subject to a pre-reform CA, a pre-reform AWA or a section 170MX
Senate page 55 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
award. This prevents the Standard from applying even if the pre-reform instrument does not deal
with minimum entitlements.
4. Proposed subclause 30(1) would provide that the Standard does not apply to an employee in
relation to a matter if a pre-reform CA, pre-reform AWA and section 170MX award which binds
the employee also deals with the matter.
5. For the purpose of subclause 30(1), proposed subclause 30(2) would provide that a matter
means one of the following matters referred to in subsection 171(2) of the Act:
· basic rates of pay and casual loadings (Division 2 of Part 7);
· maximum ordinary hours of work (Division 3 of Part 7);
· annual leave (Division 4 of Part 7);
· personal leave (Division 5 of Part 7); and
· parental leave and related entitlements (Division 6 of Part 7).
6. Some pre-reform instruments are not comprehensive and only deal with certain issues, with
other terms and conditions of employment derived from an award, or Commonwealth or State
legislation.
7. On the commencement of the Work Choices Act amendments, award terms about wages and
classifications became preserved Australian Pay and Classification Scales, which form part of
the Standard. Award terms about working hours continue to operate (with transitional
arrangements applying for three years where the number of hours in an award exceeds the
requirements of the Standard). Award terms about annual leave, personal/carer's leave and
parental leave are preserved, and apply if they are more generous than the Standard. Some
entitlements derived from State legislation may be preserved for employees in the federal
system, as part of NAPSAs.
8. The proposed amendments would clarify that the Standard operates to fill any gaps where a
pre-reform CA, pre-reform AWA and section 170MX award does not deal with some or all of
the matters covered by the Standard (that is, rates of pay, hours of work, annual leave,
personal/carer's leave or parental leave). If these instruments do not deal with one or more of
these minimum entitlements, an employee will have the benefit of the Standard in respect of the
entitlements.
9. Whether an instrument `deals with' a matter will be a question of fact in each case.
However, it is intended that the instrument would need to deal with the matter in a substantive
way in order for the Standard not to apply. For example, if a pre-reform AWA provided for an
amount of pay that includes an amount in lieu of paid annual leave, the AWA could be said to
have dealt with the matter of annual leave (as the entitlement has been converted into a monetary
amount) and the Standard would not apply. By contrast, if a pre-reform CA provided for wages
to be paid in accordance with an award, the CA could not be said to have dealt with the
substantive entitlement (which is left to another instrument), and the Standard would apply.
Senate page 56 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
Illustrative Example 1
David is covered by a pre-reform certified agreement which only deals with leave entitlements
(annual leave, personal/carer's leave and parental leave). David's other terms and conditions of
employment, such as wages and hours, are derived from a federal award.
As the agreement does not deal with the matters specified in subparagraphs 171(2)(a) and (b) of
the WR Act, for David and other employees bound by this agreement, the Standard would apply
so that:
- wage entitlements would continue to apply under a preserved Australian Pay and
Classification Scale (derived from the award);
- hours would be those specified in the award; and
- annual leave, personal/carer's leave and parental leave would continue in accordance
with the terms of the pre-reform certified agreement.
Illustrative Example 2
Sienna is covered by a pre-reform AWA which requires her to work 40 hours per week in return
for an `all-in' pay rate of $25 per hour, which includes payment in lieu of paid annual, sick,
carer's and compassionate leave. The AWA makes no provision for parental leave, but under
Schedule 14 of the pre-reform Workplace Relations Act 1996, Sienna would have had an
entitlement to 52 weeks unpaid parental leave.
The AWA deals with wages, hours of work and all forms of leave covered by the Standard,
except for parental leave (a matter in subparagraph 171(2)(e) of the WR Act). Although the
AWA does not provide Sienna with paid leave, her AWA has `dealt with' these matters via the
hourly rate of pay.
Under the proposed amendment made by item 41, the Standard would not apply to Sienna except
in relation to parental leave. Accordingly, Sienna would be entitled to 52 weeks unpaid parental
leave (and related entitlements) under the Standard (Division 6, Part 7 of the WR Act).
Item 42 - At the end of clause 35 of Schedule 7
Item 43 - At the end of clause 36 of Schedule 7
Item 44 - At the end of clause 37 of Schedule 7
10. These items would insert a legislative note at the end of clauses 35 - 37 of Schedule 7.
Clauses 35 - 37 provide transitional arrangements for existing pre-reform federal agreements
that have been made pursuant to Victoria's referral to the Commonwealth of legislative power
over certain matters (Victorian reference).
Senate page 57 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
11. The note would alert the reader to section 898 of the WR Act, which may also affect the
terms and conditions of employment of an employee in relation to whom a Victorian reference
certified agreement or AWA is in operation.
12. Section 898 provides that, for the purpose of laws enacted in reliance on the Victorian
reference, the WR Act is intended to operate to the exclusion of particular Victorian laws.
Item 45 - Clause 15E of Schedule 8
13. This item would repeal and replace clause 15E of Schedule 8.
14. Proposed subclause 15E(1) would provide that the Standard does not apply to an employee
in relation to a matter if a PSA which binds the employee also deals with the matter.
15. Proposed subclause 15E(2) would provide that for the purpose of clause 15E, a matter
means one of the following matters referred to in subsection 171(2) of the Act:
· basic rates of pay and casual loadings (Division 2 of Part 7);
· maximum ordinary hours of work (Division 3 of Part 7);
· annual leave (Division 4 of Part 7);
· personal leave (Division 5 of Part 7); and
· parental leave and related entitlements (Division 6 of Part 7).
16. This item would have the same effect in relation to PSAs as item 41 does in relation to pre-
reform certified agreements, pre-reform AWAs and section 170MX awards.
17. The proposed amendments would clarify that the Standard operates to fill any gaps where a
PSA does not deal with some or all of the matters covered by the Standard (that is, rates of pay,
hours of work, annual leave, personal/carer's leave or parental leave). If a PSA does not deal
with one or more of these minimum entitlements, an employee will have the benefit of the
Standard in respect of the entitlements.
18. As noted above in relation to item 41, whether a PSA `deals with' a matter will be a question
of fact in each case - but it is intended that the instrument would need to deal with the matter in
a substantive way in order for the Standard not to apply.
Senate page 58 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
Illustrative Example
Tina is covered by a preserved State agreement which deals with wages, hours of work, annual
leave and personal/carer's leave.
The agreement is silent on parental leave. Prior to the commencement of WorkChoices, Tina's
parental leave entitlements were derived from Schedule 14 of the pre-reform Workplace
Relations Act 1996.
For Tina and other employees bound by this agreement:
- wage entitlements, hours of work provisions, annual leave and personal/carer's leave
would continue to apply according to the terms of the preserved State agreement; and
- parental leave would apply according to the Standard.
Item 46 - Clause 44 of Schedule 8
Item 47 - Clause 44 of Schedule 8
19. Clause 44 of Part 3 of Schedule 8 provides that subject to Division 5 of the Schedule, a term
of a NAPSA (other than a preserved notional term) is unenforceable where the Standard also
makes provision for that `matter'.
20. Proposed item 47 would amend clause 44 to provide that where the Standard makes
provision for a matter in relation to an employee, then a term of a NAPSA that also deals with
the matter in relation to an employee is unenforceable.
21. The effect of the amendment is to ensure that in order for a term of a NAPSA to be
unenforceable in relation to an employee, there must be a corresponding entitlement in the
Standard in relation to that employee.
22. For example, even though the Standard deals with the matter of bereavement leave, it
does not provide for bereavement leave in relation to a casual employee. Therefore, the
amendment would ensure that a term of a NAPSA that provides for a bereavement leave
entitlement in relation to a casual employee will continue to have effect because the Standard
does not deal with the matter of bereavement leave, in relation to that casual employee.
Item 48 - Paragraph 20(2)(b) of Schedule 9
23. This item would repeal paragraph 20(2)(b) of Schedule 9 so that a new employer's existing
collective agreement does not apply to a transferring employee who is bound by a NAPSA.
24. This amendment would ensure that the interaction rules in Clause 20 are consistent with the
other transmission of business interaction rules in the Act.
Senate page 59 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
25. The effect of this amendment would be to ensure that a transferring employee retains the
benefit of any transmitted State instrument for a maximum period of 12 months, unless the new
employer and the transferring employee make a new agreement.
Item 49 - Paragraph 5A(a) of Schedule 4
Item 50 - At the end of item 5A of Schedule 4
26. The proposed amendments made by items 49 and 50 would amend item 5A of Schedule 4 to
the Work Choices Act. This amendment is necessary to clarify the type of redundancy pay
obligations that are preserved by item 5A.
27. Prior to 26 March 2004, most awards exempted small businesses (those with fewer than 15
employees) from redundancy pay obligations (although under a small number of awards, small
businesses were not exempt). On 26 March 2004, the AIRC decided that the small business
exemption would be removed from all awards. The Government then announced that it would
legislate to overturn this decision, but confirmed that entitlements existing before 26 March 2004
would not be affected.
28. Consistent with this announcement, the Work Choices Act amendments overrode the
AIRC's 26 March 2004 decision but preserved rights and obligations created before that date.
· Under subsections 513(1) and 513(4) of the Act, a term of an award about redundancy pay
is an allowable award matter only to the extent that it relates to a termination of
employment by an employer of 15 or more employees (that is, a small business), and is
either at the employer's initiative on the grounds of operational requirements, or occurs
because the employer is insolvent (that is, in circumstances of genuine redundancy).
· Under section 525 of the Act, a term of an award ceases to have effect to the extent that it
imposes redundancy pay obligations outside the circumstances outlined in subsection
513(4).
· However, under item 5A of Schedule 4 to the Work Choices Act, terms of awards (where
they existed prior to 26 March 2004) that have the effect of requiring small businesses to
pay redundancy pay "within the meaning of the amended Act" continue to apply.
29. The amendment will address some uncertainty about the scope of item 5A. The intention of
item 5A was to preserve award terms about small business redundancy pay (where they existed
prior to 26 March 2004) in circumstances of genuine redundancy only, as outlined in paragraph
513(4)(b) of the amended Act. However, the words "within the meaning of the amended Act"
create some confusion (as the meaning of redundancy pay under the Act also excludes small
business employers).
30. Accordingly, the proposed amendments made by items 49 and 50 would clarify that under
item 5A, small business redundancy pay obligations that existed in awards before 26 March
2004 continue to have effect, but only to the extent that these obligations arise in circumstances
of genuine redundancy (that is, within the meaning of paragraph 513(4)(b) of the amended Act).
31. The proposed amendments would be taken to apply from the date of commencement of the
Work Choices Act (27 March 2006) - see item 61.
Senate page 60 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
Item 51 - Application of items 4 and 5
Item 53 - Application of items 8 and 9
32. Items 51 and 53 would provide that the amendments made to subsections 337(5) and 370(5)
only apply to a waiver under existing sections 338 and 371 where the waiver was made on or
after the day the amendments would commence.
Item 52 - Application of item 7
33. This item would provide that new subsection 347(2A) applies, and is taken always to have
applied, on and from the commencement of Schedule 1 to the Work Choices Act (27 March
2006).
Item 54 - Application of items 13 to 16
34. This item would provide that the amendments to subsections 482(1), 482(2), 482(3) and
483(1) apply to ballot orders made under section 462 of the Act from the date of commencement
of this item.
Item 55 - Transitional Provision- items 13 to 16
35. This item would only apply where three pre-conditions are met. First, the protected action
ballot was ordered prior to the commencement of the amendments in items 13 to 16l that would,
if enacted, deal with incomplete ballots. Secondly, the nominated ballot agent was the
Australian Electoral Commission (AEC). Thirdly, the AEC is satisfied that the relevant ballot
process is incomplete and will not be completed.
36. This amendment will apply to a small number of pre-commencement ballots ordered under
section 462 and will enable the Commonwealth to absorb 80 percent of the costs of such
incomplete ballots. The amendment would place incomplete pre-commencement ballots on the
same footing as completed pre-commencement ballots for the purposes of the Commonwealth
reimbursing the AEC for any costs incurred where the AEC is the nominated ballot agent. The
rights and obligations of the ballot applicant are unaffected by this amendment.
Item 56 - Application of items 25 and 26
This item provides that the amendments proposed by items 25 and 26 would have retrospective
application to the date the Work Choices Act commenced (27 March 2006), to ensure continuity
of a transferring employee's entitlements where those entitlements are derived from a transmitted
transitional award.
Item 57 - Application of items 24, 29 and 34 to 40
37. This item provides that the amendments proposed by items 24, 29 and 34 to 40 would have
retrospective application to the date of reform commencement (27 March 2006), to ensure that
employers that do not come within the definition of employer in subsection 6(1) of the Act
(excluded employers) are no longer bound by a section 170MX award if they have entered into a
State employment agreement since the reform commencement.
38. Subitem (2) would provide that the civil penalty provisions in Part 14 of the Act would only
apply prospectively, from the date of the commencement of the amendments. This is necessary
Senate page 61 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
to ensure that excluded employers that have sought to rely on a State employment
agreement cannot be prosecuted for inadvertent breaches of a section 170MX award.
39. Subitem (3) would provide a definition of reform commencement which means the
commencement of Schedule 1 to the Work Choices Act.
Item 58 - Application of items 31 and 33
40. This item provides that the amendments proposed by items 31 and 33 would have
retrospective application to the date Work Choices Act commenced (27 March 2006), to ensure
continuity of employee entitlements.
41. The civil remedy provisions in Division 7 of Part 7 of the Act would apply to enable
employees to seek remedial orders if the application of the Standard would deliver a higher
entitlement than the relevant NAPSA, including when that entitlement accrues because of the
retrospective operation of the amendments proposed by items 31 and 33.
42. The civil penalty provisions in Part 14 of the Act would only apply prospectively, from the
date of the commencement of the amendments. This is necessary to ensure that employers
affected by the retrospective application of the amendments are not penalised for relying on the
Act as it stood during the period from 27 March 2006 to the commencement of the proposed
technical amendments.
Item 59 - Application of items 41 and 45
43. This item provides that the amendments proposed by items 41 and 45 would have
retrospective application to the date the Work Choices Act commenced (27 March 2006), to
ensure that there are no gaps in entitlements.
44. The civil remedy provisions in Division 7 of Part 7 of the Act would apply to enable
employees to seek remedial orders if the application of the Standard would deliver a higher
entitlement than the relevant pre-reform instrument, including when that entitlement accrues
because of the retrospective operation of the amendments proposed by items 41 and 45.
45. The civil penalty provisions in Part 14 of the Act would only apply prospectively, from the
date of the commencement of the amendments. This is necessary to ensure that employers
affected by the retrospective application of the amendments are not penalised for relying on the
Act as it stood during the period from 27 March 2006 to the commencement of the proposed
technical amendments.
Item 60 - Application of items 46 and 47
46. Clause 44 of Part 3 of Schedule 8 provides that subject to Division 5 of the Schedule, a term
of a NAPSA (other than a preserved notional term) is unenforceable where the Standard also
makes provision for that `matter'.
47. Proposed item 60 would amend clause 44 to provide that where the Standard makes
provision for a matter in relation to an employee, then a term of a NAPSA that also deals with
the matter in relation to an employee is unenforceable.
Senate page 62 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
Notes on amendments
48. The effect of the amendment is to ensure that in order for a term of a NAPSA to be
unenforceable in relation to an employee, there must be a corresponding entitlement in the
Standard in relation to that employee.
49. For example, even though the Standard deals with the matter of bereavement leave, it
does not provide for bereavement leave in relation to a casual employee. Therefore, the
amendment would ensure that a term of a NAPSA that provides for a bereavement leave
entitlement in relation to a casual employee will continue to have effect because the Standard
does not deal with the matter of bereavement leave, in relation to that casual employee.
Item 61 - Application of item 48
50. This item provides that the amendments proposed by items 48 would have retrospective
application to the date Work Choices Act commenced (27 March 2006), to ensure continuity of
employee entitlements.
51. Subitem (2) would provide that the civil penalty provisions in Part 14 of the Act would only
apply prospectively, from the date of the commencement of the amendments. This is necessary
to ensure that employers affected by the retrospective application of the amendments are not
penalised for relying on the Act as it stood during the period from 27 March 2006 to the
commencement of the amendments proposed by items 46 and 47.
Item 62 - Application of items 49 and 50
52. Item 61 would provide that the proposed amendments made by items 49 and 50 of this
Schedule are taken to have applied on and from reform commencement - that is, 27 March 2006
(the date of commencement of Schedule 1 to the Work Choices Act).
53. The proposed amendments made by items 49 and 50 clarify some possible uncertainty about
the operation of Item 5A of Schedule 4 to the Work Choices Act - with the effect that small
business redundancy pay obligations that existed in awards before 26 March 2004 continue to
apply, but only in circumstances of genuine redundancy. As these amendments would give
effect to the original intention of the Work Choices Act ( see paragraphs 457 and 458 above)
they apply from reform commencement.
Senate page 63 Workplace Relations Legislation Amendment
(Independent Contractors) Bill 2006
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