Fair Work (Commonwealth Powers) Amendment Act 2009

Fair Work (Commonwealth Powers) Amendment Act 2009

No. 74 of 2009

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of the Fair Work (Commonwealth Powers) Act 2009

3Definitions

4Insertion of new section 3A

3AFundamental workplace relations principles

5Insertion of definition in section 5

6Termination of references

7Repeal of provision as to proclamation

8Insertion of new section after section 7

7APeriod for termination of references

Part 3—Consequential Amendments to Other
Acts

9Amendment of the Country Fire Authority Act 1958

10Amendment of the Disability Act 2006

11Amendment of the Duties Act 2000

12Amendment of the Equal Opportunity Act 1995

13Amendment of the Fundraising Act 1998

14Amendment of the Health Services (Conciliation and
Review) Act 1987

15Amendment of the Legal Profession Act 2004

16Amendment of the Parliamentary Administration
Act 2005

17Amendment of the Petroleum (Submerged Lands)
Act 1982

18Amendment of the Pre-school Teachers and Assistants
(Leave) Act1984

19Amendment of the Rail Safety Act 2006

20Amendment of the Working with Children Act 2005

Part 4—Repeal of this Act

21Repeal of this Act

═══════════════

Endnotes

SectionPage

Victoria

SectionPage

Fair Work (Commonwealth Powers) Amendment Act 2009[†]

No. 74 of 2009

[Assented to 1 December 2009]

Fair Work (Commonwealth Powers) Amendment Act 2009
No. 74 of 2009

The Parliament of Victoriaenacts:

Part 4—Repeal of this Act

Fair Work (Commonwealth Powers) Amendment Act 2009
No. 74 of 2009

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to amend the Fair Work (Commonwealth Powers) Act 2009as a consequence of various proposed amendments to the Fair Work Act 2009 of the Commonwealth, and to make other minor amendments to the
Fair Work (Commonwealth Powers) Act 2009;

(b)to make related amendments to other Acts.

2Commencement

s. 2

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of Part 1, 3 or 4 does not come into operation before 1 July 2010 it comes into operation on that day.

______

Part 2—Amendment of the Fair Work (Commonwealth Powers) Act 2009

3Definitions

s. 3

See:
Act No.
24/2009.
LawToday:
www.
legislation.
vic.gov.au

(1)In paragraph (c) in the definition of referred subject matters in section 3(1) of the Fair Work (Commonwealth Powers) Act 2009—

(a)after "responsibilities of" insert "persons, including"

(b)in subparagraph (i), after "freedom of association" insert "in the context of workplace relations,";

(c)in subparagraph (viii), before "rights of entry" insert "union".

(2)In the definition of State subject matters in section 3(1) of the Fair Work (Commonwealth Powers) Act 2009—

(a)for paragraph (g) substitute—

"(g)training arrangements;";

(b)for paragraph (h) substitute—

"(h)long service leave;";

"(k) declaration, prescription or substitution of public holidays;".

(3)Insert the following definition in section 3(1) of the Fair Work (Commonwealth Powers) Act 2009—

"fundamental workplace relations principles means the principles set out in section 3A;".

(4)In section 3(1) of the Fair Work (Commonwealth Powers) Act 2009, the definition of essential services is repealed.

(5) For section 3(3) of the Fair Work (Commonwealth Powers) Act 2009substitute—

"(3)Words or phrases in the definition of referred subject matters or in the definition of State subject mattersthat are defined in the Commonwealth Fair Work Act (other than in Division 2A of Part 1–3 of the Commonwealth Fair Work Act) have the meaning set out in the Commonwealth Fair Work Act as in force on 1 July 2009.".

4Insertion of new section 3A

s. 4

After section 3 of the Fair Work (Commonwealth Powers) Act 2009insert—

"3A Fundamental workplace relations principles

The following are the fundamental workplace relations principles under this Act—

(a)that the Commonwealth Fair Work Act should provide for, and continue to provide for, the following—

(i) a strong, simple and enforceable safety net of minimum employment standards;

(ii)genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities;

(iii)collective bargaining at the enterprise level with no provision for individual statutory agreements;

(iv)fair and effective remedies available through an independent umpire;

(v)protection from unfair dismissal;

(b)that there should be, and continue to be, in connection with the operation of the Commonwealth Fair Work Act, the following—

(i)an independent tribunal system;

(ii)an independent authority able to assist employers and employees within a national workplace relations system.".

5Insertion of definition in section 5

s. 5

After section 5(2) of the Fair Work (Commonwealth Powers) Act 2009insert—

"(3) In this section, essential services means any of the following—

(a)any matter in respect of which a proclamation has been made under Part6 of the Electricity Industry Act 2000;

(b)any matter in respect of which a proclamation has been made under Part9 of the Gas Industry Act 2001;

(c)any vital State project that is declared to be so under the VitalState Projects Act 1976;

(d)any vital industry that is declared to be so under the VitalState Industries (Works and Services) Act 1992.".

6Termination of references

s. 6

After section 6(4) of the Fair Work (Commonwealth Powers) Act 2009insert—

"(5)If the amendment reference and the transition reference have been terminated, the expression the references in subsection (1) refers only to the initial reference.".

7Repeal of provision as to proclamation

Section 7(3) of the Fair Work (Commonwealth Powers) Act 2009 is repealed.

8Insertion of new section after section 7

After section 7 of the Fair Work (Commonwealth Powers) Act 2009insert—

"7A Period for termination of references

(1)Subject to subsection (2), a day fixed by a proclamation under section 6(1) must be no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published.

(2)If—

(a)a proclamation under section 6(1) only provides for the termination of the amendment reference; and

(b)the Governor in Council, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor in Council, the Commonwealth Fair Work Act—

(i)is proposed to be amended (by an amendment introduced into the Parliament of the Commonwealth by a Commonwealth Minister); or

(ii)has been amended—

in a manner that is inconsistent with one or more of the fundamental workplace relations principles—

the day fixed by the proclamation under section 6(1)(b) may be earlier than the day that applies under subsection (1) but must be no earlier than the first day after the end of the period of 3 months beginning on the day on which the proclamation is published.

(3)If the Governor in Council terminates the amendment reference and fixes a day under subsection (2), the Minister must, as soon as practicable after the publication of the relevant proclamation, prepare a report on the matter and cause copies of that report to be laid before both Houses of Parliament.".

s. 8

______

Part 3—Consequential Amendments to Other Acts

9Amendment of the Country Fire Authority Act 1958

s. 9

(1)Insert the following definitions in section 3(1) of the Country Fire Authority Act 1958—

"Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;

federal award or agreement means—

(a)a modern award within the meaning of the Fair Work Act 2009 of the Commonwealth; or

(b)a determination of Fair Work Australia made under the Fair Work Act 2009 of the Commonwealth; or

(c)an award-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or

(d) a transitional minimum wage instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or

(e) an enterprise agreement made under the Fair Work Act 2009 of the Commonwealth; or

(f)an agreement-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;".

(2)In section 18(1) of the Country Fire Authority Act 1958—

(a)for "any award or agreement under any Act of the Commonwealth relating to conciliation and arbitration or under Part 2 of the Employee Relations Act 1992" substitute "any federal award or agreement or minimum wage order under the Fair Work Act 2009 of the Commonwealth";

(b)for "(if such an award or employment agreement is not applicable)" substitute "(ifsuch an award, agreement or minimum wage order does not apply)".

(3)In section 18(2) of the Country Fire Authority Act 1958—

s. 9

(a)for "any award or agreement under any Act of the Commonwealth relating to conciliation or arbitration or under Part 2 of the Employee Relations Act 1992" substitute "any federal award or agreement or the National Employment Standards under the Fair Work Act 2009 of the Commonwealth";

(b)for "(if no such award or employment agreement is applicable)" substitute "(if such an award, agreement or Standard does not apply)".

(4) In section 110(1)(b) of the Country Fire Authority Act 1958, for "an award or agreement under any Act of the Commonwealth relating to conciliation and arbitration or a determination of a wages board or Industrial Appeals Court is not applicable" substitute "no federal award or agreement applies".

10Amendment of the Disability Act 2006

s. 10

(1)Insert the following definitions in section 3(1) of the Disability Act 2006—

"Australian Industrial Relations Commission means the body established by section 61 of the Workplace Relations Act 1996 of the Commonwealth, as in force before its repeal;

Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;".

(2)In section 121(1)(b) of the Disability Act 2006, after "initiated before" insert "Fair Work Australia or".

11Amendment of the Duties Act 2000

In the definition of industrial organisationin section 3(1) of the Duties Act 2000, for "the Workplace Relations Act 1996 of the Commonwealth" substitute "the Fair Work (Registered Organisations) Act 2009 of the Commonwealth".

12Amendment of the Equal Opportunity Act 1995

(1)In section 4(1) of the Equal Opportunity Act 1995—

(a)for paragraph (a) in the definition of employeesubstitute—

"(a) a person employed under a contract of service, whether or not under a federal agreement or award;";

(b) for paragraph (a) in the definition of employersubstitute—

"(a) a person who employs another person under a contract of service, whether or not under a federal agreement or award;";

"(a) employment under a contract of service, whether or not under a federal agreement or award;";

(d) for paragraph (a) in the definition of employment entitlementssubstitute—

"(a) contract of service; or

(aa)federal agreement or award; or

(ab)minimum wage order under the Fair Work Act 2009 of the Commonwealth; or";

(e)insert the following definition—

s. 12

"Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;".

(2)For section 4(3) of the Equal Opportunity Act 1995substitute—

"(3)A reference in the definition of employee, employer, employment or employment entitlements in subsection (1) to a federal agreement or award is a reference to—

(a)an enterprise agreement made under the Fair Work Act 2009 of the Commonwealth; or

(b)an agreement-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or

(d)a determination of Fair Work Australia made under the Fair Work Act 2009 of the Commonwealth; or

(e)an award-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or

(f)a transitional minimum wage instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.".

13Amendment of the Fundraising Act 1998

s. 13

In section 16(g) of the Fundraising Act 1998, for "the Workplace Relations Act 1996 or the Industrial Relations Act 1988" substitute "the Fair Work (Registered Organisations) Act 2009".

14Amendment of the Health Services (Conciliation and Review) Act 1987

(1)Insert the following definitions in section 3(1) of the Health Services (Conciliation and Review) Act 1987—

"Australian Industrial Relations Commission means the body established by section 61 of the Workplace Relations Act 1996 of the Commonwealth, as in force before its repeal;

Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;".

(2)For the definition of Industrial Tribunal in section 3(1) of the Health Services (Conciliation and Review) Act 1987substitute—

"industrial tribunal means Fair Work Australia or the Australian Industrial Relations Commission;".

15Amendment of the Legal Profession Act 2004

s. 15

For section 2.2.2(2)(e) of the Legal Profession Act 2004substitute—

"(e)a person who prepares—

(i) an enterprise agreement within the meaning of the Fair Work Act 2009 of the Commonwealth; or

(ii)an agreement-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth—

on behalf of a party or proposed party to the agreement;".

16Amendment of the Parliamentary Administration Act 2005

(1)Section 1(b) of the Parliamentary Administration Act 2005 is repealed.

(2)Section 3(ca) of the Parliamentary Administration Act 2005 is repealed.

17Amendment of the Petroleum (Submerged Lands) Act 1982

(1)Insert the following definition in clause 3 of Schedule 7 to the Petroleum (Submerged Lands) Act 1982—

"Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;".

(2) For the definition of registered organisation in clause 3 of Schedule 7 to the Petroleum (Submerged Lands) Act 1982substitute—

"registered organisation means an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth;".

(3) Inthe definition of reviewing authorityin clause3 of Schedule 7 to the Petroleum (Submerged Lands) Act 1982, for "the Australian Industrial Relations Commission" substitute "Fair Work Australia".

18Amendment of the Pre-school Teachers and Assistants (Leave) Act1984

s. 18

(1)Insert the following definition in section 3(1) of the Pre-school Teachers and Assistants (Leave) Act 1984—

"Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;".

(2) For the definition of award in section 3(1) of the Pre-school Teachers and Assistants (Leave) Act 1984substitute—

"award means—

(a)an enterprise agreement made under the Fair Work Act 2009 of the Commonwealth; or

(b)an agreement-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or

(d)a determination of Fair Work Australia made under the Fair Work Act 2009 of the Commonwealth; or

(e)an award-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;".

(3) In the definition of sick leave in section 3(1) of the Pre-school Teachers and Assistants (Leave) Act 1984, after "an award" insert "or in accordance with the National Employment Standards under the Fair Work Act 2009 of the Commonwealth".

19Amendment of the Rail Safety Act 2006

s. 19

For the definition of registered employeeorganisation in section 3(1) of the Rail Safety Act 2006 substitute—

"registered employee organisation means an organisation, of which some or all of the members are employees, that is registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.".

20Amendment of the Working with Children Act 2005

(1)In section 33(2)(c)(ii)(B) of the Working with Children Act 2005, for "the Workplace Relations Act 1996 of the Commonwealth" substitute "the Fair Work Act 2009 of the Commonwealth".

(2) In section 35(2)(c)(ii) of the Working with Children Act 2005, for "the Workplace Relations Act 1996 of the Commonwealth" substitute
"the Fair Work Act 2009 of the Commonwealth".

______

Part 4—Repeal of this Act

21Repeal of this Act

s. 21

This Act is repealed on the first anniversary of the first day on which all of its provisions are in operation.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

═══════════════

Fair Work (Commonwealth Powers) Amendment Act 2009
No. 74 of 2009

Endnotes

[†] Minister's second reading speech—

Legislative Assembly: 15 October 2009

Legislative Council: 12 November 2009

The long title for the Bill for this Act was "A Bill for an Act to amend the Fair Work (Commonwealth Powers) Act 2009 and to make related amendments to other Acts and for other purposes."