Commonwealth Consolidated Acts Commonwealth Consolidated Acts
1 After Part I
Insert:
Part IA -- Australian Fair Pay Commission
In this Part:
"AFPC" means the Australian Fair Pay Commission established by section 7G.
"AFPC Chair" means the AFPC Chair appointed under section 7P.
"AFPC Commissioner" means an AFPC Commissioner appointed under section 7Y.
"AFPC Secretariat" means the AFPC Secretariat established under section 7ZG.
"Director of the Secretariat" means the Director of the Secretariat appointed under section 7ZK.
"wage review" means a review conducted by the AFPC to determine whether it should exercise any of its wage - setting powers.
"wage-setting decision" means a decision made by the AFPC in the exercise of its wage - setting powers.
"wage-setting function" has the meaning given by subsection 7I(1).
"wage-setting powers" means the powers of the AFPC under Division 2 of Part VA.
Division 2 -- Australian Fair Pay Commission
Subdivision A -- Establishment and functions
(1) The Australian Fair Pay Commission is established by this section.
(2) The AFPC is to consist of:
(a) the AFPC Chair; and
(b) 4 AFPC Commissioners.
The functions of the AFPC are as follows:
(a) its wage - setting function as set out in subsection 7I(1);
(b) any other functions conferred on the AFPC under this Act or any other Act;
(c) any other functions conferred on the AFPC by regulations made under this Act or any other Act;
(d) to undertake activities to promote public understanding of matters relevant to its wage - setting and other functions.
Subdivision B -- AFPC's wage - setting function
7I AFPC's wage - setting function
The AFPC's wage - setting function
(1) The AFPC's wage - setting function is to:
(a) conduct wage reviews; and
(b) exercise its wage - setting powers as necessary depending on the outcomes of wage reviews.
Note: The main wage - setting powers of the AFPC cover the following matters (within the meaning of Division 2 of Part VA):
(a) adjusting the standard FMW (short for Federal Minimum Wage);
(b) determining or adjusting special FMWs for junior employees, employees with disabilities or employees to whom training arrangements apply;
(c) determining or adjusting basic periodic rates of pay and basic piece rates of pay payable to employees or employees of particular classifications;
(d) determining or adjusting casual loadings.
(2) During the period (the interim period ) from the commencement of this Part to the commencement of Division 2 of Part VA, the AFPC has the function of gathering information (including by undertaking or commissioning research, or consulting with any person or body) for the purpose of assisting it to perform its wage - setting function after that Division has commenced. When performing its wage - setting function, the AFPC may have regard to any information so gathered during the interim period.
7J AFPC's wage - setting parameters
The objective of the AFPC in performing its wage - setting function is to promote the economic prosperity of the people of Australia having regard to the following:
(a) the capacity for the unemployed and low paid to obtain and remain in employment;
(b) employment and competitiveness across the economy;
(c) providing a safety net for the low paid;
(d) providing minimum wages for junior employees, employees to whom training arrangements apply and employees with disabilities that ensure those employees are competitive in the labour market.
7K Wage reviews and wage - setting decisions
(1) The AFPC may determine the following:
(a) the timing and frequency of wage reviews;
(b) the scope of particular wage reviews;
(c) the manner in which wage reviews are to be conducted;
(d) when wage - setting decisions are to come into effect.
(2) For the purposes of performing its wage - setting function, the AFPC may inform itself in any way it thinks appropriate, including by:
(a) undertaking or commissioning research; or
(b) consulting with any other person, body or organisation; or
(c) monitoring and evaluating the impact of its wage - setting decisions.
(3) Subsections (1) and (2) have effect subject to this Act and any regulations made under this Act.
(4) The AFPC's wage - setting decisions must:
(a) be in writing; and
(b) be expressed as decisions of the AFPC as a body; and
(c) include reasons for the decisions, expressed as reasons of the AFPC as a body.
A wage - setting decision is not a legislative instrument.
7L Constitution of the AFPC for wage - setting powers
(1) For the purposes of exercising its wage - setting powers, the AFPC must be constituted by:
(a) the AFPC Chair; and
(b) the 4 AFPC Commissioners.
(2) However, if the AFPC Chair considers it necessary in circumstances where AFPC Commissioners are unavailable, the AFPC Chair may determine that, for the purposes of exercising its wage - setting powers in those circumstances, the AFPC is to be constituted by:
(a) the AFPC Chair; and
(b) no fewer than 2 AFPC Commissioners.
7M Publishing wage - setting decisions etc.
(1) The AFPC must publish its wage - setting decisions.
(2) The AFPC may, as it thinks appropriate, publish other information about wages or its wage - setting function.
(3) Publishing under subsection (1) or (2) may be done in any way the AFPC thinks appropriate.
Subdivision C -- Operation of the AFPC
7N AFPC to determine its own procedures
(1) The AFPC may determine the procedures it will use in performing its functions.
(2) Subsection (1) has effect subject to Subdivision B and any regulations made under subsection (3).
(3) The regulations may prescribe procedures to be used by the AFPC for all or for specified purposes.
The AFPC must, as soon as practicable after the end of each financial year, give to the Minister a report on the operation of the AFPC for presentation to the Parliament.
(1) The AFPC Chair is to be appointed by the Governor - General by written instrument.
(2) The AFPC Chair may be appointed on a full - time or part - time basis and holds office for the period specified in his or her instrument of appointment. The period must not exceed 5 years.
(3) To be appointed as AFPC Chair, a person must have a high level of skills and experience in business or economics.
(1) The AFPC Chair is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the AFPC Chair is to be paid the remuneration that is prescribed.
(2) The AFPC Chair is to be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973 .
(1) If the AFPC Chair is appointed on a full - time basis:
(a) the AFPC Chair has the recreation leave entitlements that are determined by the Remuneration Tribunal; and
(b) the Minister may grant the AFPC Chair leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
(2) If the AFPC Chair is appointed on a part - time basis, the Minister may grant leave of absence to the AFPC Chair on the terms and conditions that the Minister determines.
7S Engaging in other paid employment
If the AFPC Chair is appointed on a full - time basis, the AFPC Chair must not engage in paid employment outside the duties of his or her office without the Minister's approval.
The AFPC Chair must give written notice to the Minister of all interests (financial or otherwise) that the AFPC Chair has or acquires and that could conflict with the proper performance of his or her duties.
(1) The AFPC Chair may resign his or her appointment by giving the Governor - General a written resignation.
(2) The resignation takes effect on the day it is received by the Governor - General or, if a later day is specified in the resignation, on that later day.
(1) The Governor - General may terminate the appointment of the AFPC Chair if:
(a) the AFPC Chair:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the AFPC Chair fails, without reasonable excuse, to comply with section 7T; or
(c) the AFPC Chair has or acquires interests (including by being an employer or employee) that the Minister considers conflict unacceptably with the proper performance of the AFPC Chair's duties; or
(d) if the AFPC Chair is appointed on a full - time basis:
(i) the AFPC Chair engages, except with the Minister's approval, in paid employment outside the duties of his or her office; or
(ii) the AFPC Chair is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(e) if the AFPC Chair is appointed on a part - time basis--the AFPC Chair is absent, except on leave of absence, to an extent that the Minister considers excessive.
(2) Subject to subsections (3), (4) and (5), the Governor - General may terminate the appointment of the AFPC Chair for misbehaviour or physical or mental incapacity.
(3) If the AFPC Chair:
(a) is an eligible employee for the purposes of the Superannuation Act 1976 ; and
(b) has not reached his or her maximum retiring age within the meaning of that Act;
his or her appointment cannot be terminated for physical or mental incapacity unless the CSS Board has given a certificate under section 54C of that Act.
(4) If the AFPC Chair:
(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990 ; and
(b) is under 60 years of age;
his or her appointment cannot be terminated for physical or mental incapacity unless the PSS Board has given a certificate under section 13 of that Act.
(5) If the AFPC Chair:
(a) is an ordinary employer - sponsored member of PSSAP, within the meaning of the Superannuation Act 2005 ; and
(b) is under 60 years of age;
his or her appointment cannot be terminated on the ground of physical or mental incapacity unless the Board (within the meaning of that Act) has given an approval and certificate under section 43 of that Act.
The AFPC Chair holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
(1) The Minister may appoint a person who meets the requirements set out in subsection 7P(3) to act as the AFPC Chair:
(a) during a vacancy in the office of the AFPC Chair (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the AFPC Chair is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
Subdivision E -- AFPC Commissioners
(1) An AFPC Commissioner is to be appointed by the Governor - General by written instrument.
(2) An AFPC Commissioner holds office on a part - time basis for the period specified in his or her instrument of appointment. The period must not exceed 4 years.
(3) To be appointed as an AFPC Commissioner, a person must have experience in one or more of the following areas:
(a) business;
(b) economics;
(c) community organisations;
(d) workplace relations.
(1) An AFPC Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, an AFPC Commissioner is to be paid the remuneration that is prescribed.
(2) An AFPC Commissioner is to be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973 .
The AFPC Chair may grant leave of absence to an AFPC Commissioner on the terms and conditions that the AFPC Chair determines.
An AFPC Commissioner must give written notice to the Minister of all interests (financial or otherwise) that the AFPC Commissioner has or acquires and that could conflict with the proper performance of his or her duties.
(1) An AFPC Commissioner may resign his or her appointment by giving the Governor - General a written resignation.
(2) The resignation takes effect on the day it is received by the Governor - General or, if a later day is specified in the resignation, on that later day.
7ZD Termination of appointment
(1) The Governor - General may terminate the appointment of an AFPC Commissioner if:
(a) the AFPC Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the AFPC Commissioner fails, without reasonable excuse, to comply with section 7ZB; or
(c) the AFPC Commissioner has or acquires interests (including by being an employer or employee) that the Minister considers conflict unacceptably with the proper performance of the AFPC Commissioner's duties; or
(d) the AFPC Commissioner is absent, except on leave of absence, to an extent that the Minister considers excessive.
(2) Subject to subsections (3), (4) and (5), the Governor - General may terminate the appointment of an AFPC Commissioner for misbehaviour or physical or mental incapacity.
(3) If an AFPC Commissioner:
(a) is an eligible employee for the purposes of the Superannuation Act 1976 ; and
(b) has not reached his or her maximum retiring age within the meaning of that Act;
his or her appointment cannot be terminated for physical or mental incapacity unless the CSS Board has given a certificate under section 54C of that Act.
(4) If an AFPC Commissioner:
(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990 ; and
(b) is under 60 years of age;
his or her appointment cannot be terminated for physical or mental incapacity unless the PSS Board has given a certificate under section 13 of that Act.
(5) If an AFPC Commissioner:
(a) is an ordinary employer - sponsored member of PSSAP, within the meaning of the Superannuation Act 2005 ; and
(b) is under 60 years of age;
his or her appointment cannot be terminated on the ground of physical or mental incapacity unless the Board (within the meaning of that Act) has given an approval and certificate under section 43 of that Act.
7ZE Other terms and conditions
An AFPC Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
(1) The Minister may appoint a person who meets the requirement set out in subsection 7Y(3) to act as an AFPC Commissioner:
(a) during a vacancy in the office of an AFPC Commissioner (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when an AFPC Commissioner is acting as AFPC Chair, is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
Division 3 -- AFPC Secretariat
Subdivision A -- Establishment and function
(1) The AFPC Secretariat is established by this section.
(2) The AFPC Secretariat is to consist of:
(a) the Director of the Secretariat; and
(b) the staff of the Secretariat.
The function of the AFPC Secretariat is to assist the AFPC in the performance of the AFPC's functions.
Subdivision B -- Operation of the AFPC Secretariat
7ZI AFPC Chair may give directions
(1) The AFPC Chair may give directions to the Director of the Secretariat about the performance of the function of the AFPC Secretariat.
(2) The Director of the Secretariat must ensure that a direction given under subsection (1) is complied with.
(3) To avoid doubt, the AFPC Chair must not give directions under subsection (1) in relation to the performance of functions, or exercise of powers, under the Financial Management and Accountability Act 1997 or the Public Service Act 1999 .
The Director of the Secretariat must, as soon as practicable after the end of each financial year, give to the Minister a report on the operation of the AFPC Secretariat for presentation to the Parliament.
Subdivision C -- The Director of the Secretariat
(1) The Director of the Secretariat is to be appointed by the Minister by written instrument.
(2) The Director of the Secretariat holds office on a full - time basis for the period specified in his or her instrument of appointment. The period must not exceed 5 years.
(1) The Director of the Secretariat is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Director of the Secretariat is to be paid the remuneration that is prescribed.
(2) The Director of the Secretariat is to be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973 .
(1) The Director of the Secretariat has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Director of the Secretariat leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
7ZN Engaging in other paid employment
The Director of the Secretariat must not engage in paid employment outside the duties of his or her office without the Minister's approval.
The Director of the Secretariat must give written notice to the Minister of all interests (financial or otherwise) that the Director of the Secretariat has or acquires and that could conflict with the proper performance of his or her duties.
(1) The Director of the Secretariat may resign his or her appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
7ZQ Termination of appointment
(1) The Minister may terminate the appointment of the Director of the Secretariat if:
(a) the Director of the Secretariat:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Director of the Secretariat fails, without reasonable excuse, to comply with section 7ZO; or
(c) the Director of the Secretariat has or acquires interests that the Minister considers conflict unacceptably with the proper performance of the Director of the Secretariat's duties; or
(d) the Director of the Secretariat engages, except with the Minister's approval, in paid employment outside the duties of his or her office; or
(e) the Director of the Secretariat is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.
(2) The Minister must terminate the appointment of the Director of the Secretariat if the Minister is of the opinion that the performance of the Director of the Secretariat has been unsatisfactory for a significant period of time.
(3) Subject to subsections (4), (5) and (6), the Minister may terminate the appointment of the Director of the Secretariat for misbehaviour or physical or mental incapacity.
(4) If the Director of the Secretariat:
(a) is an eligible employee for the purposes of the Superannuation Act 1976 ; and
(b) has not reached his or her maximum retiring age within the meaning of that Act;
his or her appointment cannot be terminated for physical or mental incapacity unless the CSS Board has given a certificate under section 54C of that Act.
(5) If the Director of the Secretariat:
(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990 ; and
(b) is under 60 years of age;
his or her appointment cannot be terminated for physical or mental incapacity unless the PSS Board has given a certificate under section 13 of that Act.
(6) If the Director of the Secretariat:
(a) is an ordinary employer - sponsored member of PSSAP, within the meaning of the Superannuation Act 2005 ; and
(b) is under 60 years of age;
his or her appointment cannot be terminated on the ground of physical or mental incapacity unless the Board (within the meaning of that Act) has given an approval and certificate under section 43 of that Act.
7ZR Other terms and conditions
The Director of the Secretariat holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
7ZS Acting Director of the Secretariat
(1) The Minister may appoint a person to act as the Director of the Secretariat:
(a) during a vacancy in the office of the Director of the Secretariat (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Director of the Secretariat is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
Subdivision D -- Staff and consultants
(1) The staff of the AFPC Secretariat are to be persons engaged under the Public Service Act 1999 .
(2) For the purposes of the Public Service Act 1999 :
(a) the Director of the Secretariat and the staff of the AFPC Secretariat together constitute a Statutory Agency; and
(b) the Director of the Secretariat is the Head of that Statutory Agency.
The Director of the Secretariat may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants to the AFPC or the AFPC Secretariat. The terms and conditions of the engagement of a person are those determined by the Director of the Secretariat in writing.
Financial Management and Accountability Regulations 1997
2 Part 1 of Schedule 1 (after table item 110)
Insert:
110A | Australian Fair Pay Commission Secretariat (the AFPC Secretariat ), comprising: (a) the Director of the AFPC Secretariat; and (b) the staff of the AFPC Secretariat; and (c) consultants engaged by the Director of the AFPC Secretariat under section 7ZU of the Workplace Relations Act 1996 See Note B | Director |