1998-1999-2000-2001

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Workplace Relations and Other Legislation Amendment (Small Business and Other Measures) Bill 2001

No. , 2001

(Employment, Workplace Relations and Small Business)

A Bill for an Act to amend the Workplace Relations Act 1996 and other legislation, and for related purposes

A Bill for an Act to amend the Workplace Relations Act 1996 and other legislation, and for related purposes

1 Short title

This Act may be cited as the Workplace Relations and Other Legislation Amendment (Small Business and Other Measures) Act 2001.

2 Commencement

(1) Sections 1 to 3 and Schedule 5 commence on the day on which this Act receives the Royal Assent.

(2) Subject to subsection (9), Schedule 1 commences on a day to be fixed by Proclamation.

(3) Subject to subsection (9), Schedule 2 commences on a day to be fixed by Proclamation.

(4) Subject to subsection (9), Schedule 3 commences on a day to be fixed by Proclamation.

(5) Subject to subsection (9), Schedule 4 commences on a day to be fixed by Proclamation.

(6) Subject to subsection (9), Schedule 6 commences on a day to be fixed by Proclamation.

(7) Subject to subsection (9), Schedule 7 commences on a day to be fixed by Proclamation.

(8) Subject to subsection (9), Schedule 8 commences on a day to be fixed by Proclamation.

(9) If Schedule 1, 2, 3, 4, 6, 7 or 8 does not commence under this section within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Objects provisions

(ha) requiring the Commission to take into account the circumstances of employers and employees in small business in performing its functions and in exercising its powers under this Act (including through appropriate changes to its principles, procedures and rules); and

; and (iii) takes into account the circumstances of employers and employees in small business.

(3) The Commission must, in performing its functions and in exercising its powers under this Division, take into account the circumstances of employers and employees in small business.

(1A) In performing those functions, the Commission must also take into account the circumstances of employers and employees in small business.

The amendments made by this Schedule apply in relation to any proceedings before the Commission (whether instituted before or after the commencement of this Schedule).

(a) the President must complete a review of the Rules of the Commission made under section 48 of the Workplace Relations Act 1996 (having regard to the amendments of that Act made by this Act); and

(c) the President must, under that section, make any new Rules of the Commission, or make any variations of the existing Rules of the Commission, that the President considers appropriate as a result of the review.

Schedule 2—Unfair dismissal

Omit “subsections (5) and (5A)”, substitute “subsections (5), (5A) and (5C)”.

(5C) An application under subsection (1) may not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, if, at the relevant time, the employer employed less than 20 people, including:

(b) any casual employee who had been engaged on a regular and systematic basis for a sequence of periods of employment of at least 12 months;

(b) the employee was, at the relevant time, a trainee under a traineeship in respect of which he or she had signed a training agreement registered with a State or Territory training authority.

(5E) In subsections (5C) and (5D), relevant time means the time when the employer gave the employee notice of the termination, or the time when the employer terminated the employee’s employment, whichever happened first.

170CEAA Dismissal of application

(a) an application is made, or is purported to have been made, under subsection 170CE(1):

(b) at the relevant time, the employer concerned employed less than 20 people, including:

(ii) any casual employee who had been engaged on a regular and systematic basis for a sequence of periods of employment of at least 12 months;

(2) If the Commission is satisfied that, because of another provision in this Division, the application cannot be made under subsection 170CE(1) on the ground referred to in paragraph 170CE(1)(a), or on grounds that include that ground, the Commission may:

(a) if subparagraph (1)(a)(i) of this section applies—make an order that the application is not a valid application; or

(b) if subparagraph (1)(a)(ii) of this section applies—make an order that the application is not a valid application to the extent that it is made on that ground.

Note: The Commission is not required to hold a hearing in relation to the making of such an order: see subsection (4).

(3) If the Commission is satisfied that the application can be made under subsection 170CE(1), but is frivolous, or vexatious or lacking in substance, in relation to the ground referred to in paragraph 170CE(1)(a), the Commission may:

(a) if subparagraph (1)(a)(i) of this section applies—make an order dismissing the application; or

(b) if subparagraph (1)(a)(ii) of this section applies—make an order dismissing the application to the extent that it is made on that ground.

Note: The Commission is not required to hold a hearing in relation to the making of such an order: see subsection (4).

(4) The Commission is not required to hold a hearing in relation to the making of an order under this section. In deciding whether to hold a hearing, the Commission must take into account the cost that would be caused to the employer’s business by requiring the employer to attend a hearing.

(5) Before making an order under this section, the Commission may, by notice in writing, request the employee or employer to provide further information in relation to the application within a period specified in the notice.

(6) In deciding whether to make an order under this section, the Commission must have regard to any further information received within that period.

(7) In this section, relevant time means the time when the employer gave the employee notice of the termination, or the time when the employer terminated the employee’s employment, whichever happened first.

(4) This section does not apply to an order under section 170CEAA (about termination of employment by an employer in small business).

(3) An appeal to a Full Bench under section 45 may not be made in relation to an order under section 170CEAA (about termination of employment by an employer in small business).

The amendments made by items 1 and 2 apply only in relation to an application under section 170CE of the Workplace Relations Act 1996 where the employment to which the application relates commenced after the commencement of this Schedule.

The amendments made by items 3, 4 and 5 apply in relation to terminations of employment after the commencement of this Schedule (whether the employment commenced before or after that commencement).

Schedule 3—AWAs

Division 1—Preliminary

Subdivision A—Outline of Part

170VA Outline of Part

(2) Division 1 contains provisions dealing with the interpretation and scope of this Part.

(5) Division 4 sets out the effect of an AWA on awards, agreements and laws. It also:

(b) deals with the conduct of industrial action by a party to an AWA during the AWA’s period of operation before its nominal expiry date.

(6) Division 5 deals with agreements to extend, vary or terminate AWAs. The Division contains the following Subdivisions:

(c) Subdivision C dealing with the making and approval of agreements to terminate AWAs and other mechanisms for terminating AWAs.

(7) Division 7 deals with enforcement and remedies in relation to AWAs and ancillary agreements.

(9) Division 9 contains miscellaneous matters in relation to AWAs and ancillary agreements.

Subdivision B—Interpretation

170VAA Definitions

approval notice means an approval notice issued by the Employment Advocate under Division 3 or 5.

AWA has a meaning affected by section 170VAB and subsections 170VCB(3) and 170VEG(3).

AWA date means the date on which the employer and employee sign the AWA or, if they sign on different dates, the later of those dates.

bargaining agent means a person or group of persons duly appointed as a bargaining agent under section 170WEA.

existing employee, in relation to an AWA, means an employee who signed the AWA after commencing the employment to which the AWA relates.

extension agreement means an agreement to extend the nominal expiry date of an AWA.

new employee, in relation to an AWA, means an employee who signed the AWA before, or at the time of, commencing the employment to which the AWA relates.

nominal expiry date means the nominal expiry date that applies under section 170VBC.

party, in relation to an AWA or ancillary document, means the employer or employee.

period of operation, in relation to an AWA, means the period of operation as determined under section 170VBD.

refusal notice means a refusal notice issued by the Employment Advocate under Division 3 or 5.

relevant or designated award means the relevant or designated award that is used when applying the no-disadvantage test set out in Part VIE.

State agreement means an employment agreement made under, or for the purposes of, a law of a State.

verified copy, in relation to a document, means a copy that is certified as being a true copy of the document.

170VAB Proposed AWAs and ancillary documents—interpretation

(1) So far as the context permits, a reference in this Part to an AWA or ancillary document includes a reference to a proposed AWA or ancillary document.

(2) In relation to a proposed AWA or ancillary document, a reference to the employer or employee is a reference to the person who will be the employer or employee when the AWA or ancillary document starts to operate.

Subdivision C—Scope of this Part etc.

170VAC Scope of this Part

An AWA is of no effect unless at least one of the following applies at the AWA date:

(d) the employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade or commerce;

(e) the employee is a maritime employee and the employee’s employment is in connection with constitutional trade or commerce;

(f) the employee is a flight crew officer and the employee’s employment is in connection with constitutional trade or commerce.

170VAD AWAs and ancillary documents only have effect as provided by this Part

An AWA or ancillary document has effect as provided by this Part, and not otherwise.

Division 2—Making an AWA

170VB Employer and employee may make an AWA

(1) An employer and employee may make a written agreement, called an Australian workplace agreement (an AWA), that deals with matters pertaining to the relationship between an employer and employee.

(2) The requirements set out in the following sections must be satisfied in relation to the AWA:

170VBA Making an AWA

(1) An AWA must be signed and dated by the employer and the employee who are parties to it.

(a) give the employee a copy of an information statement prepared by the Employment Advocate (see subsection (5)); and

(5) The information statement prepared by the Employment Advocate for the purposes of paragraph (4)(a) must include information about the following matters, but may include other information:

(6) The employee may withdraw his or her consent to the AWA by giving written notice of the withdrawal of consent to the employer before the end of the cooling-off period.

Note: The employee may withdraw his or her consent to the AWA even after the employer has applied to the Employment Advocate for approval of the AWA (see subsections 170VC(5) and (6)).

170VBB Content of AWA

(1) The AWA must include the provisions relating to discrimination that are prescribed by the regulations. If the AWA does not in fact include those provisions, the AWA is taken to include those provisions.

(2) The AWA must include a dispute resolution procedure. If the AWA does not in fact include a dispute resolution procedure, the AWA is taken to include the model procedure that is prescribed by the regulations.

(3) A dispute resolution procedure that is included in an AWA under subsection (2), or prescribed by the regulations for the purposes of subsection (2), may confer powers on the Commission to settle disputes between the parties to the AWA about the application or interpretation of the AWA. The Commission may exercise those powers.

(4) The AWA must not include any provisions that prohibit or restrict disclosure of details of the AWA by either party to another person.

(5) The AWA must not include any objectionable provisions within the meaning of section 298Z.

170VBC Nominal expiry date of AWA

(1) An AWA may specify a date as its nominal expiry date. The date cannot be more than 3 years after the AWA date.

(2) If no date is specified, then the nominal expiry date is the third anniversary of the AWA date.

170VBD Period of operation of AWA

Subject to section 170VCE, an AWA for an employee starts operating on the later of:

(d) if no application is made to the Employment Advocate to approve the AWA within the period of 60 days starting on the AWA date—the start of the day after the end of that period;

(f) the time when a termination under section 170VEN, 170VEO or 170VEQ takes effect;

(g) the time when another AWA between the employer and employee starts to operate.

Note: See also section 170VCA which deals with the effect of the employee’s withdrawal of consent to the AWA.

Division 3—Approval of AWAs

170VC Applications for approval of AWAs

(1) An employer must apply, in writing, to the Employment Advocate for approval of an AWA to which the employer is a party unless the employee withdraws his or her consent to the AWA before the end of the cooling-off period referred to in subsection 170VBA(7).

(2) The application must be made before the end of the period of 60 days starting on the AWA date.

Note: Section 170VCE sets out the consequences of failure to apply for approval by the deadline.

(b) any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

(4) Two or more agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

(5) Before the end of the cooling-off period referred to in subsection 170VBA(7), an employee referred to in subsection 170VBA(6) may withdraw his or her consent to the AWA by giving to the employer and the Employment Advocate written notice of the withdrawal of consent.

(6) The employee must lodge the written notice of withdrawal of consent with the Employment Advocate within 7 days after giving notice of withdrawal to the employer.

170VCA Consequences for AWA of employee’s withdrawal of consent

(a) an employee referred to in subsection 170VBA(6) or 170VC(5) withdraws his or her consent to the AWA before the end of the cooling-off period referred to in subsection 170VBA(7); and

170VCB Employment Advocate must approve, or refuse to approve, AWA

(a) the application for approval of the AWA is made in accordance with section 170VC; and

(2) If the Employment Advocate has concerns about whether the AWA meets the requirements of subsection (1), the Employment Advocate must give the parties to the AWA an opportunity to:

(b) give to the Employment Advocate any information sought by the Employment Advocate.

The Employment Advocate must approve the AWA if satisfied that, because of the action taken or information given, those concerns are resolved.

(3) An undertaking accepted by the Employment Advocate is taken to be included in the AWA.

(b) is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

(b) is satisfied that it is not contrary to the public interest to approve the AWA.

(6) In deciding whether approval of an AWA is not contrary to the public interest, the Employment Advocate must apply the principles (if any) referred to in section 170VCC.

(7) If the Employment Advocate is not required to approve the AWA and does not approve the AWA under subsection (4) or (5), the Employment Advocate must refuse to approve it.

170VCC Principles for deciding whether approval of an AWA etc. is not contrary to the public interest

(1) The President may establish principles to provide general guidance to the Employment Advocate concerning whether approval of an AWA (or approval of an AWA as varied) is not contrary to the public interest.

(3) If the Employment Advocate applies to the President for the establishment of principles, the President must take such steps as the President considers appropriate to obtain the Employment Advocate’s views about the proposed principles.

170VCD Employment Advocate must issue approval or refusal notice

(1) If the Employment Advocate approves an AWA, the Employment Advocate must issue an approval notice to the employer.

(2) If the Employment Advocate refuses to approve an AWA, the Employment Advocate must issue a refusal notice to the employer.

(3) If a designated award applies to the AWA to which the approval notice or refusal notice relates, the Employment Advocate must identify the award in the notice.

(4) The Employment Advocate must also include in an approval notice a copy of each of the following:

(a) the provisions relating to discrimination referred to in subsection 170VBB(1) (if they are taken to be included in the AWA because of that subsection);

(b) the model procedure relating to a dispute resolution procedure referred to in subsection 170VBB(2) (if it is taken to be included in the AWA because of that subsection);

(c) a copy of each undertaking (if any) in relation to the AWA that is taken to be included in the AWA because of subsection 170VCB(3).

170VCE Consequences for AWA of failure to apply for approval, or refusal of approval

(1) If no application is made for approval of an AWA within the period of 60 days after the AWA date:

(a) if the AWA has already started operating—the AWA ceases to operate after the end of that period; and

(b) if the AWA has not already started operating—the AWA does not start to operate; and

(a) if the AWA has already started operating—the AWA ceases operating at the end of the day when the refusal notice is issued; and

(b) if the AWA has not already started operating—the AWA does not start to operate; and

170VCF Employer must give copies of documents to employee

(1) As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the AWA was made a copy of:

(b) any material that is taken to be included in the AWA because of subsections 170VBB(1) and (2) and subsection 170VCB(3).

(2) The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

Division 4—Effect of an AWA

170VD Effect of AWA on awards and agreements

(1) During its period of operation, an AWA operates to the exclusion of any award that would otherwise apply to the employee’s employment. This subsection has effect subject to subsections (2) and (3).

(a) after the commencement of an award that is made under subsection 170MX(3) and applies to the employee’s employment; and

(3) An AWA does not operate to the exclusion of an exceptional matters order, but prevails over an exceptional matters order to the extent of any inconsistency.

(4) During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee’s employment.

(a) a certified agreement prevails over the AWA to the extent of any inconsistency if:

(i) the certified agreement is in operation at the time the AWA comes into operation; and

(ii) the nominal expiry date of the certified agreement is after the date on which the AWA comes into operation; and

(iii) the certified agreement does not expressly allow a subsequent AWA to operate to the exclusion of the certified agreement or to prevail over the certified agreement to the extent of any inconsistency;

(b) a certified agreement that comes into operation after the nominal expiry date of the AWA prevails over the AWA to the extent of any inconsistency;

(c) in all other cases, the AWA operates to the exclusion of any certified agreement that would otherwise apply to the employee’s employment.

170VDA Effect of AWA on other laws

(1) Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency.

(2) Provisions in an AWA that deal with the following matters operate subject to the provisions of any State law that deals with the matter:

(3) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the AWA.

(4) To the extent of any inconsistency, an AWA prevails over prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.

Commonwealth law means an Act or any regulations or other instrument made under an Act.

prescribed conditions means conditions that are identified by the regulations.

State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or State agreement.

170VDB Parties must not breach AWA

170VDC Industrial action etc. by party to AWA

(1) During the period of operation of an AWA before its nominal expiry date, the employee must not engage in industrial action in relation to the employment to which the AWA relates.

(2) During the period of operation of an AWA before its nominal expiry date, the employer must not lock out the employee for the purpose of supporting or advancing claims in respect of the employee’s employment.

170VDD Employer’s successor and AWA to which employer is a party

(a) an employee who is a party to an AWA becomes an employee of a new employer because the new employer is a successor to the whole or any part of the previous employer’s business or undertaking; and

(iv) the new employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade or commerce;

(v) the employee is a maritime employee and the employee’s employment is in connection with constitutional trade or commerce;

(vi) the employee is a flight crew officer and the employee’s employment is in connection with constitutional trade or commerce;

then the new employer replaces the previous employer as a party to the AWA from the succession time.

(2) The succession does not affect the rights and obligations of the previous employer that arose before the succession.

Division 5—Extending, varying or terminating an AWA

Subdivision A—Extension agreements

170VE Agreement to extend AWA’s nominal expiry date

(1) An employer and employee may make a written agreement that extends the nominal expiry date of an AWA to which they are parties. The extended date cannot be more than 3 years after the AWA date.

(2) An extension agreement may only be made before the nominal expiry date of the AWA.

(3) An extension agreement is made when it is signed and dated by the employer and the employee who are parties to it.

(5) The employee may withdraw his or her consent to the extension agreement by giving written notice of the withdrawal of consent to the employer and the Employment Advocate before the end of the cooling-off period.

(6) The cooling-off period is the period of 14 days after the day on which the employee signs the agreement.

(7) Subject to section 170VEC, the extension agreement takes effect on the day on which the employer and the employee sign the agreement, or if they sign on different days, the later of those days.

170VEA Application for approval of extension agreement

(1) An employer must apply, in writing, to the Employment Advocate for approval of an extension agreement to which the employer is a party. An application for approval must be made within the period of 60 days starting on the day when the agreement takes effect.

Note: Subsection 170VEC(1) sets out the consequences of failure to apply for approval before the end of that period.

(b) any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

(3) Two or more extension agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

170VEB Employment Advocate must approve, or refuse to approve, extension agreement

(a) the application for approval of the extension agreement is made in accordance with section 170VEA; and

(b) is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

(3) If the Employment Advocate approves an extension agreement, the Employment Advocate must:

(4) If the Employment Advocate is not required to approve the extension agreement and does not approve the extension agreement under subsection (2), the Employment Advocate must:

Note: Subsection 170VEC(2) sets out the consequences of the issuing of a refusal notice.

(5) As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the extension agreement was made a copy of:

(6) The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

170VEC Consequences for extension agreement of failure to apply for approval or refusal of approval

(1) If no application is made for approval of an extension agreement within the period of 60 days starting on the day when the agreement took effect:

(a) the extension agreement ceases to have effect after the end of that period; and

(2) If the Employment Advocate issues a refusal notice in relation to the extension agreement, the extension agreement ceases to have effect at the end of the day when the refusal notice is issued.

Subdivision B—Variation agreements

170VED Agreement to vary an AWA

(1) An employer and employee may make a written agreement varying an AWA. A variation agreement is made when it is signed and dated by the employer and the employee who are parties to it.

Note: A variation agreement may vary the AWA’s nominal expiry date. However, the extended date cannot be more than 3 years after the AWA date (see sections 170VBC and 170VE).

(2) The employee may withdraw his or her consent to the variation agreement by giving written notice of the withdrawal of consent to the employer and the Employment Advocate before the end of the cooling-off period.

(3) The cooling-off period is the period of 14 days after the day on which the employee signs the agreement.

(4) Subject to sections 170VEF and 170VEJ, the variation agreement takes effect on:

(a) the day on which the employer and employee sign the variation agreement, or if they sign on different days, the later of those days; and

(b) if a day is specified in the variation agreement as the date of effect and that day is later than the day under paragraph (a)—the day specified in the agreement.

(5) Sections 170VBA and 170VBB apply to the AWA as varied in the same way as those sections apply to the original AWA.

170VEE Applications for approval of variation agreements

(1) An employer must apply, in writing, to the Employment Advocate for approval of a variation agreement to which the employer is a party unless the employee withdraws his or her consent to the variation agreement before the end of the cooling-off period referred to in subsection 170VED(3).

(2) An application for approval must be made within the period of 60 days starting on:

(a) the day on which the employer and the employee sign the variation agreement; or

Note: Subsection 170VEJ(1) sets out the consequences of failure to apply for approval by the deadline.

(b) any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

(4) Two or more variation agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

170VEF Consequences for variation agreement of employee’s withdrawal of consent

(a) an employee referred to in subsection 170VED(2) withdraws his or her consent to the variation agreement before the end of the cooling-off period referred to in subsection 170VED(3); and

(b) apart from this section, the variation agreement would already have taken effect;

170VEG Employment Advocate must approve, or refuse to approve, variation agreement

(a) the application for approval of the variation agreement is made in accordance with section 170VEE; and

(b) the variation agreement satisfies the requirements of section 170VBA as it applies to those agreements; and

(2) If the Employment Advocate has concerns about whether the AWA meets the requirements of subsection (1), the Employment Advocate must give the parties to the AWA an opportunity to:

(b) give to the Employment Advocate any information sought by the Employment Advocate.

The Employment Advocate must approve the AWA if satisfied that, because of the action taken or information given, those concerns are resolved.

(3) An undertaking accepted by the Employment Advocate is taken to be included in the AWA as varied.

(a) is not satisfied that the requirements of subsection 170VBA(1) (as it applies to the variation agreement) are met in all respects; but

(b) is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

(5) The Employment Advocate may approve the variation agreement if the Employment Advocate:

(a) is not satisfied that the AWA as varied passes the no-disadvantage test; but

(b) is satisfied that it is not contrary to the public interest to approve the variation agreement.

(6) In deciding whether approval of a variation agreement is not contrary to the public interest, the Employment Advocate must apply the principles (if any) referred to in section 170VCC.

(7) If the Employment Advocate is not required to approve the variation agreement and does not approve the variation agreement under subsection (4) or (5), the Employment Advocate must refuse to approve it.

170VEH Employment Advocate must issue approval or refusal notice

(1) If the Employment Advocate approves a variation agreement, the Employment Advocate must:

(2) If the Employment Advocate refuses to approve a variation agreement, the Employment Advocate must issue a refusal notice to the employer.

Note: Subsection 170VEJ(2) sets out the consequences of the issuing of a refusal notice.

170VEI Employer must give copies of documents to employee

(1) As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the variation agreement was made a copy of:

(2) The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

170VEJ Consequences for variation agreement of failure to apply for approval or refusal of approval

(1) If no application is made for approval of a variation agreement before the end of the period referred to in subsection 170VEE(2):

(a) if the variation agreement has already taken effect—the variation agreement ceases to have effect after the end of that period; and

(b) if the variation agreement has not already taken effect—the variation agreement does not take effect; and

(2) If the Employment Advocate issues a refusal notice in relation to the variation agreement:

(a) if the variation agreement has already taken effect—the variation agreement ceases to have effect at the end of the day when the refusal notice is issued; and

(b) if the variation agreement has not already taken effect—the variation agreement does not take effect.

Subdivision C—Terminating an AWA

170VEK Terminating an AWA

170VEL Termination agreement

(1) At any time, the employer and employee may make a written agreement to terminate the AWA.

(2) A termination agreement is made when it is signed and dated by the employer and the employee who are parties to it.

(4) The employee may withdraw his or her consent to the termination agreement by giving written notice of the withdrawal of consent to the employer and the Employment Advocate before the end of the cooling-off period.

(5) The cooling-off period is the period of 14 days after the day on which the employee signs the agreement.

(6) A termination agreement must be approved by the Employment Advocate under section 170VEN. If approved, the agreement takes effect:

(a) at the end of the day on which an approval notice is issued for the termination agreement; or

(b) if a time for termination is specified in the termination agreement and that time is later than the time under paragraph (a)—at the time specified in the termination agreement.

If the Employment Advocate refuses to approve the termination agreement, it does not take effect.

170VEM Application for approval of termination agreement

(1) An employer must apply, in writing, to the Employment Advocate for approval of a termination agreement to which the employer is a party.

(2) The application must be made within the period of 60 days starting when the termination agreement is made.

(b) any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

(4) Two or more termination agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

170VEN Employment Advocate must approve, or refuse to approve, termination agreement

(a) the application for approval of the termination agreement is made in accordance with section 170VEM; and

(b) is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

(3) If the Employment Advocate approves a termination agreement, the Employment Advocate must issue an approval notice to the employer.

(4) If the Employment Advocate is not required to approve the termination agreement and does not approve the termination agreement under subsection (2), the Employment Advocate must:

(5) As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the termination agreement was made a copy of:

(6) The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

170VEO Termination by Employment Advocate

(1) After the nominal expiry date of an AWA, the Employment Advocate may, on application in writing by either party, terminate the AWA if the Employment Advocate considers that it is not contrary to the public interest to do so.

(2) Before making a determination for the purposes of subsection (1), the Employment Advocate must take such steps as he or she thinks appropriate to obtain the views of each of the parties to the AWA about whether the AWA should be terminated.

(3) The Employment Advocate must issue a copy of its determination to the parties.

(4) A determination under subsection (3) takes effect at the end of the day on which the Employment Advocate issues copies of its determination, or at such later time as is specified in the determination.

170VEP Termination in accordance with the AWA

(1) After the nominal expiry date of an AWA, the employer or the employee may apply, in writing, to the Employment Advocate for approval to terminate the AWA in a manner provided for in the AWA.

(2) As soon as practicable after making the application, the applicant must give written notice of the application to the other party to the AWA.

(b) any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

(4) The termination of 2 or more AWAs may be covered by the same notice of application if:

(5) A termination referred to in subsection (1) must be approved by the Employment Advocate under section 170VEQ. If approved, the termination takes effect:

(a) at the end of the day on which an approval notice is issued in relation to the termination; or

(b) if a time for termination is specified in the application and that time is later than the time under paragraph (a)—at the time specified in the application.

If the Employment Advocate refuses to approve the termination, it does not take effect.

170VEQ Employment Advocate must approve, or refuse to approve, terminations under AWAs

(1) The Employment Advocate must approve an application made under section 170VEP if:

(2) If the Employment Advocate approves the application, the Employment Advocate must issue an approval notice to the applicant.

(3) If the Employment Advocate is not required to approve the termination, the Employment Advocate must:

(4) As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the applicant must give the other party to the AWA copy of the notice.

(5) The applicant must give the other party to the AWA any other document prescribed by the regulations, within the period required by the regulations.

Note: The heading to section 170VV is replaced by the heading “Civil penalties”.

(3) An application for an order under subsection (1) that relates to an AWA or ancillary document may be made by:

170VVA Eligible court may order employer to pay underpayment to employee

(1) If, in a proceeding against an employer under section 170VV, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under the AWA, the court may order the employer to pay to the employee the amount of the underpayment.

(2) An order must not be made under subsection (1) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceedings.

(3) This section does not apply to the extent that the amount of the loss or damage has been recovered by the employee who is a party to the AWA because of an order made under section 170VVA.

170VX Compensation for shortfall in entitlements—AWA not operating

(1) If an AWA stops operating in the circumstances set out in subsection (2) and the amount worked out under paragraph (a) below is less than the amount worked out under paragraph (b) below, the employee (or the Employment Advocate, or an authorised officer, on the employee’s behalf) is entitled to recover the shortfall from the employer in an eligible court:

(a) the total value of the entitlements to which the employee became entitled under the AWA for the period it was in operation;

(b) the total value of the entitlements to which the employee would have been entitled for that period (if the AWA had not been made) under the relevant award in respect of the employment to which the AWA relates.

(2) The circumstances are where the AWA stops operating because of one of the following:

(a) the employer’s failure to apply for approval of the AWA within the period of 60 days after the AWA date;

170VXA Compensation for shortfall in entitlements—AWA approved after employer’s action

(a) the Employment Advocate approved an AWA under subsection 170VCB(2) because the employer took action referred to in that subsection; and

(2) If the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b), the employee (or the Employment Advocate, or an authorised officer, on the employee’s behalf) is entitled to recover the shortfall from the employer in an eligible court:

(a) the total value of the entitlements to which the employee became entitled under the AWA for the period it was operating before it was approved;

(b) the total value of the entitlements to which the employee would have been entitled for that period if the AWA, as given to the Employment Advocate for approval, had taken account of the action taken by the employer.

170VXB Compensation for shortfall in entitlements—variation agreement ceasing to have effect

(1) If a variation agreement ceases to have effect in the circumstances set out in subsection (2) and the amount worked out under paragraph (a) below is less than the amount worked out under paragraph (b) below, the employee (or the Employment Advocate, or an authorised officer, on the employee’s behalf) is entitled to recover the shortfall in an eligible court:

(a) the total value of the entitlements to which the employee became entitled under the AWA, as varied, for the period during which the variation agreement had taken effect;

(b) the total value of the entitlements to which the employee would have been entitled for that period under the AWA before it was varied.

(2) The circumstances are where the variation agreement ceases to have effect because of one of the following:

(a) the employer’s failure to apply for approval of the variation agreement before the end of the period referred to in subsection 170VEE(2);

170VXC Compensation for shortfall in entitlements—variation agreement approved after employer’s action

(a) the Employment Advocate approved a variation agreement under subsection 170VEG(2) because the employer took action referred to in that subsection; and

(a) the total value of the entitlements to which the employee became entitled under the AWA, as varied, for the period during which the variation had taken effect;

(b) the total value of the entitlements to which the employee would have been entitled for that period if the variation agreement, as given to the Employment Advocate for approval, had taken account of the action taken by the employer.

170WEA Bargaining agents

(1) An employer or employee may appoint a person to be his or her bargaining agent in relation to the making, approval, variation or termination of an AWA. The appointment must be made in writing.

(2) Subject to subsection (3), an employer or employee must not refuse to recognise a bargaining agent duly appointed by the other party for the purposes of subsection (1).

(3) Subsection (2) does not apply if the person refusing has not been given a copy of the bargaining agent’s instrument of appointment before the refusal.

(4) An employer or employee must not coerce, or attempt to coerce, the other party:

(a) to appoint, or not to appoint, a particular person as an authorised bargaining agent; or

170WH Information must not be false or misleading

A person must not give the Employment Advocate information for the purposes of this Part that the person knows, or ought reasonably to know, is false or misleading.

The amendments made by items 1, 4, 7, 9 and 13 to 20 apply to AWAs, extension agreements, variation agreements and termination agreements made after the commencement of this Schedule.

The amendments made by items 3, 5 and 6 apply to AWAs, extension agreements, variation agreements and termination agreements whether made before, on or after the commencement of this Schedule.

(a) was approved under section 170VPB or 170VPG of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

(2) The AWA has effect, after that commencement, as if it had been approved under section 170VCB of the amended Act.

(a) the extension agreement was approved under section 170VPD of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

(2) The extension agreement has effect, after that commencement, as if it had been approved under section 170VEB of the amended Act.

(a) if the variation agreement was approved under section 170VPC or 170VPH of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

(2) The variation agreement has effect, after that commencement, as if it had been approved under section 170VEG of the amended Act.

(a) the termination agreement was approved under section 170VPD of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

(2) The termination agreement has effect, after that commencement, as if it had been approved under section 170VEN of the amended Act.

28 Saving—regulations made for purposes of former sections 170VG and 170VR

(a) regulations were made for the purposes of the former provision referred to in column 2 of the table; and

(b) the regulations were in force immediately before the commencement of this Schedule;

the regulations have effect, after that commencement, as if they had been made for the purposes of the new provision referred to in column 3.

Regulations continue to have effect
Column 1 Item	Column 2 Former provision	Column 3 New provision
1	subsection 170VG(1)	subsection 170VBB(1)
2	subsection 170VG(3)	subsection 170VBB(2)
3	subsection 170VR(4)	subsection 170VDA(4)

29 Saving—Gazette notices

If:

(a) a notice was published in the Gazette for the purposes of the former provision referred to in column 2 of the table; and

(b) the notice was in force immediately before the commencement of this Schedule;

the notice has effect, after that commencement, as if it had been published in the Gazette for the purposes of the new provision referred to in column 3.

Gazette notices continue to have effect
Column 1 Item	Column 2 Former provision	Column 3 New provision
1	paragraph 170VO(1)(c)	paragraph 170VC(3)(b)
2	paragraph 170VO(3)(c)	paragraph 170VEE(3)(b)
3	paragraph 170VO(4)(b)	paragraph 170VEA(2)(b)
4	paragraph 170VO(5)(b)	paragraph 170VEM(3)(b)
5	paragraph 170VO(6)(b)	paragraph 170VEP(3)(b)

30 Saving—prescribed conditions

(1) This item applies to conditions identified by regulations if:

(a) the regulations were made for the purposes of the definition of prescribed conditions in subsection 170VR(5) of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

(b) the regulations were in force immediately before that commencement.

(2) The regulations have effect, after that commencement, as if they had been made for the purposes of the definition of prescribed conditions in subsection 170VDA(5) of the amended Act.

31 Saving—appointment of bargaining agent

(1) This item applies to an appointment of a bargaining agent if:

(a) the appointment was made under subsection 170VK(1) of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule; and

(b) the appointment was in force immediately before that commencement.

(2) The appointment has effect, after that commencement, as if it had been made under subsection 170WEA(1) of the amended Act.

32 Definitions

In this Part:

amended Act means the Workplace Relations Act 1996 as amended by this Schedule.

former provision means a provision of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule.

new provision means a provision of the Workplace Relations Act 1996 as in force immediately after the commencement of this Schedule.

Schedule 4—Certified agreements

Part 1—Amendments

Workplace Relations Act 1996

1 Paragraph 170LJ(3)(a)

Repeal the paragraph, substitute:

(a) all the persons whose employment will be subject to the agreement, and who are employed on the day 14 days before approval is given, either have, or have ready access to, the agreement, in writing, at least 14 days before that approval is given; and

(aa) any person first employed less than 14 days before approval is given and whose employment will be subject to the agreement, either has, or has ready access to, the agreement, in writing, before that approval is given; and

2 After subsection 170LJ(3)

Insert:

(3A) The employer must, within the period of 7 days beginning on the day (the relevant day) on which the agreement is approved, take reasonable steps to inform each person whose employment will be subject to the agreement that the person may, no later than 28 days after the relevant day, request the Commission to hold a hearing in relation to whether the agreement should be certified.

3 Subsection 170LK(2)

Repeal the subsection, substitute:

(2) The employer must take reasonable steps to ensure that:

(a) all the persons whose employment will be subject to the agreement, and who are employed on the day 14 days before the agreement is made, have at least 14 days’ written notice of the intention to make the agreement; and

(b) any person whose employment will be subject to the agreement, and who is first employed less than 14 days before the agreement is made, has written notice of the intention to make the agreement before the agreement is made; and

The agreement must not be made before the 14 days mentioned in paragraph (a) have passed.

4 Subsection 170LK(7)

Repeal the subsection, substitute:

(7) The employer must, within the period of 7 days beginning on the day (the relevant day) on which the agreement is made, take reasonable steps to inform each person whose employment will be subject to the agreement that the person may, no later than 28 days after the relevant day, request the Commission to hold a hearing in relation to whether the agreement should be certified.

5 Subsection 170LK(8)

Omit “subsections (2), (3), (5) and (7)”, substitute “subsections (2), (3) and (5)”.

6 At the end of section 170LK

Add:

Note: The Commission may still certify an agreement if those steps are not taken again: see subsection 170LT(11).

7 Paragraph 170LR(2)(a)

Repeal the paragraph, substitute:

8 At the end of section 170LR

Add:

(3) The employer must, within the period of 7 days beginning on the day (the relevant day) on which the agreement is approved, take reasonable steps to inform each person whose employment will be subject to the agreement that the person may, no later than 28 days after the relevant day, request the Commission to hold a hearing in relation to whether the agreement should be certified.

9 Subsection 170LT(7)

Omit “paragraph 170LJ(3)(b), subsection 170LK(7) or paragraph 170LR(2)(b)”, substitute “paragraph 170LJ(3)(b), 170LK(2)(c) or 170LR(2)(b)”.

10 At the end of section 170LT

Add:

(11) Subsection 170LK(8) (which deals with variations of proposed agreements) does not prevent the Commission from certifying an agreement if:

(a) the proposed agreement was varied as mentioned in that subsection; and

(b) the requirements of that subsection were not satisfied; and

(c) the Commission is satisfied that no person whose employment would be covered by the proposed agreement suffered detriment as a result of that failure.

11 After section 170LV

Insert:

170LVA Hearings not required

(1) The Commission must make a decision whether or not to certify an agreement without holding a hearing unless:

(a) the Commission is not satisfied that it can make that decision with the information available to it; or

(b) any of the following persons requests the Commission, in accordance with subsection (2), to hold such a hearing and the Commission is satisfied that there are reasonable grounds for doing so:

(i) the employer;

(ii) a person whose employment will be subject to the agreement;

(iii) if the agreement is made in accordance with section 170LJ or 170LL or Division 3—one or more organisations of employees that made the agreement with the employer;

(iv) if the agreement is made in accordance with section 170LK—an organisation of employees that has notified the Commission, and the employer, in writing that it wants to be bound by the agreement;

(v) a person prescribed by the regulations.

(2) The request must be made no later than 28 days after:

(a) if the agreement is made in accordance with section 170LJ—the day on which the agreement is approved as mentioned in subsection 170LJ(2); or

(b) if the agreement is made in accordance with section 170LK or 170LL—the day on which the agreement is made; or

(c) if the agreement is made in accordance with Division 3—the day on which the agreement is approved as mentioned in subsection 170LR(1).

12 Subsection 170MC(1)

Omit “certified agreement”, substitute “certified agreement made in accordance with section 170LJ or 170LK or Division 3”.

13 Paragraphs 170MC(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) if the agreement was made in accordance with section 170LJ or Division 3—the employer and the one or more organisations bound by the agreement; or

(b) if the agreement was made in accordance with section 170LK—the employer;

14 After subsection 170MC(2)

Insert:

(2A) If one or more organisations are bound by an agreement made in accordance with section 170LK, the Commission must give each organisation an opportunity to make submissions before approving the extension.

(2B) However, such an organisation may only make a submission if the organisation has at least one member:

(a) whose employment is subject to the agreement; and

(b) whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

15 After subsection 170MC(4)

Insert:

(4A) The employer must, within the period of 7 days beginning on the extension day, take reasonable steps to inform each person whose employment is subject to the agreement on the extension day that the person may, no later than 28 days after the extension day, request the Commission to hold a hearing in relation to whether the extension should be approved.

(4B) In subsection (4A), extension day means the day on which the employer and the one or more organisations bound by the agreement, or the employer, extended the nominal expiry date of the agreement under subsection (1).

16 Subsection 170MC(5)

Repeal the subsection, substitute:

(5) This section does not apply to an agreement to which subsection 170LT(3) applied, in circumstances covered by the example in subsection 170LT(4) (short-term business crises).

17 Paragraphs 170MD(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) if the agreement was made in accordance with section 170LJ or 170LL or Division 3—the employer and the one or more organisations bound by the agreement; or

(b) if the agreement was made in accordance with section 170LK—the employer;

18 After subsection 170MD(2)

Insert:

(2B) However, such an organisation may only make a submission if the organisation has at least one member:

(a) whose employment is, or will be, subject to the agreement; and

(b) whose industrial interests the organisation is entitled to represent in relation to work that is, or will be, subject to the agreement; and

19 After subsection 170MD(5)

Insert:

(5A) The employer must, within the period of 7 days beginning on the variation day, take reasonable steps to inform each person whose employment is subject to the agreement on the variation day that the person may, no later than 28 days after the variation day, request the Commission to hold a hearing in relation to whether the variation should be approved.

(5B) In subsection (5A), variation day means the day on which the employer and the one or more organisations bound by the agreement, or the employer, varied the agreement under subsection (1).

20 Paragraphs 170MG(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) if the agreement was made in accordance with section 170LJ or 170LL or Division 3—the employer and the one or more organisations bound by the agreement; or

(b) if the agreement was made in accordance with section 170LK—the employer;

21 After subsection 170MG(2)

Insert:

(2A) If one or more organisations are bound by an agreement made in accordance with section 170LK, the Commission must give each organisation or organisations an opportunity to make submissions before approving the termination.

(2B) However, such an organisation may only make a submission if the organisation has at least one member:

(a) whose employment is subject to the agreement; and

(b) whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

22 At the end of section 170MG

Add:

(5) The employer must, within the period of 7 days beginning on the termination day, take reasonable steps to inform each person whose employment is subject to the agreement on the termination day that the person may, no later than 28 days after the termination day, request the Commission to hold a hearing in relation to whether the termination should be approved.

(6) In subsection (5), termination day means the day on which the employer and the one or more organisations bound by the agreement, or the employer, terminated the agreement under subsection (1).

23 Paragraph 170MH(1)(c)

Before “an organisation”, insert “if the agreement was made in accordance with section 170LJ or 170LL or Division 3—”.

24 After subsection 170MH(2)

Insert:

(2A) However, the Commission may only obtain the views of an organisation that is bound by an agreement made in accordance with section 170LK if the organisation has at least one member:

(a) whose employment is subject to the agreement; and

(b) whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

25 Paragraph 170MHA(2)(c)

Before “an organisation”, insert “if the agreement was made in accordance with section 170LJ or 170LL or Division 3—”.

26 After subsection 170MHA(3)

Insert:

(3A) If one or more organisations are bound by an agreement made in accordance with section 170LK, the Commission must give each organisation an opportunity to make submissions before approving the termination.

(3B) However, such an organisation may only make a submission if the organisation has at least one member:

(a) whose employment is subject to the agreement; and

(b) whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

27 At the end of Division 7 of Part VIB

Add:

170MHB Hearings not required

(1) The Commission must make a decision whether or not to extend, vary or terminate an agreement without holding a hearing unless:

(a) the Commission is not satisfied that it can make that decision with the information available to it; or

(b) any of the following persons requests the Commission, in accordance with subsection (2), to hold such a hearing and the Commission is satisfied that there are reasonable grounds for doing so:

(i) the employer;

(ii) an employee whose employment is subject to the agreement;

(iii) one or more organisations bound by the agreement;

(iv) a person prescribed by the regulations.

(2) The request must be made no later than 28 days after:

(a) if the nominal expiry date of the agreement was extended under subsection 170MC(1)—the day on which that occurred; or

(b) if the agreement was varied under subsection 170MD(1)—the day on which that occurred; or

(d) if an application under subsection 170MH(1) or 170MHA(1) was made to the Commission to have the agreement terminated or to have the termination approved (as the case may be)—the day on which that occurred.

Part 2—Application and transitional provisions

28 Application of items 1 to 11

The amendments made by items 1 to 11 apply in relation to any agreement where the application to certify the agreement is made after the commencement of this Schedule. The amendments also apply in relation to the applications to certify those agreements.

29 Application of items 12 to 27

The amendments made by items 12 to 27 apply to a decision made by the Commission after the commencement of this Schedule about the extension, variation or termination of a certified agreement in respect of applications for the extension, variation or termination made after that commencement.

30 Transitional provision—Rules of Commission

Within 8 months after the commencement of this Schedule, the President must, under section 48 of the Workplace Relations Act 1996, vary the Rules of the Commission to allow applications to the Commission under Part VIB of that Act, and ancillary documents in relation to such applications, to be given in electronic form.

Schedule 5—Secondary boycotts

Part 1—Amendments

Trade Practices Act 1974

1 Paragraph 87(1A)(b)

Omit “(other than section 45D or 45E)”.

2 Paragraph 87(1B)(a)

Omit “(other than section 45D or 45E)”.

Part 2—Application provision

3 Application

The amendments made by this Schedule apply only to conduct engaged in after the commencement of this Schedule.

Schedule 6—Federal awards

Part 1—Amendments

Workplace Relations Act 1996

1 Subsection 101(1)

After “subsection (2)”, insert “and sections 101A and 101B”.

2 After section 101

Insert:

101A When Commission must not make findings under section 101

If a party (the initiator) notifies an alleged industrial dispute under section 99 on the grounds that another party has not agreed to the demands set out in a log of claims that the initiator served on the other party, then the Commission must not make any findings under section 101 in relation to that dispute unless the Commission is satisfied that:

(a) the log of claims was accompanied by a notice containing information of the kind prescribed by the regulations when it was served; and

(b) the dispute was notified under section 99 at least 28 days after the log of claims was served; and

(c) at least 28 days before the day fixed for the initial proceedings in relation to the dispute, the initiator served each person alleged to be a party to the dispute with a notice specifying the time and place fixed for the proceedings; and

(d) the log of claims does not include any demand that:

(i) requires conduct that would contravene Part XA; or

(ii) a provision be included in an award that the Commission is prevented from including under subsection 89A(6A); or

(iii) an objectionable provision (within the meaning of section 170MDB) be included in an agreement; or

(iv) an objectionable provision (within the meaning of section 298Z) be included in an award or agreement; or

(v) does not pertain to the relationship between employers and employees.

101B Findings in relation to employers in small business

(1) This section applies if an organisation of employees notifies an alleged industrial dispute under section 99 on the grounds that one or more employers (each of which is a notified employer) have not agreed to the demands set out in a log of claims that the organisation served on those employers.

(2) Before making any findings under section 101 in relation to that dispute, the Commission must give each notified employer a notice in writing requesting that the employer inform the Commission, within the period specified in the notice, whether the employer employed less than 20 people on the service day.

(3) The Commission must not, in relation to the making of any findings under section 101 in relation to that dispute, determine that a notified employer, who informed the Commission under subsection (2) that the employer employed less than 20 people on the service day, is a party to that dispute unless:

(a) the Commission is not satisfied that the employer employed less than 20 people on the service day; or

(b) the Commission is satisfied that the employer employs a member of that organisation.

(4) Before making an award in relation to that dispute, the Commission must give each notified employer:

(a) determined to be a party to the dispute; and

(b) who informed the Commission under subsection (2) that the employer employed less than 20 people on the service day; and

a notice in writing inviting the employer to make written comments on the proposed award within the period specified in the notice.

(5) In this section, service day, in relation to a notified employer, means the day the log of claims was served on the employer.

(6) For the purposes of this section, in working out if a notified employer employed less than 20 people on the service day, include any casual employee who had been engaged on a regular and systematic basis for a sequence of periods of employment of at least 12 months (but do not include any other casual employee).

3 After section 290

Insert:

290A Certificate to the effect that an employee is a member of an organisation

(1) If a Registrar is satisfied, on application by an organisation of employees for the purposes of section 101B, that an employee of an employer is a member of that organisation, the Registrar may issue a certificate to that effect.

(2) The certificate must not identify any of the employees concerned. However, it must identify the organisation and the employer.

(3) The certificate is, for all purposes of this Act, evidence of the matters in the certificate.

Part 2—Application provision

4 Application of items 1, 2 and 3

The amendments made by items 1, 2 and 3 apply in relation to an alleged industrial dispute that is notified after the commencement of this Schedule.

Schedule 7—Entry and inspection of premises by organisations

Part 1—Amendments

Workplace Relations Act 1996

1 After subsection 285B(2)

Insert:

(2A) The person is only entitled to enter premises under subsection (2) if the organisation of which the person is an officer or employee has an invitation that meets the requirements of section 285CA.

2 Paragraph 285B(3)(a)

After “suspected breach”, insert “and relate to the employment of members of the organisation of which the person is an officer or employee”.

3 Paragraph 285B(3)(c)

After “who are”, insert “willing to be interviewed and are”.

4 After subsection 285B(3)

Insert:

(3A) The person must not, for the purpose of investigating the suspected breach, inspect or make copies of any document of the kind mentioned in subparagraphs (3)(a)(i) to (iii) that does not relate to the employment of members of the organisation of which the person is an officer or employee.

Note: This subsection is a civil penalty provision—see section 285F.

5 Subsection 285C(2)

Repeal the subsection, substitute:

(2) The person is only entitled to enter premises under subsection (1) if the organisation of which the person is an officer or employee has an invitation that meets the requirements of section 285CA.

(2A) The person is only entitled to enter the premises during working hours and may only hold the discussions during the employees’ meal-time or other breaks.

(2B) If an officer or employee of an organisation enters premises under subsection (1) on a particular day, then none of the following:

(a) that officer or employee;

(b) any other officer or employee of the organisation;

may enter the premises under subsection (1) during the period of 6 months beginning on that day.

6 After section 285C

Insert:

285CA Requirements of employee invitation to enter premises

(1) An organisation has an invitation that meets the requirements of this section in relation to entry to premises if the invitation:

(a) is in writing and is signed by at least one employee who works at the premises and is a member of the organisation; and

(b) is given to the organisation, or to an officer or employee of the organisation; and

(2) An invitation is a current invitation for the purposes of this section if the invitation is:

(a) given to the organisation, or to an officer or employee of the organisation, no earlier than 3 months before the proposed entry; or

(b) certified under section 291B no earlier than 3 months before the proposed entry.

Note: An organisation must have an invitation that meets the requirements of this section before powers of entry can be exercised on behalf of the organisation—see subsections 285B(2A) and 285C(2).

285CB Protection of inviting employee’s identity

(1) An invitation that meets the requirements of section 285CA may specify that the identity of the employee, or of each employee, giving the invitation is confidential.

(2) If the invitation does not so specify, the organisation to whom the invitation is given must ask the employee, or each employee, if he or she wishes his or her identity to be confidential.

Note: This subsection is a civil penalty provision—see section 285F.

(3) If an employee (the inviting employee) has informed the organisation that his or her identity in relation to the invitation is to be confidential, the organisation must not reveal the inviting employee’s identity to:

(a) the inviting employee’s employer; or

(b) the occupier of the premises to which the invitation relates.

Note: This subsection is a civil penalty provision—see section 285F.

7 Section 285D

Repeal the section, substitute:

285D Obligations on entering premises

(1) If:

(a) a person seeks to enter, or is on, premises in accordance with section 285B or 285C; and

(b) the relevant employer, or the occupier of the premises, requests the person to:

(i) show his or her invitation; or

(ii) show his or her permit;

the person must not, under section 285B or 285C, enter or remain on the premises unless he or she complies with the request.

Note: This subsection is a civil penalty provision—see section 285F.

(2) If the person is requested to show the invitation, the person complies with the request if he or she shows the person making the request a copy of the invitation or a copy of a certificate issued under section 291B in relation to the invitation.

(3) Subsection (2) is not to be taken to limit the means by which a person is able to comply with the request referred to in that subsection.

(4) Immediately upon entering the premises under section 285B or 285C, the person must take all reasonable steps to provide the relevant employer, and the occupier of the premises, with a card made available to the person under section 285DC.

Note 1: This subsection is a civil penalty provision—see section 285F.

Note 2: Cards under section 285DC must contain the information set out in Schedule 9 and the phone numbers of the Office of the Employment Advocate.

(5) In this section:

relevant employer means the employer of the employee or employees who gave the invitation.

285DA Notification of entry to premises

(1) A person must not seek to enter premises and exercise powers under section 285B or 285C unless:

(a) the person has given the relevant employer (a notified party), and the occupier of the premises (also a notified party), at least 5 working days’ notice, in writing, of the person’s intention to do so; and

(b) the notice specifies the day (the nominated day) on which entry is proposed; and

(d) the notice contains the information set out in Schedule 9 and contains the relevant phone number of the Office of the Employment Advocate.

Note 1: This subsection is a civil penalty provision—see section 285F.

Note 2: Cards under section 285DC must contain the phone numbers of the Office of the Employment Advocate.

(2) At least 1 working day before the nominated day, a notified party may give the person a notice in writing specifying another day on which the person may enter the premises. That other day must be no more than 5 working days after the nominated day.

(3) If a notified party gives the person such a notice, the party must give the other notified party a copy of the notice.

(4) Subject to subsection (5), if a notified party gives the person such a notice, the person may enter the premises only on the day specified in the notice.

(5) If:

(a) both notified parties give the person such a notice; and

(b) the notices specify different days on which the person may enter the premises;

the person may enter the premises only on the later of those days.

(6) In this section:

relevant employer means the employer of the employee or employees who gave the invitation.

285DB Premises used for residential purposes

A person is not, in exercising any powers under section 285B or 285C, entitled to enter any part of premises used for residential purposes, except with the permission of the occupier.

285DC Entry cards

(1) The Industrial Registrar must ensure that cards:

(a) containing the information set out in Schedule 9; and

(b) containing phone numbers of the Office of the Employment Advocate;

are prepared and made available to persons holding permits in force under this Division.

(2) The cards are to be in such form as the Industrial Registrar considers appropriate.

8 After section 285E

Insert:

285EA Prohibited conduct—employers

(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a) dismiss an employee;

(b) injure an employee in his or her employment;

(d) discriminate against an employee.

Note: This subsection is a civil penalty provision—see section 285F.

(2) Conduct referred to in subsection (1) is for a prohibited reason if it is carried out because the employee has given, or proposes to give, to an organisation, or to an officer or employee of an organisation, an invitation to enter premises under section 285B or 285C.

285EB Prohibited conduct—organisations

(1) An organisation, or an officer or member of an organisation, must not take, or threaten to take, industrial action whose aim, or one of whose aims, is to coerce a person to breach section 285EA.

Note: This subsection is a civil penalty provision—see section 285F.

(2) An organisation, or an officer or member of an organisation, must not, for a prohibited reason, or for reasons that include a prohibited reason, take or threaten to take, any action whose aim, or one of whose aims, is to prejudice a person in the person’s employment.

Note: This subsection is a civil penalty provision—see section 285F.

(3) An organisation, or an officer or member of an organisation, must not, for a prohibited reason, or for reasons that include a prohibited reason, impose, or threaten to impose, a penalty, forfeiture or disability of any kind on a person who is a member of the organisation.

Note: This subsection is a civil penalty provision—see section 285F.

(4) Conduct referred to in subsection (2) or (3) is for a prohibited reason if it is carried out because the person:

(a) has refused to give to the organisation, or to an officer or employee of the organisation, an invitation to enter premises under section 285B or 285C; or

(b) has given to another organisation, or to an officer or employee of another organisation, an invitation to enter premises under section 285B or 285C.

(5) An organisation, or an officer or member of an organisation, must not make it a condition of a person becoming a member of the organisation that the person give the organisation, or an officer or employee of the organisation, an invitation to enter premises under section 285B or 285C.

Note: This subsection is a civil penalty provision—see section 285F.

(6) An organisation, or an officer or member of an organisation, must not harass a member of the organisation to give the organisation, or an officer or employee of the organisation, an invitation to enter premises under section 285B or 285C.

Note: This subsection is a civil penalty provision—see section 285F.

9 Subsection 285F(1) (definition of penalty provision)

Repeal the definition, substitute:

penalty provision means subsection 285A(5), 285B(3A), 285CB(2) or (3), 285D(1) or (4), 285DA(1), 285E(1), (2), (3) or (4), 285EA(1) or 285EB(1), (2), (3), (5) or (6).

10 After section 291A

Insert:

291B Certificate as to invitation to enter premises

(1) If a Registrar is satisfied, on application by an organisation, that:

(a) an invitation to enter specified premises has been given to the organisation no earlier than 3 months before the organisation’s application to the Registrar is made; and

(b) the invitation meets the requirements of paragraphs 285CA(1)(a) and (b);

the Registrar must issue a certificate to that effect.

(2) For the purposes of this section, an invitation is taken to have been given to an organisation if it is given to an officer or employee of the organisation.

(3) The certificate must not identify any of the employees who signed the invitation. However, it must identify the organisation to whom the invitation was given, the premises to which the invitation relates, the employer of the employees and the occupier of those premises.

(4) The certificate is, for all purposes of this Act, evidence that the invitation was given and that it met the requirements of section 285CA.

11 Before Schedule 10

Insert:

Schedule 9—Information relating to entry to premises under section 285B or 285C

Note: See sections 285DA and 285DC.

When does a union official have a right to enter a workplace under federal law?

The federal Workplace Relations Act 1996 allows unions to enter work premises. The Act imposes rights and obligations on unions, employers and occupiers of premises. The rights and obligations are outlined below. Penalties may apply to a person who does not act in accordance with these rights and obligations.

If you have any queries or concerns, call the Office of the Employment Advocate.

A union official may enter business premises either to:

• Investigate suspected breaches of the Workplace Relations Act 1996, an award, a certified agreement or order of the Australian Industrial Relations Commission; or

• Hold discussions with employees (but only once every 6 months and

Commonwealth of Australia Bills

WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT (SMALL BUSINESS AND OTHER MEASURES) BILL 2001

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Objects provisions

Schedule 2—Unfair dismissal

170CEAA Dismissal of application

Schedule 3—AWAs

Division 1—Preliminary

Subdivision A—Outline of Part

170VA Outline of Part

Subdivision B—Interpretation

170VAA Definitions

170VAB Proposed AWAs and ancillary documents—interpretation

Subdivision C—Scope of this Part etc.

170VAC Scope of this Part

170VAD AWAs and ancillary documents only have effect as provided by this Part

Division 2—Making an AWA

170VB Employer and employee may make an AWA

170VBA Making an AWA

170VBB Content of AWA

170VBC Nominal expiry date of AWA

170VBD Period of operation of AWA

Division 3—Approval of AWAs

170VC Applications for approval of AWAs

170VCA Consequences for AWA of employee’s withdrawal of consent

170VCB Employment Advocate must approve, or refuse to approve, AWA

170VCC Principles for deciding whether approval of an AWA etc. is not contrary to the public interest

170VCD Employment Advocate must issue approval or refusal notice

170VCE Consequences for AWA of failure to apply for approval, or refusal of approval

170VCF Employer must give copies of documents to employee

Division 4—Effect of an AWA

170VD Effect of AWA on awards and agreements

170VDA Effect of AWA on other laws

170VDB Parties must not breach AWA

170VDC Industrial action etc. by party to AWA

170VDD Employer’s successor and AWA to which employer is a party

Division 5—Extending, varying or terminating an AWA

Subdivision A—Extension agreements

170VE Agreement to extend AWA’s nominal expiry date

170VEA Application for approval of extension agreement

170VEB Employment Advocate must approve, or refuse to approve, extension agreement

170VEC Consequences for extension agreement of failure to apply for approval or refusal of approval

Subdivision B—Variation agreements

170VED Agreement to vary an AWA

170VEE Applications for approval of variation agreements

170VEF Consequences for variation agreement of employee’s withdrawal of consent

170VEG Employment Advocate must approve, or refuse to approve, variation agreement

170VEH Employment Advocate must issue approval or refusal notice

170VEI Employer must give copies of documents to employee

170VEJ Consequences for variation agreement of failure to apply for approval or refusal of approval

Subdivision C—Terminating an AWA

170VEK Terminating an AWA

170VEL Termination agreement

170VEM Application for approval of termination agreement

170VEN Employment Advocate must approve, or refuse to approve, termination agreement

170VEO Termination by Employment Advocate

170VEP Termination in accordance with the AWA

170VEQ Employment Advocate must approve, or refuse to approve, terminations under AWAs

170VVA Eligible court may order employer to pay underpayment to employee

170VX Compensation for shortfall in entitlements—AWA not operating

170VXA Compensation for shortfall in entitlements—AWA approved after employer’s action

170VXB Compensation for shortfall in entitlements—variation agreement ceasing to have effect

170VXC Compensation for shortfall in entitlements—variation agreement approved after employer’s action

170WEA Bargaining agents

170WH Information must not be false or misleading

Schedule 4—Certified agreements

170LVA Hearings not required

170MHB Hearings not required

Schedule 5—Secondary boycotts

Schedule 6—Federal awards

101A When Commission must not make findings under section 101

101B Findings in relation to employers in small business

290A Certificate to the effect that an employee is a member of an organisation

Schedule 7—Entry and inspection of premises by organisations

285CA Requirements of employee invitation to enter premises

285CB Protection of inviting employee’s identity

285D Obligations on entering premises

285DA Notification of entry to premises