Fair Work (Commonwealth Powers) and Other Provisions Act 2009

This Act may be cited as the Fair Work (Commonwealth Powers) and Other Provisions Act 2009.

This Act, other than parts 6 and 7, commences on a day to be fixed by proclamation.

The Acts Interpretation Act 1954, section 15DA does not apply to a provision of this Act other than parts 4 and 5.

In this Act—amendment reference means the reference under section 5(1)(b).Commonwealth Fair Work Act means the Fair Work Act 2009 (Cwlth) (as amended from time to time).department see the Public Sector Act 2022, section 10.employing office means an entity designated as an employing office, and empowered to employ persons on behalf of the State, under an Act.excluded subject matter means any of the following matters—

a matter dealt with in the Anti-Discrimination Act 1991;

superannuation;

workers’ compensation;

occupational health and safety;

matters relating to outworkers (within the ordinary meaning of the term);

child labour;

training arrangements;

long service leave;

leave for victims of crime;

attendance for service on a jury, or for emergency service duties;

declaration, prescription or substitution of public holidays;

the following matters relating to provision of essential services or to situations of emergency—

directions to perform work, including to perform work at a particular time or place, or in a particular way;

directions not to perform work, including not to perform work at a particular time or place, or in a particular way;

regulation of any of the following—

employee associations;

employer associations;

members of employee associations or of employer associations;

workplace surveillance;

business trading hours;

claims for enforcement of contracts of employment, except so far as a law of the State provides for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;

rights or remedies incidental to a matter referred to in a preceding paragraph of this definition;

except to the extent that the Fair Work Act 2009 (Cwlth), as originally enacted, deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under the Commonwealth Fair Work Act so to deal with the matter.express amendment of the Commonwealth Fair Work Act means the direct amendment of the text of that Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of the Commonwealth Fair Work Act.fundamental workplace relations principles see section 4.initial reference means the reference under section 5(1)(a).initial referred provisions means the scheduled text, to the extent to which that text deals with matters that are included in the legislative powers of the Parliament of the State.law enforcement officer means—

a member of the Queensland Police Service as defined under the Police Service Administration Act 1990, section 2.2; or

a special constable appointed under the Police Service Administration Act 1990, section 5.16.

local government sector employee means an employee of a local government sector employer.local government sector employer means an employer that is—

a local government; or

any entity established under the Local Government Act 1993 or the City of Brisbane Act 2010; or

a local government entity under the Local Government Act 2009; or

the Local Government Association of Queensland (Incorporated) established under the Local Government Act 1993; or

any other entity controlled by a body or bodies mentioned in a preceding paragraph.

public sector employee means—

a person employed or appointed in or by a public sector employer; or

the chief executive of a public sector employer.

public sector employer means any of the following—

a Minister;

a public service entity under the Public Sector Act 2022, section 9;

an employing office;

a registry or other administrative office of a court or tribunal of the State of any jurisdiction;

an agency, authority, commission, corporation, instrumentality, office, or other entity, not otherwise mentioned in a preceding paragraph, established under an Act or under State authorisation for a public or State purpose;

a chief executive of, or part of, an entity mentioned in a preceding paragraph;

but does not include the following—

a GOC;

an entity mentioned in schedule 1;

a chief executive of an entity mentioned in paragraphs (g) and (h).

reference means—

the initial reference; or

the amendment reference; or

the transition reference.

referred subject matters means any of the following—

terms and conditions of employment, including any of the following—

minimum terms and conditions of employment (including employment standards and minimum wages);

terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise-level agreements);

bargaining in relation to terms and conditions of employment;

the effect of a transfer of business on terms and conditions of employment;

terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers;

rights and responsibilities of persons, including employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following—

freedom of association in the context of workplace relations, and related protections;

protection from discrimination relating to employment;

termination of employment;

industrial action;

protection from payment of fees for services related to bargaining;

sham independent contractor arrangements;

standing down employees without pay;

union rights of entry and rights of access to records;

compliance with, and enforcement of, the Commonwealth Fair Work Act;

the administration of the Commonwealth Fair Work Act;

the application of the Commonwealth Fair Work Act;

matters incidental or ancillary to the operation of the Commonwealth Fair Work Act or of instruments made or given effect under the Commonwealth Fair Work Act;

but does not include any excluded subject matter.referred transition matters means the matters of the making of laws with respect to the transition from the regime provided for by—

the Workplace Relations Act 1996 (Cwlth) (as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cwlth); or

a law of this State relating to workplace relations or industrial relations;

to the regime provided for by the Commonwealth Fair Work Act.scheduled text means the text set out in schedule 2.transition reference means the reference under section 5(1)(c).

Words or phrases in the definition of excluded subject matter or the definition of referred subject matters that are defined in the Commonwealth Fair Work Act have, in that definition, the meanings set out in that Act as in force on 1 July 2009.

For the purposes of the Commonwealth Fair Work Act, the Commissioner of the Police Service is to be taken to be an employer of law enforcement officers of the State.

The following are the fundamental workplace relations principles under this Act—

that the Commonwealth Fair Work Act should provide for, and continue to provide for, the following—

a strong, simple and enforceable safety net of minimum employment standards;

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;

collective bargaining at the enterprise level with no provision for individual statutory agreements;

fair and effective remedies available through an independent umpire;

protection from unfair dismissal;

that there should be, and continue to be, in connection with the operation of the Commonwealth Fair Work Act, the following—

an independent tribunal system;

an independent authority able to assist employers and employees within a national workplace relations system.

Subject to the other provisions of this Act, the following matters are referred to the Parliament of the Commonwealth—

the matters to which the initial referred provisions relate, but only to the extent of the making of laws with respect to those matters by including the initial referred provisions in the Commonwealth Fair Work Act, as originally enacted, and as subsequently amended by amendments enacted at any time before this Act commences, in the terms, or substantially in the terms, set out in the scheduled text;

the referred subject matters, but only to the extent of making laws with respect to any such matter by making express amendments of the Commonwealth Fair Work Act;

the referred transition matters.

The reference of a matter under subsection (1) has effect only—

if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51(xxxvii) of the Commonwealth Constitution); and

if and to the extent that the matter is included in the legislative powers of the Parliament of the State.

The operation of each paragraph of subsection (1) is not affected by any other paragraph.

To remove doubt, it is declared that it is the intention of the Parliament of the State that the Commonwealth Fair Work Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts whose operation is based on legislative powers that the Parliament of the Commonwealth has apart from under the references under subsection (1).

Despite any other provision of this section, a reference under subsection (1) has effect for a period—

beginning when this section commences; and

ending at the end of the day fixed under section 7 as the day on which the reference is to terminate;

but no longer.

A matter referred by section 5 does not include—

matters relating to Ministers or Members of Parliament; or

matters relating to the Governor, the Office of the Governor, the Governor’s official residence (known as ‘Government House’) and its associated administrative unit; or

matters relating to judicial officers, or members of tribunals established by or under a law of the State, or their associates; or

matters relating to public sector employees and employers; or

matters relating to persons appointed or engaged by the Governor, Governor in Council or a Minister under any other Act, law or authority; or

matters relating to officers or employees of the parliamentary service as defined under the Parliamentary Service Act 1988, section 23; or

matters relating to law enforcement officers; or

matters relating to local government sector employees and employers.

The Governor may, at any time, by proclamation published in the gazette, fix a day as the day on which—

the references are to terminate; or

the amendment reference is to terminate; or

the transition reference is to terminate.

The Governor may, by proclamation published in the gazette, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 5) never to have been published.

A revoking proclamation has effect only if published before the day fixed under subsection (1).

The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.

If the amendment reference and the transition reference have been terminated, the expression the references in subsection (1) refers only to the initial reference.

If the amendment reference or the transition reference terminates before the initial reference, the termination of the amendment reference or transition reference does not affect—

laws that were made under that reference before that termination (whether or not they have come into operation before that termination); or

the continued operation in the State of the Commonwealth Fair Work Act as in operation immediately before the termination or as subsequently amended or affected by—

laws referred to in paragraph (a) that come into operation after that termination; or

provisions referred to in section 5(4).

Accordingly, the amendment reference or transition reference continues to have effect for the purposes of subsection (1) unless the initial reference is terminated.

Subject to subsection (2), a day fixed by a proclamation under section 7(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.

If—

a proclamation under section 7(1) only provides for the termination of the amendment reference; and

the Governor, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor, the Commonwealth Fair Work Act—

is proposed to be amended (by an amendment introduced into the Parliament of the Commonwealth by a Commonwealth Minister); or

has been amended;

in a manner that is inconsistent with 1 or more of the fundamental workplace relations principles;

the day fixed by the proclamation under section 7(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.

If the Governor 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 a copy of the report to be laid before the Legislative Assembly.

A proclamation made under this Act is subordinate legislation.

A reference in any Act or instrument to an industrial instrument as defined under the Industrial Relations Act 1999 includes, if the context permits and it is necessary to do so to take account of the reference of matters under this Act, a reference to a federal industrial instrument.

In this Division:amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(4).excluded subject matter means any of the following matters:

a matter dealt with in a law referred to in subsection 27(1A) of this Act;

superannuation;

workers compensation;

occupational health and safety;

matters relating to outworkers (within the ordinary meaning of the term);

child labour;

training arrangements;

long service leave;

leave for victims of crime;

attendance for service on a jury, or for emergency service duties;

declaration, prescription or substitution of public holidays;

the following matters relating to provision of essential services or to situations of emergency:

directions to perform work (including to perform work at a particular time or place, or in a particular way);

directions not to perform work (including not to perform work at a particular time or place, or in a particular way);

regulation of any of the following:

employee associations;

employer associations;

members of employee associations or of employer associations;

workplace surveillance;

business trading hours;

claims for enforcement of contracts of employment, except so far as a law of a State provides for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;

rights or remedies incidental to a matter referred to in a preceding paragraph of this definition;

except to the extent that this Act as originally enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter.express amendment means the direct amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter), but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act.fundamental workplace relations principles: see subsection 30L(9).initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(3).law enforcement officer means:

a member of a police force or police service; or

a person appointed to a position for the purpose of being trained as a member of a police force or police service; or

a person who has the powers and duties of a member of a police force or police service;

and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer.local government employee, of a State, means:

an employee of a local government employer of the State; or

any other employee in the State of a kind specified in the regulations.

local government employer, of a State, means an employer that is:

a body corporate that is established for a local government purpose by or under a law of a State; or

a body corporate in which a body to which paragraph (a) applies has, or 2 or more such bodies together have, a controlling interest; or

a person who employs individuals for the purposes of an unincorporated body that is established for a local government purpose by or under a law of a State; or

any other body corporate that is a local government body in the State of a kind specified in the regulations; or

any other person who employs individuals for the purposes of an unincorporated body that is a local government body in the State of a kind specified in the regulations.

referral law, of a State, means the law of the State that refers matters, as mentioned in subsection 30L(1), to the Parliament of the Commonwealth.referred provisions means the provisions of this Division to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.referred subject matters means any of the following:

terms and conditions of employment, including any of the following:

minimum terms and conditions of employment, (including employment standards and minimum wages);

terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise-level agreements);

bargaining in relation to terms and conditions of employment;

the effect of a transfer of business on terms and conditions of employment;

terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers;

rights and responsibilities of persons, including employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following:

freedom of association in the context of workplace relations, and related protections;

protection from discrimination relating to employment;

termination of employment;

industrial action;

protection from payment of fees for services related to bargaining;

sham independent contractor arrangements;

standing down employees without pay;

union rights of entry and rights of access to records;

compliance with, and enforcement of, this Act;

the administration of this Act;

the application of this Act;

matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act;

but does not include any excluded subject matter.referring State: see section 30L.State public sector employee, of a State, means:

an employee of a State public sector employer of the State; or

any other employee in the State of a kind specified in the regulations;

and includes a law enforcement officer of the State.State public sector employer, of a State, means an employer that is:

the State, the Governor of the State or a Minister of the State; or

a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or

a body corporate in which the State has a controlling interest; or

a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or

any other employer in the State of a kind specified in the regulations;

and includes a holder of an office of the State whom the State’s referral law provides is to be taken, for the purposes of this Act, to be an employer of law enforcement officers of the State.transition reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(5).

Words or phrases in the definition of excluded subject matter in subsection (1), or in the definition of referred subject matters in subsection (1), that are defined in this Act (other than in this Division) have, in that definition, the meanings set out in this Act as in force on 1 July 2009.