Commonwealth: Workplace Relations Amendment (Work Choices) Act 2005 (Cth)

Workplace Relations Amendment (Work Choices) Act 2005 Act No. 153 of 2005 as amended This compilation was prepared on 29 March 2007 [This Act was amended by Act No. 163 of 2006; No. 8 of 2007] Amendments from Act No. 163 of 2006 [Schedule 6 (items 49 and 50) amended Schedule 4 (item 5A) Schedule 6 (items 49 and 50) commenced on 12 December 2006] For application provision see Act No. 163, 2006, Schedule 6 (item 62) Amendments from Act No. 8 of 2007 [Schedule 2 (item 17) amended item 187 of Schedule 1 Schedule 2 (item 18) amended item 24 of Schedule 4 Schedule 2 (item 17) commenced immediately before 27 March 2006 Schedule 2 (item 18) commenced immediately after 27 March 2006] Prepared by the Office of Legislative Drafting and Publishing, Attorney‑General's Department, Canberra Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Main amendments Workplace Relations Act 1996 Schedule 1A—Establishment of Australian Fair Pay Commission Workplace Relations Act 1996 Financial Management and Accountability Regulations 1997 Schedule 2—Transitional arrangements for State organisations Workplace Relations Act 1996 Schedule 3—School‑based apprentices and trainees Workplace Relations Act 1996 Schedule 3A—Redundancy pay by small business employers Workplace Relations Act 1996 Schedule 4—Transitional and other provisions Part 1—Regulations for transitional etc. provisions and consequential amendments Part 2—Transitional, application and saving provisions Division 1—Definitions used in this Part Division 2—Awards Division 3—Termination of employment Division 4—Miscellaneous Schedule 5—Renumbering the Workplace Relations Act 1996 Workplace Relations Act 1996 An Act to amend the law relating to workplace relations, and for related purposes [Assented to 14 December 2005] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Workplace Relations Amendment (Work Choices) Act 2005. 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 on which this Act receives the Royal Assent. 14 December 2005 2. Schedule 1 A single day to be fixed by Proclamation. 27 March 2006 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2006L00836) 2A. Schedule 1A The day on which this Act receives the Royal Assent. 14 December 2005 3. Schedule 2 A single day to be fixed by Proclamation. 27 March 2006 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2006L00836) 4. Schedule 3 The day on which this Act receives the Royal Assent. 14 December 2005 4A. Schedule 3A The day on which this Act receives the Royal Assent. 14 December 2005 5. Schedule 4, Part 1 The day on which this Act receives the Royal Assent. 14 December 2005 6. Schedule 4, Part 2 At the same time as the provision(s) covered by table item 2. 27 March 2006 7. Schedule 5 A single day to be fixed by Proclamation. 27 March 2006 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2006L00836) Note: This table relates only to the provisions of this Act as originally passed by 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) (1) Each Act, and each set of regulations, 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. (2) The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor‑General. Schedule 1—Main amendments Workplace Relations Act 1996 1 Section 3 Repeal the section, substitute: 3 Principal object The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by: (a) encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market; and (b) establishing and maintaining a simplified national system of workplace relations; and (c) providing an economically sustainable safety net of minimum wages and conditions for those whose employment is regulated by this Act; and (d) ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level; and (e) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances; and (f) ensuring compliance with minimum standards, industrial instruments and bargaining processes by providing effective means for the investigation and enforcement of: (i) employee entitlements; and (ii) the rights and obligations of employers and employees, and their organisations; and (g) ensuring that awards provide minimum safety net entitlements for award‑reliant employees which are consistent with Australian Fair Pay Commission decisions and which avoid creating disincentives to bargain at the workplace level; and (h) supporting harmonious and productive workplace relations by providing flexible mechanisms for the voluntary settlement of disputes; and (i) balancing the right to take industrial action for the purposes of collective bargaining at the workplace level with the need to protect the public interest and appropriately deal with illegitimate and unprotected industrial action; and (j) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and (k) protecting the competitive position of young people in the labour market, promoting youth employment, youth skills and community standards and assisting in reducing youth unemployment; and (l) assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers; and (m) respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and (n) assisting in giving effect to Australia's international obligations in relation to labour standards. 2 Section 4 Repeal the section, substitute: 4 Definitions (1) In this Act, unless the contrary intention appears: A.C.T. Consequential Provisions Act means the A.C.T. Self‑Government (Consequential Provisions) Act 1988. AFPC has the meaning given by section 7F. allowable award matters means the matters referred to in subsection 116(1). Note: The matters referred to in subsection 116(1) have a meaning that is affected by section 116B. alternative dispute resolution process has the meaning given by section 176A. Anti‑Discrimination Conventions means: (a) the Equal Remuneration Convention; and (b) the Convention on the Elimination of all Forms of Discrimination against Women, a copy of the English text of which is set out in the Schedule to the Sex Discrimination Act 1984; and (c) the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and (d) Articles 3 and 7 of the International Covenant on Economic, Social and Cultural Rights. APCS has the meaning given by section 90B. applies to employment generally: a law of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to: (a) all employers and employees in the State or Territory; or (b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory. For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies. arbitration powers means the powers of the Commission in relation to arbitration. Australian‑based employee means: (a) an employee whose primary place of work is in Australia, in Australia's exclusive economic zone or in, on, or over Australia's continental shelf; or (b) an employee who is employed by the Commonwealth or a Commonwealth authority, except an employee engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories; or (c) an employee who is prescribed by the regulations for the purposes of this definition. Note: Subsection 4AA(1) defines employee. Australian Capital Territory Government Service means the service established by the Public Sector Management Act 1994 of the Australian Capital Territory. Australian employer means: (a) an employer that is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or (b) an employer that is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or (c) an employer that is the Commonwealth; or (d) an employer that is a Commonwealth authority; or (e) an employer that is a body corporate incorporated in a Territory; or (f) an employer that carries on in Australia, in Australia's exclusive economic zone or in, on, or over Australia's continental shelf an activity (whether of a commercial, governmental or other nature) whose central management and control is in Australia; or (g) an employer that is prescribed by the regulations for the purposes of this definition. Note: Subsection 4AB(1) defines employer. Australian Fair Pay and Conditions Standard has the meaning given by subsection 89(3). Australian workplace agreement or AWA has the meaning given by section 96. Australia's continental shelf means the continental shelf (as defined in the Seas and Submerged Lands Act 1973) of Australia. Australia's exclusive economic zone means the exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia. AWA: see Australian workplace agreement. award means: (a) an award made by the Commission under section 118E; or (b) a pre‑reform award. award rationalisation process means a process of award rationalisation conducted as a result of an award rationalisation request. award rationalisation request has the meaning given by section 118. award‑related order means an order varying, revoking or suspending an award. award simplification process means a process of reviewing and simplifying awards under section 118M. bargaining agent means: (a) in relation to an AWA—a person who has been duly appointed as a bargaining agent in relation to the AWA in accordance with section 97A; or (b) in relation to an employee collective agreement—a person who has been requested to be a bargaining agent in relation to the agreement in accordance with section 97B. BCII Act means the Building and Construction Industry Improvement Act 2005. breach includes non‑observance. Chief Justice means the Chief Justice of the Court. civil remedy provision has the meaning given by section 188. collective agreement means: (a) an employee collective agreement; or (b) a union collective agreement; or (c) an employer greenfields agreement; or (d) a union greenfields agreement; or (e) a multiple‑business agreement. Commission means the Australian Industrial Relations Commission. Commissioner means a Commissioner of the Commission. committee of management, in relation to an organisation, association or branch of an organisation or association, means the group or body of persons (however described) that manages the affairs of the organisation, association or branch. Commonwealth authority means: (a) a body corporate established for a public purpose by or under a law of the Commonwealth; or (b) a body corporate: (i) incorporated under a law of the Commonwealth or a State or Territory; and (ii) in which the Commonwealth has a controlling interest. conciliation powers means the powers of the Commission in relation to conciliation. constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. constitutional trade or commerce means trade or commerce: (a) between Australia and a place outside Australia; or (b) among the States; or (c) between a State and a Territory; or (d) between 2 Territories; or (e) within a Territory. contingency fee agreement means an agreement between a legal practitioner and a person under which: (a) the legal practitioner agrees to provide legal services; and (b) the payment of all, or a substantial proportion, of the legal practitioner's costs is contingent on the outcome of the matter in which the practitioner provides the legal services for the person. Court means the Federal Court of Australia. Note: For the purposes of various provisions of this Act, Court means the Federal Court of Australia or the Federal Magistrates Court. This is indicated by definitions that apply for the purposes of those provisions. demarcation dispute includes: (a) a dispute arising between 2 or more organisations, or within an organisation, as to the rights, status or functions of members of the organisations or organisation in relation to the employment of those members; or (b) a dispute arising between employers and employees, or between members of different organisations, as to the demarcation of functions of employees or classes of employees; or (c) a dispute about the representation under this Act, or the Registration and Accountability of Organisations Schedule, of the industrial interests of employees by an organisation of employees. Deputy President means a Deputy President of the Commission. employee has a meaning affected by section 4AA. employee collective agreement has the meaning given by section 96A. employer has a meaning affected by section 4AB. employer greenfields agreement has the meaning given by section 96D. employing authority, in relation to a class of employees, means the person or body, or each of the persons or bodies, prescribed as the employing authority in relation to the class of employees. employment has a meaning affected by section 4AC. Employment Advocate means the Employment Advocate referred to in Part IVA. Equal Remuneration Convention means the Equal Remuneration Convention, 1951. Family Responsibilities Convention means the Workers with Family Responsibilities Convention, 1981, a copy of the English text of which is set out in Schedule 12. flight crew officer has the meaning given by clause 1 of Schedule 1. Full Bench means a Full Bench of the Commission. Full Court means a Full Court of the Court. greenfields agreement means a union greenfields agreement or an employer greenfields agreement. industrial action has the meaning given by section 106A. Industrial Registrar means the Industrial Registrar appointed under section 67. Industrial Registry means the Australian Industrial Registry. industry includes: (a) any business, trade, manufacture, undertaking or calling of employers; and (b) any calling, service, employment, handicraft, industrial occupation or vocation of employees; and (c) a branch of an industry and a group of industries. inspector means a workplace inspector. Judge means: (a) in the case of a reference to the Court or a Judge—a Judge (including the Chief Justice) sitting in Chambers; or (b) otherwise—a Judge of the Court (including the Chief Justice). judgment means a judgment, decree or order, whether final or interlocutory, or a sentence. legal practitioner means a legal practitioner (however described) of the High Court or of a Supreme Court of a State or Territory. magistrate's court means: (a) a court constituted by a police, stipendiary or special magistrate; or (b) a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate. maritime employee has the meaning given by clause 1 of Schedule 1. model dispute resolution process means the process set out in Division 2 of Part VIIA. multiple‑business agreement has the meaning given by section 96E. new APCS has the meaning given by subsection 90ZJ(1). nominal expiry date of a workplace agreement has the meaning given by section 101. Northern Territory authority means: (a) a body corporate established for a public purpose by or under a law of the Northern Territory; or (b) a body corporate: (i) incorporated under a law of the Northern Territory; and (ii) in which the Northern Territory has a controlling interest; other than a prescribed body. notional agreement preserving State awards has the meaning given by clause 1 of Schedule 15. occupier, in relation to premises, includes a person in charge of the premises. office, in relation to an organisation or a branch of an organisation, has the same meaning as in the Registration and Accountability of Organisations Schedule. officer, in relation to an organisation or a branch of an organisation, means a person who holds an office in the organisation or branch. organisation means an organisation registered under the Registration and Accountability of Organisations Schedule. Note: An organisation that was registered under the Workplace Relations Act 1996 immediately before the commencement of item 1 of Schedule 2 to the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (the Consequential Provisions Act) is taken to have been registered under the Registration and Accountability of Organisations Schedule (see item 15 of Schedule 1 to the Consequential Provisions Act). panel means a panel to which an industry has been assigned under section 37. peak council means a national or State council or federation that is effectively representative of a significant number of organisations representing employers or employees in a range of industries. penalty unit has the meaning given by section 4AA of the Crimes Act 1914. person includes an organisation. pilot has the meaning given by clause 1 of Schedule 1. premises includes any land, building, structure, mine, mine working, ship, aircraft, vessel, vehicle or place. pre‑reform AWA has the meaning given by clause 1 of Schedule 14. pre‑reform award means an instrument that has effect after the reform commencement under item 4 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005. prescribed includes prescribed by Rules of the Commission made under section 48. preserved APCS has the meaning given by subsection 90ZD(1). preserved award entitlement, in relation to an employee, has the meaning given by section 117B. preserved award term has the meaning given by section 117. preserved State agreement has the meaning given by clause 1 of Schedule 15. President means the President of the Commission. Presidential Member means the President, a Vice President, a Senior Deputy President or a Deputy President. previous Act means the Conciliation and Arbitration Act 1904, and includes any other Act so far as the other Act affects the operation of that Act. proceeding includes a proceeding relating to the following: (a) an award rationalisation process; (b) an award simplification process. protected action has the meaning given by section 108. protected action ballot means a ballot under Division 4 of Part VC. public sector employment means employment of, or service by, a person in any capacity (whether permanently or temporarily and whether full‑time or part‑time): (a) under the Public Service Act 1999 or the Parliamentary Service Act 1999; or (b) by or in the service of a Commonwealth authority; or (c) under a law of the Australian Capital Territory relating to employment by that Territory, including a law relating to the Australian Capital Territory Government Service; or (d) by or in the service of: (i) an enactment authority as defined by section 3 of the A.C.T. Consequential Provisions Act; or (ii) a body corporate incorporated under a law of the Australian Capital Territory and in which the Australian Capital Territory has a controlling interest; other than a prescribed authority or body; or (e) under a law of the Northern Territory relating to the Public Service of the Northern Territory; or (f) by or in the service of a Northern Territory authority; or (g) by or in the service of a prescribed person or under a prescribed law; but, other than in section 44N, does not include: (h) employment of, or service by, a person included in a prescribed class of persons; or (i) employment or service under a prescribed law. reform commencement means the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005. Registrar means the Industrial Registrar or a Deputy Industrial Registrar. Registration and Accountability of Organisations Schedule means Schedule 1B. registry means the Principal Registry or another registry established under section 64. regular part‑time employee means an employee who: (a) works less than full‑time ordinary hours; and (b) has reasonably predictable hours of work; and (c) receives, on a pro‑rata basis, equivalent pay and conditions to those specified in an award or awards for full‑time employees who do the same kind of work. secondary office, in relation to a person who holds an office of member of the Commission and an office of member of a prescribed State industrial authority, means the office to which the person was most recently appointed. Senior Deputy President means a Senior Deputy President of the Commission. ship has the meaning given by clause 1 of Schedule 1. single business has the meaning given by section 95A. special magistrate means a magistrate appointed as a special magistrate under a law of a State or Territory. State award means an award, order, decision or determination of a State industrial authority. State employment agreement means an agreement: (a) between an employer and one or more of the following: (i) an employee of the employer; (ii) a trade union; and (b) that regulates wages and conditions of employment of one or more of the employees; and (c) that is in force under a State or Territory industrial law; and (d) that prevails over an inconsistent State award. State industrial authority means: (a) a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or (b) a special board constituted under a State Act relating to factories; or (c) any other State board, court, tribunal, body or official prescribed for the purposes of this definition. State or Territory industrial law means: (a) any of the following State Acts: (i) the Industrial Relations Act 1996 of New South Wales; (ii) the Industrial Relations Act 1999 of Queensland; (iii) the Industrial Relations Act 1979 of Western Australia; (iv) the Fair Work Act 1994 of South Australia; (v) the Industrial Relations Act 1984 of Tasmania; or (b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes: (i) regulating workplace relations (including industrial matters, industrial disputes and industrial action, within the ordinary meaning of those expressions); (ii) providing for the determination of terms and conditions of employment; (iii) providing for the making and enforcement of agreements determining terms and conditions of employment; (iv) providing for rights and remedies connected with the termination of employment; (v) prohibiting conduct that relates to the fact that a person either is, or is not, a member of an industrial association (as defined in section 240); or (c) an instrument made under an Act described in paragraph (a) or (b), so far as the instrument is of a legislative character; or (d) a law that: (i) is a law of a State or Territory; and (ii) is prescribed by regulations for the purposes of this paragraph. State or Territory training authority means a body authorised by a law or award of a State or Territory for the purpose of overseeing arrangements for the training of employees. stevedoring operations has the meaning given by clause 1 of Schedule 1. Termination of Employment Convention means the Termination of Employment Convention, 1982, a copy of the English text of which is set out in Schedule 10. this Act includes the regulations but does not include Schedule 1B or regulations made under that Schedule. trade union means: (a) an organisation of employees; or (b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory; or (c) an association of employees a principal purpose of which is the protection and promotion of the employees' interests in matters concerning their employment. training arrangement means a combination of work and training that is subject to a training agreement or a training contract between the employee and employer that is registered: (a) with the relevant State or Territory training authority; or (b) under a law of a State or Territory relating to the training of employees. union collective agreement has the meaning given by section 96B. union greenfields agreement has the meaning given by section 96C. Vice President means a Vice President of the Commission. vocational placement means a placement that is: (a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and (b) undertaken as a requirement of an education or training course; and (c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory. waterside worker has the meaning given by clause 1 of Schedule 1. wharf has the meaning given by clause 1 of Schedule 1. working day means a day that is not a Saturday, a Sunday or a public holiday. workplace agreement means: (a) an AWA; or (b) a collective agreement. Note: Section 95D affects the meaning of workplace agreement. workplace determination means a determination under Division 8 of Part VC. workplace inspector means a person appointed as a workplace inspector under section 84. (2) To avoid doubt, it is declared that a reference in this Act (except in Parts VI and XA, and in regulations made for the purposes of section 101D) to an independent contractor is confined to a natural person. (3) In this Act, a reference to: (a) a person who is eligible to become a member of an organisation; or (b) a person who is eligible for membership of an organisation; includes a reference to a person who is eligible merely because of an agreement made under rules of the organisation made under subsection 151(1) of the Registration and Accountability of Organisations Schedule. (4) In this Act, a reference to a person making a statement that is to the person's knowledge false or misleading in a material particular includes a reference to a person making a statement where the person is reckless as to whether the statement is false or misleading in a material particular. (5) In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct. (6) A reference in this Act to a term of an award includes a reference to a provision of an award. Note: Section 69B of the Australian Federal Police Act 1979 provides that this Act does not apply to certain matters relating to AFP employees. 3 After section 4 Insert: 4AA Employee Basic definition (1) In this Act, unless the contrary intention appears: employee means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 4AB(1), by an employer, except on a vocational placement. Note: See also Part XV (employees and employers in Victoria). References to employee with ordinary meaning (2) However, a reference to employee has its ordinary meaning (subject to subsections (3) and (4)) if the reference is listed in clause 2 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1). Note: The regulations may amend clause 2 of Schedule 1. See clause 5 of Schedule 1. (3) In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning includes a reference to an individual who is usually an employee with that meaning. (4) In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning does not include a reference to an individual on a vocational placement. 4AB Employer Basic definition (1) In this Act, unless the contrary intention appears: employer means: (a) a constitutional corporation, so far as it employs, or usually employs, an individual; or (b) the Commonwealth, so far as it employs, or usually employs, an individual; or (c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or (d) a person or entity (which may be an unincorporated club) so far as the person or entity, in connection with constitutional trade or commerce, employs, or usually employs, an individual as: (i) a flight crew officer; or (ii) a maritime employee; or (iii) a waterside worker; or (e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or (f) a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person or entity employs, or usually employs, an individual in connection with the activity carried on in the Territory. Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of the Acts Interpretation Act 1901. Note 2: See also Part XV (employees and employers in Victoria). References to employer with ordinary meaning (2) However, a reference to employer has its ordinary meaning (subject to subsection (3)) if the reference is listed in clause 3 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1). Note: The regulations may amend clause 3 of Schedule 1. See clause 5 of Schedule 1. (3) In this Act, unless the contrary intention appears, a reference to employer with its ordinary meaning includes a reference to a person or entity that is usually an employer with that meaning. 4AC Employment (1) In this Act, unless the contrary intention appears: employment means the employment of an employee by an employer. Note: Subsections 4AA(1) and 4AB(1) define employee and employer. References to employment with ordinary meaning (2) However, a reference to employment has its ordinary meaning if the reference is listed in clause 4 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1). Note: The regulations may amend clause 4 of Schedule 1. See clause 5 of Schedule 1. 4 Section 4A Repeal the section, substitute: 4A Schedules 1B, 13, 14, 15 and 16 have effect Schedules 1B, 13, 14, 15 and 16 have effect. Note 1: Schedule 1B is about registration and accountability of organisations. Note 2: Schedule 13 is about transitional arrangements for parties bound by federal awards. Note 3: Schedule 14 is about transitional arrangements for existing pre‑reform certified agreements. Note 4: Schedule 15 is about transitional treatment of State employment agreements and State awards. Note 5: Schedule 16 is about transitional instruments and transmission of business. 5 Sections 5 and 5AA Repeal the sections. 6 Section 7 Repeal the section, substitute: 7 Modifications for Christmas Island and Cocos (Keeling) Islands (1) If the regulations prescribe modifications of this Act for its application in relation to the Territory of Christmas Island, this Act has effect as modified in relation to the Territory. (2) If the regulations prescribe modifications of this Act for its application in relation to the Territory of Cocos (Keeling) Islands, this Act has effect as modified in relation to the Territory. (3) In this section: modifications includes additions, omissions and substitutions. 7AAA Exclusion of persons insufficiently connected with Australia (1) A provision of this Act prescribed by the regulations does not apply to a person or entity in Australia prescribed by the regulations as a person to whom, or an entity to which, the provision does not apply. Note 1: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901. Note 2: The regulations may prescribe the person or entity by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003. (2) Before the Governor‑General makes regulations for the purposes of subsection (1) prescribing either or both of the following: (a) a provision of this Act that is not to apply to a person or entity; (b) a person to whom, or an entity to which, a provision of this Act is not to apply; the Minister must be satisfied that the provision should not apply to the person or entity in Australia because there is not a sufficient connection between the person or entity and Australia. (3) In this section: this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it. 7AA Extraterritorial application (1) Each Part or Division listed in the table, and the rest of this Act so far as it relates to the Part or Division, extends to persons, acts, omissions, matters and things outside Australia as described in the relevant section listed in the table. Extraterritorial application Item This Part or Division: Which is about this topic: Extends to persons, acts, omissions, matters and things outside Australia as described in this section: 1 Part VA The Australian Fair Pay and Conditions Standard Section 89D 2 Part VB Workplace agreements Section 95E 3 Part VI Awards Section 115C 4 Division 1 of Part VIA Meal breaks Section 170AD 4A Division 1A of Part VIA Public holidays Section 170AM 5 Division 2 of Part VIA Equal remuneration for work of equal value Section 170BGD 6 Division 3 of Part VIA Termination of employment Section 170CCB 7 Part IX Right of entry Section 200 8 Part XA Freedom of association Section 249 Note 1: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901. Note 2: Provisions of section 86 giving inspectors power to enter certain premises and places and do certain things there also extend to some premises and places outside Australia, subject to Australia's international obligations relating to foreign‑flagged ships and foreign‑registered aircraft. Note 3: Part VC (Industrial action) and related provisions of this Act may extend in relation to Australia's exclusive economic zone, and in relation to Australia's continental shelf, as prescribed by the regulations. See section 106C. Modified application in Australia's exclusive economic zone (2) If the regulations prescribe modifications of this Act for its operation in relation to all or part of Australia's exclusive economic zone, then, so far as this Act extends to the zone or part apart from this subsection, it has effect as modified in relation to the zone or part. (3) For the purposes of subsection (2), the regulations may prescribe different modifications in relation to different parts of Australia's exclusive economic zone. Modified application in relation to Australia's continental shelf (4) If the regulations prescribe modifications of this Act for its operation in relation to all or part of Australia's continental shelf, then, so far as this Act extends in relation to the continental shelf or part apart from this subsection, it has effect as modified in relation to the continental shelf or part. (5) For the purposes of subsection (4), the regulations may prescribe different modifications in relation to different parts of Australia's continental shelf. Definitions (6) In this section: modifications includes additions, omissions and substitutions. this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it. 7 Section 7B Before "Chapter", insert "(1)". 8 At the end of section 7B Add: (2) However, so far as Part 2.7 of the Criminal Code is relevant to this Act, it has effect subject to the following sections of this Act: (a) section 7AA; (b) the sections mentioned in section 7AA; (c) section 86; (d) section 106C. Note: Part 2.7 of the Criminal Code is about geographical jurisdiction in connection with offences. Section 7AA, the sections mentioned there and sections 86 and 106C deal with extraterritorial operation of this Act. 9 At the end of Part I Add: 7C Act excludes some State and Territory laws (1) This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer: (a) a State or Territory industrial law; (b) a law that applies to employment generally and deals with leave other than long service leave; (c) a law providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal value (as defined in section 170BB); (d) a law providing 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; (e) a law that entitles a representative of a trade union to enter premises. Note: Subsection 4(1) defines applies to employment generally. State and Territory laws that are not excluded (2) However, subsection (1) does not apply to a law of a State or Territory so far as: (a) the law deals with the prevention of discrimination, the promotion of EEO or both, and is neither a State or Territory industrial law nor contained in such a law; or (b) the law is prescribed by the regulations as a law to which subsection (1) does not apply; or (c) the law deals with any of the matters (the non‑excluded matters) described in subsection (3). (3) The non‑excluded matters are as follows: (a) superannuation; (b) workers compensation; (c) occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety); (ca) matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers); (d) child labour; (e) long service leave; (f) the observance of a public holiday, except the rate of payment of an employee for the public holiday; (g) the method of payment of wages or salaries; (h) the frequency of payment of wages or salaries; (i) deductions from wages or salaries; (k) industrial action (within the ordinary meaning of the expression) affecting essential services; (l) attendance for service on a jury; (m) regulation of any of the following: (i) associations of employees; (ii) associations of employers; (iii) members of associations of employees or of associations of employers. Note: Part IX (Right of entry) sets prerequisites for a trade union representative to enter certain premises under a right given by a prescribed law of a State or Territory. The prerequisites apply even though the law deals with such entry for a purpose connected with occupational health and safety and paragraph (2)(c) says this Act is not to apply to the exclusion of a law dealing with that. This Act excludes prescribed State and Territory laws (4) This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations for the purposes of this subsection. (4A) To avoid doubt, subsection (4) has effect even if the law is covered by subsection (2) (so that subsection (1) does not apply to the law). This subsection does not limit subsection (4). Definition (5) In this section: this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it. 7D Awards, agreements and Commission orders prevail over State and Territory law etc. (1) An award or workplace agreement prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency. (2) However, a term of an award or workplace agreement dealing with any of the following matters has effect subject to a law of a State or Territory dealing with the matter, except a law that is prescribed by the regulations as a law to which awards and workplace agreements are not subject: (a) occupational health and safety; (b) workers compensation; (c) training arrangements; (d) a matter prescribed by the regulations for the purposes of this paragraph. (3) An order of the Commission under Part VIA prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency. Note: Part VIA is about minimum entitlements of employees. 7E Act may exclude State and Territory laws in other cases (1) Sections 7C and 7D are not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws. Note: Other provisions of this Act deal with its relationship with laws of the States and Territories. For example, see clause 87 of Schedule 13, which is about not excluding or limiting Victorian law that can operate concurrently with certain provisions of that Schedule. (2) In this section: this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it. 11 Section 33 Repeal the section, substitute: 33 Exercise of Commission powers (1) The Commission may perform a function or exercise a power on its own initiative. (2) Despite subsection (1), the Commission must not perform a function or exercise a power under a provision of this Act on its own initiative if: (a) the function is to be performed, or the power exercised, on application by a specified person or class of persons; and (b) the function is not also expressed to be able to be performed, or the power exercised, on the Commission's own initiative. 12 Subsection 36(3) Repeal the subsection. 13 Section 39 Repeal the section. 14 At the end of Division 2 of Part II Add: 41A Co‑operation with the States by President The President may invite the heads of State industrial authorities to meet with the President to exchange information and discuss matters of mutual interest in relation to workplace relations. 41B Co‑operation with the States by Registrar The Industrial Registrar may invite the principal registrars of State industrial authorities to meet with the Industrial Registrar to exchange information and discuss matters of mutual interest in relation to workplace relations. 15 Subsection 42(3) Repeal the subsection, substitute: (3) A party (including an employing authority) may be represented by counsel, solicitor or agent if: (a) all parties have given express consent to that representation; and (b) the Commission grants leave for the party to be so represented. (3A) A party (including an employing authority) may be represented by counsel, solicitor or agent if: (a) the party applies to the Commission to be so represented; and (b) the Commission grants leave for the party to be so represented. (3B) In deciding whether or not to grant leave under subsection (3), the Commission must have regard to the following matters: (a) whether being represented by counsel, solicitor or agent would assist the party concerned to bring the best case possible; (b) the capacity of the particular counsel, solicitor or agent to represent the party concerned; (c) the capacity of the particular counsel, solicitor or agent to assist the Commission in performing the Commission's functions under this Act. (3C) In deciding whether or not to grant leave under subsection (3A), the Commission must have regard to the following matters: (a) the matters referred to in paragraphs (3B)(a), (b) and (c); (b) the complexity of the factual and legal issues relating to the proceeding; (c) whether there are special circumstances that make it desirable that the party concerned be represented by counsel, solicitor or agent; (d) if the party applies to be represented by an agent—whether the agent is a person or body, or an officer or employee of a person or body, that is able to represent the interests of the party under a State or Territory industrial relations law. (3D) An appeal to a Full Bench under section 45 may not be made in relation to a decision under subsection (3) or (3A) to grant leave or not to grant leave. 16 At the end of paragraphs 42(7)(a) and (b) Add "or". 17 At the end of subsection 42(7) Add: ; or (e) a bargaining agent. 18 Subsection 43(1) Omit "(1)". 19 Subsection 43(2) Repeal the subsection. 20 After Division 3 of Part II Insert: Division 3A—General matters relating to the powers and procedures of the Commission Subdivision A—General matters Commission to take into account 44A Commission to take into account the public interest (1) In the performance of its functions, the Commission must take into account the public interest, and for that purpose must have regard to: (a) the objects of this Act; and (b) the state of the national economy and the likely effects on the national economy of any order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation. (2) To the extent that the Commission is performing its functions in relation to matters arising under the Registration and Accountability of Organisations Schedule, the Commission must take into account the public interest, and for that purpose must have regard to: (a) Parliament's intention in enacting that Schedule; and (b) the state of the national economy and the likely effects on the national economy of any order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation. (3) This section does not apply to the performance of a function under Part VC or Part VI. 44B Commission to take into account discrimination issues In the performance of its functions, the Commission must take into account the following: (a) the need to apply the principle of equal pay for work of equal value; (b) the need to prevent and eliminate discrimination because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. 44C Commission to take account of Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act In the performance of its functions, the Commission must take account of the principles embodied in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004 relating to discrimination in relation to employment. 44D Commission to take account of Family Responsibilities Convention (1) In performing its functions, the Commission must take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to: (a) preventing discrimination against workers who have family responsibilities; and (b) helping workers to reconcile their employment and family responsibilities. (2) This section does not apply to the performance of a function under Part VC. 44E Safety, health and welfare of employees (1) In performing its functions, the Commission must take into account the provisions of any law of a State or Territory relating to the safety, health and welfare of employees in relation to their employment. (2) This section does not apply to the performance of a function under Division 2 of Part VIA. 44F Commission to act quickly The Commission must perform its functions as quickly as practicable. 44G Commission to avoid technicalities and facilitate fair conduct of proceedings The Commission must perform its functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of any proceedings under this Act or the Registration and Accountability of Organisations Schedule. Subdivision B—Particular powers and procedures of the Commission 44H Procedure of Commission (1) In a proceeding under this Act or the Registration and Accountability of Organisations Schedule: (a) the procedure of the Commission is, subject to this Act, the Registration and Accountability of Organisations Schedule and the Rules of the Commission, within the discretion of the Commission; and (b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just; and (c) the Commission must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. (2) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceeding and require that the cases be presented within the respective periods. (3) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument. 44I Particular powers of Commission (1) The Commission may do any of the following in relation to a proceeding under this Act or the Registration and Accountability of Organisations Schedule: (a) inform itself in any manner that it thinks appropriate; (b) take evidence on oath or affirmation; (c) give directions orally or in writing in the course of, or for the purposes of, procedural matters relating to the proceeding; (d) vary or revoke an order, direction or decision of the Commission; (e) dismiss a matter or part of a matter on the ground: (i) that the matter, or the part of the matter, is trivial; or (ii) that further proceedings in relation to the matter are not necessary or desirable in the public interest; (f) determine the proceeding in the absence of a person who has been summoned or served with a notice to appear; (g) sit at any place; (h) conduct the proceeding, or any part of the proceeding, in private; (i) adjourn the proceeding to any time and place; (j) refer any matter to an expert and accept the expert's report as evidence; (k) direct a member of the Commission to consider a particular matter that is before the Full Bench and prepare a report for the Full Bench on that matter; (l) allow the amendment, on any terms that it thinks appropriate, of any application or other document relating to the proceeding; (m) correct, amend or waive any error, defect or irregularity whether in substance or form; (n) summon before it any persons whose presence the Commission considers would assist in relation to the proceeding; (o) compel the production before it of documents and other things for the purpose of reference to such entries or matters as relate to the proceeding; (p) make interim decisions; (q) make a final decision in respect of the matter to which the proceeding relates. (2) The Commission may, in writing, authorise a person (including a member of the Commission) to take evidence on its behalf, with any limitations as the Commission directs, in relation to the proceeding, and the person has all the powers of the Commission to secure: (a) the attendance of witnesses; and (b) the production of documents and things; and (c) the taking of evidence on oath or affirmation. (3) The following provisions do not apply to the performance of a function under Part VC: (a) paragraph (1)(e); (b) paragraph (1)(j); (c) paragraph (1)(k). (4) The following provisions do not apply to the performance of a function under Division 2, 3 or 4 of Part VIA: (a) paragraph (1)(a); (b) paragraph (1)(e); (c) paragraph (1)(k); (d) paragraph (1)(p); (e) paragraph (1)(q); (f) subsection (2). (5) Paragraph (1)(j) does not apply to the performance of a function under Division 3 of Part VIA. (6) If a provision of this Act specifies a time or a period in respect of any matter or thing, the Commission must not extend the time or the period specified unless this Act expressly permits the Commission to do so. (7) If a provision of the Registration and Accountability of Organisations Schedule specifies a time or a period in respect of any matter or thing, the Commission must not extend the time or the period specified unless the Registration and Accountability of Organisations Schedule expressly permits the Commission to do so. (8) For the purposes of paragraph (1)(d), order does not include an award or an award‑related order. 44J Reference of proceedings to Full Bench (1) If a proceeding is before a member of the Commission, a party to the proceeding or the Minister may apply to the member to have the proceeding dealt with by a Full Bench because the subject matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench. (2) If an application is made under subsection (1) to a member of the Commission other than the President: (a) the member must refer the application to the President to be dealt with; and (b) the President must confer with the member about whether the application should be granted. (3) If the President is of the opinion that the subject matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench, the President must grant the application. (4) If the President grants an application under subsection (1), the Full Bench must (subject to subsection (5)) hear and determine the proceeding to which the application relates. (5) If the President grants an application under subsection (1), the Full Bench may do either or both of the following: (a) have regard to any evidence given, and any arguments adduced, in the proceeding before the Full Bench began to deal with it; (b) refer a part of the proceeding to a member of the Commission to hear and determine. (6) The President may, before a Full Bench has been established for the purpose of dealing with a proceeding under this section, authorise a member of the Commission to take evidence for the purposes of the proceeding, and the Full Bench must have regard to the evidence. (7) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter. (8) The member must, after making such investigation (if any) as is necessary, provide a report to the President or the Full Bench, as required. (9) In this section: proceeding includes a part of a proceeding. 44K President may deal with certain proceedings (1) The President may, whether or not another member of the Commission has begun to deal with a particular proceeding, decide to deal with the proceeding. (2) If the President decides to deal with the proceeding, the President must: (a) hear and determine the proceeding; or (b) refer the proceeding to a Full Bench. (3) If the President refers an application to a Full Bench, the Full Bench must (subject to subsection (4)) hear and determine the proceeding. (4) If the President refers the proceeding to a Full Bench, the Full Bench may refer a part of the proceeding to a member of the Commission to hear and determine. (5) The President or the Full Bench may, in dealing with the proceeding, have regard to any evidence given, and any arguments adduced, in the proceeding before the President or the Full Bench, as the case may be, began to deal with it. (6) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter. (7) The member must, after making such investigation (if any) as is necessary, provide a report to the President or a Full Bench, as the case may be. (8) In this section: proceeding includes a part of a proceeding. 44L Review on application by Minister (1) The Minister may apply to the President for a review by a Full Bench of an award or order, or a decision relating to the making of an award or order, made by a member of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) if it appears to the Minister that the award, order or decision is contrary to the public interest. (2) If an application is made to the President under subsection (1), the President must establish a Full Bench to hear and determine the application. (3) The Full Bench must, if in its opinion the matter is of such importance that, in the public interest, the award, order or decision should be reviewed, make such review of the award, order or decision as appears to it to be desirable having regard to the matters referred to in the application. (4) Subject to subsection (5) of this section, subsections 45(4) to (8) apply in relation to a review under this section in the same manner as they apply in relation to an appeal under section 45. (5) Subsections 45A(4) to (8) apply in relation to a review under this section in relation to a matter arising under the Registration and Accountability of Organisations Schedule in the same manner as they apply in relation to an appeal under section 45A. (6) In a review under this section: (a) the Commission must take such steps as it thinks appropriate to ensure that each person and organisation bound by the award or otherwise with an interest in the review is made aware of the review; and (b) the Minister may intervene in the proceeding. (7) Each provision of this Act relating to the performance of the Commission's functions in relation to awards extends to a review under this section. (8) Nothing in this section affects any right of appeal or any power of a Full Bench under section 45, and an appeal under that section and a review under this section may, if the Full Bench thinks appropriate, be dealt with together. (9) Nothing in this section affects any right of appeal or any power of a Full Bench under section 45A, and an appeal under that section and a review under this section may, if the Full Bench thinks appropriate, be dealt with together. 44M Compulsory conferences (1) For the purpose of the performance of a function, or the exercise of a power, of the Commission under this Act or the Registration and Accountability of Organisations Schedule, a member of the Commission may, on the initiative of the member or on application made by a party to, or intervener in, the proceeding, direct a person to attend, at a specified time and place, a conference to be presided over by a member of the Commission or another person nominated by the President. Note: Contravening a direction may be an offence under section 30