Commonwealth Consolidated Acts

FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 18

Part   1 -- Initial appointment of FWA Members

1   Appointments to Fair Work Australia

(1)   An appointment that is:

  (a)   to an office of the Commission mentioned in a table item below; and

  (b)   in force immediately before the commencement time for the table item;

is taken, after that time, to be an appointment, under section   626 of the FW Act, to the office of FWA mentioned in the table item.

Note:   The person continues to be appointed to the Commission (see subitem   (3)).

(2)   Subitem   (1) does not apply to a member of the Commission who:

  (a)   was appointed as a member of a prescribed State industrial authority (within the meaning of the WR Act) before being appointed as a member of the Commission; and

  (b)   still holds that appointment as a member of the prescribed State industrial authority.

Dual appointments

(3)   Despite any provision of the WR Act or the FW Act, a person who is taken to have been appointed as an FWA Member under this item continues also to hold office under the WR Act.

Note:   The terms and conditions of a person who is taken to have been appointed as an FWA Member are the terms and conditions that attach to his or her appointment under the WR Act (see item   2 of this Schedule).

2   Terms and conditions

(1)   A person who is taken to have been appointed as an FWA Member under item   1 of this Schedule:

  (a)   holds office under the FW Act on the same terms and conditions as attach, or attached, to his or her appointment under the WR Act (including under subsections   63(2) and (3) of that Act); and

  (b)   is entitled to the same designation as he or she is, or was, entitled to in relation to his or her appointment under the WR Act (including the designation the person has, or had, because of subsection   80(2) of the Industrial Relations (Consequential Provisions) Act 1988 ).

(2)   To avoid doubt, subitem   (1):

  (a)   has effect despite subsections   633(1) and 644(1) of the FW Act; and

  (b)   continues the application of the Judges' Pensions Act 1968 in relation to a person taken to have been appointed under item   1 of this Schedule and to whom that Act applied as a member of the Commission.

(3)   For the purposes of determining the remuneration of a person who is taken to have been appointed as an FWA Member under item   1 of this Schedule:

  (a)   sections   635 and 637 of the FW Act do not apply; and

  (b)   sections   79 and 81 of the WR Act apply, and continue to apply on and after the WR Act repeal day, in relation to the person's appointment as both an FWA Member and a member of the Commission.

3   Protection of members of the Commission and FWA

Section   609 of the FW Act has effect, in relation to any time at which the President is the only FWA Member, as if the words "After consulting the other FWA Members," were omitted from subsection   (1) of that section.

4   Seniority of FWA members who become FWC members

For the purposes of section   619 of the FW Act, the seniority of persons who:

  (a)   are taken to have been appointed as Deputy Presidents of FWA under item   1 of this Schedule; and

  (b)   continue to hold office as Deputy Presidents of the FWC under Part   9 of Schedule   3 to the FW Act;

is to be determined in accordance with the precedence assigned to them as members of the Commission under section   65 of the WR Act.

5   Procedural rules

Despite the requirement in subsection   609(1) of the FW Act, the President may make rules under that subsection before the WR Act repeal day without consulting other FWA Members.

6   Directions by President

(1)   The President of the Commission may give directions to a person who is taken to be appointed as an FWA Member under item   1 of this Schedule as to the manner in which the person is to perform his or her functions as a member of the Commission.

(2)   The direction must not relate to a decision by the Commission.

(3)   A person to whom a direction is given must comply with the direction.

(4)   If a direction is in writing, the direction is not a legislative instrument.

6A   Dealing with a complaint about an FWC Member

(1)   This item applies in relation to an FWC member who is a person taken to have been appointed as an FWA Member under item   1 of this Schedule.

(2)   Section   581A of the FW Act (which deals with the President handling complaints about FWC Members) applies after the commencement of this item in relation to a complaint made about the performance of the FWC Member as if the following amendments were made:

  (a)   paragraph   (4)(b) of that section--omit "termination of the appointment of the FWC Member", substitute "removal of the FWC Member from office";

  (b)   the note to subsection   (4) of that section--omit "The appointment of an FWC Member may be terminated under section   641", substitute "An FWC Member may be removed from office under section   82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item   2 of Schedule   18 to the Transitional Act,";

  (c)   subparagraph   (a)(i) of the definition of relevant belief in section   12 of the FW Act--omit "terminating the appointment of the FWC Member in accordance with section   641", substitute "removing the FWC Member from office in accordance with section   82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item   2 of Schedule   18 to the Transitional Act".

Note:   Paragraph   (2)(c) alters the meaning of relevant belief in subparagraphs   581A(2)(a)(ii) and (iii) of the FW Act.

(3)   Section   641A of the FW Act (which deals with the Minister handling complaints about FWC Members) applies after the commencement of this item in relation to a complaint made about the performance of the FWC Member as if the following amendments were made:

  (a)   paragraph   (a) of that section--omit "termination of the appointment of the FWC Member; and", substitute "removal of the FWC Member from office.";

  (b)   paragraph   (b) of that section--omit the paragraph;

  (c)   note 1 to that section--omit "The appointment of an FWC Member may be terminated under section   641", substitute "An FWC Member may be removed from office under section   82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item   2 of Schedule   18 to the Transitional Act,";

  (d)   note 2 to that section--omit the note.

(4)   For the purposes of subitems   (2) and (3), it does not matter whether:

  (a)   the complaint is made before or after the commencement of this item; or

  (b)   the complaint relates to the performance of the FWC Member before or after the commencement of this item.

(5)   In this item:

FWC Member has the same meaning as in the FW Act.

Part   2 -- WR Act bodies and WR Act offices

7   Continuation and cessation

(1)   Despite the WR Act repeal, a body (the WR Act body ) or office (the WR Act office ) set out in an item in the following table continues in existence until the cessation time set out in the item.

Note:   FWA will begin to take over the work of WR Act bodies and WR Act offices before their cessation times: see item   12 of Schedule   2.

(2)   To avoid doubt, an appointment to a WR Act body or a WR Act office in effect immediately before the WR Act repeal continues in force on and after the WR Act repeal day:

  (a)   according to its terms; but

  (b)   subject to this Act.

Note:   As an example of the effect of this Act, at the cessation time for a WR Act body or a WR Act office, related appointments will cease.

(3)   Despite subitem   (1), the Minister may, by writing, determine that a WR body or a WR Act office ceases to exist at a time that is different from the cessation time set out for the body or office in the table.

(4)   A determination under subitem   (3):

  (a)   has effect accordingly; and

  (b)   is not a legislative instrument.

8   Transfer of assets and liabilities

(1)   The person referred to in column 1 of an item of the following table must arrange for the transfer, on the WR Act repeal day, of assets and liabilities of the body referred to in column 2 of the item of the following table to the body referred to in column 3 of the item of the following table.

(2)   Despite subitem   (1), the Minister may, before the WR Act repeal day, determine one or more of the following by writing:

  (a)   that some or all assets and liabilities of the body (as specified in the determination) are to be transferred to a different body (as specified in the determination) from the one referred to in column 3 of the table;

  (b)   that some or all assets and liabilities of the body (as specified in the determination) are to be transferred on a different day (as specified in the determination) from the one referred to in subitem   (1);

  (c)   that some or all assets and liabilities of the body (as specified in the determination) are to be transferred in accordance with regulations made, or to be made, for the purposes of this paragraph.

(3)   A determination under subitem   (2):

  (a)   has effect accordingly; and

  (b)   is not a legislative instrument.

(4)   In this item, a reference to an asset of a body includes a reference to a record or any other information that is in the custody of, or under the control of, the body.

9   Information acquired under WR Act

Section   655 of the FW Act has effect as if information acquired, before the WR Act repeal day, by a WR Act body or a person holding a WR Act office in the course of performing functions or exercising powers as such a body or in such an office were information acquired by the FWC in the course of performing functions or exercising powers as the FWC.

Note:   Item   16 makes provision for information acquired by a member of the Office of the Workplace Ombudsman to be treated, for the purposes of section   718 of the FW Act, as if it were acquired by the Fair Work Ombudsman.

10   Staffing arrangements

(1)   The General Manager of FWA may enter into an arrangement with the person referred to in column 1 of an item of the following table for FWA to provide assistance to the body referred to in column 2 of the item for the purpose of performing functions on and after the WR Act repeal day.

(2)   The Fair Work Ombudsman may enter into an arrangement with the Workplace Authority Director to provide assistance to the Workplace Authority Director for the purpose of performing functions on and after the WR Act repeal day.

11   Performance of functions etc. after cessation time

(1)   After the cessation time for a WR Act body or a WR Act office, the powers, functions and duties of the body or office are to be exercised and performed by the FWC.

Note:   For WR Act body , WR Act office and cessation time , see subitem   7(1).

(2)   For the purposes of subitem   (1), a law of the Commonwealth that relates to the body or office is, for the purposes of its application after the cessation time, to be read:

  (a)   as if a reference to the body or office were a reference to the FWC, as necessary; and

  (b)   with any other necessary modifications.

(3)   Despite subitem   (1), the Minister may, by writing, determine that a power, function or duty of a WR Act body or a WR Act office is to be exercised or performed, after the cessation time for the body or office, by a body or person other than the FWC.

(4)   A determination under subitem   (3):

  (a)   has effect accordingly; and

  (b)   is not a legislative instrument.

(5)   If the FWC, or another body or person, deals after the cessation time for a WR Act body or a WR Act office with a matter that was being dealt with by the WR Act body or a person holding the WR Act office, the FWC or the other body or person, as the case requires, must take into account everything done by, or in relation to, the WR Act body or a person holding the WR Act office, in relation to the matter.

11A   Workplace inspectors to become Fair Work Inspectors

(1)   An appointment of a person as a workplace inspector that is in force under section   167 of the WR Act immediately before the WR Act repeal day has effect, for the remainder of the term of the appointment, as if it were an appointment of the person as a Fair Work Inspector under section   700 of the FW Act.

(2)   An identity card issued under section   168 of the WR Act to a person covered by subitem   (1) has effect, for the remainder of the person's term of appointment, as if it were an identity card issued under section   702 of the FW Act.

(3)   Subitem   (2) does not apply if the person is issued with an identity card under section   702 of the FW Act.

Part   3 -- Transitional role for Fair Work Ombudsman and Inspectors

12   No continued application for Parts   5A and 6 of WR Act

(1)   Parts   5A and 6 of the WR Act (which deal with the Workplace Ombudsman and workplace inspectors) have no application after the WR Act repeal.

(2)   To avoid doubt, subitem   (1) applies in relation to:

  (a)   conduct that occurred before the WR Act repeal day; and

  (b)   a provision of the WR Act that continues to apply because of this Act.

(3)   Subitem   (2) does not limit subitem   (1).

13   Conduct before WR Act repeal

Applications to be made or continued by Fair Work Inspectors

(1)   For the purposes of the application of the WR Act in relation to conduct that occurred before the WR Act repeal day (including the application of the WR Act because of subitem   11(2) of Schedule   2), an application that could have been made or continued by a workplace inspector (disregarding item   12 of this Schedule) may be made or continued, on and after the WR Act repeal day, by a Fair Work Inspector.

Application of Part   5 - 2 of FW Act

(2)   Part   5 - 2 of the FW Act applies in relation to conduct that occurred before the WR Act repeal day as if:

  (a)   a reference in that Part to a fair work instrument were a reference to a WR Act instrument or a transitional award that is not a WR Act instrument; and

  (b)   a reference (other than a reference in a note to a section or subsection, or a reference in section   716) in that Part to a civil remedy provision were a reference to a civil remedy provision or a civil penalty provision within the meaning of the WR Act, as in force from time to time; and

  (c)   a reference in that Part to "this Act" (being the FW Act) were a reference to the WR Act, as in force from time to time before the WR Act repeal day; and

  (d)   the reference in paragraph   706(1)(c) to the regulations were a reference to regulations, as in force from time to time, under the WR Act, as in force from time to time before the WR Act repeal day; and

  (e)   section   716 were omitted.

14   Conduct after WR Act repeal--application of Part   5 - 2 of FW Act

Part   5 - 2 of the FW Act applies in relation to conduct that occurs on or after the WR Act repeal day as if:

  (a)   a reference in that Part to a fair work instrument included a reference to a transitional instrument, a transitional minimum wage instrument or a continuing Schedule   6 instrument; and

  (b)   a reference in that Part to "this Act" (being the FW Act) included a reference to the WR Act as it continues to apply because of this Act; and

  (c)   a reference in that Part to "this Act" (being the FW Act) included a reference to this Act (being the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ); and

  (d)   the reference in paragraph   706(1)(c) to the regulations included a reference to:

  (i)   any regulations under the WR Act as they continue to apply because of this Act; or

  (ii)   regulations under this Act; and

  (e)   the following were included in paragraphs 706(2)(a) to (f);

  (i)   a term of a transitional instrument;

  (ii)   a term of a continuing Schedule   6 instrument;

  (iii)   subsection   182(1) or (2) of the WR Act, as it continues to apply under item   5 of Schedule   9 (which deals with continuation of Australian Fair Pay and Conditions Standard wages provisions);

  (iv)   a term of a take - home pay order;

  (v)   a term of a WR Act equal remuneration order as it continues to apply because of item   4 of Schedule   10.

14A   Conduct after Division   2B referral commencement--application of Part   5 - 2 of FW Act

(1)   Part   5 - 2 of the FW Act applies in relation to conduct that occurs on or after the Division   2B referral commencement as if:

  (a)   a reference in that Part to a fair work instrument were a reference to a Division   2B State instrument; and

  (b)   paragraphs 706(2)(a) to (f) included a reference to a term of a Division   2B State instrument.

(2)   This item has effect in addition to item   14.

15   Directions of Workplace Ombudsman

A direction, given by the Workplace Ombudsman to a workplace inspector under subsection   167(7) of the WR Act, that is in force immediately before the WR Act repeal day is taken, on and after that day, to have been given by the Fair Work Ombudsman to a Fair Work Inspector under section   704 or 705 (as the case requires) of the FW Act.

16   Disclosure of information acquired by workplace inspectors

Section   718 of the FW Act has effect as if information acquired, before the WR Act repeal day, by a member of the Office of the Workplace Ombudsman in the course of performing functions or exercising powers as such a member were information acquired by the Fair Work Ombudsman in the course of performing functions or exercising powers as the Fair Work Ombudsman.

Note:   The effect of this item is to allow the Fair Work Ombudsman to disclose, under section   718 of the FW Act, information acquired by a member of the Office of the Workplace Ombudsman.

Part   4 -- Miscellaneous

17   FWA annual report--operations of FWA

If Part   5 - 1 of the FW Act commences before 1   July 2009:

  (a)   the annual report on the operations of FWA prepared for the 2009 - 2010 financial year under section   652 of the FW Act must include a report on the operations of FWA during the period:

  (i)   beginning on the day Part   5 - 1 of the FW Act commences; and

  (ii)   ending on 30   June 2009; and

  (b)   that section does not apply in relation to the 2008 - 2009 financial year.

18   Annual report--operations of the Office of the Fair Work Ombudsman

If Part   5 - 2 of the FW Act commences before 1   July 2009:

  (a)   the annual report on the operations of the Office of the Fair Work Ombudsman prepared for the 2009 - 2010 financial year under section   686 of the FW Act must include a report on the operations of the Office during the period:

  (i)   beginning on the day Part   5 - 2 of the FW Act commences; and

  (ii)   ending on 30   June 2009; and

  (b)   that section does not apply in relation to the 2008 - 2009 financial year.

19   Annual report--operations of the Office of the Workplace Ombudsman

(1)   The Fair Work Ombudsman (instead of the Workplace Ombudsman) must prepare the annual report on the operations of the Office of the Workplace Ombudsman under section   166S of the WR Act for the 2008 - 2009 financial year.

(2)   Subitem   (1) applies whether or not section   166S of the WR Act is repealed before the end of that year.

20   Report about developments in making agreements

Section   844 of the WR Act continues to apply, on and after the WR Act repeal day, but only in relation to the period:

  (a)   beginning on 1   January 2007; and

  (b)   ending on the day the office of the Workplace Authority Director, and the Workplace Authority, cease to exist.

20A   Report about unfair dismissal

(1)   The General Manager of the FWC must prepare a written report about the first 3 years operation of the unfair dismissal system.

(2)   The report must deal with the experiences employers, and in particular small and medium - sized enterprise employers, and employees have had with the unfair dismissal system.

(3)   To prepare the report, the General Manager of the FWC may do the following:

  (a)   seek public submissions;

  (b)   conduct surveys of employers, employees and any other persons affected by, or who have had experience with, the unfair dismissal system;

  (c)   hold public hearings;

  (d)   gather information in any other way he or she thinks fit.

(4)   Where possible, the report should include:

  (a)   the number of unfair dismissal applications made; and

  (b)   the number of persons who were employed by each applicant's employer; and

  (c)   the number of applicants who were employed by a small business employer; and

  (d)   the number of applicants employed by small business employers whose dismissals were not consistent with the Small Business Fair Dismissal Code; and

  (e)   the number of applicants found to have been unfairly dismissed, and of those applicants:

  (i)   the number whose reinstatement was ordered by the FWC; and

  (ii)   the number awarded compensation by the FWC, and the amounts of that compensation; and

  (iii)   the number dismissed by a small business employer; and

  (f)   the number of unfair dismissal applications that were made after the period of 14 days specified in paragraph   394(2)(a) of the FW Act and the number of those applications that were allowed by the FWC under subsection   394(3) of the FW Act; and

  (g)   the number of unfair dismissal applications discontinued, and the stages at which those applications were discontinued; and

  (h)   the amounts of compensation paid, or the other remedies provided, when unfair dismissal applications were settled.

(5)   The General Manager of the FWC must give the Minister the report as soon as practicable and, in any event, within 6 months after the end of the period mentioned in subitem   (1).

(6)   The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(7)   Subsections   34C(4) to (7) of the Acts Interpretation Act 1901 apply to the report as if it were a periodic report within the meaning of that definition in subsection   34C(1) of that Act.

(8)   In this item:

applicant means a person who has made an unfair dismissal application.

unfair dismissal system means Part   3 - 2 of the FW Act.

20B   Transferred employees

Existing agreements to continue

(1)   This item applies if:

  (a)   an APS employee is moved, under paragraph   72(1)(a) of the Public Service Act 1999 , from an old Agency to a new Agency; and

  (b)   the employee's employment in the old Agency was subject to:

  (i)   a collective agreement; or

  (ii)   an AWA or pre - reform AWA (and therefore also a collective agreement which had no effect while the AWA or pre - reform AWA operated in relation to the employee).

(2)   The collective agreement, AWA or pre - reform AWA, as the case requires, has effect after the move in relation to the employee's employment as if it had been made with the Agency Head of the new Agency on behalf of the Commonwealth.

Agency Head to determine which agreement applies to new employee

(3)   If:

  (a)   a new employee is employed in a new Agency; and

  (b)   more than one collective agreement - based transitional instrument applies to the employment of employees in that Agency;

the Agency Head may determine that any one of those instruments applies to the employment of the new employee.

Regulations

(4)   The regulations may provide for other matters of a transitional nature in relation to the transfer of employees from an old Agency to a new Agency.

Definitions

(5)   In this item:

Agency Head has the same meaning as in the Public Service Act 1999.

new Agency means:

  (a)   Fair Work Australia; or

  (b)   the Office of the Fair Work Ombudsman.

new employee , in a new Agency, means an employee who was not moved to the new Agency from an old Agency as mentioned in paragraph   (1)(a).

old Agency means:

  (a)   the Australian Industrial Registry; or

  (b)   the AFPC Secretariat; or

  (c)   the Workplace Authority; or

  (d)   the Office of the Workplace Ombudsman.

Fair Work Act 2009

21   Section   574A

Repeal the section.

21A   Paragraph   575(2)(d)

Omit "4", substitute "3".

21B   Paragraph   622(2)(a)

Omit "3", substitute "2".

21C   Before section   630

Insert:

629A   Status of the President

    The President has the same status as a Judge of the Federal Court.

21D   Subparagraph   654(2)(a)(i)

Omit "that is made under this Act".

21E   Subparagraph   654(2)(a)(ii)

Omit "that is made or given to FWA under this Act", substitute "given or made to FWA".

21F   Paragraph   654(2)(b)

Omit "made under this Act and is".

21G   After section   796

Insert:

796A   Regulations conferring functions

    The regulations may confer functions on the following:

  (a)   FWA;

  (b)   the General Manager.

22   Schedule   1 to the Act

Repeal the Schedule.