Investigations arising from referral under section 278
334 Investigations arising from referral under section 278
If a matter is referred to the General Manager under section 278, the General Manager must conduct an investigation.
558 Subsection 335(1) of Schedule 1
Omit “a Registrar”, substitute “the General Manager”.
559 Paragraph 335(1)(e) of Schedule 1
Omit “Registrar”, substitute “General Manager”.
560 Subsection 335(2) of Schedule 1
Omit “Registrar” (wherever occurring), substitute “General Manager”.
561 Subsection 336(1) of Schedule 1
Omit “Registrar who conducted the investigation”, substitute “General Manager”.
562 Subsection 336(1) of Schedule 1
Omit “Registrar” (second occurring), substitute “General Manager”.
563 Subsection 336(2) of Schedule 1
Omit “Industrial Registrar”, substitute “General Manager”.
564 Subsection 336(2) of Schedule 1 (note)
Omit “Registrar”, substitute “General Manager”.
565 Subsections 336(3) and (5) of Schedule 1
Omit “Registrar”, substitute “General Manager”.
566 Subparagraph 337(1)(a)(i) of Schedule 1
Omit “a Registrar”, substitute “the General Manager”.
The heading to section 337 of Schedule 1 is altered by omitting “Registrar” and substituting “General Manager”.
567 Paragraph 337(1)(c) of Schedule 1
Omit “a Registrar”, substitute “the General Manager”.
568 Subparagraph 337A(b)(i) of Schedule 1
Omit “a Registrar”, substitute “the General Manager”.
569 Paragraph 337K(1)(b) of Schedule 1
Omit “a Registrar”, substitute “the General Manager”.
570 Subsection 337K(3) of Schedule 1
Omit “A Registrar who receives a copy of an order under subsection (1)”, substitute “The General Manager”.
571 Paragraphs 337K(3)(a) and (b) of Schedule 1
Omit “the Registrar” (wherever occurring), substitute “the General Manager”.
572 Subsection 337K(4) of Schedule 1
Omit “Industrial Registrar”, substitute “General Manager”.
573 Paragraph 337K(4)(b) of Schedule 1
Omit “the Registrar”, substitute “the General Manager”.
574 Paragraph 347(1)(c) of Schedule 1
Omit “in the Industrial Registry”, substitute “with FWA”.
575 Section 348 of Schedule 1
Omit “a Registrar”, substitute “the General Manager”.
576 Section 349 of Schedule 1
Omit “in the Industrial Registry”, substitute “with FWA”.
577 Section 349 of Schedule 1
Omit “a Registrar”, substitute “the General Manager”.
578 Subsection 358(1) of Schedule 1
Omit “a Registrar”, substitute “the General Manager”.
579 Subclauses 2(1) and (3) of Schedule 10
Omit “a Registrar”, substitute “the General Manager”.
580 Subclause 2(3) of Schedule 10
Omit “the Registrar”, substitute “the General Manager”.
581 Subclauses 2(5) and (6) of Schedule 10
Omit “Registrar”, substitute “General Manager”.
582 Subclause 5(6) of Schedule 10
Omit “A Registrar”, substitute “The General Manager”.
The heading to subclause 5(6) of Schedule 10 is altered by omitting “Registrar” and substituting “General Manager”.
Part 8—References to awards and collective agreements
Fair Work Act 2009
583 Paragraph 48(2)(a)
After “this Act”, insert “or of the Fair Work (Registered Organisations) Act 2009”.
584 Paragraph 53(3)(a)
After “this Act”, insert “or of the Fair Work (Registered Organisations) Act 2009”.
Workplace Relations Act 1996
585 Subparagraph 28(1)(a)(i) of Schedule 1
Omit “an award” (first occurring), substitute “a modern award”.
586 Subparagraph 28(1)(a)(i) of Schedule 1
Omit “a collective agreement” (first occurring), substitute “an enterprise agreement”.
587 Subparagraph 28(1)(a)(i) of Schedule 1
Omit “an award” (second occurring), substitute “a modern award”.
588 Subparagraph 28(1)(a)(i) of Schedule 1
Omit “a collective agreement” (second occurring), substitute “an enterprise agreement”.
589 Subparagraph 28(1)(a)(ii) of Schedule 1
Omit “an award”, substitute “a modern award”.
590 Subparagraph 28(1)(a)(ii) of Schedule 1
Omit “a collective agreement”, substitute “an enterprise agreement”.
591 Paragraph 29(2)(a) of Schedule 1
Before “awards”, insert “modern”.
592 Paragraph 29(2)(a) of Schedule 1
Omit “collective”, substitute “enterprise”.
593 Paragraph 32(c) of Schedule 1
Before “award”, insert “modern”.
594 Paragraph 32(c) of Schedule 1
Omit “collective”, substitute “enterprise”.
595 Subsection 38(6) of Schedule 1
Repeal the subsection, substitute:
Subsection (5) does not have the effect that a modern award or enterprise agreement covers the federation.
596 Paragraphs 43(5)(c) and (6)(c) of Schedule 1
Omit “bound by the same”, substitute “covered by the same modern”.
597 Paragraph 55(1)(d) of Schedule 1
Omit “awards or collective”, substitute “modern awards or enterprise”.
598 Paragraph 57(1)(b) of Schedule 1
Omit “awards and collective”, substitute “modern awards and enterprise”.
599 Paragraph 76(a) of Schedule 1
Repeal the paragraph, substitute:
a modern award or an enterprise agreement that, immediately before that day, covered a proposed de‑registering organisation and its members covers, by force of this section, the proposed amalgamated organisation and its members; and
a modern award, an order of FWA or an enterprise agreement that, immediately before that day, applied to a proposed de‑registering organisation and its members applies to, by force of this section, the proposed amalgamated organisation and its members; and
The heading to section 76 of Schedule 1 is altered by omitting “awards, orders and collective agreements” and substituting “modern awards, orders and enterprise agreements”.
600 Subsection 113(1) of Schedule 1
Omit “an award or a collective agreement that was, immediately before the day the registration takes effect, binding on ”, substitute “a modern award or an enterprise agreement that, immediately before the day the registration takes effect, covered”.
The heading to section 113 of Schedule 1 is altered by omitting “awards” and substituting “modern awards”.
601 Subsection 113(2) of Schedule 1
Omit “collective”.
602 Paragraph 113(2)(a) of Schedule 1
Omit “becomes binding on”, substitute “covers”.
603 Subsection 113A(1) of Schedule 1
Omit “a collective”, substitute “an enterprise”.
The heading to section 113A of Schedule 1 is altered by omitting “Collective” and substituting “Enterprise”.
604 Paragraph 113A(1)(b) of Schedule 1
Omit “is binding on”, substitute “covers”.
605 Subsection 113A(2) of Schedule 1
Omit “becomes binding on” (wherever occurring), substitute “covers”.
606 Paragraph 142(1)(a) of Schedule 1
Omit “an award or a collective”, substitute “a modern award or an enterprise”.
607 Subparagraph 142(1)(b)(i) of Schedule 1
Omit “an award”, substitute “a modern award”.
608 Subparagraph 142(1)(b)(i) of Schedule 1
Omit “a collective”, substitute “an enterprise”.
609 Subparagraph 142(1)(b)(ii) of Schedule 1
Omit “an award”, substitute “a modern award”.
610 Subparagraph 142(1)(b)(ii) of Schedule 1
Omit “a collective”, substitute “an enterprise”.
611 Subparagraph 144(3)(a)(i) of Schedule 1
Omit “awards or collective”, substitute “modern awards or enterprise”.
612 Paragraph 159(1)(a) of Schedule 1
Omit “awards and collective”, substitute “modern awards and enterprise”.
613 Subsections 166(1) and (4) of Schedule 1
Before “award”, insert “modern”.
614 Subsection 177(3) of Schedule 1
Omit “an award”, substitute “a modern award”.
615 Subsection 177(3) of Schedule 1
Omit “collective”, substitute “enterprise”.
616 Subparagraphs 246(2)(b)(i) and 249(5)(b)(i) of Schedule 1
Omit “awards or collective”, substitute “modern awards or enterprise”.
617 Subsection 337F(2) of Schedule 1 (paragraph (c) of the definition of prescribed premises)
Omit “an award”, substitute “a modern award”.
618 Subsection 337F(2) of Schedule 1 (paragraph (d) of the definition of prescribed premises)
Omit “a collective”, substitute “an enterprise”.
619 Subparagraph 367(9)(d)(i) of Schedule 1
Before “awards”, insert “modern”.
620 Subclause 1(1) of Schedule 10 (paragraphs (a) and (b) of the definition of industrial instrument)
Repeal the paragraphs, substitute:
a modern award; or
an enterprise agreement; or
Part 9—Transitional provisions etc.
621 Things done before the commencement of this Schedule
The following table has effect if:
before the commencement of this item, a thing was done under, or for the purposes of, a provision of Schedule 1 to the WR Act (as in force from time to time) by, or in relation to, a person or body mentioned in column 1 of the table; and
immediately before that commencement, the thing continued to have effect.
Things done before the commencement of this item | ||
|---|---|---|
Item | If the thing was done by, or in relation to ... | then, after that commencement, the thing has effect as if it had been done by, or in relation to ... |
1 | the Commission | FWA. |
2 | the Industrial Registry | FWA. |
3 | the Industrial Registrar | the General Manager. |
4 | a Registrar | the General Manager. |
5 | a member of the Commission | an FWA member. |
6 | a Presidential Member | the President or a Deputy President. |
7 | a Registry official | the General Manager. |
8 | a designated Registry official | a member of the staff of FWA. |
For how the thing has effect after the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012 (which changes the name of Fair Work Australia to become the Fair Work Commission, etc.), see Part 10 of Schedule 3 to the FW Act.
Without limiting subitem (1), a reference in that subitem to a thing being done in relation to a person or body includes a reference to:
an application, request, statement, objection, disclosure, direction or referral being made or given to, or lodged with, the person or body; and
information or a document being given or produced to, or lodged with, the person or body; and
evidence being taken by the person or body.
622 Instruments made under, or for the purposes of, a provision of Schedule 1 to the WR Act
The following table has effect if:
before the commencement of this item, an instrument was made under, or for the purposes of, a provision of Schedule 1 to the WR Act (as in force from time to time); and
the instrument was in force immediately before that commencement.
Instruments in force immediately before the commencement of this item | ||
|---|---|---|
Item | A reference in the instrument to ... | has effect after that commencement as if it were a reference to ... |
1 | the Commission | FWA. |
2 | the Industrial Registry | FWA. |
3 | the Industrial Registrar | the General Manager. |
4 | a Registrar | the General Manager. |
5 | a member of the Commission | an FWA member. |
6 | a Presidential Member | the President or a Deputy President. |
7 | a Registry official | the General Manager. |
8 | a designated Registry official | a member of the staff of FWA. |
For how the instrument has effect after the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012 (which changes the name of Fair Work Australia to become the Fair Work Commission, etc.), see section 25B of the Acts Interpretation Act 1901.
Subject to subitem (3), a reference in the instrument to a provision of Schedule 1 to the WR Act is to be construed, after the commencement of this item, as a reference to the same provision of the Fair Work (Registered Organisations) Act 2009.
Subitem (2) does not apply to a reference that is expressed as a reference to a provision as in force at a time that is before the commencement of this item.
623 Award‑based transitional instruments and agreement‑based transitional instruments
The Fair Work (Registered Organisations) Act 2009 applies as if:
references in that Act to a modern award included a reference to an award‑based transitional instrument; and
references in that Act to an enterprise agreement included a reference to an agreement‑based transitional instrument.
623A Division 2B State awards and Division 2B State employment agreements
The Fair Work (Registered Organisations) Act 2009 applies as if:
references in that Act to a modern award included a reference to a Division 2B State award; and
references in that Act to an enterprise agreement included a reference to a Division 2B State employment agreement.
624 Register of organisations kept under paragraph 13(1)(a) of Schedule 1 to the WR Act
The register of organisations kept by the Industrial Registry under paragraph 13(1)(a) of Schedule 1 to the WR Act in its form immediately before the commencement of this item is taken, after that commencement, to be the register of organisations kept by the FWC under paragraph 13(1)(a) of the Fair Work (Registered Organisations) Act 2009.
625 Application of paragraph 73(2)(c) of Schedule 1 to the WR Act
To avoid doubt:
subparagraph 73(2)(c)(i) of the Fair Work (Registered Organisations) Act 2009 applies in relation to contraventions of the WR Act (as in force from time to time) that occurred before the commencement of this item; and
subparagraph 73(2)(c)(ii) of that Act applies in relation to breaches of orders made under the WR Act (as in force from time to time) that occurred before the commencement of this item.
626 Application of section 337A of Schedule 1 to the WR Act
Part 4A of Chapter 11 of the Fair Work (Registered Organisations) Act 2009 applies as if a disclosure of information made to a person referred to in subparagraph 337A(b)(i) or (ii) of Schedule 1 to the WR Act:
after the commencement of this item; and
before:
if the person is of a kind referred to in subparagraph 337A(b)(i) of that Schedule 1 to the WR Act—the cessation time for the Industrial Registrar under item 7 of Schedule 18 to this Act; or
if the person is of a kind referred to in subparagraph 337A(b)(ii) of Schedule 1 to the WR Act—the cessation time for the Workplace Authority Director under item 7 of Schedule 18 to this Act;
were a disclosure to which paragraph 337A(b) of the Fair Work (Registered Organisations) Act 2009 applies.
Paragraph 337A(d) of the Fair Work (Registered Organisations) Act 2009 applies as if references in that paragraph to contraventions of the FW Act included references to contraventions of the WR Act (as in force from time to time) that occurred before the commencement of this item.
627 Transitionally registered associations
For the purposes of the Fair Work (Registered Organisations) Act 2009, an association that, immediately before the commencement of this item, was a transitionally registered association is taken, on that commencement, to be a transitionally recognised association.
Schedule 23—Other amendments of the FW Act
Fair Work Act 2009
1 At the end of section 3
Add:
; and (g) acknowledging the special circumstances of small and medium‑sized businesses.
2 Section 12 (definition of civil remedy provision)
Omit “subsection 539(1)”, substitute “subsections 539(1) and (3)”.
2A At the end of subsection 22(2)
Add:
; (c) any other period of a kind prescribed by the regulations.
2B After subsection 22(3)
Insert:
Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.
2C Paragraph 22(4)(a)
Repeal the paragraph, substitute:
a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:
any period of unauthorised absence; or
any other period of a kind prescribed by the regulations; and
2D Paragraph 22(4)(b)
Omit “of unauthorised absence”, substitute “referred to in subparagraph (a)(i) or (ii)”.
2E After subsection 22(4)
Insert:
Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.
3 Section 63
Before “A”, insert “(1)”.
4 Section 63 (note)
Repeal the note, substitute:
The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).
Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).
5 Section 64
Before “An”, insert “(1)”.
6 Section 64 (note)
Repeal the note, substitute:
The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).
Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with an agreed averaging arrangement (whether the arrangement complies with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging arrangement will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).
7 At the end of subsection 140(1)
Add:
A person who is an employer may also be an outworker entity (see the definition of outworker entity in section 12).
8 Subsection 312(2)
Repeal the subsection (not including the heading), substitute:
Each of the following is a named employer award:
a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;
a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).
Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise.
9 Part 2‑9 (heading)
Repeal the heading, substitute:
Part 2‑9—Other terms and conditions of employment
9A At the end of subsection 371(2)
Add “, or within such period as a court allows on an application made during or after those 14 days”.
9B At the end of section 371
Add:
In Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.
10 Paragraph 411(c)
Omit “; and”, substitute “.”.
11 Paragraph 411(d)
Repeal the paragraph.
12 At the end of Subdivision C of Division 2 of Part 3‑3 of Chapter 3
Add:
This provision refers to the regulations (prescribed by the regulations
). Made under this Act:
This Act’s bill:Explanatory memorandumSecond reading speech
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