Bill returned from the Senate with amendments.

Ordered that the amendments be considered immediately.

Senate’s amendments—

Agreements

(1)    Clause 193, page 182 (after line 15), at the end of the clause, add:

FWA may assume employee better off overall in certain circumstances

        (7)    For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

(2)    Clause 207, page 196 (lines 5 to 10), omit subclause (5).

(3)    Clause 211, page 198 (line 6), omit “and”.

(4)    Clause 211, page 198 (lines 7 to 9), omit paragraph (1)(c), substitute:

unless FWA is satisfied that there are serious public interest grounds for not approving the variation.

(5)    Clause 211, page 198 (line 26), omit “those provisions”, substitute “sections 180 and 188”.

(6)    Clause 211, page 199 (line 3), omit “and subparagraph 188(a)(ii)”.

(7)    Clause 211, page 199 (after line 4), after paragraph (3)(h), insert:

           (ha)    references in paragraphs 186(2)(c) and (d) to the agreement were references to the enterprise agreement as proposed to be varied; and

           (hb)    subparagraph 188(a)(ii) were omitted; and

(8)    Page 202 (after line 5), after clause 217, insert:

217A  FWA may deal with certain disputes about variations

        (1)    This section applies if a variation of an enterprise agreement is proposed.

        (2)    An employer or employee organisation covered by the enterprise agreement or an affected employee for the variation may apply to FWA for FWA to deal with a dispute about the proposed variation if the employer and the affected employees are unable to resolve the dispute.

        (3)    FWA must not arbitrate (however described) the dispute.

(9)    Page 230 (after line 20), after clause 256, insert:

256A  How employees, employers and employer organisations are to be described

        (1)    This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by an enterprise agreement or other instrument.

        (2)    The employees may be specified by class or by name.

        (3)    The employers and employee organisations must be specified by name.

        (4)    Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to one or more of the following:

             (a)    a particular industry or part of an industry;

             (b)    a particular kind of work;

             (c)    a particular type of employment;

             (d)    a particular classification, job level or grade.

Application of this Act

(10)  Clause 27, page 45 (before line 33), before subclause (1), insert:

     (1A)    Section 26 does not apply to any of the following laws:

             (a)    the Anti-Discrimination Act 1977 of New South Wales;

             (b)    the Equal Opportunity Act 1995 of Victoria;

             (c)    the Anti-Discrimination Act 1991 of Queensland;

             (d)    the Equal Opportunity Act 1984 of Western Australia;

             (e)    the Equal Opportunity Act 1984 of South Australia;

              (f)    the Anti-Discrimination Act 1998 of Tasmania;

             (g)    the Discrimination Act 1991 of the Australian Capital Territory;

             (h)    the Anti-Discrimination Act of the Northern Territory.

(11)  Clause 27, page 45 (line 34) to page 46 (line 6), omit paragraph (1)(a).

(12)  Clause 27, page 47 (lines 11 to 15), omit paragraph (2)(l), substitute:

              (l)    regulation of any of the following:

                   (i)    employee associations;

                  (ii)    employer associations;

                 (iii)    members of employee associations or of employer associations;

(13)  Clause 29, page 48 (lines 5 to 13), omit subclause (2), substitute:

        (2)    Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:

             (a)    any law covered by subsection 27(1A);

             (b)    any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).

(14)  Clause 34, page 52 (line 12), at the end of paragraph (3)(a), add “and”.

(15)  Clause 34, page 52 (after line 13), after subclause (3), insert:

     (3A)    For the purposes of extending this Act in accordance with subsection (3):

             (a)    any reference in a provision of this Act to an employer is taken to include a reference to:

                   (i)    an Australian employer; and

                  (ii)    an employer of an Australian-based employee; and

             (b)    any reference in a provision of this Act to an employee is taken to include a reference to:

                   (i)    an employee of an Australian employer; and

                  (ii)    an Australian-based employee.

(16)  Page 53 (after line 16), after clause 35, insert:

35A  Regulations excluding application of Act

        (1)    Regulations made for the purposes of section 32 or subsection 33(4) or 34(4) may exclude the application of the whole of this Act in relation to all or a part of an area referred to in section 32 or subsection 33(4) or 34(4) (as the case may be).

        (2)    If subsection (1) applies, this Act has effect as if it did not apply in relation to that area or that part of that area.

Bargaining

(17)  Clause 174, page 165 (after line 12), at the end of the clause, add:

Regulations may prescribe additional content and form requirements etc.

        (6)    The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.

(18)  Clause 176, page 166 (line 28), after “agreement”, insert “, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2)”.

(19)  Clause 176, page 167 (line 21), at the end of subclause (2), add:

       ; or (f)    the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).

(20)  Page 169 (after line 8), after clause 178, insert:

178A  Revocation of appointment of bargaining representatives etc.

        (1)    The appointment of a bargaining representative for an enterprise agreement may be revoked by written instrument.

        (2)    If a person would, apart from this subsection, be a bargaining representative of an employee for an enterprise agreement because of the operation of paragraph 176(1)(b) or subsection 176(2) (which deal with employee organisations), the employee may, by written instrument, revoke the person’s status as the employee’s bargaining representative for the agreement.

        (3)    A copy of an instrument under subsection (1) or (2):

             (a)    for an instrument made by an employee who will be covered by the agreement—must be given to the employee’s employer; and

             (b)    for an instrument made by an employer that will be covered by a proposed enterprise agreement—must be given to the bargaining representative and, on request, to a bargaining representative of an employee who will be covered by the agreement.

        (4)    The regulations may prescribe matters relating to the content or form of the instrument of revocation, or the manner in which the copy of the instrument may be given.

(21)  Clause 179, page 169 (lines 9 to 19), omit the clause.

(22)  Clause 186, page 176 (lines 3 to 8), omit subclause (3), substitute:

        (3)    FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.

     (3A)    If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

(23)  Clause 228, page 207 (after line 19), at the end of subclause (1), add:

            ; (f)    recognising and bargaining with the other bargaining representatives for the agreement.

(24)  Clause 229, page 209 (lines 6 to 10), omit subclause (5), substitute:

        (5)    FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.

(25)  Clause 237, page 215 (lines 8 to 11), omit paragraph (2)(c), substitute:

             (c)    that the group of employees who will be covered by the agreement was fairly chosen; and

(26)  Clause 237, page 215 (after line 16), after subclause (3), insert:

     (3A)    If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

(27)  Clause 238, page 216 (lines 23 to 26), omit paragraph (4)(c), substitute:

             (c)    that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and

(28)  Clause 238, page 216 (after line 27), after subclause (4), insert:

Matters which FWA must take into account

     (4A)    If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

(29)  Clause 539, page 430 (table item 5), omit the table item.

Commencement

(30)  Clause 2, page 2 (table), omit the table, substitute:

Definition of small business employer

(31)  Clause 23, page 41 (line 31), omit “15 employees”, substitute “20 employees”.

(32)  Clause 23, page 42 (line 5), at the end of subclause (2), add:

   ; and (c)    the number is to be calculated in terms of full-time equivalent positions, not as an individual head count of employees; and

             (d)    the regulations must prescribe a method for the calculation of full-time equivalent positions for the purposes of this section.

(33)  Clause 121, page 122 (line 5), before “Section”, insert “(1)”.

(34)  Clause 121, page 122 (after line 11), at the end of the clause, add:

        (2)    Subsection 23(1) has effect in relation to this section as if it were modified by omitting “20 employees” and substituting “15 employees”.

        (3)    Subsection 23(2) has effect in relation to this section as if it were modified by omitting paragraphs (c) and (d).

Description of employees

(35)  Page 251 (after line 26), at the end of Division 7, add:

281A  How employees, employers and employer organisations are to be described

        (1)    This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by a workplace determination or other instrument.

        (2)    The employees may be specified by class or by name.

        (3)    The employers and employee organisations must be specified by name.

        (4)    Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to one or more of the following:

             (a)    a particular industry or part of an industry;

             (b)    a particular kind of work;

             (c)    a particular type of employment;

             (d)    a particular classification, job level or grade.

Fair Work Information Statement; functions of the Fair Work Ombudsman

(36)  Clause 124, page 126 (lines 3 to 17), omit the clause, substitute:

124  Fair Work Ombudsman to prepare and publish Fair Work Information Statement

        (1)    The Fair Work Ombudsman must prepare a Fair Work Information Statement. The Fair Work Ombudsman must publish the Statement in the Gazette.

Note:   If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the Statement in the Gazette.

        (2)    The Statement must contain information about the following:

             (a)    the National Employment Standards;

             (b)    modern awards;

             (c)    agreement-making under this Act;

             (d)    the right to freedom of association;

             (e)    the role of FWA and the Fair Work Ombudsman;

              (f)    termination of employment;

             (g)    individual flexibility arrangements;

             (h)    right of entry (including the protection of personal information by privacy laws).

        (3)    The Fair Work Information Statement is not a legislative instrument.

        (4)    The regulations may prescribe other matters relating to the content or form of the Statement, or the manner in which employers may give the Statement to employees.

(37)  Clause 576, page 461 (lines 8 and 9), omit “, and undertaking activities to promote public understanding of,”.

(38)  Clause 682, page 517 (line 8), before “The”, insert “(1)”.

(39)  Clause 682, page 517 (line 10), after “harmonious”, insert “, productive”.

(40)  Clause 682, page 517 (line 13), after “organisations”, insert “and producing best practice guides to workplace relations or workplace practices”.

(41)  Clause 682, page 517 (line 31), after “Note”, insert “1”.

(42)  Clause 682, page 517 (after line 32), at the end of the clause, add:

Note 2:  In performing functions under paragraph (a), the Fair Work Ombudsman might, for example, produce a best practice guide to achieving productivity through bargaining.

        (2)    The Fair Work Ombudsman must consult with FWA in producing guidance material that relates to the functions of FWA.

Fair Work Ombudsman; Fair Work Australia

(43)  Clause 12, page 20 (lines 10 and 11), omit “who is also a police, stipendiary or special magistrate”.

(44)  Clause 539, page 428 (lines 17 to 19), omit “if an undertaking given by the person in relation to the contravention has not been withdrawn (see subsection 715(4))”, substitute “in certain cases where an undertaking or compliance notice has been given (see subsections 715(4) and 716(4A))”.

(45)  Clause 544, page 441 (line 15), after “Note”, insert “1”.

(46)  Clause 544, page 441 (after line 17), at the end of the clause, add:

Note 2: For time limits on orders relating to underpayments, see subsection 545(5).

(47)  Clause 545, page 442 (after line 24), at the end of the clause, add:

Time limit for orders in relation to underpayments

        (5)    A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.

(48)  Clause 573, page 458 (lines 21 and 22), omit “Division 7 deals with FWA’s seal, reviews and reports, and disclosing information obtained by FWA.”, substitute “Division 7 deals with FWA’s seal. It also deals with other powers and functions of the President and the General Manager (including in relation to annual reports, reports on making enterprise agreements, arrangements with certain courts, and disclosing information obtained by FWA).”.

(49)  Page 459 (after line 2), after clause 574, insert:

574A  Schedule 1

                 Schedule 1 has effect.

(50)  Clause 576, page 461 (line 12), after “section 650”, insert “or 653A”.

(51)  Clause 576, page 461 (after line 12), after paragraph (2)(c), insert:

           (ca)    mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court of Australia Act 1976 or section 34 of the Federal Magistrates Act 1999, have been referred by the Fair Work Division of the Federal Court or Federal Magistrates Court to FWA for mediation;

(52)  Clause 596, page 470 (after line 6), at the end of subclause (2), add:

Note:   Circumstances in which FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a)        where a person is from a non-English speaking background or has difficulty reading or writing;

(b)        where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(53)  Clause 596, page 470 (lines 14 and 15), omit paragraph (4)(b), substitute:

             (b)    is an employee or officer of:

                   (i)    an organisation; or

                  (ii)    an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or

                 (iii)    a peak council; or

                 (iv)    a bargaining representative;

                      that is representing the person; or

(54)  Clause 625, page 485 (after line 12), after paragraph (2)(d), insert:

           (da)    publishing the results of a protected action ballot under section 457;

(55)  Clause 625, page 485 (after line 21), at the end of subclause (2), add:

            ; (i)    any function or power prescribed by the regulations.

(56)  Heading to Division 7, page 501 (lines 2 and 3), omit the heading, substitute:

Division 7—Seals and additional powers and functions of the President and the General Manager

(57)  Heading to clause 653, page 502 (line 5), omit the heading, substitute “Reports about making enterprise agreements, individual flexibility arrangements etc.”.

(58)  Clause 653, page 502 (lines 6 to 11), omit subclause (1), substitute:

Review and research

        (1)    The General Manager must:

             (a)    review the developments, in Australia, in making enterprise agreements; and

             (b)    conduct research into the extent to which individual flexibility arrangements under modern awards and enterprise agreements are being agreed to, and the content of those arrangements; and

             (c)    conduct research into the operati

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