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TASMANIA
__________
INDUSTRIAL RELATIONS AMENDMENT (FAIR
CONDITIONS) BILL 2005
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 30 amended (Criteria applying to disputes relating to
termination of employment)
6. Section 30A substituted
30A. Employees under federal award
7. Section 35 amended (Certain matters to be dealt with by Full
Bench of Commission)
8. Part III, Division 2A inserted
Division 2A - Minimum conditions of employment relating to
all employees
47AA. Purpose and application of Division
47AB. Minimum weekly wage
47AC. Maximum ordinary working hours
47AD. Meal break
47AE. Annual leave
47AF. Personal leave
47AG. Parental leave
47AH. Jury service
47AI. Redundancy
47AJ. Payments to be based on ordinary pay
47AK. Offence provision
[Bill 71]-IX
9. Section 55 amended (Making of industrial agreements)
10. Section 61A amended (Interpretation)
11. Section 61J amended (Approval of enterprise agreement)
12. Section 75 amended (Records of employment and advice of pay
details)
13. Section 99 inserted
99. Registered agreements and awards to remain in force
14. Schedule 2 inserted
Schedule 2 - Unpaid parental leave
2
INDUSTRIAL RELATIONS AMENDMENT (FAIR
CONDITIONS) BILL 2005
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Industrial Relations Act 1984
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Industrial Relations
Amendment (Fair Conditions) Act 2005.
2. Commencement
(1) The provisions of this Act, other than section 12,
commence on a day to be proclaimed.
(2) Section 12 commences on 1 July 2006.
3. Principal Act
In this Act, the Industrial Relations Act 1984* is
referred to as the Principal Act.
*No. 21 of 1984
[Bill 71] 3
s. 4 No. Industrial Relations Amendment (Fair 2005
Conditions)
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting the following definitions
after the definition of "award":
"casual employee", unless prescribed
otherwise in an award or
agreement, means a person who
is engaged to work casual
employment;
"casual employment", unless
prescribed otherwise in an award
or agreement, means work
performed by an employee on an
irregular, variable or
unpredictable basis or on an as
and when required basis;
(b) by inserting the following definitions
after the definition of "Full Bench":
"full-time employee", unless
prescribed otherwise in an Act,
award or agreement, means a
person engaged to work full-time
employment;
"full-time employment", unless
prescribed otherwise in an Act,
award or agreement, means the
employment of an employee for
38 ordinary hours per week;
(c) by inserting the following definition after
the definition of "officer":
4
2005 Industrial Relations Amendment (Fair No. s. 4
Conditions)
"ordinary hourly or weekly rate of
pay" means the wages paid to an
employee in respect of his or her
ordinary working hours;
(d) by inserting the following definitions
after the definition of "outworker":
"part-time employee", unless
prescribed otherwise in an award
or agreement, means a person
who is engaged to work part-time
employment;
"part-time employment", unless
prescribed otherwise in an award
or agreement, means
employment -
(a) that is performed by an
employee on a regular
basis for less hours per
day or week than the
ordinary hours of an
equivalent full-time
employee; and
(b) the hours of which may
vary from time to time but
will generally remain
constant from day to day
and week to week;
(e) by inserting the following definitions
after the definition of "private
employer":
"probationary or trial period"
means a period of employment,
5
s. 5 No. Industrial Relations Amendment (Fair 2005
Conditions)
for the purpose of determining an
employee's suitability for
continuing employment, which -
(a) unless prescribed
otherwise in an Act,
award or agreement, does
not exceed 6 months from
the date of
commencement of
employment; and
(b) is stipulated in writing at
the time of engagement;
and
(c) is relevant to the work to
be performed; and
(d) is reasonable and
appropriate in the context
of acquiring the skills and
experience necessary to
satisfactorily perform the
duties of the job;
"probationary employment", unless
prescribed otherwise in an Act,
award or agreement, means
employment of an employee for a
probationary or trial period;
5. Section 30 amended (Criteria applying to disputes
relating to termination of employment)
Section 30(1) of the Principal Act is amended by
omitting the definition of "employee" and
substituting the following definitions:
6
2005 Industrial Relations Amendment (Fair No. s. 6
Conditions)
"continuing employment" means
employment that is of a continuing or
indefinite nature and for which there is
no expressed or implied end date to the
contract of employment;
"employee" means a person who is or was
engaged to work casual employment,
part-time employment, full-time
employment or probationary employment
and includes a former employee;
6. Section 30A substituted
Section 30A of the Principal Act is repealed and
the following section is substituted:
30A. Employees under federal award
A person -
(a) who is employed, or was
employed, under a federal award
but who is, or was, excluded
from, or for any other reason does
not have, or did not have at the
relevant time, access to a remedy
for termination of employment;
or
(b) to whom the termination
provisions contained in Division
3 of Part IVA of the
Commonwealth Act do not, or
did not at the relevant time,
apply -
7
s. 7 No. Industrial Relations Amendment (Fair 2005
Conditions)
may apply to the Commission for the
hearing of a dispute specified in
section 29(1A)(a) or (b).
7. Section 35 amended (Certain matters to be dealt
with by Full Bench of Commission)
Section 35 of the Principal Act is amended by
inserting after subsection (10) the following
subsection:
(10A) A Full Bench of the Commission must
convene and conduct a hearing annually
to determine the Tasmanian minimum
wage specified in section 47AB.
8. Part III, Division 2A inserted
After section 47 of the Principal Act, the
following Division is inserted in Part III:
Division 2A - Minimum conditions of employment relating
to all employees
47AA. Purpose and application of Division
(1) The purpose of this Division is to
establish a safety net of fair minimum
conditions of employment.
(2) The Commission may make an award or
approve an agreement or otherwise
determine a condition in excess of the
minimum conditions prescribed by this
Division, but must not make an award or
approve an agreement or otherwise
8
2005 Industrial Relations Amendment (Fair No. s. 8
Conditions)
determine a condition that is less than
those minimum conditions.
(3) This Division does not apply in respect
of a person granted an authority to work
under section 79 or 81 or in respect of
whom an order is made under section 80.
47AB. Minimum weekly wage
The minimum weekly wage for an adult
full-time employee is the Tasmanian
minimum wage as determined annually
by the Commission under
section 35(10A).
47AC. Maximum ordinary working hours
Unless prescribed otherwise in an Act,
award or agreement, an employee's
maximum number of ordinary working
hours per week is not to exceed 38.
47AD. Meal break
Unless prescribed otherwise in an Act,
award or agreement, an employee is
entitled to an unpaid meal break of at
least 30 minutes after each period of 5
hours' continuous work.
9
s. 8 No. Industrial Relations Amendment (Fair 2005
Conditions)
47AE. Annual leave
(1) An employee, other than a casual
employee or a part-time employee
receiving a loading in lieu of annual
leave, is entitled to a minimum of 4
weeks' paid annual leave, excluding
statutory holidays within the meaning of
the Statutory Holidays Act 2000, for each
completed year of continuous
employment.
(2) Where an employee's length of
employment is less than one year, the
employee is entitled to pro rata paid
annual leave upon termination of
employment, provided that the employee
has given the required period of notice.
(3) After each completed year of continuous
employment, a part-time employee is
entitled to be paid annual leave
calculated in the same proportion that his
or her part-time hours bears to the
ordinary hours of an equivalent full-time
employee.
(4) An employer must permit an employee to
take annual leave due under
subsection (1) or (3) within 6 months
after the leave falls due.
(5) Where an employee applies for leave, the
employee must give the employer not
less than 4 weeks' notice, or such other
period of notice as may be agreed, of the
employee's intention to take leave.
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2005 Industrial Relations Amendment (Fair No. s. 8
Conditions)
(6) Where an employer requires an employee
to take leave, the employer must give the
employee not less than 4 weeks' notice,
or such other period of notice as may be
agreed, of the requirement to take leave.
(7) Untaken annual leave accrues without
limit.
47AF. Personal leave
(1) An employee, other than a casual
employee or a part-time employee
receiving a loading in lieu of sick leave,
is entitled to a minimum of 10 days of
paid personal leave for each completed
year of employment.
(2) In the first year of employment, an
employee's entitlement to paid personal
leave accrues at the rate of five-sixths of
a day for each completed month of
employment.
(3) In the second year of employment and
each subsequent year, an employee's
entitlement to paid personal leave falls
due on the day on which the second or
subsequent year of employment
commences.
(4) A part-time employee is entitled to be
paid personal leave calculated in the
same proportion that his or her part-time
hours bears to the ordinary hours of an
equivalent full-time employee.
11
s. 8 No. Industrial Relations Amendment (Fair 2005
Conditions)
(5) Unless prescribed otherwise in an Act,
award or agreement, or by mutual
consent between an employer and an
employee, paid personal sick leave is
subject to the employee providing
adequate proof of illness to the employer
in respect of each period of absence.
(6) Untaken paid personal leave accrues
without limit.
(7) In this section, "paid personal leave"
means personal sick leave, carer's leave
and bereavement leave.
47AG. Parental leave
The minimum entitlements to unpaid
parental leave are set out in Schedule 2.
47AH. Jury service
Where an employee is required to
perform jury service, the employee's
employer is to make up the difference
between the employee's ordinary hourly
or weekly rate of pay and any jury
service allowance paid by the Crown to
the employee.
47AI. Redundancy
(1) Unless prescribed otherwise in an Act,
award or agreement or determined
otherwise by the Commission, an
12
2005 Industrial Relations Amendment (Fair No. s. 8
Conditions)
employee with more than one year's
employment with an employer must be
given not less than 4 weeks' notice of the
employer's intention to terminate the
employee's employment on account of
redundancy or 4 weeks' pay in lieu of
such notice.
(2) Unless prescribed otherwise in an Act,
award or agreement or determined
otherwise by the Commission, if an
employee's employment is terminated on
account of redundancy, the employee is
entitled to a redundancy severance
payment calculated on the basis of 2
weeks' wages for each completed year of
employment with the employer, up to a
maximum of 12 weeks.
47AJ. Payments to be based on ordinary pay
For the purposes of this Division, a
payment to an employee is to be based
on his or her ordinary hourly or weekly
rate of pay.
47AK. Offence provision
A person who contravenes or fails to
comply with a provision of this Division
is guilty of an offence and is liable on
summary conviction to a fine not
exceeding 50 penalty units.
13
s. 9 No. Industrial Relations Amendment (Fair 2005
Conditions)
9. Section 55 amended (Making of industrial
agreements)
Section 55 of the Principal Act is amended by
inserting after subsection (4) the following
subsections:
(4A) The Commission must ensure that an
industrial agreement does not
disadvantage the employees to be
covered by the agreement.
(4B) An industrial agreement is taken to
disadvantage employees if its approval
would result, on balance, in a reduction
in the overall terms and conditions of
employment of those employees
compared with the award or agreement
that would otherwise apply to those
employees.
(4C) Notwithstanding subsection (4A), the
Commission may approve an industrial
agreement if it is satisfied that it is
appropriate to approve the agreement,
having taken into account all of the
circumstances including -
(a) whether or not the genuine
consent of the parties to the
agreement has been given; and
(b) the public interest; and
(c) any other matter the Commission
considers relevant.
14
2005 Industrial Relations Amendment (Fair No. s. 10
Conditions)
10. Section 61A amended (Interpretation)
Section 61A of the Principal Act is amended by
omitting "Tasmanian State Training Authority
Act 1994" from the definition of "trainee" and
substituting "Vocational Education and Training
Act 1994".
11. Section 61J amended (Approval of enterprise
agreement)
Section 61J of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "The"
and substituting "Subject to
subsections (1A) and (1C), the";
(b) by inserting the following subsections
after subsection (1):
(1A) The Commissioner must ensure
that an enterprise agreement does
not disadvantage the employees
to be covered by the agreement.
(1B) An enterprise agreement is taken
to disadvantage employees if its
approval would result, on
balance, in a reduction in the
overall terms and conditions of
employment of those employees
compared with the award or
agreement that would otherwise
apply to those employees.
(1C) Notwithstanding subsection (1A),
the Commissioner may approve
15
s. 12 No. Industrial Relations Amendment (Fair 2005
Conditions)
an enterprise agreement if he or
she is satisfied that it is
appropriate to approve the
agreement having taken into
account all of the circumstances
including -
(a) whether or not the
genuine consent of the
parties to the agreement
has been given; and
(b) the public interest; and
(c) any other matter the
Commissioner considers
relevant.
12. Section 75 amended (Records of employment and
advice of pay details)
Section 75 of the Principal Act is amended by
inserting after subsection (1A) the following
subsections:
(1B) An employer must provide each
employee with written advice of pay
details for each pay period.
Penalty: Fine not exceeding 20 penalty
units.
(1C) The pay advice provided to the employee
by the employer must include, as a
minimum, the following:
(a) the name of the employer;
16
2005 Industrial Relations Amendment (Fair No. s. 12
Conditions)
(b) the name of the employee;
(c) the date and period for which
payment is being made;
(d) the employee's classification;
(e) the employee's weekly wage or
hourly rate;
(f) the number of ordinary hours the
employee worked in the relevant
pay period;
(g) the number of additional or
overtime hours worked in the pay
period and the rate at which those
hours have been paid;
(h) the amount of any paid leave,
including holidays;
(i) any amount paid as an allowance;
(j) any other amount included in the
gross wage;
(k) all deductions from the gross
wage, including tax;
(l) the net wage paid.
(1D) Where employer-paid superannuation
instalments are made on behalf of an
employee, the amount paid and the fund
into which it is paid is to be specified on
the employee's pay advice.
17
s. 13 No. Industrial Relations Amendment (Fair 2005
Conditions)
13. Section 99 inserted
After section 98 of the Principal Act, the
following section is inserted in Part VIII:
99. Registered agreements and awards to
remain in force
(1) A registered agreement in force on the
day on which the Industrial Relations
Amendment (Fair Conditions) Act 2005
commences continues in force for the
period specified in it unless it is sooner
terminated notwithstanding that the
conditions of employment set out in the
agreement are less than the minimum
conditions provided for in this Act.
(2) An award in force on the day on which
the Industrial Relations Amendment
(Fair Conditions) Act 2005 commences
continues in force notwithstanding that
the conditions of employment set out in
the award are less than the minimum
conditions provided for in this Act.
14. Schedule 2 inserted
After Schedule 1 to the Principal Act, the
following Schedule is inserted:
SCHEDULE 2 - UNPAID PARENTAL LEAVE
Section 47AG
1. Interpretation
In this Schedule -
18
2005 Industrial Relations Amendment (Fair No. s. 14
Conditions)
"adoption" means the adoption of a
child who -
(a) is not the natural child of
the employee or the
employee's partner; and
(b) is less than 5 years of age;
and
(c) has not lived continuously
with the employee for 6
months or longer;
"continuous service" means
continuous service under a
contract of employment and
includes a period of paid leave or
absence taken under an Act,
award or agreement;
"employee" does not include a person
engaged and paid as a casual
employee;
"expected date of birth" means a
date certified by a medical
practitioner as the expected date
of birth;
"parental leave" means unpaid leave
under this Schedule;
"partner" means a partner within the
meaning of the Relationships Act
2003.
19
s. 14 No. Industrial Relations Amendment (Fair 2005
Conditions)
2. Entitlement to parental leave
(1) An employee is entitled to take parental
leave for a period of up to 52 weeks for -
(a) the birth of a child to the
employee or the employee's
partner; or
(b) the placement of a child with the
employee with a view to the
adoption of the child by the
employee.
(2) An employee is not entitled to take
parental leave unless the employee -
(a) has, before the expected date of
birth or placement, completed at
least 12 months' continuous
service with the employer; and
(b) has given the employer at least 10
weeks' written notice of the
employee's intention to take the
leave.
(3) An employee is not entitled to take
parental leave at the same time as the
employee's partner apart from one
week's parental leave taken by the
employee and the employee's partner
immediately after the birth of the child or
the placement of the child for adoption
with the employee and the employee's
partner.
(4) Apart from the period of one week
referred to in subclause (3), an
20
2005 Industrial Relations Amendment (Fair No. s. 14
Conditions)
employee's entitlement to parental leave
is reduced by a period of parental leave
taken by the employee's partner for the
same child.
3. Maternity leave to start 6 weeks before birth
A female employee who has given notice
of her intention to take parental leave for
the birth of a child must start the leave 6
weeks before the expected date of birth
unless a medical practitioner has certified
that the employee is fit to work closer to
the expected date of birth.
4. Medical certificate
An employee who has given notice of
intention to take parental leave for the
birth of a child must provide the
employer with a certificate from a
medical practitioner certifying that the
employee or the employee's partner is
pregnant and the expected date of birth.
5. Notice of partner's parental leave
(1) An employee who has given notice of
intention to take parental leave, or who is
actually taking parental leave, must give
the employer notice of periods of
parental leave taken or to be taken by the
employee's partner for the same child.
21
s. 14 No. Industrial Relations Amendment (Fair 2005
Conditions)
(2) A notice given under subclause (1) must,
if the employer requires, be verified by
statutory declaration.
6. Starting and finishing dates of parental leave
(1) Subject to subclause (2), the starting and
finishing dates for a period of parental
leave are to be agreed between the
employer and the employee.
(2) Parental leave may not extend more than
one year after the date of the birth, or
placement for adoption, of the child to
whom the leave relates.
7. Return to work after parental leave
(1) Subject to subclauses (2) and (3), on
finishing parental leave, an employee is
entitled to the position that the employee
held immediately before starting parental
leave.
(2) If the employee was temporarily acting
in, or performing the duties of, a position
immediately before starting parental
leave, the entitlement under this section
relates to the employee's substantive
position.
(3) If the former position referred to in
subclause (1) is no longer available, the
employee is entitled to an available
position for which the employee is
qualified and suited and which is nearest
22
2005 Industrial Relations Amendment (Fair No. s. 14
Conditions)
in status and remuneration to the former
position.
8. Effect of parental leave on employment
rights
Absence on parental leave does not break
an employee's continuity of service, but
is not to be taken into account in
calculating the employee's period of
service.
9. Part-time employment in lieu of parental
leave
An employee who is entitled to parental
leave may, by agreement with the
employer, reduce the employee's hours
of employment to an agreed extent in lieu
of taking parental leave.
Government Printer, Tasmania 23