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FAIR WORK (COMMONWEALTH POWERS) AMENDMENT BILL 2009

   Fair Work (Commonwealth Powers)
         Amendment Bill 2009

                        Introduction Print

              EXPLANATORY MEMORANDUM


                                 General
The Bill amends the workplace relations referral to the Commonwealth
Parliament under the Fair Work (Commonwealth Powers) Act 2009 to
reflect proposed amendments to the Fair Work Act 2009 of the
Commonwealth and to address some technical matters.
The Bill also updates references to federal workplace relations laws,
industrial instruments and the federal workplace relations tribunal in the
Country Fire Authority Act 1958, Disability Act 2006, Duties Act 2000,
Equal Opportunity Act 1995, Fundraising Act 1998, Health Services
(Conciliation and Review) Act 1987, Legal Profession Act 2004,
Petroleum (Submerged Lands) Act 1982, Pre-school Teachers and
Assistants (Leave) Act 1984, Rail Safety Act 2006 and Working with
Children Act 2005, and repeals certain provisions of the Parliamentary
Administration Act 2005.

                              Clause Notes

                      PART 1--PRELIMINARY
Clause 1   sets out the purposes of the Bill, which are to amend the Fair
           Work (Commonwealth Powers) Act 2009 as a consequence of
           various proposed amendments to the Fair Work Act 2009 of the
           Commonwealth, to make other amendments to the Fair Work
           (Commonwealth Powers) Act 2009 and to make related
           amendments to other Acts.

Clause 2   provides for the commencement of the Bill on a day or days to be
           proclaimed. If a provision of Parts 1, 3 or 4 is not proclaimed to
           commence before 1 July 2010, it will commence on that day.
           Clause 2 does not specify a default commencement date for
           Part 2 as the amendments to the Fair Work (Commonwealth
           Powers) Act 2009 are intended to commence at the same time as


561439                               1     BILL LA INTRODUCTION 13/10/2009

 


 

the proposed amendments to the Fair Work Act 2009 of the Commonwealth. PART 2--AMENDMENT OF THE FAIR WORK (COMMONWEALTH POWERS) ACT 2009 Clause 3 amends definitions in the Fair Work (Commonwealth Powers) Act 2009. Subclause (1) amends the definition of referred subject matters to mirror proposed amendments to the corresponding definition in the Fair Work Act 2009 of the Commonwealth. Subclause (2) amends the definition of State subject matters to mirror proposed amendments to the definition of excluded subject matter in the Fair Work Act 2009 of the Commonwealth. Subclause (3), in combination with clause 4, inserts a new definition of fundamental workplace relations principles which mirrors a corresponding proposed new definition in the Fair Work Act 2009 of the Commonwealth. This definition is used in the reference termination provisions inserted by clause 8. Subclause (4) repeals the definition of essential services. Subclause (5) amends section 3(3) to make clear that words or phrases in the definitions of referred subject matters and State subject matters that are defined in the Fair Work Act 2009 of the Commonwealth (other than in Division 2A of that Act), have the same meaning as in the Commonwealth Act as in force on 1 July 2009. This reflects a proposed amendment to section 30A of the Commonwealth Act. Clause 4 inserts into the Fair Work (Commonwealth Powers) Act 2009 a new section 3A specifying the fundamental workplace relations principles. These principles are based upon principles in the Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector. Clause 5 in combination with clause 3(4), relocates the existing definition of essential services to section 5 of the Fair Work (Commonwealth Powers) Act 2009 and confines the definition to that section. Clause 6 inserts into the Fair Work (Commonwealth Powers) Act 2009 a new section 6(5) which clarifies the meaning of the expression the references where the amendment and transition references have been terminated. 2

 


 

Clause 7 repeals section 7(3) of the Fair Work (Commonwealth Powers) Act 2009 in consequence of the new termination provisions inserted by clause 8. Clause 8 inserts into the Fair Work (Commonwealth Powers) Act 2009 a new section 7A dealing with the period for termination of the references by proclamation under section 6(1) of the Act. New section 7A(1) provides that, except in the circumstances dealt with in section 7A(2), the date for termination of a reference fixed by proclamation will be not earlier than six months after the date of publication of the proclamation. This reflects notice requirements under the Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector. New section 7A(2) provides that in the circumstances specified in section 7A(2)(b), the date for termination of the amendment reference fixed by proclamation will be not earlier than three months after the date of publication of the proclamation. The relevant circumstances are that the Governor in Council has declared in the termination proclamation the opinion that a proposed government amendment to the Fair Work Act 2009 of the Commonwealth (or an amendment already made) is inconsistent with one or more of the fundamental workplace relations principles. Section 7A(2) reflects proposed amendments to the Fair Work Act 2009 of the Commonwealth under which a State may terminate its amendment reference in certain circumstances without ceasing to be a "referring State" within the meaning of the Commonwealth Act. New section 7A(3) provides that if the amendment reference is terminated by proclamation as provided for in section 7A(2), the minister must, as soon as practicable after the publication of the proclamation, prepare a report on the matter and cause copies of that report to be laid before both Houses of Parliament. PART 3--CONSEQUENTIAL AMENDMENTS TO OTHER ACTS Clause 9 updates references in the Country Fire Authority Act 1958 to federal awards, industrial agreements and other sources of minimum entitlements, in consequence of the commencement of the Fair Work Act 2009 of the Commonwealth and associated Commonwealth transitional legislation. Subclause (1) inserts new definitions of Fair Work Australia and federal award or agreement into section 3(1) of the Act. Subclauses (2) to (4) update sections 18(1), 18(2) and 110(1)(b) of the Act using the 3

 


 

new defined terms and references to other relevant sources of minimum entitlements under the Commonwealth Act. Clause 10 subclause (1) inserts new definitions of Australian Industrial Relations Commission and Fair Work Australia into section 3(1) of the Disability Act 2006, in consequence of the commencement of the Fair Work Act 2009 of the Commonwealth. Subclause (2) updates the reference to the federal workplace relations tribunal in section 121(1)(b) of the Act using the new defined terms. Clause 11 updates the definition of industrial organisation in section 3(1) of the Duties Act 2000, in consequence of the commencement of the Fair Work (Registered Organisations) Act 2009 of the Commonwealth and associated Commonwealth transitional legislation. Clause 12 updates references to federal industrial agreements and awards in the Equal Opportunity Act 1995, in consequence of the commencement of the Fair Work Act 2009 of the Commonwealth and associated Commonwealth transitional legislation. Subclause (2) replaces section 4(3) of the Act with a definition of the term federal agreement or award. Subclause (1) inserts a new definition of Fair Work Australia into section 4(1) of the Act, and replaces outdated references to federal agreements and awards in the definitions of employee, employer, employment and employment entitlements in section 4(1) using the new defined terms and references to other relevant sources of minimum entitlements under the Commonwealth Act. Clause 13 updates the reference to the federal legislation in section 16(g) of the Fundraising Act 1998, in consequence of the commencement of the Fair Work (Registered Organisations) Act 2009 of the Commonwealth and associated Commonwealth transitional legislation. Clause 14 subclause (1) inserts new definitions of Australian Industrial Relations Commission and Fair Work Australia into section 3(1) of the Health Services (Conciliation and Review) Act 1987, in consequence of the commencement of the Fair Work Act 2009 of the Commonwealth. Subclause (2) updates the definition of Industrial Tribunal in section 3(1) using the new defined terms. 4

 


 

Clause 15 updates the reference to federal industrial agreements in section 2.2.2(2)(e) of the Legal Profession Act 2004, in consequence of the commencement of the Fair Work Act 2009 of the Commonwealth and associated Commonwealth transitional legislation. Clause 16 repeals sections 1(b) and 3(ca) of the Parliamentary Administration Act 2005, in consequence of the repeal of Division 7 of Part 3 of the Act by section 39 of the Fair Work (Commonwealth Powers) Act 2009. Clause 17 subclause (1) inserts a new definition of Fair Work Australia into clause 3 of Schedule 7 to the Petroleum (Submerged Lands) Act 1982, in consequence of the commencement of the Fair Work Act 2009 of the Commonwealth. Subclause (2) updates the definition of registered organisation in clause 3 of Schedule 7, in consequence of the commencement of the Fair Work (Registered Organisations) Act 2009 of the Commonwealth and associated Commonwealth transitional legislation. Subclause (3) updates the definition of reviewing authority in clause 3 of Schedule 7 using the new defined term. Clause 18 updates references in the Pre-school Teachers and Assistants (Leave) Act 1984 to federal awards, industrial agreements and other sources of minimum entitlements. Subclauses (1) and (2) insert a new definition of Fair Work Australia into section 3(1) of the Act and update the definition of award in section 3(1), in consequence of the commencement of the Fair Work Act 2009 of the Commonwealth and associated Commonwealth transitional legislation. Subclause (3) amends the definition of sick leave in section 3(1) in consequence of the impending commencement of the National Employment Standards under the Fair Work Act 2009 of the Commonwealth. Clause 19 updates the definition of registered employee organisation in section 3(1) of the Rail Safety Act 2006, in consequence of the commencement of the Fair Work (Registered Organisations) Act 2009 of the Commonwealth and associated Commonwealth transitional legislation. Clause 20 updates the references to the federal legislation in sections 33(2)(c)(ii)(B) and 35(2)(c)(ii) of the Working with Children Act 2005, in consequence of the commencement of the Fair Work Act 2009 of the Commonwealth. 5

 


 

PART 4--REPEAL OF THIS ACT Clause 21 provides for repeal of the Bill on the first anniversary of the first day on which all of its provisions have commenced. This repeal does not affect the continuing operation of the amendments made by the Bill. 6

 


 

 


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