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TASMANIA
__________
INDUSTRIAL RELATIONS (COMMONWEALTH
POWERS) BILL 2009
__________
CONTENTS
1. Short title
2. Commencement
3. Interpretation
4. Fundamental workplace relations principles
5. Reference of matters
6. Matters excluded from reference
7. Termination of reference
8. Effect of termination of amendment reference or transition
reference before initial reference
9. Period for termination of references
10. Administration of Act
Schedule 1 - Scheduled Text
[Bill 64]-XI
2
INDUSTRIAL RELATIONS (COMMONWEALTH
POWERS) BILL 2009
(Brought in by the Minister for Workplace Relations, the
Honourable Lisa Maria Singh)
A BILL FOR
An Act to refer certain matters relating to workplace
relations to the Parliament of the Commonwealth for the
purposes of section 51(xxxvii) of the Constitution of the
Commonwealth
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
(Commonwealth Powers) Act 2009.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
3. Interpretation
(1) In this Act, unless the contrary intention
appears -
[Bill 64] 3
Industrial Relations (Commonwealth Powers) Act 2009
Act No. of
s. 3
"amendment reference" means the reference
under section 5(1)(b);
"Commonwealth Fair Work Act" means the
Fair Work Act 2009 of the
Commonwealth, as amended from time
to time;
"excluded subject matter" means -
(a) a matter dealt with in the Anti-
Discrimination Act 1998;
(b) superannuation;
(c) workers compensation;
(d) occupational health and safety;
(e) matters relating to outworkers
within the ordinary meaning of
the term;
(f) child labour;
(g) training arrangements;
(h) long service leave;
(i) leave for victims of crime;
(j) attendance for service on a jury,
or for emergency service duties;
(k) declaration, prescription or
substitution of public holidays;
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Industrial Relations (Commonwealth Powers) Act 2009
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s. 3
(l) the following matters relating to
the provision of essential services
or to situations of emergency:
(i) directions to perform
work (including to
perform work at a
particular time or place,
or in a particular way);
(ii) directions not to perform
work (including not to
perform work at a
particular time or place,
or in a particular way);
(m) regulation of any of the
following:
(i) employee associations;
(ii) employer associations;
(iii) members of employee
associations or employer
associations;
(n) workplace surveillance;
(o) business trading hours;
(p) claims for enforcement of
contracts of employment, except
so far as a law of the State
provides for variation or setting
aside of rights and obligations
arising under a contract of
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Industrial Relations (Commonwealth Powers) Act 2009
Act No. of
s. 3
employment, or another
arrangement for employment,
that a court or tribunal finds is
unfair;
(q) rights or remedies incidental to a
matter referred to in any
paragraph from paragraph (a) to
paragraph (p) -
except to the extent that the Fair Work
Act 2009 of the Commonwealth, as
originally enacted, deals with the matter
(directly or indirectly) or requires or
permits instruments made or given effect
under the Commonwealth Fair Work Act
so to deal with the matter;
"express amendment" of the Commonwealth
Fair Work Act means the direct
amendment of the text of that Act
(whether by the insertion, omission,
repeal, substitution or relocation of words
or matter) but does not include the
enactment by a Commonwealth Act of a
provision that has, or will have,
substantive effect otherwise than as part
of the text of the Commonwealth Fair
Work Act;
"fundamental workplace relations
principles" has the meaning it has in
section 4;
"initial reference" means the reference under
section 5(1)(a);
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Industrial Relations (Commonwealth Powers) Act 2009
Act No. of
s. 3
"initial referred provisions" means the
scheduled text to the extent to which that
text deals with matters that are included
in the legislative powers of the
Parliament of the State;
"public sector employee" means a person
employed by a public sector employer;
"public sector employer" means -
(a) a Minister; or
(b) the Governor; or
(c) the Crown;
"reference" means -
(a) the initial reference; or
(b) the amendment reference; or
(c) the transition reference;
"referred subject matters" means any of the
following:
(a) terms and conditions of
employment, including any of the
following:
(i) minimum terms and
conditions of employment
(including employment
standards and minimum
wages);
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Industrial Relations (Commonwealth Powers) Act 2009
Act No. of
s. 3
(ii) terms and conditions of
employment contained in
instruments (including
instruments such as
awards, determinations
and enterprise-level
agreements);
(iii) bargaining in relation to
terms and conditions of
employment;
(iv) the effect of a transfer of
business on terms and
conditions of
employment;
(b) terms and conditions under which
an outworker entity may arrange
for work to be performed for the
entity (directly or indirectly), if
the work is of a kind that is often
performed by outworkers;
(c) rights and responsibilities of
persons, including employees,
employers, independent
contractors, outworkers,
outworker entities, associations
of employees or associations of
employers, being rights and
responsibilities relating to any of
the following:
(i) freedom of association
and related protections;
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Industrial Relations (Commonwealth Powers) Act 2009
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s. 3
(ii) protection from
discrimination relating to
employment;
(iii) termination of
employment;
(iv) industrial action;
(v) protection from payment
of fees for services related
to bargaining;
(vi) sham independent
contractor arrangements;
(vii) standing down employees
without pay;
(viii) rights of entry and rights
of access to records;
(d) compliance with, and
enforcement of, the
Commonwealth Fair Work Act;
(e) the administration of the
Commonwealth Fair Work Act;
(f) the application of the
Commonwealth Fair Work Act;
(g) matters incidental or ancillary to
the operation of the
Commonwealth Fair Work Act or
of instruments made or given
effect under the Commonwealth
Fair Work Act -
9
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s. 3
but does not include any excluded
subject matter;
"referred transition matters" means the
matters of the making of laws with
respect to the transition from the regime
provided for by -
(a) the Workplace Relations Act
1996 of the Commonwealth (as it
continues to apply because of the
Fair Work (Transitional
Provisions and Consequential
Amendments) Act 2009 of the
Commonwealth); or
(b) a law of this State relating to
industrial relations -
to the regime provided for by the
Commonwealth Fair Work Act;
"scheduled text" means the text set out in
Schedule 1;
"transition reference" means the reference
under section 5(1)(c).
(2) Words or phrases in the definition of "excluded
subject matter", or the definition of "referred
subject matters", that are defined in the
Commonwealth Fair Work Act have the same
meaning as in that Act.
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s. 4
4. Fundamental workplace relations principles
The following are the fundamental workplace
relations principles under this Act:
(a) that the Commonwealth Fair Work 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 the
Commonwealth Fair Work Act, the
following:
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s. 5
(i) an independent tribunal system;
(ii) an independent authority able to
assist employers and employees
within a national workplace
relations system.
5. Reference of matters
(1) Subject to the other provisions of this Act, the
following matters are referred to the Parliament
of the Commonwealth:
(a) the matters to which the initial referred
provisions relate, but only to the extent
of the making of laws with respect to
those matters by including the initial
referred provisions in the
Commonwealth Fair Work Act, as
originally enacted, and as subsequently
amended by amendments enacted at any
time before this Act commences, in the
terms, or substantially in the terms, set
out in the scheduled text;
(b) the referred subject matters, but only to
the extent of making laws with respect to
any such matter by making express
amendments of the Commonwealth Fair
Work Act;
(c) the referred transition matters.
(2) The reference of a matter under subsection (1)
has effect only -
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(a) if and to the extent that the matter is not
included in the legislative powers of the
Parliament of the Commonwealth
(otherwise than by a reference for the
purposes of section 51(xxxvii) of the
Constitution of the Commonwealth); and
(b) if and to the extent that the matter is
included in the legislative powers of the
Parliament of the State.
(3) The operation of each paragraph of
subsection (1) is not affected by any other
paragraph.
(4) For the avoidance of doubt, it is the intention of
the Parliament of the State that the
Commonwealth Fair Work Act may be expressly
amended, or have its operation otherwise
affected, at any time after the commencement of
this Act by provisions of Commonwealth Acts
whose operation is based on legislative powers
that the Parliament of the Commonwealth has
apart from under the references under
subsection (1).
(5) Despite any other provision of this section, a
reference under subsection (1) has effect for a
period -
(a) beginning when this section commences;
and
(b) ending at the end of the day fixed under
section 7 as the day on which the
reference is to terminate -
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s. 6
but no longer.
6. Matters excluded from reference
A matter referred by section 5 does not include -
(a) matters relating to Ministers, Members of
Parliament, judicial officers or members
of tribunals established by or under a law
of the State; or
(b) matters relating to public sector
employees, or officers within the
meaning of the State Service Act 2000; or
(c) matters relating to persons engaged as a
member of the personal staff of a
Minister or Member of Parliament; or
(d) matters relating to officers appointed
under section 3 of the Parliamentary
Privilege Act 1898; or
(e) matters relating to persons appointed
under the Governor of Tasmania Act
1982; or
(f) matters relating to -
(i) police officers; or
(ii) ancillary constables, or trainees,
or junior constables, within the
meaning of the Police Service Act
2003.
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s. 7
7. Termination of reference
(1) The Governor may, at any time, by proclamation
published in the Gazette, fix a day as the day on
which -
(a) the references are to terminate; or
(b) the amendment reference is to terminate;
or
(c) the transition reference is to terminate.
(2) The Governor may, by proclamation published
in the Gazette, revoke a proclamation published
under subsection (1), in which case the revoked
proclamation is taken (for the purposes of
section 5) never to have been published.
(3) A revoking proclamation has effect only if
published before the day fixed under
subsection (1).
(4) The revocation of a proclamation published
under subsection (1) does not prevent
publication of a further proclamation under that
subsection.
(5) If the amendment reference and the transition
reference have been terminated, the expression
"the references" in subsection (1) refers only to
the initial reference.
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s. 8
8. Effect of termination of amendment reference or
transition reference before initial reference
(1) If the amendment reference or the transition
reference terminates before the initial reference,
the termination of the amendment reference or
transition reference does not affect -
(a) laws that were made under that reference
before that termination (whether or not
they have come into operation before that
termination); or
(b) the continued operation in the State of
the Commonwealth Fair Work Act as in
operation immediately before that
termination or as subsequently amended
or affected by -
(i) laws referred to in paragraph (a)
that come into operation after that
termination; or
(ii) provisions referred to in
section 5(4).
(2) Accordingly, the amendment reference or
transition reference continues to have effect for
the purposes of subsection (1) unless the initial
reference is terminated.
9. Period for termination of references
(1) Subject to subsection (2), a day fixed by
proclamation under section 7(1) must be no
earlier than the first day after the end of the
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s. 9
period of 6 months beginning on the day on
which the proclamation is published.
(2) If -
(a) a proclamation under section 7(1) only
provides for the termination of the
amendment reference; and
(b) the Governor, as part of the proclamation
by which the termination is to be
effected, declares that, in the opinion of
the Governor, the Commonwealth Fair
Work Act -
(i) is proposed to be amended (by an
amendment introduced into the
Parliament of the Commonwealth
by a Commonwealth Minister);
or
(ii) has been amended -
in a manner that is inconsistent with one
or more of the fundamental workplace
relations principles -
the day fixed by the proclamation under
section 7(1)(b) may be earlier than the day that
applies under subsection (1) but must be 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.
(3) If the Governor terminates the amendment
reference and fixes a day under subsection (2),
the Minister must, as soon as practicable after
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Act No. of
s. 10
the publication of the relevant proclamation,
prepare a report on the matter and cause copies
of that report to be laid before both Houses of
Parliament.
10. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Workplace Relations;
and
(b) the department responsible to the
Minister for Workplace Relations in
relation to the administration of this Act
is the Department of Justice.
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SCHEDULE 1 - SCHEDULED TEXT
Section 3
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28 Government Printer, Tasmania