Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 4A.
Division 1 -- Objects of Schedule
(1) This Schedule provides transitional arrangements for certain employers ( transitional employers ) that were bound immediately before the reform commencement by an award (a transitional award ), and their employees ( transitional employees ).
(2) The objects of this Schedule are to ensure that, during the transitional period:
(a) transitional awards continue in operation and are maintained by the Commission, within the limits specified in this Schedule; and
(b) transitional employers and their employees are able to cease to be bound by a transitional award in appropriate circumstances, including by making agreements under State laws; and
(c) the Commission's functions and powers to vary transitional awards are exercised so that wages and other monetary entitlements are not inconsistent with wage - setting decisions of the AFPC; and
(d) appropriate compliance and enforcement mechanisms remain available.
(1) In this Schedule:
"allowable transitional award matters" means the matters covered by subclause 17(1).
Note: The matters referred to in subclause 17(1) have a meaning that is affected by clause 18.
"arbitration powers" means the powers of the Commission in relation to arbitration.
"award" means an award within the meaning of subsection 4(1) of this Act as in force immediately before the reform commencement.
"breach" includes non - observance.
"cease dealing" , in relation to an industrial dispute, means:
(a) to dismiss the whole or a part of a matter to which the industrial dispute relates; or
(b) to refrain from further hearing or from determining the industrial dispute or part of the industrial dispute.
"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.
"conciliation powers" means the powers of the Commission in relation to conciliation.
"Court" means the Federal Court of Australia or the Federal Magistrates Court.
"employee" means an individual so far as:
(a) he or she is employed by an excluded employer, except on a vocational placement; or
(b) his or her usual occupation involves being employed by an excluded employer, except on a vocational placement.
"employer" means an excluded employer.
"employment" means employment of an employee within the meaning of this Schedule.
"excluded employer" means an employer (within the ordinary meaning of the term) so far as the definition of employer in subsection 4AB(1) does not cover the employer.
"industrial action" has the meaning given by clause 3.
"industrial dispute" means:
(a) an industrial dispute (including a threatened, impending or probable industrial dispute):
(i) extending beyond the limits of any one State; and
(ii) that is about allowable transitional award matters pertaining to the relationship between transitional employers and transitional employees; or
(b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a).
"outworker" means a transitional employee who, for the purposes of the business of a transitional employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.
"preserved transitional award term" has the meaning given by subclause 22(2).
"reform commencement" means the time at which this Schedule commences.
"relevant Presidential Member" , in relation to an industrial dispute, means the Presidential Member who has been given the responsibility by the President for organising and allocating the work of the panel to which the industry concerned has been assigned or, if the industry concerned has not been assigned to a panel, the President.
"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 either or both of the following:
(i) one or more employees of the employer;
(ii) one or more trade unions; and
(b) that regulates wages and conditions of employment of one or more employees; and
(c) that is made under a law of a State that provides for such agreements; 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.
"transitional award" means an award as continued in force on and from the reform commencement by subclause 4(2), and, to avoid doubt, includes any variations made under this Schedule.
"transitional award-related order" means an order varying, revoking or suspending a transitional award under this Schedule.
"transitional employee" means an employee of a transitional employer.
"transitional employer" means an excluded employer that is bound by a transitional award.
"transitional period" means the period of 5 years beginning on the reform commencement.
"Victorian reference award" means an award made under this Act in its operation in accordance with repealed subsection 493(1).
(2) In this Schedule, a reference to an industrial dispute includes a reference to:
(a) a part of an industrial dispute; and
(b) an industrial dispute so far as it relates to a matter in dispute; and
(c) a question arising in relation to an industrial dispute.
(3) In this Schedule, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.
(4) A reference in this Schedule to a term of a transitional award includes a reference to a provision of a transitional award.
(5) A reference in this Schedule to an independent contractor is not confined to a natural person.
3 Meaning of industrial action
(1) For the purposes of this Schedule, industrial action means any action of the following kinds:
(a) the performance of work by a transitional employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by a transitional employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly, by a transitional award; or
(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute;
(b) a ban, limitation or restriction on the performance of work by a transitional employee, or on acceptance of or offering for work by a transitional employee, in accordance with the terms and conditions prescribed by a transitional award;
(c) a ban, limitation or restriction on the performance of work by a transitional employee, or on acceptance of or offering for work by a transitional employee, that is adopted in connection with an industrial dispute;
(d) a failure or refusal by transitional employees to attend for work or a failure or refusal to perform any work at all by transitional employees who attend for work, if:
(i) the transitional employees are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or
(ii) the failure or refusal is in connection with an industrial dispute;
(e) the lockout of transitional employees from their employment by the transitional employer of the employees if:
(i) the terms and conditions of the employment are prescribed, wholly or partly, by a transitional award; or
(ii) the lockout is in connection with an industrial dispute;
but does not include any of the following:
(f) action by transitional employees that is authorised or agreed to by the transitional employer of the employees;
(g) action by a transitional employer that is authorised or agreed to by or on behalf of transitional employees of the employer;
(h) action by a transitional employee if:
(i) the action was based on a reasonable concern by the transitional employee about an imminent risk to his or her health or safety; and
(ii) the transitional employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
Note 1: See also subclause (4) which deals with the burden of proof of the exception in subparagraph (h)(i) of this definition.
Note 2: The issue of whether action that is not industrial in character is industrial action was considered by the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others v The Age Company Limited , PR946290. In that case, the Full Bench of the Commission drew a distinction between an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment as being clearly engaged in industrial action and an employee who does not attend for work on account of illness.
(2) For the purposes of this Schedule:
(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that transitional employees are required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.
(3) For the purposes of this clause, a transitional employer locks out transitional employees from their employment if the transitional employer prevents the transitional employees from performing work under their contracts of employment without terminating those contracts (except to the extent that this would be an expansion of the ordinary meaning of that expression) .
(4) Whenever a person seeks to rely on subparagraph (1)(h)(i), that person has the burden of proving that subparagraph (1)(h)(i) applies.
Division 3 -- Continuing operation of awards
4 Continuing operation of awards in force before reform commencement
(1) Despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 , an award in force immediately before the reform commencement continues in force, on and from the reform commencement, in accordance with this clause.
(2) An award that is continued in force by this clause binds the following:
(a) all excluded employers that were bound by the award immediately before the reform commencement;
(b) any transitional employer bound by the award under Part 6A of this Schedule (transmission of business);
(c) all organisations that were bound by the award immediately before the reform commencement;
(d) all employees who, immediately before the reform commencement, were members of organisatio ns that were bound by the award;
(e) each other entity that:
(i) is not an employer within the meaning of subsection 4AB(1) or an eligible entity within the meaning of Division 6A of Part VI; and
(ii) was bound by the award immediately before the reform commencement;
but only in relation to outworker terms.
(3) To avoid doubt, an award that is continued in force by this clause binds an excluded employer or other entity that was bound by the award immediately before the reform commencement, whether the employer or other entity was bound:
(a) in its own right or as a member of an organisation; or
(b) because of the operation of paragraph 149(1)(d), as in force immediately before the reform commencement.
Note: Clause 69 provides for who is bound by an order varying a transitional award.
(4) An award that is continued in force by this clause is called a transitional award .
(5) In this clause:
"outworker term" means a term of a transitional award that is:
(a) about the matter referred to in paragraph 17(1)(q); or
(b) incidental to such a matter, and included in the award as permitted by clause 24; or
(c) a machinery provision in respect of such a matter included in the award as permitted by clause 24.
5 Particular rules about transitional awards
(1) If an excluded employer was, immediately before the reform commencement, regulated by a State employment agreement in respect of the employment of an employee, the employer is not bound by a transitional award in respect of the employment of that employee at any time after the reform commencement.
(2) If a transitional employer that is bound by a transitional award as a member of an organisation ceases to be a member of that organisation, the transitional employer ceases to be bound by the transitional award at the time the transitional employer ceases to be a member of the organisation, unless the transitional employer is otherwise bound by the transitional award.
(3) If a transitional employee who is bound by a transitional award as a member of an organisation ceases to be a member of that organisation, the transitional employee ceases to be bound by the transitional award at the time the transitional employee ceases to be a member of the organisation.
6 Cessation of transitional awards
(1) A transitional award that has not ceased to be in force during the transitional period ceases to be in force at the end of that period.
(2) To avoid doubt, this clause does not affect any rights accrued or liabilities incurred under a transitional award before it ceases to be in force.
Part 2 -- Performance of Commission's functions
7 General functions of Commission
(1) The functions of the Commission under this Schedule are to prevent and settle industrial disputes:
(a) so far as possible, by conciliation; and
(b) as a last resort and within the limits of the Commission's powers under this Schedule, by arbitration.
(2) In performing its functions under paragraph (1)(b), the Commission may vary a transitional award as permitted by clause 29.
(3) However, the Commission must not make any new awards.
8 Performance of Commission's functions under this Schedule
(1) The Commission must perform its functions under this Schedule in a way that furthers the objects of this Schedule.
(2) In performing its functions under this Schedule, the Commission must ensure that minimum safety net entitlements are maintained for wages and other specified monetary entitlements, having regard to:
(a) the desirability of high levels of productivity, low inflation, creation of jobs and high levels of employment; and
(b) the principle that the wages and other monetary entitlements of transitional employees should not place them at a disadvantage compared with the entitlements of employees (within the meaning of subsection 4AA(1)); and
(c) the principle that the costs to transitional employers of wages and other monetary entitlements should not place them at a competitive disadvantage in relation to employers (within the meaning of subsection 4AB(1)).
(3) In having regard to the factors referred to in paragraph (2)(a), the Commission must have regard to:
(a) wage - setting decisions of the AFPC; and
(b) in particular, any statements by the AFPC about the effect of wage increases on productivity, inflation and levels of employment.
(4) In performing its functions under this Schedule, the Commission must have regard to:
(a) the desirability of its decisions being consistent with wage - setting decisions of the AFPC; and
(b) the importance of providing minimum safety net entitlements that act as an incentive to bargaining at the workplace level.
9 Anti - discrimination considerations
(1) Without limiting clause 8, in exercising any of its powers under this Schedule, the Commission must:
(a) apply the principle that men and women should receive equal remuneration for work of equal value; and
(b) have regard to the need to provide pro - rata disability pay methods for transitional employees with disabilities; and
(c) 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; and
(d) take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:
(i) preventing discrimination against workers who have family responsibilities; or
(ii) helping workers to reconcile their employment and family responsibilities; and
(e) ensure that its decisions do not contain provisions that discriminate 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.
(2) For the purposes of the Acts referred to in paragraph (1)(c) and paragraph (1)(e), the Commission does not discriminate against a transitional employee or transitional employees by (in accordance with this Schedule) determining or adjusting terms in a transitional award that determine a basic periodic rate of pay for:
(a) all junior transitional employees, or a class of junior transitional employees; or
(b) all transitional employees with a disability, or a class of transitional employees with a disability; or
(c) all transitional employees to whom training arrangements apply, or a class of transitional employees to whom training arrangements apply.
10 Commission to have regard to operation of Superannuation Guarantee legislation
In varying a term dealing with rates of pay in a transitional award, the Commission must have regard to the operation of:
(a) the Superannuation Guarantee Charge Act 1992 ; and
(b) the Superannuation Guarantee (Administration) Act 1992 .
11 Commission to encourage agreement on procedures for preventing and settling disputes
In dealing with an industrial dispute, the Commission must, if it appears practicable and appropriate, encourage the parties to agree on procedures for preventing and settling, by discussion and agreement, further disputes between the parties or any of them.
12 Commission to have regard to compliance with disputes procedures
If the parties to an industrial dispute are bound by a transitional award that provides for procedures for preventing or settling industrial disputes between them, the Commission must, in considering whether or when it will exercise its powers in relation to the industrial dispute, have regard to the extent to which the procedures (if applicable to the industrial dispute) have been complied with by the parties and the circumstances of any compliance or non - compliance with the procedures.
13 No automatic flow - on of terms of certain agreements
(1) The Commission does not have power to vary a transitional award to include in it terms that are based on the terms of a workplace agreement, a pre - reform certified agreement or a section 170MX award unless the Commission is satisfied that including the terms in the award:
(a) would not be inconsistent with the objects of this Schedule set out in clause 1; and
(b) would not be inconsistent with wage - setting decisions of the AFPC; and
(c) would not be otherwise contrary to the public interest.
(2) In this clause:
"pre-reform certified agreement" has the same meaning as in Schedule 14.
"section 170MX award" has the same meaning as in Schedule 14.
(1) The Commission must perform its functions under this Schedule as quickly as practicable.
(2) However, the Commission must give a higher priority to performing its other functions under this Act than it gives to performing its functions under this Schedule.
15 Commission not required to have regard to certain matters
Section 44A does not apply to the performance of a function by the Commission under this Schedule.
Part 3 -- Powers and procedures of Commission for dealing with industrial disputes
Division 1 -- Settlement of industrial disputes
Subdivision A -- Scope of industrial disputes
16 Scope of industrial disputes
(1) For the purposes of dealing with an industrial dispute by conciliation, an industrial dispute may be about any allowable transitional award matter.
(2) An industrial dispute is taken to be only about the allowable transitional award matters referred to in subclause 29(2) for the following purposes:
(a) dealing with an industrial dispute by arbitration;
(b) preventing or settling an industrial dispute, and maintaining the settlement of an industrial dispute, by varying a transitional award.
Note: For the purposes of this Schedule, an industrial dispute can only be about allowable transitional award matters--see the definition of industrial dispute in subclause 2(1).
Subdivision B -- Allowable transitional award matters
17 Allowable transitional award matters
(1) Subject to this Division, a transitional award may include terms about the following matters ( allowable transitional award matters ) only:
(a) classifications of transitional employees and skill - based career paths;
(b) ordinary time hours of work and the times within which they are performed, rest breaks, notice periods and variations to working hours;
(c) rates of pay generally (such as hourly rates and annual salaries), rates of pay for juniors and transitional employees to whom training arrangements apply, and rates of pay for transitional employees under the supported wage system;
(d) incentive - based payments, piece rates and bonuses;
(e) annual leave and annual leave loadings;
(f) personal/carer's leave;
(g) ceremonial leave;
(ga) leave for the purpose of seeking other employment after the giving of a notice of termination by an employer to an employee;
(h) parental leave, including maternity and adoption leave;
(i) observance of days declared by or under a law of a State or Territory to be observed generally within that State or Territory, or a region of that State or Territory, as public holidays by employees who work in that State, Territory or region, and entitlements of transitional employees to payment in respect of those days;
(ia) days to be substituted for, or a procedure for substituting, days referred to in paragraph (i);
(j) monetary allowances for:
(i) expenses incurred in the course of employment; or
(ii) responsibilities or skills that are not taken into account in rates of pay for transitional employees; or
(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;
(k) loadings for working overtime or for casual or shift work;
(l) penalty rates;
(m) redundancy pay, within the meaning of subclause (3);
(n) stand - down provisions;
(o) dispute settling procedures;
(p) type of employment, such as full - time employment, casual employment, regular part - time employment and shift work;
(q) pay and conditions for outworkers, but only to the extent necessary to ensure that their overall pay and conditions of employment are fair and reasonable in comparison with the pay and conditions of employment specified in a relevant transitional award or transitional awards for transitional employees who perform the same kind of work at a transitional employer's business or commercial premises.
Note 1: The matters referred to in subclause (1) have a meaning that is affected by clause 18.
Note 2: Entitlements relating to certain matters that were allowable award matters immediately before the reform commencement are preserved under clause 22.
(2) For the purposes of paragraph (1)(f), personal/carer's leave includes war service sick leave, infectious diseases sick leave and other like forms of sick leave.
(3) For the purposes of paragraph (1)(m), redundancy pay means redundancy pay in relation to a termination of employment that is:
(a) by a transitional employer of 15 or more transitional employees; and
(b) either:
(i) at the initiative of the transitional employer and on the grounds of operational requirements; or
(ii) because the transitional employer is insolvent.
(4) For the purposes of paragraph (3)(a):
(a) whether a transitional employer employs 15 or more transitional employees, or fewer than 15 transitional employees, is to be worked out as at the time (the relevant time ):
(i) when notice of the redundancy is given; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to transitional employees includes a reference to:
(i) the transitional employee who becomes redundant and any other transitional employee who becomes redundant at the relevant time; and
(ii) any casual transitional employee who, at the relevant time, has been engaged by the transitional employer on a regular and systematic basis for at least 12 months (but not including any other casual transitional employee).
18 Matters that are not allowable transitional award matters
(1) For the purposes of subclause 17(1), matters that are not allowable transitional award matters within the meaning of that subclause include, but are not limited to, the following:
(a) rights of an organisation to participate in, or represent a transitional employer or transitional employee in, the whole or part of a dispute settling procedure, unless the organisation is the representative of the employer's or employee's choice;
(b) conversion from casual employment to another type of employment;
(c) the number or proportion of transitional employees that a transitional employer may employ in a particular type of employment or in a particular classification;
(d) prohibitions (whether direct or indirect) on a transitional employer employing transitional employees in a particular type of employment or in a particular classification;
(e) the maximum or minimum hours of work for regular part - time transitional employees;
(f) restrictions on the range or duration of training arrangements;
(g) restrictions on the engagement of independent contractors and requirements relating to the conditions of their engagement;
(h) restrictions on the engagement of labour hire workers, and requirements relating to the conditions of their engagement, imposed on an entity or person for whom the labour hire worker performs work under a contract with a labour hire agency;
(i) union picnic days;
(j) tallies in the meat industry ;
(k) dispute resolution training leave;
(l) trade union training leave.
(2) Paragraph (1)(e) does not prevent any of the following being included in a transitional award:
(a) terms setting a minimum number of consecutive hours that a transitional employer may require a regular part - time transitional employee to work;
(b) terms facilitating a regular pattern in the hours worked by regular part - time transitional employees.
(2A) Paragraph (1)(g) does not limit the operation of paragraph 17(1)(q).
(3) In this clause:
"labour hire agency" means an entity or a person who conducts a business that includes the employment or engagement of workers for the purpose of supplying those workers to another entity or person under a contract with that other entity or person.
"labour hire worker" means a person:
(a) who:
(i) is employed by a labour hire agency; or
(ii) is engaged by a labour hire agency as an independent contractor; and
(b) who performs work for another entity or person under a contract between that entity or person and the labour hire agency.
Note: In this Schedule, references to independent contractors are not confined to natural persons (see subclause 2(5)).
19 Terms involving discrimination and preference not to be included
To the extent that a term of a transitional award requires or permits, or has the effect of requiring or permitting, any conduct that would contravene Part XA, it is taken not to be about allowable transitional award matters.
20 Terms about rights of entry not to be included
To the extent that a term of a transitional award requires or authorises an officer or employee of an organisation:
(a) to enter premises:
(i) occupied by a transitional employer who is bound by the award; or
(ii) in which work to which the award applies is being carried on; or
(b) to inspect or view any work, material, machinery, appliance, article, document or other thing on such premises; or
(c) to interview a transitional employee on such premises;
it is taken not to be about allowable transitional award matters.
21 Enterprise flexibility provisions not to be included
To the extent that a term of a transitional award is an enterprise flexibility provision within the meaning of section 113A as in force immediately before the reform commencement, it is taken not to be about an allowable transitional award matter.
Subdivision C -- Other terms that may be included in transitional awards
22 Preserved transitional award terms
(1) A transitional award may include preserved transitional award terms.
(2) A preserved transitional award term is a term , or more than one term, of a transitional award that:
(a) is about a matter referred to in subclause (3); and
(b) had effect under the transitional award on the reform commencement.
(3) For the purposes of subclause (2), the matters are as follows:
(a) long service leave;
(b) notice of termination;
(c) jury service;
(d) superannuation.
(4) If a term of a transitional award is about both matters referred to in subclause (3) and other matters, it is taken to be a preserved transitional award term only to the extent that it is about the matters referred to in subclause (3).
(4A) If more than one term of a transitional award is about a matter referred to in subclause (3), then those terms, taken together, constitute the preserved transitional award term of that transitional award about that matter.
(5) A preserved transitional award term continues to have effect for the purposes of this Schedule.
Note: Preserved transitional award terms may not be varied.
(6) A preserved transitional award term about superannuation ceases to have effect at the end of 30 June 2008.
(1) A transitional award may include a facilitative provision that allows agreement at the workplace or enterprise level, between transitional employers and transitional employees (including individual transitional employees), on how a term in the award about an allowable transitional award matter or a preserved transitional award term is to operate.
(2) A facilitative provision must not require agreement between a majority of transitional employees and a transitional employer, but must permit agreement between an individual transitional employee and a transitional employer, on how a term in an award about an allowable transitional award matter or a preserved transitional award term is to operate.
(3) A facilitative provision may only operate in respect of an allowable transitional award matter or a preserved transitional award term.
(4) A facilitative provision is of no effect to the extent that it does not comply with subclause (2) or (3).
24 Incidental and machinery terms
(1) A transitional award may include terms that are:
(a) incidental to an allowable transitional award matter about which there is a term in the award; and
(b) essential for the purpose of making a particular term operate in a practical way.
(2) For the purposes of this clause, to the extent that a term of a transitional award provides for a matter that is not an allowable transitional award matter because of the operation of clause 18, 19, 20 or 21, the term is not, and cannot be, incidental to a term in the award providing for an allowable transitional award matter, and is of no effect to that extent.
(2A) However, to avoid doubt, paragraph 18(1)(g) does not limit the operation of subclauses (1) and (3) to the extent that those subclauses relate to the matter referred to in paragraph 17(1)(q).
(3) A transitional award may include machinery provisions including, but not limited to, provisions providing for the following:
(a) commencement;
(b) definitions;
(c) titles;
(d) arrangement;
(e) transitional employers, transitional employees and organisations bound;
(f) term of the award.
25 Anti - discrimination clauses
A transitional award may include a model anti - discrimination clause.
(1) A transitional award may include, in accordance with subclause (2), a term:
(a) appointing, or giving power to appoint, for the purposes of the award, a board of reference consisting of a person or 2 or more persons; and
(b) assigning to the board of reference functions as described in subclause (3).
(2) A term of a transitional award that appoints, or gives power to appoint, a board of reference is taken:
(a) to continue in effect after the reform commencement, to the extent that it complies with subclause (3); and
(b) to cease to have effect after the reform commencement, to the extent that it does not comply with subclause (3).
(3) A term of a transitional award that appoints, or gives power to appoint, a board of reference:
(a) may confer upon the board of reference an administrative function in respect of allowing, approving, fixing, or dealing with, in the manner and subject to the conditions specified in the award, a matter or thing that, under the award, may from time to time be required to be allowed, approved, fixed, or dealt with; and
(b) must not confer upon the board of reference a function of settling or determining disputes about any matter arising under the award.
(4) A function conferred under subclause (3) may relate only to allowable transitional award matters or terms permitted by this Subdivision to be included in the transitional award.
(5) A board of reference may consist of or include a Commissioner.
(6) Subject to subclauses (3) and (4), the regulations may make provision in relation to:
(a) a particular board of reference; or
(b) boards of reference in general;
including, but not limited to, the functions and powers of the board or boards.
Subdivision D -- Terms in transitional awards that cease to have effect
27 Terms in transitional awards that cease to have effect after the reform commencement
(1) Immediately after the reform commencement, a term of a transitional award ceases to have effect to the extent that it is about matters that are not allowable transitional award matters, except to the extent (if any) that the term is permitted by Subdivision C to be included in the award.
(2) This clause does not affect the operation of preserved transitional award terms.
Division 2 -- Variation and revocation of transitional awards
28 Variation of transitional awards--general
(1) The Commission may make an order varying a transitional award only:
(a) as permitted by clause 29; or
(b) on a ground set out in clause 30.
(2) The Commission must not vary a preserved transitional award term.
(3) The Commission must not vary a facilitative provision within the meaning of clause 23 except on a ground set out in clause 30.
29 Variation of transitional awards--dealing with industrial dispute
(1) In preventing or settling an industrial dispute, or maintaining the settlement of an industrial dispute, the Commission's power to vary a transitional award is limited to varying the award:
(a) to provide minimum safety net entitlements about the matters referred to in subclause (2); and
(b) to do anything that the Commission is permitted to do by regulations made under subclause (3); and
(c) to include incidental and machinery terms, as permitted by clause 24, relating to the matters that may be varied.
(2) For the purposes of subclause (1), the matters are:
(a) rates of pay generally (such as hourly rates and annual salaries), rates of pay for juniors and transitional employees to whom training arrangements apply, and rates of pay for transitional employees under the supported wage system;
(b) incentive - based payments, piece rates and bonuses;
(c) annual leave loadings;
(d) monetary allowances described in paragraph 17(1)(j);
(e) loadings for working overtime or for casual or shift work;
(f) penalty rates;
(g) pay for outworkers;
(h) any other allowable transitional award matter prescribed by the regulations.
Note: The Commission must have regard to the matters referred to in clauses 8 and 9 in exercising its functions under this clause.
(3) If the Commission considers it appropriate to vary a transitional award in respect of rates of pay for part - time transitional employees, junior transitional employees or transitional employees to whom training arrangements apply, the Commission may, if it considers it appropriate, also vary the application of the terms of the award to those employees in accordance with the regulations.
(4) Regulations under subclause (3) may specify:
(a) the matters in respect of which a transitional award may be varied as mentioned in that subclause, which must be matters referred to in subclause 17(1); and
(b) the circumstances in which a transitional award may be varied as mentioned in that subclause.
Example: For example, regulations under subclause (4) could permit the Commission to vary a transitional award, if it considers it appropriate, to ensure that certain conditions to which a part - time transitional employee is entitled are determined in proportion to the hours worked by the part - time employee.
30 Variation of transitional awards--discrimination, etc.
(1) If the Commission considers that a term of a transitional award about a matter referred to in subclause 29(2) is ambiguous or uncertain, the Commission may make an order varying the award so as to remove the ambiguity or uncertainty.
(2) If a transitional award is referred to the Commission under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 , the Commission must convene a hearing to review the award.
(3) In a review under subclause (2):
(a) the Commission must take such steps as it considers appropriate to ensure that each transitional employer and organisation bound by the transitional award is made aware of the hearing; and
(b) the Sex Discrimination Commissioner may intervene in the proceeding.
(4) If the Commission considers that a transitional award reviewed under subclause (2) is a discriminatory award, the Commission must take the necessary action to remove the discrimination, by making an order varying the award.
(5) The Commission may, on application by a transitional employer or organisation bound by a transitional award, vary a term of the award referring by name to a transitional employer or organisation bound by the award:
(a) to reflect a change in the name of the transitional employer or organisation; or
(b) if:
(i) the registration of the organisation has been cancelled; or
(ii) the transitional employer or organisation has ceased to exist;
to omit the reference to its name.
(6) The onus of demonstrating that a transitional award should be varied as set out in an application under subclause (5) rests with the applicant.
(7) In this clause:
"discriminatory award" means a transitional award that:
(a) has been referred to the Commission under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 ; and
(b) requires a person to do any act that would be unlawful under Part II of the Sex Discrimination Act 1984 , except for the fact that the act would be done in direct compliance with the award.
For the purposes of this definition, the fact that an act is done in direct compliance with the award does not of itself mean that the act is reasonable.
31 Revocation of transitional awards
(1) The Commission may make an order revoking a transitional award only if:
(a) it is satisfied that the award is obsolete or is no longer operating; and
(b) it would not be contrary to the public interest to revoke the award.
(2) If an application for an order under subclause (1) is made, the Commission must take such steps as it considers appropriate to ensure that each transitional employer and organisation bound by the transitional award is made aware of the application.
(3) The Commission must not make an order revoking a transitional award if one or more transitional employees have an entitlement in relation to a matter under a preserved transitional award term included in the transitional award.
32 Applications for variation, suspension or revocation of transitional awards
This Schedule applies in relation to applications, and proceedings in relation to applications, for the variation, suspension or revocation of transitional awards in the same manner, as far as possible, as it applies in relation to industrial disputes and proceedings in relation to industrial disputes, and for that purpose such an application is to be treated as if it were the notification of an industrial dispute.
Division 3 -- Procedure for dealing with industrial disputes
33 Notification of industrial disputes
(1) If an entitled organisation or a transitional employer becomes aware of the existence of an alleged industrial dispute affecting the organisation or its members or affecting the employer, as the case may be, the organisation or employer may notify the relevant Presidential Member or a Registrar.
Note: For the purposes of this Schedule, an industrial dispute may only be about allowable transitional award matters--see the definition of industrial dispute in subclause 2(1).
(2) A Minister who is aware of the existence of an alleged industrial dispute may notify the relevant Presidential Member or a Registrar.
(3) If a Registrar is notified of an alleged industrial dispute, or a member of the Commission who is not the relevant Presidential Member becomes aware of the existence of an alleged industrial dispute, the Registrar or member must inform the relevant Presidential Member.
(4) For the purposes of this clause, an organisation is an entitled organisation if:
(a) the organisation is bound by a transitional award; and
(b) at least one member of the organisation is a transitional employer or a transitional employee that is bound by the transitional award; and
(c) the organisation is entitled under its eligibility rules to represent the industrial interests of that member.
34 Disputes to be dealt with by conciliation where possible
(1) If an alleged industrial dispute is notified under clause 33 or the relevant Presidential Member otherwise becomes aware of the existence of an alleged industrial dispute, the relevant Presidential Member must, unless satisfied that it would not assist the prevention or settlement of the alleged industrial dispute, refer it for conciliation by himself or herself or by another member of the Commission.
(2) If the Presidential Member does not refer the alleged industrial dispute for conciliation:
(a) the Presidential Member must publish reasons for not doing so; and
(b) the Commission must deal with the alleged industrial dispute by arbitration.
35 Findings as to industrial disputes
(1) Subject to subclause (2), if a proceeding in relation to an alleged industrial dispute comes before the Commission, it must, if it considers that the alleged industrial dispute is an industrial dispute:
(a) determine the parties to the industrial dispute and the matters in dispute; and
(b) record its findings;
but the Commission may vary or revoke any of the findings.
(2) If the Commission constituted in any manner has made findings in relation to an industrial dispute, the Commission (however constituted) may, for the purpose of exercising powers in subsequent proceedings in relation to the same industrial dispute (other than powers on an appeal in relation to the finding), proceed on the basis of the findings or any of them.
(3) A determination or finding of the Commission on a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by the question.
36 Action to be taken where dispute referred for conciliation
(1) If an industrial dispute is referred for conciliation, a member of the Commission must do everything that appears to the member to be right and proper to assist the parties to agree on terms for the prevention or settlement of the industrial dispute.
(2) The action that may be taken by a member of the Commission under this clause includes:
(a) arranging conferences of the parties or their representatives presided over by the member; and
(b) arranging for the parties or their representatives to confer among themselves at conferences at which the member is not present.
37 Completion of conciliation proceeding
(1) A conciliation proceeding before a member of the Commission is to be regarded as completed when:
(a) the parties have reached agreement for the settlement of the whole of the industrial dispute; or
(b) whether or not the parties have reached agreement for the settlement of part of the industrial dispute, the member of the Commission is satisfied that there is no likelihood that, within a reasonable period, conciliation, or further conciliation, will result in agreement, or further agreement, by the parties on terms for the settlement of the industrial dispute or any matter in dispute.
(2) Nothing in this Schedule prevents the exercise of conciliation powers in relation to an industrial dispute merely because arbitration powers have been exercised in relation to the industrial dispute.
(1) When a conciliation proceeding before a member of the Commission in relation to the industrial dispute is completed but the industrial dispute has not been fully settled, the Commission must, to the extent that the industrial dispute is about matters referred to in subclause 29(2), or the matters remaining in dispute are matters referred to in that clause, proceed to deal with the industrial dispute, or the matters remaining in dispute, by arbitration.
(2) The Commission must not proceed to deal with the industrial dispute, or any matters remaining in dispute, by arbitration to the extent that the industrial dispute is not about matters referred to in subclause 29(2), or the matters remaining in dispute are not matters referred to in that clause.
(3) Unless the member of the Commission who conducted the conciliation proceeding is competent, having regard to clause 39, to exercise arbitration powers in relation to the industrial dispute and proposes to do so, the member must make a report under subclause (4).
(4) The member must, for the purpose of enabling arrangements to be made for arbitration in relation to the industrial dispute, report to the relevant Presidential Member or, if the member is a Presidential Member, to the President, as to:
(a) the matters in dispute; and
(b) the extent to which those matters are matters referred to in subclause 29(2); and
(c) the parties to the dispute; and
(d) the extent to which the dispute has been settled.
(5) The member must not disclose anything said or done in the conciliation proceeding in relation to matters in dispute that remain unsettled.
(6) In an arbitration proceeding under this Schedule, unless all the parties agree, evidence must not be given, or statements made, that would disclose anything said or done in a conciliation proceeding under this Schedule (whether before a member of the Commission or at a conference arranged by a member of the Commission) in relation to matters in dispute that remain unsettled.
39 Exercise of arbitration powers by member who has exercised conciliation powers
(1) If a member of the Commission has exercised conciliation powers in relation to an industrial dispute, the member must not exercise, or take part in the exercise of, arbitration powers in relation to the industrial dispute if a party to the arbitration proceeding objects.
(2) The member is not taken to have exercised conciliation powers in relation to the industrial dispute merely because:
(a) after having begun to exercise arbitration powers in relation to the industrial dispute, the member exercised conciliation powers; or
(b) the member arranged for a conference of the parties or their representatives to be presided over by the member, but the conference did not take place or was not presided over by the member; or
(c) the member arranged for the parties or their representatives to confer among themselves at a conference at which the member was not present.
40 Principles for varying transitional awards
(1) A Full Bench of the Commission may establish principles about varying transitional awards in relation to each allowable transitional award matter referred to in subclause 29(2).
(2) After such principles (if any) have been established under subclause (1) , the power of the Commission to vary a transitional award in relation to a matter referred to in subclause 29(2) is exercisable only by a Full Bench unless the variation:
(a) gives effect to orders of a Full Bench made after the reform commencement; or
(b) is consistent with principles established by a Full Bench after that day.
(3) The President or a Full Bench may, in relation to the exercise of powers under this clause, direct a member of the Commission to provide a report in relation to a specified matter.
(4) After making such investigation (if any) as is necessary, the member must provide a report to the President or Full Bench, as the case may be.
(5) To avoid doubt, principles established under subclause (1) must be consistent with, and cannot be such as to override, a provision of this Act that relates to the variation of transitional awards.
41 Reference of disputes to Full Bench
(1) A reference in this clause to a part of an industrial dispute includes a reference to:
(a) an industrial dispute so far as it relates to a matter in dispute; or
(b) a question arising in relation to an industrial dispute.
(2) If a proceeding in relation to an industrial dispute or an alleged industrial dispute is before a member of the Commission, a party to the proceeding or the Minister may apply to the member:
(a) in the case of a proceeding in relation to an alleged industrial dispute--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; or
(b) in the case of a proceeding by way of conciliation or arbitration--to have the industrial dispute or a part of the industrial dispute dealt with by a Full Bench because the industrial dispute or the part of the industrial dispute is of such importance that, in the public interest, it should be dealt with by a Full Bench.
Note: An industrial dispute must not be dealt with by arbitration unless it is about a matter referred to in subclause 29(2)--see clause 38.
(3) An application under paragraph (2)(a) may be accompanied by an application under paragraph (2)(b), to be dealt with if the application under paragraph (2)(a) is granted and there is a finding that there is an industrial dispute.
(4) If an application is made under subclause (2) 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.
(5) If the President is of the opinion:
(a) in the case of an application under paragraph (2)(a)--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; or
(b) in the case of an application under paragraph (2)(b)--that the industrial dispute or the part of the industrial dispute is of such importance that, in the public interest, it should be dealt with by a Full Bench;
the President must grant the application.
(6) If the President grants an application under paragraph (2)(a):
(a) the Full Bench must, if it considers that there is an industrial dispute, record findings under clause 35; and
(b) if the application was accompanied by an application under paragraph (2)(b) that was granted--the Full Bench must, subject to subclause (9), hear and determine the industrial dispute or the part of the industrial dispute.
(7) If the President grants an application under paragraph (2)(b), the Full Bench must, subject to subclause (8), hear and determine the industrial dispute or the part of the industrial dispute and, in the hearing, may have regard to any evidence given, and any arguments adduced, in arbitration proceedings in relation to the industrial dispute, or the part of the industrial dispute, before the Full Bench commenced the hearing.
(8) If the President grants an application under paragraph (2)(b) in relation to an industrial dispute:
(a) the Full Bench may refer a part of the industrial dispute to a member of the Commission to hear and determine; and
(b) the Full Bench must hear and determine the rest of the industrial dispute.
(9) The President or a Full Bench may, in relation to the exercise of powers under this clause, direct a member of the Commission to provide a report in relation to a specified matter.
(10) The member must, after making such investigation (if any) as is necessary, provide a report to the President or Full Bench, as the case may be.
(11) The President may before a Full Bench has been established for the purpose of hearing and determining, under this clause, an industrial dispute or part of an industrial dispute, authorise a member of the Commission to take evidence for the purposes of the hearing and determination, and:
(a) the member has the powers of a person authorised to take evidence under subclause 46(3); and
(b) the Full Bench must have regard to the evidence.
42 President may deal with certain proceedings
(1) A reference in this clause to a part of an industrial dispute includes a reference to:
(a) an industrial dispute so far as it relates to a matter in dispute; or
(b) a question arising in relation to an industrial dispute.
(2) The President may, whether or not another member of the Commission has begun to deal with a particular proceeding in relation to an alleged industrial dispute or an industrial dispute, decide to deal with the proceeding.
(3) If the President decides to deal with the proceeding, then, unless the President considers that the proceeding does not relate to an industrial dispute:
(a) the President must make such findings (if any) in relation to the proceeding as are required to be made by clause 35 and have not already been made by another member of the Commission; and
(b) the President must:
(i) if the President is of the opinion that it would assist the settlement of the industrial dispute or a part of the industrial dispute--endeavour to settle the industrial dispute or the part of the industrial dispute by conciliation; and
(ii) if the President is not of that opinion, or has not been able to settle the industrial dispute or a part of the industrial dispute by conciliation:
(A) hear and determine the industrial dispute or the part of the industrial dispute; or
(B) refer the industrial dispute or the part of the industrial dispute to a Full Bench.
Note: An industrial dispute must not be dealt with by arbitration unless it is about a matter referred to in subclause 29(2)--see clause 38.
(4) If the President refers the industrial dispute or the part of the industrial dispute to a Full Bench, the Full Bench must hear and determine the industrial dispute or the part of the industrial dispute.
(5) In the hearing of an industrial dispute or a part of an industrial dispute by the President under subclause (3) or by a Full Bench under subclause (4), the President or Full Bench may have regard to any evidence given, and any arguments adduced, in arbitration proceedings in relation to the industrial dispute, or the part of the industrial dispute, before the President or Full Bench commenced to deal with the proceeding concerned.
(6) If the President has under subclause (3) referred an industrial dispute to a Full Bench:
(a) the Full Bench may refer a part of the industrial dispute to a member of the Commission to hear and determine; and
(b) the Full Bench must hear and determine the rest of the industrial dispute.
(7) If, before an industrial dispute is dealt with by the President under this clause or while an industrial dispute is being dealt with by the President under this clause, the parties to the industrial dispute, or any of them, reach agreement on terms for the settlement of all or any of the matters in dispute, the President must cease dealing with the industrial dispute.
(8) The President or a Full Bench may, in relation to the exercise of powers under this clause, direct a member of the Commission to provide a report in relation to a specified matter.
(9) The member must, after making such investigation (if any) as is necessary, provide a report to the President or Full Bench, as the case may be.
43 Review on application by Minister
(1) The Minister may apply to the President for a review by a Full Bench of an order made for the purposes of this Schedule, or a decision relating to the making of such an order, made by a member of the Commission under this Schedule if it appears to the Minister that the order or decision is contrary to the public interest.
(2) If an application is made to the President under subclause (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 order or decision should be reviewed, make such review of the order or decision as appears to it to be desirable having regard to the matters referred to in the application.
(4) Subsections 45(4) to (8) apply in relation to a review under this clause in the same manner as they apply in relation to an appeal under section 45.
(5) In a review under this clause:
(a) the parties to the proceeding in which the order or decision was made are parties to the proceeding on the review and are entitled to notice of the hearing; and
(b) the Minister is a party to the proceeding.
(6) Each provision of this Schedule relating to the hearing and determination of an industrial dispute extends to a review under this clause.
(7) Nothing in this clause 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 clause may, if the Full Bench considers it appropriate, be dealt with together.
(1) If the Commission is dealing with an industrial dispute, it must, in such manner as it considers appropriate, carefully and quickly inquire into and investigate the industrial dispute and all matters affecting the merits, and right settlement, of the industrial dispute.
(2) In the hearing and determination of an industrial dispute or in any other proceeding before the Commission under this Schedule:
(a) the procedure of the Commission is, subject to this Act 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.
(3) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an industrial dispute or other proceeding and require that the cases be presented within the respective periods.
(4) 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.
Sections 44B, 44C, 44D, 44F, 44H, 44I, 44J, 44K and 44L do not apply to the performance of a function by the Commission under this Schedule.
Division 4 -- Powers of Commission for dealing with industrial disputes
46 Particular powers of Commission
(1) Subject to this Schedule, the Commission may do any of the following things in relation to an industrial dispute arising under this Schedule:
(a) inform itself in any manner it considers 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 hearing or determination of the industrial dispute;
(d) within the limits of the Commission's powers under this Schedule, vary or revoke a transitional award, order, direction, recommendation or other decision of the Commission made for the purposes of this Schedule;
(e) dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute, if it appears:
(i) that the industrial dispute or part is trivial; or
(ii) that the industrial dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State industrial authority; or
(iii) that further proceedings are not necessary or desirable in the public interest; or
(iv) that a party to the industrial dispute is engaging in conduct that, in the Commission's opinion, is hindering the settlement of the industrial dispute or another industrial dispute; or
(v) that a party to the industrial dispute:
(A) has breached a transitional award or order of the Commission or a Division 3 pre - reform certified agreement (within the meaning of Schedule 14); or
(B) has contravened a direction or recommendation of the Commission to stop industrial action; or
(C) has contravened a recommendation of the Commission under clause 47;
(f) hear and determine the industrial dispute in the absence of a party who has been summoned or served with a notice to appear;
(g) sit at any place;
(h) conduct the hearing of the industrial dispute, or any part of the hearing, in private;
(i) adjourn the hearing of the industrial dispute to any time and place;
(j) refer any matter to an expert and accept the expert's report as evidence;
(k) if the industrial dispute is being dealt with by a Full Bench--direct a member of the Commission to consider a particular matter and prepare a report for the Full Bench on that matter;
(l) allow the amendment, on such terms as it considers appropriate, of any application or other document relating to the industrial dispute;
(m) correct, amend or waive any error, defect or irregularity, whether in substance or form;
(n) summon before it the parties to the industrial dispute, the witnesses, and any other persons whose presence the Commission considers would help in the hearing or determination of the industrial dispute;
(o) compel the production before it of documents and other things for the purpose of reference to such entries or matters only as relate to the industrial dispute.
(2) The Commission must not, in relation to an industrial dispute, dismiss or refrain as mentioned in paragraph (1)(e) because of subparagraph (1)(e)(i), (ii) or (iii) unless it has made a determination and findings under clause 35 in relation to the dispute.
(3) The Commission may, in writing, authorise a person (including a member of the Commission) to take evidence on its behalf, with such limitations (if any) as the Commission directs, in relation to an industrial dispute, 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.
(1) If:
(a) the Commission is exercising powers of conciliation in relation to a particular allowable transitional award matter; and
(b) all the parties request the Commission to conduct a hearing and make recommendations about particular aspects of the matter on which they are unable to reach agreement (which may be all aspects of the matter); and
(c) the Commission is satisfied that all the parties:
(i) have made a genuine attempt to agree about those aspects of the matter; and
(ii) have agreed to comply with the Commission's recommendations;
the Commission must conduct a hearing and make recommendations about those aspects of the matter.
(2) This clause does not prevent the Commission from making recommendations in other circumstances.
Division 5 -- Other powers of the Commission
48 Power to make further orders in settlement of industrial dispute etc.
(1) The fact that a transitional award - related order has been made for the settlement of an industrial dispute, or that a transitional award or order made for the settlement of an industrial dispute is in force, does not prevent:
(a) a further order being made for the settlement of the industrial dispute; or
(b) an order being made for the settlement of a further industrial dispute between all or any of the parties to the earlier award or order, and whether or not the subject matter of the further industrial dispute is the same (in whole or part) as the subject matter of the earlier industrial dispute.
(2) The Commission's power to make a further order under this clause is limited to making an order that is permitted under this Schedule.
49 Relief not limited to claim
Subject to clauses 17, 18 and 29, in making an order to vary a transitional award, the Commission is not restricted to the specific relief claimed by the parties to the industrial dispute concerned, or to the demands made by the parties in the course of the industrial dispute, but may include in the order anything:
(a) that the Commission considers necessary or expedient for the purpose of preventing or settling the industrial dispute or preventing further industrial disputes; and
(b) that is within the Commission's powers under this Schedule.
50 Power to provide special rates of wages
If a transitional award prescribes a minimum rate of wages, the Commission may vary the award to provide:
(a) for the payment of wages at a lower rate to transitional employees who are unable to earn a wage at the minimum rate; and
(b) that the lower rate must not be paid to a transitional employee unless a particular person or authority has certified that the transitional employee is unable to earn a wage at the minimum rate.
51 Orders to stop or prevent industrial action
(1) If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to an industrial dispute about a matter referred to in subclause 29(2), the Commission may, by order, give directions that the industrial action stop or not occur.
(2) The Commission may make such an order on its own initiative, or on the application of:
(a) a party to the industrial dispute (if any); or
(b) a person who is directly affected, or who is likely to be directly affected, by the industrial action; or
(c) an organisation of which a person referred to in paragraph (b) is a member.
(3) The Commission must hear and determine an application for an order under this clause as quickly as practicable.
(4) The Commission may make an interim order under this clause.
(5) An interim order made under subclause (4) ceases to have effect if the application is determined.
(6) The powers conferred on the Commission by subclauses (1) and (4) are in addition to, and not in derogation of, the powers conferred on the Commission by the rest of this Schedule.
(7) A person or organisation to whom an order under subclause (1) or (4) is expressed to apply must comply with the order.
(8) The Court may, on the application of a person or organisation affected by an order under subclause (1) or (4), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation:
(a) has engaged in conduct that constitutes a contravention of subclause (7); or
(b) is proposing to engage in conduct that would constitute such a contravention.
(9) If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subclause (8).
Part 4 -- Ballots ordered by Commission
52 Commission may order secret ballot
(1) If:
(a) an organisation is concerned in an industrial dispute with which the Commission is empowered to deal under this Schedule (whether or not proceedings in relation to the dispute are before the Commission); and
(b) the Commission considers that the prevention or settlement of the industrial dispute might be helped by finding out the attitudes of the members, or the members of a section or class of the members, of the organisation or a branch of the organisation in relation to a matter;
the Commission may order that a vote of the members be taken by secret ballot (with or without provision for absent voting), in accordance with directions given by the Commission, for the purpose of finding out their attitudes to the matter.
(2) The powers of the Commission to make an order under subclause (1), and to revoke such an order, are exercisable only by a Presidential Member or a Full Bench.
53 Scope of directions for secret ballots
(1) Directions given by the Commission under subclause 52(1) must provide for all matters relating to the ballot concerned, including the following matters:
(a) the questions to be put to the vote;
(b) the eligibility of persons to vote;
(c) the conduct of the ballot generally.
(2) Before giving a direction relating to the conduct of the ballot, the Commission must consult with the Industrial Registrar or, if the ballot is to be conducted by the Australian Electoral Commission, with the Electoral Commissioner.
(1) If, under this Part, the Commission orders the holding of a secret ballot, the Commission must, by order:
(a) direct the organisation concerned to make arrangements for the conduct of the ballot by a person approved by the Industrial Registrar; or
(b) direct the Industrial Registrar to make arrangements for the conduct of the ballot;
and may give any further directions that it considers necessary for ensuring the secrecy of votes and otherwise for the purposes of the conduct of the ballot or the communication of the result to the Commission.
(2) An organisation or person (other than the Industrial Registrar) to whom a direction has been given under subclause (1) must comply with the direction.
Penalty: 30 penalty units.
(3) Subclause (2) is an offence of strict liability.
(4) If a direction is given under paragraph (1)(a), the Commonwealth is liable to pay to the organisation the reasonable costs of the conduct of the ballot concerned as assessed by a Registrar.
(5) If a direction is given under paragraph (1)(b), the Industrial Registrar must conduct the ballot concerned, or make arrangements for its conduct, in accordance with the direction.
(6) If the result of a ballot conducted under an order under this Part is communicated to the Commission, the Commission must cause the Industrial Registrar to inform each of the following persons, by written notice, of the result:
(a) the persons who were eligible to vote in the ballot;
(b) the organisation (if any) to which those persons belonged, and the transitional employers by whom those persons were employed, when those persons became eligible to vote in the ballot.
55 Commission to have regard to result of ballot
In any conciliation or arbitration proceeding before the Commission in relation to a matter in relation to which the attitudes of persons have been expressed in a ballot conducted under an order under this Part, the Commission must have regard to the result of the ballot.
56 Offences in relation to ballots
For the purposes of this Part, section 317 applies to a ballot ordered under this Part in the same way as it applies to a ballot ordered under Division 4 of Part VC of this Act.
Part 5 -- Circumstances in which transitional awards cease to be binding
57 Ceasing to be bound by transitional award--making a State employment agreement
(1) If a transitional employer that is bound by a transitional award in respect of the employment of a transitional employee makes a State employment agreement with the transitional employee:
(a) the transitional employer ceases to be bound by that award in respect of that employment; and
(b) the transitional employer cannot subsequently be bound by the transitional award in respect of that employment.
Note: A State employment agreement may be made with one or more transitional employees employed by the transitional employer.
(2) To avoid doubt, the transitional award does not prevent the State employment agreement from coming into force and regulating the wages and conditions of employment of the transitional employee.
58 Ceasing to be bound by transitional award--inability to make a State employment agreement
(1) If a transitional employer has made genuine efforts to make a State employment agreement with one or more transitional employees employed by the transitional employer, but has been unable to do so, the transitional employer, or any of the transitional employees, may apply to the Commission for an order that the transitional award cease to bind the transitional employer in respect of the employment of the transitional employees.
(2) The Commission must make the order sought if it is satisfied that the transitional employer has made genuine efforts to make a State employment agreement with one or more of the transitional employees, but has been unable to do so.
(1) This clause applies if an industrial dispute has not been able to be resolved under this Schedule, despite genuine efforts having been made to do so.
(2) A party to the industrial dispute may apply to the Commission for an order that the transitional award to which the industrial dispute relates cease to bind a transitional employer affected by the industrial dispute in respect of the employment of transitional employees employed by the transitional employer.
(3) The Commission must make the order sought if it is satisfied that genuine efforts were made to resolve the industrial dispute.
60 Interaction between transitional awards, State laws and State awards
Subject to this clause, if a State law or a State award is inconsistent with, or deals with a matter dealt with in, a transitional award:
(a) the transitional award prevails; and
(b) the State law or State award, to the extent of the inconsistency or in relation to the matter dealt with, is invalid.
Part 6 -- Technical matters relating to transitional awards
61 Making and publication of orders
(1) An order made by the Commission for the purposes of this Schedule must:
(a) be reduced to writing; and
(b) be signed by:
(i) in the case of an order made by a Full Bench--at least one member of the Full Bench; and
(ii) in any other case--at least one member of the Commission; and
(c) show the day on which it is signed.
(2) If the Commission makes an order for the purposes of this Schedule, the Commission must promptly give to a Registrar:
(a) a copy of the order; and
(b) written reasons for the order; and
(c) a list specifying each party who appeared at the hearing of the proceeding concerned.
(3) A Registrar who receives a copy of an order under subclause (2) must promptly ensure that a copy of the order and the written reasons received by the Registrar in respect of the making of the order:
(a) are made available to each party shown on the list given to the Registrar under paragraph (2)(c); and
(b) are available for inspection at each registry; and
(c) are published as soon as practicable.
62 Requirement for transitional award - related orders
(1) The Commission must, when making a transitional award - related order, if it considers it appropriate, ensure that the order:
(a) is expressed in plain English and is easy to understand in structure and content; and
(b) does not contain terms that are obsolete or that need updating; and
(c) if appropriate, provides for the employment of workers with disabilities in general employment by including terms for the Supported Wage System; and
Note: The Supported Wage System was endorsed by the Commission in the Full Bench decision dated 10 October 1994 (Print L5723).
(d) includes wage arrangements for the full range of apprenticeships, traineeships and other training arrangements that are relevant to the work covered by the transitional award to which the order relates, including for part - time and school - based apprenticeships and traineeships.
(2) A transitional award - related order does not discriminate against a transitional employee for the purposes of paragraph 9(1)(e) merely because:
(a) it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or
(b) it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:
(i) on the basis of those teachings or beliefs; and
(ii) in good faith.
63 Registrar's powers if member ceases to be member after making an order
If:
(a) a member of the Commission ceases to be a member after an order has been made for the purposes of this Schedule by the Commission constituted by the member; and
(b) at that time, the order has not been reduced to writing or has been reduced to writing but has not yet been signed by the member;
a Registrar must reduce the order to writing, sign it and seal it with the seal of the Commission, and the order has effect as if it had been signed by the member of the Commission.
An order made by the Commission for the purposes of this Schedule must be framed so as best to express the decision of the Commission and to avoid unnecessary technicalities.
The date of an order made by the Commission for the purposes of this Schedule is the day when the order was signed under subclause 61(1).
(1) An order made by the Commission for the purposes of this Schedule must be expressed to come into force on a specified day.
(2) Unless the Commission is satisfied that there are exceptional circumstances, the day specified in the order must not be earlier than the date of the order.
(1) An order made by the Commission for the purposes of this Schedule must specify the period for which the order is to continue in force.
(2) In determining the period to be specified under subclause (1), the Commission must have regard to:
(a) the wishes of the parties to the industrial dispute concerned as to the period for which the order should continue in force; and
(b) the desirability of stability in workplace relations.
68 Continuation of transitional awards
(1) Subject to clause 31 and any order of the Commission, a transitional award and an order varying a transitional award continue in force until the end of the transitional period.
(2) A term of a transitional award about:
(a) long service leave with pay; or
(b) sick leave with pay;
is not taken to be ineffective merely because the term is so expressed as not to be capable of operating, or of operating fully, during the period for which the award is to continue in force.
Note: A term in a transitional award about long service leave is preserved under clause 22.
(3) If, under subclause (1), a transitional award has continued in force after the end of the period specified in the award as the period for which the award is to continue in force, an order made by the Commission for the settlement of a further industrial dispute between the parties may be expressed to operate from a day not earlier than the day on which the industrial dispute arose.
69 Persons bound by orders varying transitional awards
(1) Subject to subclause (2) and any order of the Commission, an order that determines an industrial dispute by varying a transitional award is binding on:
(a) all parties to the industrial dispute who appeared or were represented before the Commission; and
(b) all parties to the industrial dispute who were summoned or notified (either personally or as prescribed) to appear as parties to the industrial dispute (whether or not they appeared); and
(c) all parties who, having been notified (either personally or as prescribed) of the industrial dispute and of the fact that they were alleged to be parties to the industrial dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the industrial dispute; and
(d) any transitional employer bound by the award under Part 6A of this Schedule (transmission of business);
(e) all transitional employers and transitional employees who, on the reform commencement and on the date of the order varying the transitional award, were members of an organisation that is a party to the industrial dispute.
(2) An order that determines an industrial dispute by varying a transitional award must not bind any transitional employer, transitional employee or organisation that was not bound by the transitional award on the reform commencement.
Note 1: Clause 4 provides for who is bound by a transitional award on and from the reform commencement.
Note 2: The term transitional award includes the award as varied.
70 Transitional awards and transitional award - related orders of Commission are final
(1) Subject to this Act, a transitional award or a transitional award - related order (including a transitional award - related order made on appeal):
(a) is final and conclusive; and
(b) may not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus or injunction in any court on any account.
(2) A transitional award or transitional award - related order is not invalid because it was made by the Commission constituted otherwise than as provided by this Act.
71 Reprints of transitional awards as varied
A document purporting to be a copy of a reprint of a transitional award as varied, and purporting to have been printed by the Government Printer, is in all courts evidence of the transitional award as varied.
72 Expressions used in transitional awards
Unless the contrary intention appears in a transitional award, an expression used in the award has the same meaning as it has in an Act by virtue of the Acts Interpretation Act 1901 or as it has in this Act.
Part 6A -- Transmission of transitional awards
The object of this Part is to provide for the transfer of obligations under transitional awards when the whole, or a part, of a transitional employer's business is transmitted to another transitional employer.
(1) Division 2 describes the transmission of business situation this Part is designed to deal with. It identifies the old transitional employer , the new transitional employer , the business being transferred , the time of transmission and the transferring transitional employees .
(2) Division 3 deals with the transmission of certain transitional awards.
(3) Division 4 deals with notification requirements, the lodgment of notices with the Employment Advocate and the enforcement of the new transitional employer's obligations by pecuniary penalties.
(4) Division 5 allows regulations to be made to deal with other transmission of business issues in relation to transitional awards.
In this Part:
"business being transferred" has the meaning given by subclause 72D(2).
"Court" means the Federal Court of Australia or the Federal Magistrates Court.
"new transitional employer" has the meaning given by subclause 72D(1).
"old transitional employer" has the meaning given by subclause 72D(1).
"operational reasons" has the meaning given by subsection 170CE(5D).
"time of transmission" has the meaning given by subclause 72D(3).
"transferring transitional employee" has the meaning given by clauses 72E and 72F.
"transmission period" has the meaning given by subclause 72D(4).
Division 2 -- Application of Part
(1) This Part applies if a person (the new transitional employer ) becomes the successor, transmittee or assignee of the whole, or a part, of a business of another person (the old transitional employer ).
(2) The business, or the part of the business, to which the new transitional employer is successor, transmittee or assignee is the business being transferred for the purposes of this Part.
(3) The time at which the new transitional employer becomes the successor, transmittee or assignee of the business being transferred is the time of transmission for the purposes of this Part.
(4) The period of 12 months after the time of transmission is the transmission period for the purposes of this Part.
72E Transferring transitional employees
(1) A person is a transferring transitional employee for the purposes of this Part if:
(a) the person is employed by the old transitional employer immediately before the time of transmission; and
(b) the person:
(i) ceases to be employed by the old transitional employer; and
(ii) becomes employed by the new transitional employer in the business being transferred;
within 2 months after the time of transmission.
(2) A person is also a transferring transitional employee for the purposes of this Part if:
(a) the person is employed by the old transitional employer at any time within the period of 1 month before the time of transmission; and
(b) the person's employment with the old transitional employer is terminated by the old transitional employer before the time of transmission for genuine operational reasons or for reasons that include genuine operational reasons; and
(c) the person becomes employed by the new transitional employer in the business being transferred within 2 months after the time of transmission.
(3) In applying clause 72F and Division 3 in relation to a person who is a transferring transitional employee under subclause (2) of this clause, a reference in those provisions to a particular state of affairs existing immediately before the time of transmission is to be read as a reference to that state of affairs existing immediately before the person last ceased to be an employee of the old transitional employer.
72F Transferring transitional employees in relation to particular transitional award
(1) A transferring transitional employee is a transferring transitional employee in relation to a particular transitional award if:
(a) the transitional award applied to the transferring transitional employee's employment with the old transitional employer immediately before the time of transmission; and
(b) when the transferring transitional employee becomes employed by the new transitional employer, the nature of the transferring transitional employee's employment with the new transitional employer is such that the transitional award is capable of applying to employment of that nature.
(2) The transferring transitional employee ceases to be a transferring transitional employee in relation to the transitional award if:
(a) the transferring transitional employee ceases to be employed by the new transitional employer after the time of transmission; or
(b) the nature of the transferring transitional employee's employment with the new transitional employer changes so that the transitional award is no longer capable of applying to employment of that nature; or
(c) the transmission period ends.
Division 3 -- Transmission of transitional award
72G Transmission of transitional award
New transitional employer bound by transitional award
(1) If:
(a) the old transitional employer was, immediately before the time of transmission, bound by a transitional award that regulated the employment of employees of the old transitional employer; and
(b) there is at least one transferring transitional employee in relation to the transitional award; and
(c) but for this clause, the new transitional employer would not be bound by the transitional award in relation to the transferring transitional employees in relation to the transitional award; and
(d) the new transitional employer is a transitional employer at the time of transmission;
the new transitional employer is bound by the transitional award by force of this clause.
Note 1: Paragraph (c)--the transitional award might already bind the new transitional employer, for example, because the new transitional employer happens to be a respondent to the transitional award.
Note 2: The new transitional employer must notify transferring transitional employees and lodge a copy of a notice with the Employment Advocate (see clauses 72J and 72K).
Period for which new transitional employer remains bound
(2) The new transitional employer remains bound by the transitional award, by force of this clause, until whichever of the following first occurs:
(a) the transitional award is revoked;
(b) there cease to be any transferring transitional employees in relation to the transitional award;
(c) the new transitional employer ceases to be bound by the transitional award under Part 5;
(d) the transmission period ends;
(e) the transitional period ends.
New transitional employer bound only in relation to employment of transferring transitional employees
(3) The new transitional employer is bound by the transitional award, by force of this clause, only in relation to the employment of employees who are transferring transitional employees in relation to the transitional award.
Commission order
(4) Subclauses (1) and (2) have effect subject to any order of the Commission.
(5) To avoid doubt, the Commission cannot make an order under subclause (4) that would have the effect of extending the transmission period.
Old transitional employer's rights and obligations that arose before time of transmission not affected
(6) This clause does not affect the rights and obligations of the old transitional employer that arose before the time of transmission.
Transmitted award
(1) This clause applies if subclause 72G(1) applies to a transitional award (the transmitted award ).
Division 3 pre - reform certified agreement
(2) If:
(a) the new transitional employer is bound by a Division 3 pre - reform certified agreement (within the meaning of Schedule 14); and
(b) a transferring transitional employee in relation to the transmitted award was not bound by that certified agreement immediately before the time of transmission; and
(c) that certified agreement would, but for this subclause, apply to the transferring transitional employee's employment with the new transitional employer and would prevail over the transmitted award to the extent of any inconsistency with the transmitted award;
the transmitted award, to the extent to which it relates to the transferring transitional employee's employment with the new transitional employer, prevails over that certified agreement to the extent of any inconsistency with that certified agreement.
(3) Subclause (2) has effect despite section 170LY of the pre - reform Act (as applied by clause 2 of Schedule 14).
Division 4 -- Notice requirements and enforcement
72J Informing transferring transitional employees about transmitted award
(1) This clause applies if:
(a) a transitional employer is bound by a transitional award (the transmitted award ) in relation to a transferring transitional employee by force of clause 72G; and
(b) a person is a transferring transitional employee in relation to the transmitted award.
(2) Within 28 days after the transferring transitional employee starts being employed by the transitional employer, the transitional employer must take reasonable steps to give the transferring transitional employee a written notice that complies with subclause (3).
Note: This is a civil remedy provision, see clause 72M.
(3) The notice must:
(a) identify the transmitted award; and
(b) state that the transitional employer is bound by the transmitted award; and
(c) specify the date on which the transmission period for the transmitted award ends; and
(d) state that the transitional employer will remain bound by the transmitted award until the end of the transmission period unless the transmitted award is revoked, or otherwise ceases to be in operation, before the end of that period.
72K Lodging copy of notice with Employment Advocate
Only one transferring transitional employee
(1) If a transitional employer gives a notice under subclause 72J(2) to the only person who is a transferring transitional employee in relation to a transitional award, the transitional employer must lodge a copy of the notice with the Employment Advocate within 14 days after the notice is given to the transferring transitional employee. The copy must be lodged in accordance with subclause (4).
Note 1: This is a civil remedy provision, see clause 72M.
Note 2: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
Multiple transferring transitional employees and notices all given on the one day
(2) If:
(a) a transitional employer gives a number of notices under subclause 72J(2) to people who are transferring transitional employees in relation to a transitional award; and
(b) all of those notices are given on the one day;
the transitional employer must lodge a copy of one of those notices with the Employment Advocate within 14 days after that notice is given. The copy must be lodged in accordance with subclause (4).
Note 1: This is a civil remedy provision, see clause 72M.
Note 2: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
Multiple transferring transitional employees and notices given on different days
(3) If:
(a) a transitional employer gives a number of notices under subclause 72J(2) to people who are transferring transitional employees in relation to a transitional award; and
(b) the notices are given on different days;
the transitional employer must lodge a copy of the notice, or one of the notices that was given on the earliest of those days, with the Employment Advocate within 14 days after that notice is given. The copy must be lodged in accordance with subclause (4).
Note 1: This is a civil remedy provision, see clause 72M.
Note 2: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
Lodgment with Employment Advocate
(4) 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.
72L Employment Advocate must issue receipt for lodgment
(1) If a notice is lodged under clause 72K, the Employment Advocate must issue a receipt for the lodgment.
(2) The receipt must state that the notice was lodged under clause 72K on a particular day.
(3) The Employment Advocate must give a copy of the receipt to the person who lodged the notice under clause 72K.
(1) The following are civil remedy provisions for the purposes of this section:
(a) subclause 72J(2);
(b) subclauses 72K(1), (2) and (3).
Note: Division 4 of Part VIII contains other provisions relevant to civil remedies.
(2) The Court may order a person who has contravened a civil remedy provision to pay a pecuniary penalty.
(3) The penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in other cases.
(4) An application for an order under subclause (2) in relation to a transitional award may be made by:
(a) a transferring transitional employee; or
(b) an organisation of employees that is entitled, under its eligibility rules, to represent the industrial interests of a transferring transitional employee; or
(c) a workplace inspector.
The regulations may make provision in relation to the effects that the succession, transmission or assignment of a business, or a part of a business, have on the obligations of transitional employers, and the terms and conditions of transitional employees, under transitional awards.
Part 7 -- Matters relating to Victoria
Division 1 -- Matters referred by Victoria
In this Division:
"employee" has the same meaning as in Division 1 of Part XV of this Act.
"employer" has the same meaning as in Division 1 of Part XV of this Act.
"employment" has the same meaning as in Division 1 of Part XV of this Act.
"transitional employee" means an employee of a transitional employer.
"transitional employer" means an employer that:
(a) is an excluded employer (within the meaning of clause 2); and
(b) is bound by a transitional award.
"transitional Victorian reference award" means a transitional award that is a Victorian reference award.
"underlying award" , in relation to a common rule, means the award to which the common rule relates.
"Victorian public sector" has the same meaning as the expression public sector has in section 3 of the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria.
74 Division only has effect if supported by reference
(1) Either of the following:
(a) a clause of this Division;
(b) a clause of this Schedule (other than this Division), to the extent to which it relates to a Victorian reference award;
has effect only for so long, and in so far, as the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to the Parliament of the Commonwealth a matter or matters that result in the Parliament of the Commonwealth having sufficient legislative power for the clause so to have effect.
(2) Paragraph (1)(a) does not apply to a clause to the extent to which it relates to so much of the Australian Fair Pay and Conditions Standard as consists of the provisions of Division 6 of Part VA of this Act as they apply to an employee because of section 170KB.
Subdivision B -- Industrial disputes
(1) Without affecting its operation apart from this clause, this Schedule also has effect, subject to this clause, as if the definition of industrial dispute in clause 2 were replaced by the following:
"industrial dispute" means:
(a) an industrial dispute (including a threatened, impending or probable industrial dispute):
(i) within the limits of Victoria; and
(ii) that is about allowable transitional award matters pertaining to the relationship between transitional employers and transitional employees; or
(b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a).
(2) A law of Victoria prescribed for the purposes of this clause prevails to the extent of any inconsistency over a transitional Victorian reference award that regulates matters pertaining to the relationship between:
(a) employers; and
(b) employees in the Victorian public sector.
Subdivision C -- Allowable transitional award matters
76 Allowable transitional award matters
Subclause 17(1) has effect, in relation to a transitional Victorian reference award, as if:
(a) "annual leave and" were omitted from paragraph 17(1)(e); and
(b) paragraphs 17(1)(f) and (h) had not been enacted.
Subdivision D -- Preserved transitional award terms
77 Preserved transitional award terms
(1) Clause 22 has effect, in relation to a transitional Victorian reference award, as if the following paragraphs were added at the end of subclause 22(3):
(e) annual leave;
(f) personal/carer's leave;
(g) parental leave, including maternity and adoption leave.
(2) In this clause:
"personal/carer's leave" includes war service sick leave, infectious diseases sick leave and other like forms of sick leave.
(3) The regulations may provide that for the purposes of subclause (1):
(a) parental leave does not include one or both of the following:
(i) special maternity leave (within the meaning of section 94C);
(ii) paid leave under subparagraph 94F(2)(b)(i) or (ii); and
(b) personal/carer's leave does not include one or both of the following:
(i) compassionate leave (within the meaning of section 93Q (as that section applies to an employee in Victoria because of section 492));
(ii) unpaid carer's leave (within the meaning of section 93D (as that section applies to an employee in Victoria because of section 492)).
(4) Regulations under subclause (3) may be expressed to apply generally or in respect of employees engaged in specified types of employment, such as full - time employment, part - time employment, casual employment, regular part - time employment or shift work.
78 When preserved transitional award entitlements have effect
(1) This clause applies to an employee if:
(a) the employee's employment is regulated by a transitional Victorian reference award that includes a preserved transitional award term about a matter; and
(b) the employee has an entitlement (the preserved transitional award entitlement ) in relation to that matter under the preserved transitional award term.
(2) If:
(a) the preserved transitional award term is about a matter referred to in paragraph 22(3)(e), (f) or (g); and
(b) the employee's preserved transitional award entitlement in relation to the matter is more generous than the employee's entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard;
the employee's entitlement under the Australian Fair Pay and Conditions Standard is excluded, and the employee's preserved transitional award entitlement has effect in accordance with the preserved transitional award term. Otherwise, the employee's entitlement under the Australian Fair Pay and Conditions Standard has effect.
Note: See clause 79 for the meaning of more generous.
(3) If:
(a) the preserved transitional award term is about a matter referred to in paragraph 22(3)(e), (f) or (g); and
(b) the employee has no entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard;
the employee's preserved transitional award entitlement has effect in accordance with the preserved transitional award term.
(1) For the purposes of this Subdivision, whether an employee's entitlement under a preserved transitional award term in relation to a matter is more generous than the employee's entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard:
(a) is as specified in, or as worked out in accordance with a method specified in, regulations made under this paragraph; or
(b) to the extent that regulations made under paragraph (a) do not so specify--is to be ascertained in accordance with the ordinary meaning of the term more generous .
(2) If a matter to which an entitlement under a preserved transitional award term relates does not correspond directly to a matter to which the Australian Fair Pay and Conditions Standard relates, regulations made under paragraph (1)(a) may nevertheless specify that the matters correspond for the purposes of this Subdivision.
80 Modifications that may be prescribed--personal/carer's leave
(1) This clause applies to a transitional Victorian reference award.
(2) The regulations may provide that a preserved transitional award term about personal/carer's leave is to be treated, for the purposes of the application of this Schedule to the award, as a separate preserved transitional award term about separate matters, to the extent that the preserved transitional award term is about any of the following:
(a) war service sick leave;
(b) infectious diseases sick leave;
(c) any other like form of sick leave.
(3) If the regulations so provide, clauses 22, 78 and 79 have effect, for the purposes of the application of this Schedule to the award, in relation to each separate matter.
Note: There is no entitlement in relation to war service sick leave, infectious diseases sick leave or any other like form of sick leave under the Australian Fair Pay and Conditions Standard, so there is no corresponding matter for the purposes of subclause 78(3).
81 Modifications that may be prescribed--parental leave
(1) This clause applies to a transitional Victorian reference award.
(2) The regulations may provide that a preserved transitional award term about parental leave is to be treated, for the purposes of the application of this Schedule to the award, as being about separate matters to the extent that it is about paid and unpaid parental leave.
(3) If the regulations provide that a preserved transitional award term about parental leave is to be treated, for the purposes of the application of this Schedule to the award, as being about separate matters to the extent that it is about paid and unpaid parental leave:
(a) clauses 22, 78 and 79 have effect, for the purposes of the application of this Schedule to the award, in relation to each separate matter; and
(b) in accordance with section 94D, the entitlement that an employee would have to unpaid parental leave under the Australian Fair Pay and Conditions Standard is reduced by any amount of paid parental leave to which the employee is entitled under the preserved transitional award term.
Note 1: There is no entitlement in relation to paid parental leave under the Australian Fair Pay and Conditions Standard, so there is no corresponding matter for the purposes of subclause 78(3).
Note 2: Paragraph (b) does not have the effect of reducing entitlements. It simply ensures that the operation of section 94D is not affected by treating paid and unpaid parental leave separately under the regulations.
82 Common rules continue to have effect during the transitional period
(1) Despite the repeal of sections 141, 142 and 493A by the Workplace Relations Amendment (Work Choices) Act 2005 , if, immediately before the reform commencement, a common rule had effect because of repealed section 493A, the common rule continues to have effect, to the extent to which it regulates employers in respect of the employment of their employees, until:
(a) the revocation of the underlying award; or
(b) the revocation of the relevant declaration that was made under repealed subsection 141(1) (as that subsection had effect because of repealed section 493A); or
(c) the end of the transitional period;
whichever comes first, as if those repeals had not happened.
(2) For this purpose:
(a) the underlying award is taken to be the relevant transitional award, and
(b) the relevant declaration under repealed subsection 141(1) (as that subsection had effect because of repealed section 493A) is to be construed accordingly.
(3) Subclause (1) has effect subject to:
(a) clause 85; and
(b) subsection 45(7) (including that subsection as applied by subsection 109(4)).
(4) Paragraph 46(1)(d) applies to a declaration under repealed subsection 141(1) (as that subsection had effect because of repealed section 493A), to the extent to which the declaration relates to a common rule that continues to have effect because of this Subdivision, as if the declaration were a decision of the Commission made under this Schedule.
83 Certain declarations continue to have effect during the transitional period
(1) Despite the repeal of sections 142 and 493A by the Workplace Relations Amendment (Work Choices) Act 2005 , if, immediately before the reform commencement, a declaration had effect under repealed subsection 142(5) (as applied by repealed section 493A), the declaration continues to have effect, to the extent to which it relates to a common rule that continues to have effect because of this Subdivision, until:
(a) the revocation of the declaration; or
(b) the end of the transitional period;
whichever comes first, as if those repeals had not happened.
(2) Subclause (1) has effect subject to subsection 45(7) (including that subsection as applied by subsection 109(4)).
(3) Paragraph 46(1)(d) applies to a declaration under repealed subsection 142(5) (as that subsection had effect because of repealed section 493A), to the extent to which the declaration relates to a common rule that continues to have effect because of this Subdivision, as if the declaration were a decision of the Commission made under this Schedule.
84 Variation of common rules before the reform commencement
(1) Despite the repeal of sections 142 and 493A by the Workplace Relations Amendment (Work Choices) Act 2005 , if:
(a) before the reform commencement, the Commission varied a term of an award that was a common rule in Victoria for an industry; and
(b) before the reform commencement, a Registrar published a notice under repealed subsection 142(4) (as applied by repealed section 493A) inviting any organisation or person interested and wanting to be heard to lodge notice of objection to the variation binding the organisation or person; and
(c) either:
(i) the prescribed time (as defined by repealed subsection 142(8)) had not expired before the reform commencement; or
(ii) a notice of objection was lodged before the reform commencement, but the hearing of the objection had not been finally disposed of before the reform commencement;
then, to the extent to which the variation relates to a common rule that continues to have effect because of this Subdivision, repealed subsections 142(4) to (8) and repealed section 493A continue to apply, in relation to the variation, as if those repeals had not happened.
(2) Despite the repeal of sections 142 and 493A by the Workplace Relations Amendment (Work Choices) Act 2005 , if, after the reform commencement, the Commission makes a declaration under repealed subsection 142(5) (as it continues to apply because of subclause (1) of this clause), the declaration continues to have effect, until:
(a) the revocation of the declaration; or
(b) the end of the transitional period;
whichever comes first, as if those repeals had not happened.
(3) Paragraph 46(1)(d) applies to a declaration under repealed subsection 142(5) (as it continues to apply because of subclause (1) of this clause) as if the declaration were a decision of the Commission made under this Schedule.
85 Variation of common rules during the transitional period
(1) Subject to this clause, if, during the transitional period, the Commission varies a term of a transitional award that is the underlying award for a common rule in Victoria for an industry, the variation is, by force of this subclause, a common rule in Victoria for the industry, to the extent to which the variation regulates employers in respect of the employment of their employees, during the period:
(a) beginning on the date of effect of the variation; and
(b) ending:
(i) on the revocation of the underlying award; or
(ii) on the revocation of the variation; or
(iii) at the end of the transitional period;
whichever comes first.
(2) Before the Commission varies a term of a kind referred to in subclause (1), a Registrar must, as prescribed, give notice of the place where, and the time when, it is proposed to hear the matter involving the term.
(3) If the Commission varies a term of a kind referred to in subclause (1), a Registrar must immediately publish, as prescribed, a notice inviting any organisation or person interested and wanting to be heard to lodge notice of objection to the variation binding the organisation or person.
(4) If a notice of objection in relation to a variation is lodged within the prescribed time by an organisation or person under subclause (3), the Commission:
(a) must hear the objection; and
(b) may declare that the variation is not binding on the organisation or person.
(5) If the Commission makes a declaration under subclause (4), a Registrar must give notice of the declaration as prescribed.
(6) A variation that is a common rule under this clause:
(a) is not enforceable before the end of 28 days after the date of effect of the variation; and
(b) if a notice of objection in relation to the variation is lodged within the prescribed time by an organisation or person under subclause (3)--is not enforceable against the organisation or person before the hearing of the objection is finally disposed of.
(7) In this clause:
"the prescribed time" means the period, after the publication of the notice under subclause (3), prescribed by Rules of the Commission made under section 48.
86 Intervention by Minister of Victoria
The Commission must, on application, grant to a Minister of Victoria, on behalf of the Government of Victoria, leave to intervene in proceedings in which it is proposed to make a declaration under:
(a) subclause 85(4); or
(b) repealed subsection 142(5) (as it continues to apply because of clause 84).
87 Concurrent operation of laws of Victoria
(1) Despite any other provision of this Act, this Subdivision is not intended to exclude or limit the operation of a law of Victoria that is capable of operating concurrently with this Subdivision.
(2) In particular, a common rule as it has effect, or continues to have effect, because of this Subdivision is not intended to exclude or limit the operation of a law of Victoria that is capable of operating concurrently with the common rule.
88 Pre - commencement applications for review
(1) This clause applies if, before the reform commencement, an application (the review application ) had been made under subsection 109(1) (as applied by repealed section 142B) for review of:
(a) a declaration under repealed Division 5 of Part VI (as that provision had effect because of repealed subsection 493A(2)); or
(b) a decision not to make such a declaration.
(2) Despite the repeal of sections 142B and 493A by the Workplace Relations Amendment (Work Choices) Act 2005 , this Act continues to apply, in relation to:
(a) the review application; and
(b) any review made as a result of the review application;
as if those repeals had not happened.
89 Common rule taken to be award
(1) A common rule that has effect, or continues to have effect, because of this Subdivision is taken to be an award for the purposes of:
(a) sections 100B, 101B, 103R, 496 and 526; and
(b) clauses 5, 15 and 19 of Schedule 14.
(2) A common rule that has effect, or continues to have effect, because of this Subdivision is taken to be a transitional award for the purposes of clause 60.
90 Meaning of industrial action
A common rule that has effect, or continues to have effect, because of this Subdivision is taken to be a transitional award for the purposes of clause 3.
A common rule that has effect, or continues to have effect, because of this Subdivision is taken to be a transitional award for the purposes of:
(a) subclause 105(1); and
(b) the definitions of transitional employee and transitional employer in subclause 2(1), so far as those definitions apply to subclause 105(1) .
92 Application of provisions of Act relating to workplace inspectors
A common rule that has effect, or continues to have effect, because of this Subdivision is taken to be a transitional award for the purposes of clause 106.
93 Application of provisions of Act relating to compliance
A common rule that has effect, or continues to have effect, because of this Subdivision is taken to be a transitional award for the purposes of paragraph 107(a).
Subdivision F -- Transmission of business
Subclause 72J(3) has effect, in relation to a transitional Victorian reference award, as if the following paragraphs were added at the end:
(e) specify the kinds of instruments (if any) that can replace, or exclude the operation of, the transmitted award; and
(f) set out the source for the terms and conditions that the employer intends to apply to the matters that are dealt with by the transmitted award when the transmitted award ceases to bind the employer; and
(g) identify any collective agreement or award that binds:
(i) the employer; and
(ii) employees of the employer who are not transferring employees in relation to the transmitted award.
Subdivision G -- Modification of certain provisions of this Act
95 Modification of certain provisions of this Act
A transitional Victorian reference award is taken to be an award for the purposes of:
(a) sections 100B, 101B, 103R, 496 and 526; and
(b) clauses 5, 15 and 19 of Schedule 14.
Subdivision H -- Ceasing to be bound by transitional Victorian reference award
Clause 59 has effect, in relation to a transitional Victorian reference award, as if the reference in subclause 59(3) to must were read as a reference to may.
Subdivision A -- Allowable transitional award matters
96 Allowable transitional award matters
(1) This clause applies to a transitional award (other than a Victorian reference award) to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria.
(2) Subclause 17(1) has effect, in relation to the award, as if:
(a) "annual leave and" were omitted from paragraph 17(1)(e); and
(b) paragraphs 17(1)(f) and (h) had not been enacted.
Subdivision B -- Preserved transitional award terms
97 Preserved transitional award terms
(1) This clause applies to a transitional award (other than a Victorian reference award) to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria.
(2) Clause 22 has effect, in relation to the award, as if the following paragraphs were inserted before paragraph 22(3)(a):
(aa) annual leave;
(ab) personal/carer's leave;
(ac) parental leave, including maternity and adoption leave.
(3) In this clause:
"personal/carer's leave" includes war service sick leave, infectious diseases sick leave and other like forms of sick leave.
(4) The regulations may provide that for the purposes of subclause (2):
(a) parental leave does not include one or both of the following:
(i) special maternity leave (within the meaning of section 94C);
(ii) paid leave under subparagraph 94F(2)(b)(i) or (ii); and
(b) personal/carer's leave does not include one or both of the following:
(i) compassionate leave (within the meaning of section 93Q);
(ii) unpaid carer's leave (within the meaning of section 93D).
(5) Regulations under subclause (4) may be expressed to apply generally or in respect of employees engaged in specified types of employment, such as full - time employment, part - time employment, casual employment, regular part - time employment or shift work.
98 When preserved transitional award entitlements have effect
(1) This clause applies to an employee if:
(a) the employee's employment is regulated by a transitional award (other than a Victorian reference award) that includes a preserved transitional award term dealing with a matter; and
(b) the employee has an entitlement (the preserved transitional award entitlement ) in relation to that matter under the preserved transitional award term.
(2) If:
(a) the preserved transitional award term is about a matter referred to in paragraph 22(3)(aa), (ab) or (ac); and
(b) the employee's preserved transitional award entitlement in relation to the matter is more generous than the employee's entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard;
the employee's entitlement under the Australian Fair Pay and Conditions Standard is excluded, and the employee's preserved transitional award entitlement has effect in accordance with the preserved transitional award term. Otherwise, the employee's entitlement under the Australian Fair Pay and Conditions Standard has effect.
Note: See clause 99 for the meaning of more generous.
(3) If:
(a) the preserved transitional award term is about a matter referred to in paragraph 22(3)(aa), (ab) or (ac); and
(b) the employee has no entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard;
the employee's preserved transitional award entitlement has effect in accordance with the preserved transitional award term.
(1) For the purposes of this Subdivision, whether an employee's entitlement under a preserved transitional award term in relation to a matter is more generous than the employee's entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard:
(a) is as specified in, or as worked out in accordance with a method specified in, regulations made under this paragraph; or
(b) to the extent that regulations made under paragraph (a) do not so specify--is to be ascertained in accordance with the ordinary meaning of the term more generous .
(2) If a matter to which an entitlement under a preserved transitional award term relates does not correspond directly to a matter to which the Australian Fair Pay and Conditions Standard relates, regulations made under paragraph (1)(a) may nevertheless specify that the matters correspond for the purposes of this Subdivision.
100 Modifications that may be prescribed--personal/carer's leave
(1) This clause applies to a transitional award (other than a Victorian reference award) to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria.
(2) The regulations may provide that a preserved transitional award term about personal/carer's leave is to be treated, for the purposes of the application of this Schedule to the award, as a separate preserved transitional award term about separate matters, to the extent that the preserved transitional award term is about any of the following:
(a) war service sick leave;
(b) infectious diseases sick leave;
(c) any other like form of sick leave.
(3) If the regulations so provide, clauses 22, 98 and 99 have effect, for the purposes of the application of this Schedule to the award, in relation to each separate matter.
Note: There is no entitlement in relation to war service sick leave, infectious diseases sick leave or any other like form of sick leave under the Australian Fair Pay and Conditions Standard, so there is no corresponding matter for the purposes of subclause 98(3).
101 Modifications that may be prescribed--parental leave
(1) This clause applies to a transitional award (other than a Victorian reference award) to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria.
(2) The regulations may provide that a preserved transitional award term about parental leave is to be treated, for the purposes of the application of this Schedule to the award, as being about separate matters to the extent that it is about paid and unpaid parental leave.
(3) If the regulations provide that a preserved transitional award term about parental leave is to be treated, for the purposes of the application of this Schedule to the award, as being about separate matters to the extent that it is about paid and unpaid parental leave:
(a) clauses 22, 74 and 99 have effect for the purposes of the application of this Schedule to the award, in relation to each separate matter; and
(b) in accordance with section 94D, the entitlement that an employee would have to unpaid parental leave under the Australian Fair Pay and Conditions Standard is reduced by any amount of paid parental leave to which the employee is entitled under the preserved transitional award term.
Note 1: There is no entitlement in relation to paid parental leave under the Australian Fair Pay and Conditions Standard, so there is no corresponding matter for the purposes of subclause 98(3).
Note 2: Paragraph (b) does not have the effect of reducing entitlements. It simply ensures that the operation of section 94D is not affected by treating paid and unpaid parental leave separately under the regulations.
Subdivision BA -- Transmission of business
(1) This clause applies to a transitional award (other than a Victorian reference award) to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria.
(2) Subclause 72J(3) has effect, in relation to the award, as if the following paragraphs were added at the end:
(e) specify the kinds of instruments (if any) that can replace, or exclude the operation of, the transmitted award; and
(f) set out the source for the terms and conditions that the employer intends to apply to the matters that are dealt with by the transmitted award when the transmitted award ceases to bind the employer; and
(g) identify any collective agreement or award that binds:
(i) the employer; and
(ii) employees of the employer who are not transferring employees in relation to the transmitted award.
Subdivision C -- Modification of certain provisions of this Act
102 Modification of certain provisions of this Act
A transitional award (other than a Victorian reference award), to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria, is taken to be an award for the purposes of:
(a) sections 100B, 101B, 103R, 496 and 526; and
(b) clauses 5, 15 and 19 of Schedule 14.
Subdivision D -- Ceasing to be bound by transitional award
(1) This clause applies to a transitional award (other than a Victorian reference award) to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria.
(2) Clause 59 has effect, in relation to the award, as if the reference in subclause 59(3) to must were read as a reference to may.
102 B Continuation of hearing by Commission
For the purposes of this Schedule, subsection 34(4) applies as if the reference to any award were a reference to any transitional award.
103 Revocation and suspension of transitional awards
For the purposes of this Schedule, section 44Q applies as if:
(a) a reference to an award were a reference to a transitional award; and
(b) a reference to an order were a reference to an order made fo r the purposes of this Schedule; and
(c) "award or" were omitted from paragraph (4)(c).
For the purposes of this Schedule, section 45 applies, to the extent possible, as if:
(a) paragraph (1)(a) of that section as in force immediately before the reform commencement had not been repealed by the Workplace Relations Amendment (Work Choices) Act 2005 ; and
(b) the reference in paragraph (1)(b) to an award or order were a reference to an order for the purposes of this Schedule; and
(c) the reference in paragraph (1)(c) to an award or order were a reference to an order for the purposes of this Schedule; and
(d) the reference in paragraph (1)(d) to paragraph 44I(1)(e) were a reference to paragraph 46(1)(e) of this Schedule; and
(e) the reference in paragraph (1)(ed) to an award were a reference to a transitional award; and
(f) the reference in paragraph (3)(a) to the award or order were a reference to the order made for the purposes of this Schedule; and
(g) the reference in paragraph (3)(bb) to the award were a reference to the transitional award; and
(h) "award," were omitted from paragraph (7)(b); and
(i) "award or" were omitted from paragraph (7)(d); and
(j) the reference in paragraph (7)(d) to paragraph 44I(1)(e) were a reference to paragraph 46(1)(e) of this Schedule; and
(k) subsection (9) of that section as in force immediately before the reform commencement had not been repealed by the Workplace Relations Amendment (Work Choices) Act 2005 .
105 Application of provisions of Act relating to right of entry
For the purposes of this Schedule, Part IX (Right of entry) applies, to the extent possible, as if:
(a) a reference to an award were a reference to a transitional award; and
(b) a reference to an employee were a reference to a transitional employee; and
(c) a reference to an employer were a reference to a transitional employer; and
(d) a reference to an affected employee were a reference to an affected transitional employee; and
(e) a reference to an affected employer were a reference to an affected transitional employer; and
(f) Division 5 of that Part were omitted and any references to a provision in that Division were omitted.
106 Application of provisions of Act relating to workplace inspectors
For the purposes of this Schedule, Part V (Workplace inspectors) applies, to the extent possible, as if a reference to an award were a reference to a transitional award.
107 Application of provisions of Act relating to compliance
For the purposes of this Schedule, Part VIII (Compliance) applies, to the extent possible, as if:
(a) a reference to an award were a reference to a transitional award; and
(b) a reference to an employee were a reference to a transitional employee; and
(c) a reference to an employer were a reference to a transitional employer; and
(d) a reference to employment were a reference to employment within the meaning of this Schedule; and
(e) paragraph (da) of table item 3 of subsection 177AA(1) were replaced by the following paragraph:
(da) if the term is an outworker term (within the meaning of subclause 4(5) of Schedule 13)--a person, or an entity referred to in paragraph 4(2)(e) of that Schedule, that is bound by the transitional award;
107A Application of provisions of Act relating to freedom of association
For the purposes of this Schedule, Part XA (Freedom of association) applies, to the extent possible, as if:
(a) a reference to an award were a reference to a transitional award; and
(b) a reference to an employee were a reference to a transitional employee; and
(c) a reference to an employer were a reference to a transitional employer; and
(d) section 241 had not been enacted; and
(e) the following section were inserted after section 244:
This Part applies to conduct carried out with a purpose or intent relating to a person's participation or non - participation in industrial action within the meaning of clause 3 of Schedule 13.
107B Contracts entered into by agents of transitional employees
For the purposes of this Schedule, section 338 applies, to the extent possible, as if:
(a) a reference to an employee were a reference to a transitional employee; and
(b) a reference to an employer were a reference to a transitional employer; and
(c) a reference to an award were a reference to a transitional award.
107C Records relating to transitional employees
For the purposes of this Schedule, section 353A applies, to the extent possible, as if:
(a) a reference to an employee were a reference to a transitional employee; and
(b) a reference to an employer were a reference to a transitional employer; and
(c) a reference to employment were a reference to employment within the meaning of this Schedule.
107D Interpretation of transitional awards
For the purposes of this Schedule, section 413 applies as if a reference to an award were a reference to a transitional award.
108 Application of other Parts of Act
(1) The regulations may make provision dealing with how this Act applies in relation to matters or persons covered by this Schedule.
(2) Without limiting the generality of subclause (1), regulations for the purposes of that subclause may provide that this Act applies with specified modifications.
(3) In this clause:
"modifications" includes additions, omissions and substitutions.
360 Schedule 14
Repeal the Schedule, substitute: