Fair Work (Commonwealth Powers) Amendment Act 2009

i Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENT OF THE FAIR WORK (COMMONWEALTH POWERS) ACT 2009 3 3 Definitions 3 4 Insertion of new section 3A 4 3A Fundamental workplace relations principles 4 5 Insertion of definition in section 5 5 6 Termination of references 6 7 Repeal of provision as to proclamation 6 8 Insertion of new section after section 7 6 7A Period for termination of references 6 PART 3—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 8 9 Amendment of the Country Fire Authority Act 1958 8 10 Amendment of the Disability Act 2006 10 11 Amendment of the Duties Act 2000 10 12 Amendment of the Equal Opportunity Act 1995 10 13 Amendment of the Fundraising Act 1998 12 14 Amendment of the Health Services (Conciliation and Review) Act 1987 12 15 Amendment of the Legal Profession Act 2004 13 16 Amendment of the Parliamentary Administration Act 2005 13 17 Amendment of the Petroleum (Submerged Lands) Act 1982 13 18 Amendment of the Pre-school Teachers and Assistants (Leave) Act 1984 14 19 Amendment of the Rail Safety Act 2006 15 20 Amendment of the Working with Children Act 2005 15 -- 1 of 19 -- Section Page ii PART 4—REPEAL OF THIS ACT 16 21 Repeal of this Act 16 ═══════════════ ENDNOTES 17 -- 2 of 19 -- 1 Fair Work (Commonwealth Powers) Amendment Act 2009 † No. 74 of 2009 [Assented to 1 December 2009] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The purposes of this Act are— (a) to amend the Fair Work (Commonwealth Powers) Act 2009 as a consequence of various proposed amendments to the Fair Work Act 2009 of the Commonwealth, and to make other minor amendments to the Victoria -- 3 of 19 -- Part 1—Preliminary Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 2 Fair Work (Commonwealth Powers) Act 2009; (b) to make related amendments to other Acts. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of Part 1, 3 or 4 does not come into operation before 1 July 2010 it comes into operation on that day. __________________ s. 2 -- 4 of 19 -- Part 2—Amendment of the Fair Work (Commonwealth Powers) Act 2009 Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 3 PART 2—AMENDMENT OF THE FAIR WORK (COMMONWEALTH POWERS) ACT 2009 3 Definitions (1) In paragraph (c) in the definition of referred subject matters in section 3(1) of the Fair Work (Commonwealth Powers) Act 2009— (a) after "responsibilities of" insert "persons, including" (b) in subparagraph (i), after "freedom of association" insert "in the context of workplace relations,"; (c) in subparagraph (viii), before "rights of entry" insert "union". (2) In the definition of State subject matters in section 3(1) of the Fair Work (Commonwealth Powers) Act 2009— (a) for paragraph (g) substitute— "(g) training arrangements;"; (b) for paragraph (h) substitute— "(h) long service leave;"; (c) for paragraph (k) substitute— "(k) declaration, prescription or substitution of public holidays;". (3) Insert the following definition in section 3(1) of the Fair Work (Commonwealth Powers) Act 2009— "fundamental workplace relations principles means the principles set out in section 3A;". (4) In section 3(1) of the Fair Work (Commonwealth Powers) Act 2009, the definition of essential services is repealed. s. 3 See: Act No. 24/2009. LawToday: www. legislation. vic.gov.au -- 5 of 19 -- Part 2—Amendment of the Fair Work (Commonwealth Powers) Act 2009 Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 4 (5) For section 3(3) of the Fair Work (Commonwealth Powers) Act 2009 substitute— "(3) Words or phrases in the definition of referred subject matters or in the definition of State subject matters that are defined in the Commonwealth Fair Work Act (other than in Division 2A of Part 1–3 of the Commonwealth Fair Work Act) have the meaning set out in the Commonwealth Fair Work Act as in force on 1 July 2009.". 4 Insertion of new section 3A After section 3 of the Fair Work (Commonwealth Powers) Act 2009 insert— "3A Fundamental workplace relations principles The following are the fundamental workplace relations principles under this Act— (a) that the Commonwealth Fair Work Act should provide for, and continue to provide for, the following— (i) a strong, simple and enforceable safety net of minimum employment standards; (ii) genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities; (iii) collective bargaining at the enterprise level with no provision for individual statutory agreements; s. 4 -- 6 of 19 -- Part 2—Amendment of the Fair Work (Commonwealth Powers) Act 2009 Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 5 (iv) fair and effective remedies available through an independent umpire; (v) protection from unfair dismissal; (b) that there should be, and continue to be, in connection with the operation of the Commonwealth Fair Work Act, the following— (i) an independent tribunal system; (ii) an independent authority able to assist employers and employees within a national workplace relations system.". 5 Insertion of definition in section 5 After section 5(2) of the Fair Work (Commonwealth Powers) Act 2009 insert— "(3) In this section, essential services means any of the following— (a) any matter in respect of which a proclamation has been made under Part 6 of the Electricity Industry Act 2000; (b) any matter in respect of which a proclamation has been made under Part 9 of the Gas Industry Act 2001; (c) any vital State project that is declared to be so under the Vital State Projects Act 1976; (d) any vital industry that is declared to be so under the Vital State Industries (Works and Services) Act 1992.". s. 5 -- 7 of 19 -- Part 2—Amendment of the Fair Work (Commonwealth Powers) Act 2009 Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 6 6 Termination of references After section 6(4) of the Fair Work (Commonwealth Powers) Act 2009 insert— "(5) If the amendment reference and the transition reference have been terminated, the expression the references in subsection (1) refers only to the initial reference.". 7 Repeal of provision as to proclamation Section 7(3) of the Fair Work (Commonwealth Powers) Act 2009 is repealed. 8 Insertion of new section after section 7 After section 7 of the Fair Work (Commonwealth Powers) Act 2009 insert— "7A Period for termination of references (1) Subject to subsection (2), a day fixed by a proclamation under section 6(1) must be no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published. (2) If— (a) a proclamation under section 6(1) only provides for the termination of the amendment reference; and (b) the Governor in Council, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor in Council, the Commonwealth Fair Work Act— (i) is proposed to be amended (by an amendment introduced into the Parliament of the Commonwealth by a Commonwealth Minister); or s. 6 -- 8 of 19 -- Part 2—Amendment of the Fair Work (Commonwealth Powers) Act 2009 Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 7 (ii) has been amended— in a manner that is inconsistent with one or more of the fundamental workplace relations principles— the day fixed by the proclamation under section 6(1)(b) may be earlier than the day that applies under subsection (1) but must be no earlier than the first day after the end of the period of 3 months beginning on the day on which the proclamation is published. (3) If the Governor in Council terminates the amendment reference and fixes a day under subsection (2), the Minister must, as soon as practicable after the publication of the relevant proclamation, prepare a report on the matter and cause copies of that report to be laid before both Houses of Parliament.". __________________ s. 8 -- 9 of 19 -- Part 3—Consequential Amendments to Other Acts Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 8 PART 3—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 9 Amendment of the Country Fire Authority Act 1958 (1) Insert the following definitions in section 3(1) of the Country Fire Authority Act 1958— "Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth; federal award or agreement means— (a) a modern award within the meaning of the Fair Work Act 2009 of the Commonwealth; or (b) a determination of Fair Work Australia made under the Fair Work Act 2009 of the Commonwealth; or (c) an award-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or (d) a transitional minimum wage instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or (e) an enterprise agreement made under the Fair Work Act 2009 of the Commonwealth; or (f) an agreement-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;". s. 9 -- 10 of 19 -- Part 3—Consequential Amendments to Other Acts Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 9 (2) In section 18(1) of the Country Fire Authority Act 1958— (a) for "any award or agreement under any Act of the Commonwealth relating to conciliation and arbitration or under Part 2 of the Employee Relations Act 1992" substitute "any federal award or agreement or minimum wage order under the Fair Work Act 2009 of the Commonwealth"; (b) for "(if such an award or employment agreement is not applicable)" substitute "(if such an award, agreement or minimum wage order does not apply)". (3) In section 18(2) of the Country Fire Authority Act 1958— (a) for "any award or agreement under any Act of the Commonwealth relating to conciliation or arbitration or under Part 2 of the Employee Relations Act 1992" substitute "any federal award or agreement or the National Employment Standards under the Fair Work Act 2009 of the Commonwealth"; (b) for "(if no such award or employment agreement is applicable)" substitute "(if such an award, agreement or Standard does not apply)". (4) In section 110(1)(b) of the Country Fire Authority Act 1958, for "an award or agreement under any Act of the Commonwealth relating to conciliation and arbitration or a determination of a wages board or Industrial Appeals Court is not applicable" substitute "no federal award or agreement applies". s. 9 -- 11 of 19 -- Part 3—Consequential Amendments to Other Acts Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 10 10 Amendment of the Disability Act 2006 (1) Insert the following definitions in section 3(1) of the Disability Act 2006— "Australian Industrial Relations Commission means the body established by section 61 of the Workplace Relations Act 1996 of the Commonwealth, as in force before its repeal; Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;". (2) In section 121(1)(b) of the Disability Act 2006, after "initiated before" insert "Fair Work Australia or". 11 Amendment of the Duties Act 2000 In the definition of industrial organisation in section 3(1) of the Duties Act 2000, for "the Workplace Relations Act 1996 of the Commonwealth" substitute "the Fair Work (Registered Organisations) Act 2009 of the Commonwealth". 12 Amendment of the Equal Opportunity Act 1995 (1) In section 4(1) of the Equal Opportunity Act 1995— (a) for paragraph (a) in the definition of employee substitute— "(a) a person employed under a contract of service, whether or not under a federal agreement or award;"; (b) for paragraph (a) in the definition of employer substitute— "(a) a person who employs another person under a contract of service, whether or not under a federal agreement or award;"; s. 10 -- 12 of 19 -- Part 3—Consequential Amendments to Other Acts Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 11 (c) for paragraph (a) in the definition of employment substitute— "(a) employment under a contract of service, whether or not under a federal agreement or award;"; (d) for paragraph (a) in the definition of employment entitlements substitute— "(a) contract of service; or (aa) federal agreement or award; or (ab) minimum wage order under the Fair Work Act 2009 of the Commonwealth; or"; (e) insert the following definition— "Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;". (2) For section 4(3) of the Equal Opportunity Act 1995 substitute— "(3) A reference in the definition of employee, employer, employment or employment entitlements in subsection (1) to a federal agreement or award is a reference to— (a) an enterprise agreement made under the Fair Work Act 2009 of the Commonwealth; or (b) an agreement-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or (c) a modern award within the meaning of the Fair Work Act 2009 of the Commonwealth; or s. 12 -- 13 of 19 -- Part 3—Consequential Amendments to Other Acts Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 12 (d) a determination of Fair Work Australia made under the Fair Work Act 2009 of the Commonwealth; or (e) an award-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or (f) a transitional minimum wage instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.". 13 Amendment of the Fundraising Act 1998 In section 16(g) of the Fundraising Act 1998, for "the Workplace Relations Act 1996 or the Industrial Relations Act 1988" substitute "the Fair Work (Registered Organisations) Act 2009". 14 Amendment of the Health Services (Conciliation and Review) Act 1987 (1) Insert the following definitions in section 3(1) of the Health Services (Conciliation and Review) Act 1987— "Australian Industrial Relations Commission means the body established by section 61 of the Workplace Relations Act 1996 of the Commonwealth, as in force before its repeal; Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;". (2) For the definition of Industrial Tribunal in section 3(1) of the Health Services (Conciliation and Review) Act 1987 substitute— s. 13 -- 14 of 19 -- Part 3—Consequential Amendments to Other Acts Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 13 "industrial tribunal means Fair Work Australia or the Australian Industrial Relations Commission;". 15 Amendment of the Legal Profession Act 2004 For section 2.2.2(2)(e) of the Legal Profession Act 2004 substitute— "(e) a person who prepares— (i) an enterprise agreement within the meaning of the Fair Work Act 2009 of the Commonwealth; or (ii) an agreement-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth— on behalf of a party or proposed party to the agreement;". 16 Amendment of the Parliamentary Administration Act 2005 (1) Section 1(b) of the Parliamentary Administration Act 2005 is repealed. (2) Section 3(ca) of the Parliamentary Administration Act 2005 is repealed. 17 Amendment of the Petroleum (Submerged Lands) Act 1982 (1) Insert the following definition in clause 3 of Schedule 7 to the Petroleum (Submerged Lands) Act 1982— "Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;". s. 15 -- 15 of 19 -- Part 3—Consequential Amendments to Other Acts Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 14 (2) For the definition of registered organisation in clause 3 of Schedule 7 to the Petroleum (Submerged Lands) Act 1982 substitute— "registered organisation means an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth;". (3) In the definition of reviewing authority in clause 3 of Schedule 7 to the Petroleum (Submerged Lands) Act 1982, for "the Australian Industrial Relations Commission" substitute "Fair Work Australia". 18 Amendment of the Pre-school Teachers and Assistants (Leave) Act 1984 (1) Insert the following definition in section 3(1) of the Pre-school Teachers and Assistants (Leave) Act 1984— "Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;". (2) For the definition of award in section 3(1) of the Pre-school Teachers and Assistants (Leave) Act 1984 substitute— "award means— (a) an enterprise agreement made under the Fair Work Act 2009 of the Commonwealth; or (b) an agreement-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or (c) a modern award within the meaning of the Fair Work Act 2009 of the Commonwealth; or s. 18 -- 16 of 19 -- Part 3—Consequential Amendments to Other Acts Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 15 (d) a determination of Fair Work Australia made under the Fair Work Act 2009 of the Commonwealth; or (e) an award-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;". (3) In the definition of sick leave in section 3(1) of the Pre-school Teachers and Assistants (Leave) Act 1984, after "an award" insert "or in accordance with the National Employment Standards under the Fair Work Act 2009 of the Commonwealth". 19 Amendment of the Rail Safety Act 2006 For the definition of registered employee organisation in section 3(1) of the Rail Safety Act 2006 substitute— "registered employee organisation means an organisation, of which some or all of the members are employees, that is registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.". 20 Amendment of the Working with Children Act 2005 (1) In section 33(2)(c)(ii)(B) of the Working with Children Act 2005, for "the Workplace Relations Act 1996 of the Commonwealth" substitute "the Fair Work Act 2009 of the Commonwealth". (2) In section 35(2)(c)(ii) of the Working with Children Act 2005, for "the Workplace Relations Act 1996 of the Commonwealth" substitute "the Fair Work Act 2009 of the Commonwealth". __________________ s. 19 -- 17 of 19 -- Part 4—Repeal of this Act Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 16 PART 4—REPEAL OF THIS ACT 21 Repeal of this Act This Act is repealed on the first anniversary of the first day on which all of its provisions are in operation. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 21 -- 18 of 19 -- Fair Work (Commonwealth Powers) Amendment Act 2009 No. 74 of 2009 17 ENDNOTES † Minister's second reading speech— Legislative Assembly: 15 October 2009 Legislative Council: 12 November 2009 The long title for the Bill for this Act was "A Bill for an Act to amend the Fair Work (Commonwealth Powers) Act 2009 and to make related amendments to other Acts and for other purposes." Endnotes -- 19 of 19 --