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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Fair Work Amendment (Making Australia More Equal) Bill 2018
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Adam Bandt MP
Fair Work Amendment (Making Australia More Equal) Bill 2018
OUTLINE
The Bill amends the Fair Work Act 2009 to permit the Fair Work Commission (FWC) to
issue a Minimum Entitlements Order which would extend certain provisions of the Fair
Work Act 2009, modern award or enterprise agreement to workers.
The purpose of the Bill is to help ensure that all workers are entitled to minimum wages,
terms and conditions that are no less than those applying to employees.
In the context of there being a wide range of legal relationships regulating work, the Bill
empowers the FWC to make such orders it thinks are necessary to give effect to the above
principle.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short title
1. This clause provides for the Act to be cited as the Fair Work Amendment (Making Australia
More Equal) Bill 2018.
Clause 2: Commencement
2. This clause states the whole of this Act will commence the day after it receives the Royal
Assent.
Clause 3: Schedules
3. This clause gives effect to the Schedules. It provides that legislation 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Schedule to this Act is amended or repealed as set out in the applicable items in the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.
Schedule 1 - Amendments of the Fair Work Act 2009
Item 1: Subsection 9(5B)
Updates the subsection to included amendments to Part 6-4B which provide for the FWC to make
minimum entitlements orders that extend provisions of the Fair Work Act 2009, modern award or
enterprise agreements to workers.
Item 2: Section 12 (an the end of the definition of employee)
Adds Note 4 to the definition of employee which identifies Division 1A of Part 6-4B (minimum
entitlements orders) as a Division which may alter the effect of provisions of the Act applying to an
employee.
Item 3: Section 12 (at the end of the definition of employer)
Adds Note 4 to the definition of employer which identifies Division 1A of Part 6-4B (minimum
entitlements orders) as a Division which may alter the effect of provisions of the Act applying to an
employer.
Item 4: Section 12
Inserts minimum entitlements order into the Dictionary and includes a reference to the new
subsection 789FBA(1) which provides a definition.
Item 5: Section 12 (at the end of the definition of national system employee)
Adds Note 3 to the definition of national system employee which identifies Division 1A of Part 6-4B
(minimum entitlements orders) as a Division which may alter the effect of provisions of the Act
applying to a national system employee.
Item 6: Section 12 (at the end of the definition of national system employer)
Adds Note 3 to the definition of national system employer which identifies Division 1A of Part 6-4B
(minimum entitlements orders) as a Division which may alter the effect of provisions of the Act
applying to a national system employer.
Item 7: Paragraph 576 (1)(q)
Adds the new Part 6-4B to section 576 which has the effect of providing for the FWC to deal with
matters relating to minimum entitlement orders.
Item 8: Paragraph 675(2)(j)
Clarifies that Division 1 of Part 6-4B which deals with minimum entitlements order is subject to
provision regarding contraventions of a FWC order.
Item 9: Part 6-4B (heading)
Amends heading to Part 6-4B - Workers
Item 10: Section 789FA
Provides a new guide to this Part which specifies Division 1A provides for the making of minimum
entitlements orders by the FWC that extend provisions of the Fair Work Act 2009, or modern
awards or enterprise agreements, to workers. Division 2 continues to allow a worker who has been
bullied at work to apply to the FWC for an order to stop the bullying.
Item 11: Before Divisions 2 of Part 6-4B
Inserts - Division 1A - Minimum entitlements orders.
789FBA Minimum entitlements orders
(1) Provides for the FWC to make a minimum entitlements order that specifies the provisions of
the Fair Work Act 2009, a modern award or an enterprise agreement that apply to work
performed by the workers to whom the order applies for the constitutionally-covered
businesses required to comply with the order.
(2) Sets out minimum entitlements order may apply (subsect to subsections (4) and (5)) to;
(a) A worker; or
(b) Two or more workers; or
(c) A class of workers.
(3) Clarifies for the purposes of (2)(c) that a class of workers can be described as one or more
of the following;
(a) A particular industry or part of an industry;
(b) A particular kind of work;
(c) Workers who perform work for a particular constitutionally-covered business.
(4) Specifies a minimum entitlements order must not apply to a worker unless the FWC is
satisfied that the worker's terms and conditions as affected by the order will, considered on
an overall basis, be no less favourable that the workers' terms and conditions before the
order is made.
(5) States that a minimum entitlements order must not apply to work experience students or
volunteers.
(6) States that a minimum entitlements order must specify a constitutionally-covered business
or businesses; or a class of constitutionally-covered businesses that are required to comply
with the order.
(7) Clarifies that a class of constitutionally-covered businesses can be described by reference
to either or both of the following;
(a) A particular industry or part of an industry;
(b) A particular kind of work.
789FBB When does a worker perform work for a constitutionally-covered business?
(1) States that a worker performs work for a constitutionally-covered business for the purposes
of a minimum entitlements order if;
(a) The worker performs work directly or indirectly for the constitutionally-covered
business; or
(b) The worker performs work directly for another entity, and the constitutionally-
covered business carries on a business of arranging for workers, including the
worker, to perform work for that other entity.
(2) Clarifies for the purposes of (1)(a) that a worker indirectly performs work if the work is for
the benefit of a constitutionally-covered business, irrespective of the legal relationship
(contractual or otherwise) between the worker and the constitutionally covered business.
(3) States that if a worker performs the same work for 2 or more constitutionally-covered
business, the FWC may specify any or all of them in a minimum entitlements order.
This section gives the FWC wide powers to regulate the broad range of work-related relationships
existing in Australia.
789FBC Effect of a minimum entitlements order
(1) Provides that if the FWC makes a minimum entitlements order it applies as if;
(a) Any reference to an employee (within the ordinary meaning of that expression), or a
national system employee, also included a reference to the worker; and
(b) Any reference to an employer (within the ordinary meaning of that expression), or a
national system employer, also included a reference to the constitutionally-covered
business.
The subsection provides the following example; if a minimum entitlements order specifies a
modern award, the award applied to the worker, in relation to work performed for the
constitutionally-covered business, as if the worker were an employee. The obligation to
comply with the modern award is in section 45 (in Part 2-1).
(2) State that the order applies from the time or times specified in the order (but cannot be
retrospective) and with any other modifications specified in the order.
789FBD Application for a minimum entitlements order
States that the FWC can only make an order on application by;
(c) A worker to whom the order will apply; or
(d) An organisation that is entitled to represent the industrial interests of the workers,
workers or class of workers to whom the order will apply; or
(e) An organisation that would, if a worker to whom the order will apply, were instead an
employee, be entitled to represent the industrial interests of the worker.
789FBE Matters for FWC to consider
This provides that the FWC must as far as practicable give effect to the principle that all workers
should be entitled to minimum terms and conditions that are no less favourable than those of
employees performing the same work when deciding whether to make an order or the terms of the
order.
This gives effect to the central purpose of the Bill and requires the FWC to ensure that there is a
common set of minimum standards as between employees and other workers.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Amendment (Making Australia More Equal Bill) 2018
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the bill
The Bill amends the Fair Work Act 2009 to allow workers or their union to submit a request
to the Fair Work Commission (FWC) to issue a Minimum Entitlements Order which would
extend certain provisions of the Fair Work Act 2009, modern award or enterprise
agreement to workers.
When preparing the Minimum Entitlements Order the FWC must give consideration to the
principle that all workers should be entitled to minimum wages, terms and conditions that
are no less than those applying to employees.
Human rights implications
This bill does not engage any of the applicable rights or freedoms.
Conclusion
This bill is compatible with human rights because it does not raise any human rights
issues.
Adam Bandt MP