LABOUR RELATIONS LEGISLATION AMENDMENT BILL 2006

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LABOUR RELATIONS LEGISLATION AMENDMENT BILL 2006

Western Australia

abour Relations Legislation Amendment Bill 2006 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Amendments as to reasonable hours of work 3. The Act amended in this Part 3 4. Section 3 amended 3 5. Part 2A inserted 3 Part 2A -- Reasonable hours of work 9A. Maximum hours of work 3 9B. Reasonable additional hours 5 6. Section 29 repealed 5 Part 3 -- Amendments as to right of entry 7. The Act amended in this Part 6 8. Section 49J amended 6 Part 4 -- Amendments as to State Wage order 9. The Act amended in this Part 7 10. Section 26 amended 7 11. Section 30 amended 7 12. Section 40B amended 7 13. Section 50 amended 7 14. Sections 50A and 50B inserted 8 123--1 page i Labour Relations Legislation Amendment Bill 2006 Contents 50A. Commission to determine rates of pay for purposes of MCE Act and awards 8 50B. Matters relevant to setting rates for apprentices and trainees 11 15. Section 51 repealed 12 16. Section 51B amended 12 17. Sections 51BA to 51BE inserted 12 51BA. Notification of hearing 12 51BB. Right to be heard 13 51BC. Commissioner may deal with certain proceedings 13 51BD. Registrar may prepare and publish provisions resulting from General Order 13 51BE. Publication of order 14 18. Section 51C amended 14 19. Part II Division 3A Subdivision 2 repealed 14 20. Section 51N amended 14 21. Minimum Conditions of Employment Act 1993 amended 14 22. Transitional provisions 15 Part 5 -- Amendments as to good faith bargaining 23. The Act amended in this Part 17 24. Section 7 amended 17 25. Part II Division 3B inserted 17 Division 3B -- Collective agreements and good faith bargaining 51O. Meaning of terms used in this Division 18 51P. Representation by organisation 19 51Q. Bargaining agents 19 51R. Initiating bargaining for collective agreement 20 51S. Good faith bargaining for collective agreement 21 51T. Application of sections 42D and 42E 21 26. Section 84A amended 22 Part 6 -- Amendments as to annual and other leave 27. The Act amended in this Part 23 28. Section 3 amended 23 29. Section 8 amended 24 30. Part 4 Division 2 heading amended 25 page ii Labour Relations Legislation Amendment Bill 2006 Contents 31. Sections 19 to 20A replaced by sections 19 to 20B and transitional provision 25 19. Entitlement to paid leave for illness, injury or family care 25 20. Employee may use entitlement as paid sick leave 26 20A. Employee may use entitlement as paid carer's leave 26 20B. Unpaid carer's leave 27 32. Section 21 amended 27 33. Section 22 amended 28 34. Section 23 amended 28 35. Section 27 amended 28 36. Section 32 amended 29 37. Section 33 amended 30 38. Section 38 amended 31 39. Sections 38A and 38B inserted 33 38A. How and when a request or requirement as to parental leave or return to work can be made 33 38B. Grounds for determining a request or making a requirement as to parental leave or return to work 34 40. Section 44 amended 35 41. Section 45 amended 36 42. Section 46 repealed 36 Part 7 -- Amendments as to long service leave Division 1 -- Amendments to the Construction Industry Portable Paid Long Service Leave Act 1985 43. The Act amended in this Division 37 44. Section 3 amended 37 45. Section 21 amended 38 46. Section 22 amended 38 47. Section 24A amended 39 48. Section 27 repealed 39 49. Section 29 replaced 39 29. Public holidays 39 50. Section 51 amended 40 51. Section 56 inserted 40 56. Transitional provisions 40 page iii Labour Relations Legislation Amendment Bill 2006 Contents 52. Schedule amended 40 Division 1 -- The appointed day Division 2 -- The Labour Relations Legislation Amendment Act 2006 3. Service prior to commencement day 41 Division 2 -- Amendments to the Long Service Leave Act 1958 53. The Act amended in this Division 43 54. Long title amended 43 55. Section 4 amended 43 56. Section 8 amended 44 57. Section 8A repealed 47 58. Section 9 amended 47 59. Section 12 inserted 48 12. Industrial inspectors may institute proceedings 48 60. Section 26 amended 48 61. Section 26A amended 49 62. Part VII Division 5 repealed 49 Division 3 -- Repeal of the LSL General Order 63. Meaning of terms used in this Division 50 64. LSL General Order repealed 50 65. Transitional provision -- references to the LSL General Order 51 Part 8 -- Amendments as to civil penalties 66. The Act amended in this Part 52 67. Section 7 amended 52 68. Section 81AA amended 52 69. Section 81CA amended 52 70. Section 83E amended 53 page iv Western Australia LEGISLATIVE ASSEMBLY Labour Relations Legislation Amendment Bill 2006 A Bill for An Act to -- • amend the Minimum Conditions of Employment Act 1993; • amend the Industrial Relations Act 1979; • amend the Long Service Leave Act 1958; • amend the Construction Industry Portable Paid Long Service Leave Act 1985; and • repeal the Long Service Leave General Order, and for related purposes. The Parliament of Western Australia enacts as follows: page 1 Labour Relations Legislation Amendment Bill 2006 Part 1 Preliminary s. 1 Part 1 -- Preliminary 1. Short title This is the Labour Relations Legislation Amendment Act 2006. 5 2. Commencement (1) Subject to subsection (2), this Act comes into operation on the day on which it receives the Royal Assent. (2) Part 7 Division 1 comes into operation on -- (a) the day on which this Act receives the Royal Assent if 10 that day is the first day of a quarter; or (b) if paragraph (a) does not apply -- the first day of the first quarter that commences after the day on which this Act receives the Royal Assent. (3) In this section -- 15 "quarter" means a period of 3 months commencing on 1 January, 1 April, 1 July or 1 October. page 2 Labour Relations Legislation Amendment Bill 2006 Amendments as to reasonable hours of work Part 2 s. 3 Part 2 -- Amendments as to reasonable hours of work 3. The Act amended in this Part The amendments in this Part are to the Minimum Conditions of Employment Act 1993*. 5 [* Reprinted as at 4 October 2002. For subsequent amendments see Western Australian Legislation Information Tables for 2004, Table 1, p. 291-2.] 4. Section 3 amended Section 3(1) is amended as follows: 10 (a) in the definition of "minimum condition of employment" by inserting before paragraph (a) -- " (aa) the requirement as to maximum hours of work prescribed by Part 2A; 15 "; (b) by inserting in the appropriate alphabetical position -- " "public holiday", in respect of an area in the State, means a day mentioned in Schedule 1 that is a 20 public holiday in that area; ". 5. Part 2A inserted After section 9 the following Part is inserted -- " 25 Part 2A -- Reasonable hours of work 9A. Maximum hours of work (1) An employee is not to be required or requested by an employer to work more than -- page 3 Labour Relations Legislation Amendment Bill 2006 Part 2 Amendments as to reasonable hours of work s. 5 (a) either -- (i) the employee's ordinary hours of work as specified in an industrial instrument that applies to the employment of the 5 employee; or (ii) if there is no industrial instrument that specifies the employee's ordinary hours of work, 38 hours per week; and 10 (b) reasonable additional hours as determined under section 9B. (2) For the purpose of subsection (1), in calculating the number of hours that an employee has worked in a particular week, the hours worked by the employee are 15 taken to include any hours of authorised leave taken by the employee during the week. (3) Nothing in this section, or section 5(2), restricts the number of ordinary hours of work that may be specified in an industrial instrument. 20 (4) In this section -- "authorised leave" means leave, or an absence, whether paid or unpaid, that is authorised -- (a) by an employee's employer; (b) by or under a term or condition of an 25 employee's employment; or (c) by or under a law, or an instrument in force under a law, of the State or the Commonwealth; "industrial instrument" means -- 30 (a) an award; or (b) an employer-employee agreement. page 4 Labour Relations Legislation Amendment Bill 2006 Amendments as to reasonable hours of work Part 2 s. 6 9B. Reasonable additional hours (1) For the purposes of section 9A(1)(b), in determining whether additional hours that an employee is required or requested by an employer to work are reasonable 5 additional hours, all relevant factors are to be taken into account. (2) The factors that may be taken into account include, but are not limited to, the following -- (a) any risk to the employee's health and safety 10 that might reasonably be expected to arise if the employee worked the additional hours; (b) the employee's personal circumstances (including family responsibilities); (c) the conduct of the operations or business in 15 relation to which the employee is required or requested to work the additional hours; (d) any notice given by the employer of the requirement or request that the employee work the additional hours; 20 (e) any notice given by the employee of the employee's intention to refuse to work the additional hours; (f) whether any of the additional hours are on a public holiday in the area of the State where the 25 employee is required or requested to work; (g) the employee's hours of work over the 4 weeks ending immediately before the employee is required or requested to work the additional hours. 30 ". 6. Section 29 repealed Section 29 is repealed. page 5 Labour Relations Legislation Amendment Bill 2006 Part 3 Amendments as to right of entry s. 7 Part 3 -- Amendments as to right of entry 7. The Act amended in this Part The amendments in this Part are to the Industrial Relations Act 1979*. 5 [* Reprint 10 as at 8 July 2005. For subsequent amendments see Acts Nos. 34 of 2004 and 14 of 2005.] 8. Section 49J amended After section 49J(6) the following subsection is inserted -- 10 " (6a) The Registrar must not revoke an authority under subsection (6) if -- (a) proceedings pursuant to an application made under subsection (5) in relation to the authority 15 are pending or in progress; or (b) appeal proceedings in respect of a decision made under subsection (5) in relation to the authority are pending or in progress, or the time within which such proceedings may be 20 instituted has not elapsed. ". page 6 Labour Relations Legislation Amendment Bill 2006 Amendments as to State Wage order Part 4 s. 9 Part 4 -- Amendments as to State Wage order 9. The Act amended in this Part The amendments in this Part are to the Industrial Relations Act 1979* unless otherwise specified. 5 [* Reprint 10 as at 8 July 2005. For subsequent amendments see Acts Nos. 34 of 2004 and 14 of 2005.] 10. Section 26 amended After section 26(1) the following section is inserted -- 10 " (1a) Subsection (1)(d) does not apply when the Commission is exercising its jurisdiction under section 50A. ". 11. Section 30 amended 15 Section 30(2) is repealed. 12. Section 40B amended Section 40B(1)(a) is amended by deleting "section 51" and inserting instead -- " section 50A ". 20 13. Section 50 amended Section 50(9) and (10) are repealed. page 7 Labour Relations Legislation Amendment Bill 2006 Part 4 Amendments as to State Wage order s. 14 14. Sections 50A and 50B inserted After section 50 the following sections are inserted -- " 50A. Commission to determine rates of pay for purposes 5 of MCE Act and awards (1) The Commission shall before 1 July in each year, of its own motion make a General Order (the "State Wage order") -- (a) setting -- 10 (i) the minimum weekly rate of pay applicable under section 12 of the MCE Act to employees who have reached 21 years of age and who are not apprentices or trainees; 15 (ii) the minimum weekly rate or rates of pay applicable under section 14 of the MCE Act to apprentices; (iii) the minimum weekly rate or rates of pay applicable under section 15 of the 20 MCE Act to trainees; (b) adjusting rates of wages paid under awards; (c) having regard to the statement of principles issued under paragraph (d) -- (i) varying each award affected by the 25 exercise of jurisdiction under paragraph (b) to ensure that the award is consistent with the order; and (ii) if the Commission considers it appropriate to do so, making other 30 consequential changes to specified awards; and page 8 Labour Relations Legislation Amendment Bill 2006 Amendments as to State Wage order Part 4 s. 14 (d) setting out a statement of principles to be applied and followed in relation to the exercise of jurisdiction under this Act to set the wages, salaries, allowances or other remuneration of 5 employees or the prices to be paid in respect of their employment. (2) The Commission may, in relation to awards generally or specified awards, do any or all of the following for the purposes of subsection (1)(b) -- 10 (a) adjust all rates of wages; (b) adjust individual rates of wages; (c) adjust a series of rates of wages; (d) adjust specialised rates of wages. (3) In making an order under this section, the Commission 15 shall take into consideration -- (a) the need to -- (i) ensure that Western Australians have a system of fair wages and conditions of employment; 20 (ii) meet the needs of the low paid; (iii) provide fair wage standards in the context of living standards generally prevailing in the community; (iv) contribute to improved living standards 25 for employees; (v) protect employees who may be unable to reach an industrial agreement; (vi) encourage ongoing skills development; and 30 (vii) provide equal remuneration for men and women for work of equal or comparable value; page 9 Labour Relations Legislation Amendment Bill 2006 Part 4 Amendments as to State Wage order s. 14 (b) the state of the economy of Western Australia and the likely effect of its decision on that economy and, in particular, on the level of employment, inflation and productivity in 5 Western Australia; (c) to the extent that it is relevant, the state of the national economy; (d) to the extent that it is relevant, the capacity of employers as a whole to bear the costs of 10 increased wages, salaries, allowances and other remuneration; (e) for the purposes of subsection (1)(b) and (c), the need to ensure that the Western Australian award framework represents a system of fair 15 wages and conditions of employment; (f) relevant decisions of other industrial courts and tribunals; and (g) any other matters the Commission considers relevant. 20 (4) Without limiting the generality of this section and section 26(1), in the exercise of its jurisdiction under subsection (1)(b) and (c) the Commission shall ensure, to the extent possible, that there is consistency and equity in relation to the variation of awards. 25 (5) A State Wage order takes effect on 1 July in the year it is made and is applicable in respect of an employee, apprentice or trainee on and from the commencement of the first pay period of the employee, apprentice or trainee on or after that date. 30 (6) A State Wage order in effect under this section when a subsequent order is made under subsection (1) ceases to apply in respect of an employee, apprentice or trainee on the day on which the subsequent order page 10 Labour Relations Legislation Amendment Bill 2006 Amendments as to State Wage order Part 4 s. 14 commences to apply in respect of the employee, apprentice or trainee. (7) A State Wage order shall not be added to or varied. (8) Nothing in subsection (7) affects the Commission's 5 powers under section 27(1)(m). 50B. Matters relevant to setting rates for apprentices and trainees (1) For the purposes of section 50A(1)(a)(ii) and (iii), the Commission may -- 10 (a) set a minimum weekly rate of pay in relation to apprentices or trainees generally; (b) subject to subsections (2) and (3), set a minimum weekly rate of pay in relation to apprentices or trainees who belong to particular 15 classes of apprentice or trainee; or (c) do a combination of the things authorised by paragraphs (a) and (b). (2) The Commission may set a minimum weekly rate of pay in relation to apprentices or trainees who have 20 reached 21 years of age that is different from a rate or rates for apprentices or trainees who are under 21 years of age. (3) The Commission shall ensure that at any particular time there is applicable in relation to each class of 25 apprentice and each class of trainee -- (a) a minimum weekly rate of pay set in respect of that class; or (b) the minimum weekly rate of pay in relation to apprentices or trainees, as is relevant to the 30 case, generally. page 11 Labour Relations Legislation Amendment Bill 2006 Part 4 Amendments as to State Wage order s. 15 (4) In setting a minimum weekly rate of pay in relation to apprentices or trainees generally or in relation to apprentices or trainees who belong to a particular class of apprentice or trainee, the Commission may use such 5 means as in its opinion are appropriate including, but not limited to -- (a) setting the rate in figures; (b) setting the rate as a proportion of -- (i) the minimum weekly rate of pay 10 referred to in section 50A(1)(a)(i); or (ii) any award or other wages instrument; (c) adopting some or all of the provisions of any award or other wages instrument; or (d) setting out any other method for the calculation 15 or assessment of the rate. ". 15. Section 51 repealed Section 51 is repealed. 16. Section 51B amended 20 Section 51B(1) is amended by deleting "The Commission" and inserting instead -- " Except as provided in section 50A, the Commission ". 17. Sections 51BA to 51BE inserted After section 51B the following sections are inserted in Part II 25 Division 3 -- " 51BA. Notification of hearing (1) The Commission shall ensure that notice of each initial hearing to be conducted for the purposes of making a 30 General Order under this Division is -- page 12 Labour Relations Legislation Amendment Bill 2006 Amendments as to State Wage order Part 4 s. 17 (a) given by written notice to the Council, the Chamber, the Mines and Metals Association, the Minister, and any other person the Commission is of the opinion may be of 5 assistance; and (b) published in the required manner and in any other manner the Commission thinks fit. (2) Subsection (1) does not apply when the Commission is exercising its jurisdiction under section 51A. 10 51BB. Right to be heard The Commission shall not make a General Order under this Division until it has afforded -- (a) each person given notice under section 51BA(1)(a); and 15 (b) any other employer, employee, or other person permitted by the Commission to be heard, an opportunity to be heard in relation to the matter. 51BC. Commissioner may deal with certain proceedings The Chief Commissioner may direct a Commissioner 20 to deal with any conciliation or interlocutory or procedural matter arising during the determination of a General Order under this Division. 51BD. Registrar may prepare and publish provisions resulting from General Order 25 When the Commission makes a General Order under this Division which affects awards and industrial agreements, or awards or industrial agreements, in force under this Act, the Commission may, in respect of each award or industrial agreement so affected, 30 direct the Registrar to prepare and publish in the required manner the provisions of that award or page 13 Labour Relations Legislation Amendment Bill 2006 Part 4 Amendments as to State Wage order s. 18 industrial agreement resulting from the operation of that General Order. 51BE. Publication of order The Registrar shall publish in the required manner any 5 General Order made under this Division. ". 18. Section 51C amended Section 51C(1) is amended by deleting the definition of "award". 10 19. Part II Division 3A Subdivision 2 repealed Part II Division 3A Subdivision 2 is repealed. 20. Section 51N amended (1) Section 51N(1) is repealed. (2) Section 51N(3) is amended by deleting "(1) or". 15 21. Minimum Conditions of Employment Act 1993 amended (1) The amendments in this section are to the Minimum Conditions of Employment Act 1993*. [* Reprinted as at 4 October 2002. For subsequent amendments see Western Australian 20 Legislation Information Tables for 2004, Table 1, p. 291-2.] (2) Section 12 is amended by deleting "section 51F" and inserting instead -- " section 50A(1)(a)(i) ". (3) Section 14 is amended by deleting "section 51F" in both places 25 where it occurs and inserting instead -- " section 50A(1)(a)(ii) ". page 14 Labour Relations Legislation Amendment Bill 2006 Amendments as to State Wage order Part 4 s. 22 (4) Section 15 is amended by deleting "section 51F" in both places where it occurs and inserting instead -- " section 50A(1)(a)(iii) ". 22. Transitional provisions 5 (1) In this section -- "commencement day" means the day on which Part 4 of the Labour Relations Legislation Amendment Act 2006 comes into operation; "section 50A" means section 50A of the Industrial Relations 10 Act 1979 as in force immediately after the commencement day; "section 51" means section 51 of the Industrial Relations Act 1979 as in force immediately before the commencement day; 15 "State Wage order" means a General Order made under section 50A. (2) Any -- (a) General Order of effect under section 51; and (b) order of effect under section 51F of the Industrial 20 Relations Act 1979 as in force immediately before the commencement day, remains of effect until a State Wage order takes effect. (3) Despite section 50A, the first State Wage order -- (a) may be made after 1 July; 25 (b) if it is made after 1 July, comes into effect on a date specified by the Commission; and (c) if it comes into effect on a date after 1 July, is applicable in respect of an employee, apprentice or trainee on and from the commencement of the first pay period of the 30 employee, apprentice or trainee on or after that date. page 15 Labour Relations Legislation Amendment Bill 2006 Part 4 Amendments as to State Wage order s. 22 (4) A date specified under subsection (3)(b) must not be a date that is earlier than the day on which the order is made. (5) Despite section 50A(1)(b), the Commission must not adjust rates of wages paid under awards in a State Wage order made in 5 relation to the period ending 30 June 2007 if, during 2006 and before that State Wage order is made, the Commission has made a General Order under section 50 of the Industrial Relations Act 1979 adjusting rates of wages paid under awards generally. page 16 Labour Relations Legislation Amendment Bill 2006 Amendments as to good faith bargaining Part 5 s. 23 Part 5 -- Amendments as to good faith bargaining 23. The Act amended in this Part The amendments in this Part are to the Industrial Relations Act 1979*. 5 [* Reprint 10 as at 8 July 2005. For subsequent amendments see Acts Nos. 34 of 2004 and 14 of 2005.] 24. Section 7 amended Section 7(5) is amended as follows: 10 (a) in paragraph (a) by inserting after "industrial agreement" -- " or collective agreement (as that term is defined in the Commonwealth Act) 15 "; (b) in paragraph (b) by inserting after "industrial agreement" -- " or collective agreement (as that term is defined 20 in the Commonwealth Act) ". 25. Part II Division 3B inserted Before Part II Division 4 the following Division is inserted -- page 17 Labour Relations Legislation Amendment Bill 2006 Part 5 Amendments as to good faith bargaining s. 25 " Division 3B -- Collective agreements and good faith bargaining 51O. Meaning of terms used in this Division 5 (1) In this Division -- "bargaining agent" has the meaning given by section 51Q; "initiating party", in relation to a proposed collective agreement, means the person who initiates 10 bargaining for the agreement under section 51R; "negotiating party", in relation to a proposed collective agreement, means -- (a) the initiating party; (b) if the initiating party is an employer -- any 15 organisation that is -- (i) proposed to be bound by the proposed collective agreement; or (ii) acting under section 51P on behalf of the employees whose employment is 20 proposed to be subject to the proposed collective agreement; (c) if the initiating party is an organisation of employees -- the employer who is proposed to be bound by the proposed collective 25 agreement; "organisation" means -- (a) an organisation as defined in the Commonwealth Act; or (b) a transitionally registered association as 30 defined in Schedule 10 clause 1 of the Commonwealth Act. page 18 Labour Relations Legislation Amendment Bill 2006 Amendments as to good faith bargaining Part 5 s. 25 (2) In this Division each of the following terms has the meaning given to it by the Commonwealth Act -- (a) "collective agreement"; (b) "employee"; 5 (c) "employer"; (d) "employment"; (e) "nominal expiry date". 51P. Representation by organisation An organisation may act under this Division on behalf 10 of employees whose employment is proposed to be subject to a proposed collective agreement if -- (a) at least one of those employees has requested the organisation in writing to act on behalf of the employees; and 15 (b) the employee making the request is a member of the organisation or is eligible to become a member of the organisation. 51Q. Bargaining agents (1) For the purposes of this Division, a person is a 20 bargaining agent if -- (a) that person has been appointed in writing by a negotiating party to be that party's bargaining agent in relation to a proposed collective agreement; 25 (b) a copy of the appointment has been provided to the other negotiating party; and (c) the appointment has not been terminated. (2) An appointment of a bargaining agent may be terminated at any time by notice of termination given 30 by the negotiating party who appointed the agent in writing to the agent. page 19 Labour Relations Legislation Amendment Bill 2006 Part 5 Amendments as to good faith bargaining s. 25 (3) A copy of a notice of termination must be given to each other negotiating party. (4) For the purposes of section 123(3)(c) of the Legal Practice Act 2003 a bargaining agent is authorised to 5 provide advice and other services in relation to bargaining for a collective agreement. 51R. Initiating bargaining for collective agreement (1) Bargaining for a proposed collective agreement may be initiated by an organisation of employees or an 10 employer (the "initiating party") giving to each other negotiating party and filing in the office of the Registrar a written notice that complies with subsection (3). (2) Subject to section 51P, an organisation of employees 15 may initiate bargaining under subsection (1) on behalf of employees whose employment will be subject to the proposed collective agreement. (3) A notice complies with this subsection if it is accompanied by particulars of -- 20 (a) the business to be covered by the proposed collective agreement; (b) the types of employees whose employment will be subject to the proposed collective agreement and the other persons who will be bound by the 25 proposed collective agreement; (c) the proposed nominal expiry date of the proposed collective agreement; and (d) any other matter prescribed by regulations made by the Governor for the purposes of this 30 section. (4) If bargaining is initiated under subsection (1) with more than one negotiating party to the proposed page 20 Labour Relations Legislation Amendment Bill 2006 Amendments as to good faith bargaining Part 5 s. 25 collective agreement, all the parties are to bargain together unless the Commission, on the application of a negotiating party, directs that that party may bargain separately with another negotiating party. 5 51S. Good faith bargaining for collective agreement (1) If bargaining for a collective agreement has been initiated under section 51R the negotiating parties must bargain in good faith for the agreement. (2) Without limiting the meaning of the expression, 10 "bargaining in good faith" includes -- (a) doing the things set out in section 42B(2)(a) to (d) and (f) to (h); and (b) recognising a bargaining agent duly appointed for the purpose of bargaining for the collective 15 agreement. (3) A code of good faith in force under section 42C applies, with necessary changes and to the extent that is practicable, in relation to bargaining for a collective agreement. 20 51T. Application of sections 42D and 42E (1) Section 42D and, subject to subsection (2), section 42E apply, with necessary changes, in relation to bargaining for a collective agreement and, for that purpose, any reference in those sections to a term used in this 25 Division has the meaning given to that term in this Division. (2) The Commission must not give any direction or make any order or declaration requiring, or having the effect of requiring, a negotiating party to enter into a 30 collective agreement or to include any matter in, or exclude any matter from, a collective agreement. ". page 21 Labour Relations Legislation Amendment Bill 2006 Part 5 Amendments as to good faith bargaining s. 26 26. Section 84A amended Section 84A(1)(a) is amended by deleting "or 74" and inserting instead -- " , 51S or 74 ". page 22 Labour Relations Legislation Amendment Bill 2006 Amendments as to annual and other leave Part 6 s. 27 Part 6 -- Amendments as to annual and other leave 27. The Act amended in this Part The amendments in this Part are to the Minimum Conditions of Employment Act 1993*. 5 [* Reprinted as at 4 October 2002. For subsequent amendments see Western Australian Legislation Information Tables for 2004, Table 1, p. 291-2.] 28. Section 3 amended (1) Section 3(1) is amended by deleting the definition of "casual 10 employee". (2) Section 3(1) is amended by inserting in the appropriate alphabetical positions -- " "annual leave" means leave provided for under 15 Division 3 of Part 4; "carer's leave" means leave taken by an employee to provide care or support to a member of the employee's family or household who requires care or support because of -- 20 (a) an illness or injury of the member; or (b) an unexpected emergency affecting the member; "continuous service" means service under an unbroken contract of employment and includes 25 any period of leave or absence authorised by the employer or by an employer-employee agreement, an award, a contract of employment or this Act; "member of the employee's family or household" means any of the following persons -- 30 (a) the employee's spouse or de facto partner; page 23 Labour Relations Legislation Amendment Bill 2006 Part 6 Amendments as to annual and other leave s. 29 (b) a child, step-child or grandchild of the employee (including an adult child, step-child or grandchild); (c) a parent, step-parent or grandparent of the 5 employee; (d) a sibling of the employee; (e) any other person who, at or immediately before the relevant time for assessing the employee's eligibility to take leave, lived 10 with the employee as a member of the employee's household; ". 29. Section 8 amended (1) Section 8(1) is repealed and the following subsection is inserted 15 instead -- " (1) After the completion of any year of service by an employee, the employer and employee may agree that the employee may forgo taking annual leave to which 20 the employee became entitled in relation to that year of service if -- (a) the amount of annual leave forgone does not exceed 50% of the whole amount of annual leave to which the employee became entitled in 25 relation to that year of service; (b) the employee is given an equivalent benefit in lieu of the amount of annual leave forgone; and (c) the agreement is in writing. ". page 24 Labour Relations Legislation Amendment Bill 2006 Amendments as to annual and other leave Part 6 s. 30 (2) After section 8(2) the following subsections are inserted -- " (3) The employer must not -- (a) require the employee to forgo taking an amount 5 of annual leave; or (b) exert undue influence or undue pressure on the employee in relation to the making of a decision by the employee whether or not to forgo taking an amount of annual leave. 10 (4) A contravention of subsection (3) is not an offence but that subsection is a civil penalty provision for the purposes of section 83E of the IR Act. ". 30. Part 4 Division 2 heading amended 15 The heading to Part 4 Division 2 is amended by inserting after "injury" -- " or family care ". 31. Sections 19 to 20A replaced by sections 19 to 20B and transitional provision 20 (1) Sections 19 to 20A are repealed and the following sections are inserted instead -- " 19. Entitlement to paid leave for illness, injury or family care 25 (1) An employee, other than a casual employee, is entitled for each year of service to paid leave under this subsection for the number of hours the employee is required ordinarily to work in a 2 week period during that year, up to 76 hours. 30 (2) An entitlement under subsection (1) accrues pro rata on a weekly basis. page 25 Labour Relations Legislation Amendment Bill 2006 Part 6 Amendments as to annual and other leave s. 31 (3) Entitlements under subsection (1) are cumulative. (4) Entitlements under subsection (1) can only be used under sections 20 and 20A. (5) In subsection (1) -- 5 "year" does not include any period of unpaid leave. 20. Employee may use entitlement as paid sick leave (1) Subject to subsection (2), an employee who is unable to work as a result of the employee's illness or injury, is entitled to use any part of the employee's entitlement 10 under section 19(1) as paid leave for periods of absence from work resulting from the illness or injury. (2) If an employee's illness or injury is attributable to -- (a) the employee's serious and wilful misconduct; or 15 (b) the employee's gross and wilful neglect, in the course of the employee's employment, the employee is not entitled to be paid for any period of absence from work resulting from the illness or injury. 20A. Employee may use entitlement as paid carer's leave 20 (1) Subject to subsection (3), an employee is entitled to use any part of the employee's entitlement under section 19(1) as paid carer's leave. (2) Subsection (3) applies to an employee if, at a particular time ("the time"), the employee -- 25 (a) is employed by an employer; and (b) for a continuous period of 12 months immediately before the time, has been in continuous service with the employer. page 26 Labour Relations Legislation Amendment Bill 2006 Amendments as to annual and other leave Part 6 s. 32 (3) The employee is not entitled to take paid carer's leave at the time if, during the period of 12 months ending at the time, the employee has already taken a total amount of paid carer's leave that is as much as the entitlement 5 accrued by the employee under section 19(1) during that period. 20B. Unpaid carer's leave (1) Subject to subsection (2), an employee is entitled to unpaid carer's leave of up to 2 days for each occasion 10 (a "permissible occasion") on which a member of the employee's family or household requires care or support because of -- (a) an illness or injury of the member; or (b) an unexpected emergency affecting the 15 member. (2) An employee is entitled to unpaid carer's leave for a particular permissible occasion only if the employee cannot take paid carer's leave during the period. (3) In subsection (2) -- 20 "paid carer's leave" means paid carer's leave authorised by the employer or by an employer-employee agreement, an award, a contract of employment or section 20A(1). ". 25 (2) Nothing in Part 4 Division 2 of the Minimum Conditions of Employment Act 1993 requires an untaken entitlement that arose under section 19(1) or 20A(1) of that Act as enacted before the commencement of this section to be carried over from the year in which the entitlement arose to the next year. 30 32. Section 21 amended Section 21 is amended as follows: (a) by deleting paragraph (a); page 27 Labour Relations Legislation Amendment Bill 2006 Part 6 Amendments as to annual and other leave s. 33 (b) in paragraph (b) by deleting "an entitlement under section 19(1) or 20A(1)" and inserting instead -- " leave under section 20(1), 20A(1) or 20B(1) ". 33. Section 22 amended 5 Section 22 is amended by deleting paragraphs (a) and (b) and "or" after paragraph (a) and inserting instead -- " (a) to use the employee's entitlement under section 19(1) as paid leave under section 20(1); 10 (b) to use the employee's entitlement under section 19(1) as paid carer's leave under section 20A(1); or (c) to unpaid carer's leave under section 20B(1), ". 15 34. Section 23 amended After section 23(2) the following subsection is inserted -- " (2a) Entitlements under subsection (1) are cumulative. ". 20 35. Section 27 amended Section 27(1) is repealed and the following subsection is inserted instead -- " (1) Subject to section 28, on the death of a member of an 25 employee's family or household the employee is entitled to paid bereavement leave of up to 2 days. ". page 28 Labour Relations Legislation Amendment Bill 2006 Amendments as to annual and other leave Part 6 s. 36 36. Section 32 amended (1) Section 32 is amended as follows: (a) by inserting before "In" the subsection designation "(1)"; 5 (b) by deleting the definition of "continuous service" and inserting -- " "employee" does not include a casual employee who is not eligible as described in subsection (2) or (3); 10 ". (2) At the end of section 32 the following subsections are inserted -- " (2) A casual employee is "eligible" if the employee -- 15 (a) has been engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months; and (b) but for an expected birth of a child to the 20 employee or the employee's spouse or de facto partner or an expected placement of a child with the employee with a view to the adoption of the child by the employee, would have a reasonable expectation of continuing 25 engagement by the employer on a regular and systematic basis. (3) Without limiting subsection (2), a casual employee is also "eligible" if -- (a) the employee was engaged by a particular 30 employer on a regular and systematic basis for a sequence of periods during a period (the "first period of employment") of less than 12 months; page 29 Labour Relations Legislation Amendment Bill 2006 Part 6 Amendments as to annual and other leave s. 37 (b) at the end of the first period of employment, the employee ceased, on the employer's initiative, to be so engaged by the employer; (c) the employer later again engaged the employee 5 on a regular and systematic basis for a further sequence of periods during a period (the "second period of employment") that started not more than 3 months after the end of the first period of employment; 10 (d) the combined length of the first period of employment and the second period of employment is at least 12 months; and (e) the employee, but for an expected birth of a child to the employee or the employee's spouse 15 or de facto partner or an expected placement of a child with the employee with a view to the adoption of the child by the employee, would have a reasonable expectation of continuing engagement by the employer on a regular and 20 systematic basis. ". 37. Section 33 amended (1) Section 33(1) is amended by deleting ", other than a casual employee,". 25 (2) Section 33(4) is repealed and the following subsections are inserted instead -- " (4) An employee may request the employer to extend the period of parental leave to which the employee is 30 entitled under subsection (1) for a further consecutive period of not more than 52 consecutive weeks. (5) An employee may request the employer to extend the period of parental leave which the employee is entitled page 30 Labour Relations Legislation Amendment Bill 2006 Amendments as to annual and other leave Part 6 s. 38 under subsection (3) to take at the same time as the employee's spouse or de facto partner for a further consecutive period of not more than 7 consecutive weeks. 5 (6) The entitlement of an employee to parental leave is reduced by any period of parental leave taken by the employee's spouse or de facto partner in relation to the same child, except -- (a) the period of one week's leave referred to in 10 subsection (3); or (b) if a request to extend the period of one week's leave referred to in subsection (3) is agreed to by the employer, that period as so extended. (7) If a request to extend the period of an employee's 15 parental leave is agreed to by the employer, the reference in subsection (6) to the employee's entitlement to parental leave is a reference to that extended entitlement. ". 20 38. Section 38 amended After section 38(3) the following subsections are inserted -- " (4) An employee may request the employer to permit the employee, on finishing parental leave, to work on a 25 modified basis in a position to which the employee is entitled under subsection (1) or (2). (5) If, on finishing parental leave, an employee has been permitted by the employer to work on a modified basis in a position to which the employee is entitled under 30 subsection (1) or (2), the employee may subsequently request the employer to permit the employee to resume working on the same basis as the employee worked immediately before starting parental leave. page 31 Labour Relations Legislation Amendment Bill 2006 Part 6 Amendments as to annual and other leave s. 38 (6) If, on finishing parental leave, an employee has been permitted by the employer to work on a modified basis in a position to which the employee is entitled under subsection (1) or (2), the employer may subsequently, 5 if entitled to do so under subsection (7)(a) or (b), require the employee to resume working on the same basis as the employee worked immediately before starting parental leave. (7) A requirement can be made under subsection (6) if, and 10 only if -- (a) the requirement is made on grounds relating to the adverse effect that the employee continuing to work on a modified basis would have on the conduct of the operations or business of the 15 employer and those grounds would satisfy a reasonable person; or (b) the employee no longer has a child who has not reached the compulsory education period as defined in section 6 of the School Education 20 Act 1999. (8) In subsections (4) to (7) -- "modified basis" means a basis that involves the employee working -- (a) on different days or at different times, or 25 both; or (b) on fewer days or for fewer hours, or both, than the employee worked immediately before starting parental leave. (9) If -- 30 (a) before the employee started parental leave a change took place in the days on which, times at which or hours for which the employee worked; and page 32 Labour Relations Legislation Amendment Bill 2006 Amendments as to annual and other leave Part 6 s. 39 (b) the change was a direct result of the employee's pregnancy, a reference in subsection (5), (6) or (8) or section 38A(5) or (7) to how the employee worked 5 immediately before starting parental leave is a reference to the employee's work immediately before the change took place. ". 39. Sections 38A and 38B inserted 10 After section 38 the following sections are inserted -- " 38A. How and when a request or requirement as to parental leave or return to work can be made (1) A request under section 33(4) or (5) or 38(4) or (5) is 15 to be made by notice in writing. (2) A request under section 33(4) is to be made at least 4 weeks before the day on which the employee finishes the period of parental leave to which the employee is entitled under section 33(1). 20 (3) A request under section 33(5) can be made at any time before the end of the week referred to in section 33(3). (4) A request under section 38(4) is to be made at least 7 weeks before the day on which the employee finishes parental leave. 25 (5) A request under section 38(5) is to be made at least 6 weeks before the day on which the employee wishes to resume working on the same basis as the employee worked immediately before starting parental leave. (6) Subject to subsection (2), (3) or (4), whichever is 30 applicable, a request under section 33(4) or (5) or 38(4) can be made even if the birth or placement occurred page 33 Labour Relations Legislation Amendment Bill 2006 Part 6 Amendments as to annual and other leave s. 39 before the coming into operation of section 39 of the Labour Relations Legislation Amendment Act 2006. (7) A requirement under section 38(6) is to be made by notice in writing at least 6 weeks before the day on 5 which the employer wishes the employee to resume working on the same basis as the employee worked immediately before starting parental leave, and the notice is to set out the reasons for the requirement. 38B. Grounds for determining a request or making a 10 requirement as to parental leave or return to work (1) The employer is to agree to a request under section 33(4) or (5) or 38(4) unless -- (a) the employer, having considered the employee's circumstances, is not satisfied that 15 the request is genuinely based on the employee's parental responsibilities; or (b) there are grounds to refuse the request relating to the adverse effect that agreeing to the request would have on the conduct of the operations or 20 business of the employer and those grounds would satisfy a reasonable person. (2) The employer is to agree to a request under section 38(5) unless there are grounds to refuse the request relating to the adverse effect that agreeing to 25 the request would have on the conduct of the operations or business of the employer and those grounds would satisfy a reasonable person. (3) The employer is to give the employee written notice of the employer's decision on a request under 30 section 33(4) or (5) or 38(4) or (5) and, if the request is refused, the notice is to set out the reasons for the refusal. page 34 Labour Relations Legislation Amendment Bill 2006 Amendments as to annual and other leave Part 6 s. 40 (4) Without limiting subsection (1) or section 38(7)(a) the grounds on which a refusal under subsection (1)(b), or a requirement under section 38(6), may be based include the following -- 5 (a) cost; (b) lack of adequate replacement staff; (c) loss of efficiency; (d) impact on the production or delivery of products or services by the employer. 10 (5) If a request is made under section 33(4) or (5) or 38(4) or (5), the subject matter of the request may be enforced as a minimum condition of employment in a manner set out in section 7, and in any enforcement proceedings the onus lies on the employer to 15 demonstrate that the refusal of such a request was justified under subsection (1) or (2), whichever is applicable. ". 40. Section 44 amended 20 (1) Section 44(3) is amended by deleting the penalty. (2) After section 44(3) the following subsections are inserted -- " (4) A contravention of subsection (3) is not an offence but that subsection is a civil penalty provision for the 25 purposes of section 83E of the IR Act. (5) Subsection (4) extends to a contravention that occurred within the period of 12 months ending on the coming into operation of section 40 of the Labour Relations Legislation Amendment Act 2006 unless the employer 30 was charged with an offence in respect of that contravention. ". page 35 Labour Relations Legislation Amendment Bill 2006 Part 6 Amendments as to annual and other leave s. 41 41. Section 45 amended (1) Section 45(1) is amended by deleting the penalty. (2) After section 45(1) the following subsections are inserted -- " 5 (1a) A contravention of subsection (1) is not an offence but that subsection is a civil penalty provision for the purposes of section 83E of the IR Act. (1b) Subsection (1a) extends to a contravention that occurred within the period of 12 months ending on the 10 coming into operation of section 41 of the Labour Relations Legislation Amendment Act 2006 unless the employer was charged with an offence in respect of that contravention. ". 15 42. Section 46 repealed Section 46 is repealed. page 36 Labour Relations Legislation Amendment Bill 2006 Amendments as to long service leave Part 7 Amendments to the Construction Industry Portable Paid Long Division 1 Service Leave Act 1985 s. 43 Part 7 -- Amendments as to long service leave Division 1 -- Amendments to the Construction Industry Portable Paid Long Service Leave Act 1985 43. The Act amended in this Division 5 The amendments in this Division are to the Construction Industry Portable Paid Long Service Leave Act 1985*. [* Reprint 2 as at 4 November 2005.] 44. Section 3 amended (1) Section 3(1) is amended as follows: 10 (a) in the definition of "award" by deleting "Conciliation and Arbitration Act 1904" and inserting instead -- " Workplace Relations Act 1996 "; (b) by deleting the definition of "ordinary pay" and inserting instead -- 15 " "ordinary pay", of a person, means the rate of pay (disregarding any leave loading) to which the person is entitled for leave (other than long service leave) to which the person is entitled; 20 "; (c) in the definition of "union" by deleting "the Conciliation and Arbitration Act 1904" and inserting instead -- " Schedule 1 of the Workplace Relations Act 1996 ". (2) After section 3(3) the following subsection is inserted -- 25 " (3a) For the purposes of the definition of "ordinary pay" in subsection (1), if the person is not entitled to paid leave (other than long service leave), the ordinary pay of the page 37 Labour Relations Legislation Amendment Bill 2006 Part 7 Amendments as to long service leave Division 1 Amendments to the Construction Industry Portable Paid Long Service Leave Act 1985 s. 45 person is the rate of pay to which the person is entitled for ordinary hours of work. ". 45. Section 21 amended 5 (1) Section 21(1) is amended as follows: (a) in paragraph (a) by deleting "13 weeks after completing 15" and inserting instead -- " 8 ZHHNVDIWHUFRPSOHWLQJx- (b) in paragraph (b) by deleting "8 ZHHNVDIWHUFRPSOHWLQJ 10 10" and inserting instead -- " 4 ZHHNVDIWHUFRPSOHWLQJx. (2) Section 21(3) is repealed and the following subsection is inserted instead -- " 15 (3) In subsection (1) -- "ordinary pay" means the average ordinary pay of the person over the period in which the person completed his or her most recent 220 days of service in the construction industry. 20 ". 46. Section 22 amended (1) Section 22(1) is amended as follows: (a) by deleting "15" in the 4 places where it occurs and inserting instead -- 25 " 10 "; (b) in paragraph (a) by deleting "10" and inserting instead -- " 7 "; (c) in paragraph (b)(ii) by deleting "one-fifteenth" and 30 inserting instead -- " one-tenth ". page 38 Labour Relations Legislation Amendment Bill 2006 Amendments as to long service leave Part 7 Amendments to the Construction Industry Portable Paid Long Division 1 Service Leave Act 1985 s. 47 (2) Section 22(2) is amended as follows: (a) by deleting "10" and inserting instead -- " 7 "; (b) in paragraph (b) by deleting "15" and inserting 5 instead -- " 10 ". 47. Section 24A amended Section 24A(1) is amended as follows: (a) by deleting "10" and inserting instead -- 10 " 7 "; (b) by deleting "13" and inserting instead -- " 8 x- (c) by deleting "15" and inserting instead -- " 10 ". 15 Note: The heading to section 24A will be altered by deleting "10" and inserting instead "7". 48. Section 27 repealed Section 27 is repealed. 49. Section 29 replaced 20 Section 29 is repealed and the following section is inserted instead -- " 29. Public holidays If -- 25 (a) a public holiday occurs during a period of long service leave taken by an employee under section 21 or 24A; and page 39 Labour Relations Legislation Amendment Bill 2006 Part 7 Amendments as to long service leave Division 1 Amendments to the Construction Industry Portable Paid Long Service Leave Act 1985 s. 50 (b) the employee is otherwise entitled to that holiday under the employee's conditions of employment, the period of long service leave is increased by one day 5 for each such public holiday. ". 50. Section 51 amended (1) Section 51 is amended by inserting before "Where" the subsection designation "(1)". 10 (2) At the end of section 51 the following subsection is inserted -- " (2) In this section -- "ordinary pay" has the meaning given in section 21(3). 15 ". 51. Section 56 inserted After section 55 the following section is inserted -- " 56. Transitional provisions 20 The provisions of the Schedule have effect in relation to the several matters specified in it. ". 52. Schedule amended The Schedule is amended as follows: 25 (a) in the heading to the Schedule by inserting after "Schedule" -- " -- Transitional provisions "; (b) by deleting "[Section 21(3)]" and inserting instead -- " [s. 56] "; page 40 Labour Relations Legislation Amendment Bill 2006 Amendments as to long service leave Part 7 Amendments to the Construction Industry Portable Paid Long Division 1 Service Leave Act 1985 s. 52 (c) by deleting the heading immediately above clause 1 and inserting instead -- " Division 1 -- The appointed day 5 "; (d) at the end of the Schedule by inserting -- " Division 2 -- The Labour Relations Legislation Amendment Act 2006 10 3. Service prior to commencement day (1) If an employee has completed at least 6 but less than 15 years service in the construction industry prior to the commencement day, then, despite section 21(1)(a), the employee cannot take long service leave under 15 section 21(1)(a) until after -- (a) if the employee has completed at least 14 years service prior to that day -- the later of the commencement day or completing 14 years 8 months service; 20 (b) if the employee has completed at least 13 but not 14 years service prior to that day -- completing 14 years 4 months service; (c) if the employee has completed at least 12 but not 13 years service prior to that day -- completing 25 14 years service; (d) if the employee has completed at least 11 but not 12 years service prior to that day -- completing 13 years 8 months service; (e) if the employee has completed at least 10 but not 30 11 years service prior to that day -- completing 13 years 4 months service; (f) if the employee has completed at least 9 but not 10 years service prior to that day -- completing 13 years service; page 41 Labour Relations Legislation Amendment Bill 2006 Part 7 Amendments as to long service leave Division 1 Amendments to the Construction Industry Portable Paid Long Service Leave Act 1985 s. 52 (g) if the employee has completed at least 8 but not 9 years service prior to that day -- completing 12 years 4months service; (h) if the employee has completed at least 7 but not 5 8 years service prior to that day -- completing 11 years 8months service; or (i) if the employee has completed at least 6 but not 7 years service prior to that day -- completing 11 years service. 10 (2) Subclause (1) does not apply in respect of a period of service prior to the commencement day in respect of which the employee has become entitled to take long service leave. (3) An employee who becomes entitled to take long service leave under section 21(1)(a) in accordance with 15 subclause (1) also becomes entitled to take long service leave under section 21(1)(b), in respect of the period of service that exceeds 10 years, pro rata. (4) Subclause (3) does not apply to an employee if, before being granted the long service leave, the employee completes 20 15 years service. (5) If an employee takes long service leave in accordance with subclause (3), the employee is entitled, after completing 15 years service, to take the remainder of his or her entitlement under section 21(1)(b) not already taken in 25 accordance with subclause (3). (6) In this clause -- "commencement day" means the day on which the Labour Relations Legislation Amendment Act 2006 Part 7 Division 1 came into operation. 30 ". page 42 Labour Relations Legislation Amendment Bill 2006 Amendments as to long service leave Part 7 Amendments to the Long Service Leave Act 1958 Division 2 s. 53 Division 2 -- Amendments to the Long Service Leave Act 1958 53. The Act amended in this Division The amendments in this Division are to the Long Service Leave Act 1958*. 5 [* Reprint 3 as at 16 May 2003. For subsequent amendments see Western Australian Legislation Information Tables for 2004, Table 1, p. 267.] 54. Long title amended The long title is amended by deleting "certain employees whose 10 employment is not regulated under the Industrial Relations Act 1979" and inserting instead -- " certain Western Australian employees ". 55. Section 4 amended (1) Section 4(1) is amended as follows: 15 (a) by inserting in the appropriate alphabetical position -- " "industrial inspector" means an Industrial Inspector as defined in the Industrial Relations Act 1979; "; 20 (b) by deleting the definition of "Commission in Court Session"; (c) in the definition of "ordinary pay" by deleting "commissions, bonuses,". (2) Section 4(2) is amended as follows: 25 (a) by deleting paragraph (a); (b) in paragraph (b) by deleting "where no ordinary time rate of pay is fixed under the provisions of paragraph (a) the ordinary time rate of pay shall be deemed to be" and inserting instead -- page 43 Labour Relations Legislation Amendment Bill 2006 Part 7 Amendments as to long service leave Division 2 Amendments to the Long Service Leave Act 1958 s. 56 " where the employee is employed on piece or bonus work or any other system of payment by results, the employee's rate of pay during any 5 period when the employee is on long service leave is "; (c) in paragraph (c) by deleting "an employee" and inserting instead -- 10 " a full-time, part-time or casual employee "; (d) in paragraph (c) by deleting ", subject to paragraph (a),". 56. Section 8 amended (1) Section 8(2) is amended as follows: (a) by deleting "Subject to subsections (4) and (5), an" and 15 inserting instead -- " An "; (b) by deleting "15" in the 4 places where it occurs and inserting instead -- " 10 "; 20 (c) by deleting "13" in both places where it occurs and inserting instead -- " 8 x- (d) in paragraph (b) by deleting "10" and inserting instead -- 25 " 5 "; (e) in paragraph (b) by deleting "8 xDQGLQVHUWLQJ instead -- " 4 x page 44 Labour Relations Legislation Amendment Bill 2006 Amendments as to long service leave Part 7 Amendments to the Long Service Leave Act 1958 Division 2 s. 56 (2) Section 8(3) is amended as follows: (a) by deleting "Subject to subsection (5), where" and inserting instead -- " Where "; 5 (b) by deleting "10" and inserting instead -- " 7 "; (c) by deleting "13" and inserting instead -- " 8 x- (d) by deleting "15" in the both places where it occurs and 10 inserting instead -- " 10 ". (3) Section 8(4), (5) and (6) are repealed and the following subsections are inserted instead -- " 15 (4) If an employee has completed at least 6 but less than 15 years continuous employment prior to the commencement day, then, despite subsection (2)(a), the employee cannot take long service leave under subsection (2)(a) until after -- 20 (a) if the employee has completed at least 14 years continuous employment prior to that day -- the later of the commencement day or completing 14 years 8 months continuous employment; (b) if the employee has completed at least 13 but 25 not 14 years continuous employment prior to that day -- completing 14 years 4 months continuous employment; (c) if the employee has completed at least 12 but not 13 years continuous employment prior to 30 that day -- completing 14 years continuous employment; page 45 Labour Relations Legislation Amendment Bill 2006 Part 7 Amendments as to long service leave Division 2 Amendments to the Long Service Leave Act 1958 s. 56 (d) if the employee has completed at least 11 but not 12 years continuous employment prior to that day -- completing 13 years 8 months continuous employment; 5 (e) if the employee has completed at least 10 but not 11 years continuous employment prior to that day -- completing 13 years 4 months continuous employment; (f) if the employee has completed at least 9 but not 10 10 years continuous employment prior to that day -- completing 13 years continuous employment; (g) if the employee has completed at least 8 but not 9 years continuous employment prior to that 15 day -- completing 12 years 4 months continuous employment; (h) if the employee has completed at least 7 but not 8 years continuous employment prior to that day -- completing 11 years 8 months 20 continuous employment; or (i) if the employee has completed at least 6 but not 7 years continuous employment prior to that day -- completing 11 years continuous employment. 25 (5) Subsection (4) does not apply in respect of a period of continuous employment prior to the commencement day in respect of which the employee has become entitled to take long service leave. (6) An employee who becomes entitled to take long 30 service leave under subsection (2)(a) in accordance with subsection (4) also becomes entitled to take long service leave under subsection (2)(b), in respect of the period of continuous employment that exceeds 10 years, pro rata. page 46 Labour Relations Legislation Amendment Bill 2006 Amendments as to long service leave Part 7 Amendments to the Long Service Leave Act 1958 Division 2 s. 57 (7) Subsection (6) does not apply to an employee if, before being granted the long service leave, the employee completes 15 years continuous employment. (8) If an employee takes long service leave in accordance 5 with subsection (6), the employee is entitled, after completing 15 years continuous employment, to take the remainder of his or her entitlement under subsection (2)(b) not already taken in accordance with subsection (6). 10 (9) In subsections (4) and (5) -- "commencement day" means the day on which the Labour Relations Legislation Amendment Act 2006 Part 7 Division 2 came into operation. ". 15 57. Section 8A repealed Section 8A is repealed. 58. Section 9 amended (1) Section 9(3) is amended by deleting all of the subsection from and including "unless" and inserting instead -- 20 " unless -- (a) the employee requests in writing to be paid before the period of leave commences, in which case the employee is to be so paid; or 25 (b) the employee and employer agree to another method of payment. ". page 47 Labour Relations Legislation Amendment Bill 2006 Part 7 Amendments as to long service leave Division 2 Amendments to the Long Service Leave Act 1958 s. 59 (2) Section 9(4) is repealed and the following subsection is inserted instead -- " (4) If -- 5 (a) a public holiday occurs during a period of long service leave taken by an employee under section 8(2)(a) or (b); and (b) the employee is otherwise entitled to that holiday under the employee's conditions of 10 employment, the period of long service leave is increased by one day for each such public holiday. ". 59. Section 12 inserted 15 After section 11 the following section is inserted in Part IV -- " 12. Industrial inspectors may institute proceedings An industrial inspector may institute proceedings under section 11 in his or her own name, whether or not an 20 employee is to be a party to the proceedings. ". 60. Section 26 amended (1) Section 26(2) is amended by deleting the penalty. (2) After section 26(2) the following subsections are inserted -- 25 " (3) A contravention of subsection (2) is not an offence but that subsection is a civil penalty provision for the purposes of the Industrial Relations Act 1979 section 83E. page 48 Labour Relations Legislation Amendment Bill 2006 Amendments as to long service leave Part 7 Amendments to the Long Service Leave Act 1958 Division 2 s. 61 (4) Subsection (3) extends to a contravention that occurred within the period of 12 months ending on the coming into operation of the Labour Relations Legislation Amendment Act 2006 Part 7 Division 2 unless the 5 employer was charged with an offence in respect of that contravention. ". 61. Section 26A amended (1) Section 26A(1) is amended by deleting the penalty. 10 (2) After section 26A(1) the following subsections are inserted -- " (1a) A contravention of subsection (1) is not an offence but that subsection is a civil penalty provision for the purposes of the Industrial Relations Act 1979 15 section 83E. (1b) Subsection (1a) extends to a contravention that occurred within the period of 12 months ending on the coming into operation of the Labour Relations Legislation Amendment Act 2006 Part 7 Division 2 20 unless the employer was charged with an offence in respect of that contravention. ". (3) Section 26A(2) is amended by deleting "under the Industrial Relations Act 1979". 25 62. Part VII Division 5 repealed Part VII Division 5 is repealed. page 49 Labour Relations Legislation Amendment Bill 2006 Part 7 Amendments as to long service leave Division 3 Repeal of the LSL General Order s. 63 Division 3 -- Repeal of the LSL General Order 63. Meaning of terms used in this Division In this Division -- "Commission" means The Western Australian Industrial 5 Relations Commission; "employer" has the meaning given to that term in the Long Service Leave Act 1958 section 4; "industrial instrument" means -- (a) an award under the Coal Industry Tribunal of 10 Western Australia Act 1992; (b) an order under the Coal Industry Tribunal of Western Australia Act 1992 or an agreement that comes within section 12(4) or 17(1) of that Act; (c) an award as defined in the Industrial Relations 15 Act 1979 section 7(1); (d) an industrial agreement as defined in the Industrial Relations Act 1979 section 7(1); (e) an order of the Commission under the Industrial Relations Act 1979; 20 (f) an employer-employee agreement under the Industrial Relations Act 1979 Part VID; or (g) any other agreement between a person and an employer, as such, that deals with long service leave; "LSL General Order" means the General Order relating to 25 long service leave made by the Commission on 27 January 1978 and published in the Western Australian Industrial Gazette on 22 February 1978 at page 120 and the Schedule attached to that order published in that Gazette on 25 January 1978 at pages 1 to 6. 30 64. LSL General Order repealed The LSL General Order is repealed. page 50 Labour Relations Legislation Amendment Bill 2006 Amendments as to long service leave Part 7 Repeal of the LSL General Order Division 3 s. 65 65. Transitional provision -- references to the LSL General Order (1) The object of this section is to ensure that where, before commencement, a person's long service leave rights, 5 entitlements or obligations arose under an industrial instrument by reference to the LSL General Order that person's long service leave rights, entitlements or obligations arise, after commencement, under the instrument by reference to the Long Service Leave Act 1958. 10 (2) Unless the contrary intention appears or the context otherwise requires, a reference in an industrial instrument to the LSL General Order, or a provision of that Order, is, after commencement, to be read as a reference to the Long Service Leave Act 1958, or the corresponding provision of that Act, 15 (whichever is relevant) and the instrument is to be construed so as to give effect to the object of this section. (3) Subsection (2) applies to references that, after commencement, have ongoing effect. (4) A provision of the Long Service Leave Act 1958 corresponds to 20 a provision of the LSL General Order if the provisions deal with substantially the same matter. (5) In this section -- "commencement" means the coming into operation of the Labour Relations Legislation Amendment Act 2006 Part 7 25 Division 2. page 51 Labour Relations Legislation Amendment Bill 2006 Part 8 Amendments as to civil penalties s. 66 Part 8 -- Amendments as to civil penalties 66. The Act amended in this Part The amendments in this Part are to the Industrial Relations Act 1979*. 5 [* Reprint 10 as at 8 July 2005. For subsequent amendments see Acts Nos. 34 of 2004 and 14 of 2005.] 67. Section 7 amended Section 7(1) is amended in the definition of "civil penalty 10 provision" by inserting after "Act" -- " , or any other written law, ". 68. Section 81AA amended Section 81AA is amended as follows: (a) after paragraph (bc) by deleting the semicolon and 15 inserting a full stop; (b) by deleting paragraph (c). 69. Section 81CA amended Section 81CA(1) is amended in the definition of "prosecution jurisdiction" as follows: 20 (a) after paragraph (a) by inserting -- " or "; (b) after paragraph (d) by deleting "; or" and inserting a full stop; (c) by deleting paragraphs (c) and (e). page 52 Labour Relations Legislation Amendment Bill 2006 Amendments as to civil penalties Part 8 s. 70 70. Section 83E amended After section 83E(6) the following subsection is inserted -- " (6a) Subsection (6)(c) does not apply in the case of a 5 contravention of section 8(3), 44(3) or 45(1) of the MCE Act or of section 26(2) or 26A(1) of the Long Service Leave Act 1958. ".

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