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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Same Job, Same
Pay) Bill 2021
No. , 2021
(Mr Albanese)
A Bill for an Act to give Australian workers the
right to same job, same pay, and for related
purposes
No. , 2021
Fair Work Amendment (Same Job, Same Pay) Bill 2021
i
Contents
1
Short title .............................................................................. 1
2
Commencement .................................................................... 1
3
Schedules .............................................................................. 2
Schedule 1--Amendments
3
Fair Work Act 2009
3
No. , 2021
Fair Work Amendment (Same Job, Same Pay) Bill 2021
1
A Bill for an Act to give Australian workers the
1
right to same job, same pay, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
Fair Work Amendment (Same Job, Same Pay) Act
6
2021
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Fair Work Amendment (Same Job, Same Pay) Bill 2021
No. , 2021
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after the end of the period of 6
months beginning on the day this Act
receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments
Schedule 1
No. , 2021
Fair Work Amendment (Same Job, Same Pay) Bill 2021
3
Schedule 1--Amendments
1
2
Fair Work Act 2009
3
1 Section 12
4
Insert:
5
host
: see subsection 123B(2).
6
labour hire business
: see subsection 123B(1).
7
same job same pay obligation
: see section 123C.
8
2 After paragraph 61(2)(i)
9
Insert:
10
(ia) same job, same pay (Division 11A);
11
3 After Division 11 of Part 2-2
12
Insert:
13
Division 11A--Same job, same pay: obligations of labour
14
hire businesses
15
Subdivision A--Definitions
16
123A Meanings of employee and employer
17
In this Division,
employee
and
employer
have their ordinary
18
meanings.
19
123B Meanings of labour hire business and host
20
(1) A
labour hire business
is a person who, in the course of carrying
21
on a business, ordinarily supplies a worker or workers to perform
22
work for another person.
23
(2) A
host
is:
24
(a) a national system employer that engages, or proposes to
25
engage, a labour hire business to supply it with workers; or
26
Schedule 1
Amendments
4
Fair Work Amendment (Same Job, Same Pay) Bill 2021
No. , 2021
(b) a constitutional corporation, so far as each of the following
1
conditions are met:
2
(i) it engages, or proposes to engage, a labour hire business
3
to supply workers to work at a workplace;
4
(ii) work is performed at that workplace by employees of an
5
associated entity of the corporation (the
associated
6
employees
);
7
(iii) an enterprise agreement applies to that associated entity
8
and to the associated employees (the
associated
9
agreement
);
10
(iv) if the work performed (or to be performed) by the
11
workers supplied (or to be supplied) by the labour hire
12
business was instead performed by the associated
13
employees, the associated agreement would apply to the
14
associated employees.
15
123C Meaning of same job same pay obligation
16
(1) The
same job same pay obligation
of a labour hire business is that
17
it must comply with subsection (2), and (if applicable)
18
subsection (3), in relation to each worker it supplies to another
19
person.
20
(2) The labour hire business must provide to the worker pay and
21
conditions which are no less favourable than those which would be
22
required to be paid:
23
(a) to an employee of the other person:
24
(i) performing the duties of the worker; and
25
(ii) working the particular hours of the worker or
26
completing the same particular quantity of work as the
27
worker; or
28
(b) if the other person is a host within the meaning of
29
paragraph 123B(2)(b)--pursuant to an associated agreement
30
to an associated employee:
31
(i) performing the duties of the worker; and
32
(ii) working the particular hours of the worker or
33
completing the same particular quantity of work as the
34
worker.
35
Amendments
Schedule 1
No. , 2021
Fair Work Amendment (Same Job, Same Pay) Bill 2021
5
(3) If the worker is a casual worker, the labour hire business must pay
1
the worker:
2
(a) the casual loading that would be required to be paid to an
3
employee of the other person performing the duties of the
4
worker; or
5
(b) if no such loading would be required to be paid--a casual
6
loading that at least equals the casual loading for
7
award/agreement free employees (as applied to what would
8
be the worker's relevant base rate of pay under
9
subsection (2)).
10
Note:
The casual loading for award/agreement free employees is set by the
11
national minimum wage order (see section 294).
12
Subdivision B--Obligations of labour hire business
13
123D Obligations of labour hire businesses
14
(1) A national system employer that is a labour hire business must
15
comply with the same job same pay obligation.
16
Note:
A national system employer that contravenes subsection (1) of this
17
section, which is a provision of the National Employment Standards,
18
may be liable to pay a civil penalty (see section 44 and Part 4-1).
19
(2) A constitutional corporation that is a labour hire business but is not
20
a national system employer must comply with the same job same
21
pay obligation.
22
Note:
This subsection is a civil remedy provision (see Part 4-1).
23
Subdivision C--Limits on scope of this Division
24
123E Limits on scope of this Division
25
(1) Subdivision B does not apply in respect of workers a labour hire
26
business supplies to another person under a contract or
27
arrangement if:
28
(a) at the time the contract or arrangement is entered into, the
29
other person (or the employer of the associated employees, if
30
the other person is a host within the meaning of
31
paragraph 123B(2)(b)) employs fewer than 15 employees; or
32
Schedule 1
Amendments
6
Fair Work Amendment (Same Job, Same Pay) Bill 2021
No. , 2021
(b) the other person (or the employer of the associated
1
employees, if the other person is a host within the meaning of
2
paragraph 123B(2)(b)) is a small business entity (within the
3
meaning of the
Income Tax Assessment Act 1997
) for the
4
income year in which the contract or arrangement is entered
5
into.
6
(2) Subdivision B does not apply in respect of workers a labour hire
7
business supplies to another person under a contract or
8
arrangement if the contract or arrangement:
9
(a) relates solely to the supply of workers to temporarily perform
10
the role of employees who are on paid or unpaid leave for a
11
period of 3 months or less; and
12
(b) specifies that it terminates at the end of the relevant period of
13
paid or unpaid leave.
14
(3) Subdivision B does not apply in respect of workers a labour hire
15
business supplies to another person under a particular contract or
16
arrangement if all of the following are satisfied:
17
(a) the contract or arrangement relates solely to the supply of
18
workers to temporarily supplement the workforce at a
19
workplace for a period of 3 months or less;
20
(b) the need to supplement the workforce at that workplace
21
relates to demand for goods or services rather a deliberate
22
reduction in workforce size;
23
(c) Division 1 of Part 2-7A does not apply to a host in respect of
24
that workplace because of another contract or arrangement
25
entered into to supply workers to the particular workforce in
26
respect of which the need for temporary supplementation has
27
arisen.
28
4 After Part 2-7
29
Insert:
30
Amendments
Schedule 1
No. , 2021
Fair Work Amendment (Same Job, Same Pay) Bill 2021
7
Part 2-7A--Same job, same pay: obligations of
1
hosts
2
Division 1--Obligations of hosts
3
306A Engagement with labour hire businesses
4
A host:
5
(a) must provide a labour hire business it engages with all the
6
information that the labour hire business reasonably requires
7
to comply with the same job same pay obligation; and
8
(b) must not engage any labour hire business unless that business
9
agrees, as part of its terms of engagement with the host, to
10
comply with the same job same pay obligation; and
11
(c) must, during the course of engagement with a labour hire
12
business, take all reasonable steps to ensure that the labour
13
hire business has complied and is complying with the same
14
job same pay obligation.
15
Note:
This section is a civil remedy provision (see Part 4-1).
16
306B Entering into contracts or arrangements with labour hire
17
businesses
18
(1) A host must not enter into a contract or arrangement with a labour
19
hire business under which the host (or the employer of the
20
associated employees, in the case of a host within the meaning of
21
paragraph 123B(2)(b)) is prohibited from offering employment,
22
either over a particular period or at all, to a labour hire worker
23
supplied by the labour hire business.
24
Note:
This subsection is a civil remedy provision (see Part 4-1).
25
(2) A term of a contract or arrangement has no effect to the extent that
26
the term contravenes subsection (1).
27
306C Information concerning vacancies
28
A host must ensure that any information concerning vacancies in
29
its enterprise that are available to its employees (or the associated
30
employees, in the case of a host within the meaning of
31
Schedule 1
Amendments
8
Fair Work Amendment (Same Job, Same Pay) Bill 2021
No. , 2021
paragraph 123B(2)(b)) at a workplace is also available to labour
1
hire workers who perform work at that workplace.
2
Note:
This section is a civil remedy provision (see Part 4-1).
3
306D Access to amenities and collective facilities
4
A host must ensure that any workers supplied to it by a labour hire
5
business are provided with access to the same amenities and
6
collective facilities at the workplace as the host's direct employees
7
(or the associated employees, in the case of a host within the
8
meaning of paragraph 123B(2)(b)) are entitled to access at that
9
workplace, under the same conditions.
10
Example 1: Amenities and collective facilities include a workplace canteen.
11
Example 2: A host does not contravene this section by drawing a distinction
12
between access to bathrooms in "clean" versus "dirty" areas, but
13
would contravene this section by drawing a distinction between access
14
to bathrooms on the basis of direct employee versus labour hire
15
worker status.
16
Note:
This section is a civil remedy provision (see Part 4-1).
17
306E Access to training
18
A host must ensure that any workers supplied to it by a labour hire
19
business are provided with to access the same training as is offered
20
at the workplace to the host's direct employees (or the associated
21
employees, in the case of a host within the meaning of
22
paragraph 123B(2)(b)) at that workplace, under the same
23
conditions.
24
Example: Training on the operation of new equipment, or training that would
25
provide additional skills that may be necessary for the worker to
26
perform (in a relief capacity or otherwise) a more senior role.
27
Note:
This section is a civil remedy provision (see Part 4-1).
28
306F Rights over the determination of hours and location of work
29
A host must provide to any workers supplied to it by a labour hire
30
business the same rights as a direct employee (or an associated
31
employee, in the case of a host within the meaning of
32
paragraph 123B(2)(b)) over the determination of hours and
33
Amendments
Schedule 1
No. , 2021
Fair Work Amendment (Same Job, Same Pay) Bill 2021
9
location of work, including, but not limited to, rights to
1
consultation, reply and notice.
2
Note:
This section is a civil remedy provision (see Part 4-1).
3
Division 2--Limits on scope of this Part
4
306G Limits on scope of this Part
5
(1) Division 1 does not apply in respect of a contract or arrangement to
6
supply labour hire workers if:
7
(a) at the time the contract or arrangement is entered into with
8
the labour hire business, the host (or the employer of the
9
associated employees, in the case of a host within the
10
meaning of paragraph 123B(2)(b)) employs fewer than 15
11
employees; or
12
(b) the host (or the employer of the associated employees, in the
13
case of a host within the meaning of paragraph 123B(2)(b)) is
14
a small business entity (within the meaning of the
Income
15
Tax Assessment Act 1997
) for the income year in which the
16
contract or arrangement is entered into with the labour hire
17
business.
18
(2) Division 1 does not apply in respect of a contract or arrangement to
19
supply labour hire workers if the contract or arrangement:
20
(a) relates solely to the supply of workers to temporarily perform
21
the role of employees who are on paid or unpaid leave for a
22
period of 3 months or less; and
23
(b) specifies that it terminates at the end of the relevant period of
24
paid or unpaid leave.
25
(3) Division 1 does not apply in respect of a particular contract or
26
arrangement to supply labour hire workers if the following are
27
satisfied:
28
(a) the contract or arrangement relates solely to the supply of
29
workers to temporarily supplement the workforce at a
30
workplace for a period of 3 months or less;
31
(b) the need to supplement the workforce at that workplace
32
relates to demand for goods or services rather a deliberate
33
reduction in workforce size;
34
Schedule 1
Amendments
10
Fair Work Amendment (Same Job, Same Pay) Bill 2021
No. , 2021
(c) Division 1 does not otherwise apply to a host in respect of
1
that workplace because of another contract or arrangement
2
entered into to supply workers to the particular workforce in
3
respect of which the need for temporary supplementation has
4
arisen.
5
Division 3--Miscellaneous
6
306H Meanings of employee and employer
7
In this Part,
employee
and
employer
have their ordinary meanings.
8
5 Subsection 539(2) (after table item 5)
9
Insert:
10
11
Part 2-2--The National Employment Standards
5AA
123D(2)
(a) an employee;
(b) an independent
contractor;
(c) an employee
organisation;
(d) an inspector
(a) the Federal
Court;
(b) the Federal
Circuit and
Family Court
of Australia
(Division 2);
(c) an eligible
State or
Territory court
for a serious
contravention
--600 penalty
units; or
otherwise--60
penalty units
6 Subsection 539(2) (after table item 9)
12
Insert:
13
14
Amendments
Schedule 1
No. , 2021
Fair Work Amendment (Same Job, Same Pay) Bill 2021
11
Part 2-7A--Same job, same pay: obligations of hosts
9A
306A
306B(1)
306C
306D
306E
306F
(a) an employee;
(b) an independent
contractor;
(c) an employee
organisation;
(d) an inspector
(a) the Federal
Court;
(b) the Federal
Circuit and
Family Court
of Australia
(Division 2);
(c) an eligible
State or
Territory court
for a serious
contravention
--600 penalty
units; or
otherwise--60
penalty units
7 After section 550
1
Insert:
2
550A Contraventions of section 306A (obligations of hosts)
3
A host that contravenes section 306A is jointly and severally liable
4
with the relevant labour hire business to compensate a worker for
5
non-compliance with a same job same pay obligation in respect of
6
work performed for the host's benefit.
7