Fair Work (Commonwealth Powers) Act 2009

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

This Act will come into operation on a day to be fixed by proclamation.

Section 7(5) of the Acts Interpretation Act 1915 does not apply to this Act or to a provision of this Act.

In this Act, unless the contrary intention appears—

administrative unit means—

a department established as part of the Public Service of the State; or

an attached office under the Public Sector Act 2009;

amendment reference means the reference under section 5(1)(b);

Commonwealth Fair Work Act means the Fair Work Act 2009 of the Commonwealth (as amended from time to time);

employing authority means a person designated as an employing authority, and empowered to employ persons on behalf of the Crown, under an Act;

excluded subject matter means any of the following matters:

a matter dealt with in the Equal Opportunity Act 1984;

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in a preceding paragraph of this definition, except to the extent that the Fair Work Act 2009 of the Commonwealth, as originally enacted, deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under the Commonwealth Fair Work Act so to deal with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 SA Police under the Police Act 1998; or

a police cadet, police medical officer or special constable; or

a person employed as a protective security officer under the Protective Security Act 2007;

local government sector employee means an employee of a local government sector employer;

local government sector employer means an employer that is—

a council constituted under the Local Government Act 1999; or

a subsidiary or regional subsidiary established under the Local Government Act 1999; or

any other entity established under the Local Government Act 1999; or

the Local Government Association of South Australia; or

any other entity established by a body referred to in a preceding paragraph;

public sector agency means—

a Minister; or

a chief executive of an administrative unit; or

an administrative unit; or

an employing authority; or

any other agency or instrumentality of the Crown; or

a body corporate—

comprised of persons, or with a governing body comprised of persons, a majority of whom are appointed by the Governor, a Minister or an agency or instrumentality of the Crown; or

subject to control or direction by a Minister; or

a person or body declared under an Act to be a public sector agency for the purposes of the management or governance of the public sector of the State; or

a subsidiary of a Minister or a person or body referred to in a preceding paragraph, but does not include a person or body declared under an Act not to be part of the Crown or not to be an agency or instrumentality of the Crown;

public sector employee means a chief executive of an administrative unit or an employee in an administrative unit or other person employed or appointed by a public sector agency;

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 of the Commonwealth (as it continues to apply because of the Fair Work (Transitional and Consequential Amendments) Act 2009 of the Commonwealth); 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 1;

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 (other than in Division 2B of Part 1‑3 of the Commonwealth Fair Work Act) have the meaning set out in that Act as in force on 1 July 2009.

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 Constitution of the Commonwealth); 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.

For the avoidance of doubt, 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, Members of Parliament, judicial officers or members of tribunals established by or under a law of the State; or

matters relating to public sector employees; or

matters relating to persons engaged as a member of a Minister's personal staff; or

matters relating to persons—

appointed under section 68 of the Constitution Act 1934; or

appointed or engaged by the Governor or a Minister under any other Act, law or authority; or

matters relating to persons holding office as Parliamentary officers or employed under the Parliament (Joint Services) Act 1985; or

matters relating to persons holding office or employed under the Courts Administration Act 1993; or

matters relating to—

members of SA Police under the Police Act 1998; or

police cadets, police medical officers or special constables; or

persons employed as protective security officers under the Protective Security Act 2007; or

matters relating to local government sector employees.

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 that 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 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.