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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Workplace
Relations Amendment (Tallies and Picnic Days) Bill
2000
No. ,
2000
(Employment, Workplace Relations and Small
Business)
A Bill for an Act to amend the
Workplace Relations Act 1996 in relation to tallies and picnic days, and
for related purposes
ISBN: 0642
439494
Contents
Part 1—Amendments 3
Workplace Relations Act
1996 3
Part 2—Application, transitional and saving
provisions 4
A Bill for an Act to amend the Workplace Relations Act
1996 in relation to tallies and picnic days, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Workplace Relations Amendment (Tallies
and Picnic Days) Act 2000.
(1) Subject to subsection (2), this Act commences on a day to be
fixed by Proclamation.
(2) If this Act does not commence under subsection (1) within the
period of 6 months beginning on the day on which it receives the Royal Assent,
it commences on the first day after the end of that period.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Paragraph 89A(2)(d)
Omit “, tallies”.
2 After subsection 89A(3)
Insert:
(3A) Matters that are not covered by subsection (2) include, but are
not limited to, the following:
(a) union picnic days;
(b) tallies.
Part 2—Application,
transitional and saving provisions
3 Definitions
In this Part:
award does not include the following:
(a) an award made under subsection 170MX(3) of the Principal
Act;
(b) an exceptional matters order made under section 120A of the
Principal Act.
interim period means 6 months beginning on the day on which
Part 1 of this Schedule commences.
Principal Act means the Workplace Relations Act
1996.
special consent provisions has the meaning given by
item 5.
termination time, in relation to special consent provisions,
means the end of the period that is specified in the award under
section 147 of the Principal Act.
4 Commission’s powers under this
Part
(1) The Commission has the powers in relation to varying awards under this
Part that it would have under Part VI of the Principal Act if that Part of
that Act applied to compulsory conciliation and arbitration in relation to
varying awards under this Part instead of in relation to industrial
disputes.
(2) In exercising its powers under this Part, the Commission is to have
regard to the desirability of assisting parties to awards to agree on
appropriate variations to their awards, rather than have parts of awards cease
to have effect under item 7 at the end of the interim period.
5 Special consent
provisions
For the purposes of this Part, special consent provisions are
provisions of an award that give effect to a decision of the Commission that is
expressed to be made in accordance with one or more of the following
principles:
(a) the Enterprise Bargaining Principle adopted by the Commission in the
National Wage Case decision of October 1991 (Dec 1150/91, Print
K0300);
(b) the Enterprise Awards Principle adopted by the Commission in its
Review of the Wage Fixing Principles decision of October 1993 (Dec 1300/93,
Print K9700);
(c) Principle 2.2 (Consent Award or Award Variation to Give Effect to an
Enterprise Agreement), adopted by the Commission in its Review of the Wage
Fixing Principles decision of August 1994 (Dec 1408/94, Print L4700) and
incorporated without amendment in wages principles established by the Commission
in its Safety Net Adjustment & Section 150A Review decision of October
1995 (Dec 2120/95, Print M5600).
6 Variation of awards during the interim
period
(1) If one or more of the parties to an award apply to the Commission for a
variation of the award under this item, the Commission may, during the interim
period, vary the award so that it only provides for allowable award
matters.
(2) Special consent provisions cannot be varied under this item before the
termination time for those provisions.
(3) The Commission may only deal with the application by arbitration if it
is satisfied that the applicant or applicants have made reasonable attempts to
reach agreement with the other parties to the award about how the award should
be varied and the treatment of matters that are not allowable award
matters.
(4) If:
(a) the award provides for rates of pay that, in the opinion of the
Commission:
(i) are not operating as minimum rates of pay; or
(ii) were made on the basis that they were not intended to operate as
minimum rates of pay; and
(b) the application under this item seeks to have such rates of pay varied
so that they are expressed as minimum rates of pay;
the Commission may vary the award so that it provides for minimum rates of
pay consistent with sections 88A and 88B of the Principal Act and the
limitation on the Commission’s power in subsection 89A(3) of that
Act.
(5) If the Commission varies the award under subitem (4), it must
include in the award provisions that ensure that overall entitlements to pay
provided by the award are not reduced by that variation, unless the Commission
considers that it would be in the public interest not to include such
provisions.
(6) The Commission must review the award to determine whether or not it
meets the following criteria:
(a) it does not include matters of detail or process that are more
appropriately dealt with by agreement at the workplace or enterprise
level;
(b) it does not prescribe work practices or procedures that restrict or
hinder the efficient performance of work;
(c) it does not contain provisions that have the effect of restricting or
hindering productivity, having regard to fairness to employees;
(d) it contains facilitative provisions that allow agreement at the
workplace or enterprise level, between employers and employees (including
individual employees), on how the award provisions are to apply;
(e) it contains provisions enabling the employment of regular part-time
employees;
(f) it is expressed in plain English and is easy to understand in both
structure and content;
(g) it does not contain provisions that are obsolete or that need
updating;
(h) it provides support to training arrangements through appropriate
trainee wages and a supported wage system for people with
disabilities;
(i) it does not contain provisions that discriminate against an employee
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.
(7) If the Commission determines that the award does not meet the criteria
set out in subitem (6), the Commission must, if it considers it
appropriate, vary the award so that it does meet those criteria.
7 Parts of awards cease to have effect at the
end of the interim period
(1) At the end of the interim period, each award ceases to have effect to
the extent that it provides for matters that are not allowable award matters,
unless those matters:
(a) were included in the award under subitem 6(7); or
(b) are allowed by subsection 89A(6) or (8) of the Principal
Act.
(2) If the termination time for special consent provisions is after the end
of the interim period, then this item and item 8 apply to the special
consent provisions as if a reference to the end of the interim period were
instead a reference to the termination time.
8 Variation of awards after the end of the
interim period
(1) As soon as practicable after the end of the interim period, the
Commission must review each award that is in force and vary it to remove
provisions that have ceased to have effect under item 7.
(2) When varying the award under subitem (1), the Commission may also
vary the award so that, in relation to an allowable award matter, the award is
expressed in a way that reasonably represents the entitlements of employees in
respect of that matter as provided in the award as in force immediately before
the end of the interim period.
(3) If, immediately before the end of the interim period, the award
provided for rates of pay that, in the opinion of the Commission:
(a) were not operating as minimum rates of pay; or
(b) were made on the basis that they were not intended to operate as
minimum rates of pay;
the Commission may vary the award so that it provides for minimum rates of
pay consistent with sections 88A and 88B of the Principal Act and the
limitation on the Commission’s power in subsection 89A(3) of that
Act.
(4) If the Commission varies the award under subitem (3), it must
include in the award provisions that ensure that overall entitlements to pay
provided by the award are not reduced by that variation, unless the Commission
considers that it would be in the public interest not to include such
provisions.
(5) The Commission must review the award to determine whether or not it
meets the following criteria:
(a) it does not include matters of detail or process that are more
appropriately dealt with by agreement at the workplace or enterprise
level;
(b) it does not prescribe work practices or procedures that restrict or
hinder the efficient performance of work;
(c) it does not contain provisions that have the effect of restricting or
hindering productivity, having regard to fairness to employees;
(d) it contains facilitative provisions that allow agreement at the
workplace or enterprise level, between employers and employees (including
individual employees), on how the award provisions are to apply;
(e) it contains provisions enabling the employment of regular part-time
employees;
(f) it is expressed in plain English and is easy to understand in both
structure and content;
(g) it does not contain provisions that are obsolete or that need
updating;
(h) it provides support to training arrangements through appropriate
trainee wages and a supported wage system for people with
disabilities;
(i) it does not contain provisions that discriminate against an employee
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.
(6) If the Commission determines that the award does not meet the criteria
set out in subitem (5), the Commission must, if it considers it
appropriate, vary the award so that it does meet those criteria.
9 Reviews under Schedule 5 to the
Workplace Relations and Other Legislation Amendment Act
1996
(1) If:
(a) the Commission is required to review an award under item 6 or 8;
and
(b) the Commission is also required to review the award under item 51
(the old review item) of Schedule 5 to the Workplace
Relations and Other Legislation Amendment Act 1996; and
(c) the Commission:
(i) has not started a review of the award under the old review item;
or
(ii) has started such a review but has not completed it;
then the Commission must review the award under item 6 or 8 of this
Schedule and must not review, or continue to review, the award under the old
review item.
(2) When reviewing the award under item 6 or 8, the Commission may
have regard to any evidence given or submissions made in relation to a review
under the old review item.
10 Corporations not bound by State
awards
(1) If:
(a) a constitutional corporation is bound by an award in respect of an
employee; and
(b) the award is varied under subitem 6(1) or wholly or partly ceases to
have effect because of item 7; and
(c) as a result of the award being varied, or ceasing to have effect, as
mentioned in paragraph (b), the corporation would (apart from this item)
become bound by a State award in respect of the employee;
then the corporation is not bound by the State award in relation to the
employee unless it becomes bound as a result of an application by the
corporation to the relevant State industrial authority.
(2) Subitem (1) does not operate so that a State award, or part of a
State award, prevails over an award of the Commission.
11 Matters to be dealt with by Full
Bench
(1) After the commencement of this Part, a Full Bench may establish
principles about varying awards under this Part.
(2) After such principles (if any) have been established, the power of the
Commission to vary an award under this Part is exercisable only by a Full Bench
unless the contents of the award:
(a) give effect to determinations of a Full Bench under this Part;
or
(b) are consistent with principles established by a Full Bench under this
item.
12 Certain provisions not
discriminatory
A provision of an award does not discriminate against an employee for the
purposes of paragraph 6(6)(i) or 8(5)(i) merely because:
(a) it provides for a junior rate of pay; or
(b) it discriminates, in respect of particular employment, on the basis of
the inherent requirements of that employment; or
(c) 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.