Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Regulations for transitional etc. provisions and consequential amendments
1 Regulations may deal with transitional etc. matters
(1) The Governor - General may make regulations dealing with matters of a transitional, saving or application nature relating to amendments made by this Act.
(2) Despite subsection 12(2) of the Legislative Instruments Act 2003 , regulations made under this item may be expressed to take effect from a date before the regulations are registered under that Act.
(3) In this item:
amendments made by this Act includes amendments made by regulations under item 2.
2 Regulations may make consequential amendments of Acts
(1) The Governor - General may make regulations amending Acts (including the Workplace Relations Act 1996 ), being amendments that are consequential on, or that otherwise relate to, amendments made by this Act.
(2) Despite subsection 12(2) of the Legislative Instruments Act 2003 , regulations made under this item may be expressed to take effect from a date before the regulations are registered under that Act.
(3) For the purposes of the Amendments Incorporation Act 1905 , amendments made by regulations for the purposes of this item are to be treated as if they had been made by an Act.
Note: This subitem ensures that the amendments can be incorporated into a reprint of the Act.
Part 2 -- Transitional, application and saving provisions
Division 1--Definitions used in this Part
3 Definitions
In this Part:
amended Act means the Workplace Relations Act 1996 as amended by this Act.
reform commencement has the meaning given by subsection 4(1) of the amended Act.
4 Operation of awards in force before commencement
(1) In this item:
award means an award within the meaning of subsection 4(1) of the Workplace Relations Act 1996 as in force immediately before the reform commencement.
eligible entity has the same meaning as in Division 6A of Part VI of the amended Act.
employee has the meaning given by subsection 4AA(1) of the amended Act.
employer has the meaning given by subsection 4AB(1) of the amended Act.
outworker term has the same meaning as in Division 6A of Part VI of the amended Act.
(2) This item applies to an award (the original award ) in force immediately before the reform commencement.
(3) The original award is taken to be replaced by an instrument (the pre - reform award ) in the same terms as the original award that, on and from the reform commencement, has effect under the Workplace Relations Act 1996 and binds the following:
(a) each employer that was bound immediately before the reform commencement by the original award;
(b) each organisation that was bound immediately before the reform commencement by the original award;
(c) each employee of an employer referred to in paragraph (a), in relation to the employee's employment by the employer , to the extent that the original award regulates work performed by the employee ;
(d) each eligible entity that was bound immediately before the reform commencement by the original award, but only in relation to outworker terms.
(4) To avoid doubt, the pre - reform award binds an employer or eligible entity that was bound by the original award immediately before the reform commencement, whether the employer or eligible 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) or (e) of the Workplace Relations Act 1996 , as in force immediately before the reform commencement.
(5) To avoid doubt, if the original award bound an employer , an eligible entity or an organisation as a common rule under paragraph 149(1)(e), the pre - reform award is, to the extent that the pre - reform award binds that employer , eligible entity or organisation, subject to any conditions, exceptions or limitations to which the original award was subject because of the operation of section 141 of the Workplace Relations Act 1996 as in force immediately before the reform commencement.
5 Transitional provision for redundancy pay--repeal of paragraph 89A(2)(m)
The repeal of paragraph 89A(2)(m) (redundancy pay) of the Workplace Relations Act 1996 , as in force immediately before the reform commencement, does not affect any entitlement to a payment that had arisen before that day.
5A Saving provision relating to awards and orders made before 26 March 2004
If:
(a) before the start of 26 March 2004, a term of an award or order had the effect of requiring an employer of fewer than 15 employees to pay redundancy pay (within the meaning of paragraph 513(4)(b) of the amended Act); and
(b) that term of the award or order continued in effect until immediately before the reform commencement; and
(c) immediately after the reform commencement, that term of the award or order:
(i) became a term of a pre - reform award because of the operation of item 4 of this Schedule; or
(ii) continued in operation as a term of a transitional award because of the operation of clause 4 of Schedule 13 to the amended Act;
section 116L of the amended Act, or clause 27 of Schedule 13 to the amended Act, as the case requires, does not affect the operation of that term of the award or order and the term continues in effect as a term of the pre - reform award or the transitional award , to the extent that the term requires the payment of redundancy pay within the meaning of paragraph 513(4)(b) of the amended Act .
6 Terms of awards that cease to have effect
To avoid doubt, the following provisions do not affect any rights accrued or liabilities incurred under an award before the reform commencement:
(a) section 116L of the amended Act;
(b) clause 27 of Schedule 13 to the amended Act.
Division 3--Termination of employment
7 Application to terminations that occur after the reform commencement
(1) The amendments made by the items of Schedule 1 referred to in subitem (2) apply in relation to terminations of employment that occur after the reform commencement (whether the employment commenced before or after that commencement).
(2) The items of Schedule 1 are as follows:
(a) item 81;
(b) items 84 to 86;
(c) items 88 to 92;
(d) items 94 to 98;
(e) items 106 to 110;
(f) items 112 to 118;
(g) item 122;
(h) items 124 and 125;
(i) item 127;
(j) items 129 and 130;
(k) items 132 to 134;
(l) items 136 to 138;
(m) item 140;
(n) items 142 to 144;
(o) items 150 to 153;
(p) item 159;
(q) item 163.
8 Application of item 111
The amendment of the Workplace Relations Act 1996 made by item 111 of Schedule 1 applies to an application under section 170CE of that Act that relates to employment commenced after the reform commencement.
9 Application of items 145 to 149
(1) The amendments of the Workplace Relations Act 1996 made by items 145 to 149 of Schedule 1 apply in relation to an application for an order under section 170GA of that Act that is made on or after the reform commencement.
(2) Division 2 of Part VI of the Workplace Relations Act 1996 , as in force immediately before the reform commencement, continues to apply, as provided by section 170GD of that Act, as in force immediately before the reform commencement, to an application for an order under section 170GA of that Act that was made, but not determined, before the reform commencement.
10 Transitional provision for termination of employment
(1) Paragraph (a) of the definition of daily hire employee in subsection 170CD(1) of the Workplace Relations Act 1996 has effect, on and after the reform commencement, as if a reference in that paragraph to an award included a reference to the following:
(a) a pre - reform certified agreement;
(b) a notional agreement preserving State awards;
(c) a preserved State agreement;
(d) a transitional award;
(e) an old IR agreement;
(f) a pre - reform AWA;
(g) a common rule continued in effect by clause 82 of Schedule 13.
(2) Subsection 170CD(3) and section 170JG of the Workplace Relations Act 1996 have effect, on and after the reform commencement, as if a reference in those provisions to an award included a reference to the following:
(a) a pre - reform certified agreement;
(b) a notional agreement preserving State awards;
(c) a preserved State agreement;
(d) a transitional award;
(e) an old IR agreement;
(f) a pre - reform AWA;
(g) a common rule continued in effect by clause 82 of Schedule 13.
(3) In this item:
notional agreement preserving State awards has the meaning given by Schedule 15 to the amended Act.
old IR agreement has the meaning given by Schedule 14 to the amended Act.
pre - reform AWA means an AWA that:
(a) was made at any time before the reform commencement; and
(b) was approved under Part VID of the Workplace Relations Act 1996 as in force at any time before that commencement; and
(c) was in operation immediately before that commencement.
pre - reform certified agreement has the meaning given by Schedule 14 to the amended Act.
preserved State agreement has the meaning given by Schedule 15 to the amended Act.
transitional award has the meaning given by Schedule 13 to the amended Act.
11 Investigations started by authorised officers
An investigation started but not completed by an authorised officer before the reform commencement for the compliance purposes referred to in section 83BH of the Workplace Relations Act 1996 (as in force before the reform commencement) may be completed after the reform commencement by a workplace inspector.
12 Application of section 83BS to pre - reform AWAs
Section 83BS of the Workplace Relations Act 1996 (as in force after the reform commencement) applies to the identification of a person, after the reform commencement, as being, or as having been, a party to a pre - reform AWA in the same way as it applies to the identification of a person.
13 Saving of existing inspectors' appointments
(1) If an appointment of a person as an inspector under subsection 84(2) of the Workplace Relations Act 1996 was in force immediately before the reform commencement, the appointment continues in force for its unexpired period, despite the repeal and substitution of subsection 84(2) of that Act, as if the person had been appointed as a workplace inspector under subsection 84(2) of the amended Act.
(2) Subitem (1) does not prevent the Minister from revoking the appointment.
14 Repeal of Part VA
(1) In this item:
BCII Act means the Building and Construction Industry Improvement Act 2005 .
(2) Division 1 of Part 2 of Chapter 7 of the BCII Act has effect as if information given to, a document produced to, or answers to questions given to, the Secretary or an assistant before the reform commencement under section 88AA of the Workplace Relations Act 1996 had been given or produced to the ABC Commissioner under section 52 of the BCII Act.
(3) The information, document or answers may be used for the purposes of proceedings under the BCII Act.
(4) Despite the repeal of Part VA of the Workplace Relations Act 1996 , the Commonwealth Ombudsman must conduct a review under section 88AI of that Act of the use of the power given by section 88AA of that Act.
(5) The review must relate to the period starting on 13 January 2006 and ending on the reform commencement (rather than to a year to which section 88AA applies as defined in subsection 88AI(4)).
(6) Subsections 88AI(2) and (3) of the Workplace Relations Act 1996 apply for the purposes of that review.
15 Application of hours of work provisions of Standard to pre - reform awards
(1) Division 3 of Part VA (hours of work) does not apply to the employment of an employee while the employee is bound by a pre - reform award in relation to the employment at any time during the period of 3 years that starts on the reform commencement.
(2) In subitem (1):
pre - reform award has the meaning given by subsection 4(1) of the amended Act.
16 Succession, transmission or assignment of business
Part VIAA of, and Schedule 16 to, the Workplace Relations Act 1996 apply to a succession, transmission or assignment of a business, or a part of a business, that occurs on or after the reform commencement.
17 Application of conciliation and mediation provisions relating to equal remuneration for equal work
Sections 170BDA, 170BDB and 170BDC of the Workplace Relations Act 1996 apply only to applications for orders under Division 2 of Part VIA of that Act made on or after the reform commencement.
18 Application of parental leave
(1) Division 5 of Part VIA of the amended Act does not apply in relation to particular employment of an employee if the employment is wholly regulated by one or more of the following:
(a) pre - reform certified agreement;
(b) a notional agreement preserving State awards;
(c) a preserved State agreement;
(d) an old IR agreement;
(e) a pre - reform AWA;
(f) a 170MX award;
(g) a transitional award.
(2) Division 5 of Part VIA of the Workplace Relations Act 1996 , as in force immediately before the repeal and substitution of that Division by this Act, continues to apply in relation to employment of an employee to which subitem (1) applies.
(3) In this item:
170MX award means an award:
(a) made under subsection 170MX(3) of the Workplace Relations Act 1996 as in force at any time before the reform commencement; and
(b) in operation immediately before that commencement, or made after that commencement because of Part 8 of Schedule 14 to the amended Act.
notional agreement preserving State awards has the meaning given by Schedule 15 to the amended Act.
old IR agreement has the meaning given by Schedule 14 to the amended Act.
pre - reform AWA means an AWA that:
(a) was made at any time before the reform commencement; and
(b) was approved under Part VID of the Workplace Relations Act 1996 as in force at any time before that commencement; and
(c) was in operation immediately before that commencement.
pre - reform certified agreement has the meaning given by Schedule 14 to the amended Act.
preserved State agreement has the meaning given by Schedule 15 to the amended Act.
transitional award has the meaning given by Schedule 13 to the amended Act.
19 Application of Part VC of amended Act
Part VC of the amended Act applies, according to its terms, to actions or states of affairs occurring after the commencement of the Part (even if the actions or states of affairs started to occur before that commencement).
20 Application in relation to negotiations for workplace agreements
(1) This item applies to a matter if:
(a) the matter arose before the reform commencement under Division 8 of Part VIB of the Workplace Relations Act 1996 , as in force at that time; and
(b) the Commission has begun to exercise its conciliation powers under section 170NA, as in force at that time, in relation to the matter.
(1A) This item applies subject to:
(a) Parts 4 and 8 of Schedule 14 to the amended Act; and
(b) item 20A of this Schedule.
(2) Despite the amendments made by items 71 and 168, the Workplace Relations Act 1996 continues to apply during the transitional period in relation to the matter as if the amendments had not been made.
(3) After the end of the transitional period, the Workplace Relations Act 1996 , as amended by those items, applies in relation to the matter.
(4) In this item:
transitional period means the period of 3 months commencing on the reform commencement.
20A Continuation of section 170MX proceedings under new provisions for workplace determinations
(1) This item applies if:
(a) a bargaining period was terminated on the ground set out in subsection 170MW(3) or (7) of the Workplace Relations Act 1996 before the reform commencement; and
(b) the Commission had not started to exercise arbitration powers in accordance with subsection 170MX(3) of the Workplace Relations Act 1996 before the reform commencement in relation to the bargaining period; and
(c) had this Act not amended the Workplace Relations Act 1996 , the Commission would have been able to make an award under subsection 170MX(3) of the Workplace Relations Act 1996 after the reform commencement in relation to the bargaining period.
(2) Division 8 of Part VC of the amended Act applies in relation to the bargaining period (in accordance with item 19 of this Schedule) as if:
(a) the termination of the bargaining period were the termination of a bargaining period on the ground set out in subsection 107G(3) of the amended Act; and
(b) that termination happened on the reform commencement.
(3) A reference in this item to subsection 170MX(3) of the Workplace Relations Act 1996 does not include a reference to that subsection as it had effect because of repealed Division 2 of Part XV of that Act.
21 Application of new offences in section 299
(1) Subsection 299(3) of the amended Act applies to conduct engaged in after the reform commencement, whether the order contravened by the conduct was made before, on or after that commencement.
(2) Subsection 299(5) of the amended Act applies to the publication of a statement after the reform commencement, whether the statement was made before, on or after that commencement.
22 Transitional provision--entry permits
(1) If a permit was in force under the repealed Part IX immediately before the reform commencement:
(a) the permit continues in force as if it had been issued under the new Part IX; and
(b) the permit may be revoked or suspended under the new Part IX.
(2) In this item:
new Part IX means Part IX of the amended Act.
repealed Part IX means Part IX of the Workplace Relations Act 1996 as in force immediately before the reform commencement.
23 Application provisions relating to registered organisations
(1) The amendments made by items 273, 274, 289, 291, 292, 294, 295 and 296 of Schedule 1 apply in relation to an application for registration granted on or after the reform commencement.
(2) The amendments made by item 297 of Schedule 1 apply in relation to conduct that relates to the formation or registration of an association on or after the reform commencement.
(3) The amendments made by items 298 to 304 of Schedule 1 apply in relation to an application for an order cancelling the registration of an organisation made on or after the reform commencement.
(4) The amendment made by item 309 of Schedule 1 applies in relation to an application for a determination made on or after the reform commencement.
(5) The amendments made by items 314 to 319 of Schedule 1 apply in relation to an application made on or after the reform commencement.
(6) The amendment made by item 322 of Schedule 1 applies in relation to an agreement that becomes binding on an amalgamated association on or after the reform commencement.
(7) The amendment made by item 329 of Schedule 1 applies in relation to a rule imposed on or after the reform commencement.
(8) The amendments made by items 331 and 332 of Schedule 1 apply in relation to a direction given on or after the reform commencement.
(9) The amendments made by items 335 and 336 of Schedule 1 apply in relation to an application made on or after the reform commencement.
(10) The amendment made by item 347 of Schedule 1 applies in relation to a disclosure made on or after the reform commencement.
24 Transitional provision relating to registered organisations
Despite the amendment made by item 306 of Schedule 1, subparagraph 30(1)(c)(v) of Schedule 1 to the amended Act does not apply for the period of 3 years after the reform commencement in relation to an organisation whose application for registration was granted before that commencement.