Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Hansard source

I present a supplementary explanatory memorandum to the bill and move government amendments (1) to (150) as circulated together.

FAIR WORK LEGISLATION AMENDMENT (SECURE JOBS, BETTER PAY) BILL 2022

SUPPLEMENTARY EXPLANATORY MEMORANDUM

Amendments to be Moved on Behalf of the Government

(Circulated by the authority of the Minister for Employment and Workplace Relations,

the Hon Tony Burke MP)

AMENDMENTS T O THE FAIR WORK LEGISLATION AMENDMENT (SECURE JOBS, BETTER PAY) BILL 2022

OUTLINE

These amendments amend the Fair Work Act 2009 (FW Act) and related legislation in Parts 1, 4, 6, 8, 10, 11, 12, 13, 14, 16, 18, 19, 20, 21, 23, 26 and 27 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Bill). In addition, this amendment adds Parts 23A and 25A to the Bill.

The amendments:

Fair Work (Registered Organisations) Act 2009

FINANCIAL IMPACT STATEMENT

The financial impact of the National Construction Industry Forum is yet to be determined in consultation with the Department of Finance, and any other associated departments, and once agreed will be included in the relevant appropriation bills. The remaining amendments have nil financial impact.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Amendments to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

1. A detailed statement of compatibility with human rights was prepared for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (the Bill).

2. The amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of amendments

3. The amendments to the Bill that are relevant to human rights are outlined below.

Prohibiting sexual harassment in connection with work

4. Amendment 10 would ensure that State and Territory laws dealing with sexual harassment can operate concurrently with the new provisions prohibiting sexual harassment in connection with work. This includes State and Territory anti-discrimination, workplace relations, occupational health and safety, and criminal laws.

5. Amendments 11-14 would ensure that the Commonwealth can be held vicariously liable for contraventions of the new prohibition on sexual harassment by defence members. The Commonwealth would only be liable for contraventions in connection with the person's service as a defence member where the Commonwealth could not prove that it took all reasonable steps to prevent the contravention.

Enterprise agreement pre-approval requirements

6. The amendments would address concerns that the proposed removal of enterprise pre-approval requirements and protections in subsections 180(5) and (6) of the FW Act may negatively impact employees, specifically those who are young, from a culturally and linguistically diverse (CALD) backgrounds or who did not have a bargaining representative for the enterprise agreement.

7. The amendments would retain these safeguards and require the FWC to be satisfied, as part of determining that an enterprise agreement has been genuinely agreed to by employees, that the employer has taken all reasonable steps to ensure that the terms of a proposed enterprise agreement or proposed variation of an agreement, and their effect, are explained to relevant employees in an appropriate manner, taking into account their particular circumstances and needs.

Human rights implications

8. The definition of 'human rights' in the Human Rights (Parliamentary Scrutiny) Act 2011 relates to the core seven United Nations human rights treaties. Amendments to the Bill engages the following rights:

Right to an effective remedy and right to a fair hearing

9. Article 2(3) of the ICCPR and Article 2 of the CEDAW provides the right to an effective remedy for persons who have suffered human rights violations by Australian authorities, as well as persons who have suffered discrimination perpetrated by Australian authorities. The United Nations Human Rights Committee has stated that the right to an effective remedy encompasses an obligation to bring to justice perpetrators of human rights abuses, including discrimination, and also to provide appropriate reparation to the persons who have suffered human rights abuses. Reparation can involve measures including compensation, restitution, rehabilitation, public apologies, guarantees of non-repetition and changes in relevant laws and practices.

10. Article 14(1) of the ICCPR provides that, in the determination of rights and obligations in a suit at law, all persons have a right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

Prohibiting sexual harassment in connection with work amendments

11. Amendment 10 would promote the right to an effective remedy by ensuring that State or Territory laws that deal with sexual harassment can operate concurrently with Part 3-5A. This would ensure that an aggrieved person could choose the jurisdiction in which they seek a remedy in relation to workplace sexual harassment. The amendments also provide a way to resolve any inconsistencies in orders made under both a State or Territory law and under the FW Act. Existing provisions in the Bill would prevent multiple penalties being imposed on a party in relation to the same conduct under both the FW Act and State or Territory anti-discrimination law.

12. Amendments 11-14 would promote the right to an effective remedy by enabling an aggrieved person to seek a remedy from the Commonwealth in relation to a contravention of the new prohibition on sexual harassment by a defence member, if that contravention is in connection with the person's service as a defence member. This ensures a remedy is available, even where a remedy could not be obtained from the perpetrator themselves, and is consistent with the vicarious liability provisions relating to other employers and principals in the Bill, and in the Sex Discrimination Act 1984 (SD Act).

13. This amendment would maintain the proportionality in the existing vicarious liability provisions in the Bill by limiting the ability of an aggrieved person to seek a remedy from the Commonwealth if the Commonwealth took all reasonable steps to prevent the sexual harassment from occurring.

Criminal process rights

14. Articles 14 and 15 of the ICCPR protect criminal process rights:

Prohibiting sexual harassment in connection with work amendments

15. The amendments to the proposed prohibition of sexual harassment in connection with work do not directly engage rights in relation to criminal process, but they do provide for civil remedies.

16. Amendments 11-14 would amend the vicarious liability provision in the Bill to enable an aggrieved person to seek a remedy from the Commonwealth in relation to a contravention of the new prohibition on sexual harassment by a defence member, if that contravention was in connection with the person's service as a defence member. This is necessary to ensure that the Commonwealth would be jointly responsible for compensation in these situations, in circumstances where it has not taken all reasonable steps to prevent sexual harassment. The amendments are proportionate as it does not apply if the Commonwealth proves that it took all reasonable steps to prevent the contravention.

17. The amendments would ensure consistency with the SD Act, which provides for the vicarious liability of the Commonwealth for sexual harassment perpetrated by defence members, and includes the reasonable steps exemption.

18. Amendment 10 would preserve the concurrent operation of state and territory laws that deal with sexual harassment. This will not expose respondents to a risk of double punishment. As noted in the provision, generally section 734B prevents multiple applications or complaints being brought under the FW Act and state and territory anti-discrimination laws. In addition, Division 4 of Part 4-1 provides rules governing the interaction between civil and criminal proceedings, and civil double jeopardy.

Right to work and rights in work

19. Article 6 of the ICESCR requires the state parties to the Covenant to recognise the right to work and to take appropriate steps to safeguard this right. The United Nations Committee on Economic, Social and Cultural Rights has started that the right to work in Article 6(1) encompasses the need to provide the worker with just and favourable conditions of work.

20. The United Nations Committee on Economic Social and Cultural Rights in General Comment 18 has also stated that the right to work includes:

the right not to be deprived of work unfairly. This definition underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work, while emphasizing the importance of work for personal development as well as for social and economic inclusion.

21. There can also be no discrimination in access to and maintenance of employment on the grounds enumerated in Article 2(2) of the ICESCR.

22. Article 7 of the ICESCR requires the state parties to the Covenant to recognise the right of everyone to the enjoyment of just and favourable working conditions.

Enterprise agreement pre-approval requirements

23. A detailed Statement of Compatibility with Human Rights was prepared for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (the Bill). In addition to the human rights identified in the original Statement, the amendments would further support the right to work and to just and favourable conditions of work by retaining an important employee safeguard which requires an employer to explain the terms of a proposed enterprise agreement, and their effect to relevant employees in a manner that is appropriate to their needs and circumstances.

24. The amendments would positively engage and be compatible with the right to just and favourable conditions of work by ensuring that employees who are young, from CALD backgrounds or who did not have a bargaining representative during the bargaining process have an opportunity to understand the proposed terms and conditions that would cover their employment, so that they make an informed decision as to whether to vote for the proposed enterprise agreement.

Right to equality and non-discrimination

25. Both the ICCPR (Article 2(1)) and the ICESCR (Article 2(2)) requires state parties to the Covenants to guarantee that the rights set out in these covenants are exercised without discrimination of any kind, including on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

26. Article 26 of the ICCPR further provides that state parties must ensure that all persons are equal before the law and are entitled, without any discrimination, to the equal protection of the law.

Enterprise agreement pre-approval requirements

27. The amendments would positively engage and be compatible with the right to equality and non-discrimination by ensuring that employees who have a particular attribute (for example, young employees, or employees from a CALD background) are provided tailored and appropriate explanations about a proposed enterprise agreement that may cover their employment, so that they may cast an informed vote either for or against the proposed agreement. The amendments would ensure that these employees are provided an equal opportunity to understand a proposed enterprise agreement, in the same way as employees who may not have those particular attributes.

Conclusion

28. The Bill is compatible with human rights because it promotes human rights, including civil, political, social, economic and labour rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Minister for Employment and Workplace Rela tions, the Hon Tony Burke MP

NOTES ON AMENDMENTS

In these notes on amendments, the following abbreviations are used:

Expert panels

Amendment 1: Clause 2, page 3 (table item 11)

1. This amendment would change the commencement of Part 6 from the day after Royal Assent to a day to be fixed by Proclamation or, if the provisions do not commence within the period of three months beginning on the day of Royal Assent, they commence on the day after the end of that period.

Fixed term contracts

Amendment 2: Clause 2, page 3 (table item 16)

2. This amendment would provide that the fixed term contract provisions in Part 10 of Schedule 1 commence on the earlier of:

Amendment 15: Schedule 1, item 441, page 120 (lines 27 to 33)

3. This amendment would insert new proposed paragraph 333E(5)(d), which would prohibit the use of a third or more fixed term contract where an employee has previously been engaged on two consecutive contracts for the same or similar work. For the prohibition to apply, there must be substantial continuity between all three or more of the contracts. This amendment clarifies that the prohibition applies when the employment relationship exceeds two contracts, even if it does not also exceed two years in duration.

Amendment 16: Schedule 1, item 441, page 123 (after line 11), after paragraph 33H(1)(b)

4. This amendment would insert a further anti-avoidance provision at new paragraph 333H(1)(ba). This provision would prohibit an employer from ending one employee's employment in accordance with the terms of their fixed term contract, and engaging another employee to do the same or similar work. In order for this provision to apply to an employer's decision to terminate an employee's employment, the employer must have made the decision so as to avoid the operation of section 333E.

Amendment 130: Schedule 1, item 660, page 223 (line 17)

Amendment 131: Schedule 1, item 660, page 223 (line 19)

Amendment 132: Schedule 1, item 660, page 223 (line 24)

5. These amendments are consequential to the amendment to the commencement provision for Part 10 of Schedule 1 set out in amendment 2.

Objects of the Fair Work Act

Amendment 9A: Schedule 1, item 346, page 80 (lines 4 and 5)

Amendment 9B: Schedule 1, item 347, page 80 (line 10)

Amendment 9C: Schedule 1, item 349, page 80 (line 19)

6. These amendments would replace references to the term 'gender equity' with the words 'gender equality' in the objects of the Act, the modern awards objective, and the minimum wages objective.

7. The intention of the references to 'gender equality' in each of these provisions is to adopt language more consistent with the Convention on the Elimination of All Forms of Discrimination against Women and to reflect the policy objective of both formal and substantive gender equality.

Agreement of bargaining representatives

Amendment 3: Clause 2, page 4 (cell at table item 20, column 2)

8. Due to the interaction between Part 14 (Enterprise agreement approval) and Part 21 (Single interest employer authorisations) of Schedule 1 to the Bill, this amendment would have the effect of aligning commencement of those Parts. Part 21 commences at the same time as Part 20.

Amendment 30: Schedule 1, page 157 (before line 8), before item 507

9. This amendment would insert a new section 180A, which applies to a proposed multi-enterprise agreement (i.e. a proposed single interest agreement, supported bargaining agreement or cooperative workplace agreement).

10. New section 180A provides that before requesting employees to approve such an agreement by voting for it, the employer must obtain written agreement to the making of the request from each bargaining representative for the agreement that is an employee organisation.

11. The requirement would not apply to a proposed single-enterprise agreement.

12. Currently, whether an employer's failure to notify or obtain the agreement of bargaining representatives prior to putting an enterprise agreement to a vote amounts to a breach of the good faith bargaining requirements in section 228 of the FW Act depends on the particular circumstances (see, e.g., CFMMEU v Tahmoor Coal Pty Ltd [2010] FWAFB 3510).

Amendment 31: Schedule 1, item 509, page 158 (after line 15), after subsection 188(2)

13. This amendment would insert new subsection 188(2A), which provides that the FWC cannot be satisfied that a multi-enterprise agreement has been genuinely agreed to by the relevant employees unless it is satisfied that the employer complied with new section 180A, i.e., unless the employer obtained the written agreement of bargaining representatives that are employee organisations to put the agreement to a vote.

14. Satisfaction that a non-greenfields enterprise agreement has been genuinely agreed to is a condition of the FWC approving the agreement (see paragraph 186(2)(a)).

Amendment 33: Schedule 1, item 509, page 158 (line 36), after "subsection"

Amendment 36: Schedule 1, item 509, page 159 (before line 6), before paragraph 188(5)(b)

15. Amendments 33 and 36 would amend new subsection 188(5) to provide that in determining whether an enterprise agreement has been genuinely agreed to, the FWC's discretion to disregard minor procedural or technical errors (if employees were not likely to have been disadvantaged by the errors) applies to the requirement in new section 180A.

Amendment 37: Schedule 1, page 160 (after line 14), after item 511

Amendment 40: Schedule 1, item 516, page 160 (lines 31 to 32)

16. Amendment 37 inserts new section 207A, which would introduce a similar requirement for employers to obtain written agreement from relevant employee organisations prior to requesting employees to approve a proposed variation of a multi-enterprise agreement under Subdivision A of Division 7 of the FW Act.

17. New section 207A provides that before an employer requests (under subsection 208(1)) that employees approve a variation of a multi-enterprise agreement by voting for it, the employer must obtain written agreement to the making of the request from each employee organisation covered by the enterprise agreement.

18. Amendment 40 is a consequential amendment and ensures that compliance with new section 207A is a condition of the FWC being satisfied that the variation has been genuinely agreed to by the relevant employees (subject to the FWC's discretion to disregard minor procedural or technical errors if employees were not likely to have been disadvantaged by the errors).

Amendment 70: Schedule 1, item 597, page 191 (line 34)

Amendment 90: Schedule 1, item 629, page 206 (line 7)

Amendment 125: Schedule 1, item 649, page 224 (line 17)

19. These amendments would have the effect that the new requirement to obtain written agreement from relevant employee organisations to put a variation of a multi-enterprise agreement to a vote of employees does not apply to the following variations:

20. Applications to make the relevant variations must be made jointly by the employer and their affected employees.

Better off overall test

Amendment 4—Clause 2, page 4 (table item 22)

21. This amendment would provide that Part 16 of Schedule 1 to the Bill commences on a day to be fixed by Proclamation or at the latest, the day after a period of 6 months beginning on the day of Royal Assent.

Amendment 42: Schedule 1, item 525, page 163 (line 14)

Amendment 47: Schedule 1, item 532, page 166 (line 20)

Amendment 51: Schedule 1, item 534, page 168 (line 29)

22. These amendments would provide that where the FWC makes an amendment to an enterprise agreement (or an amendment to a variation of an enterprise agreement under Subdivision A of Division 7 of the FW Act) to address a concern about the BOOT, the amendment must be "necessary" to address the concern.

Amendment 43: Schedule 1, item 525, page 163 (line 16)

23. This amendment would provide that if the FWC intends to specify an amendment to an enterprise agreement that is necessary to address a concern about the BOOT, then it "must", rather than "may", seek the views of the relevant employer or employers, employees and bargaining representatives for the agreement.

Amendment 44: Schedule 1, item 528, page 164 (line 17)

Amendment 45: Schedule 1, item 528, page 164 (after line 25)

24. Amendments 44 and 45 are technical amendments which would clarify that the BOOT will only apply to "prospective award covered employees" if the enterprise agreement is a greenfields agreement.

Amendment 46: Schedule 1, item 531, page 166 (after line 6), after paragraph 211(4A)(a)

25. This is a technical amendment, which would reflect that when the BOOT is applied to a variation of an enterprise agreement under Subdivision A of Division 7 of the FW Act, there are no longer any bargaining representatives for the agreement. The effect of this amendment is that the FWC must give consideration to any views relating to whether the agreement passes the BOOT that have been expressed by the relevant employer or employers, employees, and any employee organisations covered by the agreement. The FWC must also give primary consideration to any common view that has been expressed by the relevant employer or employers and any employee organisations that are covered by the agreement.

Amendment 48: Schedule 1, item 532, page 166 (line 22)

26. This amendment would provide that if the FWC intends to specify an amendment to a variation of an enterprise agreement that is necessary to address a concern about the BOOT, then the FWC "must", rather than "may", seek the views of the relevant employer or employers and employee organisations covered by the agreement.

Amendment 49: Schedule 1, item 534, page 167 (line 17) to page 168 (line 6)

27. This amendment to the Bill would substitute a new section 227A, concerning applications for the FWC to reconsider whether an agreement passes the BOOT.

28. To address the possible scenario of an enterprise agreement passing the BOOT in circumstances where it provided globally more favourable terms and conditions for 'original employees' and less favourable terms and conditions for 'new employees' (that would not pass the BOOT if prospective employees were considered as a cohort at this time) who are doing the same work, new subsection 227A(3) would provide an additional basis for accessing the BOOT reconsideration process. BOOT reconsideration would also be available to 'new employees' in circumstances where the terms of the enterprise agreement applying to them are not the same as those applying to the 'original employees' if they engage in the same patterns or kinds of work, or types of employment.

29. The effect of new subsection 227A(4) is that while BOOT reconsideration is based on an earlier 'test time' (either the time of the original application for approval of the enterprise agreement or the time of a subsequent application to vary the agreement), the relevant employees must still be 'award covered employees' for the agreement at the time of the application for reconsideration.

30. While the FWC must give consideration to the views of the parties, and primary consideration to a common view in certain circumstances, the FWC remains required to undertake its own independent assessment in applying the BOOT pursuant to section 193A.

Amendment 50: Schedule 1, item 534, page 168 (lines 12 to 22), omit subsection 227B(2)

31. This amendment would substitute new subsections 227B(2) and 227B(2A), concerning FWC reconsideration of whether an enterprise agreement passes the BOOT.

32. New paragraph 227B(2)(a) is intended to remove any doubt that employees who are 'award covered employees' for the agreement at the time of the application for reconsideration should also be considered award covered employees, under paragraphs 193(4)(a) and (b), for the purpose of the reconsideration.

33. The effect of paragraph 227B(2)(b) and subsection 227B(2A) is that the 'test time' for a reconsideration of whether an enterprise agreement passes the BOOT is the time the original application for approval of the agreement was made, or—if the FWC has approved one or more variations under section 211—the time the application for approval of the most recent of those variations was made.

34. Paragraph 227B(2)(c) would clarify that BOOT reconsideration is not available in respect of a greenfields agreement.

35. Paragraphs 227B(2)(d)-(f) are technical amendments to reflect that at the stage of a reconsideration, there are no longer bargaining representatives for the agreement.

Amendment 52: Schedule 1, item 534, page 169 (line 26)

36. This amendment is a technical correction.

Amendment 133: Schedule 1, item 660, page 235 (line 6)

37. This amendment is consequential on amendment 4 (commencement of Part 16 of the Bill).

Industrial action

Amendment 5: Clause 2, page 4 (table items 25 and 26)

38. This amendment would amend Clause 2 of the Bill as a consequence of Amendment 59 omitting Division 1 from the Bill.

Amendment 59: Schedule 1, Part 19, Division 1, page 179 (line 2) to page 180 (line 5)

39. This amendment would omit Division 1 from Part 19 of the Bill. Division 1 provided that protected industrial action could only occur within a three-month period starting from the date the results were declared for a successful PAB. With the omission of Division 1, protected industrial action by employees will be authorised by a PAB if the action commences within 30 days from the declaration of the results of the ballot, noting that the FWC may extend the 30-day period by up to 30 days in some circumstances.

Amendment 60: Schedule 1, item 576, page 183 (line 29) to page 184 (line 4)

40. This amendment would amend Item 576 and insert two new Items into the Bill to provide that the Electoral Commissioner is a person who may apply to the courts for orders in relation to contraventions of civil penalty provisions, rather than referring to the Australian Electoral Commission. Table items 18, 19 and 20 of the table in subsection 539(2) relate to the conduct of PABs.

Amendment 61: Schedule 1, items 577 and 578, page 184 (lines 7 to 16)

41. This amendment would make three changes to the Bill. The first change is to amend the heading of Division 3 as a consequence of the further amendments made by this amendment. The second change is a technical change to omit Items 577 and 578 from the Bill. These Items are not necessary as amendments to achieve the same outcome are at Items 625 and 626 in Part 20. The Items in Part 20 would preclude protected industrial action being taken in relation to a cooperative workplace agreement. Part 20 commences at the same time as Part 23, which defines 'a cooperative workplace agreement' at Item 642. Parts 20 and 23 need to commence before Part 19 as 'cooperative workplace agreement' would need to be defined for Part 3-3 of the FW Act before Part 19 commenced.

42. New section 437A would require the FWC to issue one PAB order in relation to the employees for each employer when dealing with bargaining for a multi-enterprise agreement. This means that any protected industrial action arising out of the ballot would be conducted on an employer-by-employer basis. The amendments would not apply to related employers, as they continue to make single-enterprise agreements (see item 82, which inserts new item 627B in the Bill).

Amendment 62: Schedule 1, item 579, page 184 (lines 24 to 26)

43. This amendment is a consequential amendment following the classification of both 'single interest employer agreements' and 'supported bargaining agreements' by other amendments as 'multi-enterprise agreements'. Item 579 would then provide that if the proposed enterprise agreement is a multi-enterprise agreement, employees are required to provide a minimum of 120 hours' notice before industrial action commences. See amendment 63 for multi-enterprise agreements that are greenfields agreements or co-operative workplace agreements.

Amendment 63: Schedule 1, page 184 (after line 26), after item 579

44. While cooperative workplace agreements are multi-enterprise agreements, to avoid any confusion, a legislative note is inserted to point to new section 413(2) as amended by Item 625 of the Bill which provides that to be protected industrial action, the industrial action must not be related to a proposed enterprise agreement that is a greenfields agreement or a co-operative workplace agreement.

Amendment 64: Schedule 1, item 581, page 185 (lines 9 to 12)

45. This amendment would clarify the operation of Item 581 of the Bill. The amendment would leave no doubt that if an employee bargaining representative contravened an order to attend a conciliation conference held during the PAB period, protected industrial action would not be available to the employees under that PAB.

Amendment 65: Schedule 1, items 582 and 583, page 185 (lines 13 to 24)

46. Similarly to amendment 64, this amendment would clarify the operation of Item 583 of the Bill. The amendment would leave no doubt that if an employer, or any employer bargaining representative, contravened an order to attend a conciliation conference during the PAB period, protected industrial action would not be available to the employer under that PAB.

Amendment 134: Schedule 1, item 660, clause 72, page 236 (lines 9 to 13)

47. This amendment is consequential to amendment 59 which would omit Division 1 of Part 19 from the Bill. There is no longer a need for this application provision.

Amendment 135: Schedule 1, item 660, page 236, line 18

48. This is a technical amendment relating to the structure of the Bill to refer to 'subclause' rather than 'subsection'.

Amendment 136: Schedule 1, item 660, clause 72, page 236 (lines 23 to 27)

49. This amendment is an application provision consequential to Amendment 60 which would enable the Electoral Commissioner to seek orders for contraventions of civil penalty provisions relating to the conduct of a PAB. This amendment provides that the Electoral Commissioner may seek orders from the courts from the commencement of Division 2 of Part 19.

Amendment 137: Schedule 1, item 660, clause 72, page 236, line 28

50. This amendment is a technical correction to an application provision to provide that from commencement all the requirements of Division 3 of Part 19 of Schedule 1 to the Bill apply. That is, to be protected industrial action, industrial action must not relate to a proposed cooperative workplace agreement or a greenfields agreement. In addition, an application for a PAB cannot be made if the agreement is a cooperative workplace agreement.

Excluded work

Amendment 6: Clause 2, page 5 (after table item 30)

51. Amendment 6 would insert commencement information for new Part 23A, which would be inserted by amendment 128.

Amendment 68: Schedule 1, item 597, page 191 (lines 1 to 3)

Amendment 73: Schedule 1, item 597, page 194 (lines 25 to 27)

Amendment 75: Schedule 1, item 610, page 196 (lines 20 to 25)

Amendment 76: Schedule 1, item 611, page 197 (lines 23 to 26)

Amendment 77: Schedule 1, item 611, page 198 (lines 9 and 10)

Amendment 78: Schedule 1, item 611, page 198 (line 23) to page 199 (line 2)

Amendment 79: Schedule 1, item 614, page 199 (lines 7 to 20)

Amendment 81: Schedule 1, item 617, page 199 (line 25) to page 200 (line 3)

52. Item 644 of the Bill would insert new section 178C which will be replaced by the amendments. New section 178C would permit the FWC, in certain circumstances, to make an order that has the effect of excluding a person who has a relevant record of repeatedly not complying with the FW Act from being a bargaining representative for a proposed enterprise agreement.

53. Amendment 117 would omit items 643 to 646 in favour of a scheme precluding multi-employer agreements from covering employees in relation to the performance of certain types of excluded work. Consequential to Amendment 117, the following amendments would facilitate the new scheme relating to excluded work and reflect the intention that where work is excluded it will not be possible to:

54. New subsection 216AB(2), inserted by item 597, would prohibit the FWC from approving a variation of a supported bargaining agreement to add an employer and their employees if the employer is an excluded person under new section 178C. Amendment 68 would omit and substitute a new subsection 216AB(2) providing that the FWC must not approve the variation if, as a result of the variation, the agreement would cover employees in relation to excluded work.

55. New paragraph 216BA(3)(a), inserted by item 597, would provide that the FWC must not make a variation of a supported bargaining agreement to add an employer and their employee without consent if the employee organisation that applied for the variation under section 216B is excluded for the purposes of the agreement by an order under section 178C. Amendment 73 would omit and substitute a new paragraph 216BA(3)(a) providing that the FWC must not make the variation if, as a result of the variation, the agreement would cover employees in relation to excluded work.

56. New subsection 242(1A), inserted by item 610, would prevent an employee organisation applying for a supported bargaining authorisation if it is excluded for the purposes of the agreement by an order made under new section 178C. Amendment 75 would omit item 610. This amendment is consequential on the shift from excluding persons to exclusion based on the type of work performed by employees.

57. Item 611 would insert new sections 243 and 243A. Section 243 would provide the criteria which the FWC must consider in determining whether to make a supported bargaining authorisation. One such criterion is that the FWC is satisfied that at least some of the employees who will be covered by the agreement are represented by an employee organisation, disregarding any employee organisation excluded for the purposes of the agreement by an order under section 178C. Amendment 76 would omit the requirement that the FWC must disregard any employee organisation excluded for the purposes of the agreement by an order under section 178C.

58. Amendment 77 would omit the heading to new section 243A and substitute a new heading, 'Restrictions on making supported bargaining authorisations'. This amendment is necessary as the new regime would exclude agreements on that basis that they cover employees performing certain types of excluded work, rather than excluding certain individuals from being a bargaining representative by an order under section 178C.

59. New subsections 243A(4) and 243A(5) would provide that the FWC must not make a supported bargaining authorisation specifying an employer who is excluded under new section 178C and must vary an authorisation to remove any such employer. Amendment 78 would omit both subsections and substitute a new subsection 243A(4) providing that the FWC must not make a supported bargaining authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to excluded work.

60. New subsection 244(4), substituted by item 614, would provide that a person excluded by an order under section 178C cannot apply for a variation of a supported bargaining authorisation. Amendment 79 would omit and substitute a new item 614 that would provide that if an application is made for a variation of a supported bargaining authorisation to add an employer, the FWC must vary the authorisation to add the employer if satisfied it is in the public interest, taking into account specified matters, but must not vary the authorisation if, as a result of the variation, the proposed multi-enterprise agreement would cover employees in relation to excluded work.

61. New section 245A, inserted by item 617, would require the FWC to revoke a supported bargaining authorisation if the effect of one or more orders under section 178C is that none of the employees covered by the proposed supported bargaining agreement are represented by an employee organisation. Amendment 81 would omit item 617 and is consequential on the shift from excluding persons to exclusion based on the type of work performed by employees.

Amendment 87: Schedule 1, item 629, page 205 (lines 16 to 22)

Amendment 100: Schedule 1, page 209 (after line 24), after item 635

Amendment 102: Schedule 1, item 637, page 210 (lines 17 to 19)

Amendment 104: Schedule 1, page 212 (before line 18), before item 640

Amendment 105: Schedule 1, item 640, page 212 (line 18) to page 213 (line 19)

62. New subsection 216DC(4), inserted by item 629, would prevent the FWC from approving a variation of a single interest employer agreement to extend coverage to a new employer and its affected employees if the employer or employee organisation that made the application is excluded for the purposes of the agreement by an order under new section 178C. Amendment 87 would omit subsection 216DC(4) and substitute new subsections 216DC(4) and (5). These new subsections would provide that the FWC must not approve the variation if the agreement is a greenfields agreement that covers employees in relation to general building and construction work or as a result of the variation, the agreement would cover employees in relation to general building and construction work. It is intended that the limitation preventing the FWC from approving the variation if, as a result of the variation, the agreement would cover employees in relation to general building and construction work would apply in relation to greenfields agreements.

63. Amendment 100 would insert new section 249A providing that the FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to excluded work.

64. A note under new subsection 251(1) would indicate that a person is not a bargaining representative for the purposes of a variation of a single interest employer authorisation if they are excluded for the purposes of that agreement by an order under new section 178C. Amendment EW12 would omit the note and is a consequential amendment.

65. Amendment 104 would insert a new item 639A, adding a new section 251A to provide that the FWC must not vary a single interest employer authorisation if, as a result of the variation, the proposed enterprise agreement to which the authorisation relates would cover employees in relation to excluded work.

66. Item 640 would insert new section 252A into Division 10 of Part 2-4 of the FW Act in order to set out the consequences for a single interest employer authorisation of an order by the FWC excluding a person for the purposes of a proposed enterprise agreement under new section 178C. Amendment 105 would omit item 640 and is a consequential amendment.

Amendment 118: Schedule 1, items 643 to 646, page 218 (line 9) to page 221 (line 13)

67. Item 643 would introduce an exception to section 176 such that a person who is excluded by an order under new section 178C cannot be a bargaining representative for a proposed enterprise agreement that is not a greenfields agreement.

68. Item 644 would insert a new section 178C into the FW Act to enable the FWC to make orders which effectively ban a person from coverage by an enterprise agreement if the FWC is satisfied of specified matters.

69. Item 645 would introduce a new subsection 183(3) which would preclude a person who is subject to an exclusion order under new section 178C from being covered by the agreement.

70. Item 646 would insert new section 183A providing that, in circumstances where an enterprise agreement is made and expressed to cover a person that is subject to an exclusion order under new section 178C, the enterprise agreement must be varied so that it is not expressed to cover the excluded person before an application for approval under section 185 can be made.

71. Amendment 118 would omit items 643 to 646. The provisions specifying excluded work are primarily specified in amendment 128.

Amendment 120: Schedule 1, item 647, page 221 (lines 22 to 24)

72. Section 186 of the FW Act sets out the requirements of which the FWC must be satisfied before it can approve an enterprise agreement. Item 647 would introduce a new subsection 186(2A) to require that the FWC would need to be satisfied that at least some of the employees to be covered by a cooperative workplace agreement that is not a greenfields agreement were represented by an employee organisation in relation to bargaining for the agreement. This would not include any employee organisations subject to an exclusion order under new section 178C. Amendment 120 is a consequential amendment and would omit the second sentence of subsection 186(2A) requiring that the FWC disregard any employee organisations subject to an exclusion order under new section 178C.

Amendment 121: Schedule 1, item 648, page 221 (lines 25 to 31)

73. Item 648 would repeal and substitute subsection 187(3) to expand the operation of subsection 187(3) to require that the FWC is satisfied that the notice requirements pursuant to new section 183A and section 184 have been met before it can approve the agreement. New subsection 183A, which would be inserted by item 646, requires a bargaining representative vary an agreement if it is expressed to cover a person excluded by an order under new section 178C. Amendment 121 is a consequential amendment and would omit item 648.

Amendment 123: Schedule 1, item 649, page 223 (lines 31 to 33)

74. Item 649 would insert a new Subdivision AC into Division 7 of Part 2-4 of the FW Act to allow an employer and their employees who are not covered by a cooperative workplace agreement to jointly apply for a variation of that cooperative workplace agreement. New subsection 216CB(2) would provide that the FWC must not approve the variation if the employer is excluded for the purposes of the agreement by an order under section 178C. Amendment 123 would omit and substitute a new subsections 216CB(2), providing that the FWC must not approve the variation if the agreement is a greenfields agreement that covers employees in relation to excluded work or, as a result of the variation, the agreement would cover employees in relation to excluded work.

75. The practical effect of this amendment would be that the FWC cannot approve a variation of a cooperative workplace agreement to add an employer and their employees if the variation would cause the agreement to cover employees in relation to excluded work. This is the case even where the agreement is a greenfields agreement. While the intention is to allow the FWC to approve multi-enterprise agreements that are greenfields agreements that will cover employees in relation to the excluded work, it is not intended to allow those agreements to be varied to add employers and employees.

Amendment 128: Schedule 1, page 225 (after line 30), after Part 23

76. Amendment 128 would insert new Part 23A dealing with excluded work.

77. Item 651A would amend section 12 by inserting signpost definitions for "applicable time", defined by reference to subsection 23B(2), and "general building and construction work", defined by reference to subsection 23B(1). In this document, the term 'excluded work' is used interchangeably with the defined term "general building and construction work" to aid comprehension.

78. Item 651B would insert a new section 23B, setting out the meaning of "general building and construction work" and "applicable time".

79. New subsection 23B(1) would define "general building and construction work" as work done onsite by an employee of an employer that is in the industry of general building and construction within the meaning of paragraph 4.3(a) of the Building and Construction General Onsite Award 2020 as in force at the applicable time. Subparagraph 23(B)(1)(b) would provide for a number of exclusions by reference to modern awards in force at the applicable time.

80. New subsection 23B(2) would define "applicable time" as the start of the day before the section commences.

81. While existing provisions of the FW Act refer to the "building and construction industry", for example subsection 123(3) and paragraphs 534(1)(e) and 789(1)(e), the expression "general building and construction work" used in new Part 23A would not be intended to have the same meaning as these existing provisions.

82. The Department of Employment and Workplace Relations would publish or arrange for a relevant portfolio agency to publish the relevant clauses of the Building and Construction General Onsite Award 2020 as at the applicable time to assist relevant persons to understand and comply with relevant provisions. As at 5 November 2022, it was also possible to search the FWC's website for historical versions of awards.

83. Item 651C is a technical amendment to the note below subsection 172(3) and would omit the reference to "Note" and substitute it with "Note 1".

84. Item 651D would insert a new note 2 below subsection 172(3) providing that the FWC must not approve a multi-enterprise agreement that is not a greenfields agreement if the agreement would cover employees in relation to general building and construction work and refers to subsection 186(2B).

85. Item 651E would insert a new subsection 186(2B) providing that, when considering approval of an enterprise agreement, if the agreement is a multi-enterprise agreement that is not a greenfields agreement, the FWC must be satisfied that the agreement does not cover employees in relation to general building and construction work.

86. Item 651F would insert a new paragraph 211(2)(aa) providing that in an application for approval of a variation of an enterprise agreement, the FWC must take into account subsection 211(3A) if the agreement is a multi-enterprise agreement.

87. New subsection 211(3A) is inserted by item 651G and would provide that subsection 186(2B) has effect as if the requirement in that subsection that the agreement must not cover employees in relation to general building and construction work were a requirement that the agreement as proposed to be varied must not cover employees in relation to such work.

Amendment 143: Schedule 1, item 660, page 239 (lines 1 to 7)

88. Amendment 143 would omit new clause 79. New clause 79 refers to section 252A, which would be inserted by item 640. This amendment would be necessary because item 640 would be omitted by amendment 105.

Amendment 144: Schedule 1, item 660, page 239 (lines 10 to 15)

89. Amendment 144 would omit new clause 80. New clause 80 would allow the FWC to consider, in the 18-month period before an application for an exclusion order under section 178C, any court findings that the relevant person has contravened a civil remedy provision of the FW Act or committed an offence against the FW Act, whether a finding was made before, or after, the commencement of the section. This amendment is necessary because item 644, which would insert new section 178C, would be omitted by amendment 118.

Amendment 146: Schedule 1, item 660, page 239 (after line 26), after Division 17

90. Amendment 146 would insert a new Division 17A providing that new subsection 186(2B) applies if the agreement or variation is made after the commencement of Part 23A.

National Construction Industry Forum

Amendment 7: Clause 2, page 5 (after table item 32)

91. This amendment would provide that new Part 25A—Establishment of the National Construction Industry Forum would commence on 1 July 2023.

Amendment 129: Schedule 1, page 228 (after line 26), after Part 25

92. This amendment would insert new 'Part 25A—Establishment of the National Construction Industry Forum' into the Bill. New Part 25A would amend the FW Act by inserting a new 'Part 6-4D—The National Construction Industry Forum' into Chapter 6 and making consequential amendments to section 12 (definitions).

93. Item 659A of new Part 25A would amend section 12 of the FW Act to insert definitions of 'Industry Minister' and 'Infrastructure Minister'. These amendments are consequential to the amendments made by item 659B.

94. Item 659B would insert a new Part 6-4D into the FW Act to establish the Forum as a statutory advisory body chaired by the Minister.

95. The function of the Forum, contained in new section 789GZD, would give the Forum a broad remit to provide advice to the Government on matters relating to work in the building and construction industry that are either raised by Government or agreed by the members. New subsection 789GZD(2) would provide a non-exhaustive list of matters that the Forum may provide advice on.

96. The membership of the Forum would be governed by new section 789GZE, which would provide that the Minister, the Industry Minister (Minister administering the Australian Jobs Act 2013) and the Infrastructure Minister (Minister administering the Infrastructure Australia Act 2008) are members of the Forum, along with the members appointed by the Minister.

97. New subsection 789GZE(2) would require the Minister to appoint one or more members who have experience representing employees in the building and construction industry, and an equal number of members who have experience representing employers in the building and construction industry, including at least one member who has experience representing contractors in the building and construction industry. This is to ensure equal representation by employee and employer/contractor representatives on the Forum.

98. New subsection 789GZE(3) would give the Minister a broad discretion to also appoint other persons as members of the Forum, which might include relevant statutory appointees, representatives of community groups (e.g. disability or women's representative groups) or other persons with experience relevant to the functions of the Forum.

99. Appointments to the Forum would be on a part-time basis and for an initial period of up to three years (section 789GZF). A note explains that a member would be eligible for reappointment at the end of their term.

100. None of the members of the Forum would be entitled to receive any additional payments or allowances in respect of their membership of the forum, with the exception that a member who is not a Minister or a member of the Parliament would be entitled to receive travel allowance to attend meetings at the rate prescribed by the regulations (new section 789GZM). New subsection 789GZM(3) would make it clear that section 789GZM does not affect any entitlements of a Minister or a member of the Parliament under the Parliamentary Business Resources Act 2017.

101. Members would be required to disclose material personal interests related to matters being considered by the Forum and must not participate in any part of a meeting during which the matter is dealt with (new section 789GZP).

102. Appointed members could resign by giving the Chair a written resignation (new section 789GZN) and could have their appointment terminated by the Minister on the grounds of misbehaviour, incapacity, bankruptcy etc., loss of position or qualification that formed the basis of the reason for their appointment, failure to comply with confidentiality or interest disclosure obligations or absence from three consecutive meetings without the approval of the Chair (new section 789GZQ).

103. New section 789GZG would provide that the Minister is the Chair of the Forum. However, if the Minister is unable to preside at a meeting, or considers it appropriate to do so for any other reason, the Minister may nominate another Minister to preside at that meeting and the relevant Minister would be permitted to do so.

104. The Chair would be required by new section 789GZH to convene at least two meetings of the Forum per calendar year, once in the first six months, and once in the second six months, with the timing of meetings to be determined by the Chair in consultation with the members. New subsection 789GZH(4) would make it clear that the procedure to be followed at Forum meetings is to be determined by the Chair in consultation with the members.

105. New section 789GZK would provide that if any member of the Forum is unable to attend a meeting, they would be permitted to nominate a person to attend in their place and, if the Chair agrees, that person may attend the meeting as a substitute member. The substitute member would have all the rights and responsibilities of a member at, and in respect of, the meeting, including disclosure of interest and confidentiality obligations.

106. After consulting with the other members of the Forum, the Chair would be permitted to invite a person, body or organisation that is not a member to participate in a particular meeting and could terminate that invitation at any time. An invited participant would be entitled to receive travel allowance as if the person was a member. However, the participation of a person in a meeting does not make that person a member (new section 789GZL).

107. All members, substitute members and invited participants would be subject to an obligation to keep views expressed during meetings confidential, but this would not prevent members from reporting to the persons, bodies or organisations they represent or from making announcements the members agree are in the public interest (new section 789GZJ).

Functions under the RO Act

Amendment 8: Schedule 1, item 5, page 7 (line 12)

Amendment 9: Schedule 1, item 6, page 8 (lines 15 to 24)

108. These amendments would amend item 6 of the Bill to omit proposed new section 329B of the FW Act, which would have empowered the Minister to give directions of a general nature to the General Manager in relation to the performance of their functions under the RO Act.

109. Removing this power would acknowledge the independence of the General Manager in their capacity as the regulator of registered organisations.

110. The amendments would also consequentially amend item 5 of the Bill to remove the reference to Ministerial directions to the General Manager that would have been inserted into the simplified outline to Part 1 of Chapter 11 of the RO Act.

Prohibiting sexual harassment in connec tion with work

Amendment 10: Schedule 1, item 393, page 96 (after line 25), after section 527C

111. This amendment would insert clause 527CA into new Part 3-5A of the FW Act. Part 3-5A would be inserted by Part 8 of Schedule 1 to the Bill and would prohibit sexual harassment in connection with work.

112. Clause 527CA is intended to preserve the concurrent operation of State and Territory laws dealing with sexual harassment and addresses potential interaction issues that may arise because of section 109 of the Constitution.

113. Section 109 of the Constitution renders inoperative a State law to the extent that it is inconsistent with a Commonwealth law. If the Commonwealth law is interpreted as operating to the exclusion of a State law, the State law will be interpreted as inconsistent with the Commonwealth law. While section 109 of the Constitution does not apply to Territory laws, similar principles apply in relation to the inconsistency of Territory laws with Commonwealth laws.

114. Clause 527CA is intended to be used in interpreting the operation and effect of new Part 3-5A. It would indicate Parliament's intention that State and Territory laws dealing with sexual harassment can operate concurrently with Part 3-5A. This includes State and Territory anti-discrimination laws, workplace relations laws, occupational health and safety laws, and criminal laws.

115. Subclause 527CA(1) would provide that Part 3-5A does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with the Part.

116. Subclauses 527CA(2) and (3) would provide examples of State and Territory laws that could operate concurrently with Part 3-5A, without limiting the general rule in subclause 527CA(1).

117. Subclause 527CA(2) would clarify that Part 3-5A would not exclude or limit the concurrent operation of a State or Territory law that makes an act or omission an offence, or subject to a civil penalty, where that act or omission (or any similar act or omission) would also constitute a contravention of Part 3-5A. For example, this would enable the concurrent operation of prohibitions on workplace sexual harassment in State or Territory anti-discrimination law or State or Territory laws criminalising sexual assault.

118. Subclause 527CA(3) would clarify that Part 3-5A does not exclude or limit the concurrent operation of a State or Territory law that allows an application to be made to a person, court or body for an order, or any other direction (however described), to prevent sexual harassment, or to deal with a dispute about sexual harassment. For example, this would preserve the concurrent operation of State or Territory laws that enable a tribunal to issue a stop sexual harassment order.

119. It would be irrelevant whether sexual harassment has a different meaning for the purposes of the State or Territory law to the meaning used in the FW Act, or whether the State or Territory law describes the conduct as sexual harassment. For example, State or Territory laws that deal with sexual harassment would be preserved, even if they use a different definition of sexual harassment to the definition that applies for the purposes of the FW Act. State and Territory laws would also be preserved even if they do not specifically apply to sexual harassment. For example, if sexual harassment also constitutes bullying, then a State or Territory law allowing orders to be made to prevent bullying could operate despite Part 3-5A.

120. A new legislative note would alert the reader that new section 734B, which would be inserted by Part 8 of Schedule 1 to the Bill, would generally prevent multiple applications or complaints under both the FW Act and State and Territory anti-discrimination laws in relation to the same conduct.

121. However, multiple orders covering the same conduct could be made at both the State or Territory and Commonwealth levels, for example, to stop workplace sexual harassment from continuing. In that circumstance, another legislative note would alert the reader that, due to the operation of section 109 of the Constitution, the order made under the FW Act would prevail to the extent of any inconsistency.

122. Subclause 527CA(4) would clarify that section 26 of the FW Act has effect subject to clause 527CA. This would indicate Parliament's intention that section 26 does not exclude State or Territory laws to the extent they are preserved by clause 527CA.

Amendment 11: Schedule 1, item 393, page 97 (after line 26), before subsection 527E(1)

Amendment 12: Schedule 1, item 393, page 98 (after line 3), after subsection 527E(2)

Amendment 13: Schedule 1, item 393, page 98 (after line 3), before subsection 527E(3)

Amendment 14: Schedule 1, item 393, page 98 (line 4)

123. These amendments would ensure that the Commonwealth can be held vicariously liable for contraventions of the new prohibition on sexual harassment by defence members in connection with the person's service as a defence member.

124. The amendments are necessary because the existing vicarious liability provision in the Bill may not apply in relation to contraventions by defence members due to the special nature of defence service, which is not employment and also may not be an agency relationship.

125. Consistent with the operation of the vicarious liability provision as it applies to employers and other principals, the Commonwealth would not be vicariously liable for actions of defence members if the Commonwealth proved that it took all reasonable steps to prevent the contravention.

126. The amendments ensure consistency with the SD Act, which provides for the vicarious liability of the Commonwealth for sexual harassment perpetrated by defence members, and includes the reasonable steps exemption.

127. The amendments would also make technical updates to the vicarious liability provision to improve the readability of the clause and clarify that the new subclause providing for the vicarious liability of the Commonwealth for acts of defence members does not limit sections 550 and 793 of the FW Act. Sections 550 and 793 deal with third party involvement in a contravention and liabilities of bodies corporate, respectively.

Flexible work

Amendment 17: Schedule 1, item 459, page 129 (line 27)

128. This amendment would correct a typographical error in proposed new section 65A.

129. The non-exhaustive list of reasonable business grounds would not be changed by this proposed amendment.

Amendment 18: Schedule 1, item 459, page 130 (after line 16), at the end of subsection 65A(5)

130. This amendment would insert a note at the end of subsection 65A(5) (which sets out a non-exhaustive list of reasonable business grounds for refusing a request for a flexible working arrangement). The note would make clear that the size and nature of the enterprise carried out by the employer is among the specific circumstances that may be considered when considering whether the employer has reasonable business grounds for refusing the request. This recognises that what is reasonable to accommodate may differ significantly between businesses, depending on their circumstances. The note also provides a relevant example.

Amendment 19: Schedule 1, item 463, page 133 (after line 25), after subsection 65C(2)

131. This amendment would insert new subsection 65C(2A) into the Act, which would clarify that the FWC cannot make an order:

that would be inconsistent with a provision of the Act or a fair work instrument that applies to the employee and employer (other than a previous order made by the FWC under these provisions). This amendment is modelled on existing subsection 739(5), which applies to FWC consent arbitration.

132. One situation in which this may arise is where a fair work instrument provides for rates of pay, penalty rates or other conditions that apply to certain patterns of work. An order of the FWC may not be inconsistent with or less favourable than those provisions. For example, an enterprise agreement may provide that firefighters working non-standard roster patterns get paid at the same rate as firefighters working on a 10/14 shift roster. An order of the FWC could not provide for a rate of pay for the non-standard roster pattern that was inconsistent with this requirement.

133. 'Fair work instrument' is defined in section 12 to include a modern award, enterprise agreement, workplace determination or an FWC order.

Terminating an enterprise agreement

Amendment 20: Schedule 1, item 471, page 136 (after line 3)

134. New subsection 226(1) of the FW Act would provide that the FWC must (on application) terminate an enterprise agreement that has passed its nominal expiry date if satisfied that any of three grounds have been met. Broadly, the grounds for termination relate to the continued operation of the agreement being unfair for employees, the agreement being unlikely to cover any employees, or the continued operation of the agreement posing a significant threat to the viability of a business (subject to certain other requirements and safeguards for employees having been met).

135. This amendment would insert new subsection 226(1A), which provides that the FWC must terminate the enterprise agreement under subsection 226(1) only if satisfied that it is appropriate in all the circumstances to do so (provided that the criteria in subsection 226(1) are met).

136. Building this further discretion into the test would better enable the FWC to take into consideration the views of the parties, the impact on any bargaining for a replacement agreement that is occurring, and any other relevant matters (in accordance with new subsections 226(3), (4) and (5)).

"Zombie" agreements

Amendment 21: Schedule 1, item 481, page 145 (after line 9), after subitem 20A(10)

Amendment 22: Schedule 1, item 482, page 148 (after line 30), after subitem 26A(10)

Amendment 23: Schedule 1, item 483, page 151 (after line 28), after subitem 30(9)

137. Amendments 21, 22 and 23 would insert new subitems 20A(10A)-(10C) of Schedule 3, 26A(10A)-(10C) of Schedule 3A, and 30(9A)-(9B) of Schedule 7 into the FW Transitional Act.

138. These new subitems would:

139. In respect of the publication of a collective zombie agreement, the FWC may consider that the details of signatories to the agreement do not form part of the agreement and are therefore not required to be published.

Single interest employer authorisations

Amendment 24: Schedule 1, item 489, page 155 (line 8)

Amendment 25: Schedule 1, item 490, page 155 (lines 13 to 14)

Amendment 41: Schedule 1, item 523, page 162 (lines 11 to 12)

Amendment 54: Schedule 1, item 543, page 174 (line 13)

Amendment 82: Schedule 1, item 627, page 201 (lines 3 to 8)

140. Under paragraph 172(5)(c) of the FW Act, employers that are specified in a single interest employer authorisation that is in operation in relation to a proposed enterprise agreement are single interest employers. The proposed enterprise agreement made in reliance on that authorisation is a single enterprise agreement. These amendments would make consequential changes to various provisions of the FW Act to reflect the repeal of the term 'single interest employers' in subsection 172(5) of the FW Act and the change to an enterprise agreement made in reliance on a single interest employer authorisation from being a single enterprise agreement to a multi-enterprise agreement.

141. Amendment 24 would amend item 489 of the Bill to omit the word "certain" from the amended heading to section 173(1) of the FW Act.

142. Amendment 25 would amend item 490 of the Bill by omitting the words "or an agreement in relation to which a single interest employer authorisation is in operation" from the amended subsection 173(1) of the FW Act. Amendments 24 and 25 would make clear that only employers for single enterprise agreements, including related employers, need to take all reasonable steps to give notice of the right to be represented by a bargaining representative to employees who will be covered by the agreement and are employed at the notification time for the agreement.

143. Amendment 41 would amend item 523 of the Bill to omit the words "or an agreement in relation to which a single interest employer authorisation is in operation" from new subsection 173(2A) of the FW Act (which sets out when a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may give the employer who will be covered by the proposed agreement a request in writing to bargain for the agreement). This amendment is consequential on an agreement made in reliance on a single interest employer authorisation being classified as a multi-enterprise agreement.

144. Amendment 54 would amend item 543 of the Bill by inserting the word "single interest employer authorisation" after the word "authorisation" in new subsection 234(2) of the FW Act. This would make clear that an intractable bargaining declaration may be made in relation to a proposed multi-enterprise agreement where a supported bargaining authorisation or a single interest employer authorisation is in operation in relation to the agreement.

145. Amendment 82 would omit item 627 of the Bill and insert new items 627 and 627A-C. New item 627 would insert a new definition of single interest employer agreement into the Dictionary in section 12 of the FW Act. The definition would provide that a multi-enterprise agreement is a single interest employer agreement if a single interest employer authorisation was in operation in relation to the agreement immediately before the agreement was made.

146. New item 627A would update the guide to Part 2-4 of the FW Act to remove the sentence which specifies that the effect of a single interest authorisation is that the employers specified in the authorisation are single interest employers in relation to a proposed agreement.

147. New item 627B would amend subsections 172(2) and (3) of the FW Act to omit references to the term "single interest employers" and substitute them with "related employers".

148. New item 627C would repeal subsection 172(5) which specifies when two or more employers are single interest employers. The item would then insert new subsections 172(5) and (5A). New subsection 172(5) would provide that despite any other provision of Part 2-4, if an employer is specified in a single interest employer authorisation that is in operation, the only kind of enterprise agreement the employer may make with their employees who are specified in the authorisation is a single interest employer agreement, and the employer must not initiate bargaining, agree to bargain, or be required to bargain with those employees for any other kind of enterprise agreement. New subsection 172(5A) would provide that two or more employers are related employers if the employers are engaged in a joint venture or common enterprise; or the employers are related bodies corporate. These employers will continue to make single-enterprise agreements.

149. The combined effect of Amendment 82 is that the concept of single interest employers will be removed from the FW Act. Only an employer, or two or more employers that are related employers may make a single enterprise agreement with relevant employees and one or more relevant employee organisations. Two or more employers that are not all related employers may make a multi-enterprise agreement with relevant employees and one or more relevant employee organisations. This means that employers that are specified in a single interest employer authorisation that is in operation in relation to a proposed enterprise will ultimately make a type of multi-enterprise agreement (a single interest employer agreement) with the relevant employees and employee organisations, subject to the transitional arrangements.

Amendment 83: Schedule 1, item 629, page 201 (line 24)

Amendment 85: Schedule 1, item 629, page 203 (line 14)

150. These amendments would make technical updates to new paragraphs 216D(1)(b) and 216DB(1)(b) which sit within new Subdivision AD—Variation of single interest employer agreement to add employer and employees, within Division 7 of Part 2-4 of the FW Act (to be inserted by item 629 of the Bill). These amendments would insert the words "by the employer" after the word "employed" in these paragraphs to make clear that only employees who are employed by the employer are the 'affected employees' for a variation of a single interest employer agreement under these provisions.

Amendment 86: Schedule 1, item 629, page 204 (line 3) to page 205 (line 15)

151. Amendment 86 would omit new subsections 216DC(1) to (3) of the FW Act, to be inserted by item 629 of the Bill. The amendment would insert a new section 216DC into the FW Act. New section 216DC would more clearly delineate the requirements of which the FWC must be satisfied before approving a variation of a single interest employer agreement to cover a new employer and its employees depending on whether the application for the variation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer agreement covers common interest employers or franchisees. The term 'common interest employers' would be introduced by these amendments and used to identify those single interest employers who are not franchisees.

Approval of variat ion by the FWC

152. New subsection 216DC(1) would provide that the FWC must approve a variation of a single interest employer agreement if two criteria are met. The first is that an application for approval of the variation has been made under section 216DA (application by employer) or 216DB (application by employee organisation). The second criterion is met when the FWC is satisfied of three additional matters. These are:

Additional requirements for application by employee organisation

153. If the application for variation was made by an employee organisation under new paragraph 216DC(1)(b)(iii), the requirements of new subsection 216DC(1A) must be met. New subsection 216DC(1A) would provide that the requirements of this subsection are met if:

154. New subsection 216DC(1B) would provide that for the purposes of paragraph (1A)(b), the FWC may work out whether a majority of the affected employees want to be covered by the agreement using any method the FWC considers appropriate.

155. For the purposes of new paragraph 216DC(1A)(c), the FWC must approve a variation of a single interest employer agreement to cover a new employer and its employees where the application has been made by an employee organisation and subsection (1C) does not apply to the employer. Subsection 216DC(1C) will apply to the employer if:

Franchisees

156. New subparagraph 216DC(1)(b)(iv) would provide that the FWC must approve a variation of a single interest employer agreement to cover a new employer and its employees if the requirements of subsections 216DC(2) or (3) are met. Subsection 216DC(2) would prescribe the requirements that are to be met for employers who are franchisees. The requirements of this subsection would be met if the employers covered by the agreement and the employer that will be covered by the agreement carry on similar business activities under the same franchise and are:

Common interest employers

157. Subsection 216DC(3) would prescribe the requirements that are to be met for employers who are common interest employers. This term is used to identify single interest employers who are not franchisees (see above). The requirements of this subsection would be met if it is appropriate to approve the variation, having regard to:

158. For example, employers specified in a supported bargaining authorisation would not meet the public interest criterion as proposed subsection 172(7)(a) provides that the only kind of enterprise agreement the employer may make with their employees who are specified in the authorisation is a supported bargaining agreement.

159. In performing its functions or exercising its powers generally under the FW Act, the FWC is required to have regard to the objects of the FW Act and the objects of any relevant Part of the FW Act (in existing section 578(a)). For example, when considering whether it would be contrary to the public interest to approve the variation, the FWC would have regard to the objects of the FW Act (contained in section 3), such as whether making the variation will promote productivity and economic growth while being fair to working Australians, and the objects of Part 2-4 (contained in section 171), such as whether approving the variation promotes collective bargaining in good faith, particularly at the enterprise level.

160. New subsection 216DC(3A) would provide that or the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:

161. When considering the nature of the enterprises, factors such as the relative size and scope of the enterprises would be relevant.

Employers and employees that are already bargaining

162. Subsection 216DC(3B) would provide that despite new subsection 249(1), the FWC may refuse to approve the variation if the FWC is satisfied that the employer, or a bargaining representative of the employer, and an employee organisation that is entitled to represent the industrial interests of one or more of the affected employees have agreed that:

163. For the purposes of paragraph 216DC(3B)(b), an employer is likely to have a history of effectively bargaining in relation to one or more enterprise agreements if one or more of those resulting enterprise agreements provided for terms and conditions that were more than a marginal improvement on those contained in the relevant award (i.e. they must do more than simply pass the BOOT).The requirement would operate so that only enterprise agreements that provide genuine benefits to both the employer/s and their relevant employees would be relevant to the FWC's decision to exercise its discretion not to vary the agreement to add the employer and its relevant employees. This discretion would not need to be relied upon where the parties have agreed (in writing) to bargain for a single-enterprise agreement as these parties would be excluded under proposed section 216DC(1C)(b).

164. Overall, new subsection 216DC(3B) would provide the FWC discretion to refuse an application for a variation of a single interest employer agreement to cover a new employer and its employees, even if the requirements in subsection 216DC(1) are met, if the FWC is satisfied that the variation should not be made having regard to current bargaining. The subsection would uphold and respect the ability of an employer to bargain with affected employees in appropriate circumstances.

Amendment 89: Schedule 1, item 629, page 205 (line 26)

Amendment 93: Schedule 1, item 629, page 206 (line 20)

165. These amendments would make a consequential update to new subsection 216DD, to be inserted by item 629 of the Bill, to replace the references to paragraph 216DC(1)(d) with references to subparagraph 216DC(1)(b)(ii) (which now provides that for circumstances in which the FWC must be satisfied that the variation has been genuinely agreed to).

Amendment 94: Schedule 1, page 207 (after line 8), after item 629

166. Amendment 94 would insert new item 629A into the Bill. New item 629A would amend subsection 229(2) of the FW Act by inserting the words "single interest employer authorisation" after the word "authorisation". Section 229 of the FW Act sets out when applications can be made for bargaining orders. This amendment is consequential on the change in classification for these agreements to multi-enterprise agreements and would extend the availability of bargaining orders to a proposed multi-enterprise agreement where a single interest employer authorisation is in operation. This would effectively preserve the status quo.

Amendment 95: Schedule 1, page 207 (after line 13), after item 630

167. Amendment 95 would insert new items 630A and 630B into the Bill. Existing subsection 238(2) of the FW Act prohibits a bargaining representative applying for a scope order if a single interest employer authorisation is in operation. New item 630A would repeal subsection 238(2) of the FW Act to reflect the fact that a single interest employer agreement will be a multi-enterprise agreement and that scope orders only remain available for proposed single enterprise agreements (other than greenfields agreements). This would effectively preserve the status quo.

168. Existing section 240(2) of the FW Act provides that a bargaining representative for a proposed enterprise agreement that is either a single enterprise agreement or a multi-enterprise agreement in relation to which a low paid authorisation is in operation, may apply to the FWC unilaterally (without agreement of the other bargaining representatives) for the FWC to deal with a bargaining dispute about the proposed agreement. New item 630B would insert a new subsection 240(2)(c) to provide that a unilateral application for the FWC to deal with a bargaining dispute may also be made if the proposed agreement is a multi-enterprise agreement in relation to which a single interest employer authorisation is in operation.

Amendment 96: Schedule 1, item 633, page 207 (lines 27 to 32)

169. Amendment 96 would omit Notes 1 and 2 from new subsection 248(1) of the FW Act, to be inserted by item 633 of the Bill. Note 1 provided that the effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement. The repeal of this Note 1 is consequential on the change of a single interest employer agreement to a multi-enterprise agreement. Note 2 provided that a person cannot be a bargaining representative if they are excluded for the purposes of the agreement by an order under new section 178C. The repeal of Note 2 is consequential on the replacement of section 178C by another amendment(see new Part 23A).

Amendment 97: Schedule 1, page 207 (after line 32), after item 633

170. Amendment 97 would insert new item 633A into the Bill. New item 633A would repeal subsection 249(1) and substitute it with new subsection 249(1), which sets out when the FWC must make a single interest employer authorisation.

171. New subsection 249(1) would delineate the requirements of which the FWC must be satisfied before making a single interest employer authorisation depending on whether the application for the authorisation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer authorisation is to operate in respect of two or more common interest employers or franchisees. The term 'common interest employers' would be introduced by these amendments and used to identify those single interest employers who are not franchisees.

Single interest em ployer authorisation

172. New subsection 249(1) would provide that the FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if an application for the authorisation has been made and the FWC is satisfied that all of the following requirements are met:

Additional requirements for application by employers

173. If the application for a single interest employer authorisation was made by two or more employers, under paragraph 248(1)(a), new subparagraph 249(1)(b)(iii) would provide that the requirements of new subsection 249(1A) must be met. New subsection 249(1A) would provide that the requirements of this subsection are met if:

Additional requirements for application by bargaining representative

174. If the application for a single interest employer authorisation was made by a bargaining representative under paragraph 248(1)(b), new subparagraph 249(1)(b)(iv) would provide that each employer must have either consented to the application, or be covered by new subsection (1B). New subsection 249(1B) would provide that an employer is covered by this subsection if:

175. New subsection 249(1C) would provide that for the purposes of new paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

176. New paragraph 249(1B)(e) would provide that an employer is covered by new subsection 249(1B) if new subsection (1D) does not apply to the employer. New subsection 249(1D) sets out criteria that will preclude an employer being compelled into a single interest employer authorisation (on application by a bargaining representative of an employee). New subsection 249(1D) applies to an employer if:

Amendment 98: Schedule 1, item 634, page 208 (line 1) to page 209 (line 22)

177. Amendment 98 would omit item 634 of the Bill (which repealed subsection 249(3) of the FW Act and substituted it with new subsections 249(3) and (3A)-(3D)). Amendment 98 would then insert new items 634 and 634A into the Bill.

178. New item 634 would omit the words "if the FWC is satisfied that" from subsection 249(2) of the FW Act which sets out when employers are franchisees when applying for a single interest employer authorisation.

179. New item 634A would repeal subsection 249(3) (employers that may bargain together for an agreement) and substitutes it with new subsections 249(3) and (3A). New subsection 249(3) would provide that the requirements of this subsection are met if:

180. For example, employers specified in a supported bargaining authorisation (in respect of the same employees) would not meet the public interest criterion as new subsection 172(7)(b) provides that the employer must not initiate bargaining, agree to bargain or be required to bargain with employees specified in the supported bargaining authorisation for any other kind of enterprise agreement.

181. In performing its functions or exercising its powers generally under the FW Act, the FWC is required to have regard to the objects of the FW Act and the objects of any relevant Part of the FW Act (in existing section 578(a)). For example, when considering whether it would be contrary to the public interest to approve the variation, the FWC would have regard to the objects of the FW Act (contained in section 3), such as whether making the variation will promote productivity and economic growth while being fair to working Australians, and the objects of Part 2-4 (contained in section 171), such as whether approving the variation promotes collective bargaining in good faith, particularly at the enterprise level.

182. New subsection 249(3A) would provide that for the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:

183. When considering the nature of the enterprises, factors such as the relative size and scope of the enterprises would be relevant.

Amendment 99: Schedule 1, item 635, page 209 (line 24)

184. Amendment 99 would amend item 635 of the Bill. Item 635 of the Bill would amend existing subparagraph 249(4)(b)(i) of the FW Act to provide that a single interest employer authorisation ceases to be in operation at the earlier of the following:

185. Item 635 would omit the words 'day on which' from subparagraph 249(4)(b)(i) of the FW Act and substitutes them with 'at the same time as'. The subparagraph as set out in the Bill would therefore read as 'the at the same time as the enterprise agreement to which the authorisation is made'. The remaining 'the' at the start of the subparagraph creates a grammatical error. This amendment would correct the grammatical error.

Amendment 101: Schedule 1, item 636, page 209 (line 25) to page 210 (line 6)

186. Amendment 101 would omit item 636 of the Bill (which would insert new section 249A of the FW Act) and substitute it with new items 636 and 636A of the Bill.

187. New item 636 of the Bill would amend subsection 250(2) of the FW Act by omitting the words "employers that may bargain together for a proposed enterprise agreement" and substituting them with "common interest employers". Amended subsection 250(2) of the FW Act would provide that if the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only. The term 'common interest employers' would be introduced by these amendments and used to identify those single interest employers who are not franchisees.

188. New item 636A would insert new subsections 250(3) and (4). New subsection 250(3) would provide that the FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:

189. For the purposes of paragraph 250(3)(b), an employer is likely to have a history of effectively bargaining in relation to one or more enterprise agreements if one or more of those resulting enterprise agreements provided for terms and conditions that were more than a marginal improvement on those contained in the relevant award (i.e. they must do more than simply pass the BOOT). The requirement would operate so that only enterprise agreements that provide genuine benefits to both the employer/s and their relevant employees would be relevant to the FWC's decision to exercise its discretion not to vary the agreement to add the employer and its relevant employees. This discretion would not need to be relied upon where the parties have agreed (in writing) to bargain for a single-enterprise agreement as these parties would be excluded under new section 249(1D)(b).

190. Overall, new subsection 250(3) would provide the FWC discretion to refuse an application for a single interest employer authorisation, even if the requirements in new subsection 249(1) are met, if the FWC is satisfied that the authorisation should not be made having regard to current bargaining. The subsection would uphold and respect the ability of an employer to bargain with relevant employees in appropriate circumstances.

191. New subsection 250(4) would provide that, if the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.

Amendment 103: Schedule 1, items 638 and 639, page 210 (line 30) to page 212 (line 17)

192. Amendment 103 would omit items 638 and 639 of the Bill (which would have amended existing subsections 251(3) and (4) which enable applications to be made to add or remove an employer from a single interest employer authorisation). Amendment 102 would then insert new item 638 into the Bill. New item 638 would substitute them with new subsections 251(3)-(8).

Variation to add employer

193. New subsection 251(3) would provide that the following may apply to the FWC for a variation of a single interest employer authorisation to add the name of an employer (the new employer) that is not specified in the authorisation to the authorisation:

194. New subsection 251(4) would provide that the FWC must vary the authorisation to add the new employer's name if an application for the variation has been made and the FWC is satisfied of all of the following:

Additional requirements for application by bargaining representative

195. Pursuant to new subparagraph 251(4)(b)(iii), if an application to add an employer to a single interest employer authorisation is made by a bargaining representative of an employee, the FWC must be satisfied that the requirements in new subsection 251(5) are met before varying the authorisation. The requirements of new subsection 251(5) are met if:

196. New subsection 251(6) would provide that for the purposes of paragraph (5)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

197. New subsection 251(7) would apply to an employer if:

Employers and employees that are already bargaining

198. New subsection 251(8) would provide that despite subsection 251(4), the FWC may refuse to vary the authorisation if the FWC is satisfied that:

199. For the purposes of new paragraph 251(8)(b), an employer is likely to have a history of effectively bargaining in relation to one or more enterprise agreements if one or more of those resulting enterprise agreements provided for terms and conditions that were more than a marginal improvement on those contained in the relevant award (i.e. they must do more than simply pass the BOOT).The requirement would operate so that only enterprise agreements that provide genuine benefits to both the employer/s and their relevant employees would be relevant to the FWC's decision to exercise its discretion not to vary the authorisation to add the employer and its relevant employees. This discretion would not need to be relied upon where the parties have agreed (in writing) to bargain for a single-enterprise agreement as these parties would be excluded under new section 251(7) but would be relevant where the parties were bargaining for a co-operative workplaces agreement, provided the other criteria were met.

200. Overall, new subsection 251(8) would provide the FWC discretion to refuse an application to vary a single interest employer authorisation to add a new employer, even if the requirements in new subsection 251(4) are met, if the FWC is satisfied the variation should not be made having regard to current bargaining. The subsection would uphold and respect the ability of an employer to bargain with relevant employees in appropriate circumstances.

Amendment 106: Schedule 1, Part 21, page 213 (after line 19), at the end of the Part

201. Amendment 106 would insert new item 640A into the Bill. New item 640A would repeal subsection 477(2) of the FW Act and substitute it with new subsection 477(2).

202. Existing subsection 477(1) of the FW Act applies if Part 3-3 of the FW Act (which sets out provisions for the taking of protected industrial action) permits an application to be made by a bargaining representative of an employer that will be covered by a proposed single-enterprise agreement. New subsection 477(2) would provide that if the agreement will cover more than one employer, the application may be made by a bargaining representative of an employer that will be covered by the agreement, on behalf of one or more other such bargaining representatives, if those other bargaining representatives have agreed to the application being made on their behalf. New subsection 477(2) reflects the change of a single interest employer agreement to a multi-enterprise agreement, but still acknowledges that a proposed single-enterprise agreement (in respect of which protected industrial action may be taken under Part 3-3 of the FW Act) may still cover two or more employers that wish to make a joint application.

Amendment 107: Schedule 1, item 641, page 214 (lines 6 to 7)

Amendment 108: Schedule 1, item 641, page 214 (line 9)

Amendment 109: Schedule 1, item 641, page 214 (line 13)

Amendment 110: Schedule 1, item 641, page 214 (lines 20 to 26)

Amendment 111: Schedule 1, item 641, page 215 (line 18)

Amendment 112: Schedule 1, item 641, page 216 (lines 9 to 10)

Amendment 113: Schedule 1, item 641, page 216 (lines 12 to 13)

Amendment 114: Schedule 1, item 641, page 216 (line 31)

Amendment 115: Schedule 1, item 641, page 217 (lines 4 to 6)

Amendment 116: Schedule 1, item 641, page 217 (line 7)

203. These amendments would make technical updates to new Subdivision AE of the FW Act (to be inserted by item 641 of the Bill) which would permit a single interest employer agreement or a multi-enterprise agreement to be varied to remove an employer and its employees. These amendments would amend headings and provisions in new Subdivision AE to reflect the change in treatment of a single interest employer agreement as a single-enterprise agreement, to a multi-employer agreement.

Amendment 117: Schedule 1, item 642, page 218 (line 7)

204. Amendment 117 would amend item 642 of the Bill. Item 642 of the Bill would introduce the definition of a cooperative workplace agreement into the Dictionary in section 12 of the FW Act. Amended item 642 would provide a consequential amendment that a multi-enterprise agreement is a cooperative workplace agreement if there was no supported bargaining authorisation or single interest employer authorisation in operation in relation to the agreement immediately before the agreement was made.

Amendment 138: Schedule 1, item 660, page 237 (line 24)

205. Amendment 138 would make an amendment to item 660 of the Bill which would insert new subclause 74(2) of Part 13 (Application, saving and transitional provisions relating to amendments to this Act) into Schedule 1 to the FW Act. The amendment would omit subclause 74(2) and substitute it with a new subclause 74(2), which would provide that despite the amendments of Division 10 of Part 2-4 made by Part 21 of Schedule 1 of the amending Act, that Division continues to apply as though the amendments had not been made. The effect of amendment 30 would be that if an application for a Ministerial declaration under subsection 247(1) of the FW Act and, immediately before the commencement of Part 21 of Schedule 1 to the amending Act, the Minister had not made a decision on the application, the existing provisions of Division 10 of Part 2-4 of the FW Act are preserved and continue to apply in relation to that application.

Amendment 139: Schedule 1, item 660, page 237 (line 28)

Amendment 140: Schedule 1, item 660, page 238 (line 16)

Amendment 141: Schedule 1, item 660, page 238 (line 19)

206. These amendments would make technical updates to the transitional provisions in relation to single interest employer authorisations, to be inserted by item 660 of the Bill.

207. Amendment 139 would make a technical correction to subclause 75(1) of new Part 13 (Application, saving and transitional provisions relating to amendments to this Act) of Schedule 1 to the FW Act by omitting the reference to subsection 247(1) and inserting a reference to subsection 247(3). The effect of amendment 30 would be that if a Ministerial declaration is made under subsection 247(3) of the FW Act, but immediately before the commencement of Part 21 of Schedule 1 to the Amending Act, 2 or more of the employers to whom the declaration relates had not made an application for an authorisation, the existing provisions of Division 10 of Part 2-4 of the FW Act are preserved and continue to apply to an application for an authorisation made after that commencement.

208. Amendment 140 would make a technical correction to clause 77 of new Part 13 (Application, saving and transitional provisions relating to amendments to this Act) of Schedule 1 to the FW Act by omitting the reference to subsection 249A and inserting a reference to new paragraph 172(5)(b) (which provides that if an employer is specified in a single interest employer authorisation that is in operation, the employer must not initiate bargaining, agree to bargain, or be required to bargain with the relevant employees for any other kind of enterprise agreement).

209. Amendment 141 would omit the words "whether the authorisation was made before" from clause 77 and substitute them with "if the authorisation was made".

210. The effect of amendments 138 and 139 would be that new paragraph 172(5)(b) applies in relation to single interest employer authorisations on or after the commencement of Part 21 of Schedule 1 to the amending Act if the authorisation was made on or after that commencement. This would apply where authorisations are made under the new provisions of Part 21 and the provisions in new clause 78B of the new Part 13 (Application, saving and transitional provisions relating to amendments to this Act) of Schedule 1 to the FW Act do not apply.

Amendment 142: Schedule 1, item 660, page 238 (lines 21 to 29)

211. Amendment 142 would omit clause 78 of new Part 13 (Application, saving and transitional provisions relating to amendments to this Act) of Schedule 1 to the FW Act and substitute it with new clauses 78, 78A, 78B and 78C.

212. New clause 78 would provide that the amendments to section 251 made by Part 21 of Schedule 1 to the amending Act do not apply in relation to variations made before the commencement of that Part.

213. New subclause 78A(1) would apply in respect of two or employers that were, immediately before the commencement of Part 21 of Schedule 1 to the amending Act, specified in a single interest employer authorisation that is in operation. New subclause 78A(2) would provide that for the purposes of section 172 of the Act, the employers are taken to be related employers within the meaning of subsection 172(5A). The effect of this new subclause would be that any single interest employer agreement made in reliance on that authorisation would be a single-enterprise agreement, as they were before the amendments in Part 21 commenced.

214. New clause 78B would provide that if, because of the operation of clauses 74, 75 or 76 of new Part 13 (Application, saving and transitional provisions relating to amendments to this Act) of Schedule 1 to the FW Act, the FWC makes a single interest employer authorisation after the commencement of Part 21 of Schedule 1 to the amending Act:

215. The effect of new subclause 78B would be that any resulting single interest employer agreement made by those employers would be a single-enterprise agreement.

216. New clause 78C would provide that despite the repeal of subsection 238(2) of the FW Act (which prohibits a bargaining representative from applying for a scope order if a single interest employer authorisation is in operation in relation to the agreement) by Part 21 of Schedule 1 to the amending Act, the subsection continues to apply after the commencement of Part 21 to proposed single-enterprise agreements in relation to which a single interest authorisation is in operation.

Amendment 148: Schedule 1, item 661, page 241 (lines 22 to 23)

Amendment 149: Schedule 1, item 662, page 242 (lines 12 to 13)

217. Amendments 148 and 149 would make technical updates to the new definitions of 'affected employees' and 'made' to be inserted into the Dictionary in section 12 of the FW Act by items 661 and 662, as they relate to new Subdivision AE of Division 7 of Part 2-4 (variation of single interest employer agreement or cooperative workplace agreement to remove employer and employees). The updates are consequential on the change in treatment of a single interest employer agreement from a single-enterprise agreement, to a multi-enterprise agreement.

Enterprise agreement pre-approval requirements

Amendment 26: Schedule 1, item 495, page 156 (line 3)

Amendment 27: Schedule 1, item 496, page 156 (lines 4 to 5)

Amendment 28: Schedule 1, item 498, page 156 (lines 8 to 9)

Amendment 29: Schedule 1, item 506, page 157 (lines 6 to 7)

218. Section 180 of the FW Act sets out requirements that an employer must comply with before requesting that employees vote to approve a proposed enterprise agreement. These amendments would omit items in Part 14 the Bill that would repeal the pre-approval requirements in subsections 180(5)-(6) of the FW Act and make consequential changes to other items that would amend section 180. Subsection 180(5)-(6) require the employer, prior to putting the agreement to a vote, to explain the terms of a proposed enterprise agreement, and their effect to relevant employees in an appropriate manner, having regard to their needs and circumstances. The amendments would therefore ensure that this key employee safeguard is retained in the FW Act.

219. Amendment 26 would amend item 495 of the Bill by omitting the amended heading to section 180 of the FW Act ("Employees must be given copy of disclosure documents etc") and substituting it with the heading "Certain preapproval requirements".

220. Amendment 27 would omit item 496 in the Bill. Item 496 would have repealed the heading to subsection 180(1) of the FW Act. This would mean that the heading "Pre-approval requirements" above subsection 180(1) is retained.

221. Amendment 28 would omit item 498 of the Bill. Item 498 would have repealed the heading to subsection 180(4A) of the FW Act. This would mean that the heading "Employees must be given a copy of disclosure documents etc" is retained.

222. Item 506 of the Bill would have repealed the pre-approval requirements in subsections 180(5)-(6) of the FW Act. Subsection 180(5) of the FW Act provides that prior to putting a proposed agreement to a vote, the employer must take all reasonable steps to ensure that the terms of their agreement and their effect are explained to the relevant employees; and that the explanation is provided in an appropriate manner taking into account the relevant employees' particular needs and circumstances. Subsection 180(6) sets out examples of the kinds of employees whose circumstances and needs are to be considered for the purposes of subsection 180(5). Amendment 29 would omit item 506 of the Bill and substitute it with new items 506 and 506A. This would mean that subsections 180(5)-(6) of the FW Act are retained, with some consequential amendments.

223. Amendment 29 would insert Items 506 and 506A that would make consequential amendments to the wording of paragraphs 180(5)(a) and 180(5)(b) of the FW Act to reflect the proposed repeal of subsection 180(2) of the FW Act which defines "relevant employees".

Amendment 32: Schedule 1, item 509, page 158 (after line 30)

Amendment 34: Schedule 1, item 509, page 158 (line 36)

Amendment 35: Schedule 1, item 509, page 159 (after line 5)

224. Item 509 of the Bill would repeal section 188 of the FW Act and substitute it with new section 188. New section 188 would set out the factors that the FWC must consider when determining whether an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. These amendments would make consequential changes to new section 188 to reflect the retainment of subsections 180(5)-(6) of the FW Act (which require an employer to explain the terms of an agreement and their effect to employees in a manner appropriate to their circumstances and needs) and the requirement that the FWC must be satisfied that these subsections have been met before determining that an enterprise agreement has been genuinely agreed to.

225. Amendment 32 would insert new subsection 188(4A) into the FW Act. New subsection 188(4A) would provide that the FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with subsection 180(5) in relation to the agreement.

226. Amendments 34 and 35 would make consequential amendments to proposed new section 188(5) of the FW Act to make clear that in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement, the FWC may also disregard minor procedural or technical errors in respect of subsection 180(5) of the FW Act) (which requires an employer to explain the terms of an agreement and their effect to employees in a manner appropriate to their circumstances and needs, prior to the vote occurring).

Amendment 38: Schedule 1, item 512, page 160 (lines 15 to 16)

227. Amendment 38 would omit Item 512 from the Bill. Item 512 would repeal existing paragraph 211(3)(a) of the FW Act. The result of this amendment is that paragraph 211(3)(a) would be retained, which provides that section 180 (which deals with pre-approval steps) must be taken into account by the FWC, with prescribed modifications, when deciding whether to approve a variation of an enterprise agreement.

Amendment 39: Schedule 1, item 513, page 160 (lines 17 to 24)

228. Amendment 39 would omit item 513 of the Bill and substitute it with new items 513, 513A and 513B. New items 513 and 513A of the Bill would make consequential amendments to existing paragraphs 211(3)(d) and (e) to reflect the retainment of subsections 180(5)-(6) of the FW Act (which require an employer to explain the terms of an agreement and their effect to employees in a manner appropriate to their circumstances and needs) and the requirement for the FWC to consider these subsections when deciding whether it must approve a variation of an enterprise agreement.

229. New item 513B of the FW Act would insert new paragraph 211(3)(fa) into the FW Act. This paragraph would provide that when the FWC is deciding whether it must approve a variation of an enterprise agreement, it must take into account section 180 (which deals with preapproval steps) which has effect as if subsections 180(4A)-(4C) (which deal with provision of disclosable benefits documents) and the word "bargaining" in paragraph 180(6)(c) were omitted. The practical effect of new item 513B would be that the FWC does not need to be satisfied that subsections 180(4A)-(4C) have been met for the proposed variation of an enterprise agreement.

Amendment 67: Schedule 1, item 597, page 189 (after line 22), after section 216A

Amendment 84: Schedule 1, item 629, page 202 (after line 11), after section 216D

Amendment 122: Schedule 1, item 649, page 222 (after line 22), after section 216C

230. These amendments would insert new sections 216AAA, 216DAA and 216CAA into the FW Act as part of the insertion of new Subdivisions AA (variation of supported bargaining agreement), AD (variation of single interest employer agreement) and AC (variation of cooperative workplace agreement) into existing Division 7 of Part 2-4 of the FW Act (which deals with variation of enterprise agreements). These new Subdivisions would set out the circumstances in which these enterprise agreements may be varied to cover a new employer and its employees, by agreement between those parties.

231. New subsections 216AAA(1), 216DAA(1) and 216CAA(1) would provide that before an employer requests that affected employees approve the proposed variation, the employer must take all reasonable steps to ensure that:

232. New subsections 216AAA(2), 216DAA(2) and 216CAA(2) would provide that without limiting paragraph 1(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

Amendment 71: Schedule 1, item 597, page 191 (line 34)

Amendment 72: Schedule 1, item 597, page 191 (line 34), at the end of subsection 216AD(1)

Amendment 91: Schedule 1, item 629, page 206 (line 7)

Amendment 92: Schedule 1, item 629, page 206 (line 7), at the end of subsection 216DD(1)

Amendment 126: Schedule 1, item 649, page 224 (line 17)

Amendment 127: Schedule 1, item 649, page 224 (line 17), at the end of subsection 216CC(1)

233. These amendments would amend new subsections 216AD(1) (which would be inserted by item 597 of the Bill), 216DD(1) (which would be inserted by item 629 of the Bill) and 216CC(1) (which would be inserted by item 649 of the Bill). These subsections would provide that the FWC is to determine whether it is satisfied that a variation of a supported bargaining agreement, single interest employer agreement or cooperative workplace agreement to add a new employer and its employees has been genuinely agreed to by the affected employees in accordance with section 188 (which deals with genuine agreement), as modified.

234. Amendments 71, 91 and 126 would amend new paragraphs 216AD(1)(d), 216DD(1)(d) and 216CC(1)(d) to make clear that only new subsections 188(3) and (4) (which deal with the requirement to provide a NERR and the "21 days" rule) are to be omitted by the FWC when determining whether a variation of a supported bargaining agreement, single interest employer agreement or cooperative workplace agreement to cover a new employer and its employees has been genuinely agreed to. The FWC would still be required to consider new subsection 188(5) (prescribed minor procedural or technical errors may be disregarded) as it applies to a variation. However, paragraphs 188(5)(a), (b) and (c) would have no practical effect as sections 173, 174, subsections 181(2), 182(1) and (2) (also for which errors may be disregarded), do not apply to agreement variations of this kind.

235. Amendments 72, 92 and 127 would insert new paragraphs 216AD(1)(e), 216DD(1)(e) and 216CC(1)(e) into the FW Act. These new paragraphs would provide that when the FWC is to determine whether it is satisfied that a variation of a supported bargaining agreement, single interest employer agreement or cooperative workplace agreement to cover a new employer and its employees has been genuinely agreed to in accordance with section 188 (which deals with genuine agreement), subsections 188(4A) and (5) are to apply as if references to subsection 180(5) were references to section 216AAA, 216DAA or 216CAA as applicable. New paragraphs 216AD(1)(f), 216DD(1)(f) and 216CC(1)(f) are inserted into the FW Act and provide in determining whether minor errors may be disregarded under new subsection 188(5) inserted by Item 509 of the Bill, references to when an enterprise agreement is made are instead references to when the relevant variation is made. The practical effect of these amendments is that before determining that a variation of one of these types has been genuinely agreed to, the FWC must be satisfied that the employer has explained the terms of the supported bargaining agreement, single interest employer agreement or cooperative workplace agreement and their effect to employees in a manner appropriate to their circumstances and needs, prior to the vote for the variation.

Genuine agreement of employers

Amendment 119: Schedule 1, item 647, page 221 (before line 16), before subsection 186(2A)

236. Subsection 186 sets out various requirements that the FWC must take into account when approving enterprise agreements. Paragraph 186(2)(b) provides that if the agreement is a multi-enterprise agreement, each employer has genuinely agreed to be covered by the agreement and no person coerced any of the employers to make the agreement.

237. New subsection 186(2AA) would provide that, for the purposes of paragraph 186(2)(b), only the actions of an employer who bargained for the agreement should be taken into account. For example, an order made by the FWC on application of an employee organisation for the employer to be joined to an authorisation would be disregarded for the purpose of determining whether the employer has genuinely agreed to the agreement. Similarly, an order made by the FWC in these circumstances would not amount to coercion. Further, anything authorised by or under the FW Act—such as protected industrial action taken by the employer's employees during bargaining—would not amount to coercion.

Amendment 145: Schedule 1, item 660, page 239 (before line 16), before clause 81

238. This amendment provides that new subsection 186(2AA) applies to the approval of an enterprise agreement by the FWC after the commencement of the new subsection. Section 186 sets out various requirements that the FWC must take into account when approving enterprise agreements. New subsection 186(2AA) is in Part 23 which commences at the same time as Part 20, which commences on Proclamation.

Minimum bargaining period for intractable bargaining declarations

Amendment 53: Schedule 1, page 173 (after line 5), after item 537

Amendment 55: Schedule 1, item 543, page 174 (line 21), at the end of subsection 235(1)

Amendment 56: Schedule 1, item 543, page 175 (line 11), at the end of section 235

239. These amendments would require that before issuing an intractable bargaining declaration, the FWC must be satisfied that a prescribed minimum period of good faith bargaining has elapsed.

240. Amendment 53 would amend section 12 of the FW Act by inserting a new signpost definition of 'end of the minimum bargaining period'.

241. Item 543 of the Bill would repeal existing Subdivision B of Division 8 of Part 2-4 of the FW Act, which relates to applications for serious breach declarations, and substitute new provisions dealing with applications for intractable bargaining declarations.

242. New section 235 would set out when the FWC may have discretion to make an intractable bargaining declaration, requiring an application for the declaration to have been made by a bargaining representative and the FWC to be satisfied of the matters set out in subsection 235(2). New subsection 235(2) would provide that:

FWC must be satisfied the applicant 'participated' in the relevant processes before making an intractable bargaining declaration, including attending mandatory conciliation. However, FWC would not be able to consider what occurred during conciliation, as these conferences are conducted in confidence.

243. Amendment 55 would insert a further requirement in new paragraph 235(1)(c), providing that the FWC must also be satisfied that it is after the end of the minimum bargaining period before making an intractable bargaining declaration.

244. Amendment 56 would insert new subsection 235(5), setting out the meaning of "end of the minimum bargaining period", which would be calculated in one of two ways—depending on whether the bargaining is to replace an existing enterprise agreement or not.

245. Where an existing enterprise agreement(s) applies to any of the employees that will be covered by the proposed agreement, the end of the minimum bargaining period would be the earlier of:

246. Where the proposed enterprise agreement is not replacing an existing enterprise agreement, the end of the minimum bargaining period would be three months after an application has been made under section 240 in relation to the proposed enterprise agreement. If there have been multiple applications under section 240 made for the FWC to deal with a bargaining dispute in relation to a proposed enterprise agreement, it is intended that the end of the minimum bargaining period would occur three months after the first such application.

247. Amendments that would be made to section 173 by items 522 and 523 of the Bill may be instructive in determining when a proposed enterprise agreement is intended to replace an existing enterprise agreement.

Bargaining disputes

Amendment 57: Schedule 1, page 177 (after line 12), after item 548

248. Existing subsection 270(3) provides that a bargaining related workplace determination must include the terms that the FWC considers deal with the matters that were still at issue at the end of the post-declaration negotiating period. Amendment 57 would insert a new item 548A that would repeal and substitute a new subsection 270(3). New subsection 270(3) would provide that a bargaining related workplace determination must include the terms that the FWC considers deal with the matters that were still at issue after the end of the post-declaration negotiating period if there is such a period, or otherwise after making the declaration. This amendment is necessary as new section 235A (inserted by item 543) would not mandate the provision of a post-declaration negotiation period. New subsection 270(3) would cater for instances where the FWC does not specify a post-declaration negotiating period.

Amendment 58: Schedule 1, item 551, page 177 (lines 26 to 28)

249. Existing section 271A deals with limitations relating to greenfields agreements and workplace determinations. Item 551 would make technical amendments to existing section 271A to replace the reference to "bargaining related workplace determinations" with a reference to "intractable bargaining workplace determinations". Amendment 58 would omit and substitute a new item 551 that would repeal section 271A. Section 271A would no longer be necessary as new section 234 provides that an application for an intractable bargaining declaration cannot be made where the proposed agreement is a greenfields agreement.

Varying ag reements to add employers

Amendment 66: Schedule 1, page 188 (after line 29), after item 596

Amendment 69: Schedule 1, item 597, page 191 (after line 3), at the end of section 216AB

Amendment 74: Schedule 1, item 597, page 194 (after line 29), at the end of section 216BA

250. Existing section 211 sets out when the FWC must approve a variation of an enterprise agreement. Amendment 66 would insert a new item 596A inserting a new subsection 211(1A) that would provide that the FWC must not approve the variation if the varied agreement will cover employees whose employer is specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to those employees.

251. New section 216AB would establish when the FWC must approve a variation of a supported bargaining agreement to add a new employer and employees with consent. Amendment 69 would add a new subsection 216AB(3) that would provide that the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a single interest employer authorisation in relation to any of the affected employees.

252. New section 216BA would set out when the FWC must vary a supported bargaining agreement to add an employer on application of an employee organisation that is covered by the supported bargaining agreement. Amendment 74 would add a new subsection 216BA(4) that would provide that the FWC must not make the variation if the employer that will be covered by the agreement is specified in a single interest employer authorisation in relation to any of the affected employees.

253. These amendments would prevent the FWC from approving a variation where the varied agreement would cover employees whose employer is specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to those employees. Likewise, the amendments would prevent the FWC from approving a variation of a supported bargaining agreement to add a new employer and employees where the varied agreement would cover an employer specified in a single interest employer authorisation in relation to any of the affected employees.

Amendment 88: Schedule 1, item 629, page 205 (after line 22), at the end of section 216DC

254. New section 216DC, inserted by item 629 of the Bill would set out the matters of which the FWC must be satisfied before approving a variation of a single interest employer agreement to extend coverage to a new employer and its affected employees. Amendment 87 would add a new subsection 216DC(5) that would provide that the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a supported bargaining authorisation in relation to any of the affected employees.

255. The amendment would prevent the FWC from approving a variation of a single interest employer agreement where the varied agreement would cover an employer specified in a supported bargaining authorisation in relation to those employees

Amendment 124: Schedule 1, item 649, page 223 (after line 33), at the end of section 216CB

256. New section 216CB, inserted by item 649 of the Bill, would set out the circumstances in which the FWC must approve a variation of a cooperative workplace agreement to add an employer and their affected employees. Amendment 123 would add a new subsection 216CB(3) that would provide that the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to any of the affected employees.

257. The amendment would prevent the FWC from approving a variation of a cooperative workplace agreement where the varied agreement would cover an employer specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to those employees.

Affected employees

Amendment 147: Schedule 1, item 661, page 241 (line 13)

258. The concept of "affected employees" would be central to a variation of an enterprise agreement under proposed Subdivisions AA, AB and AC of Division 7 of Part 2-4 of the FW Act. For example, it would inform who may make an application (proposed subsections 216A(1), 216(1) and 216C(1)), who may vote to approve the proposed variation (proposed subsections 216A(2) and 216C(2)), when the variation is made (proposed subsections 216A(4), 216BC and 216C(4)) and when the FWC must approve the variation (proposed subsections 216AB(1), 216BA(1) and 216CB(1)).

259. Item 661 would amend section 12 by repealing the definition of "affected employees" and substituting a new definition. Subsection (b) of the proposed new definition would provide that for a variation of an enterprise agreement under Subdivision AA, AB or AC of Division 7 of Part 2-4, affected employees means an employee employed by the employer at the time the variation is made who will be covered by the agreement if the variation is approved (or made) by the FWC. In other words, amendment 5 would modify this definition by inserting the words "by the employer" after "employed". The practical effect is to clarify that the reference to an 'employee employed at the time' is a reference to an 'employee employed by the employer at the time'.

260. The amendment is not required to be made in relation to new paragraph (a) of the definition because it applies to single-enterprise agreements.

261. In relation to new paragraph (c), this is a signpost definition and amendments 83 and 84 make a similar change to new paragraphs 216D(1)(b) and 216DB(1)(b) which sit within new Subdivision AD—Variation of single interest employer agreement to add employer and employees, within Division 7 of Part 2-4 of the FW Act (to be inserted by item 629 of the Bill).

262. The amendment is not required to be made in relation to new paragraph (d) of the definition because this relates to variations to remove an employer and their employees.

Supported bargaining

Amendment 80: Schedule 1, items 615 and 616, page 199 (lines 21 to 24)

263. Items 615 and 616 would make technical amendments to section 245, which deals with variations of low-paid authorisations, by replacing the words 'low-paid' with 'supported bargaining'.

264. Amendment 80 would omit items 615 and 616 and substitute a new item 615, to repeal existing section 245 and substitute a new section dealing with variations of supported bargaining authorisations.

265. New section 245 would provide that the FWC is taken to have varied a supported bargaining authorisation to remove an employer's name when the employer and all of their employees who are specified in the authorisation are covered by an enterprise agreement, or a workplace determination, that is in operation. This amendment is necessary as existing section 245 only requires that the enterprise agreement cover the employer.

266. The practical effect of this amendment would be that the FWC will not be taken to have varied a supported bargaining authorisation to remove an employer's name unless an enterprise agreement, or a workplace determination, that covers the employer and all of their employees who are specified in the authorisation, comes into operation. The amendment would eliminate the possibility of an employer being removed from an authorisation where they make an enterprise agreement with a separate group of employees to those covered by the authorisation or where they make an enterprise agreement with some, but not all, of the employees specified in the authorisation.

Presumptive provisions for firefighters

Amendment 150: Schedule 1, page 243 (after line 15), after item 667

267. Item 667A—This amendment would repeal paragraph 7(9)(a) of the SRC Act and substitute it with a new provision that would outline the circumstances in which employees are taken to have been employed as a firefighter for the purposes of the Act.

268. Item 667B—This amendment would introduce paragraph 7(9)(ba) to clarify that employees covered by paragraph 7(9)(a)(i) of the SRC Act are taken to have been employed as a firefighter during any period in which they were a member of a firefighting service.

This bill will get wages moving. It will streamline the process for single enterprise bargaining to incentivise greater take up by employers and employees. Employers and employees are better off on enterprise agreements, and it's that simple. For businesses and employees unable to access single enterprise bargaining, the bill creates flexible options for multi-employer bargaining.

These changes will update our workplace laws to bring employers and employees together to improve wages, conditions and productivity. Since the introduction of these reforms on 27 October, my department and I have continued to consult closely with businesses and unions. These amendments make sensible changes to the bill to address issues arising during consultation. At the request of business, the following key changes have been made.

First of all, on the primacy of single enterprise agreements: under our amendments, employers who have agreed with an employee organisation to start bargaining for a single enterprise agreement are exempt from the single interest stream. This is in addition to the existing exemption for employers with an in-term agreement. In a further change, the Fair Work Commission will have the capacity for up to six months, after the expiry of an agreement, to exempt an employer from the single interest stream where the employer has a history of effective bargaining. These changes will allow businesses who successfully bargain at the enterprise level to continue to do so and act as a strong incentive for new single enterprise agreements to be made.

Further changes with respect to voting: to address concerns that were raised in consultation, primarily with business, we'll amend the bill to clarify that all voting processes under the new single interest and supported bargaining streams will occur on an employer-by-employer basis. This means that an employer cannot be brought to the table to bargain or be covered by a multi-employer agreement unless either a majority of its own workforce or the employer itself supports this. It means that industrial action, where it is permitted, cannot occur where the workers for that employer have not voted for it. Current rules for employers with existing single interest agreements or who have applied for a declaration or an authorisation prior to the commencement of provisions will be preserved.

Under our amendments, we will require a minimum period of good-faith bargaining before an intractable bargaining declaration can be issued by the Fair Work Commission. We'll replace the record of noncompliance exclusion from multi-employer bargaining with an exclusion of the commercial building and construction industry as a whole. This step is not taken lightly, but we do not believe that it is appropriate or necessary to extend multi-employer bargaining to this industry at this time.

Our amendments establish the new National Construction Industry Forum as a statutory advisory body aimed at bringing unions, employers and government to the same table to promote positive cultural change in the sector. I want to thank the Business Council of Australia, COSBOA, the Australian Chamber of Commerce and Industry, the Australian Industry Group, the Minerals Council of Australia, the Australian Constructors Association, the Franchise Council of Australia, Live Performance Australia, the Australasian Convenience and Petroleum Marketers Association, the Australian Retailers Association and other business representatives for raising these issues with me on behalf of their members. I also want to thank and acknowledge the members for Wentworth, Warringah, Curtin, Goldstein, Indi, Fowler, Kooyong, North Sydney, Mackellar, Clark, Mayo and Kennedy for bringing the concerns of businesses in their electorates so passionately and constructively to this process.

We'll make amendments to strengthen the bill by providing that a multi-employer agreement must not be put to a vote unless it is agreed by all relevant employers and employee organisations: retaining safeguards for employees who are young, culturally or linguistically diverse or unrepresented during bargaining; clarifying that new employees hired after an agreement is approved can ask to have the better off overall test applied to them in certain circumstances. I want to thank the member for Melbourne, on behalf of the Australian Greens, and the work of Professor Stewart for the way in which this issue has been raised with us.

Regarding 'further improving access to the presumptive provisions for all firefighters covered by the Safety Rehabilitation and Compensation Act and clarifying access for volunteer firefighters', I thank and acknowledge Senator David Pocock, the member for Bean, the member for Canberra, the Minister for Finance, the member for Fenner, the United Firefighters Union, Mr Brett McNamara and, again, the Australian Greens for their ongoing advocacy and discussion on this issue. This remains unfinished business and we'll continue to consider improvements in this space.

Regarding 'clarify and improve the fixed term contract provisions and insert a new commencement date of 12 months to provide additional time for consultation and further refinement of these provisions, including for sports people and university staff', I thank ACCI, COSBOA, the member for Melbourne on behalf of the Greens and Senator Barbara Pocock for bringing these matters to our attention.

Regarding 'remove the capacity for ministerial directions to the general manager of the Fair Work Commission about the Fair Work Registered Organisations Act 2009, removing any capacity for interference with this function; preserve the concurrent operation of state and territory laws dealing with sexual harassment and ensure that the Commonwealth can be held vicariously liable for contraventions of the new prohibition on sexual harassment by Defence members and provide that certain Fair Work Commission orders under the new section 65C in relation to requests for flexible work cannot be inconsistent with the Fair Work Act 2009 or a term of a fair work instrument other than another Fair Work Commission order of the same kind' I thank the member for Melbourne for raising this issue. I commend— (Time expired)

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