Commonwealth: 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 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. 30M Extended meaning of national system employee (1) A national system employee includes: (a) any individual in a State that is a referring State because of this Division so far as he or she is employed, or usually employed, as described in paragraph 30N(1)(a), except on a vocational placement; and (b) a law enforcement officer of the State to whom subsection 30P(1) applies. (2) This section does not limit the operation of section 13 (which defines a national system employee). Note: Section 30S may limit the extent to which this section extends the meaning of national system employee. 30N Extended meaning of national system employer (1) A national system employer includes: (a) any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual; and (b) a holder of an office to whom subsection 30P(2) applies. (2) This section does not limit the operation of section 14 (which defines a national system employer). Note: Section 30S may limit the extent to which this section extends the meaning of national system employer. 30P Extended ordinary meanings of employee and employer (1) A reference in this Act to an employee with its ordinary meaning includes a reference to a law enforcement officer of a referring State if the State's referral law so provides for the purposes of that law. (2) A reference in this Act to an employer with its ordinary meaning includes a reference to a holder of an office of a State if the State's referral law provides, for the purposes of that law, that the holder of the office is taken to be the employer of a law enforcement officer of the State. (3) This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings). Note: Section 30S may limit the extent to which this section extends the meanings of employee and employer. 30Q Extended meaning of outworker entity (1) An outworker entity includes a person, other than in the person's capacity as a national system employer, so far as: (a) the person arranges for work to be performed for the person (either directly or indirectly); and (b) the work is of a kind that is often performed by outworkers; and (c) one or more of the following applies: (i) at the time the arrangement is made, one or more parties to the arrangement is in a State that is a referring State because of this Division; (ii) the work is to be performed in a State that is a referring State because of this Division; (iii) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is reasonably likely to be performed in that State; (iv) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is to be performed in connection with that activity. (2) This section does not limit the operation of the definition of outworker entity in section 12. Note: Section 30S may limit the extent to which this section extends the meaning of outworker entity. 30R General protections (1) Part 3‑1 (which deals with general protections) applies to action taken in a State that is a referring State because of this Division. (2) This section applies despite section 337 (which limits the application of Part 3‑1), and does not limit the operation of sections 338 and 339 (which set out the application of that Part). Note: Section 30S may limit the extent to which this section extends the application of Part 3‑1. 30S Division only has effect if supported by reference A provision of this Division has effect in relation to a State that is a referring State because of this Division only to the extent that the State's referral law refers to the Parliament of the Commonwealth the matters mentioned in subsection 30L(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect. 40 At the end of Division 4 of Part 1‑3 Add: 40A Application of the Acts Interpretation Act 1901 (1) The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act. (2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act. 41 Section 337 (note) Omit "Section 30G extends", substitute "Sections 30G and 30R extend". 42 Transitional—referring State Victoria is taken, for the purposes of the Fair Work Act 2009: (a) to have been a referring State at and after the commencement of item 11 of Schedule 1 to the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 until immediately before the commencement of this item; and (b) to continue to be a referring State at and after the commencement of this item, subject to section 30B (meaning of referring State) of the 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 1A Item 2 of Schedule 2 Insert: affected employee of an employer: see subitem 43(6) of Schedule 3 and subitem 30A(4) of Schedule 3A. 1 Item 2 of Schedule 2 (definition of applies) Repeal the definition, substitute: applies: (a) in relation to a transitional instrument: see subitem 3(2) of Schedule 3; and (b) in relation to a Division 2B State award: see item 4 of Schedule 3A; and (c) in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A. 2 Item 2 of Schedule 2 Insert: collective Division 2B State employment agreement: see subitem 5(5) of Schedule 3A. 3 Item 2 of Schedule 2 Insert: collective State employment agreement: see subitem 2(6) of Schedule 3A. 4 Item 2 of Schedule 2 (definition of conditional termination) Repeal the definition, substitute: conditional termination: (a) in relation to an individual agreement‑based transitional instrument: see subitem 18(1) of Schedule 3; and (b) in relation to an individual Division 2B State employment agreement: see subitem 25(1) of Schedule 3A. 5 Item 2 of Schedule 2 (at the end of the definition of covers) Add: ; and (c) in relation to a Division 2B State award: see item 4 of Schedule 3A; and (d) in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A. 6 Item 2 of Schedule 2 Insert: Division 2A referring State: see subitem 2A(7) of Schedule 3. 7 Item 2 of Schedule 2 Insert: Division 2A State reference employee: see subitem 2A(3A) of Schedule 3. 8 Item 2 of Schedule 2 Insert: Division 2A State reference employer: see subitem 2A(4A) of Schedule 3. 9 Item 2 of Schedule 2 Insert: Division 2A State reference transitional award: see subitem 2A(1A) of Schedule 3. 10 Item 2 of Schedule 2 Insert: Division 2B enterprise award: see subitem 2(4) of Schedule 6. 11 Item 2 of Schedule 2 Insert: Division 2B referral commencement: see subitem 2(4A) of Schedule 3. 12 Item 2 of Schedule 2 Insert: Division 2B referring State: see subitem 2A(7) of Schedule 3. 13 Item 2 of Schedule 2 Insert: Division 2B State award: see item 3 of Schedule 3A. 14 Item 2 of Schedule 2 Insert: Division 2B State employment agreement: see item 5 of Schedule 3A. 15 Item 2 of Schedule 2 Insert: Division 2B State instrument: see item 2 of Schedule 3A. 16 Item 2 of Schedule 2 Insert: Division 2B State reference employee: see subitem 2A(3A) of Schedule 3. 17 Item 2 of Schedule 2 Insert: Division 2B State reference employer: see subitem 2A(4A) of Schedule 3. 18 Item 2 of Schedule 2 Insert: Division 2B State reference outworker entity: see subitem 4(3) of Schedule 3A. 19 Item 2 of Schedule 2 Insert: Division 2B State reference transitional award: see subitem 2A(1A) of Schedule 3. 20 Item 2 of Schedule 2 Insert: individual Division 2B State employment agreement: see subitem 5(6) of Schedule 3A. 21 Item 2 of Schedule 2 Insert: individual State employment agreement: see subitem 2(7) of Schedule 3A. 22 Item 2 of Schedule 2 (definition of instrument content rules) Repeal the definition, substitute: instrument content rules: (a) in Schedule 3: see subitem 4(2) of Schedule 3; and (b) in Schedule 3A: see subitem 10(2) of Schedule 3A. 23 Item 2 of Schedule 2 (definition of instrument interaction rules) Repeal the definition, substitute: instrument interaction rules: (a) in Schedule 3: see subitem 5(2) of Schedule 3; and (b) in Schedule 3A: see subitem 11(2) of Schedule 3A. 24 Item 2 of Schedule 2 Insert: nominal expiry date, in relation to a Division 2B State employment agreement: see item 27 of Schedule 3A. 25 Item 2 of Schedule 2 Insert: outworker interaction rules: see subitem 12(2) of Schedule 3A. 26 Item 2 of Schedule 2 Insert: referring State: see subitem 2A(7) of Schedule 3. 27 Item 2 of Schedule 2 Insert: source agreement, in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A. 28 Item 2 of Schedule 2 Insert: source award, in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A. 29 Item 2 of Schedule 2 Insert: source State: (a) in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A; and (b) in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A. 30 Item 2 of Schedule 2 Insert: State award: see item 2 of Schedule 3A. 31 Item 2 of Schedule 2 Insert: State employment agreement: see item 2 of Schedule 3A. 32 Item 2 of Schedule 2 Insert: State industrial body means a commission performing or exercising functions under a State industrial law, and includes a member of such a commission and a registrar or deputy registrar of such a commission. 33 Item 2 of Schedule 2 Insert: State industrial law means a law of a State that is a State or Territory industrial law as defined in section 26 of the FW Act. 34 Item 2 of Schedule 2 Insert: State minimum wages instruments: see item 19 of Schedule 9. 35 Item 2 of Schedule 2 (definition of take‑home pay) After "see", insert "subitem 31(2) of Schedule 3A,". 36 Item 2 of Schedule 2 (definition of take‑home pay order) After "see", insert "subitems 32(1) and (2) of Schedule 3A,". 36A Item 2 of Schedule 2 Insert: transitional pay equity order: see subitem 43(1) of Schedule 3 and subitem 30A(1) of Schedule 3A. 37 At the end of subitem 7(1) of Schedule 2 Add: ; (c) the transition from the regime provided for by State industrial laws of Division 2B referring States to the regime provided for by this Act and the FW Act, including: (i) the transition from State awards and State employment agreements to Division 2B State instruments; and (ii) the transition from Division 2B State instruments to modern awards and enterprise agreements; (d) the amendments and repeals made by the Fair Work Amendment (State Referrals and Other Measures Act) 2009. 38 At the end of subitem 7(2) of Schedule 2 Add: ; (c) provide for the application (with or without modifications), as laws of the Commonwealth, of provisions of State industrial laws of Division 2B referring States on and after the Division 2B referral commencement. 39 Subitem 2(1) of Schedule 3 Omit "subitems (3) and (4)", substitute "subitems (3) to (4A)". 40 Paragraph 2(3)(a) of Schedule 3 After "WR Act instrument", insert "(other than a Division 2B State reference transitional award)". 41 After subitem 2(4) of Schedule 3 Insert: (4A) A Division 2B State reference transitional award becomes a transitional instrument on the Division 2B referral commencement. The Division 2B referral commencement is the time when Division 2B of Part 1‑3 of the FW Act commences. 42 Item 2A of Schedule 3 (heading) Repeal the heading, substitute: 2A Meaning of State reference transitional award and various other expressions associated with State references 43 After subitem 2A(1) of Schedule 3 Insert: (1A) State reference transitional awards are classified as follows: (a) if the employers and employees covered are Division 2A State reference employers and Division 2A State reference employees—the State reference transitional award is a Division 2A State reference transitional award; (b) if the employers and employees covered are Division 2B State reference employers and Division 2B State reference employees—the State reference transitional award is a Division 2B State reference transitional award. 44 Subitem 2A(3) of Schedule 3 After "section 30C", insert "or 30M". 45 After subitem 2A(3) of Schedule 3 Insert: (3A) State reference employees are classified as follows: (a) employees who are national system employees because of section 30C of the FW Act are Division 2A State reference employees; (b) employees who are national system employees because of section 30M of the FW Act are Division 2B State reference employees. 46 Subitem 2A(4) of Schedule 3 After "section 30D", insert "or 30N". 47 After subitem 2A(4) of Schedule 3 Insert: (4A) State reference employers are classified as follows: (a) employers that are national system employers because of section 30D of the FW Act are Division 2A State reference employers; (b) employers that are national system employers because of section 30N of the FW Act are Division 2B State reference employers. 48 Paragraph 2A(5)(a) of Schedule 3 Repeal the paragraph, substitute: (a) a transitional award (the current award), as in force on the WR Act repeal day, covers one or more Division 2A State reference employers, and Division 2A State reference employees of those employers; and 49 Subitem 2A(5) of Schedule 3 After "instead", insert ", on and after that day (subject to subitem (6)),". 50 Paragraph 2A(5)(c) of Schedule 3 Omit "a State reference", substitute "a Division 2A State reference". 51 At the end of item 2A of Schedule 3 Add: (6) If: (a) a transitional award (the current award), as in force on the Division 2B referral commencement, covers one or more Division 2B State reference employers, and Division 2B State reference employees of those employers; and (b) the current award also covers: (i) other employees of those employers; or (ii) other employers, and employees of those other employers; then, for the purposes of this Act, the current award is taken instead, on and after the Division 2B referral commencement, to constitute 2 separate transitional awards as follows: (c) a Division 2B State reference transitional award covering: (i) the employers, and the employees of those employers, referred to in paragraph (a); and (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; (d) a transitional award covering: (i) the employers, and the employees of those employers, referred to in paragraph (b); and (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees. (7) A referring State is: (a) a State (a Division 2A referring State) that is a referring State as defined in section 30B of the FW Act; or (b) a State (a Division 2B referring State) that is a referring State as defined in section 30L of the FW Act. 52 Subparagraph 20(2)(b)(ii) of Schedule 3 After "State employment agreement", insert "(within the meaning of the WR Act)". 53 Paragraphs 20(4)(b) and (6)(d) of Schedule 3 After "State employment agreement", insert "(within the meaning of the WR Act)". 53A At the end of Schedule 3 Add: Part 8—Transitional pay equity order taken to have been made by FWA—Division 2B State reference transitional awards 43 FWA taken to have made a transitional pay equity order to continue the effect of State pay equity orders (1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item. (2) The transitional pay equity order applies to an employer if: (a) a modern award applies to the employer on or after the Division 2B referral commencement; and (b) the employer is prescribed by the regulations for the purposes of this paragraph, or is included in a class of employers prescribed by the regulations for the purposes of this paragraph; and (c) immediately before the Division 2B referral commencement, a transitional award (the relevant transitional award) applied to the employer. Note: Transitional award has the same meaning as in Schedule 6 to the WR Act. Schedule 6 is continued in operation by Schedule 20 to this Act. (3) An employer must not be prescribed by regulations for the purposes of paragraph (2)(b) unless: (a) an order, decision or determination of a State industrial body (the source pay equity order) would have applied to the employer if the relevant transitional award had not applied to the employer; and (b) the source pay equity order satisfies subitem (4). (4) A source pay equity order satisfies this subitem if it: (a) was made before 15 September 2009; and (b) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and (c) was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and (d) is prescribed by the regulations for the purposes of this paragraph. (5) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid if the source pay equity order had applied to the employer in respect of the period. (6) An employee of an employer to which this item applies is an affected employee of the employer if the employee performs work of a kind, at a classification level (however described), in relation to which the source pay equity order determines a base rate of pay. (7) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer. (8) A term of a modern award is of no effect to the extent that: (a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and (b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a). (9) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (8)(a). 54 After Schedule 3 Insert: Schedule 3A—Treatment of State awards and State employment agreements of Division 2B referring States Part 1—Preliminary 1 Meanings of employer and employee In this Schedule, employer and employee have their ordinary meanings. Part 2—Division 2B State instruments 2 What are Division 2B State instruments? (1) A Division 2B State instrument is a Division 2B State award (see item 3) or a Division 2B State employment agreement (see item 5). (2) Subject to subitem (3), a State award is an instrument in relation to which the following conditions are satisfied: (a) the instrument regulates terms and conditions of employment; (b) the instrument was made under a State industrial law by a State industrial body; (c) the instrument is referred to in that law as an award. Note: This definition does not apply to a reference in a provision of this Act to a State award if the provision expressly refers to the meaning that was given by the WR Act. (3) The regulations may provide that an instrument of a specified kind: (a) is a State award; or (b) is not a State award. (4) Subject to subitem (5), a State employment agreement is: (a) an agreement in relation to which the following conditions are satisfied: (i) the agreement is between an employer and one or more employees of the employer, or between an employer and an association of employees registered under a State industrial law; (ii) the agreement determines terms and conditions of employment of one or more employees of the employer; (iii) the agreement was made under a State industrial law; or (b) a determination in relation to which the following conditions are satisfied: (i) the determination determines terms and conditions of employment; (ii) the determination was made under a State industrial law by a State industrial body; (iii) the determination was made in a situation in which parties who were negotiating for the making of an agreement of a kind described in paragraph (a) had not been able to reach an agreement; (iv) the purpose of the determination was to resolve the matters that were at issue in those negotiations. Note: This definition does not apply to a reference in a provision of this Act to a State employment agreement if the provision expressly refers to the meaning that was given by the WR Act. (5) The regulations may provide that an instrument of a specified kind: (a) is a State employment agreement; or (b) is not a State employment agreement. (6) A State employment agreement is a collective State employment agreement unless: (a) it is an agreement of a kind that, under the relevant State industrial law, could only be entered into by a single employee and a single employer; or (b) the agreement is of a kind prescribed by the regulations for the purpose of this paragraph. (7) A State employment agreement referred to in paragraph (6)(a) or (b) is an individual State employment agreement. 3 Division 2B State awards (1) If, immediately before the Division 2B referral commencement: (a) a State award (the source award) was in operation under a State industrial law of a Division 2B referring State (the source State); and (b) the source award covered (however described in the source award or a relevant law of the source State) employers and employees who become Division 2B State reference employers and Division 2B State reference employees on the Division 2B referral commencement (whether or not the source award also covered other persons); a Division 2B State award is taken to come into operation immediately after the Division 2B referral commencement. Note 1: A Division 2B State award is a notional federal instrument derived from the source award. Note 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State awards: (a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); (b) Schedule 11 (which deals with transfer of business). (2) Subject to this Schedule, the Division 2B State award is taken to include the same terms as were in the source award immediately before the Division 2B referral commencement. Note: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3. (3) If the terms of the source award were affected by an order, decision or determination of a State industrial body or a court of the source State that was in operation immediately before the Division 2B referral commencement, the terms of the Division 2B State award are taken to be similarly affected by the terms of that order, decision or determination. 4 The employees, employers etc. who are covered by a Division 2B State award and to whom it applies Meaning of covers (1) A Division 2B State award covers the same employees, employers, outworker entities and any other persons that the source award covered (however described in the award or a relevant law of the source State) immediately before the Division 2B referral commencement. Note: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State award potentially applies (see subitem (5)). The employees, employers etc. who are within this range will depend on the terms of the award, and on any relevant provisions of the law of the source State. (2) The Division 2B State award also covers any employees who become employed by an employer on or after the Division 2B referral commencement, and who would have been covered by the source award if they had become so employed immediately before that commencement. (3) However, the Division 2B State award does not cover: (a) any employees, employers or outworker entities that are not Division 2B State reference employees, Division 2B State reference employers or Division 2B State reference outworker entities; or (b) any employees, employers or outworker entities that are covered by an award‑based transitional instrument. A Division 2B State reference outworker entity is an entity that is an outworker entity only because of section 30Q of the FW Act. (4) If: (a) after the Division 2B referral commencement, a person (the employer) starts to employ employees to do work of a kind that was regulated by the source award immediately before that commencement; and (b) the employer did not employ employees to do that kind of work immediately before that commencement; then the Division 2B State award also does not cover any of the following, in relation to that kind of work: (c) the employer; (d) employees of the employer; (e) any other persons, in relation to the employer or employees of the employer. Meaning of applies (5) A Division 2B State award applies to the same employees, employers, outworker entities and any other persons that the Division 2B State award covers as would have been required by the law of the source State to comply with terms of the source award, or entitled under the law of the source State to enforce terms of the source award, if: (a) the State had not been a referring State; and (b) the law of the source State had continued to apply. Note 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State award. Note 2: The Division 2B State award does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or (4) or otherwise. (6) However, a Division 2B State award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act). Note: Item 50 deals with the application of section 329 of the FW Act to Division 2B State awards. Item has effect subject to other provisions (7) This item has effect subject to: (a) the instrument interaction rules (see item 11); and (b) the termination of Division 2B State instruments as referred to in item 18; and (c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and (d) Schedule 11 (which deals with transfer of business). References to laws of States (8) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement. 5 Division 2B State employment agreements State employment agreements that were in operation immediately before the Division 2B referral commencement (1) If, immediately before the Division 2B referral commencement: (a) a State employment agreement (the source agreement) was in operation under a State industrial law of a Division 2B referring State (the source State); and (b) the source agreement covered (however described in the source agreement or a relevant law of the source State) employers and employees who become Division 2B State referral employers and Division 2B State referral employees on the Division 2B referral commencement (whether or not the source agreement also covered other persons); a Division 2B State employment agreement is taken to come into operation immediately after the Division 2B referral commencement. Note 1: A Division 2B State employment agreement is a notional federal instrument derived from the source agreement. Note 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements: (a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); (b) Schedule 11 (which deals with transfer of business). Note 3: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3. (2) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement immediately before the Division 2B referral commencement. State employment agreements that come into operation on or after the Division 2B referral commencement (3) If, on or after the Division 2B referral commencement: (a) a State employment agreement (the source agreement) comes into operation under a State industrial law of a Division 2B referring State (the source State); and (b) the source agreement covers (however described in the source agreement or a relevant law of the source State) employers and employees who are Division 2B State referral employers and Division 2B State referral employees when the source agreement comes into operation (whether or not the source agreement also covers other persons); a Division 2B State employment agreement is taken to come into operation immediately after the source agreement comes into operation. Note 1: A Division 2B State employment agreement is a notional federal instrument derived from the source agreement. Note 2: There is limited scope for State employment agreements that cover Division 2B State referral employers and employees to come into operation on or after the Division 2B referral commencement: see Part 6 of this Schedule. Note 3: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements: (a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); (b) Schedule 11 (which deals with transfer of business). (4) Subject to this Schedule, the Division 2B State employment agreement is taken to include the