Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Hansard source

I agree with Senator Murray’s assessment of the first amendment. In relation to the provisions that he spent some time on, the government believe that they are generally minor. Under the new defence, an employer would need to prove that at the time the misrepresentation was made the employer did not know that the contract formed an employment, rather than an independent contracting, arrangement and that they were not reckless as to the nature of the contract. The employer would bear the onus of proof in relation to that. Basically, what we are doing there is ensuring—which I think most people would accept—if it was an honest mistake, that in those circumstances the employer would need in effect to prove that it was so. That is the purpose of those amendments. We are concerned to protect people from sham contracts, as we indicated earlier.

Question agreed to.

by leave—I move government amendments (8) to (13) together:

(8)    Schedule 2, page 10 (after line 6), after item 6, insert:

6A Subsection 75(2)

Repeal the subsection.

(9)    Schedule 2, page 10 (after line 11), at the end of the Schedule, add:

Part 3—Consequential amendments relating to building contractors

Building and Construction Industry Improvement Act 2005

Note:                This item updates a cross-reference.

73A ABC Commissioner or ABC Inspector may institute proceedings under the Independent Contractors Act 2006

Schedule 3—Amendments relating to protecting redundancy entitlements

Workplace Relations Act 1996

Note:   However, a redundancy provision that was included in a workplace agreement that has ceased operating might be preserved for a period of up to 12 months (see section 399A).

399A Preservation of redundancy provisions in certain circumstances

redundancy provision means any of the following kinds of provisions:

Division 6A—Transmission of preserved redundancy provisions from workplace agreements

598A Transmission of preserved redundancy provisions from workplace agreements

                   (i)    the old employer; and

                  (ii)    an employee;

Note:   The new employer must notify the transferring employee and lodge a copy of the notice with the Employment Advocate (see sections 603A and 603B).

Period for which new employer remains bound

Old employer’s rights and obligations that arose before time of transmission not affected

Definitions

instrument means any of the following:

redundancy provision means any of the following kinds of provisions:

603A Informing transferring employees about transmission of preserved redundancy provisions

Note:   This is a civil remedy provision, see section 605.

603B Lodging copy of notice about preserved redundancy provisions with Employment Advocate

Note 1:  This is a civil remedy provision, see section 605.

Note 2:  Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

Lodgment with Employment Advocate

Note:   This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) does not apply to lodgment of a notice.

Note:   However, a redundancy provision that was included in a pre-reform certified agreement that has ceased operating might be preserved for a period of up to 12 months (see clause 6A).

6A Preservation of redundancy provisions in certain circumstances

Note:   Subsection 170MH(3) of the pre-reform Act continues to apply because of paragraph 2(1)(k) of this Schedule.

instrument means either of the following:

redundancy provision means any of the following kinds of provisions:

6B Notification of preservation of redundancy provisions

6C Employer must notify employees of preserved redundancy provisions

Note:   Division 3 of Part 14 contains other provisions relevant to civil remedies.

Note:   Division 3 of Part 14 contains other provisions relevant to civil remedies.

Note:   However, a redundancy provision that was included in a pre-reform AWA that has ceased operating might be preserved for a period of up to 12 months (see clause 20A).

20A Preservation of redundancy provisions in certain circumstances

Note:   Subsection 170VM(3) of the pre-reform Act continues to apply because of paragraph 17(1)(c) of this Schedule.

instrument means any of the following:

redundancy provision means any of the following kinds of provisions:

20B Notification of preservation of redundancy provisions

21A Preservation of redundancy provisions in preserved collective State agreements in certain circumstances

Note:   Subsection 170MH(3) of the pre-reform Act applies because of subclause 21(2) of this Schedule and paragraph 2(1)(k) of Schedule 7.

instrument means any of the following:

redundancy provision means any of the following kinds of provisions:

21B Notification of preservation of redundancy provisions in preserved collective State agreements

21C Employer must notify employees of preserved redundancy provisions in preserved collective State agreements

Note:   Division 3 of Part 14 contains other provisions relevant to civil remedies.

Note:   Division 3 of Part 14 contains other provisions relevant to civil remedies.

21D Preservation of redundancy provisions in preserved individual State agreements in certain circumstances

Note:   Subsection 170VM(3) of the pre-reform Act applies because of subclause 21(3) of this Schedule and paragraph 17(1)(c) of Schedule 7.

instrument means any of the following:

redundancy provision means any of the following kinds of provisions:

21E Notification of preservation of redundancy provisions

Part 5A—Transmission of preserved redundancy provisions

27A Transmission of preserved redundancy provisions

                   (i)    the old employer; and

                  (ii)    an employee;

Note:   The new employer must notify the transferring employee and lodge a copy of the notice with the Employment Advocate (see clauses 29A and 29B).

Period for which new employer remains bound

Old employer’s rights and obligations that arose before time of transmission not affected

Definitions

instrument means any of the following:

redundancy provision means any of the following kinds of provisions:

29A Informing transferring employees about transmission of preserved redundancy provisions

Note:   This is a civil remedy provision, see clause 31.

29B Lodging copy of notice about preserved redundancy provisions with Employment Advocate

Note 1:  This is a civil remedy provision, see clause 31.

Note 2:  Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

Lodgment with Employment Advocate

Note:   This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) does not apply to lodgment of a notice.

Schedule 4—Amendments relating to stand downs

Workplace Relations Act 1996

authorised stand down means a stand down of an employee that is authorised as mentioned in subsection 691B(1).

6A

Division 7 of Part 12

Stand downs

Section 691C

                 (iv)    any hours in the week when the employee is stood down (but only if the stand down is an authorised stand down);

Division 7—Stand downs

691A Employer may stand down employees in certain circumstances

                   (i)    a strike; or

                  (ii)    a breakdown of machinery; or

                 (iii)    a stoppage of work for any cause for which the employer cannot reasonably be held responsible; and

                   (i)    there is no contract of employment, and no industrial instrument, that binds the employer in respect of the employment of the employee and that contains provision for the standing down of the employee during that period because of that circumstance; or

                  (ii)    a contract of employment, or industrial instrument, that binds the employer in respect of the employment of the employee contains provision for the standing down of the employee during that period because of that circumstance, but the employer’s right to stand down the employee is dependent on the employer having to apply to the Commission, a State industrial authority or another person or body for an order or determination (however described) authorising the employer to stand down the employee.

industrial instrument means any of the following:

691B Prohibition of unauthorised stand downs

Note 1:  Compliance with this subsection is dealt with as follows:

(a)        the model dispute resolution process applies (see subsection (2));

(b)        the Court may grant an injunction (see subsection (3));

(c)        the compliance provisions of Part 14 apply.

Note 2:  If the standing down of an employee is not authorised as mentioned in this subsection, the employee may recover any lost wages by taking appropriate enforcement action (whether under this Act or otherwise).

Note:   The model dispute resolution process is set out in Part 13.

691C Extraterritorial extension

Note:   In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

Employee in Australia’s exclusive economic zone

Note:   The regulations may prescribe the employee by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003.

On Australia’s continental shelf outside exclusive economic zone

Note:   The regulations may prescribe different requirements relating to different parts of Australia’s continental shelf. The regulations may need to do so to give effect to Australia’s international obligations.

Outside Australia’s exclusive economic zone and continental shelf

this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.

8

subsection 691B(1) (prohibition of unauthorised stand downs)

(a) an employee to whom subsection 691B(1) applies; (b) an inspector

Division 7A—Stand downs

880A Additional effect of Act—stand downs

Schedule 5—Amendments relating to the Australian Fair Pay and Conditions Standard

Workplace Relations Act 1996

APCS applies and contains frequency of payment provisions

                   (i)    that apply in relation to the employee’s employment; and

                  (ii)    that provide for payments in respect of periods of one month or less;

                   (i)    that apply in relation to the employee’s employment; and

                  (ii)    that provide for payments in respect of periods of one month or less;

Note:   Subsection (2) enables regulations to be made providing that an employee belonging to a specified class is not a shift worker.

                   (i)    the specified number of hours; or

                  (ii)    if the specified number of hours is more than 38 hours—38 hours;

Certain types of leave not to count as service

                   (i)    a term or condition of the employee’s employment; or

                  (ii)    a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory; or

Note:   For whether leave guaranteed under this Part counts as service, see subsections 238(2) (annual leave), 260(2) (paid personal leave), 261(2) (unpaid carer’s leave) and 316(2) (parental leave).

Entitlement to leave for all nominal hours in a day also extends to other hours on that day

Example:               Bianca is employed by BBB Bakers Pty Ltd. She works 40 hours per week (consisting of 38 hours plus 2 reasonable additional hours).

            Under subsection 232(2), Bianca is entitled to accrue paid annual leave of 1/13 of her nominal hours worked for each completed 4 week period of continuous service with BBB Bakers. Because of subparagraph 229(1)(a)(ii), Bianca’s nominal hours worked in a week are capped at 38 hours. If Bianca works her normal hours for a 12 month period, she will accrue 152 hours of paid annual leave.

            The above subsection ensures that Bianca will be able to be absent from work for 4 full 40 hour weeks. Bianca’s absence for the additional 8 hours will not be paid leave, and will not count as service, but it will not break her continuity of service (see subsection (8)).

basic periodic rate of pay has the meaning given by section 178.

Note:   See also section 243.

                   (i)    the specified number of hours; or

                  (ii)    if the specified number of hours is more than 38 hours—38 hours;

Certain types of leave not to count as service

                   (i)    a term or condition of the employee’s employment; or

                  (ii)    a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory; or

Note:   For whether leave guaranteed under this Part counts as service, see subsections 238(2) (annual leave), 260(2) (paid personal leave), 261(2) (unpaid carer’s leave) and 316(2) (parental leave).

243 Regulations may prescribe different definitions for piece rate employees

245A Entitlement to cash out an amount of paid personal/carer’s leave

Note:   If, under this section, an employee forgoes an entitlement to take an amount of paid personal/carer’s leave, the employee’s employer may deduct that amount from the amount of accrued paid personal/carer’s leave credited to the employee.

Note:   The protected amount of paid personal/carer’s leave for an employee whose nominal hours worked for an employer each week over a continuous period of 12 months service with the employer are 38 hours would be 114 hours (which would be equivalent to 15 days of paid personal/carer’s leave for that employee).

247A Entitlement to leave for all nominal hours in a day also extends to other hours on that day

Example:               Tina is employed by Terrific Videos Pty Ltd. She works 8 hours a day for 5 days a week, giving a weekly total of 40 hours per week (consisting of 38 hours plus 2 reasonable additional hours).

            Under subsection 246(2), Tina is entitled to accrue paid personal/carer’s leave of ¹/26 of her nominal hours worked for each completed 4 week period of continuous service with Terrific Videos. Because of subparagraph 241(1)(a)(ii), Tina’s nominal hours worked in a week are capped at 38 hours. If Tina works her normal hours for a 12 month period, she will accrue 76 hours of paid personal/carer’s leave.

            The above subsection ensures that Tina will be able (subject to the requirements of this Division relating to entitlement to paid personal/carer’s leave) to be absent from work for 10 full 8 hour days. Tina’s absence for the additional 4 hours over those 10 days will not be paid leave, and will not count as service, but it will not break her continuity of service (see subsection (2)).

basic periodic rate of pay has the meaning given by section 178.

Note:   See also section 264A.

piece rate employee means an employee who is paid a piece rate of pay within the meaning of section 178.

264A Regulations may prescribe different definition for piece rate employees

Note:   An employer may ask an employee to give the employer a statement from a medical practitioner as to the employee’s fitness to work (see subsections 274(2) and (2A)).

Note:   For the purposes of subsection (3), employer, employee and employment have their ordinary meaning. See sections 5, 6 and 7 and Schedule 2.

Schedule 6—Other amendments

Workplace Relations Act 1996

Note:   For the effect of the waiver, see subsection 337(5).

Note:                The heading to section 338 is replaced by the heading “Employees may waive 7-day period”.

346A Employer to provide copy of lodged AWA to employee

Note:   See Division 11 for provisions on enforcement.

                   (i)    the employer who lodged the declaration; and

                  (ii)    at least one employee, class of employees or organisation; and

Note:   For the effect of the waiver, see subsection 370(5).

Note:                The heading to section 371 is replaced by the heading “Employees may waive 7-day period”.

Note:                The heading to section 483 is altered by inserting “completed” after “of”.

                   (i)    of a rate provision; or

                  (ii)    of a casual loading provision; or

                 (iii)    of a frequency of payment provision.

frequency of payment provision has the same meaning as in Division 2 of Part 7.

                   (i)    special maternity leave (within the meaning of section 265);

                  (ii)    the entitlement under section 268 to transfer to a safe job or to take paid leave; and

                   (i)    special maternity leave (within the meaning of section 265);

                  (ii)    the entitlement under section 268 to transfer to a safe job or to take paid leave; and

transitional award has the same meaning as in Schedule 6.

Note:   Clause 5 of this Schedule, section 16 and Schedule 8 may also affect the terms and conditions of employment of an employee in relation to whom a pre-reform certified agreement is in operation.

Note:   Clause 19 of this Schedule, section 16 and Schedule 8 may also affect the terms and conditions of employment of an employee in relation to whom a pre-reform AWA is in operation.

Division 1—Continuing operation of section 170MX awards

22 Application of Division

                   (i)    is an employer (within the meaning of subsection 6(1)) at the reform commencement; or

                  (ii)    becomes such an employer during the transitional period; and

                   (i)    was in force just before the reform commencement; or

                  (ii)    was made after the reform commencement because of Part 8 of this Schedule.

Division 2—Special rules for section 170MX awards that bind excluded employers

26A Application of Division

                   (i)    was in force just before the reform commencement; or

                  (ii)    was made after the reform commencement because of Part 8 of this Schedule.

26B Cessation of section 170MX award

Note:   On and after that time, Division 1 of this Part applies to the section 170MX award.

26C Continuing operation of section 170MX awards—under old provisions

26D Continuing operation of section 170MX awards—under new provisions

26E Interaction of section 170MX awards with other instruments

30 Relationships between pre-reform agreements etc. and Australian Fair Pay and Conditions Standard

matter means a matter referred to in subsection 171(2).

Note:   This means that if a pre-reform certified agreement, a pre-reform AWA or a section 170MX award deals with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will not apply to the employee in respect of that matter.

            However, if a pre-reform certified agreement, a pre-reform AWA or a section 170MX award does not deal with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will apply to the employee in respect of that matter.

Note:   Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference certified agreement is in operation.

Note:   Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference Division 3 pre-reform certified agreement is in operation.

Note:   Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference AWA is in operation.

15E Relationship between preserved State agreements and Australian Fair Pay and Conditions Standard

matter means a matter referred to in subsection 171(2).

Note:   This means that if a preserved State agreement deals with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will not apply to the employee in respect of that matter.

            However, if a preserved State agreement does not deal with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will apply to the employee in respect of that matter.

Workplace Relations Amendment (Work Choices) Act 2005

(1)    The amendment of the Workplace Relations Act 1996 made by item 7 of this Schedule applies, and is taken always to have applied, on and from the reform commencement to an unlodged agreement, within the meaning of paragraph 347(2A)(b) of the Workplace Relations Act 1996, in relation to which a declaration was lodged on or after the reform commencement.

(2)    In this item:

(1)    This item applies to a ballot in respect of which a ballot order was made under section 462 of the Workplace Relations Act 1996 before the commencement of this item if:

(2)    After the commencement of this item, section 483 of the Workplace Relations Act 1996 is taken to apply to the incomplete ballot as if the ballot had been completed at the time of the certification referred to in paragraph (1)(b), so far as section 483 relates to costs:

(3)    To avoid doubt, this item does not affect any liability of the applicant in relation to the cost of holding the incomplete ballot and, in particular, does not impose any additional liability upon the applicant.

(1)    The amendments of the Workplace Relations Act 1996 made by items 25 and 26 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to a transferring transitional employee.

(2)    In this item:

(1)    The amendments of the Workplace Relations Act 1996 made by items 24, 29 and 34 to 40 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to a section 170MX award (within the meaning of the Workplace Relations Act 1996).

(2)    However, subitem (1) does not authorise the imposition of a civil penalty under Part 14 of the Workplace Relations Act 1996 for a breach that occurred before the commencement of this item.

(3)    In this item:

(1)    The amendments of the Workplace Relations Act 1996 made by items 31 and 33 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to a pre-reform certified agreement, a preserved State agreement, a notional agreement preserving State awards or a pre-reform AWA that is in operation on the reform commencement, whether or not the pre-reform certified agreement, the preserved State agreement, the notional agreement preserving State awards or the pre-reform AWA is in operation at the commencement of this item.

(2)    However, subitem (1) does not authorise the imposition of a civil penalty under Part 14 of the Workplace Relations Act 1996 for a breach that occurred before the commencement of this item.

(3)    In this item:

(1)    The amendments of the Workplace Relations Act 1996 made by items 41 and 45 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to an employee (including, but not limited to, for the purposes of Division 7 of Part 7 of that Act).

(2)    However, subitem (1) does not authorise the imposition of a civil penalty under Part 14 of the Workplace Relations Act 1996 for a breach that occurred before the commencement of this item.

(3)    In this item:

(1)    The amendments of the Workplace Relations Act 1996 made by items 46 and 47 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to an employee.

(2)    However, subitem (1) does not authorise the imposition of a civil penalty under Part 14 of the Workplace Relations Act 1996 for a breach that occurred before the commencement of this item.

(3)    In this item:

(1)    The amendment of the Workplace Relations Act 1996 made by item 48 of this Schedule applies, and is taken always to have applied, on and from the reform commencement, in relation to a transferring employee.

(2)    However, subitem (1) does not authorise the imposition of a civil penalty under Part 14 of the Workplace Relations Act 1996 for a breach that occurred before the commencement of this item.

(3)    In this item:

(1)    The amendments of the Workplace Relations Amendment (Work Choices) Act 2005 made by items 49 and 50 of this Schedule apply, and are taken alway