Commonwealth: Workplace Relations Amendment (Agreement Validation) Act 2004 (Cth)

Workplace Relations Amendment (Agreement Validation) Act 2004 No. 155, 2004 An Act to amend the Workplace Relations Act 1996, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Amendment of the Workplace Relations Act 1996 Workplace Relations Amendment (Agreement Validation) Act 2004 No. 155, 2004 An Act to amend the Workplace Relations Act 1996, and for related purposes [Assented to 15 December 2004] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Workplace Relations Amendment (Agreement Validation) Act 2004. 2 Commencement This Act commences on the day on which it receives the Royal Assent. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Amendment of the Workplace Relations Act 1996 1 After Division 10 of Part VIB Insert: Division 10A—Validation of certain pre-2 September 2004 agreements, variations, industrial action and lockouts 170NHA Validation etc. of certain agreements If: (a) application was purportedly made to the Commission to certify an agreement under Division 2 (including that Division as applied by subsection 5AA(2) or (3) or subsection 494(2)) or Division 3; and (b) the Commission purported to certify the agreement on or before 2 September 2004 under Division 4 (including that Division as so applied); and (c) the agreement, as purportedly certified, deals with one or more matters that are not permitted matters; and (d) the application and certification were (but for this section) invalid because the agreement deals with matters that are not permitted matters, and for no other reason; then, to the extent only that the agreement deals with permitted matters, the fact that the agreement deals with matters that are not permitted matters is taken for all purposes not to affect, and never to have affected, the validity of the application or certification. 170NHB Validation etc. of variations of certain agreements If: (a) an agreement (including an agreement to which section 170NHA applies) was purportedly varied under Division 7 (including that Division as applied by subsection 5AA(2) or (3) or subsection 494(2)); and (b) the Commission, by order under Division 7 (including that Division as so applied), purportedly approved the variation on or before 2 September 2004; and (c) the variation, as purportedly approved, deals with one or more matters that are not permitted matters; and (d) the variation and approval were (but for this section) invalid because the variation deals with matters that are not permitted matters, and for no other reason; then, to the extent only that the variation deals with permitted matters, the fact that the variation deals with matters that are not permitted matters is taken for all purposes not to affect, and never to have affected, the validity of the variation or the approval. 170NHBA Validation of certain industrial action and lockouts (1) If: (a) a person has organised or engaged in industrial action or locked out employees from their employment; and (b) the industrial action or lockout would have been protected action within the meaning of Division 8 but for the fact that it was for a purpose of, or for a purpose that included a purpose of, supporting or advancing a claim made in respect of a matter that was not a permitted matter; then, to the extent that the industrial action or lockout occurred on or before 2 September 2004, it is taken to be protected action within the meaning of that Division. (2) However, subsection (1) does not apply, and is taken never to have applied, to the extent that its application would have resulted in an acquisition of property within the meaning of paragraph 51(xxxi) of the Constitution. 170NHC Definitions of permitted matter Division 2 agreements and variations (1) For the purposes of this Division, a matter is a permitted matter in relation to: (a) an agreement purportedly made under Division 2 (including that Division as applied by subsection 5AA(2) or (3) or subsection 494(2)); or (b) a purported variation under Division 7 of such an agreement (including an agreement to which section 170NHA applies); if the matter pertains to the relationship between: (c) an employer; and (d) all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement. Division 3 agreements and variations (2) For the purposes of this Division, a matter is a permitted matter in relation to: (a) an agreement purportedly made under section 170LO; or (b) a purported variation under Division 7 of an agreement made under section 170LO (including an agreement to which section 170NHA applies); if the matter is a term of the agreement or variation for: (c) settling or further settling all or any of the matters that are in dispute; or (d) maintaining a settlement of all or any of the matters that were in dispute, whether the settlement was made by an award, a certified agreement or otherwise; or (e) preventing further industrial disputes between the parties to the agreement. (3) For the purposes of this Division, a matter is a permitted matter in relation to: (a) an agreement purportedly made under section 170LP; or (b) a purported variation under Division 7 of an agreement made under section 170LP (including an agreement to which section 170NHA applies); if the matter is a term of the agreement or variation for preventing the industrial situation to which the parties to the agreement are parties from giving rise to an industrial dispute involving them. 2 After Division 8 of Part VID Insert: Division 8A—Validation of certain AWAs and variation agreements made before 2 September 2004 170WEA Validation etc. of certain AWAs If: (a) an AWA was purportedly filed with the Employment Advocate under Division 4 (including that Division as applied by subsection 495(2)); and (b) the Employment Advocate or the Commission purportedly approved the AWA on or before 2 September 2004 under Division 5 (including that Division as so applied); and (c) the AWA, as purportedly filed and approved, deals with one or more matters that do not pertain to the relationship between an employer and an employee; and (d) the filing and approval of the AWA were (but for this section) invalid because the AWA deals with matters that do not pertain to that relationship, and for no other reason; then, to the extent only that the AWA deals with matters pertaining to that relationship, the fact that the AWA deals with matters that do not pertain to that relationship is taken for all purposes not to affect, and never to have affected, the validity of the filing or approval of the AWA. 170WEB Validation etc. of certain variation agreements If: (a) a variation agreement was purportedly filed with the Employment Advocate under Division 4 (including that Division as applied by subsection 495(2)); and (b) the Employment Advocate or the Commission purportedly approved the variation agreement on or before 2 September 2004 under Division 5 (including that Division as so applied); and (c) the variation agreement, as purportedly filed and approved, deals with one or more matters that do not pertain to the relationship between an employer and an employee; and (d) the filing and approval of the variation agreement were (but for this section) invalid because the variation agreement deals with matters that do not pertain to that relationship, and for no other reason; then, to the extent only that the variation agreement deals with matters pertaining to that relationship, the fact that the variation agreement deals with matters that do not pertain to that relationship is taken for all purposes not to affect, and never to have affected, the validity of the filing or approval of the variation agreement. 3 Application provision The amendments made by this Act do not apply in relation to industrial action, or a lockout, if, before the commencement of this Act, a court has found the industrial action or lockout not to be protected action (within the meaning of Division 8 of Part VIB of the Workplace Relations Act 1996). [Minister's second reading speech made in— Senate on 17 November 2004 House of Representatives on 8 December 2004] (205/04)