s 1Short title
This Act may be cited as the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
This Act may be cited as the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
|---|---|---|
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 25 June 2009 |
2. Schedules 1 to 5 | The day on which Part 2‑4 of the Fair Work Act 2009 commences. | 1 July 2009 |
3. Schedule 6, Parts 1 and 2 | At the same time as the provision(s) covered by table item 2. | 1 July 2009 |
4. Schedule 6, Part 3 | Immediately after the commencement of Part 2‑3 of the Fair Work Act 2009. | 1 January 2010 |
4A. Schedule 6A | At the same time as the provision(s) covered by table item 2. | 1 July 2009 |
5. Schedules 7 to 21 | At the same time as the provision(s) covered by table item 2. | 1 July 2009 |
6. Schedule 22, items 1 to 90 | At the same time as the provision(s) covered by table item 2. | 1 July 2009 |
7. Schedule 22, item 91 | Immediately after the commencement of the provisions covered by table item 8. | 1 July 2009 |
8. Schedule 22, items 92 to 627 | At the same time as the provision(s) covered by table item 2. | 1 July 2009 |
9. Schedule 23, items 1 to 2E | Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. | 1 July 2009 |
10. Schedule 23, items 3 to 6 | Immediately after the commencement of Part 2‑2 of the Fair Work Act 2009. | 1 January 2010 |
11. Schedule 23, item 7 | Immediately after the commencement of Part 2‑3 of the Fair Work Act 2009. | 1 January 2010 |
12. Schedule 23, item 8 | Immediately after the commencement of Part 2‑8 of the Fair Work Act 2009. | 1 July 2009 |
13. Schedule 23, item 9 | Immediately after the commencement of Division 1 of Part 2‑9 of the Fair Work Act 2009. | 1 July 2009 |
13A. Schedule 23, items 9A and 9B | Immediately after the commencement of Part 3‑1 of the Fair Work Act 2009. | 1 July 2009 |
14. Schedule 23, items 10 to 12 | Immediately after the commencement of Part 3‑3 of the Fair Work Act 2009. | 1 July 2009 |
15. Schedule 23, items 13 to 21 | Immediately after the commencement of Part 4‑1 of the Fair Work Act 2009. | 1 July 2009 |
15A. Schedule 23, item 21A | Immediately after the commencement of Part 6‑1 of the Fair Work Act 2009. | 1 July 2009 |
15B. Schedule 23, items 21B and 21C | Immediately after the commencement of Part 6‑4 of the Fair Work Act 2009. | 1 July 2009 |
16. Schedule 23, item 22 | Immediately after the commencement of section 799 of the Fair Work Act 2009. | 1 July 2009 |
This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
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.
Coverage terms must be included
A modern enterprise award must include terms (coverage terms) setting out, in accordance with this section:
the enterprise or enterprises to which the modern enterprise award relates; and
the employers, employees and organisations that are covered by the modern enterprise award.
Enterprises
A modern enterprise award must be expressed to relate:
to a single enterprise (or a part of a single enterprise) only; or
to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:
franchisees of the same franchisor; or
related bodies corporate of the same franchisor; or
any combination of the above.
Employers and employees
A modern enterprise award must be expressed to cover:
a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subsection (2); and
specified employees of employers covered by the modern enterprise award.
Organisations
A modern enterprise award may be expressed to cover one or more specified organisations, in relation to:
all or specified employees covered by the award; or
the employer, or all or specified employers, covered by the award.
Outworker entities
A modern enterprise award must not be expressed to cover outworker entities.
How coverage etc. is expressed
For the purposes of subsection (2), an enterprise must be specified:
if paragraph (2)(a) applies to the enterprise—by name; or
if paragraph (2)(b) applies to the enterprise—by name, or by the name of the franchise.
For the purposes of subsections (3) and (4):
an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and
employees must be specified by inclusion in a specified class or specified classes; and
organisations must be specified by name.
Employees not traditionally covered by awards etc.
A modern enterprise award must not be expressed to cover classes of employees:
who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
For example, in some industries, managerial employees have traditionally not been covered by awards.
27 At the end of Part 2‑3
Add:
This Division contains additional provisions that relate to modern enterprise awards. The provisions in this Division have effect despite anything else in this Part.
A modern enterprise award is a modern award that is expressed to relate to:
a single enterprise (or a part of a single enterprise) only; or
one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:
franchisees of the same franchisor; or
related bodies corporate of the same franchisor; or
any combination of the above.
A single enterprise is:
a business, project or undertaking that is carried on by an employer; or
the activities carried on by:
the Commonwealth, a State or a Territory; or
a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
any other body in which the Commonwealth, a State or a Territory has a controlling interest.
For the purposes of subsection (3), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.
For the purposes of subsection (3), if 2 or more related bodies corporate each carry on a single enterprise:
the bodies corporate are taken to be one employer; and
the single enterprises are taken to be one single enterprise.
However, a modern enterprise award could just relate to a part of that single enterprise.
A part of a single enterprise includes, for example:
a geographically distinct part of the single enterprise; or
a distinct operational or organisational unit within the single enterprise.
What is the modern enterprise awards objective?
FWA must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.
When does the modern enterprise awards objective apply?
The modern enterprise awards objective applies to the performance of FWA’s functions or powers under this Act, so far as they relate to modern enterprise awards.
References to the modern awards objective
A reference to the modern awards objective in this Act, other than section 134, is taken to include a reference to the modern enterprise awards objective.
Making modern enterprise awards
FWA must not, under this Part:
make a modern enterprise award; or
make a determination varying a modern award so that it becomes a modern enterprise award.
Modern enterprise awards can be made only in accordance with the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Revoking modern enterprise awards
FWA may make a determination revoking a modern enterprise award only on application under section 158.
FWA must not make a determination revoking a modern enterprise award unless FWA is satisfied that:
the award is obsolete or no longer capable of operating; or
all the employees covered by the award will, when the revocation comes into operation, be covered by a different modern award (other than the miscellaneous modern award or a modern enterprise award) that is appropriate for them.
In deciding whether to make a determination revoking a modern enterprise award FWA must take into account the following:
the circumstances that led to the making of the modern enterprise award;
the content of the modern award referred to in paragraph (3)(b);
the terms and conditions of employment applying in the industry in which the persons covered by the modern enterprise award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;
the extent to which the modern enterprise award provides enterprise‑specific terms and conditions of employment;
the likely impact on the persons covered by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (3)(b), of a decision to revoke, or not revoke, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
the views of the persons covered by the modern enterprise award;
any other matter prescribed by the regulations.
The Governor‑General may:
assign a Judge (other than the Chief Justice) to one of the Divisions either:
in the commission of appointment of the Judge; or
at a later time, with the consent of the Judge; and
vary any such assignment, with the consent of the Judge.
A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).
4 Section 7
Before “Whenever”, insert “(1)”.
5 At the end of section 7
Add:
For the purposes of this Act, a person who is performing duties and exercising powers under subsection (1) is taken not to be assigned to either Division of the Court.
A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).
6 After section 12
Insert:
For the purpose of the organisation and conduct of the business of the Court, the Court comprises 2 Divisions:
the General Division; and
the Fair Work Division.
Every proceeding in the Court must be instituted, heard and determined in a Division.
Fair Work Division
The following jurisdiction of the Court is to be exercised in the Fair Work Division:
jurisdiction that is required by any other Act to be exercised in the Fair Work Division;
jurisdiction that is incidental to such jurisdiction.
Under section 562 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Court in relation to matters arising under that Act.
General Division
The following jurisdiction of the Court is to be exercised in the General Division:
jurisdiction that is not required by any other Act to be exercised in the Fair Work Division;
jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).
Jurisdiction that is required to be exercised in both Divisions
If the Court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Justice may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.
7 After subsection 15(1)
Insert:
Exercise of powers of General and Fair Work Divisions of the Court
A Judge who is assigned to a Division of the Court must exercise, or participate in exercising, the powers of the Court only in that Division, except as set out in subsection (1B).
The Chief Justice may arrange for a Judge who is assigned to a particular Division of the Court to exercise, or participate in exercising, the powers of the Court in the other Division if the Chief Justice considers that circumstances make it desirable to do so.
To avoid doubt, a Judge who is not assigned to either Division of the Court may exercise, or participate in exercising, the powers of the Court in either Division.
Subsection (1A) does not affect the validity of any exercise of powers by the Court otherwise than in accordance with that subsection.
The following heading to subsection 15(1) is inserted “Responsibility of Chief Justice”.
The following heading to subsection 15(2) is inserted “Judges who are also Judges of the Supreme Court of the ACT and the Northern Territory”.
8 At the end of Division 1 of Part IIA
Add:
The Chief Justice may arrange with the chief executive officer (however described) of:
an agency of the Commonwealth, a State or a Territory; or
another organisation;
for an employee or employees of the agency or organisation to:
receive, on behalf of the Court, documents to be lodged with or filed in the Court; or
perform, on behalf of the Court, other non‑judicial functions of the Court.
If an arrangement under subsection (1) is in force in relation to the performance by an employee of an agency or organisation of a function on behalf of the Court, the employee may perform that function despite any other provision of this Act or any other law of the Commonwealth.
A function performed on behalf of the Court in accordance with an arrangement under subsection (1) has effect as if the function had been performed by the Court.
Copies of an arrangement under subsection (1) are to be made available for inspection by members of the public.
9 Subsection 43(1)
After “subsection (1A)”, insert “and section 570 of the Fair Work Act 2009”.
Part 2—Amendments to the Federal Magistrates Act 1999
Federal Magistrates Act 1999
10 Section 4
After:
• Jurisdiction is conferred on the Federal Magistrates Court by other laws of the Commonwealth.
Insert:
• Jurisdiction is to be exercised in the General Division or the Fair Work Division of the Federal Magistrates Court.
11 Section 5
Insert:
Division means the General Division or the Fair Work Division of the Federal Magistrates Court.
12 After section 10
Insert:
For the purpose of the organisation and conduct of the business of the Federal Magistrates Court, the Federal Magistrates Court comprises 2 Divisions:
the General Division; and
the Fair Work Division.
Every proceeding in the Federal Magistrates Court must be instituted, heard and determined in a Division.
Fair Work Division
The following jurisdiction of the Federal Magistrates Court is to be exercised in the Fair Work Division:
jurisdiction that is required by any other Act to be exercised in the Fair Work Division;
jurisdiction that is incidental to such jurisdiction.
Under section 566 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Federal Magistrates Court in relation to matters arising under that Act.
General Division
The following jurisdiction of the Federal Magistrates Court is to be exercised in the General Division:
jurisdiction that is not required by any other Act to be exercised in the Fair Work Division;
jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).
Jurisdiction that is required to be exercised in both Divisions
If the Court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Federal Magistrate may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.
13 After subsection 12(3)
Insert:
Exercise of powers of General and Fair Work Divisions of the Federal Magistrates Court
A Federal Magistrate who is assigned to a Division of the Federal Magistrates Court must exercise, or participate in exercising, the powers of the Federal Magistrates Court only in that Division, except as set out in subsection (3B).
The Chief Federal Magistrate may arrange for a Federal Magistrate who is assigned to a particular Division of the Federal Magistrates Court to exercise, or participate in exercising, the powers of the Federal Magistrates Court in the other Division if the Chief Federal Magistrate considers that circumstances make it desirable to do so.
To avoid doubt, a Federal Magistrate who is not assigned to either Division of the Federal Magistrates Court may exercise, or participate in exercising, the powers of the Federal Magistrates Court in either Division.
Subsection (3A) does not affect the validity of any exercise of powers by the Federal Magistrates Court otherwise than in accordance with that subsection.
The following heading to subsection 12(1) is inserted “Responsibility of Chief Federal Magistrate”.
The following heading to subsection 12(4) is inserted “Assignment of Federal Magistrates to locations or registries”.
The following heading to subsection 12(7) is inserted “Functions and powers of the Chief Federal Magistrate”.
14 Subsection 79(1)
After “proceedings”, insert “or proceedings in relation to a matter arising under the Fair Work Act 2009”.
15 Subsection 79(1) (at the end of the note)
Add “See section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act.”.
16 After clause 1 of Schedule 1
Insert:
The President has the same status as a Judge of the Federal Court.
21D Subparagraph 654(2)(a)(i)
Omit “that is made under this Act”.
21E Subparagraph 654(2)(a)(ii)
Omit “that is made or given to FWA under this Act”, substitute “given or made to FWA”.
21F Paragraph 654(2)(b)
Omit “made under this Act and is”.
21G After section 796
Insert:
Showing the first 12 of 47 provisions. See all provisions