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FAIR WORK ACT 2009 - SECT 30B

Meaning of referring State

Reference of matters by State Parliament to Commonwealth Parliament

             (1)  A State is a referring State if the Parliament of the State has, before 1 July 2009, referred the matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:

                     (a)  if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and

                     (b)  if and to the extent that the matters are included in the legislative powers of the Parliament of the State.

This subsection has effect subject to subsection (6).

             (2)  A State is a referring State even if:

                     (a)  the State's referral law provides that the reference to the Parliament of the Commonwealth of any or all of the matters covered by subsections (3), (4) and (5) is to terminate in particular circumstances; or

                     (b)  the State's referral law provides that particular matters, or all matters, relating to State public sector employees, or State public sector employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5); or

                     (c)  the State's referral law provides that particular matters, or all matters, relating to local government employees, or local government employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5).

Reference covering referred provisions

             (3)  This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by amending this Act, as originally enacted, to include the referred provisions.

Reference covering amendments

             (4)  This subsection covers the referred subject matters to the extent of making laws with respect to those matters by making express amendments of this Act.

Reference covering transitional matters

             (5)  This subsection covers making laws with respect to the transition from the regime provided for by:

                     (a)  the Workplace Relations Act 1996 ; or

                     (b)  a law of a State relating to workplace relations;

to the regime provided for by this Act.

Effect of termination of reference

             (6)  Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs:

                     (a)  the State's initial reference terminates;

                     (b)  the State's amendment reference terminates, and neither of subsections (7) and (8) apply to the termination;

                     (c)  the State's transition reference terminates.

             (7)  A State does not cease to be a referring State because of the termination of its amendment reference if:

                     (a)  the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and

                     (b)  the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and

                     (c)  that State's amendment reference, and the amendment reference of every other referring State (other than a referring State that has terminated its amendment reference in the circumstances referred to in subsection (8)), terminate on the same day.

             (8)  A State does not cease to be a referring State because of the termination of its amendment reference if:

                     (a)  the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and

                     (b)  the day fixed is no earlier than the first day after the end of the period of 3 months beginning on the day on which the proclamation is published; and

                     (c)  the Governor of that State, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor, this Act:

                              (i)  is proposed to be amended (by an amendment introduced into the Parliament by a Minister); or

                             (ii)  has been amended;

                            in a manner that is inconsistent with one or more of the fundamental workplace relations principles.

             (9)  The following are the fundamental workplace relations principles :

                     (a)  that this Act should provide for, and continue to provide for, the following:

                              (i)  a strong, simple and enforceable safety net of minimum employment standards;

                             (ii)  genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities;

                            (iii)  collective bargaining at the enterprise level with no provision for individual statutory agreements;

                            (iv)  fair and effective remedies available through an independent umpire;

                             (v)  protection from unfair dismissal;

                     (b)  that there should be, and continue to be, in connection with the operation of this Act, the following:

                              (i)  an independent tribunal system;

                             (ii)  an independent authority able to assist employers and employees within a national workplace relations system.



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