Tasmanian Bills Clause Notes Tasmanian Bills Clause Notes[Index] [Search] [Download] [Bill] [Help]
CLAUSE NOTES
Clause 1 Short Title
Sets out the short title to the Act.
Clause 2 Commencement
Provides for the commencement of the Act on a day or days to be
proclaimed. It is probable that the Act will commence on one date -
concurrently with the commencement of the balance of the Fair Work
Act 2009 (Cwlth). It has part commenced with last sections due to
commence on 1 January 2010.
Clause 3 Interpretation
Defines terms used in the Bill.
Subclause (1) includes the following definitions--
Commonwealth Fair Work Act means the Fair Work Act 2009 of the
Commonwealth;
excluded subject matter means a range of matters which would
generally remain within state powers except to the extent that the
Commonwealth Fair Work Act 2009 as already enacted deals with
those matter (directly or indirectly), or requires or permits instruments
made or given effect under that Act so to deal with those matters. In
essence if they are covered in the Fair Work Act as enacted in 2009 the
Commonwealth can continue to cover the matters but cannot extend
the Commonwealth Act to those matters except under the amendment
processes. This definition is used in limiting the scope of the reference
under clause 5(1)(b) (the amendment reference) as referred subject
matters exclude the excluded subject matters (see defn of referred
subject matter);
public sector employee and public sector employer these definitions
are used in section 6 to describe the scope of the public sector that is
excluded from reference
referred subject matters is defined by listing certain subject matters
dealt with in the Commonwealth Fair Work Act as enacted. This is
used in defining the scope of the amendment reference it excludes the
matters which the State proposes to retain in the definition of excluded
subject matter;
referred transition matters means matters of the making of laws with
respect to the transition from the regime provided for by the Workplace
Relations Act 1996 (Cwlth) or a Tasmanian law relating to workplace
relations, to the regime provided for by the Commonwealth Fair Work
Act. This defines the matters for the purposes clause 5(1)(c) (the
transition reference);
scheduled text means the text set out in the schedule to the Bill. This
is the text of a new Division 2A of Part 1-3 of the Commonwealth Fair
Work Act, which would be inserted into that Act by the proposed Fair
Work (State Referral and Consequential and Other Amendments) Bill
2009 of the Commonwealth. This text forms the basis of the initial
reference under clause 5(1)(a) (the initial reference);
Subclause (2) provides that where words are not defined in this clause
but are defined in the Commonwealth Act those definitions apply to the
terms in this Bill.
Clause 4 Fundamental workplace relations principles
These are the fundamental principles which underpin the
intergovernmental agreement on the referral of powers and the
National Workplace Relations System.
Clause 5 Reference of matters
The clause provides for the reference of matters to the Commonwealth
Parliament, subject to the exclusions in clause 6.
Subclause (1)(a) (the initial reference) refers to the Commonwealth the
matters to which the initial referred provisions relate, but only to the
extent of enabling the Commonwealth to make laws with respect to
those matters by including them in the Commonwealth Fair Work Act,
as originally enacted, in the terms, or substantially in the terms, set out
in the scheduled text.
Subclause (1)(b) (the amendment reference) refers to the
Commonwealth the referred subject matters as defined in clause 3(1),
but only to the extent of making laws with respect to any such matter
by making express amendments of the Commonwealth Fair Work Act.
The processes for gaining State and Territory agreement to such
amendments are contained in the IGA
Subclause (1)(c) (the transition reference) refers to the Commonwealth
the capacity to deal with the referred transition matters as defined in
clause 3(1).
Subclause (2) makes clear that the references have effect only to the
extent that the referred matters are not otherwise included in the
legislative powers of the Commonwealth Parliament and are within the
legislative powers of the State Parliament. The Commonwealth
constitutional powers over corporations cover a large part of the Fair
Work Act and this referral merely supplements and clarifies their
coverage.
Subclause (3) makes clear that any references under subclause (1) do
not affect the operation of any other reference under subclause (1).
Subclause (4) makes clear that the State Parliament does not intend to
impede the power of the Commonwealth to amend or otherwise alter
the operation of the Commonwealth Fair Work Act using legislative
powers the Commonwealth has in addition to the references under
clause 5(1).
Subclause (5) provides for the period during which the references will
have effect.
Clause 6 Matters excluded from reference
The clause specifies the matters excluded from the references under
subclause 5(1).
Paragraphs (a) to (f) exclude certain matters from the references in
respect of public sector employees, public sector employers, police
officers and certain other persons.
Clause 7 Termination of reference
The clause provides for termination of the references. All of the
references, or the amendment reference or transition reference
separately, terminate on a day fixed by the Governor by proclamation.
Subclauses (2) & (3) allow for the revocation of a termination
proclamation prior to it coming into effect
Subclause (4) allows a fresh proclamation to be made terminating a
reference.
Clause 8 Effect of termination of amendment reference or
transition reference before initial reference
The clause provides that termination of the amendment reference or
transition reference before the initial reference is terminated does not
affect laws then in place.
Clause 9 Period for termination of references
Subclause (1) provides that generally a termination proclamation must
give at least six months prior notice of the intention to withdraw the
reference.
Subclause (2) provides for the termination of the amendment reference
on only three months notice if it is considered that changes being made
to the Commonwealth Act are inconsistent with the principles in clause
4.
Subclause (3) requires the tabling in both Houses of a report by the
Minister on the termination of the amendment reference.
Clause 10 Administration of the Act
The clause assigns the administration of the Act to the Minister for
Workplace Relations and the Department of Justice.