Commonwealth: Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 (Cth)

Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 Act No. 163 of 2006 as amended This compilation was prepared on 15 July 2008 [This Act was amended by Act No. 73 of 2008] Amendments from Act No. 73 of 2008 [Schedule 2 (items 27 and 28) amended item 7 of Schedule 4 Schedule 2 (items 27 and 28) commenced immediately after 12 December 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—Sham arrangements Part 1—General provisions Workplace Relations Act 1996 Part 2—Provision relating to Victoria Workplace Relations Act 1996 Schedule 2—Consequential amendments and transitional provisions Part 1—Consequential amendments and transitional provisions relating to TCF outworkers Workplace Relations Act 1996 Part 2—Consequential amendments relating to unfair contracts Building and Construction Industry Improvement Act 2005 Workplace Relations Act 1996 Part 3—Consequential amendments relating to building contractors Building and Construction Industry Improvement Act 2005 Schedule 3—Amendments relating to protecting redundancy entitlements Workplace Relations Act 1996 Schedule 4—Amendments relating to stand downs Workplace Relations Act 1996 Schedule 5—Amendments relating to the Australian Fair Pay and Conditions Standard Workplace Relations Act 1996 Schedule 6—Other amendments Workplace Relations Act 1996 Workplace Relations Amendment (Work Choices) Act 2005 An Act to amend the Workplace Relations Act 1996, and for related purposes [Assented to 11 December 2006] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006. 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. 11 December 2006 2. Schedule 1 Immediately after the commencement of the provision(s) covered by table item 3. 1 March 2007 3. Schedule 2 At the same time as Part 2 of the Independent Contractors Act 2006 commences. 1 March 2007 4. Schedules 3, 4, 5 and 6 The day after this Act receives the Royal Assent. 12 December 2006 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) 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—Sham arrangements Part 1—General provisions Workplace Relations Act 1996 1 After Part 21 Insert: Part 22—Sham arrangements 900 Misrepresenting an employment relationship as an independent contracting arrangement (1) A person contravenes this subsection if: (a) the person is a party to a contract with an individual; and (b) the person makes a representation to the individual that the contract is a contract for services under which the individual performs work, or is to perform work, for the person as an independent contractor; and (c) the contract, as in force at the time of the representation, is a contract of employment under which the person is the employer of the individual, rather than a contract for services under which the individual performs work as an independent contractor. Note: In this subsection, employer and employment have the meanings given by subsections 6(1) and 7(1) respectively. (2) A person does not contravene subsection (1) if the person proves that, at the time the person made the representation concerned, the person did not know that, and was not reckless as to whether, the contract was a contract of employment rather than a contract for services. Note: In this subsection, employment has its ordinary meaning—see paragraph 4(2)(pa) of Schedule 2. (3) Subsection (1) is a civil remedy provision. Note: Division 3 of Part 14 contains other provisions relevant to civil remedies. 901 Misrepresenting a proposed employment relationship as a proposed independent contract arrangement (1) A person contravenes this subsection if: (a) the person offers to enter into a contract with an individual; and (b) the person makes a representation to the individual that the contract, if entered into, would be a contract for services under which the individual would perform work for the person as an independent contractor; and (c) the contract, if entered into, would be a contract of employment under which the person would be the employer of the individual, rather than a contract for services under which the individual would perform work as an independent contractor. Note: In this subsection, employer and employment have the meanings given by subsections 6(1) and 7(1) respectively. (2) A person does not contravene subsection (1) if the person proves that, at the time the person made the representation concerned, the person did not know that, and was not reckless as to whether, if the contract were entered into, the contract would be a contract of employment rather than a contract for services. Note: In this subsection, employment has its ordinary meaning—see paragraph 4(2)(pb) of Schedule 2. (3) Subsection (1) is a civil remedy provision. Note: Division 3 of Part 14 contains other provisions relevant to civil remedies. 902 Dismissal etc. for purpose of engaging certain persons as independent contractors (1) An employer contravenes this subsection if: (a) the employer dismisses, or threatens to dismiss, an individual who: (i) is an employee of the employer; and (ii) performs particular work for the employer; and (b) the employer's sole or dominant purpose in dismissing or threatening to dismiss the individual is to engage the individual as an independent contractor to perform the same work, or substantially the same work, under a contract for services. (2) Subsection (1) is a civil remedy provision. Note: Division 3 of Part 14 contains other provisions relevant to civil remedies. (3) In proceedings alleging a contravention of subsection (1) it is presumed, other than in relation to the granting of an interim injunction, that the employer's sole or dominant purpose was the purpose referred to in paragraph (1)(b), unless the employer proves otherwise. Note: Subsection 904(2A) permits the Court to grant an injunction for a breach of this section, and section 838 deals with interim injunctions. 903 Prohibited conduct for purpose of engaging certain persons as independent contractors (1) A person who employs, or has at any time employed, an individual to perform particular work contravenes this subsection if: (a) the person makes a statement that the person knows is false; and (b) the person's intention in making the statement is to persuade or influence the individual to enter into a contract for services under which the individual will perform, as an independent contractor, the same work, or substantially the same work, for the person. (2) Subsection (1) is a civil remedy provision. Note: Division 3 of Part 14 contains other provisions relevant to civil remedies. 904 Penalty for contravention (1) The Court may, on application by an eligible person, make an order imposing a pecuniary penalty on a person who has contravened subsection 900(1), 901(1), 902(1) or 903(1). (2) The maximum penalty that may be imposed under subsection (1) is: (a) 60 penalty units for an individual; or (b) 300 penalty units for a body corporate. (2A) If a person has contravened subsection 902(1), the Court may, on application by an eligible person, grant an injunction and make any other orders that the Court considers necessary to stop the contravention or remedy its effects. (2B) Other orders the Court may make under subsection (2A) include (but are not limited to): (a) if the contravention was constituted by dismissing an employee—an order to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and (b) in any case—to pay to the person dismissed, or threatened with dismissal, compensation for loss suffered as a result of the dismissal or threatened dismissal. (2C) The Court may make orders under subsection (2A) in addition to, or instead of, imposing a pecuniary penalty. (3) Each of the following is an eligible person for the purposes of this section: (a) a workplace inspector; (b) an individual affected by the contravention; (c) an organisation of employees of which the individual affected by the contravention is (or has applied to become) a member, if it is acting with the written consent of the individual. 905 Meaning of Court In this Part: Court means the Federal Court of Australia or the Federal Magistrates Court. 2 After paragraph 4(2)(p) of Schedule 2 Insert: (pa) subsection 900(2); (pb) subsection 901(2); Part 2—Provision relating to Victoria Workplace Relations Act 1996 3 After Division 11 of Part 21 Insert: Division 11A—Sham arrangements 886A Additional effect of Act—sham arrangements Without affecting its operation apart from this section, section 902 also has effect in relation to the dismissal, or threatened dismissal, by an employer of an employee in Victoria, and for this purpose: (a) each reference in that section to an employer (within the meaning of that section) is to be read as a reference to an employer (within the meaning of this Division) in Victoria; and (b) each reference in that section to an employee (within the meaning of that section) is to be read as a reference to an employee (within the meaning of this Division) in Victoria. Schedule 2—Consequential amendments and transitional provisions Part 1—Consequential amendments and transitional provisions relating to TCF outworkers Workplace Relations Act 1996 1 Subparagraph 169(1)(a)(v) Omit "(other than section 905)". 2 Subsection 819(1) Omit "or subparagraph 906(2)(b)(iv), paragraph 906(2)(c) or subsection 906(4)". 3 Part 22 Repeal the Part. 5 Saving—investigations and proceedings under the Workplace Relations Act 1996 in progress at the reform commencement (1) This item applies to an investigation or proceeding in relation to a breach, or suspected breach, of subsection 905(1) of the Workplace Relations Act 1996 as in force before the reform commencement that: (a) was commenced before the reform commencement under Part 22 of the Workplace Relations Act 1996; and (b) was not completed or finally determined, as the case requires, before the reform commencement. (2) Despite the repeal of Part 22 of the Workplace Relations Act 1996 by item 3 of this Schedule, that Part continues to apply to the investigation or proceeding mentioned in subitem (1) after the reform commencement as if the Part had not been repealed. (3) In this item: reform commencement means the commencement of Part 2 of the Independent Contractors Act 2006. Part 2—Consequential amendments relating to unfair contracts Building and Construction Industry Improvement Act 2005 6 Section 47 Repeal the section. 6A Subsection 75(2) Repeal the subsection. Workplace Relations Act 1996 7 Sections 832 to 834 Repeal the sections. Note: Section 40 of the Independent Contractors Act 2006 is a transitional provision relating to this item. Part 3—Consequential amendments relating to building contractors Building and Construction Industry Improvement Act 2005 8 Subsection 4(1) (paragraph (a) of the definition of designated building law) After "this Act", insert ", the Independent Contractors Act 2006". 9 Subparagraph 10(a)(i) After "this Act", insert ", the Independent Contractors Act 2006". 10 Subparagraph 10(b)(i) After "this Act,", insert "the Independent Contractors Act 2006,". 11 Paragraph 10(d) After "this Act", insert ", the Independent Contractors Act 2006". 12 Paragraph 10(e) After "this Act" (wherever occurring), insert ", the Independent Contractors Act 2006". 13 Paragraph 10(f) After "this Act,", insert "the Independent Contractors Act 2006,". 14 Paragraph 67(c) Before "Workplace", insert "Independent Contractors Act 2006 or the". 15 Paragraph 71(1)(b) Before "Workplace", insert "Independent Contractors Act 2006 or the". 16 Subsection 73(3) Omit "subsection 84(5)", substitute "subsection 167(7)". Note: This item updates a cross‑reference. 17 After section 73 Insert: 73A ABC Commissioner or ABC Inspector may institute proceedings under the Independent Contractors Act 2006 (1) If a provision of the Independent Contractors Act 2006, or of an instrument under that Act, authorises a workplace inspector (within the meaning of that Act) to make an application to, or otherwise institute proceedings in, a court, the provision is also taken to authorise the ABC Commissioner or an ABC Inspector to make such an application, or institute such proceedings, in any case where the application or proceedings relate to a matter that involves: (a) a building industry participant; or (b) building work. (2) If the ABC Commissioner or an ABC Inspector makes such an application, or institutes such proceedings, the Independent Contractors Act 2006 and any such instrument have effect, in relation to the application or proceedings, as if the ABC Commissioner or the ABC Inspector were a workplace inspector (within the meaning of that Act). (3) Directions under subsection 167(7) of the Workplace Relations Act do not apply to the ABC Commissioner or an ABC Inspector in relation to such an application or such proceedings. 18 Paragraph 77(1)(b) Before "Workplace", insert "Independent Contractors Act 2006 or the". 19 Subparagraph 78(2)(d)(i) After "this Act", insert ", the Independent Contractors Act 2006". Schedule 3—Amendments relating to protecting redundancy entitlements Workplace Relations Act 1996 1 At the end of subsection 347(7) Add: Note: However, a redundancy provision that was included in a workplace agreement that has ceased operating might be preserved for a period of up to 12 months (see section 399A). 2 Paragraph 393(4)(b) After "by the agreement", insert ", or is a bargaining agent doing so at the request of the employer bound by the agreement". 3 At the end of subsection 393(5) Add: ; and (e) if the person giving the notice is the employer bound by the agreement, or is a bargaining agent doing so at the request of the employer bound by the agreement—state whether the parties to the workplace agreement will, under section 399A, continue to be bound by one or more redundancy provisions included in the workplace agreement; and (f) if the parties to the workplace agreement will continue to be so bound—include an annexed copy of the provision or the provisions. 4 Paragraph 394(5)(a) After "lodges", insert ", or a bargaining agent lodges at the request of the employer,". 5 Paragraph 394(5)(c) Repeal the paragraph, substitute: (c) a copy of the undertakings was not annexed to the declaration. 6 At the end of subsection 395(1) Add: ; and (c) if the employer in relation to the agreement, or a bargaining agent at the request of the employer in relation to the agreement, lodges the declaration to terminate the agreement under section 393—the declaration states whether the parties to the agreement will, under section 399A, continue to be bound by one or more redundancy provisions included in the agreement. 7 Subsection 395(2) Repeal the subsection, substitute: (2) If the employer in relation to the agreement, or a bargaining agent at the request of the employer in relation to the agreement, lodges the declaration to terminate the agreement under section 393, undertakings are lodged in relation to the termination if a copy of the undertakings is annexed to the declaration. 8 After subsection 396(1) Insert: (1A) If the employer in relation to a workplace agreement, or a bargaining agent at the request of the employer in relation to a workplace agreement, lodged a declaration under subsection 395(1) to terminate the agreement under section 393, the receipt must state whether: (a) the declaration so lodged states that the parties to the workplace agreement will continue to be bound by one or more redundancy provisions included in the workplace agreement that was terminated; and (b) a copy of the provision or provisions was annexed to the declaration. 9 At the end of Division 9 of Part 8 Add: 399A Preservation of redundancy provisions in certain circumstances (1) This section applies if a workplace agreement is terminated unilaterally, in accordance with section 393, by the employer in relation to the agreement or by a bargaining agent at the request of the employer in relation to the agreement. (2) Any party who was bound by the workplace agreement immediately before it ceased operating continues to be bound, immediately after that time, by any redundancy provision that was included in the workplace agreement as if the workplace agreement had continued operating. (2A) Parts 6 and 14 of this Act apply to a redundancy provision referred to in subsection (2) as if the provision was a workplace agreement in operation. (3) A party continues to be bound by a redundancy provision referred to in subsection (2), in relation to an employee who is bound by the redundancy provision, until the earliest of the following: (a) the end of the period of 12 months from the time that the workplace agreement ceased operating; (b) the time when the employee ceases to be employed by the employer; (c) the time when another workplace agreement comes into operation in relation to the employee and the employer. (4) In this section: redundancy provision means any of the following kinds of provisions: (a) a provision relating to redundancy pay in relation to a termination of employment; (b) a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment; (c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment; where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent. 10 After Division 6 of Part 11 Insert: Division 6A—Transmission of preserved redundancy provisions from workplace agreements 598A Transmission of preserved redundancy provisions from workplace agreements (1) If: (a) immediately before the time of transmission: (i) the old employer; and (ii) an employee; were bound, under section 399A or because of a previous application of this section, by a redundancy provision that was previously included in a workplace agreement that was terminated; and (b) the employee is a transferring employee; the new employer is bound by the redundancy provision in relation to the transferring employee by force of this section. Note: The new employer must notify the transferring employee and lodge a copy of the notice with the Employment Advocate (see sections 603A and 603B). (2) Subject to subsection (3), the redundancy provision prevails over any other redundancy provision included in any other instrument that would otherwise have effect, to the extent of any inconsistency. Period for which new employer remains bound (3) The new employer remains bound by the redundancy provision in relation to the transferring employee, by force of this section, until the earliest of the following: (a) the end of the period of 12 months from the time that the workplace agreement referred to in paragraph (1)(a) ceased operating; (b) the time when the transferring employee ceases to be employed by the new employer; (c) the time when another workplace agreement comes into operation in relation to the new employer and the transferring employee. Old employer's rights and obligations that arose before time of transmission not affected (4) This section does not affect the rights and obligations of the old employer that arose before the time of transmission. Definitions (5) In this section: instrument means any of the following: (a) a workplace agreement; (b) a pre‑reform certified agreement (within the meaning of Schedule 7); (c) a preserved State agreement; (d) a notional agreement preserving State awards; (e) an award. redundancy provision means any of the following kinds of provisions: (a) a provision relating to redundancy pay in relation to a termination of employment; (b) a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment; (c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment; where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent. 11 After section 603 Insert: 603A Informing transferring employees about transmission of preserved redundancy provisions (1) This section applies if an employer is bound, by force of section 598A, by one or more redundancy provisions (within the meaning of that section) in relation to a transferring employee. (2) Within 28 days after the transferring employee starts being employed by the employer, the employer must take reasonable steps to give the transferring employee a written notice that complies with subsection (3). Note: This is a civil remedy provision, see section 605. (3) The notice must: (a) identify the redundancy provision or redundancy provisions; and (b) state that the employer is bound by the provision or provisions; and (c) specify the date that is 12 months after the time that the workplace agreement that included the provision or provisions ceased operating; and (d) state that the employer will remain bound by the provision or provisions until that date, or an earlier date in accordance with subsection 598A(3). (4) Subsection (2) does not apply if a workplace agreement comes into operation in relation to the employer and the transferring employee within 14 days of the time of transmission. 603B Lodging copy of notice about preserved redundancy provisions with Employment Advocate (1) If an employer gives a notice under section 603A to a transferring employee, the employer must lodge a copy of the notice with the Employment Advocate within the period specified in subsection (2). The copy must be lodged in accordance with subsection (3). Note 1: This is a civil remedy provision, see section 605. Note 2: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents. (2) The notice must be lodged within 14 days after the day specified in paragraph (a) or (b): (a) if the employer gives a notice to an employee in respect of a redundancy provision that was included in an AWA—the day on which that notice is given; or (b) if the employer gives one or more notices to one or more employees in respect of a redundancy provision that was included in a collective agreement—the earliest day on which a notice was given. Lodgment with Employment Advocate (3) A notice is lodged with the Employment Advocate in accordance with this subsection only if it is actually received by the Employment Advocate. Note: This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) does not apply to lodgment of a notice. 12 Subsection 604(1) After "603", insert "or 603B". 13 Subsection 604(2) After "603", insert "or 603B (as the case requires)". 14 Subsection 604(3) After "603", insert "or 603B". 15 At the end of subsection 605(1) Add: ; (d) subsection 603A(2); (e) subsection 603B(1). 16 Subsection 605(5) After "an instrument", insert ", or in relation to a preserved redundancy provision that was previously included in an instrument,". 17 Subsection 605(5) (table item 2) After "bound by the agreement", insert "or the redundancy provision". 17A Section 717 (note 1 to the definition of applicable provision) Before "This", insert "Preserved redundancy provisions are treated as if they were workplace agreements (see for example section 399A).". 18 At the end of subclause 3(4) of Schedule 7 Add: Note: However, a redundancy provision that was included in a pre‑reform certified agreement that has ceased operating might be preserved for a period of up to 12 months (see clause 6A). 19 After clause 6 of Schedule 7 Insert: 6A Preservation of redundancy provisions in certain circumstances (1) This clause applies if a pre‑reform certified agreement is terminated, on application by the employer in relation to the agreement, by the Commission in accordance with subsection 170MH(3) of the pre‑reform Act. Note: Subsection 170MH(3) of the pre‑reform Act continues to apply because of paragraph 2(1)(k) of this Schedule. (2) Any party who was bound by the pre‑reform certified agreement immediately before it ceased operating continues to be bound, immediately after that time, by any redundancy provision that was included in the pre‑reform certified agreement as if the pre‑reform certified agreement had continued operating. (2A) Parts 6 and 14 of this Act apply to a redundancy provision referred to in subclause (2) as if the provision was a pre‑reform certified agreement in operation. (3) Subject to subclause (4), a redundancy provision referred to in subclause (2) prevails over any other redundancy provision included in any other instrument that would otherwise have effect. (4) A party continues to be bound by a redundancy provision referred to in subclause (2), in relation to an employee who is bound by the redundancy provision, until the earliest of the following: (a) the end of the period of 12 months from the time that the pre‑reform certified agreement ceased operating; (b) the time when the employee ceases to be employed by the employer; (c) the time when a workplace agreement comes into operation in relation to the employee and the employer. (5) In this clause: instrument means either of the following: (a) a preserved State agreement; (b) a notional agreement preserving State awards; (c) an award; (d) a transitional award (within the meaning of Schedule 6). redundancy provision means any of the following kinds of provisions: (a) a provision relating to redundancy pay in relation to a termination of employment; (b) a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment; (c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment; where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent. 6B Notification of preservation of redundancy provisions (1) This clause applies if the parties to a pre‑reform certified agreement will, under clause 6A, continue to be bound by one or more redundancy provisions included in the agreement. (2) The Commission must issue a copy of the order terminating the agreement to: (a) the employer who will be bound by the redundancy provision or the redundancy provisions; and (b) any organisation of employees that will be bound by the redundancy provision or the redundancy provisions. (3) The order must: (a) identify the redundancy provision or the redundancy provisions; and (b) state that the parties to the agreement will be bound by the provision or provisions; and (c) specify the date that is 12 months after the time that the order terminating the agreement takes effect; and (d) state that the parties will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 6A(4). 6C Employer must notify employees of preserved redundancy provisions (1) An employer that has, under clause 6B, received a copy of an order terminating a pre‑reform certified agreement must take reasonable steps to ensure that all employees who are bound by the agreement immediately before the agreement ceases operating are, within 21 days of the employer receiving a copy of the order, given a copy of the order. (2) Subclause (1) is a civil remedy provision for the purpose of this clause. Note: Division 3 of Part 14 contains other provisions relevant to civil remedies. (3) The Court may order a person who has contravened the civil remedy provision to pay a pecuniary penalty. Note: Division 3 of Part 14 contains other provisions relevant to civil remedies. (4) The penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in other cases. (5) An application for an order under subclause (3) in relation to a pre‑reform certified agreement may be made by the following persons: (a) an employee who is bound by the agreement immediately before the agreement ceases operating; (b) an organisation of employees that is bound by the agreement immediately before the agreement ceases operating; (c) an organisation of employees that is entitled, under its eligibility rules, to represent the industrial interests of an employee referred to in paragraph (a) and has been requested by the employee to apply for the order on the employee's behalf; (d) a workplace inspector. 20 At the end of subclause 18(3) of Schedule 7 Add: Note: However, a redundancy provision that was included in a pre‑reform AWA that has ceased operating might be preserved for a period of up to 12 months (see clause 20A). 21 After clause 20 of Schedule 7 Insert: 20A Preservation of redundancy provisions in certain circumstances (1) This clause applies if a pre‑reform AWA is terminated, on application by the employer in relation to the AWA, by the Commission in accordance with subsection 170VM(3) of the pre‑reform Act. Note: Subsection 170VM(3) of the pre‑reform Act continues to apply because of paragraph 17(1)(c) of this Schedule. (2) The employer and the employee in relation to the pre‑reform AWA continue to be bound, immediately after the pre‑reform AWA ceases operating, by any redundancy provision that was included in the pre‑reform AWA as if the pre‑reform AWA had continued operating. (2A) Parts 6 and 14 of this Act apply to a redundancy provision referred to in subclause (2) as if the provision was a pre‑reform AWA in operation. (3) Subject to subclause (4), a redundancy provision referred to in subclause (2) prevails over any other redundancy provision included in any other instrument that would otherwise have effect. (4) The employer continues to be bound by a redundancy provision referred to in subclause (2), in relation to the employee, until the earliest of the following: (a) the end of the period of 12 months from the time that the pre‑reform AWA ceases operating; (b) the time when the employee ceases to be employed by the employer; (c) the time when a workplace agreement comes into operation in relation to the employee and the employer. (5) In this clause: instrument means any of the following: (a) a collective agreement; (b) a pre‑reform certified agreement; (c) a notional agreement preserving State awards; (d) an award. redundancy provision means any of the following kinds of provisions: (a) a provision relating to redundancy pay in relation to a termination of employment; (b) a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment; (c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment; where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent. 20B Notification of preservation of redundancy provisions (1) This clause applies if the employer and the employee in relation to a pre‑reform AWA will, under clause 20A, continue to be bound by one or more redundancy provisions included in the pre‑reform AWA. (2) The determination issued by the Commission under subsection 170VM(4) of the pre‑reform Act must: (a) identify the redundancy provision or the redundancy provisions; and (b) state that the employer and the employee in relation to the pre‑reform AWA will be bound by the provision or provisions; and (c) specify the date that is 12 months after the time that the determination terminating the pre‑reform AWA takes effect; and (d) state that the employer and the employee will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 20A(4). 22 After clause 21 of Schedule 8 Insert: 21A Preservation of redundancy provisions in preserved collective State agreements in certain circumstances (1) This clause applies if a preserved collective State agreement is terminated, on application by the employer in relation to the agreement, by the Commission in accordance with subsection 170MH(3) of the pre‑reform Act. Note: Subsection 170MH(3) of the pre‑reform Act applies because of subclause 21(2) of this Schedule and paragraph 2(1)(k) of Schedule 7. (2) Any party who was bound by the preserved collective State agreement immediately before it ceased operating continues to be bound, immediately after that time, by any redundancy provision that was included in the agreement as if the agreement had continued operating. (2A) Parts 6 and 14 of this Act apply to a redundancy provision referred to in subclause (2) as if the provision was a preserved collective State agreement in operation. (3) Subject to subclause (4), a redundancy provision referred to in subclause (2) prevails over any other redundancy provision included in any other instrument that would otherwise have effect. (4) A party continues to be bound by a redundancy provision referred to in subclause (2), in relation to an employee who is bound by the redundancy provision, until the earliest of the following: (a) the end of the period of 12 months from the time that the preserved collective State agreement ceased operating; (b) the time when the employee ceases to be employed by the employer; (c) the time when a workplace agreement comes into operation in relation to the employee and the employer. (5) In this clause: instrument means any of the following: (a) a pre‑reform certified agreement (within the meaning of Schedule 7); (b) a notional agreement preserving State awards; (c) an award. redundancy provision means any of the following kinds of provisions: (a) a provision relating to redundancy pay in relation to a termination of employment; (b) a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment; (c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment; where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent. 21B Notification of preservation of redundancy provisions in preserved collective State agreements (1) This clause applies if the parties to a preserved collective State agreement will, under clause 21A, continue to be bound by one or more redundancy provisions included in the agreement. (2) The Commission must issue a copy of the order terminating the agreement to: (a) the employer who will be bound by the redundancy provision or the redundancy provisions; and (b) any organisation that will be bound by the redundancy provision or the redundancy provisions. (3) The order must: (a) identify the redundancy provision or the redundancy provisions; and (b) state that the parties to the agreement will be bound by the provision or provisions; and (c) specify the date that is 12 months after the time that the order terminating the agreement takes effect; and (d) state that the parties will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 21A(4). 21C Employer must notify employees of preserved redundancy provisions in preserved collective State agreements (1) An employer that has, under clause 21B, received a copy of an order terminating a preserved collective State agreement must take reasonable steps to ensure that all employees who are bound by the agreement immediately before the agreement ceases operating are, within 21 days of the employer receiving a copy of the order, given a copy of the order. (2) Subclause (1) is a civil remedy provision for the purpose of this clause. Note: Division 3 of Part 14 contains other provisions relevant to civil remedies. (3) The Court may order a person who has contravened the civil remedy provision to pay a pecuniary penalty. Note: Division 3 of Part 14 contains other provisions relevant to civil remedies. (4) The penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in other cases. (5) An application for an order under subclause (3) in relation to a preserved collective State agreement may be made by the following persons: (a) an employee who is bound by the agreement immediately before the agreement ceases operating; (b) an organisation of employees that is bound by the agreement immediately before the agreement ceases operating; (c) an organisation of employees that is entitled, under its eligibility rules, to represent the industrial interests of an employee referred to in paragraph (a) and has been requested by the employee to apply for the order on the employee's behalf; (d) a workplace inspector. 21D Preservation of redundancy provisions in preserved individual State agreements in certain circumstances (1) This clause applies if a preserved individual State agreement is terminated, on application by the employer in relation to the agreement, by the Commission in accordance with subsection 170VM(3) of the pre‑reform Act. Note: Subsection 170VM(3) of the pre‑reform Act applies because of subclause 21(3) of this Schedule and paragraph 17(1)(c) of Schedule 7. (2) The employer and the employee in relation to the preserved individual State agreement continue to be bound, immediately after the agreement ceases operating, by any redundancy provision that was included in the agreement as if the agreement had continued operating. (2A) Parts 6 and 14 of this Act apply to a redundancy provision referred to in subclause (2) as if the provision was a preserved individual State agreement in operation. (3) Subject to subclause (4), a redundancy provision referred to in subclause (2) prevails over any other redundancy provision included in any other instrument that would otherwise have effect. (4) The employer continues to be bound by a redundancy provision referred to in subclause (2), in relation to the employee, until the earliest of the following: (a) the end of the period of 12 months from the time that the preserved individual State agreement ceases operating; (b) the time when the employee ceases to be employed by the employer; (c) the time when a workplace agreement comes into operation in relation to the employee and the employer. (5) In this clause: instrument means any of the following: (a) a pre‑reform certified agreement (within the meaning of Schedule 7); (b) a notional agreement preserving State awards; (c) an award. redundancy provision means any of the following kinds of provisions: (a) a provision relating to redundancy pay in relation to a termination of employment; (b) a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment; (c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment; where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent. 21E Notification of preservation of redundancy provisions (1) This clause applies if the employer and the employee in relation to a preserved individual State agreement will, under clause 21D, continue to be bound by one or more redundancy provisions included in the agreement. (2) The determination issued by the Commission under subsection 170VM(4) of the pre‑reform Act must: (a) identify the redundancy provision or the redundancy provisions; and (b) state that the employer and the employee in relation to the preserved individual State agreement will be bound by the provision or provisions; and (c) specify the date that is 12 months after the time that the determination terminating the agreement takes effect; and (d) state that the employer and the employee will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 21D(4). 23 After Part 5 of Schedule 9 Insert: Part 5A—Transmission of preserved redundancy provisions 27A Transmission of preserved redundancy provisions (1) If: (a) immediately before the time of transmission: (i) the old employer; and (ii) an employee; were bound, under clause 6A or 20A of Schedule 7, clause 21A or 21D of Schedule 8, or because of a previous application of this clause, by a redundancy provision that was previously included in an agreement that was terminated; and (b) the employee is a transferring employee; the new employer is bound by the redundancy provision in relation to the transferring employee by force of this clause. Note: The new employer must notify the transferring employee and lodge a copy of the notice with the Employment Advocate (see clauses 29A and 29B). (2) Subject to subclause (3), the redundancy provision prevails over any other redundancy provision included in any other instrument that would otherwise have effect, to the extent of any inconsistency. Period for which new employer remains bound (3) The new employer remains bound by the redundancy provision in relation to the transferring employee, by force of this clause, until the earliest of the following: (a) the end of the period of 12 months from the time that the agreement referred to in paragraph (1)(a) ceased operating; (b) the time when the transferring employee ceases to be employed by the new employer; (c) the time when a workplace agreement comes into operation in relation to the new employer and the transferring employee. Old employer's rights and obligations that arose before time of transmission not affected (4) This clause does not affect the rights and obligations of the old employer that arose before the time of transmission. Definitions (5) In this clause: instrument means any of the following: (a) a workplace agreement; (b) a pre‑reform certified agreement (within the meaning of Schedule 7); (c) a preserved State agreement; (d) a notional agreement preserving State awards; (e) an award; (f) a transitional award (within the meaning of Schedule 6). redundancy provision means any of the following kinds of provisions: (a) a provision relating to redundancy pay in relation to a termination of employment; (b) a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment; (c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment; where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent. 24 After clause 29 of Schedule 9 Insert: 29A Informing transferring employees about transmission of preserved redundancy provisions (1) This clause applies if an employer is bound, by force of clause 27A, by one or more redundancy provisions (within the meaning of that clause) in relation to a transferring employee. (2) Within 28 days after the transferring employee starts being employed by the employer, the employer must take reasonable steps to give the transferring employee a written notice that complies with subclause (3). Note: This is a civil remedy provision, see clause 31. (3) The notice must: (a) identify the redundancy provision or the redundancy provisions; and (b) state that the employer is bound by the provision or provisions; and (c) specify the date that is 12 months after the time that the agreement that included the provision or provisions ceased operating; and (d) state that the employer will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 27A(3). (4) Subclause (2) does not apply if a workplace agreement comes into operation in relation to the employer and the transferring employee within 14 days of the time of transmission. 29B Lodging copy of notice about preserved redundancy provisions with Employment Advocate (1) If an employer gives a notice under clause 29A to a transferring employee, the employer must lodge a copy of the notice with the Employment Advocate within the period specified in subclause (2). The copy must be lodged in accordance with subclause (3). Note 1: This is a civil remedy provision, see clause 31. Note 2: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents. (2) The notice must be lodged within 14 days after the day specified in paragraph (a) or (b): (a) if the employer gives a notice to an employee in respect of a redundancy provision that was included in a pre‑reform AWA or a preserved individual State agreement—the day on which that notice is given; or (b) if the employer gives one or more notices to one or more employees in respect of a redundancy provision that was included in a pre‑reform certified agreement or a preserved collective State agreement—the earliest day on which a notice was given. Lodgment with Employment Advocate (3) A notice is lodged with the Employment Advocate in accordance with this subclause only if it is actually received by the Employment Advocate. Note: This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) does not apply to lodgment of a notice. 25 Subclause 30(1) of Schedule 9 After "29", insert "or 29B". 26 Subclause 30(2) of Schedule 9 After "29", insert "or 29B (as the case requires)". 27 Subclause 30(3) of Schedule 9 After "29", insert "or 29B". 28 At the end of subclause 31(1) of Schedule 9 Add: ; (c) subclause 29A(2); (d) subclause 29B(1). 29 Subclause 31(4) of Schedule 9 After "an instrument", insert ", or in relation to a preserved redundancy provision that was previously included in an instrument,". 30 Subclause 31(4) of Schedule 9 (table items 2 and 4) After "bound by the agreement", insert "or the redundancy provision". 31 Application The amendments made by this Schedule apply to agreements that are terminated after this item commences. Schedule 4—Amendments relating to stand downs Workplace Relations Act 1996 1 Subsection 4(1) Insert: authorised stand down means a stand down of an employee that is authorised as mentioned in subsection 691B(1). 2 Subsection 13(1) (after table item 6) Insert: 6A Division 7 of Part 12 Stand downs Section 691C 3 At the end of paragraph 183(1)(b) Add: (iv) any hours in the week when the employee is stood down (but only if the stand down is an authorised stand down); 4 At the end of Part 12 Add: Division 7—Stand downs 691A Employer may stand down employees in certain circumstances (1) This section applies if: (a) an employee employed by an employer cannot usefully be employed during a period because of a particular circumstance; and (b) that circumstance is: (i) a strike; or (ii) a breakdown of machinery; or (iii) a stoppage of work for any cause for which the employer cannot reasonably be held responsible; and (c) either: (i) there is no contract of employment, and no industrial instrument, that binds the employer in respect of the employment of the employee and that contains provision for the standing down of the employee during that period because of that circumstance; or (ii) a contract of employment, or industrial instrument, that binds the employer in respect of the employment of the employee contains provision for the standing down of the employee during that period because of that circumstance, but the employer's right to stand down the employee is dependent on the employer having to apply to the Commission, a State industrial authority or another person or body for an order or determination (however described) authorising the employer to stand down the employee. (2) If this section applies, the employer: (a) may stand down the employee during the period referred to in paragraph (1)(a) because of the circumstance referred to in that paragraph; and (b) if the employer stands down the employee under paragraph (a) of this subsection—may deduct payment for the period during which the employee is stood down. (3) A period during which an employee is stood down under subsection (2) does not break the employee's continuity of service. (4) A period during which an employee is stood down under subsection (2) counts as service for all purposes. (5) A provision of a contract of employment or an industrial instrument that provides as mentioned in subparagraph (1)(c)(ii) has no effect. However, this section does not otherwise affect the operation of any provision of a contract of employment or industrial instrument that provides for the standing down of employees. (6) In this section: industrial instrument means any of the following: (a) a workplace agreement; (b) an award; (c) a pre‑reform AWA; (d) a pre‑reform certified agreement (within the meaning of Schedule 7); (e) a preserved State agreement; (f) a notional agreement preserving State awards; (g) a workplace determination; (h) an employment agreement (within the meaning of Division 12 of Part 21); (i) an exceptional matters order (within the meaning of Schedule 7); (j) a section 170MX award (within the meaning of Schedule 7); (k) an old IR agreement (within the meaning of Schedule 7). 691B Prohibition of unauthorised stand downs (1) An employer must not stand down an employee from his or her employment if the stand down is not authorised by: (a) subsection 691A(2); or (b) a provision of a contract of employment, or an industrial instrument (within the meaning of section 691A), that is binding on the employer in respect of the employment of the employee (other than a provision that is rendered of no effect by subsection 691A(5)). Note 1: Compliance with this subsection is dealt with as follows: (a) the model dispute resolution process applies (see subsection (2)); (b) the Court may grant an injunction (see subsection (3)); (c) the compliance provisions of Part 14 apply. Note 2: If the standing down of an employee is not authorised as mentioned in this subsection, the employee may recover any lost wages by taking appropriate enforcement action (whether under this Act or otherwise). (2) The model dispute resolution process (other than section 697) applies to a dispute under subsection (1). Note: The model dispute resolution process is set out in Part 13. (3) The Court, or the Federal Magistrates Court, on application by an employee who has been stood down or by an inspector, may grant an injunction requiring the employer of the employee to cease contravening (or not to contravene) subsection (1). 691C Extraterritorial extension (1) This Division, and the rest of this Act so far as it relates to this Division, extend: (a) to an employee outside Australia who meets any of the conditions in this section; and (b) to the employee's employer (whether the employer is in or outside Australia); and (c) to acts, omissions, matters and things relating to the employee or the employee's employment (whether those acts, omissions, matters or things are in or outside Australia). Note: 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. Employee in Australia's exclusive economic zone (2) One condition is that the employee is in Australia's exclusive economic zone and either: (a) is an employee of an Australian employer and is not prescribed by the regulations as an employee to whom this subsection does not apply; or (b) is an employee prescribed by the regulations as an employee to whom this subsection applies. Note: The regulations may prescribe the employee by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003. On Australia's continental shelf outside exclusive economic zone (3) Another condition is that the employee: (a) is outside the outer limits of Australia's exclusive economic zone, but is in, on or over a part of Australia's continental shelf prescribed by the regulations for the purposes of this subsection, in connection with the exploration of the continental shelf or the exploitation of its natural resources; and (b) meets the requirements that are prescribed by the regulations for that part. Note: The regulations may prescribe different requirements relating to different parts of Australia's continental shelf. The regulations may need to do so to give effect to Australia's international obligations. Outside Australia's exclusive economic zone and continental shelf (4) Another condition is that the employee: (a) is neither in Australia's exclusive economic zone nor in, on or over a part of Australia's continental shelf described in paragraph (3)(a); and (b) is an Australian‑based employee of an Australian employer; and (c) is not prescribed by the regulations as an employee to whom this subsection does not apply. (5) In this section: this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it. 5 Section 717 (at the end of the definition of applicable provision) Add: ; and (e) subsection 691B(1) (prohibition of unauthorised stand downs). 6 Subsection 718(1) (at the end of the table) Add: 8 subsection 691B(1) (prohibition of unauthorised stand downs) (a) an employee to whom subsection 691B(1) applies; (b) an inspector 7 Subsection 718(2) Omit "and 7", substitute ", 7 and 8". 8 After Division 7 of Part 21 Insert: Division 7A—Stand downs 880A Additional effect of Act—stand downs Without affecting its operation apart from this section, Division 7 of Part 12 also has effect in relation to the employment of any employee in Victoria, and for this purpose: (a) each reference in that Division to an employer (within the meaning of that Division) is to be read as a reference to an employer (within the meaning of this Division) in Victoria; and (b) each reference in that Division to an employee (within the meaning of that Division) is to be read as a reference to an employee (within the meaning of this Division) in Victoria; and (c) each reference in that Division to employment (within the meaning of that Division) is to be read as a reference to the employment of an employee (within the meaning of this Division) in Victoria. 9 Section 891 Repeal the section. 10 After paragraph 89(1)(a) of Schedule 6 Insert: (aa) section 691A (as applied by section 880A); and 11 After paragraph 95(a) of Schedule 6 Insert: (aa) section 691A (as applied by section 880A); and 12 After paragraph 102(a) of Schedule 6 Insert: (aa) section 691A (as applied by section 880A); and Schedule 5—Amendments relating to the Australian Fair Pay and Conditions Standard Workplace Relations Act 1996 1 Subsection 189(1) Repeal the subsection, substitute: APCS applies and contains frequency of payment provisions (1) If: (a) the employment of an employee is covered by an APCS; and (b) the APCS contains frequency of payment provisions that apply in relation to the employee's employment; then: (c) if a workplace agreement that covers the employment of the employee contains frequency of payment provisions: (i) that apply in relation to the employee's employment; and (ii) that provide for payments in respect of periods of one month or less; the employer must comply with those provisions in relation to the employee; or (d) if paragraph (c) does not apply, and the employee's contract of employment contains frequency of payment provisions: (i) that apply in relation to the employee's employment; and (ii) that provide for payments in respect of periods of one month or less; the employer must comply with those provisions in relation to the employee; or (e) if neither paragraph (c) nor (d) applies—the employer must comply with the frequency of payment provisions of the APCS in relation to the employee. 2 After subsection 226(1) Insert: (1A) An employer only contravenes subsection (1) if the employer requests or requires an employee to work more than the hours mentioned in subsection (1), and the employee works those hours. 3 Section 228 Before "In", insert "(1)". 4 Section 228 (at the end of the definition of shift worker) Add: Note: Subsection (2) enables regulations to be made providing that an employee belonging to a specified class is not a shift worker. 5 At the end of section 228 Add: (2) The regulations may provide that an employee: (a) who is covered by paragraph (a) or (b) of the definition of shift worker in subsection (1); and (b) who belongs to a class specified in the regulations; is not a shift worker for the purposes of this Division. (3) Without limiting the way in which a class of employees may be described for the purposes of regulations made under subsection (2), the class may be described by reference to one or more of the following: (a) a particular industry; (b) a particular kind of work; (c) a particular type of employment; (d) a particular type of shift work (whether described by reference to the organisation or allocation of shifts or otherwise). 6 Paragraph 229(1)(a) Repeal the paragraph, substitute: (a) start with: (i) the specified number of hours; or (ii) if the specified number of hours is more than 38 hours—38 hours; 7 After subsection 229(4) Insert: Certain types of leave not to count as service (4A) For the purposes of subparagraphs (1)(b)(i) and (4)(a)(ii), a period of authorised unpaid leave or unauthorised leave does not count as service in relation to an employee except: (a) as expressly provided by: (i) a term or condition of the employee's employment; or (ii) a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory; or (b) as prescribed by the regulations. Note: For whether leave guaranteed under this Part counts as service, see subsections 238(2) (annual leave), 260(2) (paid personal leave), 261(2) (unpaid carer's leave) and 316(2) (parental leave). 8 Subsection 229(5) (note 3) Repeal the note. 9 Paragraph 233(1)(c) Omit all the words after "no less than", substitute "the rate that, at the time the election is made, is the employee's basic periodic rate of pay (expressed as an hourly rate); and". 10 Subsection 235(1) Omit all the words after "a period,", substitute "the employee must be paid a rate for each hour (pro‑rated for part hours) of annual leave taken that is no less than the rate that, immediately before the period begins, is the employee's basic periodic rate of pay (expressed as an hourly rate).". 11 Subsection 235(2) Omit all the words after "a particular time,", substitute "the employee must be paid a rate for each hour (pro‑rated for part hours) of the employee's untaken accrued annual leave that is no less than the rate that, immediately before that time, is the employee's basic periodic rate of pay (expressed as an hourly rate).". 12 At the end of section 236 Add: Entitlement to leave for all nominal hours in a day also extends to other hours on that day (7) If: (a) an employee to whom subparagraph 229(1)(a)(ii) applies is entitled to take annual leave on a particular day; and (b) the entitlement covers all the hours (or part hours) on that day that would count towards the nominal hours worked by the employee in the week that includes that day; the employer is taken to have authorised the employee to be absent from work for any other hours (or part hours) on that day that the employee would otherwise have worked. Example: Bianca is employed by BBB Bakers Pty Ltd. She works 40 hours per week (consisting of 38 hours plus 2 reasonable additional hours). Under subsection 232(2), Bianca is entitled to accrue paid annual leave of 1/13 of her nominal hours worked for each completed 4 week period of continuous service with BBB Bakers. Because of subparagraph 229(1)(a)(ii), Bianca's nominal hours worked in a week are capped at 38 hours. If Bianca works her normal hours for a 12 month period, she will accrue 152 hours of paid annual leave. The above subsection ensures that Bianca will be able to be absent from work for 4 full 40 hour weeks. Bianca's absence for the additional 8 hours will not be paid leave, and will not count as service, but it will not break her continuity of service (see subsection (8)). (8) An absence that is taken by subsection (7) to have been authorised: (a) is not annual leave; and (b) does not break the employee's continuity of service; and (c) does not otherwise count as service. (9) For the purposes of subsection (7), if a shift (or other period of work) occurs partly on 1 day and partly on the next day, the shift (or other period of work) is taken to be a day and the remaining parts of the days are taken not to be part of the day. (10) For the purposes of subsection (7), the regulations may make provision for either or both of the following: (a) determining what hours (or part hours) on a particular day would count towards the nominal hours worked by an employee in a week; (b) determining what other hours (or part hours) on a particular day would be hours (or part hours) that an employee would otherwise have worked. 13 Section 240 Insert: basic periodic rate of pay has the meaning given by section 178. Note: See also section 243. 14 Paragraph 241(1)(a) Repeal the paragraph, substitute: (a) start with: (i) the specified number of hours; or (ii) if the specified number of hours is more than 38 hours—38 hours; 15 After subsection 241(4) Insert: Certain types of leave not to count as service (4A) For the purposes of subparagraphs (1)(b)(i) and (4)(a)(ii), a period of authorised unpaid leave or unauthorised leave does not count as service in relation to an employee except: (a) as expressly provided by: (i) a term or condition of the employee's employment; or (ii) a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory; or (b) as prescribed by the regulations. Note: For whether leave guaranteed under this Part counts as service, see subsections 238(2) (annual leave), 260(2) (paid personal leave), 261(2) (unpaid carer's leave) and 316(2) (parental leave). 16 Subsection 241(5) (note 3) Repeal the note. 17 Section 243 Repeal the section, substitute: 243 Regulations may prescribe different definitions for piece rate employees The regulations may prescribe: (a) a different definition of basic periodic rate of pay for the purposes of