Fair Work Amendment (State Referrals and Other Measures) Act 2009 (Cth)

Fair Work Amendment (State Referrals and Other Measures) Act 2009 No. 124, 2009 An Act to amend the Fair Work Act 2009, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Referring States Fair Work Act 2009 Schedule 2—Transitional matters related to State referrals under Division 2B of Part 1‑3 of the Fair Work Act 2009 Part 1—Amendment of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Part 2—Amendment of other Acts Age Discrimination Act 2004 Australian Human Rights Commission Act 1986 Disability Discrimination Act 1992 Fair Work Act 2009 Legislative Instruments Act 2003 Sex Discrimination Act 1984 Superannuation Guarantee (Administration) Act 1992 Schedule 3—Other amendments Part 1—Main amendments Fair Work Act 2009 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Part 2—Minor technical amendments Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Fair Work Amendment (State Referrals and Other Measures) Act 2009 No. 124, 2009 An Act to amend the Fair Work Act 2009, and for related purposes [Assented to 9 December 2009] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Fair Work Amendment (State Referrals and Other Measures) Act 2009. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 9 December 2009 2. Schedule 1, items 1 to 6 A day or days to be fixed by Proclamation. 1 January 2010 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (see F2009L04605) 3. Schedule 1, item 7 Immediately after the commencement of item 2 of Schedule 3. 15 December 2009 4. Schedule 1, items 8 to 12 A day or days to be fixed by Proclamation. 1 January 2010 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (see F2009L04605) 5. Schedule 1, item 13 Immediately after the commencement of item 11 of Schedule 1 to the Fair Work (State Referral and Consequential and Other Amendments) Act 2009. 25 June 2009 6. Schedule 1, items 14 and 15 A day or days to be fixed by Proclamation. 1 January 2010 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (see F2009L04605) 7. Schedule 1, item 16 Immediately after the commencement of item 11 of Schedule 1 to the Fair Work (State Referral and Consequential and Other Amendments) Act 2009. 25 June 2009 8. Schedule 1, items 17 to 41 A day or days to be fixed by Proclamation. 1 January 2010 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (see F2009L04605) 9. Schedule 1, item 42 The day this Act receives the Royal Assent. 9 December 2009 10. Schedule 2, items 1A to 128 At the same time as item 39 of Schedule 1. 1 January 2010 11. Schedule 2, items 129 to 132 Immediately after the commencement of section 168E of the Fair Work Act 2009. 1 January 2010 12. Schedule 2, items 133 to 138 At the same time as item 39 of Schedule 1. 1 January 2010 13. Schedule 3, items 1A to 17 A day or days to be fixed by Proclamation. Items 1A, 4–17: 1 January 2010 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (see F2009L04605) Items 1–3: 15 December 2009 (see F2009L04605) 13A. Schedule 3, items 17A to 17E The day this Act receives the Royal Assent. 9 December 2009 14. Schedule 3, Part 2 At the same time as item 39 of Schedule 1. 1 January 2010 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Referring States Fair Work Act 2009 1 Section 12 (note 2 at the end of the definition of employee) Omit "subsection 15(1) and subsection 30E(1)", substitute "subsections 15(1), 30E(1) and 30P(1)". 2 Section 12 (note 2 at the end of the definition of employer) Omit "subsection 15(2) and subsection 30E(2)", substitute "subsections 15(2), 30E(2) and 30P(2)". 3 Section 12 (note at the end of the definition of national system employee) Omit "Section 30C extends", substitute "Sections 30C and 30M extend". 4 Section 12 (note at the end of the definition of national system employer) Omit "Section 30D extends", substitute "Sections 30D and 30N extend". 5 Section 12 (note at the end of the definition of outworker entity) Omit "Section 30F extends", substitute "Sections 30F and 30Q extend". 6 Section 13 (note) Omit "Section 30C extends", substitute "Sections 30C and 30M extend". 7 Subsection 14(1) (note 2) Omit "Section 30D extends", substitute "Sections 30D and 30N extend". 8 Subsection 15(1) (note) Omit "Subsection 30E(1) extends", substitute "Subsections 30E(1) and 30P(1) extend". 9 Subsection 15(2) (note) Omit "Subsection 30E(2) extends", substitute "Subsections 30E(2) and 30P(2) extend". 10 Section 24 Omit "Division 2A is about the extended application of this Act in a State that has", substitute "Divisions 2A and 2B are about the extended application of this Act in States that have". 11 Division 2A of Part 1‑3 (heading) Repeal the heading, substitute: Division 2A—Application of this Act in States that refer matters before 1 July 2009 12 Section 30A Before "In this Division", insert "(1)". 13 Section 30A (definition of amendment) Repeal the definition. 14 Section 30A Insert: amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(4). 15 Section 30A (definition of excluded subject matter) Repeal the definition, substitute: excluded subject matter means any of the following matters: (a) a matter dealt with in a law referred to in subsection 27(1A) of this Act; (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; (l) the following matters relating to 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 of employer associations; (n) workplace surveillance; (o) business trading hours; (p) claims for enforcement of contracts of employment, except so far as a law of a State provides for the variation or setting aside of rights and obligations arising under a contract of 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 a preceding paragraph of this definition; except to the extent that this Act as originally enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter. 16 Section 30A (definition of express amendment) Omit "amendment of this Act", substitute "amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter)". 17 Section 30A Insert: fundamental workplace relations principles: see subsection 30B(9). 18 Section 30A Insert: initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(3). 19 Section 30A (definition of law enforcement officer) Repeal the definition, substitute: law enforcement officer means: (a) a member of a police force or police service; or (b) a person appointed to a position for the purpose of being trained as a member of a police force or police service; or (c) a person who has the powers and duties of a member of a police force or police service; and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer. 20 Section 30A Insert: local government employee, of a State, means: (a) an employee of a local government employer of the State; or (b) any other employee in the State of a kind specified in the regulations. 21 Section 30A Insert: local government employer, of a State, means an employer that is: (a) a body corporate that is established for a local government purpose by or under a law of a State; or (b) a body corporate in which a body to which paragraph (a) applies has, or 2 or more such bodies together have, a controlling interest; or (c) a person who employs individuals for the purposes of an unincorporated body that is established for a local government purpose by or under a law of a State; or (d) any other body corporate that is a local government body in the State of a kind specified in the regulations; or (e) any other person who employs individuals for the purposes of an unincorporated body that is a local government body in the State of a kind specified in the regulations. 22 Section 30A (paragraph (c) of the definition of referred subject matters) After "responsibilities of", insert "persons, including". 23 Section 30A (subparagraph (c)(i) of the definition of referred subject matters) After "association", insert "in the context of workplace relations,". 24 Section 30A (subparagraph (c)(viii) of the definition of referred subject matters) Before "rights of entry", insert "union". 25 Section 30A (paragraphs (a) to (d) of the definition of State public sector employer) Repeal the paragraphs, substitute: (a) the State, the Governor of the State or a Minister of the State; or (b) a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or (c) a body corporate in which the State has a controlling interest; or (d) a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or (e) any other employer in the State of a kind specified in the regulations; 26 Section 30A Insert: transition reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(5). 27 At the end of section 30A Add: (2) Words or phrases in the definition of excluded subject matter in subsection (1), or in the definition of referred subject matters in subsection (1), that are defined in this Act (other than in this Division) have, in that definition, the meanings set out in this Act as in force on 1 July 2009. 27A Subsection 30B(1) After "State has", insert ", before 1 July 2009,". 28 Paragraph 30B(2)(b) After "particular matters", insert ", or all matters,". 29 Paragraph 30B(2)(b) Omit "those matters", substitute "the matters covered by subsections (3), (4) and (5); or". 30 At the end of subsection 30B(2) Add: (c) the State's referral law provides that particular matters, or all matters, relating to local government employees, or local government employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5). 31 Subsection 30B(6) Repeal the subsection, substitute: Effect of termination of reference (6) Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs: (a) the State's initial reference terminates; (b) the State's amendment reference terminates, and neither of subsections (7) and (8) apply to the termination; (c) the State's transition reference terminates. (7) A State does not cease to be a referring State because of the termination of its amendment reference if: (a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and (b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and (c) that State's amendment reference, and the amendment reference of every other referring State (other than a referring State that has terminated its amendment reference in the circumstances referred to in subsection (8)), terminate on the same day. (8) A State does not cease to be a referring State because of the termination of its amendment reference if: (a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and (b) the day fixed is 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; and (c) the Governor of that State, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor, this Act: (i) is proposed to be amended (by an amendment introduced into the Parliament by a Minister); or (ii) has been amended; in a manner that is inconsistent with one or more of the fundamental workplace relations principles. (9) The following are the fundamental workplace relations principles: (a) that this 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 this Act, the following: (i) an independent tribunal system; (ii) an independent authority able to assist employers and employees within a national workplace relations system. 32 Paragraphs 30C(1)(a) and 30D(1)(a) Omit "a referring State", substitute "a State that is a referring State because of this Division". 33 Subsection 30E(1) Omit "a referring State", substitute "a State that is a referring State because of this Division". 34 Subsection 30E(2) After "a State", insert "that is a referring State because of this Division". 35 Subparagraphs 30F(1)(c)(i) to (iv) Omit "a referring State", substitute "a State that is a referring State because of this Division". 36 Subsection 30G(1) Omit "a referring State", substitute "a State that is a referring State because of this Division". 37 Section 30H Omit "a referring State", substitute "a State that is a referring State because of this Division". 38 Section 30J Repeal the section. 39 After Division 2A of Part 1‑3 Insert: Division 2B—Application of this Act in States that refer matters after 1 July 2009 but on or before 1 January 2010 30K Meaning of terms used in this Division (1) In this Division: amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(4). excluded subject matter means any of the following matters: (a) a matter dealt with in a law referred to in subsection 27(1A) of this Act; (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; (l) the following matters relating to 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 of employer associations; (n) workplace surveillance; (o) business trading hours; (p) claims for enforcement of contracts of employment, except so far as a law of a State provides for the variation or setting aside of rights and obligations arising under a contract of 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 a preceding paragraph of this definition; except to the extent that this Act as originally enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter. express amendment means the direct amendment of the text of this 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 this Act. fundamental workplace relations principles: see subsection 30L(9). initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(3). law enforcement officer means: (a) a member of a police force or police service; or (b) a person appointed to a position for the purpose of being trained as a member of a police force or police service; or (c) a person who has the powers and duties of a member of a police force or police service; and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer. local government employee, of a State, means: (a) an employee of a local government employer of the State; or (b) any other employee in the State of a kind specified in the regulations. local government employer, of a State, means an employer that is: (a) a body corporate that is established for a local government purpose by or under a law of a State; or (b) a body corporate in which a body to which paragraph (a) applies has, or 2 or more such bodies together have, a controlling interest; or (c) a person who employs individuals for the purposes of an unincorporated body that is established for a local government purpose by or under a law of a State; or (d) any other body corporate that is a local government body in the State of a kind specified in the regulations; or (e) any other person who employs individuals for the purposes of an unincorporated body that is a local government body in the State of a kind specified in the regulations. referral law, of a State, means the law of the State that refers matters, as mentioned in subsection 30L(1), to the Parliament of the Commonwealth. referred provisions means the provisions of this Division to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States. 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); (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 in the context of workplace relations, and related protections; (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) union rights of entry and rights of access to records; (d) compliance with, and enforcement of, this Act; (e) the administration of this Act; (f) the application of this Act; (g) matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act; but does not include any excluded subject matter. referring State: see section 30L. State public sector employee, of a State, means: (a) an employee of a State public sector employer of the State; or (b) any other employee in the State of a kind specified in the regulations; and includes a law enforcement officer of the State. State public sector employer, of a State, means an employer that is: (a) the State, the Governor of the State or a Minister of the State; or (b) a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or (c) a body corporate in which the State has a controlling interest; or (d) a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or (e) any other employer in the State of a kind specified in the regulations; and includes a holder of an office of the State whom the State's referral law provides is to be taken, for the purposes of this Act, to be an employer of law enforcement officers of the State. transition reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(5). (2) Words or phrases in the definition of excluded subject matter in subsection (1), or in the definition of referred subject matters in subsection (1), that are defined in this Act (other than in this Division) have, in that definition, the meanings set out in this Act as in force on 1 July 2009. 30L Meaning of referring State Reference of matters by State Parliament to Commonwealth Parliament (1) A State is a referring State if the Parliament of the State has, after 1 July 2009 but on or before 1 January 2010, referred the matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution: (a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and (b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State. This subsection has effect subject to subsection (6). (2) A State is a referring State even if: (a) the State's referral law provides that the reference to the Parliament of the Commonwealth of any or all of the matters covered by subsections (3), (4) and (5) is to terminate in particular circumstances; or (b) the State's referral law provides that particular matters, or all matters, relating to State public sector employees, or State public sector employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5); or (c) the State's referral law provides that particular matters, or all matters, relating to local government employees, or local government employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5). Reference covering referred provisions (3) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by amending this Act, as originally enacted, and as subsequently amended by amendments enacted at any time before the State's referral law commenced, to include the referred provisions. Reference covering amendments (4) This subsection covers the referred subject matters to the extent of making laws with respect to those matters by making express amendments of this Act. Reference covering transitional matters (5) This subsection covers making laws with respect to the transition from the regime provided for by: (a) the Workplace Relations Act 1996 (as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); or (b) a law of a State relating to workplace relations or industrial relations; to the regime provided for by this Act. Effect of termination of reference (6) Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs: (a) the State's initial reference terminates; (b) the State's amendment reference terminates, and neither of subsections (7) and (8) apply to the termination; (c) the State's transition reference terminates. (7) A State does not cease to be a referring State because of the termination of its amendment reference if: (a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and (b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and (c) that State's amendment reference, and the amendment reference of every other referring State (other than a referring State that has terminated its amendment reference in the circumstances referred to in subsection (8)), terminate on the same day. (8) A State does not cease to be a referring State because of the termination of its amendment reference if: (a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and (b) the day fixed is no earlier than the first day after the end of the period of 3 months beginning on the day on which the proclamation