WORKPLACE RELATIONS LEGISLATION AMENDMENT (INDEPENDENT CONTRACTORS) ACT 2006

Commonwealth Consolidated Acts

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WORKPLACE RELATIONS LEGISLATION AMENDMENT (INDEPENDENT CONTRACTORS) ACT 2006 - SCHEDULE 6

Other amendments

Workplace Relations Act 1996

1 Paragraph 165(1)(e)

After "purposes of" (first occurring), insert "this paragraph or".

2 After subsection 165(1)

Insert:

(1A) To avoid doubt, a disclosure in accordance with subsection (1) of personal information (within the meaning of the Privacy Act 1988 ) is taken, for the purposes of that Act, to be authorised by law.

3 At the end of section 170

Add:

(5) To avoid doubt, a disclosure in accordance with this section of personal information (within the meaning of the Privacy Act 1988 ) is taken, for the purposes of that Act, to be authorised by law.

4 Subsection 337(5)

Repeal the subsection, substitute:

(5) If a waiver has been made under section 338 in relation to the workplace agreement:

(a) subsection (1) and paragraph (3)(b) do not apply if, before the time the waiver was made, the employer had taken reasonable steps to ensure that all eligible employees in relation to the agreement (as at that time) either had, or had ready access to, the agreement in writing; and

(b) subsection (2) does not apply if, before the time the waiver was made, the employer had taken reasonable steps to ensure that all eligible employees in relation to the agreement (as at that time) had been given an information statement in relation to the agreement that complies with subsection (4).

5 At the end of section 338

Add:

Note: For the effect of the waiver, see subsection 337(5).

Note: The heading to section 338 is replaced by the heading " Employees may waive 7 - day period ".

6 At the end of Division 5 of Part 8

Add:

346A Employer to provide copy of lodged AWA to employee

(1) As soon as practicable after an employer lodges an AWA with the Employment Advocate, the employer must give a copy of the AWA to the employee whose employment is subject to the AWA.

(2) Subsection (1) is a civil remedy provision.

Note: See Division 11 for provisions on enforcement.

7 After subsection 347(2)

Insert:

(2A) If:

(a) an employer and an employee or employees of the employer, or an organisation of employees, make a workplace agreement (within the meaning of section 333); and

(b) the employer does not lodge that workplace agreement (the unlodged agreement ), but subsequently lodges a declaration under subsection 344(2); and

(i) the employer who lodged the declaration; and

(ii) at least one employee, class of employees or organisation; and

(d) the employer and the other parties identified in the declaration are parties to the unlodged agreement; and

(e) a document that is different from the unlodged agreement is attached to the declaration;

then:

(f) the unlodged agreement comes into operation as a workplace agreement at the time the declaration is lodged; and

(g) the document that is attached to the declaration does not come into operation as a workplace agreement.

8 Subsection 370(5)

Repeal the subsection, substitute:

(5) If a waiver has been made under section 371 in relation to the variation to the workplace agreement:

9 At the end of section 371

Add:

Note: For the effect of the waiver, see subsection 370(5).

Note: The heading to section 371 is replaced by the heading " Employees may waive 7 - day period ".

10 After paragraph 392(2)(b)

Insert:

(ba) in the case of an AWA--the employee whose employment is subject to the agreement;

11 After paragraph 393(2)(b)

Insert:

(ba) in the case of an AWA--the employee whose employment is subject to the agreement;

12 After paragraph 407(2)(j)

Insert:

(ja) for subsection 346A(1)--30 penalty units;

13 At the end of subsection 482(1)

Add ", whether or not the ballot is completed".

14 At the end of subsection 482(2)

Add ", whether or not the ballot is completed".

15 Subsection 482(3)

Omit "have effect", substitute "are, in relation to completed ballots,".

16 After paragraph 483(1)(a)

Insert:

(aa) the ballot has been completed; and

Note: The heading to section 483 is altered by inserting " completed " after " of ".

17 Section 611 (after paragraph (a) of the definition of public holiday )

Insert:

(aa) a day that, under (or in accordance with a procedure under) a law of a State or Territory, is substituted for a day referred to in paragraph (a); and

18 Section 611 (subparagraph (b)(i) of the definition of public holiday )

Repeal the subparagraph.

19 At the end of section 710

Add:

; or (c) the matter is the subject of proceedings or has already been settled as a result of proceedings, whether before a court or another body, under a law of the Commonwealth or of a State or Territory relating to the prevention of discrimination or to equal opportunity.

20 Subparagraph 846(2)(g)(i)

Omit "5", substitute "10".

21 Subparagraph 846(2)(g)(ii)

Omit "25", substitute "50".

22 Paragraph 864(1)(b)

Repeal the paragraph, substitute:

(b) is:

(i) of a rate provision; or

(ii) of a casual loading provision; or

(iii) of a frequency of payment provision.

23 Subsection 864(4)

Insert:

"frequency of payment provision" has the same meaning as in Division 2 of Part 7.

24 After paragraph 3(1)(h) of Schedule 2

Insert:

(ha) a reference in Division 2 of Part 4 of Schedule 7.

25 Paragraph 72H(2)(c) of Schedule 6

Omit all the words after "apply", substitute "according to its terms, to the transferring transitional employee's employment with the new transitional employer;".

26 Subclause 72H(2) of Schedule 6

Omit "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.", substitute "the certified agreement does not apply to the transferring transitional employee.".

27 Paragraph 77(3)(a) of Schedule 6

Repeal the paragraph, substitute:

(a) the matter referred to in paragraph (1)(g) does not include one or both of the following:

(i) special maternity leave (within the meaning of section 265);

(ii) the entitlement under section 268 to transfer to a safe job or to take paid leave; and

28 Paragraph 97(4)(a) of Schedule 6

Repeal the paragraph, substitute:

(a) the matter referred to in paragraph (2)(ac) does not include one or both of the following:

(i) special maternity leave (within the meaning of section 265);

(ii) the entitlement under section 268 to transfer to a safe job or to take paid leave; and

29 Clause 1 of Schedule 7

Insert:

"transitional award" has the same meaning as in Schedule 6.

30 At the end of clause 2 of Schedule 7

Add:

Note: Clause 5 of this Schedule, section 16 and Schedule 8 may also affect the terms and conditions of employment of an employee in relation to whom a pre - reform certified agreement is in operation.

31 Subclause 5(1) of Schedule 7

Repeal the subclause, substitute:

(1) While a pre - reform certified agreement is in operation, it prevails, to the extent of any inconsistency, over:

(a) a preserved State agreement; or

(b) a notional agreement preserving State awards.

32 At the end of clause 17 of Schedule 7

Add:

Note: Clause 19 of this Schedule, section 16 and Schedule 8 may also affect the terms and conditions of employment of an employee in relation to whom a pre - reform AWA is in operation.

33 Paragraph 19(d) of Schedule 7

Repeal the paragraph, substitute:

(d) to the extent of any inconsistency, a notional agreement preserving State awards;

34 Before clause 22 of Schedule 7

Insert:

Division 1 -- Continuing operation of section 170MX awards

35 Clause 22 of Schedule 7

Repeal the clause, substitute:

22 Application of Division

This Division applies to a section 170MX award if:

(a) the employer in relation to the section 170MX award:

(i) is an employer (within the meaning of subsection 6(1)) at the reform commencement; or

(ii) becomes such an employer during the transitional period; and

(b) the section 170MX award:

(i) was in force just before the reform commencement; or

(ii) was made after the reform commencement because of Part 8 of this Schedule.

36 Subclause 23(1) of Schedule 7

Omit "the award", substitute "a section 170MX award to which this Division applies".

37 Clause 24 of Schedule 7

Omit "the award", substitute "a section 170MX award to which this Division applies".

38 Clause 25 of Schedule 7

After "section 170MX award" (wherever occurring), insert "to which this Division applies".

39 Subclause 26(1) of Schedule 7

After "section 170MX award", insert "to which this Division applies".

40 At the end of Part 4 of Schedule 7

Add:

Division 2 -- Special rules for section 170MX awards that bind excluded employers

26A Application of Division

(1) This Division applies to a section 170MX award if:

(a) the employer in relation to the section 170MX award is an excluded employer at the reform commencement; and

(b) the section 170MX award:

(i) was in force just before the reform commencement; or

(ii) was made after the reform commencement because of Part 8 of this Schedule.

(2) This Division applies to the section 170MX award while the employer remains an excluded employer during the transitional period.

26B Cessation of section 170MX award

(1) A section 170MX award to which this Division applies ceases to be in operation:

(a) at the end of the transitional period; or

(b) when it has been replaced by a State employment agreement.

(2) To avoid doubt, this clause does not affect any rights accrued or liabilities incurred under a section 170MX award to which this Division applies before it ceases to be in operation.

(3) To avoid doubt, if the employer in relation to a section 170MX award to which this Division applies becomes an employer (within the meaning of subsection 6(1)) at a time before the end of the transitional period, subclause (1) does not apply after that time.

Note: On and after that time, Division 1 of this Part applies to the section 170MX award.

(4) Once a section 170MX award to which this Division applies has ceased operating, it can never operate again.

26C Continuing operation of section 170MX awards--under old provisions

(1) Subject to this Schedule, provisions of the pre - reform Act (including regulations made under that Act) relating to section 170MX of the pre - reform Act continue to apply in relation to a section 170MX award to which this Division applies, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 .

(2) Subclause (1) does not apply in relation to the following provisions of the pre - reform Act:

(a) section 170MN;

(b) subsections 170MZ(4) and (5);

(d) subsections 170MZ(7) and (8).

26D Continuing operation of section 170MX awards--under new provisions

Subject to this Schedule, the following provisions of this Act apply in relation to a section 170MX award to which this Division applies as if it were a workplace determination:

(a) Part 6;

(b) section 494;

(d) Part 14;

(e) Part 15.

26E Interaction of section 170MX awards with other instruments

While a section 170MX award to which this Division applies is in operation, it prevails over a transitional award to the extent of any inconsistency.

41 Clause 30 of Schedule 7

Repeal the clause, substitute:

30 Relationships between pre - reform agreements etc. and Australian Fair Pay and Conditions Standard

(1) The Australian Fair Pay and Conditions Standard does not apply to an employee in relation to a matter if the employee's employment is subject to any of the following instruments that deals with that matter in relation to the employee:

(a) a pre - reform certified agreement;

(b) a pre - reform AWA;

(2) In this clause:

" matter" means a matter referred to in subsection 171(2).

Note: This means that if a pre - reform certified agreement, a pre - reform AWA or a section 170MX award deals with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will not apply to the employee in respect of that matter.

However, if a pre - reform certified agreement, a pre - reform AWA or a section 170MX award does not deal with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will apply to the employee in respect of that matter.

42 At the end of clause 35 of Schedule 7

Insert:

Note: Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference certified agreement is in operation.

43 At the end of clause 36 of Schedule 7

Insert:

Note: Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference Division 3 pre - reform certified agreement is in operation.

44 At the end of clause 37 of Schedule 7

Insert:

Note: Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference AWA is in operation.

45 Clause 15E of Schedule 8

Repeal the clause, substitute:

15E Relationship between preserved State agreements and Australian Fair Pay and Conditions Standard

(1) The Australian Fair Pay and Conditions Standard does not apply to an employee in relation to a matter if the employee's employment is subject to a preserved State agreement that deals with that matter in relation to the employee.

(2) In this clause:

"matter" means a matter referred to in subsection 171(2).

Note: This means that if a preserved State agreement deals with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will not apply to the employee in respect of that matter.

However, if a preserved State agreement does not deal with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will apply to the employee in respect of that matter.

46 Clause 44 of Schedule 8

After "for a matter", insert "in relation to an employee".

47 Clause 44 of Schedule 8

After "also deals with that matter", insert "in relation to the employee".

48 Paragraph 20(2)(b) of Schedule 9

Repeal the paragraph.

Workplace Relations Amendment (Work Choices) Act 2005

49 Paragraph 5A(a) of Schedule 4

After "meaning of", insert "paragraph 513(4)(b) of".

50 At the end of item 5A of Schedule 4

Add ", to the extent that the term requires the payment of redundancy pay within the meaning of paragraph 513(4)(b) of the amended Act".

51 Application of items 4 and 5

The amendments made by items 4 and 5 of this Schedule apply only in relation to waivers under section 338 of the Workplace Relations Act 1996 made on or after the commencement of this item.

52 Application of item 7

(1) The amendment of the Workplace Relations Act 1996 made by item 7 of this Schedule applies, and is taken always to have applied, on and from the reform commencement to an unlodged agreement, within the meaning of paragraph 347(2A)(b) of the Workplace Relations Act 1996 , in relation to which a declaration was lodged on or after the reform commencement.

(2) In this item:

reform commencement means the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005 .

53 Application of items 8 and 9

The amendments made by items 8 and 9 apply only in relation to waivers under section 371 of the Workplace Relations Act 1996 made on or after the commencement of this item.

54 Application of items 13 to 16

The amendments made by items 13 to 16 apply to a ballot in respect of which a ballot order is made under section 462 of the Workplace Relations Act 1996 on or after the commencement of this item.

55 Transitional provision--items 13 to 16

(1) This item applies to a ballot in respect of which a ballot order was made under section 462 of the Workplace Relations Act 1996 before the commencement of this item if:

(a) the authorised ballot agent for the ballot was the Australian Electoral Commission; and

(b) the Australian Electoral Commission certifies that the ballot had not been completed at the commencement of this item.

(2) After the commencement of this item, section 483 of the Workplace Relations Act 1996 is taken to apply to the incomplete ballot as if the ballot had been completed at the time of the certification referred to in paragraph (1)(b), so far as section 483 relates to costs:

(a) incurred by the Australian Electoral Commission; and

(b) in respect of which, had the applicant been liable for the costs of the incomplete ballot, the applicant's liability would have been able to have been discharged under subsections 483(5) and (6).

(3) To avoid doubt, this item does not affect any liability of the applicant in relation to the cost of holding the incomplete ballot and, in particular, does not impose any additional liability upon the applicant.

56 Application of items 25 and 26

(1) The amendments of the Workplace Relations Act 1996 made by items 25 and 26 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to a transferring transitional employee.

(2) In this item:

reform commencement means the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005 .

transferring transitional employee has the same meaning as in clause 72H of Schedule 6 to the Workplace Relations Act 1996 .

57 Application of items 24, 29 and 34 to 40

(1) The amendments of the Workplace Relations Act 1996 made by items 24, 29 and 34 to 40 of this Schedule apply, and are taken always to have applied, on and from the reform commencement, in relation to a section 170MX award (within the meaning of the Workplace Relations Act 1996 ).