Julia Gillard (Lalor, Australian Labor Party, Deputy Prime Minister) Share this | Hansard source

by leave—I present a supplementary explanatory memorandum to the bill and I move government amendments (1) to (110):

(1)    Clause 2, page 2 (at the end of the table), add:

9.  Schedule 23, items 1 and 2	Immediately after the commencement of Part 2-4 of the Fair Work Act 2009.
10. Schedule 23, items 3 to 6	Immediately after the commencement of Part 2-2 of the Fair Work Act 2009.
11.  Schedule 23, item 7	Immediately after the commencement of Part 2-3 of the Fair Work Act 2009.
12.  Schedule 23, item 8	Immediately after the commencement of Part 2-8 of the Fair Work Act 2009.
13.  Schedule 23, item 9	Immediately after the commencement of Division 1 of Part 2-9 of the Fair Work Act 2009.
14. Schedule 23, items 10 to 12	Immediately after the commencement of Part 3-3 of the Fair Work Act 2009.
15.  Schedule 23, items 13 to 21	Immediately after the commencement of Part 4-1 of the Fair Work Act 2009.
16.  Schedule 23, item 22	Immediately after the commencement of section 799 of the Fair Work Act 2009.

(2)    Schedule 2, item 1, page 5 (line 12), omit “and” (first occurring), substitute “to”.

(3)    Schedule 2, item 2, page 7 (after line 9), after the definition of single enterprise, insert:

State and Territory interaction rules: see subitem 5A(2) of Schedule 3.

(4)    Schedule 2, item 7, page 11 (line 7), omit “old”.

(5)    Schedule 2, item 11, page 14 (before line 4), before subitem (1), insert:

Conduct before repeal

(6)    Schedule 2, item 11, page 14 (after line 7), after subitem (1), insert:

Processes begun before repeal to vary or terminate WR Act instruments

(1A) If:

             (a)    a process to vary or terminate a WR Act instrument is begun under the WR Act before the WR Act repeal day; and

             (b)    the WR Act instrument becomes a transitional instrument because of the operation of Part 2 of Schedule 3;

the WR Act continues to apply, on and after the WR Act repeal day, for the purposes of completing the process.

Orders made before repeal

(7)    Schedule 2, item 11, page 14 (line 11), omit subitem (3), substitute:

Item subject to this Act

(3)    This item applies subject to this Act.

(8)    Schedule 2, item 12, page 14 (line 21), after “application”, insert “, other than an interim application,”.

(9)    Schedule 2, item 12, page 14 (line 30), after “(however described)”, insert “, other than an interim process,”.

(10)  Schedule 2, item 12, page 15 (after line 10), at the end of the item, add:

(4)    In this item:

interim application means an application that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.

interim process means a process (however described) that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.

(11)  Schedule 2, item 13, page 15 (after line 14), after paragraph (a), insert:

           (aa)    provide that subitem 11(1A) does not apply in relation to specified processes;

(12)  Schedule 3, page 21 (after line 3), after item 5, insert:

5A  Transitional instruments continue to be subject to the same State and Territory interaction rules

(1)    The same State and Territory interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

(2)    State and Territory interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

             (a)    an instrument prevails over, or excludes, a law of a State or Territory; or

             (b)    an instrument has effect subject to a law of a State or Territory.

Note:                Most of the State and Territory interaction rules were in the WR Act.

(13)  Schedule 3, item 24, page 32 (line 28), before “The”, insert “(1)”.

(14)  Schedule 3, item 24, page 33 (after line 13), at the end of the item, add:

(2)    If:

             (a)    a transitional instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but

             (b)    the terms do not include the requirements referred to in subsection (2) of that section;

the instrument is taken to include terms that include the requirements.

(15)  Schedule 3, page 34 (after line 36), after item 28, insert:

28A  Terms of modern awards about outworker conditions continue to apply

(1)    This item applies if, at a particular time:

             (a)    an agreement-based transitional instrument applies to an employee; and

             (b)    outworker terms (within the meaning of the FW Act) in a modern award would, but for the transitional instrument, apply to the employee.

(2)    Despite item 28 and despite any terms of the agreement-based transitional instrument that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:

             (a)    the employee;

             (b)    the employer;

             (c)    each employee organisation to which the modern award applies.

(3)    To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.

(16)  Schedule 3, page 36 (after line 32), at the end of Division 2 of Part 5, add:

31A  Designated outworker terms of award-based transitional instrument continue to apply

(1)    This item applies if, at a particular time:

             (a)    an enterprise agreement or workplace determination (under the FW Act) applies to an employer; and

             (b)    an award-based transitional instrument covers the employer (whether the transitional instrument covers the employer in the employer’s capacity as an employer or an outworker entity); and

             (c)    the transitional instrument includes one or more designated outworker terms.

(2)    Despite item 31, the designated outworker terms of the award-based transitional instrument apply at that time to the following:

             (a)    the employer;

             (b)    each employee who is both:

                   (i)    a person to whom the enterprise agreement or workplace determination applies; and

                  (ii)    a person who is covered by the transitional instrument;

             (c)    each employee organisation that is covered by the transitional instrument.

(3)    To avoid doubt:

             (a)    award-based transitional instruments are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and

             (b)    designated outworker terms of an award-based transitional instrument can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and

             (c)    to the extent to which designated outworker terms of an award-based transitional instrument apply to an employer, an employee or an employee organisation because of subitem (2), the transitional instrument applies to the employer, employee or organisation.

(17) Schedule 4, page 46 (after line 29), at the end of Part 2, add:

4A  References to workplace agreements include references to enterprise agreements

(1)    The provisions of the WR Act that continue to apply because of this Part have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.

(2)    Subitem (1) has effect unless the context otherwise requires and subject to the regulations.

(18)  Schedule 5, item 2, page 53 (after line 16), at the end of the item, add:

(5)    In continuing and completing the Part 10A award modernisation process, the Australian Industrial Relations Commission must have regard to:

             (a)    the state of the national economy; and

             (b)    the likely effects on the national economy of any modern award that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation.

(19)  Schedule 5, item 6, page 56 (after line 3), after subitem (2), insert:

(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.

(20)  Schedule 6, item 2, page 63 (lines 9 to 16), omit subitem (2), substitute:

        (2)    An enterprise award-based instrument is an award-based transitional instrument to which subitem (2A) or (2B) applies.

     (2A)    This subitem applies to an award-based transitional instrument that is an award, if the award covers employees in:

             (a)    a single enterprise (or a part of a single enterprise) only; or

             (b)    one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:

                   (i)    franchisees of the same franchisor; or

                  (ii)    related bodies corporate of the same franchisor; or

                 (iii)    any combination of the above.

      (2B)    This subitem applies to an award-based transitional instrument that is a notional agreement preserving State awards, if the notional agreement includes terms and conditions from a State award that covered employees in:

             (a)    a single enterprise (or a part of a single enterprise) only; or

             (b)    one or more enterprises, if the employers all carried on similar business activities under the same franchise and were:

                   (i)    franchisees of the same franchisor; or

                  (ii)    related bodies corporate of the same franchisor; or

                 (iii)    any combination of the above.

(21)  Schedule 6, item 2, page 63 (line 27), omit “subitem (2)”, substitute “subitem (2B)”.

(22)  Schedule 6, item 4, page 64 (lines 30 and 31), omit “FW (safety net provisions) commencement day”, substitute “WR Act repeal day”.

(23)  Schedule 6, item 4, page 65 (lines 7 to 11), omit paragraphs (5)(b) and (c), substitute:

             (b)    whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;

             (c)    the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);

(24)  Schedule 6, item 4, page 65 (after line 26), at the end of subitem (5), add:

Note:                A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.

(25)  Schedule 6, item 4, page 65 (before line 27), before subitem (6), insert:

(5A) If FWA makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.

Note:                For when a modern enterprise award is in operation, see item 17.

(26)  Schedule 6, item 5, page 65 (lines 32 and 33), omit “FW (safety net provisions) commencement day”, substitute “WR Act repeal day”.

(27)  Schedule 6, item 5, page 66 (lines 10 to 14), omit paragraphs (4)(b) and (c), substitute:

             (b)    whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;

             (c)    the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);

(28)  Schedule 6, item 5, page 66 (after line 29), at the end of subitem (4), add:

Note:                A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.

(29)  Schedule 6, item 5, page 66 (line 31), after “the instrument”, insert “, being a day that is not earlier than the FW (safety net provisions) commencement day”.

(30)  Schedule 6, item 6, page 67 (line 3), after “Note”, insert “1”.

(31)  Schedule 6, item 6, page 67 (after line 4), at the end of the item, add:

Note 2:             See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).

(32)  Schedule 6, item 7, page 67 (after line 8), at the end of subitem (1), add:

Note:                See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).

(33)  Schedule 6, item 9, page 69 (after line 35), after subitem (3), insert:

(3A) Despite subitem (3), if, before the FW (safety net provisions) commencement day, FWA makes a decision not to make a modern enterprise award to replace an enterprise instrument, the decision must not come into operation before the FW (safety net provisions) commencement day.

(34)  Schedule 6, page 73 (before line 2), before item 17, insert:

16A  How the FW Act applies to the modernisation process before the FW (safety net provisions) commencement day

For the purposes of making a modern enterprise award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced:

             (a)    Part 2-2 (which deals with the National Employment Standards);

             (b)    section 134 (which deals with the modern awards objective);

             (c)    Division 3 of Part 2-3 (which deals with terms of modern awards);

             (d)    section 284 (which deals with the minimum wages objective);

             (e)    any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).

(35)  Schedule 7, item 13, page 92 (line 9), after “an award”, insert “or a notional agreement preserving State awards”.

(36)  Schedule 7, item 13, page 92 (line 11), omit “outworker terms as defined in section 564 of the WR Act”, substitute “terms that are (or that would be, if the terms were in an award) outworker terms as defined in section 564 of the WR Act”.

(37)  Schedule 7, item 22, page 98 (line 17), before “Subsection”, insert “(1)”.

(38)  Schedule 7, item 22, page 98 (after line 22), at the end of the item, add:

(2)    However, subitem (1) does not apply in relation to a workplace determination if:

             (a)    the collective agreement-based transitional instrument has ceased to operate; and

             (b)    FWA considers that it is appropriate in the circumstances to make the workplace determination.

(3)    In making a decision for the purposes of paragraph (2)(b) of this item, FWA must take into account the objects set out in section 241 of the FW Act.

(39)  Schedule 8, item 4, page 105 (lines 8 to 13), omit paragraph (1)(a), substitute:

             (a)    the Workplace Authority Director must not consider whether the agreement passes the no-disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 3, unless:

                   (i)    the agreement is lodged before the end of the period (the cut-off period) of 14 days referred to in subsection 342(1) or (2) of that Act; and

                  (ii)    for a union collective agreement—the agreement was approved before the WR Act repeal day; and

(40)  Schedule 8, item 4, page 105 (lines 20 to 22), omit the note, substitute:

Note:                The general effect of this provision is that unlodged collective agreements (other than union collective agreements) must be lodged within 14 days of being made in order to come into operation. Unlodged union collective agreements must have been approved before the WR Act repeal day and be lodged within 14 days of that approval in order to come into operation. However, late lodgment will not give rise to a civil remedy.

(41)  Schedule 8, item 5, page 106 (lines 24 to 26), omit paragraph (3)(a), substitute:

             (a)    the period of 37 days beginning on whichever of the following days is later:

                   (i)    the WR Act repeal day;

                  (ii)    the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement; or

(42)  Schedule 8, item 8, page 107 (lines 31 to 36), omit paragraph (1)(a), substitute:

             (a)    the Workplace Authority Director must not consider whether the varied agreement passes the no-disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 7, unless:

                   (i)    the variation is lodged before the end of the period (the cut-off period) of 14 days referred to in subsection 375(1) of that Act; and

                  (ii)    for a variation of a union collective agreement or a union greenfields agreement—the variation was approved before the WR Act repeal day; and

(43)  Schedule 8, item 8, page 108 (lines 4 to 6), omit the note, substitute:

Note:                The general effect of this provision is that unlodged variations of collective agreements must be lodged within 14 days of being approved in order to come into operation. Unlodged variations of union collective agreements and union greenfields agreements must also have been approved before the WR Act repeal day. However, late lodgment will not give rise to a civil remedy.

(44)  Schedule 8, item 9, page 109 (lines 1 to 3), omit paragraph (2)(a), substitute:

             (a)    the period of 37 days beginning on whichever of the following days is later:

                   (i)    the WR Act repeal day;

                  (ii)    the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement as varied; or

(45)  Schedule 8, item 15, page 113 (lines 13 to 15), omit paragraph (3)(a), substitute:

             (a)    the period of 37 days beginning on whichever of the following days is later:

                   (i)    the WR Act repeal day;

                  (ii)    the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or

(46)  Schedule 8, item 17, page 115 (lines 1 to 3), omit paragraph (2)(a), substitute:

             (a)    the period of 37 days beginning on whichever of the following days is later:

                   (i)    the WR Act repeal day;

                  (ii)    the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the variation; or

(47)  Schedule 8, page 124 (after line 3), after item 28, insert:

28A  Variations to pass no-disadvantage test after WR Act repeal day

Despite any other provision of Division 5A of Part 8 of the WR Act, as that Division continues to apply because of this Schedule in relation to:

             (a)    a workplace agreement; or

             (b)    a variation of such an agreement under Division 8 of that Part;

only one variation for the purposes of passing the no-disadvantage test of the agreement or variation may be lodged with the Workplace Authority Director on or after the WR Act repeal day.

(48) Schedule 9, page 132 (after line 6), after item 5, insert:

5A  References to workplace agreements include references to enterprise agreements

(1)    The provisions of the WR Act that continue to apply because of item 5 have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.

(2)    Subitem (1) has effect unless the context otherwise requires and subject to the regulations.

(49)  Schedule 9, item 13, page 137 (after line 3), at the end of the item, add:

Note:                The AFPCS interaction rules may affect the base rate of pay payable to an employee (see item 22 of Schedule 3).

(50)  Schedule 11, item 6, page 147 (line 17), after “16”, insert “to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”.

(51)  Schedule 11, item 

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