Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Hansard source

I present a supplementary explanatory memorandum to the bill and I seek leave to move government amendments (1) to (18) on sheet AB231.

Leave granted.

I move government amendments (1) to (18) on sheet AB231:

(1) Title, page 1 (lines 1 and 2), omit the title, substitute:

A Bill for an Act to amend the law relating to workplace relations, and for related purposes

(2) Clause 2, page 2 (after table item 6), insert:

(3) Clause 2, page 2 (after table item 7), insert:

(4) Clause 2, page 2 (table item 10), omit "item 3", substitute "items 3 and 4".

(5) Clause 2, page 3 (after table item 17), insert:

(6) Schedule 3, item 6, page 17 (line 17), after "2011", insert ", but does not include a member of the Defence Force".

(7) Schedule 3, item 6, page 18 (line 26), before "The FWC", insert "(1)".

(8) Schedule 3, item 6, page 18 (after line 30), at the end of section 789FE, add:

(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve mattersthat relate to:

  (a) Australia's defence; or

  (b) Australia's national security; or

  (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

  (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

Note: For another power of the FWC to dismiss applications under section 789FC, see section 587.

(9) Schedule 3, item 6, page 19 (after line 36), at the end of Part 6-4B, add:

789FI This Part is not to prejudice Australia ' s defence, national security etc.

     Nothing in this Part requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to:

  (a) Australia's defence; or

  (b) Australia's national security; or

  (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

  (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

789FJ Declarations by the Chief of the Defence Force

(1) Without limiting section 789FI, the Chief of the Defence Force may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a specified activity.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

789FK Declarations by the Director -General of Security

(1) Without limiting section 789FI, the Director-General of Security may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director-General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

789FL Declarations by the Director -General of ASIS

(1) Without limiting section 789FI, the Director-General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director-General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

(10) Page 19 (after line 36), after Schedule 3, insert:

Schedule 3A—Conferences

Fair Work Act 2009

1 At the end of section 592

  Add:

(4) At a conference, the FWC may:

  (a) mediate or conciliate; or

  (b) make a recommendation or express an opinion.

(5) Subsection (4) does not limit what the FWC may do at a conference.

2 Subsection 595(5)

  Omit "any of the powers referred to in subsection (2) or (3)", substitute "the power referred to in subsection (3)".

(11) Page 28 (after line 29), after Schedule 4, insert:

Schedule 4A—Consent arbitration for general protections and unlawful termination

Part 1—General protections

Fair Work Act 2009

1 Section 12 (definition of general protections court application )

  Omit "370(2)", substitute "368(4)".

2 Subsection 361(1)

  Omit ", in proceedings arising from the application,".

3 Section 365 (heading)

  After "with a", insert "dismissal".

4 Sections 368, 369, 370 and 371

  Repeal the sections, substitute:

368 Dealing with a dismissal dispute (other than by arbitration)

(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.

(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

Note: For conferences, see section 592.

(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

  (a) the FWC must issue a certificate to that effect; and

  (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

369 Dealing with a dismissal dispute by arbitration

(1) This section applies if:

  (a) the FWC issues a certificate under paragraph 368(3)(a) in relation to the dispute; and

  (b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and

  (c) the notification:

     (i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and

     (ii) complies with any requirements prescribed by the procedural rules; and

  (d) sections 726, 728, 729, 730, 731 and 732 do not apply.

Note: Sections 726, 728, 729, 730, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 727).

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

  (a) an order for reinstatement of the person;

  (b) an order for the payment of compensation to the person;

  (c) an order for payment of an amount to the person for remuneration lost;

  (d) an order to maintain the continuity of the person's employment;

  (e) an order to maintain the period of the person's continuous service with the employer.

(3) A person to whom an order under subsection (2) applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).

370 Taking a dismissal dispute to court

     A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

  (a) both of the following apply:

     (i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

     (ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

  (b) the general protections court application includes an application for an interim injunction.

Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).

Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

5 Section 372 (heading)

  After "with a", insert "non-dismissal".

6 Subdivision C of Division 8 of Part 3 -1

  Repeal the Subdivision, substitute:

Subdivision C—Appeals and costs orders

375A Appeal rights

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 369(2) (which is about arbitration of a dismissal dispute) unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under subsection 369(2) can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

375B Costs orders against parties

(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:

  (a) an application for the FWC to deal with the dispute has been made under section 365; and

  (b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.

(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.

(3) This section does not limit the FWC's power to order costs under section 611.

376 Costs orders against lawyers and paid agents

(1) This section applies if:

  (a) an application for the FWC to deal with a dispute has been made under section 365 or 372; and

  (b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and

  (c) under section 596, the person is required to seek the FWC's permission to be represented by the representative.

(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:

  (a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or

  (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.

(3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 377.

(4) This section does not limit the FWC's power to order costs under section 611.

377 Applications for costs orders

     An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after the FWC finishes dealing with the dispute.

377A Schedule of costs

(1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order under section 611, 375B or 376 in relation to an application under section 365, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

(2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611, 375B or 376 in relation to an application under section 365, the FWC:

  (a) is not limited to the items of expenditure appearing in the schedule; but

  (b) if an item does appear in the schedule—must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

378 Contravening costs orders

     A person to whom an order for costs made under section 375B or 376 applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4-1).

7 Subsection 539(2) (at the end of the cell at table item 11, column 1)

  Add:

369(3)

8 Section 544 (note 1)

  Omit "subsections 371(2)", substitute "subparagraphs 370(a)(ii)".

9 Paragraph 601(5)(a)

  Omit "section 369", substitute "paragraph 368(3)(a)".

10 After paragraph 609(2)(e)

  Insert:

  (ea) the requirements for making a notification to the FWC;

11 Subparagraph 727(1)(b)(iii)

  Omit all the words after "under", substitute "paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful)".

12 After subsection 727(1)

  Insert:

  (1A) This section also applies if:

  (a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

  (b) the application has not:

     (i) been withdrawn by the person who made the application; or

     (ii) failed for want of jurisdiction; and

  (c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

  (d) a notification of the parties' agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

Part 2—Unlawful termination

Fair Work Act 2009

13 Section 12 (definition of unlawful termination court application )

  Omit "778(2)", substitute "776(4)".

14 Subsection 539(2) (at the end of the cell at table item 35, column 1)

  Add:

777(3)

15 Section 544 (note 1)

  Omit "779(2)", substitute "778(a)(ii)".

16 Subparagraph 730(1)(b)(iii)

  Omit all the words after "under", substitute "paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful)".

17 After subsection 730(1)

  Insert:

  (1A) This section also applies if:

  (a) an unlawful termination FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

  (b) the application has not:

     (i) been withdrawn by the person who made the application; or

     (ii) failed for want of jurisdiction; and

  (c) a certificate in relation to the dispute has been issued by the FWC under paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

  (d) a notification of the parties' agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 777(1)(b) and (c).

18 Paragraph 774(1)(a)

  Omit "60", substitute "21".

19 Sections 776, 777, 778, 779, 780 and 781

  Repeal the sections, substitute:

776 Dealing with a dispute (other than by arbitration)

(1) If an application is made under section 773, the FWC must deal with the dispute (other than by arbitration).

Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

Note: For conferences, see section 592.

(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

  (a) the FWC must issue a certificate to that effect; and

  (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 777, or an unlawful termination court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4) An unlawful termination court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of subsection 772(1).

777 Dealing with a dispute by arbitration

(1) This section applies if:

  (a) the FWC issues a certificate under paragraph 776(3)(a) in relation to the dispute; and

  (b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and

  (c) the notification:

     (i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and

     (ii) complies with any requirements prescribed by the procedural rules; and

  (d) sections 726, 727, 728, 729, 731 and 732 do not apply.

Note: Sections 726, 727, 728, 729, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 730).

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

  (a) an order for reinstatement of the employee;

  (b) an order for the payment of compensation to the employee;

  (c) an order for payment of an amount to the employee for remuneration lost;

  (d) an order to maintain the continuity of the employee's employment;

  (e) an order to maintain the period of the employee's continuous service with the employer.

(3) A person to whom an order under subsection (2) applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).

778 Taking a dispute to court

     A person who is entitled to apply under section 773 for the FWC to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless:

  (a) both of the following apply:

     (i) the FWC has issued a certificate under paragraph 776(3)(a) in relation to the dispute;

     (ii) the unlawful termination court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

  (b) the unlawful termination court application includes an application for an interim injunction.

Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 777(1)), an unlawful termination court application cannot be made in relation to the dispute (see sections 730 and 731).

Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

779 Appeal rights

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 777(2) (which is about arbitration of a dispute) unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under subsection 777(2) can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

779A Costs orders against parties

(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:

  (a) an application for the FWC to deal with the dispute has been made under section 773; and

  (b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.

(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 781.

(3) This section does not limit the FWC's power to order costs under section 611.

780 Costs orders against lawyers and paid agents

(1) This section applies if:

  (a) an application for the FWC to deal with a dispute has been made under section 773; and

  (b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and

  (c) under section 596, the person is required to seek the FWC's permission to be represented by the representative.

(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:

  (a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or

  (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.

(3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 781.

(4) This section does not limit the FWC's power to order costs under section 611.

781 Applications for costs orders

     An application for an order for costs in relation to an application under section 773 must be made within 14 days after the FWC finishes dealing with the dispute.

781A Schedule of costs

(1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order under section 611, 779A or 780 in relation to an application under section 773, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

(2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611, 779A or 780 in relation to an application under section 773, the FWC:

  (a) is not limited to the items of expenditure appearing in the schedule; but

  (b) if an item does appear in the schedule—must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

20 Section 782

  Omit "section 780", substitute "section 779A or 780".

21 Subsection 783(1)

  Omit ", in proceedings arising from the application,".

(12) Schedule 5, page 29 (line 1), omit "Functions of the", substitute "The".

(13) Schedule 5, page 29 (after line 14), at the end of the Schedule, add:

4 Paragraph 632(b)

  Omit "that provides for the office to be held by an FWC Member".

(14) Page 31 (after line 23), after Schedule 6, insert:

Schedule 6A—Registered organisations

Fair Work (Registered Organisations) Amendment Act 2012

1 Section 2 (table item 3)

Repeal the item, substitute:

2 After Part 1 of Schedule 1

  Insert:

Part 1A—Amendments commencing on 1 July 2013

Fair Work (Registered Organisations) Act 2009

39A At the end of Division 1 of Part 2 of Chapter 5

  Add:

142A Model rules for policies relating to expenditure

(1) The Minister may, by notice published in the Gazette, issue guidelines containing one or more sets of model rules dealing with the matters referred to in paragraph 141(1)(ca). An organisation or a branch of an organisation may adopt model rules in whole or in part, and with or without modification.

(2) A notice under subsection (1) is not a legislative instrument.

39B After Division 3 of Part 2 of Chapter 5

  Insert:

Division 3A—Rules relating to disclosure

148F Model rules relating to disclosure

(1) The Minister may, by notice published in the Gazette, issue guidelines containing one or more sets of model rules dealing with the matters referred to in sections 148A, 148B and 148C. An organisation or a branch of an organisation may adopt model rules in whole or in part, and with or without modification.

(2) A notice under subsection (1) is not a legislative instrument.

39C Transitional—model rules

(1) Sections 142A and 148F of the Fair Work (Registered Organisations) Act 2009, as inserted by this Schedule, apply, during the transition period, as if Part 2 of this Schedule had commenced at the same time as this item.

(2) In this item:

  transition period means the period:

  (a) beginning on 1 July 2013; and

  (b) ending on 31 December 2013.

3 Part 2 of Schedule 1 (heading)

  Repeal the heading, substitute:

Part 2—Amendments commencing on 1 January 2014

4 Item 56 of S

See this speech in context