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

I present a supplementary explanatory memorandum to the bill. I move:

SHEET PC100

(1) Clause 2, page 3 (after table item 20), insert:

(2) Schedule 1, page 112 (after line 10), after Part 14, insert:

Part 14A — Amendments relating to mediation and conciliation conference orders made under section 448A of the Fair Work Act 2009

Fair Work Act 2009

236A Subsection 409(6A)

Repeal the subsection, substitute:

(6A) Each bargaining representative who applied for a protected action ballot order for the protected action ballot for the industrial action must not have contravened any order made under section 448A (which is about mediation and conciliation conferences) that related to the protected action ballot order.

236B Subsection 411(3)

After "The employer", insert "mentioned in subsection (2)".

(3) Schedule 1, item 308, page 223 (after line 28), at the end of Part 15, add:

Division 12 — Amendments made by Part 14A of Schedule 1 to the amending Act

111 Application of amendments

(1) The amendment of subsection 409(6A) of this Act made by Part 14A of Schedule 1 to the amending Act applies in relation to industrial action to the extent that the industrial action occurs, or is to occur, on or after the commencement of that Part.

(2) However, the amendment does not apply in relation to doing any of the following before that commencement in relation to industrial action, even if the industrial action occurs, or was to occur, on or after that commencement:

(a) organising the industrial action;

(b) threatening to engage in the industrial action;

(c) threatening to organise the industrial action;

(d) engaging in any other conduct in relation to the industrial action.

(3) For the purposes of subsection 409(6A) of this Act, as amended by Part 14A of Schedule 1 to the amending Act, it does not matter whether a contravention of an order made under section 448A of this Act occurred before, on or after the commencement of that Part.

_____

SHEET TD101

(1) Schedule 1, item 1, page 6 (after line 17), at the end of subsection 15A(2), add:

Note: A regular pattern of work does not of itself indicate a firm advance commitment to continuing and indefinite work. An employee who has a regular pattern of work may still be a casual employee if there is no firm advance commitment to continuing and indefinite work.

(2) Schedule 1, item 1, page 6 (line 24), omit "do not necessarily all", substitute "no single consideration is determinative and not all considerations necessarily".

(3) Schedule 1, item 6, page 9 (lines 15 to 18), omit subparagraph 66AAB(d)(iv).

(4) Schedule 1, item 7, page 11 (line 22), omit "and requests".

(5) Schedule 1, item 8, page 11 (lines 23 and 24), omit the item.

(6) Schedule 1, item 9, page 11 (lines 25 and 26), omit the item, substitute:

9 Subsection 66C(3) (note)

Repeal the note.

(7) Schedule 1, item 11, page 11 (line 29) to page 12 (line 8), omit the item, substitute:

11 Sections 66F to 66J

Repeal the sections.

(8) Schedule 1, item 12, page 12 (lines 14 and 15), omit "or 66J(1)(c)".

(9) Schedule 1, item 14, page 13 (lines 5 and 6), omit ", or requests conversion,".

(10) Schedule 1, item 15, page 13 (line 19), omit "and requests".

(11) Schedule 1, item 15, page 14 (lines 18 and 19), omit paragraph 66M(7)(a).

(12) Schedule 1, item 15, page 15 (line 13), omit "paragraph 66H(1)(b)", substitute "paragraph 66C(1)(a)".

(13) Schedule 1, item 15, page 16 (line 10), omit "any", substitute "an".

(14) Schedule 1, item 15, page 17 (lines 12 to 25), omit subsection 66MA(7), substitute:

Orders relating to offers for casual conversion

(7) For the purposes of paragraph (1)(b), if the employer has not made an offer under section 66B (which deals with casual conversion) to the employee, the order is that the employer make an offer of casual conversion under that section.

Note: Circumstances in which an employer has not made an offer under section 66B include where an employer has given the employee a notice under section 66C.

(15) Schedule 1, page 18 (after line 13), after item 18, insert:

18A Paragraphs 125A(2)(d) and (da)

Repeal the paragraphs.

(16) Schedule 1, item 21, page 19 (lines 2 to 17), omit section 359A.

(17) Schedule 1, item 23, page 20 (table item 11B, column 1), omit "359A(1)".

(18) Schedule 1, page 20 (after line 7), after item 23, insert:

23A At the end of subparagraph 548(1B)(a)(ii)

Add "and".

23B Subparagraphs 548(1B)(a)(iii) and (iv)

Repeal the subparagraphs.

23C Subsection 548(1B) (note)

Repeal the note, substitute:

Note: Orders that a court may make under Division 2 in relation to small claims proceedings may include the following:

(a) requiring an employer of a casual employee to consider whether the employer must make an offer under section 66B to convert the casual employee to part-time or full-time employment on the basis that the employee meets the requirements of paragraphs 66B(1)(a) and (b);

(b) preventing an employer from relying on a particular ground under section 66C to not make such an offer.

(19) Schedule 1, item 308, page 217 (lines 25 to 33), omit subclauses 93(6) and (7), substitute:

(6) For the purposes of applying subclause (5) in relation to employment relationships entered into before commencement:

(a) any period of employment as a casual employee that occurred before commencement is to be disregarded for the purposes of paragraphs 66AAB(c) and (d) of the amended Act; and

(b) paragraph 66AAB(d) of the amended Act is taken to include a requirement that in the period referred to in that paragraph the employee has not:

(i) been given a response before commencement by the employer under section 66G refusing a request made by the employee under section 66F; or

(ii) been given a response after commencement by the employer under section 66G refusing a request made by the employee under section 66F (as those sections continue to apply because of subclauses (6A) and (6B)).

(6A) Despite subclause (5), section 66F as in force immediately before commencement continues to apply after commencement in relation to employment relationships entered into before commencement for a period of:

(a) for an employer that is a small business employer—12 months from commencement; or

(b) for an employer that is not a small business employer—6 months from commencement.

(6B) Despite subclause (5), sections 66G to 66J as in force immediately before commencement continue to apply after commencement in relation to:

(a) a request made before commencement by an employee under section 66F for which, immediately before commencement, a response under section 66G or a notice under section 66J had not been given; or

(b) a request made after commencement by an employee under section 66F (as that section continues to apply because of subclause (6A)).

(7) Despite subclause (5), sections 66M and 739 as in force immediately before commencement continue to apply after commencement to:

(a) disputes that arose before commencement relating to the operation of Division 4A of Part 2-2; and

(b) disputes that arise after commencement relating to the operation of sections 66F to 66J (as those sections continue to apply because of subclauses (6A) and (6B)).

_____

SHEET TM103

(1) Schedule 1, item 84, page 66 (line 21), after "business", insert "employer".

(2) Schedule 1, item 90, page 68 (line 30), at the end of subparagraph 350C(3)(b)(iii), add "employer".

_____

SHEET RL102

(1) Schedule 1, page 39 (after line 4), after item 72, insert:

72A At the end of section 201

Add:

Approval decision to note that enterprise agreement to be new host employment instrument for regulated labour hire arrangement order

(5) If:

(a) the FWC approves an enterprise agreement; and

(b) the enterprise agreement will become the host employment instrument covered by a regulated labour hire arrangement order because of section 306EB;

the FWC must note in its decision to approve the agreement that the agreement will be the host employment instrument covered by the order.

Note: Certain notification requirements also apply if the enterprise agreement will be the host employment instrument covered by a regulated labour hire arrangement order (see section 306EC).

(2) Schedule 1, item 73, page 39 (lines 15 and 16), omit the paragraph beginning "Division 2 also deals with" in section 306A, substitute:

Division 2 also deals with the making of alternative protected rate of pay orders by the FWC, the continued application of regulated labour hire arrangement orders in particular circumstances, and certain payments relating to termination of employment.

(3) Schedule 1, item 73, page 40 (lines 30 to 32), omit subsection 306D(2), substitute:

(2) A reference in this Part to work performed for a person includes a reference to work performed wholly or principally for the benefit of:

(a) the person; or

(b) an enterprise carried on by the person; or

(c) a joint venture or common enterprise engaged in by the person and one or more other persons.

(4) Schedule 1, item 73, page 41 (lines 13 and 14), omit "to a regulated host to perform work for the regulated host", substitute "to perform work for a regulated host".

(5) Schedule 1, item 73, page 41 (after line 23), after subsection 306E(1), insert:

(1A) Despite subsection (1), the FWC must not make the order unless it is satisfied that the performance of the work is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection (7A).

(6) Schedule 1, item 73, page 42 (after line 29), after subsection 306E(7), insert:

Matters that must be considered in relation to whether work is for the provision of a service

(7A) For the purposes of subsection (1A), the matters are as follows:

(a) the involvement of the employer in matters relating to the performance of the work;

(b) the extent to which, in practice, the employer or a person acting on behalf of the employer directs, supervises or controls (or will direct, supervise or control) the regulated employees when they perform the work, including by managing rosters, assigning tasks or reviewing the quality of the work;

(c) the extent to which the regulated employees use or will use systems, plant or structures of the employer to perform the work;

(d) the extent to which either the employer or another person is or will be subject to industry or professional standards or responsibilities in relation to the regulated employees;

(e) the extent to which the work is of a specialist or expert nature.

(7) Schedule 1, item 73, page 42 (line 31), omit "The", substitute "For the purposes of subsection (2), the".

(8) Schedule 1, item 73, page 43 (lines 12 to 35), omit paragraph 306E(8)(b).

(9) Schedule 1, item 73, page 44 (after line 3), after paragraph 306E(8)(d), insert:

(da) if the performance of the work is or will be wholly or principally for the benefit of a joint venture or common enterprise engaged in by the regulated host and one or more other persons:

(i) the nature of the regulated host's interests in the joint venture or common enterprise; and

(ii) the pay arrangements that apply to employees of any of the other persons engaged in the joint venture or common enterprise (or related bodies corporate of those other persons);

(10) Schedule 1, item 73, page 44 (line 19), after "order", insert "under this section".

(11) Schedule 1, item 73, page 44 (line 20), after "order", insert "under this section".

(12) Schedule 1, item 73, page 44 (after line 25), at the end of subsection 306E(9), add:

Note: For paragraphs (b) and (c), additional employers and regulated employees of those employers may be covered by the order under section 306EA.

(13) Schedule 1, item 73, page 44 (after line 30), at the end of Subdivision A, add:

306EA Regulated labour hire arrangement order may cover additional arrangements

Determination that application covers additional employers and employees

(1) If an application for a regulated labour hire arrangement order is made in relation to a regulated host, an employer and one or more employees of the employer, the FWC may determine that the application is taken to also relate to:

(a) one or more other employers (each of which is an additional employer) that the FWC is satisfied supply or will supply, in the manner referred to in paragraph 306E(1)(a), one or more employees to perform work, for the regulated host, of the kind in relation to which the application was made; and

(b) the employees referred to in paragraph (a) of this subsection (each of whom is an additional regulated employee).

Note: The employees referred to in paragraph (a) of this subsection are regulated employees (see subsection 306E(5)).

(2) The FWC may make the determination:

(a) on its own initiative; or

(b) on application by any of the following:

(i) the applicant for the order or any other person who could have applied for the order (see subsection 306E(7));

(ii) the employer mentioned in paragraph 306E(1)(a);

(iii) an employer that supplies or will supply employees as referred to in paragraph (1)(a) of this section;

(iv) a person who is such an employee;

(v) an employee organisation that is entitled to represent the industrial interests of such an employee.

(3) If the FWC makes such a determination, the FWC must seek the views of the following before deciding whether to make the regulated labour hire arrangement order:

(a) the additional regulated employees;

(b) employee organisations that are entitled to represent the industrial interests of the additional regulated employees;

(c) the additional employers.

Additional employers and employees in regulated labour hire arrangement order

(4) Subject to subsections (5) and (6), if the FWC makes a determination under subsection (1) in relation to an application for a regulated labour hire arrangement order, the FWC may specify in the regulated labour hire arrangement order (if made) that, in addition to the persons referred to in paragraphs 306E(9)(b) and (c), the order also covers:

(a) any or all of the additional employers; and

(b) additional regulated employees of those employers.

(5) The FWC must not specify an additional employer or additional regulated employees of the employer under subsection (4) unless:

(a) the FWC is satisfied of the matters mentioned in subsection 306E(1) in relation to the additional employer and the additional regulated employees; and

(b) the FWC is satisfied that the covered employment instrument that would apply to the additional regulated employees, as referred to in paragraph 306E(1)(b), is the host employment instrument covered by the order; and

(c) the FWC is satisfied that the performance of the work by the additional regulated employees is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection 306E(7A) in relation to the additional employer and the additional regulated employees.

(6) The FWC must not specify an additional employer or additional regulated employees of the employer under subsection (4) if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to:

(a) the views (if any) of persons referred to in subsection (3); and

(b) any matters mentioned in subsection 306E(8) in relation to which submissions are made, to the extent the submissions relate to the additional employer and the additional regulated employees.

306EB Application of regulated labour hire arrangement order to new covered employment instrument

(1) This section applies if:

(a) a regulated labour hire arrangement order is in force; and

(b) the host employment instrument covered by the order ceases to apply to the regulated host covered by the order, or to a class of employees of the regulated host covered by the order, in connection with another covered employment instrument (the new instrument) starting to apply to the regulated host or those employees; and

(c) the new instrument would apply to the regulated employees covered by the order if the regulated host were to employ the employees to perform work of a kind to which the order relates.

(2) From the time the new instrument starts to apply to the regulated host or the class of employees mentioned in paragraph (1)(b), the order has effect (and may be dealt with) as if the new instrument were the host employment instrument covered by the order.

(3) For the purposes of paragraph (1)(c), in determining whether a covered employment instrument would apply to the employees, it does not matter on what basis the employees are or would be employed.

306EC Notification requirements in relation to new covered employment instrument

Notification by regulated host

(1) If a regulated labour hire arrangement order in force covers a regulated host and an event mentioned in subsection (2) occurs, the regulated host must, as soon as practicable after the event occurs, give written notice to any employers covered by the order of:

(a) the event; and

(b) the effect that the event will have or would have in relation to the order.

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

(2) The events are the following:

(a) approval, by employees, of a covered employment instrument that will, if it comes into operation, become the host employment instrument covered by the order because of section 306EB;

(b) any other approval or making of a covered employment instrument that will, if it comes into operation, become the host employment instrument covered by the order because of section 306EB, other than an approval by the FWC of an enterprise agreement (see subsection (3) of this section).

Notification by FWC

(3) If the FWC approves an enterprise agreement that, because of section 306EB, will become the host employment instrument covered by a regulated labour hire arrangement order, the FWC must, as soon as practicable after the approval, give written notice to any employers covered by the order of:

(a) the approval of the enterprise agreement; and

(b) the effect of the approval in relation to the order.

306ED Varying regulated labour hire arrangement order to cover new employers

(1) This section applies if:

(a) a regulated labour hire arrangement order that covers a regulated host and one or more employers, and relates to a kind of work, is in force or has been made but is not yet in force; and

(b) one or more other employers (each of which is a new employer) start or will start to supply employees (each of whom is a relevant regulated employee) to perform work of that kind for the regulated host, in a manner referred to in paragraph 306E(1)(a); and

(c) the new employers are not covered by any regulated labour hire arrangement order (whether in force, or made but not yet in force) that covers or will cover the relevant regulated employees in relation to the performance of that work; and

(d) the FWC did not make a determination under subsection 306EA(1) in relation to the new employers and the application for the regulated labour hire arrangement order.

Note: The employees referred to in paragraph (b) of this subsection are regulated employees (see subsection 306E(5)).

Regulated host must make application

(2) As soon as practicable after the regulated host becomes aware of the circumstances referred to in paragraph (1)(b), the regulated host must apply to the FWC for an order under this section varying the regulated labour hire arrangement order to cover the new employers and the relevant regulated employees of those employers.

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

(3) Section 588 (discontinuing applications) does not apply in relation to the application unless the circumstances referred to in paragraph (1)(b) of this section no longer exist.

(4) As soon as possible after the application is made, the regulated host must give written notice of the following to each of the new employers:

(a) that the application has been made;

(b) the effect of subsection (11) in relation to the application.

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

FWC must decide whether to make variation order

(5) The FWC must:

(a) decide whether to make an order under this section varying the regulated labour hire arrangement order in accordance with subsection (6) or (7) to cover:

(i) any or all of the new employers; and

(ii) relevant regulated employees of those employers; and

(b) take all reasonable steps to make the decision before the time any of those employees start to perform the work referred to in paragraph (1)(b).

(6) The FWC must vary the regulated labour hire arrangement order to cover a new employer and the relevant regulated employees of the employer if the regulated host and the new employer notify the FWC that the regulated host and the new employer agree to the making of the variation.

(7) Subject to subsections (8) and (9), the FWC must also vary the regulated labour hire arrangement order to cover a new employer and the relevant regulated employees of the employer if the FWC is satisfied of the matters referred to in subsection 306E(1) in relation to the regulated host, the new employer and the relevant regulated employees.

(8) The FWC must not vary the regulated labour hire arrangement order in accordance with subsection (7) unless the FWC is satisfied that the performance of the work by the relevant regulated employees is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters referred to in subsection 306E(7A) in relation to the new employer and the relevant regulated employees.

(9) The FWC must not vary the regulated labour hire arrangement order in accordance with subsection (7) if the FWC is satisfied that it is not fair and reasonable in all the circumstances to make the variation, having regard to any matters referred to in subsection 306E(8) in relation to which submissions have been made in respect of the variation.

When variation order comes into force

(10) An order under this section comes into force on a day specified in the order.

Interim arrangements before FWC decides application

(11) If the FWC does not decide whether to make an order under this section by the time referred to in paragraph (5)(b), the regulated labour hire arrangement order is taken (so long as it is in force) to cover the new employers and the relevant regulated employees from the time the application for the order under this section is made until:

(a) if the FWC decides not to make an order under this section—the time the FWC makes that decision; or

(b) if the FWC decides to make an order under this section—the time that order comes into force.

306EE Notifying tenderers etc. of regulated labour hire arrangement order

(1) This section applies if:

(a) a regulated host is covered by a regulated labour hire arrangement order that is in force or has been made but is not yet in force; and

(b) a tender process is conducted:

(i) by or on behalf of the regulated host; or

(ii) for the purposes of a joint venture or common enterprise engaged in by the regulated host and one or more other persons.

(2) If it could reasonably be expected that one or more employers would, as a result of the tender process, become covered by the regulated labour hire arrangement order because of section 306ED, the regulated host must ensure that, from the start of the tender process, all prospective tenderers are advised, in writing, that if one or more tenderers are successful in the process:

(a) one or more employers could become covered by the regulated labour hire arrangement order; and

(b) the employers could be required to pay employees of the employers who perform work for the regulated host, in accordance with this Part, in connection with the work.

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

(3) If the regulated host is required to apply to the FWC in relation to one or more employers under subsection 306ED(2) as a result of the tender process, the regulated host must, as soon as practicable after the end of the tender process, advise the successful tenderer or tenderers in that process (whether or not they are the employers), in writing, of the following:

(a) that the regulated host is required to make the application;

(b) the effect of subsection 306ED(11) in relation to the application;

(c) that if the FWC decides to vary the order under section 306ED to cover those employers, and the order is in force or comes into force, the employers will be required to pay employees of the employers who perform work for the regulated host, in accordance with this Part, in connection with the work.

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

(14) Schedule 1, item 73, page 45 (line 9), at the end of subsection 306F(1), add "of the employer".

(15) Schedule 1, item 73, page 45 (line 15), omit the heading to subsection 306F(3), substitute:

Exceptions

(16) Schedule 1, item 73, page 45 (after line 25), after subsection 306F(3), insert:

(3A) The employer does not contravene subsection (2) if:

(a) the regulated labour hire arrangement order covers the employer because of the operation of subsection 306ED(11); and

(b) the employer pays the regulated employee at less than the protected rate of pay because the employer has not been either:

(i) notified that the regulated host has made an application under subsection 306ED(2) (which deals with certain variation orders); or

(ii) for an employer who was a successful tenderer in a tender process—advised under subsection 306EE(2) or (3) (which deal with notifying tenderers) in relation to the regulated labour hire arrangement order.

(17) Schedule 1, item 73, page 48 (line 19), after "employees", insert "of the employer".

(18) Schedule 1, item 73, page 49 (line 10), after "employees", insert "of the employer".

(19) Schedule 1, item 73, page 49 (line 14), after "employees", insert "of the employer".

(20) Schedule 1, item 73, page 49 (line 18), after "employees", insert "of the employer".

(21) Schedule 1, item 73, page 49 (line 23), after "employees", insert "of the employer".

(22) Schedule 1, item 73, page 50 (line 2), omit "an employer", substitute "one or more employers".

(23) Schedule 1, item 73, page 50 (line 6), omit "an employer", substitute "one or more employers".

(24) Schedule 1, item 73, page 50 (line 10), omit "an employer", substitute "one or more employers".

(25) Schedule 1, item 73, page 50 (lines 23 to 25), omit paragraph 306L(1)(a), substitute:

(a) the regulated host, an employer covered by the regulated labour hire arrangement order or a regulated employee covered by the order who is performing or is to perform work for the regulated host; or

(26) Schedule 1, item 73, page 51 (line 13), omit subparagraph 306L(4)(c)(ii), substitute:

(ii) any relevant employers covered by the regulated labour hire arrangement order; and

(27) Schedule 1, item 73, page 52 (line 10), after "employee", insert "of the employer".

(28) Schedule 1, item 73, page 52 (line 13), after "employee", insert "of the employer".

(29) Schedule 1, item 73, page 52 (line 17), after "employee", insert "of the employer".

(30) Schedule 1, item 73, page 55 (line 11), after "employee", insert "of the employer".

(31) Schedule 1, item 73, page 55 (after line 33), at the end of Division 2, add:

Subdivision E — Termination payments

306NA Determining amounts of payments relating to termination of employment

Application of this section

(1) This section applies if:

(a) a regulated employee's employment is or is to be terminated; and

(b) the employee is or has been covered by a regulated labour hire arrangement order.

Determining amounts of payments relating to termination of employment

(2) Subject to subsection (5), if an amount that the employee's employer is required to pay to the employee (or to a person on the employee's behalf) in relation to the termination of the employment is to be determined wholly or partly on the basis of a rate of pay in relation to the employee, the rate of pay for the purposes of determining the amount is:

(a) if the employee is covered by subsection (3) in relation to the amount—the applicable rate of pay that results from the operation of this Part; or

(b) in any other case—the applicable rate of pay to which the employee is entitled apart from the operation of this Part.

(3) This subsection covers the employee in relation to the amount if:

(a) immediately before the termination of the employment occurs or is to occur, the employee is or will be covered by a regulated labour hire arrangement order in force in relation to work performed by the employee for a regulated host; and

(b) the termination of the employment occurs or is to occur during a period in which the employee is performing work for the regulated host, including a period when the employee is taking paid or unpaid leave, or is absent, in connection with that work and the leave or absence is authorised:

(i) by the employee's employer; or

(ii) by or under a term or condition of the employee's employment; or

(iii) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law; and

(c) the rate of pay mentioned in paragraph (2)(a) is higher than the rate mentioned in paragraph (2)(b); and

(d) unless the amount is a payment in lieu of notice of termination—the employee has not performed work for any other regulated host in relation to the employee's employment with the employer.

(4) If the performance of the work for the regulated host relates to a joint venture or common enterprise engaged in by the regulated host and one or more other persons, then for the purposes of paragraph (3)(d), disregard any work that is taken to be performed for those other persons because of the operation of paragraph 306D(2)(c).

Excluded subject matters

(5) If the employer is a national system employer only because of section 30D or 30N, nothing in this Part, including the determination of any rate of pay under or in accordance with this Part, affects any amount:

(a) that the employer is required to pay to the employee (or to a person on the employee's behalf) in relation to the termination of the employment; and

(b) which relates to an excluded subject matter within the meaning of subsection 30A(1) or 30K(1).

Interaction with fair work instruments etc.

(6) This section applies despite:

(a) a fair work instrument that applies to the employee; or

(b) a covered employment instrument (other than a fair work instrument) that applies to the employee; or

(c) the employee's contract of employment.

(32) Schedule 1, item 73, page 56 (line 8), after "employee", insert "of the employer".

(33) Schedule 1, item 73, page 56 (line 11), after "employee", insert "of the employer".

(34) Schedule 1, item 73, page 60 (after line 9), after section 306S, insert:

306SA Avoidance of application of regulated labour hire arrangement orders

(1) A person contravenes this section if:

(a) the person is an employer or a regulated host; and

(b) the person, either alone or with one or more other persons:

(i) enters into a scheme; or

(ii) begins to carry out a scheme; or

(iii) carries out a scheme; and

(c) the person does so for the sole or dominant purpose of avoiding the application of a regulated labour hire arrangement order that has been made (whether or not the order is yet in force), in relation to any person or persons (whether or not those persons are the same persons mentioned in paragraph (b)); and

(d) as a result of that scheme or part of that scheme, a person avoids the application of the regulated labour hire arrangement order.

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

(2) In this section:

scheme means:

(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or

(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

(35) Schedule 1, item 74, page 62 (table item 9A), omit the table item, substitute:

_____

SHEET ZE250

(1) Clause 2, page 4 (in the appropriate position in the table), insert:

(2) Page 278 (after Schedule 4), in the appropriate position, insert:

Schedule 5 — Amendment of the Coal Mining Industry (Long Service Leave) Administration Act 1992

Coal Mining Industry (Long Service Leave) Administration Act 1992

1 Subsection 13(4)

Omit "the Mining and Energy Division of the Construction, Forestry, Mining and Energy Union", substitute "the Mining and Energy Union".

2 Subsection 13(7)

Repeal the subsection.

3 Savings provision — appointments of directors

(1) This item applies in relation to a person who, immediately before the day this Schedule commences (the commencement day), held office under subsection 13(4) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 as a Director of the Board of Directors of the Coal Mining Industry (Long Service Leave Funding) Corporation.

(2) The person continues, on and after the commencement day, to hold office under subsection 13(4) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 as a Director of the Board of Directors of the Coal Mining Industry (Long Service Leave Funding) Corporation to represent the Mining and Energy Union:

(a) on the terms and conditions that applied to the person immediately before the commencement day; and

(b) for the balance of the person's term of appointment that remained immediately before the commencement day.

_____

SHEET ZE251

(1) Clause 2, page 4 (in the appropriate position in the table), insert:

(2) Schedule 4, page 278, in the appropriate position in the Schedule, insert:

Part 8 — Family and Injured Workers Advisory Committee

Work Health and Safety Act 2011

74 After Part 3 of Schedule 2

Insert:

Part 3A — Family and Injured Workers Advisory Committee

3A Definitions for this Part

In this Part:

Advisory Committee means the Family and Injured Workers Advisory Committee established under clause 3B.

Advisory Committee member means a member of the Advisory Committee and includes the Co-Chairs.

Co-Chair means a Co-Chair of the Advisory Committee.

first Co-Chair means the Co-Chair appointed in accordance with subclause 3E(5).

second Co-Chair means the Co-Chair appointed in accordance with subclause 3E(6).

serious work-related incident means the death of a person, or a serious injury or illness of a person, arising out of the conduct of a business or undertaking.

3B Establishment of the Family and Injured Workers Advisory Committee

The Minister must establish a committee called the Family and Injured Workers Advisory Committee. The Advisory Committee must be established before the end of the period of 12 months beginning on the day this Part commences.

3C Functions of the Advisory Committee

The functions of the Advisory Committee are as follows:

(a) to give advice, and make recommendations, to the Minister about the needs of persons affected, directly or indirectly,by serious work-related incidents;

(b) to give advice to Comcare about, and contribute to the development and review of, Comcare's policies, practices and strategies for liaising with, and providing information to, persons affected, directly or indirectly, by serious work-related incidents that arise out of the conduct of a business or undertaking by the Commonwealth, a public authority or a non-Commonwealth licensee;

(c) to give advice to the Australian Maritime Safety Authority about, and contribute to the development and review of, the Authority's policies, practices and strategies for liaising with, and providing information to, persons affected, directly or indirectly, by serious work-related incidents that arise on a prescribed ship (within the meaning of the Occupational Health and Safety (Maritime Industry) Act 1993) or a prescribed unit (within the meaning of that Act) that is engaged in trade or commerce of the kind referred to in subsection 6(1) of that Act;

(d) to give advice to the National Offshore Petroleum Safety and Environmental Management Authority about, and contribute to the development and review of, the Authority's policies, practices and strategies for liaising with, and providing information to, persons affected, directly or indirectly, by serious work-related incidents that arise:

(i) at a facility (within the meaning of Schedule 3 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006) located in Commonwealth waters (within the meaning of that Schedule); or

(ii) out of the conduct of a business or undertaking in the Commonwealth offshore area (within the meaning of the Offshore Electricity Infrastructure Act 2021);

(e) such other functions as are prescribed by the regulations.

3D Membership of the Advisory Committee

The Advisory Committee consists of the following members:

(a) 2 Co-Chairs;

(b) at least 3 other members.

3E Appointment of Advisory Committee members

(1) Each Advisory Committee member is to be appointed by the Minister, by written instrument, on a part-time basis.

Note: An Advisory Committee member may be reappointed (see section 33AA of the Acts Interpretation Act 1901).

(2) The instrument of appointment of an Advisory Committee member must specify whether the member is appointed as the first Co-Chair, second Co-Chair or another member.

Period of appointment

(3) An Advisory Committee member holds office for the period specified in the member's instrument of appointment. The period must not be more than 3 years.

(4) An Advisory Committee member is eligible for reappointment but must not hold office for a total of more than 9 years.

Eligibility for appointment as Advisory Committee member (including first Co-Chair but not including second Co-Chair)

(5) A person is eligible for appointment as an Advisory Committee member (including the first Co-Chair, but not including the second Co-Chair) only if the Minister is satisfied that:

(a) the person has, or has had, a serious injury or illness that arose out of the conduct of a business or undertaking; or

(b) the person has lived experience as family member or carer of another person who:

(i) has died, if the person's death arose out of the conduct of a business or undertaking; or

(ii) has, or has had, a serious injury or illness that arose out of the conduct of a business or undertaking; or

(c) the person has been affected, directly or indirectly, by a serious work-related incident suffered by another person.

Note: Examples of persons for the purposes of paragraph (c) are friends and co-workers.

Eligibility for appointment as second Co-Chair

(6) A person is eligible for appointment as the second Co-Chair only if the Minister is satisfied that the person has relevant skills and experience in relation to trauma and group facilitation.

Additional member

(7) Without limiting this clause, if the Advisory Committee already has at least 5 members (including the first Co-Chair and the second Co-Chair), the Minister may appoint an additional Advisory Committee member under subclause (1) who has relevant skills and experience in relation to trauma and grief.

3F Invited participants

(1) A Co-Chair may, after consulting the other members of the Advisory Committee, invite a person, body or organisation to participate in a meeting.

(2) A Co-Chairmay terminate the invitation at any time, including during a meeting.

(3) The participation of a person in a meeting does not make the person a member.

(4) A person invited to participate in a meeting:

(a) is entitled to payment of travel allowance prescribed by the regulations for the purposes of this paragraph; and

(b) must comply with any requirements prescribed by the regulations for the purposes of this paragraph.

(5) Regulations made for the purposes of subclause (4) may identify a rate by reference to the rate of travelling allowance that is payable to a particular class of office holders under a determination of the Remuneration Tribunal as in force at a particular time, or as in force from time to time.

Note: This subclause is not intended to be an exhaustive statement of the ways in which a rate could be identified.

(6) The regulations may provide for or in relation to persons invited to participate in a meeting.

3G Acting appointments

(1) The Minister may, by written instrument, appoint an Advisory Committee member (other than the second Co-Chair) to act as the first Co-Chair:

(a) during a vacancy in the office of the first Co-Chair (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the first Co-Chair:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

(2) The Minister may, by written instrument, appoint an Advisory Committee member (other than the first Co-Chair), or any other person, to act as the second Co-Chair:

(a) during a vacancy in the office of the second Co-Chair (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the second Co-Chair:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

(3) A person is not eligible for appointment under subclause (2) unless the person is eligible for appointment as the second Co-Chair under subclause 3E(6).

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

(4) The Minister may, by written instrument, appoint a person to act as an Advisory Committee member (other than a Co-Chair):

(a) during a vacancy in the office of an Advisory Committee member (other than a Co-Chair) (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when an Advisory Committee member (other than a Co-Chair):

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

(5) A person is not eligible for appointment under subclause (4) unless the person is eligible for appointment as an Advisory Committee member under subclause 3E(5).

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

3H Remuneration and allowances

(1) An Advisory Committee member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Advisory Committee member is to be paid the remuneration that is prescribed by the regulations.

(2) An Advisory Committee member is to be paid the allowances that are prescribed by the regulations.

(3) This clause has effect subject to the Remuneration Tribunal Act 1973.

3J Leave of absence

(1) The Minister may grant leave of absence to a Co-Chair on the terms and conditions that the Minister determines.

(2) A Co-Chair may grant leave of absence to an Advisory Committee member (other than a Co-Chair) on the terms and conditions that the Co-Chair determines.

3K Disclosure of interests to the Minister

An Advisory Committee member must give written notice to the Minister of all interests, pecuniary or otherwise, that the member has or acquires and that conflict or could conflict with the proper performance of the member's functions.

3L Disclosure of interests to the Advisory Committee

(1) An Advisory Committee member who has an interest, pecuniary or otherwise, in a matter being considered or about to be considered by the Advisory Committee must disclose the nature of the interest to a meeting of the Advisory Committee.

(2) The disclosure must be made as soon as possible after the relevant facts have come to the Advisory Committee member's knowledge.

(3) The disclosure must be recorded in the minutes of the meeting.

3M Resignation

(1) An Advisory Committee member may resign the member's appointment by giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

3N Termination of appointment

(1) The Minister may terminate the appointment of an Advisory Committee member:

(a) for misbehaviour; or

(b) if the Advisory Committee member is unable to perform the duties of the office because of physical or mental incapacity.

(2) The Minister may terminate the appointment of an Advisory Committee member if:

(a) the Advisory Committee member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with the member's creditors; or

(iv) makes an assignment of the member's remuneration for the benefit of the member's creditors; or

(b) the Advisory Committee member fails, without reasonable excuse, to comply with clause 3K or 3L (which deal with disclosure of interests).

(3) The Minister must terminate the appointment of an Advisory Committee member if the Advisory Committee member is absent, except on leave of absence, from 3 consecutive meetings of the Advisory Committee.

3P Other terms and conditions

An Advisory Committee member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

3Q Meetings and procedures

(1) The regulations may prescribe the procedures to be followed at, or in relation to, meetings of the Advisory Committee, including matters relating to the following:

(a) convening meetings;

(b) the number of Advisory Committee members who are to constitute a quorum at a meeting;

(c) the selection of an Advisory Committee member to preside at a meeting in the absence of a Co-Chair;

(d) the manner in which questions arising at a meeting are to be decided;

(e) inviting persons with appropriate expertise or technical knowledge to attend meetings;

(f) keeping minutes of meetings.

(2) A resolution is taken to have been passed at a meeting of the Advisory Committee if:

(a) without meeting, a majority of Advisory Committee members indicate agreement with the resolution in accordance with the method determined by the Advisory Committee under subclause (3); and

(b) all Advisory Committee members were informed of the proposed resolution, or reasonable efforts had been made to inform all Advisory Committee members of the proposed resolution.

(3) Subclause (2) applies only if the Advisory Committee:

(a) determines that it applies; and

(b) determines the method by which Advisory Committee members are to indicate agreement with resolutions.

3R Administrative support

The Secretary of the Department must ensure that the Advisory Committee has the necessary administrative and other support to enable the Advisory Committee to perform its functions efficiently and effectively.

_____

SHEET ZE255

(1) Schedule 1, item 248, page 125 (after line 31), at the end of Subdivision A, add:

15KA Specific provision about the effect of certain provisions relating to digital platform work in determining whether a person is an employee or an employer

(1) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between an individual and a person, any steps taken by a digital labour platform operator to comply with its obligations under any of the following in relation to the individual are to be disregarded:

(a) Part 3A-3;

(b) the Digital Labour Platform Deactivation Code;

(c) an order made under, or for the purposes of, Chapter 3A.

(2) An employee-like worker to whom an employee-like worker minimum standards order applies in relation to particular digital platform work is not an employee of any person in relation to that work.

(2) Schedule 1, item 249, page 135, after line 6, after subsection 536JF(2), insert:

(2A) The specified day for an employee-like worker minimum standards order must be a day that the FWC is satisfied will provide sufficient time for the FWC to undertake a reasonable period of consultation after the relevant notice of intent for the order was published, having regard to the unique nature of digital platform work.

(3) Schedule 1, item 249, page 135, after line 21, after subsection 536JF(6), insert:

(6A) The relevant notice of intent for an employee-like worker minimum standards order is the notice of intent published under subsection 536KAA(1) at the same time as the draft of the employee-like worker minimum standards order is made.

(4) Schedule 1, item 249, page 147 (line 21), at the end of paragraph 536JX(a), add:

; and (viii) reflect the differences in the form of engagement of regulated workers as independent contractors to the form of engagement of employees; and

(ix) have regard to the ability of regulated workers to perform work under services contracts for multiple businesses, and the fact that the work may be performed simultaneously;

(5) Schedule 1, item 249, page 147 (lines 25 to 31), omit subparagraphs 536JX(b)(i) and (ii), substitute:

(i) take into account costs necessarily incurred by regulated workers directly arising from the performance of a services contract; and

(ii) take into account safety net minimum standards that apply to employees performing comparable work; and

(6) Schedule 1, item 249, page 148 (line 1), omit subparagraph 536JX(c)(ii), substitute:

(ii) business costs, regulatory burden, sustainability, innovation, productivity or viability;

(7) Schedule 1, item 249, page 148 (after line 4), at the end of paragraph 536JX(c), add:

(v) persons or bodies that use or rely on the work performed by regulated workers, or the services received under services contracts for the performance of that work;

(8) Schedule 1, item 249, page 148 (line 6), after "Chapter", insert "and to avoid unnecessary overlap of such orders or instruments".

(9) Schedule 1, item 249, page 149, lines 19 and 20, omit the heading to Subdivision B, substitute:

Subdivision B — Matters relating to employee-like worker minimum standards orders

(10) Schedule 1, item 249, page 149, lines 21 and 22, omit the heading to section 536K, substitute:

536K Particular matters FWC must take into account in making a decision on an employee-like worker minimum standards order

(11) Schedule 1, item 249, page 150, after line 6, at the end of section 536K, add:

(4) The FWC:

(a) must not make or vary the employee-like worker minimum standards order unless there has been genuine engagement with the parties to be covered; and

(b) must not make or vary the employee-like worker minimum standards order unless the consultation process set out in Subdivision BA has been followed; and

(c) must have regard to choice and flexibility in working arrangements in making or varying the employee-like worker minimum standards order.

(12) Schedule 1, item 249, page 150, before line 7, before Subdivision C, insert:

Subdivision BA — Consultation process for employee-like worker minimum standards orders

536KAA FWC to prepare and publish a draft of an employee-like worker minimum standards order

(1) Before making an employee-like worker minimum standards order, the FWC must:

(a) publish a notice (a notice of intent) stating that the FWC proposes to make an employee-like worker minimum standards order; and

(b) publish a draft of the proposed employee-like worker minimum standards order.

(2) The FWC must publish the notice of intent and the draft of the employee-like worker minimum standards order on the FWC's website and by any other means the FWC considers appropriate.

536KAB Affected entities to have a reasonable opportunity to make submissions on a draft employee-like worker minimum standards order

(1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the draft of an employee-like worker minimum standards order published under subsection 536KAA(1)(b), having regard to the unique nature of digital platform work.

(2) The FWC must publish submissions made to the FWC.

(3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:

(a) may decide not to publish the information; and

(b) may instead publish:

(i) a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or

(ii) if the FWC considers that it is not practicable to prepare a summary that would comply with subparagraph (i)—a statement that confidential or commercially sensitive information in the submission has not been published.

(4) The publishing of material under subsections (2) and (3) must be on the FWC's website and by any other means the FWC considers appropriate.

(5) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

(6) For the purposes of subsection (1), an affected entity, in relation to a draft employee-like worker minimum standards order published under paragraph 536KAA(1)(b), is:

(a) a person or body likely to be affected by the making of an employee-like worker minimum standards order based on the draft; or

(b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.

536KAC Hearings in relation to draft order

The FWC may, but is not required to, hold a hearing in relation to a draft employee-like worker minimum standards order.

536KAD Finalising draft order

(1) The FWC may make any changes it thinks appropriate to a draft employee-like worker minimum standards order.

(2) If changes made under subsection (1) are significant, the FWC must:

(a) decide not to make the employee-like worker minimum standards order based on the draft; and

(b) publish a subsequent notice of intent under subsection 536KAA(1) in relation to the revised draft employee-like worker minimum standards order, and publish the revised draft; and

(c) follow the process set out in section 536KAB in relation to the revised draft employee-like worker minimum standards order, with the period of consultation under that section to be a period that the FWC is satisfied is a reasonable period of consultation, having regard to the unique nature of digital platform work.

536KAE Decision not to make order based on the draft

The FWC may decide that no employee-like worker minimum standards order is to be made based on the draft. If the FWC does so, the FWC must publish notice of the decision on its website and by any other means the FWC considers appropriate.

(13) Schedule 1, item 249, page 156 (line 3), omit paragraph 536KL(1)(c).

(14) Schedule 1, item 249, page 156 (line 4), after "record-keeping", insert "in relation to matters covered by or required by this Act, or by an order or instrument made under this Act, being matters that concern regulated workers or regulated businesses".

(15) Schedule 1, item 249, page 157, after line 3, after section 536KM, insert:

536KMA Further terms that must not be included in an employee-like worker minimum standards order

(1) In addition to the matters in section 536KM, an employee-like worker minimum standards order must not include terms about any of the following matters:

(a) penalty rates for work performed at particular times or on particular days (including, but not limited to, loadings and shift allowances);

(b) payment for:

(i) time before the acceptance of an engagement on a digital labour platform; or

(ii) time in between the completion of an engagement and the commencement of the next engagement on a digital labour platform;

(c) minimum periods of engagement or a minimum payment referable to a period of minimum engagement.

(2) Despite subsection (1), a term about a matter mentioned in subsection (1) may be included in an employee-like worker minimum standards order if the FWC is satisfied that the inclusion of the term is appropriate, having regard to:

(a) the type of work performed by the employee-like workers covered by the employee-like worker minimum standards order; and

(b) the digital labour platform operators covered by the employee-like worker minimum standards order.

(16) Schedule 1, item 249, page 161 (after line 27), after paragraph 536KY(a), insert:

(aa) in the case of employee-like worker minimum standards orders—in section 536KMA;

(17) Schedule 1, item 249, page 168, after line 3, at the end of section 536LH, add:

(3) Despite subsection (1) and any other provision of this Part, a deactivation of a person from a digital labour platform is not unfair if:

(a) the deactivation is constituted by the modification or suspension of the person's access to the digital labour platform for a period of not more than 7 business days; and

(b) the FWC is satisfied that the digital labour platform operator concerned believes on reasonable grounds that one or more of the matters in subsection (4) is applicable.

(4) For the purposes of subsection (3), the matters are as follows:

(a) that the deactivation of the person is necessary to protect the health and safety of a user of the digital labour platform or member of the community;

(b) that the person has engaged in fraudulent or dishonest conduct including, but not limited to, by misrepresenting or falsifying information provided to the digital labour platform operator;

(c) that the person has not complied with licensing and accreditation requirements imposed by or under a law of the Commonwealth, a State or a Territory, whether:

(i) the requirements relate to the licensing or accreditation of the person; or

(ii) the requirements relate to the licensing or accreditation of the digital labour platform operator, and the person's conduct causes, or may cause, the digital labour platform operator to breach the requirements;

(d) that the deactivation of the person is necessary to enable the digital labour platform operator to do one or more of the following in relation to a matter specified in paragraph (a), (b) or (c):

(i) conduct an investigation;

(ii) refer the matter to a law enforcement agency (however described) for the purposes of conducting an investigation.

_____

SHEET ZB263

(1) Schedule 2, page 236 (after line 21), after item 17, insert:

17A At the end of section 8

Add:

Relationship with Financial Framework (Supplementary Powers) Act 1997

(5) To avoid doubt, the power of the Commonwealth to spend amounts for the purposes of this section must be disregarded for the purpose of paragraph 32B(1)(a) of the Financial Framework (Supplementary Powers) Act 1997.

Note: The effect of this subsection is to make clear that this section does not effectively limit the operation of section 32B of the Financial Framework (Supplementary Powers) Act 1997. The Commonwealth has the power to make, vary or administer an arrangement or grant under that section whether the Commonwealth also has the power to spend amounts for the purposes of this section.

_____

SHEET PA102

(1) Clause 2, page 4 (table item 21), omit the table item, substitute:

When the debate resumes, I will explain what all that meant.

Scott Buchholz (Wright, Liberal Party) Share this | Link to this | Hansard source

The debate is now interrupted in accordance with standing order 43.