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FAIR WORK (COMMONWEALTH POWERS) AND OTHER PROVISIONS BILL 2009

          Queensland



Fair Work (Commonwealth
Powers) and Other Provisions
Bill 2009

 


 

 

Queensland Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Part 2 Reference of matters 4 Fundamental workplace relations principles . . . . . . . . . . . . . . . . 16 5 Reference of matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 6 Matters excluded from the reference . . . . . . . . . . . . . . . . . . . . . . 18 7 Termination of references . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 8 Effect of termination of amendment reference or transition reference before initial reference . . . . . . . . . . . . . . . . . . . . . . . . . 19 9 Period for termination of references . . . . . . . . . . . . . . . . . . . . . . . 20 10 Proclamations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 11 Amendment of long title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 12 Transitional provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Part 3 Amendments of other legislation relating to the reference of matters Division 1 Amendment of Acts Interpretation Act 1954 13 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 14 Amendment of s 36 (Meaning of commonly used words and expressions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Division 2 Amendment of Building and Construction Industry (Portable Long Service Leave) Act 1991 15 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 16 Amendment of s 59 (Amount of long service leave payment) . . . 22 17 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 22

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Contents Division 3 Amendment of Contract Cleaning Industry (Portable Long Service Leave) Act 2005 18 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 19 Amendment of s 71 (Application for long service leave entitlement) ..................................... 23 20 Amendment of s 73 (Amount of long service leave payment) . . . 23 21 Amendment of s 75 (Payments to employers) . . . . . . . . . . . . . . . 23 22 Amendment of s 151 (Relationship with other Acts, awards etc) . 23 23 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 24 Division 4 Amendment of Electoral Act 1992 24 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 25 Amendment of schedule (Election Funding and financial disclosure based on part XX of the Commonwealth Electoral Act) ......................................... 24 Division 5 Amendment of Electricity Act 1994 26 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 27 Amendment of s 131 (Effect of regulator taking over operation of relevant operations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Division 6 Amendment of Health Services Act 1991 28 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 29 Amendment of s 2 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Division 7 Amendment of Industrial Relations Act 1999 30 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 31 Amendment of s 5 (Who is an employee) . . . . . . . . . . . . . . . . . . 26 32 Amendment of s 6 (Who is an employer) . . . . . . . . . . . . . . . . . . . 26 33 Amendment of s 9 (Working time for an employee under an industrial instrument made on or before 1 September 2005 etc.) 26 34 Amendment of s 9A (Working time for an employee under an industrial instrument made after 1 September 2005 etc.) . . . . . . 27 35 Amendment of s 10 (Entitlement). . . . . . . . . . . . . . . . . . . . . . . . . 27 36 Amendment of s 11 (Entitlement). . . . . . . . . . . . . . . . . . . . . . . . . 27 37 Amendment of s 13 (Payment for annual leave). . . . . . . . . . . . . . 28 38 Amendment of s 13A (Annual leave loading) . . . . . . . . . . . . . . . . 28 39 Amendment of s 14 (Payment for annual leave on termination of employment). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 40 Amendment of s 14A (Jury service leave) . . . . . . . . . . . . . . . . . . 28 41 Amendment of s 15 (Public holidays) . . . . . . . . . . . . . . . . . . . . . . 29 42 Amendment of ch 2, pt 2, div 5, hdg (Past overrides less favourable conditions). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Page 2

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Contents 43 Amendment of s 41 (This part overrides less favourable conditions) .................................... 29 44 Insertion of new section 57A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 57A Provisions taken to be terms of industrial instrument. 30 45 Amendment of s 136 (Apprentice's and trainee's employment conditions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 46 Amendment of s 275 (Power to declare persons to be employees or employers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 47 Amendment of s 276 (Power to amend or void contracts) . . . . . . 30 48 Amendment of s 314 (Functions and powers vested in commission by other jurisdictions) . . . . . . . . . . . . . . . . . . . . . . . . 31 49 Amendment of s 315 (Arrangements with Commonwealth public service) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 50 Amendment of s 408D (When fees are or are not payable to private employment agent) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 51 Amendment of s 411 (Meaning of counterpart federal body for ch 12) ......................................... 31 52 Amendment of s 580 (Exemption if federal election held) . . . . . . 32 53 Amendment of s 581 (Obligation to notify change in federal election result) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 54 Amendment of s 582 (Exemption) . . . . . . . . . . . . . . . . . . . . . . . . 32 55 Amendment of s 584 (Obligation to file copy of federal officers register) ......................................... 32 56 Amendment of s 585 (Obligation to give notice of change or contravention). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 57 Amendment of s 586 (Who may apply) . . . . . . . . . . . . . . . . . . . . 33 58 Amendment of s 587 (Grant of exemption) . . . . . . . . . . . . . . . . . 33 59 Amendment of s 588 (Obligation to file copies of federal audit documents). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 60 Amendment of s 589 (Obligation to give notice of change or contravention). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 61 Insertion of new chapter 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Chapter 16 Employers declared not to be national system employers Part 1 Declarations 692 Declaration that particular employers are not to be national system employers . . . . . . . . . . . . . . . . . . . . . 34 Part 2 Change from federal to State system 692A Definitions for this part . . . . . . . . . . . . . . . . . . . . . . . . 35 692B Brisbane City Council . . . . . . . . . . . . . . . . . . . . . . . . . 36 Page 3

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Contents 692C Operation of existing industrial instrument in relation to declared employers . . . . . . . . . . . . . . . . . . . . . . . . 37 692D New State instrument taken to exist for declared employers in other circumstances . . . . . . . . . . . . . . . 37 692E Ability to carry over matters . . . . . . . . . . . . . . . . . . . . 39 692F Reference in a new State instrument to a federal industrial authority or authority manager . . . . . . . . . . 40 692G Reference in a new State instrument to a provision of Commonwealth law . . . . . . . . . . . . . . . . . . . . . . . . 40 692H Reference in a new State instrument to a federal organisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 692I Counting service under the old federal instrument. . . 41 692J Accruing entitlements--leave accrued immediately before the relevant day . . . . . . . . . . . . . . . . . . . . . . . . 42 692K Leave that is being, or is to be, taken under the old federal instrument. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 62 Amendment of s 745 (Definitions for pt 7) . . . . . . . . . . . . . . . . . . 43 63 Insertion of new ch 20, pt 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Part 10 Transitional provisions for Fair Work (Commonwealth Powers) and Other Provisions Act 2009 760 Referral of matters to Commonwealth Parliament . . . 43 761 Declaration about BCC Certified Agreement . . . . . . . 44 762 Amendment of regulation . . . . . . . . . . . . . . . . . . . . . . 44 64 Amendment of sch 5 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 44 Division 8 Amendment of Industrial Relations Regulation 2000 65 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 66 Renumbering of pt 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 67 Insertion of new pt 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Part 14 Declarations for Commonwealth Act, section 14(2) 148 Declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 68 Insertion of new sch 7A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Schedule 7A Employers declared not to be national system employers Division 9 Amendment of Magistrates Courts Act 1921 69 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 70 Amendment of s 42B (Application of pt 5A) . . . . . . . . . . . . . . . . . 55 Page 4

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Contents Division 10 Amendment of Statutory Instruments Act 1992 71 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 72 Amendment of sch 2A (Subordinate legislation to which part 7 does not apply). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Division 11 Amendment of Summary Offences Act 2005 73 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 74 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 56 Division 12 Amendment of Workers' Compensation and Rehabilitation Act 2003 75 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 76 Amendment of s 107A (Definitions for pt 1A) . . . . . . . . . . . . . . . . 56 77 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 56 Division 13 Amendment of Workplace Health and Safety Act 1995 78 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 79 Amendment of s 90B (Definitions for part) . . . . . . . . . . . . . . . . . . 57 Part 4 Amendments relating to trustee companies Division 1 Amendment of Trustee Companies Act 1968 80 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 81 Amendment of s 4 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 57 82 Amendment of s 4AA (Powers conferred on trustee companies are additional powers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 83 Omission of s 4A (Subsidiaries, holding companies and related corporations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 84 Omission of ss 36 and 36A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 85 Relocation and renumbering of s 43 (When legatee to bear commission on legacy). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 86 Omission of pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 87 Omission of ss 50-53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 88 Omission of pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 89 Relocation and renumbering of s 62 (Appointment of attorney by trustee company) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 90 Omission of pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 91 Replacement of pt 8, hdg (General) . . . . . . . . . . . . . . . . . . . . . . . 59 92 Insertion of new s 68C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 68C Compulsory transfer determinations . . . . . . . . . . . . . 59 93 Omission of s 69 (Other companies may apply for similar powers) ....................................... 61 94 Omission of s 73 (Provisions relating to ex trustee companies). . 61 Page 5

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Contents 95 Renumbering of pts 1-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 96 Insertion of new pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Part 6 Transitional provisions for Fair Work (Commonwealth Powers) and Other Provisions Act 2009 74 Definitions for pt 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 75 Court may review rate of commission . . . . . . . . . . . . 62 76 Court may review fee . . . . . . . . . . . . . . . . . . . . . . . . . 62 77 Filing and passing accounts . . . . . . . . . . . . . . . . . . . . 63 78 Court may order account . . . . . . . . . . . . . . . . . . . . . . 63 79 Investment of capital in name of Treasurer. . . . . . . . . 63 80 Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 81 Special transitional provisions . . . . . . . . . . . . . . . . . . 64 97 Omission of sch 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Division 2 Repeal 98 Repeal of regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Division 3 Amendment of Foreign Ownership of Land Register Act 1988 99 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 100 Amendment of s 10 (Trustee company common funds) . . . . . . . . 65 Division 4 Amendment of Guardianship and Administration Act 2000 101 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 102 Amendment of s 48 (Remuneration of professional administrators) ............................... 66 103 Insertion of new ch 12, pt 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Part 10 Transitional provision for Fair Work (Commonwealth Powers) and Other Provisions Act 2009 268 Remuneration of professional administrators . . . . . . . 67 Division 5 Amendment of Trusts Act 1973 104 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 105 Amendment of s 5 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Part 5 Amendment of Adoption Act 2009 106 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 107 Insertion of new s 331A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 331A Interim orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Page 6

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Contents Part 6 Amendment of Trans-Tasman Mutual Recognition (Queensland) Act 2003 108 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 109 Insertion of new s 15 and schedule . . . . . . . . . . . . . . . . . . . . . . . 68 15 Authorisation to make gazette notice . . . . . . . . . . . . . 69 Schedule Authorised gazette notice Part 7 Amendment of Mutual Recognition (Queensland) Act 1992 110 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 111 Amendment of s 5 (Enactment of uniform mutual recognition legislation) ....................................... 72 Schedule 1 Other entities that are not public sector employers . . . . . . . 73 Schedule 2 Text to be included in the provisions of the Commonwealth Fair Work Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Division 2B Application of this Act in States that refer matters after 1 July 2009 but on or before 1 January 2010 30K Meaning of terms used in this Division. . . . . . . . . . . . . . . . . . . . . 74 30L Meaning of referring State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 30M Extended meaning of national system employee . . . . . . . . . . . . . 82 30N Extended meaning of national system employer . . . . . . . . . . . . . 83 30P Extended ordinary meanings of employee and employer . . . . . . 83 30Q Extended meaning of outworker entity . . . . . . . . . . . . . . . . . . . . . 84 30R General protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 30S Division only has effect if supported by reference . . . . . . . . . . . . 85 Page 7

 


 

 

2009 A Bill for An Act to refer particular matters relating to workplace relations to the Parliament of the Commonwealth for the purposes of section 51(xxxvii) of the Commonwealth Constitution, to amend other legislation to provide for particular matters as a consequence of the referral and for associated matters, and to amend the Trustee Companies Act 1968 to facilitate the regulation of trustee companies by the Commonwealth, to repeal the Trustee Companies Regulation 1996 and to make particular consequential amendments to other Acts relating to trustee companies, and to amend the Adoption Act 2009 to provide for a particular matter, and to authorise the Governor to make a gazette notice endorsing a particular Commonwealth regulation for the Trans-Tasman Mutual Recognition (Queensland) Act 2003 and to amend the Mutual Recognition (Queensland) Act 1992 for a particular purpose

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 1 Short title 3 This Act may be cited as the Fair Work (Commonwealth 4 Powers) and Other Provisions Act 2009. 5 2 Commencement 6 (1) This Act, other than parts 6 and 7, commences on a day to be 7 fixed by proclamation. 8 (2) The Acts Interpretation Act 1954, section 15DA does not 9 apply to a provision of this Act other than parts 4 and 5. 10 3 Definitions 11 (1) In this Act-- 12 amendment reference means the reference under section 13 5(1)(b). 14 Commonwealth Fair Work Act means the Fair Work Act 2009 15 (Cwlth) (as amended from time to time). 16 department see the Public Service Act 2008, section 7. 17 employing office means an entity designated as an employing 18 office, and empowered to employ persons on behalf of the 19 State, under an Act. 20 excluded subject matter means any of the following 21 matters-- 22 (a) a matter dealt with in the Anti-Discrimination Act 1991; 23 (b) superannuation; 24 (c) workers' compensation; 25 Page 10

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 1 Preliminary [s 3] (d) occupational health and safety; 1 (e) matters relating to outworkers (within the ordinary 2 meaning of the term); 3 (f) child labour; 4 (g) training arrangements; 5 (h) long service leave; 6 (i) leave for victims of crime; 7 (j) attendance for service on a jury, or for emergency 8 service duties; 9 (k) declaration, prescription or substitution of public 10 holidays; 11 (l) the following matters relating to provision of essential 12 services or to situations of emergency-- 13 (i) directions to perform work, including to perform 14 work at a particular time or place, or in a particular 15 way; 16 (ii) directions not to perform work, including not to 17 perform work at a particular time or place, or in a 18 particular way; 19 (m) regulation of any of the following-- 20 (i) employee associations; 21 (ii) employer associations; 22 (iii) members of employee associations or of employer 23 associations; 24 (n) workplace surveillance; 25 (o) business trading hours; 26 (p) claims for enforcement of contracts of employment, 27 except so far as a law of the State provides for the 28 variation or setting aside of rights and obligations 29 arising under a contract of employment, or another 30 arrangement for employment, that a court or tribunal 31 finds is unfair; 32 Page 11

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 1 Preliminary [s 3] (q) rights or remedies incidental to a matter referred to in a 1 preceding paragraph of this definition; 2 except to the extent that the Fair Work Act 2009 (Cwlth), as 3 originally enacted, deals with the matter (directly or 4 indirectly), or requires or permits instruments made or given 5 effect under the Commonwealth Fair Work Act so to deal with 6 the matter. 7 express amendment of the Commonwealth Fair Work Act 8 means the direct amendment of the text of that Act (whether 9 by the insertion, omission, repeal, substitution or relocation of 10 words or matter) but does not include the enactment by a 11 Commonwealth Act of a provision that has, or will have, 12 substantive effect otherwise than as part of the text of the 13 Commonwealth Fair Work Act. 14 fundamental workplace relations principles see section 4. 15 initial reference means the reference under section 5(1)(a). 16 initial referred provisions means the scheduled text, to the 17 extent to which that text deals with matters that are included 18 in the legislative powers of the Parliament of the State. 19 law enforcement officer means-- 20 (a) a member of the Queensland Police Service as defined 21 under the Police Service Administration Act 1990, 22 section 2.2; or 23 (b) a special constable appointed under the Police Service 24 Administration Act 1990, section 5.16. 25 local government sector employee means an employee of a 26 local government sector employer. 27 local government sector employer means an employer that 28 is-- 29 (a) a local government; or 30 (b) any entity established under the Local Government Act 31 1993 or the City of Brisbane Act 1924; or 32 (c) a local government entity under the Local Government 33 Act 2009; or 34 Page 12

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 1 Preliminary [s 3] (d) the Local Government Association of Queensland 1 (Incorporated) established under the Local Government 2 Act 1993; or 3 (e) any other entity controlled by a body or bodies 4 mentioned in a preceding paragraph. 5 public sector employee means-- 6 (a) a person employed or appointed in or by a public sector 7 employer; or 8 (b) the chief executive of a public sector employer. 9 public sector employer means any of the following-- 10 (a) a Minister; 11 (b) a department or public service office; 12 (c) an employing office; 13 (d) a registry or other administrative office of a court or 14 tribunal of the State of any jurisdiction; 15 (e) an agency, authority, commission, corporation, 16 instrumentality, office, or other entity, not otherwise 17 mentioned in a preceding paragraph, established under 18 an Act or under State authorisation for a public or State 19 purpose; 20 (f) a chief executive of, or part of, an entity mentioned in a 21 preceding paragraph; 22 but does not include the following-- 23 (g) a GOC; 24 (h) an entity mentioned in schedule 1; 25 (i) a chief executive of an entity mentioned in paragraphs 26 (g) and (h). 27 reference means-- 28 (a) the initial reference; or 29 (b) the amendment reference; or 30 (c) the transition reference. 31 Page 13

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 1 Preliminary [s 3] referred subject matters means any of the following-- 1 (a) terms and conditions of employment, including any of 2 the following-- 3 (i) minimum terms and conditions of employment 4 (including employment standards and minimum 5 wages); 6 (ii) terms and conditions of employment contained in 7 instruments (including instruments such as awards, 8 determinations and enterprise-level agreements); 9 (iii) bargaining in relation to terms and conditions of 10 employment; 11 (iv) the effect of a transfer of business on terms and 12 conditions of employment; 13 (b) terms and conditions under which an outworker entity 14 may arrange for work to be performed for the entity 15 (directly or indirectly), if the work is of a kind that is 16 often performed by outworkers; 17 (c) rights and responsibilities of persons, including 18 employees, employers, independent contractors, 19 outworkers, outworker entities, associations of 20 employees or associations of employers, being rights 21 and responsibilities relating to any of the following-- 22 (i) freedom of association in the context of workplace 23 relations, and related protections; 24 (ii) protection from discrimination relating to 25 employment; 26 (iii) termination of employment; 27 (iv) industrial action; 28 (v) protection from payment of fees for services 29 related to bargaining; 30 (vi) sham independent contractor arrangements; 31 (vii) standing down employees without pay; 32 Page 14

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 1 Preliminary [s 3] (viii) union rights of entry and rights of access to 1 records; 2 (d) compliance with, and enforcement of, the 3 Commonwealth Fair Work Act; 4 (e) the administration of the Commonwealth Fair Work 5 Act; 6 (f) the application of the Commonwealth Fair Work Act; 7 (g) matters incidental or ancillary to the operation of the 8 Commonwealth Fair Work Act or of instruments made 9 or given effect under the Commonwealth Fair Work Act; 10 but does not include any excluded subject matter. 11 referred transition matters means the matters of the making 12 of laws with respect to the transition from the regime provided 13 for by-- 14 (a) the Workplace Relations Act 1996 (Cwlth) (as it 15 continues to apply because of the Fair Work 16 (Transitional Provisions and Consequential 17 Amendments) Act 2009 (Cwlth); or 18 (b) a law of this State relating to workplace relations or 19 industrial relations; 20 to the regime provided for by the Commonwealth Fair Work 21 Act. 22 scheduled text means the text set out in Schedule 2. 23 transition reference means the reference under section 24 5(1)(c). 25 (2) Words or phrases in the definition of excluded subject matter 26 or the definition of referred subject matters that are defined in 27 the Commonwealth Fair Work Act have, in that definition, the 28 meanings set out in that Act as in force on 1 July 2009. 29 (3) For the purposes of the Commonwealth Fair Work Act, the 30 Commissioner of the Police Service is to be taken to be an 31 employer of law enforcement officers of the State. 32 Page 15

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 2 Reference of matters [s 4] Part 2 Reference of matters 1 4 Fundamental workplace relations principles 2 The following are the fundamental workplace relations 3 principles under this Act-- 4 (a) that the Commonwealth Fair Work Act should provide 5 for, and continue to provide for, the following-- 6 (i) a strong, simple and enforceable safety net of 7 minimum employment standards; 8 (ii) genuine rights and responsibilities to ensure 9 fairness, choice and representation at work, 10 including the freedom to choose whether or not to 11 join and be represented by a union or participate in 12 collective activities; 13 (iii) collective bargaining at the enterprise level with no 14 provision for individual statutory agreements; 15 (iv) fair and effective remedies available through an 16 independent umpire; 17 (v) protection from unfair dismissal; 18 (b) that there should be, and continue to be, in connection 19 with the operation of the Commonwealth Fair Work Act, 20 the following-- 21 (i) an independent tribunal system; 22 (ii) an independent authority able to assist employers 23 and employees within a national workplace 24 relations system. 25 5 Reference of matters 26 (1) Subject to the other provisions of this Act, the following 27 matters are referred to the Parliament of the 28 Commonwealth-- 29 (a) the matters to which the initial referred provisions 30 relate, but only to the extent of the making of laws with 31 Page 16

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 2 Reference of matters [s 5] respect to those matters by including the initial referred 1 provisions in the Commonwealth Fair Work Act, as 2 originally enacted, and as subsequently amended by 3 amendments enacted at any time before this Act 4 commences, in the terms, or substantially in the terms, 5 set out in the scheduled text; 6 (b) the referred subject matters, but only to the extent of 7 making laws with respect to any such matter by making 8 express amendments of the Commonwealth Fair Work 9 Act; 10 (c) the referred transition matters. 11 (2) The reference of a matter under subsection (1) has effect 12 only-- 13 (a) if and to the extent that the matter is not included in the 14 legislative powers of the Parliament of the 15 Commonwealth (otherwise than by a reference for the 16 purposes of section 51(xxxvii) of the Commonwealth 17 Constitution); and 18 (b) if and to the extent that the matter is included in the 19 legislative powers of the Parliament of the State. 20 (3) The operation of each paragraph of subsection (1) is not 21 affected by any other paragraph. 22 (4) To remove doubt, it is declared that it is the intention of the 23 Parliament of the State that the Commonwealth Fair Work Act 24 may be expressly amended, or have its operation otherwise 25 affected, at any time after the commencement of this Act by 26 provisions of Commonwealth Acts whose operation is based 27 on legislative powers that the Parliament of the 28 Commonwealth has apart from under the references under 29 subsection (1). 30 (5) Despite any other provision of this section, a reference under 31 subsection (1) has effect for a period-- 32 (a) beginning when this section commences; and 33 Page 17

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 2 Reference of matters [s 6] (b) ending at the end of the day fixed under section 7 as the 1 day on which the reference is to terminate; 2 but no longer. 3 6 Matters excluded from the reference 4 A matter referred by section 5 does not include-- 5 (a) matters relating to Ministers or Members of Parliament; 6 or 7 (b) matters relating to the Governor, the Office of the 8 Governor, the Governor's official residence (known as 9 `Government House') and its associated administrative 10 unit; or 11 (c) matters relating to judicial officers, or members of 12 tribunals established by or under a law of the State, or 13 their associates; or 14 (d) matters relating to public sector employees and 15 employers; or 16 (e) matters relating to persons appointed or engaged by the 17 Governor, Governor in Council or a Minister under any 18 other Act, law or authority; or 19 (f) matters relating to officers or employees of the 20 parliamentary service as defined under the 21 Parliamentary Service Act 1988, section 23; or 22 (g) matters relating to law enforcement officers; or 23 (h) matters relating to local government sector employees 24 and employers. 25 7 Termination of references 26 (1) The Governor may, at any time, by proclamation published in 27 the Gazette, fix a day as the day on which-- 28 (a) the references are to terminate; or 29 (b) the amendment reference is to terminate; or 30 Page 18

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 2 Reference of matters [s 8] (c) the transition reference is to terminate. 1 (2) The Governor may, by proclamation published in the Gazette, 2 revoke a proclamation published under subsection (1), in 3 which case the revoked proclamation is taken (for the 4 purposes of section 5) never to have been published. 5 (3) A revoking proclamation has effect only if published before 6 the day fixed under subsection (1). 7 (4) The revocation of a proclamation published under subsection 8 (1) does not prevent publication of a further proclamation 9 under that subsection. 10 (5) If the amendment reference and the transition reference have 11 been terminated, the expression the references in subsection 12 (1) refers only to the initial reference. 13 8 Effect of termination of amendment reference or 14 transition reference before initial reference 15 (1) If the amendment reference or the transition reference 16 terminates before the initial reference, the termination of the 17 amendment reference or transition reference does not affect-- 18 (a) laws that were made under that reference before that 19 termination (whether or not they have come into 20 operation before that termination); or 21 (b) the continued operation in the State of the 22 Commonwealth Fair Work Act as in operation 23 immediately before the termination or as subsequently 24 amended or affected by-- 25 (i) laws referred to in paragraph (a) that come into 26 operation after that termination; or 27 (ii) provisions referred to in section 5(4). 28 (2) Accordingly, the amendment reference or transition reference 29 continues to have effect for the purposes of subsection (1) 30 unless the initial reference is terminated. 31 Page 19

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 2 Reference of matters [s 9] 9 Period for termination of references 1 (1) Subject to subsection (2), a day fixed by a proclamation under 2 section 7(1) must be no earlier than the first day after the end 3 of the period of 6 months beginning on the day on which the 4 proclamation is published. 5 (2) If-- 6 (a) a proclamation under section 7(1) only provides for the 7 termination of the amendment reference; and 8 (b) the Governor, as part of the proclamation by which the 9 termination is to be effected, declares that, in the 10 opinion of the Governor, the Commonwealth Fair Work 11 Act-- 12 (i) is proposed to be amended (by an amendment 13 introduced into the Parliament of the 14 Commonwealth by a Commonwealth Minister); or 15 (ii) has been amended; 16 in a manner that is inconsistent with 1 or more of the 17 fundamental workplace relations principles; 18 the day fixed by the proclamation under section 7(1)(b) may 19 be earlier than the day that applies under subsection (1) but 20 must be no earlier than the first day after the end of the period 21 of 3 months beginning on the day on which the proclamation 22 is published. 23 (3) If the Governor fixes a day under subsection (2), the Minister 24 must, as soon as practicable after the publication of the 25 relevant proclamation, prepare a report on the matter and 26 cause a copy of the report to be laid before the Legislative 27 Assembly. 28 10 Proclamations 29 A proclamation made under this Act is subordinate 30 legislation. 31 Page 20

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 11] 11 Amendment of long title 1 (1) Long title, from `, to amend other legislation'-- 2 omit. 3 (2) This section is repealed the day after subsection (1) is 4 commenced. 5 12 Transitional provision 6 A reference in any Act or instrument to an industrial 7 instrument as defined under the Industrial Relations Act 1999 8 includes, if the context permits and it is necessary to do so to 9 take account of the reference of matters under this Act, a 10 reference to a federal industrial instrument. 11 Part 3 Amendments of other 12 legislation relating to the 13 reference of matters 14 Division 1 Amendment of Acts Interpretation 15 Act 1954 16 13 Act amended 17 This division amends the Acts Interpretation Act 1954. 18 14 Amendment of s 36 (Meaning of commonly used words 19 and expressions) 20 Section 36-- 21 insert-- 22 `federal industrial instrument see the Industrial Relations 23 Act 1999, schedule 5.'. 24 Page 21

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 15] Division 2 Amendment of Building and 1 Construction Industry (Portable 2 Long Service Leave) Act 1991 3 15 Act amended 4 This division amends the Building and Construction Industry 5 (Portable Long Service Leave) Act 1991. 6 16 Amendment of s 59 (Amount of long service leave 7 payment) 8 Section 59(8), (10) and (11), after `relevant award'-- 9 insert-- 10 `or agreement'. 11 17 Amendment of schedule (Dictionary) 12 (1) Schedule, definitions award, building and construction 13 industry award or agreement and industrial agreement-- 14 omit. 15 (2) Schedule-- 16 insert-- 17 `building and construction industry award or agreement 18 means either of the following applying to the building and 19 construction industry-- 20 (a) an industrial instrument under the Industrial Relations 21 Act 1999; or 22 (b) a federal industrial instrument.'. 23 Page 22

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 18] Division 3 Amendment of Contract Cleaning 1 Industry (Portable Long Service 2 Leave) Act 2005 3 18 Act amended 4 This division amends the Contract Cleaning Industry 5 (Portable Long Service Leave) Act 2005. 6 19 Amendment of s 71 (Application for long service leave 7 entitlement) 8 Section 71(2)(a), `award or relevant industrial agreement'-- 9 omit, insert-- 10 `industrial instrument'. 11 20 Amendment of s 73 (Amount of long service leave 12 payment) 13 Section 73(4), definition classification level, `award or 14 relevant industrial agreement'-- 15 omit, insert-- 16 `industrial instrument'. 17 21 Amendment of s 75 (Payments to employers) 18 Section 75(8), definition classification level, `award or 19 relevant industrial agreement'-- 20 omit, insert-- 21 `industrial instrument'. 22 22 Amendment of s 151 (Relationship with other Acts, 23 awards etc) 24 Section 151, `award or relevant industrial agreement'-- 25 Page 23

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 23] omit, insert-- 1 `industrial instrument'. 2 23 Amendment of sch 2 (Dictionary) 3 (1) Schedule 2, definitions award and relevant industrial 4 agreement-- 5 omit. 6 (2) Schedule 2-- 7 insert-- 8 `industrial instrument means an industrial instrument under 9 the Industrial Relations Act 1999 or a federal industrial 10 instrument.'. 11 Division 4 Amendment of Electoral Act 1992 12 24 Act amended 13 This division amends the Electoral Act 1992. 14 25 Amendment of schedule (Election Funding and financial 15 disclosure based on part XX of the Commonwealth 16 Electoral Act) 17 Schedule, section 287, definition registered industrial 18 organisation-- 19 omit, insert-- 20 `registered industrial organisation means-- 21 (a) a body registered as an industrial organisation, or a body 22 whose registration was continued or preserved, under 23 the Industrial Relations Act 1999; or 24 (b) an organisation registered under the Fair Work 25 (Registered Organisations) Act 2009 (Cwlth) or the law 26 Page 24

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 26] of another State or territory about the registration of 1 industrial organisations or unions.'. 2 Division 5 Amendment of Electricity Act 1994 3 26 Act amended 4 This division amends the Electricity Act 1994. 5 27 Amendment of s 131 (Effect of regulator taking over 6 operation of relevant operations) 7 Section 131(7), after `1999'-- 8 insert-- 9 `or the Fair Work Act 2009 (Cwlth)'. 10 Division 6 Amendment of Health Services Act 11 1991 12 28 Act amended 13 This division amends the Health Services Act 1991. 14 29 Amendment of s 2 (Definitions) 15 Section 2, definition award, after `(Cwlth)'-- 16 insert-- 17 `or a modern award under the Fair Work Act 2009 (Cwlth)'. 18 Page 25

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 30] Division 7 Amendment of Industrial Relations 1 Act 1999 2 30 Act amended 3 This division amends the Industrial Relations Act 1999. 4 31 Amendment of s 5 (Who is an employee) 5 Section 5(1), at the end-- 6 insert-- 7 `Note-- 8 For the application of the Commonwealth Act, see the note to section 9 6(1).'. 10 32 Amendment of s 6 (Who is an employer) 11 Section 6(1), at the end-- 12 insert-- 13 `Note-- 14 The Commonwealth Act applies generally speaking to private sector 15 employers and their employees.'. 16 33 Amendment of s 9 (Working time for an employee under 17 an industrial instrument made on or before 1 September 18 2005 etc.) 19 (1) Section 9(8)-- 20 renumber as section 9(9). 21 (2) Section 9-- 22 insert-- 23 `(8) If this section applies to an employee, without limiting the 24 section, its provisions are taken to be terms of an industrial 25 instrument applicable to the employee.'. 26 Page 26

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 34] 34 Amendment of s 9A (Working time for an employee under 1 an industrial instrument made after 1 September 2005 2 etc.) 3 (1) Section 9A(12)-- 4 renumber as section 9A(13). 5 (2) Section 9A-- 6 insert-- 7 `(12) If this section applies to an employee, without limiting the 8 section, its provisions are taken to be terms of an industrial 9 instrument applicable to the employee.'. 10 35 Amendment of s 10 (Entitlement) 11 (1) Section 10(8)-- 12 renumber as section 10(9). 13 (2) Section 10-- 14 insert-- 15 `(8) If this section applies to an employee, without limiting the 16 section, its provisions are taken to be terms of an industrial 17 instrument applicable to the employee.'. 18 36 Amendment of s 11 (Entitlement) 19 (1) Section 11(8)-- 20 renumber as section 11(9). 21 (2) Section 11-- 22 insert-- 23 `(8) If this section applies to an employee, without limiting the 24 section, its provisions are taken to be terms of an industrial 25 instrument applicable to the employee.'. 26 Page 27

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 37] 37 Amendment of s 13 (Payment for annual leave) 1 (1) Section 13(5)-- 2 renumber as section 13(6). 3 (2) Section 13-- 4 insert-- 5 `(5) If this section applies to an employee, without limiting the 6 section, its provisions are taken to be terms of an industrial 7 instrument applicable to the employee.'. 8 38 Amendment of s 13A (Annual leave loading) 9 Section 13A-- 10 insert-- 11 `(4) If this section applies to an employee, without limiting the 12 section, its provisions are taken to be terms of an industrial 13 instrument applicable to the employee.'. 14 39 Amendment of s 14 (Payment for annual leave on 15 termination of employment) 16 Section 14-- 17 insert-- 18 `(6) If this section applies to an employee, without limiting the 19 section, its provisions are taken to be terms of an industrial 20 instrument applicable to the employee.'. 21 40 Amendment of s 14A (Jury service leave) 22 (1) Section 14A(7)-- 23 renumber as section 14A(8). 24 (2) Section 14A-- 25 insert-- 26 Page 28

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 41] `(7) If this section applies to an employee, without limiting the 1 section, its provisions are taken to be terms of an industrial 2 instrument applicable to the employee.'. 3 41 Amendment of s 15 (Public holidays) 4 (1) Section 15(10)-- 5 renumber as section 15(11). 6 (2) Section 15-- 7 insert-- 8 `(10) If this section applies to an employee, without limiting the 9 section, its provisions are taken to be terms of an industrial 10 instrument applicable to the employee.'. 11 42 Amendment of ch 2, pt 2, div 5, hdg (Past overrides less 12 favourable conditions) 13 Chapter 2, part 2, division 5, heading-- 14 omit, insert-- 15 `Division 5 General'. 16 43 Amendment of s 41 (This part overrides less favourable 17 conditions) 18 (1) Section 41, heading-- 19 omit, insert-- 20 `41 Relationship to other rights and industrial instruments'. 21 (2) Section 41-- 22 insert-- 23 `(2) To the extent a provision of this part, other than section 38C, 24 applies to an employee, without limiting the provision, the 25 provision is taken to be a term of an industrial instrument 26 applicable to the employee.'. 27 Page 29

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 44] 44 Insertion of new section 57A 1 Chapter 2, part 3-- 2 insert-- 3 `57A Provisions taken to be terms of industrial instrument 4 `A provision of this part that applies to an employee, without 5 limiting the provision, is taken to be a term of an industrial 6 instrument applicable to the employee.'. 7 45 Amendment of s 136 (Apprentice's and trainee's 8 employment conditions) 9 Section 136(6), definition industrial instrument-- 10 omit, insert-- 11 `industrial instrument includes a federal industrial 12 instrument.'. 13 46 Amendment of s 275 (Power to declare persons to be 14 employees or employers) 15 Section 275(4), definition industrial instrument-- 16 omit, insert-- 17 `industrial instrument includes a federal industrial 18 instrument.'. 19 47 Amendment of s 276 (Power to amend or void contracts) 20 (1) Section 276, heading, before `void'-- 21 insert-- 22 `declare'. 23 (2) Section 276(7), definition industrial instrument-- 24 omit, insert-- 25 `industrial instrument includes a federal industrial 26 instrument.'. 27 Page 30

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 48] 48 Amendment of s 314 (Functions and powers vested in 1 commission by other jurisdictions) 2 Section 314(1)(a), `Workplace Relations Act 1996 (Cwlth)'-- 3 omit, insert-- 4 `Commonwealth Act'. 5 49 Amendment of s 315 (Arrangements with Commonwealth 6 public service) 7 Section 315(3), definition Commonwealth public servant, 8 paragraphs (b) and (c)-- 9 omit, insert-- 10 `(b) a person performing functions and exercising powers 11 under the Commonwealth Act.'. 12 50 Amendment of s 408D (When fees are or are not payable 13 to private employment agent) 14 Section 408D(4), definition industrial instrument-- 15 omit, insert-- 16 `industrial instrument includes a federal industrial 17 instrument.'. 18 51 Amendment of s 411 (Meaning of counterpart federal 19 body for ch 12) 20 Section 411(1)(b), `Commonwealth Act, schedule 1, section 21 151'-- 22 omit, insert-- 23 `Commonwealth (Registered Organisations) Act, section 24 151'. 25 Page 31

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 52] 52 Amendment of s 580 (Exemption if federal election held) 1 Section 580(2)(b), `Commonwealth Act'-- 2 omit, insert-- 3 `Commonwealth (Registered Organisations) Act'. 4 53 Amendment of s 581 (Obligation to notify change in 5 federal election result) 6 Section 581(1)(b), `Commonwealth Act'-- 7 omit, insert-- 8 `Commonwealth (Registered Organisations) Act'. 9 54 Amendment of s 582 (Exemption) 10 Section 582(2), `Commonwealth Act'-- 11 omit, insert-- 12 `Commonwealth (Registered Organisations) Act'. 13 55 Amendment of s 584 (Obligation to file copy of federal 14 officers register) 15 (1) Section 584(2), `Commonwealth Act'-- 16 omit, insert-- 17 `Commonwealth (Registered Organisations) Act'. 18 (2) Section 584(3), definition officer's records, `Commonwealth 19 Act'-- 20 omit, insert-- 21 `Commonwealth (Registered Organisations) Act'. 22 56 Amendment of s 585 (Obligation to give notice of change 23 or contravention) 24 Section 585(1), `Commonwealth Act'-- 25 Page 32

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 57] omit, insert-- 1 `Commonwealth (Registered Organisations) Act'. 2 57 Amendment of s 586 (Who may apply) 3 (1) Section 586(b), `Commonwealth Act'-- 4 omit, insert-- 5 `Commonwealth (Registered Organisations) Act'. 6 (2) Section 586(c), `Commonwealth Act, schedule 1, section 7 270'-- 8 omit, insert-- 9 `Commonwealth (Registered Organisations) Act, section 10 270'. 11 58 Amendment of s 587 (Grant of exemption) 12 Section 587(4), definition relevant Commonwealth provision, 13 `Commonwealth Act, schedule 1, chapter 8, part 3'-- 14 omit, insert-- 15 `Commonwealth (Registered Organisations) Act, chapter 8, 16 part 3'. 17 59 Amendment of s 588 (Obligation to file copies of federal 18 audit documents) 19 Section 588(2), `filing under the Commonwealth Act, 20 schedule 1, section 268'-- 21 omit, insert-- 22 `lodging under the Commonwealth (Registered 23 Organisations) Act, section 268'. 24 60 Amendment of s 589 (Obligation to give notice of change 25 or contravention) 26 (1) Section 589(1)(b), `Commonwealth Act'-- 27 Page 33

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 61] omit, insert-- 1 `Commonwealth (Registered Organisations) Act'. 2 (2) Section 589(1)(c), `Commonwealth Act, schedule 1, section 3 270'-- 4 omit, insert-- 5 `Commonwealth (Registered Organisations) Act, section 6 270'. 7 61 Insertion of new chapter 16 8 After section 691-- 9 insert-- 10 `Chapter 16 Employers declared not to 11 be national system 12 employers 13 `Part 1 Declarations 14 `692 Declaration that particular employers are not to be 15 national system employers 16 `(1) This section applies for the purpose of the Commonwealth 17 Act, section 14(2). 18 `(2) Brisbane City Council established under the City of Brisbane 19 Act 1924 is declared not to be a national system employer for 20 the purposes of the Commonwealth Act. 21 `(3) A regulation may declare an FWA section 14(2) employer not 22 to be a national system employer for the purposes of the 23 Commonwealth Act. 24 `(4) A regulation may revoke a declaration made under a 25 regulation. 26 Page 34

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 61] `(5) The Minister by gazette notice may fix a relevant day for the 1 purposes of the declaration made by subsection (2) or a 2 declaration made by a regulation mentioned in subsection (3). 3 Note-- 4 Under the Commonwealth Act, section 14(2), an endorsement under 5 the section by the Minister under the Commonwealth Act must be in 6 force before a particular employer is not a national system employer as 7 specified by the declaration. The prescription of a relevant day allows 8 the timing of this endorsement to be taken into account for the purpose 9 of applying the provisions of part 2. 10 `(6) In this section-- 11 FWA section 14(2) employer means an employer that, under 12 section 14(2) of the Commonwealth Act, may be declared by 13 or under a law of the State not to be a national system 14 employer. 15 `Part 2 Change from federal to State 16 system 17 `692A Definitions for this part 18 `In this part-- 19 declared employee means a person employed by a declared 20 employer. 21 declared employer means an entity declared not to be a 22 national system employer by a regulation mentioned in 23 section 692(3). 24 federal industrial authority means-- 25 (a) Australian Industrial Relations Commission under the 26 Workplace Relations Act 1996 (Cwlth); or 27 (b) FWA. 28 federal industrial authority manager means-- 29 Page 35

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 61] (a) the registrar or deputy registrar of the Australian 1 Industrial Relations Commission under the Workplace 2 Relations Act 1996; or 3 (b) the General Manager of FWA. 4 national fair work legislation means-- 5 (a) the Commonwealth Act; or 6 (b) the Fair Work (Transitional Provisions and 7 Consequential Amendments) Act 2009 (Cwlth). 8 new State instrument, for a particular employer, means the 9 industrial instrument taken to exist on the relevant day under 10 section 692D in relation to the employees of the employer. 11 old federal instrument, for a particular employer, means the 12 federal industrial instrument mentioned in section 692D as 13 applying to or purporting to apply to the employees of the 14 employer immediately before the relevant day. 15 relevant day means-- 16 (a) for the Brisbane City Council and employees of the 17 Brisbane City Council--the day fixed under section 18 692(5) for the declaration under section 692(2); or 19 (b) for another particular employer or employee of the 20 particular employer--the day fixed under section 692(5) 21 for the declaration under section 692(3) that the 22 employer is not to be a national system employer. 23 terms includes conditions, restrictions and other provisions. 24 `692B Brisbane City Council 25 `(1) This section applies to employees of Brisbane City Council to 26 whom the BCC federal agreement relates immediately before 27 the relevant day. 28 `(2) From the relevant day, the Brisbane City Council Transitional 29 Enterprise Bargaining Certified Agreement 2009 is taken to 30 bind Brisbane City Council, its employees and any employee 31 organisation that is a party to the agreement. 32 Page 36

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 61] `(3) In this section-- 1 BCC federal agreement means the Brisbane City Council 2 Transitional Enterprise Bargaining Certified Agreement 6 3 Extension 11 under the Commonwealth Act. 4 `692C Operation of existing industrial instrument in relation 5 to declared employers 6 `(1) This section applies if a regulation provides in relation to a 7 particular declared employer that from the relevant day an 8 existing industrial instrument binds employees of the 9 employer. 10 `(2) From the relevant day, the industrial instrument binds the 11 declared employer, the declared employees and any 12 organisation that is a party to the agreement. 13 `(3) A regulation-- 14 (a) may be made for the purposes of subsection (1); and 15 (b) may declare the industrial instrument or any matter 16 relating to the industrial instrument to be valid for the 17 purposes of the operation of this section. 18 `692D New State instrument taken to exist for declared 19 employers in other circumstances 20 `(1) This section applies to the extent sections 692B and 692C do 21 not provide for declared employees. 22 `(2) If a federal industrial instrument, immediately before the 23 relevant day, applies to or purports to apply to the declared 24 employees of a particular declared employer, on the relevant 25 day, an industrial instrument binding the declared employer 26 and declared employees is taken to exist under this Act. 27 `(3) If a new State instrument is taken to exist because of 28 subsection (2)-- 29 (a) the instrument is taken to be-- 30 Page 37

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 61] (i) if the old federal instrument is an individual 1 statutory agreement--a QWA; and 2 (ii) otherwise--a certified agreement; and 3 (b) the instrument will be taken to be on the relevant day -- 4 (i) for a QWA mentioned in paragraph 5 (a)(i)--approved under this Act; or 6 (ii) for a certified agreement mentioned in paragraph 7 (a)(ii)-- certified under this Act; and 8 (c) subject to this section, the instrument is taken to have 9 the same terms as the old federal instrument including 10 those terms as added to or modified by-- 11 (i) terms of a federal award incorporated into the old 12 federal instrument; or 13 (ii) orders of a federal industrial authority; or 14 (iii) another instrument under the national fair work 15 legislation or the Workplace Relations Act 1996 16 (Cwlth); and 17 (d) this Act will apply in relation to the instrument subject 18 to any modifications or exclusions that may be 19 prescribed under a regulation made for this subsection; 20 and 21 (e) the commission may-- 22 (i) on application by the Minister; or 23 (ii) on application by a declared employer, a declared 24 employee or an organisation; 25 amend or revoke any term of the instrument if the 26 commission is satisfied that it is fair and reasonable to 27 do so in the circumstances. 28 `(4) The commission may, in amending a new State instrument 29 under subsection (3)(e), and to achieve the final effect of an 30 amendment, provide for the amendment to take effect-- 31 (a) immediately; or 32 Page 38

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 61] (b) progressively, in specified stages. 1 `(5) Despite a preceding subsection, a new State instrument 2 applies subject to chapter 2. 3 `(6) A new State instrument is taken to have a specified nominal 4 expiry date that is the earlier of the following-- 5 (a) a day that is 2 years from the relevant day; 6 (b) the day that, immediately before the relevant day, was 7 the expiry day of the old federal instrument. 8 `(7) In this section-- 9 individual statutory agreement includes the following under 10 the Workplace Relations Act 1996 (Cwlth) given continued 11 existence under the Fair Work (Transitional Provisions and 12 Consequential Amendments) Act 2009 (Cwlth)-- 13 (a) an Australian workplace agreement; 14 (b) a pre-reform AWA; 15 (c) an Individual Transitional Employment Agreement. 16 `692E Ability to carry over matters 17 `The commission may, in connection with the operation of 18 this part, or any matter arising, directly or indirectly, out of the 19 operation of this part-- 20 (a) accept, recognise, adopt or rely on any step taken under, 21 or for the purposes of, the national fair work legislation; 22 and 23 (b) accept or rely on any matter or thing (including in the 24 nature of evidence presented for the purposes of any 25 proceedings) that has been presented, filed or provided 26 under, or for the purposes of, the national fair work 27 legislation; and 28 (c) give effect in any other way to any other thing done 29 under, or for the purposes of, the national fair work 30 legislation. 31 Page 39

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 61] `692F Reference in a new State instrument to a federal 1 industrial authority or authority manager 2 `(1) If a term of a new State instrument is expressed to confer a 3 power or function on a federal industrial authority, the term 4 has effect from the relevant day as if it conferred the power or 5 function instead on the commission. 6 `(2) If a term of a new State instrument is expressed to confer a 7 power or function on a federal industrial authority manager, 8 the term has effect from the relevant day as if it conferred the 9 power or function instead on the registrar. 10 `(3) This section has effect subject to-- 11 (a) a contrary intention in this Act; and 12 (b) a regulation. 13 `692G Reference in a new State instrument to a provision 14 of Commonwealth law 15 `(1) If a term of a new State instrument is expressed to refer to a 16 provision of the Commonwealth Act or the Workplace 17 Relations Act 1996 (Cwlth), from the relevant day it is taken 18 to refer instead to the corresponding provision of this Act. 19 `(2) This section has effect subject to-- 20 (a) a contrary intention in this Act; and 21 (b) a regulation. 22 `(3) In this section-- 23 corresponding provision of this Act, to a provision of the 24 Commonwealth Act or the Workplace Relations Act 1996 25 (Cwlth), means-- 26 (a) if paragraph (b) does not apply, a provision of this Act 27 that is of similar effect to the provision of the 28 Commonwealth Act or the Workplace Relations Act 29 1996 (Cwlth); or 30 (b) a provision of this Act declared under a regulation to be 31 a corresponding provision. 32 Page 40

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 61] `692H Reference in a new State instrument to a federal 1 organisation 2 `(1) If a term of a new State instrument is expressed to refer to a 3 federal organisation, from the relevant day it is taken to refer 4 instead to an organisation under this Act of which the federal 5 organisation is a counterpart federal body as defined under 6 section 411. 7 `(2) If the federal organisation is not a counterpart federal body of 8 an organisation under this Act, the federal organisation is 9 taken to be an organisation under this Act for the 10 representation in the State system of the employees of the 11 relevant declared employer. 12 `(3) Subsection (2) stops applying to the federal organisation when 13 the new State instrument stops binding the relevant declared 14 employer. 15 `(4) This section has effect subject to-- 16 (a) a contrary intention in this Act; and 17 (b) a regulation. 18 `692I Counting service under the old federal instrument 19 `(1) Subsection (2) applies for the purpose of deciding the 20 entitlements of a declared employee under a new State 21 instrument. 22 `(2) Service of the declared employee with a declared employer 23 before the relevant day that counted under the old federal 24 instrument also counts as service of the declared employee 25 with the declared employer under the new State instrument. 26 `(3) If, before the relevant day, the declared employee has already 27 had the benefit of an entitlement, the amount of which was 28 calculated by reference to a period of service, subsection (2) 29 does not result in that period of service being counted again 30 when calculating the declared employee's entitlements of that 31 type under the new State instrument. 32 Page 41

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 61] `692J Accruing entitlements--leave accrued immediately 1 before the relevant day 2 `(1) This section applies to leave of the following types, however 3 described, accruing to an employee (the leave)-- 4 (a) annual leave; 5 (b) sick leave, personal leave or carer's leave; 6 (c) long service leave. 7 `(2) If a declared employee to whom a new State instrument 8 applies had, immediately before the relevant day, an accrued 9 entitlement to an amount of the leave, the accrued leave is 10 taken to have accrued under the new State instrument. 11 `(3) It does not matter whether the leave accrued under the old 12 federal instrument, under the national fair work legislation or 13 this Act. 14 Note-- 15 The reference to the accrual of leave under this Act arises if the old 16 federal instrument refers to leave acrruing in accordance with this Act. 17 `(4) A regulation may deal with other matters relating to how a 18 new State instrument applies to any other accrued entitlement 19 that, immediately before the relevant day, a declared 20 employee had under the old federal instrument or the 21 Commonwealth Act. 22 `692K Leave that is being, or is to be, taken under the old 23 federal instrument 24 `(1) If a declared employee was, immediately before the relevant 25 day, taking a period of leave under the old federal instrument 26 or under the Commonwealth Act, the employee is entitled to 27 continue on that leave under the new State instrument or this 28 Act for the remainder of the period. 29 `(2) If a declared employee has, before the relevant day, taken a 30 step under the old federal instrument or the Commonwealth 31 Act that the employee is required to take so that the employee 32 can, from the relevant day, take a period of leave under the old 33 federal instrument or the Commonwealth Act, the employee is 34 Page 42

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 62] taken to have taken the step under the new State instrument or 1 this Act. 2 `(3) A regulation may deal with other matters relating to how a 3 new State instrument applies to leave that, immediately before 4 the relevant day, is being, or is to be, taken by a declared 5 employee under the old federal instrument or the 6 Commonwealth Act.'. 7 62 Amendment of s 745 (Definitions for pt 7) 8 Section 745-- 9 insert-- 10 `Commonwealth Act means the Workplace Relations Act 11 1996 (Cwlth).'. 12 63 Insertion of new ch 20, pt 10 13 Chapter 20-- 14 insert-- 15 `Part 10 Transitional provisions for Fair 16 Work (Commonwealth Powers) 17 and Other Provisions Act 2009 18 `760 Referral of matters to Commonwealth Parliament 19 `(1) In this section-- 20 designated day means the day on which a Commonwealth law 21 in the terms, or substantially in the terms, set out in scheduled 22 text under the Fair Work (Commonwealth Powers) and Other 23 Provisions Act 2009 comes into operation. 24 `(2) This Act will operate in relation to-- 25 (a) any matter arising under this Act before the designated 26 day (including a matter that is not in the nature of a right 27 or that is procedural in nature); and 28 Page 43

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 64] (b) any matter arising, directly or indirectly, out of such a 1 matter; 2 insofar as the matter is not dealt with under the 3 Commonwealth Act on or after the designated day. 4 `(3) Nothing in this section is intended to limit or affect the 5 operation of this Act-- 6 (a) in relation to industrial or other matters that are not 7 affected by a law of the Commonwealth relating to 8 matters referred to the Parliament of the Commonwealth 9 under the Fair Work (Commonwealth Powers) and 10 Other Provisions Act 2009; or 11 (b) in any other way (other than to the extent that this Act 12 can not apply because of a law of the Commonwealth).'. 13 `761 Declaration about BCC Certified Agreement 14 `(1) This section applies to the Brisbane City Council Transitional 15 Enterprise Bargaining Certified Agreement 2009. 16 `(2) The agreement is to be taken to be validly made and certified 17 for the purposes of the law of the State. 18 `762 Amendment of regulation 19 `The amendment of the Industrial Relations Regulation 2000 20 by the Fair Work (Commonwealth Powers) and Other 21 Provisions Act 2009 does not affect the power of the Governor 22 in Council to further amend the regulation or to repeal it.'. 23 64 Amendment of sch 5 (Dictionary) 24 (1) Schedule 5, definitions Australian commission, 25 Commonwealth Act, federal agreement, federal award and 26 federal organisation-- 27 omit. 28 (2) Schedule 5-- 29 Page 44

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 64] insert-- 1 `Australian commission means FWA. 2 Commonwealth Act means the Fair Work Act 2009 (Cwlth). 3 Commonwealth (Registered Organisations) Act means Fair 4 Work (Registered Organisations) Act 2009 (Cwlth). 5 federal agreement means-- 6 (a) an Australian workplace agreement, or a certified 7 agreement, under the Workplace Relations Act 1996 8 (Cwlth) continued in existence under the Fair Work 9 (Transitional Provisions and Consequential 10 Amendments) Act 2009 (Cwlth); or 11 (b) an enterprise agreement or an individual flexibility 12 arrangement under the Commonwealth Act. 13 federal award means-- 14 (a) an award under the Workplace Relations Act 1996 15 (Cwlth) continued in existence under the Fair Work 16 (Transitional Provisions and Consequential 17 Amendments) Act 2009 (Cwlth); or 18 (b) a modern award under the Commonwealth Act. 19 federal industrial instrument means the following-- 20 (a) a fair work instrument under the Commonwealth Act; 21 (b) an instrument given continuing effect under the Fair 22 Work (Transitional Provisions and Consequential 23 Amendments) Act 2009 (Cwlth), schedule 3, part 2; 24 (c) a Division 2B State instrument under the Fair Work 25 (Transitional Provisions and Consequential 26 Amendments) Act 2009 (Cwlth). 27 federal organisation means an organisation under the 28 Commonwealth (Registered Organisations) Act. 29 FWA means Fair Work Australia under the Commonwealth 30 Act.'. 31 Page 45

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 65] (3) Schedule 5, definition award, paragraph (b), from 1 `includes'-- 2 omit, insert-- 3 `includes a federal award.'. 4 (4) Schedule 5, definition industrial authority, after 5 `conciliation'-- 6 insert-- 7 `, determination'. 8 Division 8 Amendment of Industrial Relations 9 Regulation 2000 10 65 Regulation amended 11 This division amends the Industrial Relations Regulation 12 2000. 13 66 Renumbering of pt 14 14 (1) Part 14-- 15 renumber as part 15. 16 (2) Sections 148 and 149-- 17 renumber as sections 149 and 150. 18 67 Insertion of new pt 14 19 After section 147-- 20 insert-- 21 Page 46

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 68] `Part 14 Declarations for 1 Commonwealth Act, section 2 14(2) 3 `148 Declarations 4 `(1) This section applies for the purpose of the Commonwealth 5 Act, section 14(2). 6 `(2) Each of the employers mentioned in schedule 7A are declared 7 not to be a national system employer for the purposes of the 8 Commonwealth Act, section 14(2). 9 Note-- 10 The local government listed in schedule 7A, part 2, opposite each 11 declared employer is the body to which the Commonwealth Act, 12 section 14(2)(a)(ii) applies of which the declared employer is a wholly 13 owned subsidiary (within the meaning of the Corporations Act) or by 14 which the declared employer is wholly controlled. 15 `(3) In the schedule, parts 1 and 2, a reference to an Act under 16 which an employer was established includes, if the Act 17 continued the employer in existence, a reference to any law by 18 or under which the employer was originally established.'. 19 68 Insertion of new sch 7A 20 After schedule 7-- 21 insert-- 22 Page 47

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 68] `Schedule 7A Employers declared not to be 1 national system employers 2 section 148 3 `Part 1 Employers mentioned in the 4 Commonwealth Act, section 5 14(2)(a)(i) 6 1 Australian Agricultural College Corporation 7 established under the Agricultural College Act 2005 8 2 Library Board of Queensland 9 established under the Libraries Act 1988 10 3 Queensland Art Gallery Board of Trustees 11 established under the Queensland Art Gallery Act 1987 12 4 Queensland Building Services Authority 13 established under the Queensland Building Services Authority 14 Act 1991 15 5 Queensland Museum Board of Trustees 16 established under the Queensland Museum Act 1970 17 6 Residential Tenancies Authority 18 established under the Residential Tenancies and Rooming 19 Accommodation Act 2008 20 7 South Bank Corporation 21 established under the South Bank Corporation Act 1989 22 8 Stadiums Queensland 23 established under the Major Sports Facilities Act 2001 24 9 Tourism Queensland 25 Page 48

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 68] established under the Tourism Queensland Act 1979 1 10 WorkCover Queensland 2 established under the Workers' Compensation and 3 Rehabilitation Act 2003 4 `Part 2 Employers mentioned in the 5 Commonwealth Act, section 6 14(2)(a)(ii) 7 1 Brisbane City Council Superannuation Plan (City Super) 8 ABN 32 864 248 795 9 established under the City of Brisbane Act 1924 for a local 10 government purpose 11 2 Local Government Superannuation Scheme ABN 23 053 121 12 564 13 established under the Local Government Act 1993 for a local 14 government purpose 15 3 Wide Bay Water Corporation ABN 98 380 729 010 16 established under the Local Government Act 1993 for a local 17 government purpose 18 Page 49

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 68] `Part 3 Employers mentioned in the 1 Commonwealth Act, section 2 14(2)(a)(iii) 3 Entity Relevant Local Government The trustee for Boonah and District Scenic Rim Regional Council Art Gallery and Library Trust Gift Fund (trading as Boonah and District Art Gallery and Library Trust Gift Fund) ABN 92 719 264 297 The trustee for the Boonah District Scenic Rim Regional Council Performing Arts Centre (trading as Boonah and District Performing Arts Centre Trust) ABN 35 930 584 358 Brisbane Arts Trust (trading as Brisbane City Council Brisbane Arts Trust) ABN 30 749 675 075 Brisbane Marketing Pty Ltd ACN 094 Brisbane City Council 633 262 and ABN 86 094 633 262 Brisbane Powerhouse Pty Ltd (trading Brisbane City Council as Brisbane Powerhouse) ACN 091 551 290 and ABN 18 091 551 290 Burdekin Cultural Complex Board Inc. Burdekin Shire Council (trading as Burdekin Cultural Complex Board Inc.) ABN 38 161 809 872 Cairns Regional Gallery Limited Cairns Regional Council ACN 062 537 259 and ABN 45 062 537 259 The trustee for the Cairns Regional Cairns Regional Council Gallery Arts Trust (trading as Cairns Regional Gallery Foundation Ltd) ABN 42 114 461 772 Page 50

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 68] Entity Relevant Local Government Caloundra City Enterprises Pty Ltd Sunshine Coast Regional Council ACN 127 655 136 and ABN 39 127 655 136 Central Queensland Local Banana Shire Council, Central Government Association Inc. ABN 34 Highlands Regional Council, 593 816 745 Gladstone Regional Council, Isaac Regional Council and Rockhampton Regional Council Central Western Queensland Remote Barcaldine Regional Council, Area Planning and Development Barcoo Shire Council, Board (trading as Central Western Blackall-Tambo Regional Council, Queensland Remote Area Planning Boulia Shire Council, Diamantina and Development Board) ACN 057 Shire Council, Longreach Regional 968 653 and ABN 76 057 968 653 Council and Winton Shire Council CITIPAC International Pty Ltd Gold Coast City Council ACN 011 028 649 City of Brisbane Arts and Brisbane City Council Environment Ltd (trading as City of Brisbane Arts and Environment Limited) ACN 084 763 253 and ABN 47 084 763 253 City of Brisbane Investment Brisbane City Council Corporation Pty Ltd ACN 066 022 455 and ABN 95 066 022 455 Council of Mayors (SEQ) (trading as Brisbane City, Gold Coast City, Council of Mayors (SEQ), and other Logan City, Lockyer Valley names) ABN 64 998 531 528 Regional, Redland City, Scenic Rim Regional, Somerset Regional, Sunshine Coast Regional and Toowoomba Regional Councils Edward River Crocodile Farm Pty Pormpuraaw Aboriginal Council Limited (trading as Edward River Crocodile Farm) ACN 008 502 270 and ABN 90 008 502 270 Page 51

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 68] Entity Relevant Local Government The trustee for Empire Theatres Toowoomba Regional Council Foundation (trading as Empire Theatres Foundation) ABN 69 130 487 365 Empire Theatres Pty Ltd ACN 086 482 Toowoomba Regional Council 288 and ABN 83 086 482 288 Far North Queensland Regional Cairns Regional Council, Organisation of Councils (trading as Cassowary Coast Regional Far North Queensland Regional Council, Cooktown Shire Council, Organisation of Councils) ABN 52 Hinchinbrook Shire Council, 034 736 962 Tablelands Regional Council, Yarrabah Shire Council, Wujal Wujal Aboriginal Shire Council Gold Coast Arts Centre Pty Ltd Gold Coast City Council (trading as Gold Coast Arts Centre Pty Ltd) ACN 060 787 466 and ABN 85 060 787 466 Gulf Savannah Development Inc. Burke, Carpentaria, Croydon and (trading as Gulf Savannah Etheridge Shire Councils Development, and as Gulf Savannah Tourism) ABN 69 956 728 660 Hervey Bay (Community Fund) Fraser Coast Regional Council Limited ACN 120 350 469 Hervey Bay (Cultural Fund) Limited Fraser Coast Regional Council ACN 120 350 405 The trustee for Ipswich Arts Ipswich City Council Foundation Trust ABN 75 833 582 216 Ipswich City Council (trading as Ipswich City Council Ipswich Arts Foundation) ABN 61 461 981 077 Page 52

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 68] Entity Relevant Local Government Ipswich City Enterprises Investments Ipswich City Council Pty Ltd (trading as Ipswich City Enterprises Investments Pty Ltd) ACN 127 862 515 and ABN 42 127 862 515 Ipswich City Enterprises Pty Ltd Ipswich City Council (trading as Ipswich City Enterprises Pty Ltd) ACN 095 487 086 and ABN 88 095 487 086 Kronosaurus Korner Board Inc. Richmond City Council (trading as Kronosaurus Korner) ABN 29 088 101 544 Lockhart River Aerodrome Company Lockhart River Aboriginal Shire Pty Ltd (Lockhart River Aerodrome Council Company Pty Ltd) ACN 061 972 978 and ABN 95 061 972 978 Nuffield Pty Ltd ACN 068 043 318 Brisbane City Council and ABN 72 068 043 318 Outback @ Isa Pty Ltd (trading as Mount Isa City Council Outback@Isa) ACN 31 104 362 718 and ABN 104 362 718 Palm Island Community Company Ltd Palm Island Aboriginal Shire ACN 126 800 682 and ABN 64 126 Council 800 682 Poruma Island Pty Ltd ACN 098 641 Poruma Island Community Council 162 and ABN 88 098 641 162 Quad Park Corporation Pty Ltd Caloundra City Council ACN 127 704 947 and ABN 31 127 704 947 Rodeo Capital Pty Ltd (trading as Mount Isa City Council Buchanan Park Facilities Management) ACN 125 659 510 and ABN 89 125 659 510 Page 53

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 68] Entity Relevant Local Government Sunshine Coast Events Centre Pty Ltd Sunshine Coast Regional Council (trading as Caloundra Civic Cultural Centre) ACN 127 655 510 and ABN 38 127 655 510 Surfers Paradise Alliance Ltd Gold Coast City Council ACN 097 068 285 and ABN 19 097 068 285 The Brolga Theatre Board Inc. Fraser Coast Regional Council (trading as The Brolga Theatre and Convention Centre) ABN 75 529 942 824 The trustee for Townsville Cemetery Townsville City Council Trust (trading as Townsville & Thuringowa Cemetery Trust) ABN 72 096 373 559 TradeCoast Land Pty Ltd ACN 111 Brisbane City Council 428 212 and ABN 15 111 428 212 Waltzing Matilda Centre Ltd (trading Winton Shire Council as Waltzing Matilda Centre) ACN 34 086 051 078 and ABN 34 086 051 078 Warwick Tourism and Events Pty Ltd Southern Downs Regional Council ACN 105 787 246 and ABN 52 105 787 246 Widelinx Pty Ltd ACN 113 136 824 Fraser Coast Regional Council and ABN 76 113 136 824 Woorabinda Pastoral Company Pty Woorabinda Aboriginal Shire Limited ACN 011 072 450 and Council'. ABN 17 011 072 450 Page 54

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 69] Division 9 Amendment of Magistrates Courts 1 Act 1921 2 69 Act amended 3 This division amends the Magistrates Courts Act 1921. 4 70 Amendment of s 42B (Application of pt 5A) 5 Section 42B(3) and (4), after `(Cwlth)'-- 6 insert-- 7 `or the Fair Work Act 2009 (Cwlth)'. 8 Division 10 Amendment of Statutory 9 Instruments Act 1992 10 71 Act amended 11 This division amends the Statutory Instruments Act 1992. 12 72 Amendment of sch 2A (Subordinate legislation to which 13 part 7 does not apply) 14 Schedule 2A, at the end-- 15 insert-- 16 `a proclamation under the Fair Work (Commonwealth Powers) 17 and Other Provisions Act 2009'. 18 Division 11 Amendment of Summary Offences 19 Act 2005 20 73 Act amended 21 This division amends the Summary Offences Act 2005. 22 Page 55

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 3 Amendments of other legislation relating to the reference of matters [s 74] 74 Amendment of sch 2 (Dictionary) 1 Schedule 2, definition authorised industrial officer, paragraph 2 (b)-- 3 omit, insert-- 4 `(b) a permit holder under the Fair Work Act 2009 (Cwlth).'. 5 Division 12 Amendment of Workers' 6 Compensation and Rehabilitation 7 Act 2003 8 75 Act amended 9 This division amends the Workers' Compensation and 10 Rehabilitation Act 2003. 11 76 Amendment of s 107A (Definitions for pt 1A) 12 Section 107A, definition Industrial Act, paragraph (b)-- 13 omit, insert-- 14 `(b) the Fair Work Act 2009 (Cwlth).'. 15 77 Amendment of sch 6 (Dictionary) 16 Schedule 6, definition industrial instrument, paragraph (b)-- 17 omit, insert-- 18 `(b) a federal industrial instrument.'. 19 Page 56

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 4 Amendments relating to trustee companies [s 78] Division 13 Amendment of Workplace Health 1 and Safety Act 1995 2 78 Act amended 3 This division amends the Workplace Health and Safety Act 4 1995. 5 79 Amendment of s 90B (Definitions for part) 6 Section 90B, definition employee organisation, paragraph 7 (b)-- 8 omit, insert-- 9 `(b) an employee organisation under the Fair Work Act 2009 10 (Cwlth).'. 11 Part 4 Amendments relating to trustee 12 companies 13 Division 1 Amendment of Trustee Companies 14 Act 1968 15 80 Act amended 16 This division amends the Trustee Companies Act 1968. 17 81 Amendment of s 4 (Definitions) 18 (1) Section 4, definitions corporation, director, financial 19 institution, financial institution's books, foreign company, 20 insurance company, new trustee company, related 21 corporation, trustee company and unincorporated 22 association-- 23 Page 57

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 4 Amendments relating to trustee companies [s 82] omit. 1 (2) Section 4-- 2 insert-- 3 `trustee company means a licensed trustee company under the 4 Corporations Act, section 601RAA.'. 5 82 Amendment of s 4AA (Powers conferred on trustee 6 companies are additional powers) 7 Section 4AA, `by any other Act'-- 8 omit, insert-- 9 `under any other Act or the Corporations Act'. 10 83 Omission of s 4A (Subsidiaries, holding companies and 11 related corporations) 12 Section 4A-- 13 omit. 14 84 Omission of ss 36 and 36A 15 Sections 36 and 36A-- 16 omit. 17 85 Relocation and renumbering of s 43 (When legatee to 18 bear commission on legacy) 19 Section 43-- 20 relocate and renumber, in part 8, as section 68A. 21 86 Omission of pt 4 22 Part 4, as amended-- 23 omit. 24 Page 58

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 4 Amendments relating to trustee companies [s 87] 87 Omission of ss 50-53 1 Sections 50 to 53-- 2 omit. 3 88 Omission of pt 6 4 Part 6-- 5 omit. 6 89 Relocation and renumbering of s 62 (Appointment of 7 attorney by trustee company) 8 Section 62-- 9 relocate and renumber, in part 8, as section 68B. 10 90 Omission of pt 7 11 Part 7-- 12 omit. 13 91 Replacement of pt 8, hdg (General) 14 Part 8, heading-- 15 omit, insert-- 16 `Part 8 Miscellaneous'. 17 92 Insertion of new s 68C 18 After section 68B-- 19 insert-- 20 `68C Compulsory transfer determinations 21 `(1) This section applies if-- 22 (a) ASIC cancels the licence of a trustee company (the 23 transferring company) and makes a determination 24 Page 59

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 4 Amendments relating to trustee companies [s 92] under the Corporations Act, section 601WBA that there 1 is to be a transfer of estate assets and liabilities from the 2 transferring company to another licensed trustee 3 company (the receiving company); and 4 (b) ASIC issues a certificate of transfer under the 5 Corporations Act, section 601WBG for the transfer; and 6 (c) either the transferring company or the receiving 7 company is registered in Queensland. 8 `(2) When the certificate of transfer comes into force, the 9 receiving company becomes the successor in law of the 10 transferring company in relation to estate assets and liabilities 11 of the transferring company, to the extent of the transfer. 12 Note-- 13 Under the Corporations Act, section 601WBG(2)(d), the certificate of 14 transfer is required to state when the certificate comes into force. 15 `(3) Without limiting subsection (2)-- 16 (a) if the transfer is a total transfer--all the estate assets and 17 liabilities of the transferring company, wherever those 18 assets and liabilities are located, become assets and 19 liabilities of the receiving company (in the same 20 capacity as they were assets and liabilities of the 21 transferring company) without any transfer, conveyance 22 or assignment; and 23 (b) if the transfer is a partial transfer--all the estate assets 24 and liabilities included in the list mentioned in the 25 Corporations Act, section 601WBG(2)(c), wherever 26 those assets and liabilities are located, become assets 27 and liabilities of the receiving company (in the same 28 capacity as they were assets and liabilities of the 29 transferring company) without any transfer, conveyance 30 or assignment; and 31 (c) to the extent of the transfer, the duties, obligations, 32 immunities, rights and privileges applying to the 33 transferring company apply to the receiving company. 34 `(4) If the certificate includes provisions of a kind mentioned in 35 the Corporations Act, section 601WBG(3)-- 36 Page 60

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 4 Amendments relating to trustee companies [s 93] (a) if the provisions state that particular things are to happen 1 or are taken to be the case--those things are, by force of 2 this section, taken to happen, or to be the case, in 3 accordance with those provisions; and 4 (b) if the provisions state a mechanism for determining 5 things that are to happen or are taken to be the 6 case--things determined in accordance with the 7 mechanism are, by force of this section, taken to 8 happen, or to be the case, as determined in accordance 9 with that mechanism.'. 10 93 Omission of s 69 (Other companies may apply for similar 11 powers) 12 Section 69-- 13 omit. 14 94 Omission of s 73 (Provisions relating to ex trustee 15 companies) 16 Section 73-- 17 omit. 18 95 Renumbering of pts 1-8 19 Parts 1 to 8-- 20 renumber as parts 1 to 5. 21 96 Insertion of new pt 6 22 After part 5-- 23 insert-- 24 Page 61

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 4 Amendments relating to trustee companies [s 96] `Part 6 Transitional provisions for Fair 1 Work (Commonwealth Powers) 2 and Other Provisions Act 2009 3 `74 Definitions for pt 6 4 `In this part-- 5 amendment Act means the Fair Work (Commonwealth 6 Powers) and Other Provisions Act 2009. 7 commencement means the commencement of this section. 8 repealed, followed by a provision number, means that 9 provision as it existed before its repeal by the amendment Act. 10 trustee company means a trustee company under section 4 as 11 in force immediately before the commencement. 12 `75 Court may review rate of commission 13 `(1) This section applies if a person made an application to the 14 Court or a Judge to review the rate of commission, as 15 mentioned in repealed section 41(4), before the 16 commencement. 17 `(2) Repealed section 41 continues to apply, despite its repeal, in 18 relation to the application. 19 `76 Court may review fee 20 `(1) This section applies if a person made an application to the 21 Court or a Judge to review a fee, as mentioned in repealed 22 section 45(1), before the commencement. 23 `(2) Repealed section 45 continues to apply, despite its repeal, in 24 relation to the application. 25 Page 62

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 4 Amendments relating to trustee companies [s 96] `77 Filing and passing accounts 1 `(1) This section applies to an account filed in the office of the 2 Registrar of the Supreme Court, as mentioned in repealed 3 section 50(3), before the commencement. 4 `(2) Repealed section 50(3) continues to apply, despite its repeal, 5 in relation to the account. 6 `78 Court may order account 7 `(1) This section applies if a person made an application to an 8 officer of a trustee company for an account of the property and 9 assets of an estate, as mentioned in repealed section 51(1), 10 before the commencement. 11 `(2) Repealed sections 51 and 52 continue to apply, despite their 12 repeal, in relation to the application. 13 `79 Investment of capital in name of Treasurer 14 `(1) This section applies if a trustee company was required to 15 invest part of its paid-up capital in the name of the Treasurer 16 of the State of Queensland in trust for the trustee company, as 17 mentioned in repealed section 56(1), before the 18 commencement. 19 `(2) The securities and investments mentioned in the section in 20 existence at the time of the repeal are to be transferred by the 21 Treasurer as soon as practicable after the repeal to the trustee 22 company or another person nominated by the trustee 23 company. 24 Note-- 25 The timing of the transfer may be affected by the nature, and the terms 26 and conditions, of the security or investment. 27 `(3) Repealed section 56(3) continues to apply, despite its repeal, 28 in relation to interest and income mentioned in the subsection, 29 whether the interest and income is held by the Treasurer at the 30 time of the repeal or received afterwards. 31 Page 63

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 4 Amendments relating to trustee companies [s 96] `80 Offences 1 `(1) This section applies if a person is alleged to have committed 2 an offence against the Trustee Companies Act 1968 before the 3 commencement. 4 `(2) Proceedings for the offence may be started or continued, and 5 the court may hear and decide the proceedings, as if the Fair 6 Work (Commonwealth Powers) and Other Provisions Act 7 2009 had not commenced. 8 `(3) This section applies despite the Criminal Code, section 11. 9 `81 Special transitional provisions 10 `(1) The Governor in Council may, by regulation (a transitional 11 regulation), make additional provisions of a saving or 12 transitional nature for the purposes of-- 13 (a) the enactment of the Fair Work (Commonwealth 14 Powers) and Other Provisions Act 2009, part 4; or 15 (b) the transition from the regulation of trustee companies 16 under this Act to the regulation of trustee companies 17 under the Corporations Act; or 18 (c) applying, complementing or otherwise giving effect to 19 the provisions of the Corporations Act regulating trustee 20 companies. 21 `(2) A provision of a transitional regulation may, if the regulation 22 so provides, take effect from the commencement of this 23 section or from a later day. 24 `(3) To the extent to which a provision takes effect under 25 subsection (2) from a day earlier than the day of the 26 regulation's publication in the gazette, the provision does not 27 operate to the disadvantage of a person by-- 28 (a) decreasing the person's rights; or 29 (b) imposing liabilities on the person. 30 `(4) A transitional regulation must declare it is a transitional 31 regulation. 32 Page 64

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 4 Amendments relating to trustee companies [s 97] `(5) This section and a transitional regulation expire at the end of 2 1 years after the commencement.'. 2 97 Omission of sch 2 3 Schedule 2-- 4 omit. 5 Division 2 Repeal 6 98 Repeal of regulation 7 The Trustee Companies Regulation 1996, SL No. 94 is 8 repealed. 9 Division 3 Amendment of Foreign Ownership 10 of Land Register Act 1988 11 99 Act amended 12 This division amends the Foreign Ownership of Land Register 13 Act 1988. 14 100 Amendment of s 10 (Trustee company common funds) 15 Section 10, from `(within' to `State)', second mention-- 16 omit, insert-- 17 `(within the meaning of the Trustee Companies Act 1968) was 18 acquired through the investment of moneys forming part of a 19 common fund of the trustee company,'. 20 Page 65

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 4 Amendments relating to trustee companies [s 101] Division 4 Amendment of Guardianship and 1 Administration Act 2000 2 101 Act amended 3 This division amends the Guardianship and Administration 4 Act 2000. 5 102 Amendment of s 48 (Remuneration of professional 6 administrators) 7 (1) Section 48(2)-- 8 omit, insert-- 9 `(2) The remuneration may not be more than the amount the 10 tribunal considers fair and reasonable, having regard to-- 11 (a) the nature and complexity of the service; and 12 (b) the care, skill and specialised knowledge required to 13 provide the service; and 14 (c) the responsibility displayed in providing the service; and 15 (d) the time within which the service was provided; and 16 (e) the place where, and the circumstances in which, the 17 service was provided.'. 18 (2) Section 48(3) after `Act'-- 19 insert-- 20 `or the Corporations Act'. 21 103 Insertion of new ch 12, pt 10 22 Chapter 12, after part 9-- 23 insert-- 24 Page 66

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 4 Amendments relating to trustee companies [s 104] `Part 10 Transitional provision for Fair 1 Work (Commonwealth Powers) 2 and Other Provisions Act 2009 3 `268 Remuneration of professional administrators 4 `(1) This section applies if the tribunal orders, before the 5 commencement, that an administrator for an adult as 6 mentioned in section 48(1) is entitled to remuneration from 7 the adult. 8 `(2) Repealed section 48(2) continues to apply, despite its repeal, 9 in relation to the remuneration, until the tribunal makes a 10 further order about the administrator's remuneration. 11 `(3) In this section-- 12 commencement means the commencement of this section. 13 repealed section 48(2) means section 48(2) as it existed 14 before its repeal by the Fair Work (Commonwealth Powers) 15 and Other Provisions Act 2009.'. 16 Division 5 Amendment of Trusts Act 1973 17 104 Act amended 18 This division amends the Trusts Act 1973. 19 105 Amendment of s 5 (Definitions) 20 Section 5, definition trustee corporation-- 21 omit, insert-- 22 `trustee corporation means the public trustee or a trustee 23 company under the Trustee Companies Act 1968.'. 24 Page 67

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 5 Amendment of Adoption Act 2009 [s 106] Part 5 Amendment of Adoption Act 1 2009 2 106 Act amended 3 This part amends the Adoption Act 2009. 4 107 Insertion of new s 331A 5 After section 331-- 6 insert-- 7 `331A Interim orders 8 `An interim order in force under the repealed Act immediately 9 before the commencement day continues to have effect-- 10 (a) in the case of an interim order for a child who is not a 11 non-citizen child--as if it were an interim order made 12 under part 9, division 2; or 13 (b) in the case of an interim order for a non-citizen 14 child--as if it were an interim order made under part 9, 15 division 3.'. 16 Part 6 Amendment of Trans-Tasman 17 Mutual Recognition 18 (Queensland) Act 2003 19 108 Act amended 20 This part amends the Trans-Tasman Mutual Recognition 21 (Queensland) Act 2003. 22 109 Insertion of new s 15 and schedule 23 After section 14-- 24 Page 68

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 6 Amendment of Trans-Tasman Mutual Recognition (Queensland) Act 2003 [s 109] insert-- 1 `15 Authorisation to make gazette notice 2 `The Governor is authorised for section 7 to make, for the 3 Commonwealth Act, section 43(1), a gazette notice in the 4 form stated in the schedule. 5 `Schedule Authorised gazette notice 6 section 15 7 TRANS-TASMAN MUTUAL RECOGNITION 8 (QUEENSLAND) AUTHORISATION NOTICE 9 (No. 1) 2009 10 1 Short title 11 This notice may be cited as the Trans-Tasman Mutual 12 Recognition (Queensland) Authorisation Notice (No. 1) 2009. 13 2 Endorsement of proposed Commonwealth regulations 14 amending the Commonwealth Act 15 The Governor endorses the proposed Commonwealth 16 regulation, set out in the schedule, to amend the 17 Commonwealth Act in relation to the Summary Offences Act 18 1953 (SA). 19 Page 69

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 6 Amendment of Trans-Tasman Mutual Recognition (Queensland) Act 2003 [s 109] Schedule Proposed Commonwealth 1 regulation 2 section 2 3 Trans-Tasman Mutual 4 Recognition Act 1997 5 Amendment Regulations 2009 (No. )1 6 Select Legislative Instrument 2009 No. 7 8 I, QUENTIN BRYCE, Governor-General of the Commonwealth of 9 Australia, acting with the advice of the Federal Executive Council, make 10 the following Regulations under the Trans-Tasman Mutual Recognition Act 11 1997. 12 13 Dated 2009 14 Governor-General 15 By Her Excellency's Command 16 [DRAFT ONLY - NOT FOR SIGNATURE] 17 Minister for Innovation, Industry, Science and Research 18 Page 70

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 6 Amendment of Trans-Tasman Mutual Recognition (Queensland) Act 2003 [s 109] 1 Name of Regulations 1 These Regulations are the Trans-Tasman Mutual Recognition 2 Act 1997 Amendment Regulations 2009 (No. ). 3 2 Commencement 4 These Regulations commence on the day after they are 5 registered. 6 3 Amendment of Trans-Tasman Mutual Recognition Act 7 1997 8 Schedule 1 amends the Trans-Tasman Mutual Recognition Act 9 1997. 10 Schedule 1 Amendment of Schedule 2 to 11 the Trans-Tasman Mutual 12 Recognition Act 1997 13 (regulation 3) 14 1 Schedule 2, clause 8, after subheading "Other" 15 substitute 16 Environment Protection Act 1993, Part 8, Division 2 (dealing 17 with beverage containers) 18 Summary Offences Act 1953, Section 9B 19 Note 1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.'. Page 71

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Part 7 Amendment of Mutual Recognition (Queensland) Act 1992 [s 110] Part 7 Amendment of Mutual 1 Recognition (Queensland) Act 2 1992 3 110 Act amended 4 This part amends the Mutual Recognition (Queensland) Act 5 1992. 6 111 Amendment of s 5 (Enactment of uniform mutual 7 recognition legislation) 8 Section 5(1)(b), `(other than the Schedules)'-- 9 omit. 10 Page 72

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 1 Schedule 1 Other entities that are not 1 public sector employers 2 section 3, definition public sector employer 3 1 a board established under the Grammar Schools Act 1975 4 2 bodies corporate established under the Hospitals Foundations 5 Act 1982 6 3 Island Industries Board established under the Aboriginal and 7 Torres Strait Islander Communities (Justice, Land and Other 8 Matters) Act 1984 9 4 Queensland Performing Arts Trust established under the 10 Queensland Performing Arts Trust Act 1977 11 5 Queensland Theatre Company established under the 12 Queensland Theatre Company Act 1970 13 6 Queensland Treasury Corporation established under the 14 Queensland Treasury Corporation Act 1988 15 7 The Council of The Queensland Institute of Medical Research 16 and the Queensland Institute of Medical Research Trust 17 established under the Queensland Institute of Medical 18 Research Act 1945 19 8 Royal National Agricultural and Industrial Association of 20 Queensland established under the Royal National Agricultural 21 and Industrial Association of Queensland Act 1971 22 9 universities established under an Act 23 Page 73

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 Schedule 2 Text to be included in the 1 provisions of the 2 Commonwealth Fair Work Act 3 section 3, definition scheduled text 4 Division 2B Application of this Act in States that 5 refer matters after 1 July 2009 but 6 on or before 1 January 2010 7 30K Meaning of terms used in this Division 8 (1) In this Division: 9 amendment reference of a State means the reference by the 10 Parliament of the State to the Parliament of the 11 Commonwealth of the matters covered by subsection 30L(4). 12 excluded subject matter means any of the following matters: 13 (a) a matter dealt with in a law referred to in subsection 14 27(1A) of this Act; 15 (b) superannuation; 16 (c) workers compensation; 17 (d) occupational health and safety; 18 (e) matters relating to outworkers (within the ordinary 19 meaning of the term); 20 (f) child labour; 21 (g) training arrangements; 22 (h) long service leave; 23 (i) leave for victims of crime; 24 (j) attendance for service on a jury, or for emergency 25 service duties; 26 Page 74

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 (k) declaration, prescription or substitution of public 1 holidays; 2 (l) the following matters relating to provision of essential 3 services or to situations of emergency: 4 (i) directions to perform work (including to perform 5 work at a particular time or place, or in a particular 6 way); 7 (ii) directions not to perform work (including not to 8 perform work at a particular time or place, or in a 9 particular way); 10 (m) regulation of any of the following: 11 (i) employee associations; 12 (ii) employer associations; 13 (iii) members of employee associations or of employer 14 associations; 15 (n) workplace surveillance; 16 (o) business trading hours; 17 (p) claims for enforcement of contracts of employment, 18 except so far as a law of a State provides for the 19 variation or setting aside of rights and obligations 20 arising under a contract of employment, or another 21 arrangement for employment, that a court or tribunal 22 finds is unfair; 23 (q) rights or remedies incidental to a matter referred to in a 24 preceding paragraph of this definition; 25 except to the extent that this Act as originally enacted deals 26 with the matter (directly or indirectly), or requires or permits 27 instruments made or given effect under this Act so to deal 28 with the matter. 29 express amendment means the direct amendment of the text 30 of this Act (whether by the insertion, omission, repeal, 31 substitution or relocation of words or matter), but does not 32 include the enactment by a Commonwealth Act of a provision 33 that has, or will have, substantive effect otherwise than as part 34 of the text of this Act. 35 Page 75

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 fundamental workplace relations principles: see subsection 1 30L(9). 2 initial reference of a State means the reference by the 3 Parliament of the State to the Parliament of the 4 Commonwealth of the matters covered by subsection 30L(3). 5 law enforcement officer means: 6 (a) a member of a police force or police service; or 7 (b) a person appointed to a position for the purpose of being 8 trained as a member of a police force or police service; 9 or 10 (c) a person who has the powers and duties of a member of 11 a police force or police service; 12 and, without limiting paragraphs (a), (b) and (c), includes a 13 police reservist, a police recruit, a police cadet, a junior 14 constable, a police medical officer, a special constable, an 15 ancillary constable or a protective services officer. 16 local government employee, of a State, means: 17 (a) an employee of a local government employer of the 18 State; or 19 (b) any other employee in the State of a kind specified in the 20 regulations. 21 local government employer, of a State, means an employer 22 that is: 23 (a) a body corporate that is established for a local 24 government purpose by or under a law of a State; or 25 (b) a body corporate in which a body to which paragraph (a) 26 applies has, or 2 or more such bodies together have, a 27 controlling interest; or 28 (c) a person who employs individuals for the purposes of an 29 unincorporated body that is established for a local 30 government purpose by or under a law of a State; or 31 (d) any other body corporate that is a local government 32 body in the State of a kind specified in the regulations; 33 or 34 Page 76

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 (e) any other person who employs individuals for the 1 purposes of an unincorporated body that is a local 2 government body in the State of a kind specified in the 3 regulations. 4 referral law, of a State, means the law of the State that refers 5 matters, as mentioned in subsection 30L(1), to the Parliament 6 of the Commonwealth. 7 referred provisions means the provisions of this Division to 8 the extent to which they deal with matters that are included in 9 the legislative powers of the Parliaments of the States. 10 referred subject matters means any of the following: 11 (a) terms and conditions of employment, including any of 12 the following: 13 (i) minimum terms and conditions of employment, 14 (including employment standards and minimum 15 wages); 16 (ii) terms and conditions of employment contained in 17 instruments (including instruments such as awards, 18 determinations and enterprise-level agreements); 19 (iii) bargaining in relation to terms and conditions of 20 employment; 21 (iv) the effect of a transfer of business on terms and 22 conditions of employment; 23 (b) terms and conditions under which an outworker entity 24 may arrange for work to be performed for the entity 25 (directly or indirectly), if the work is of a kind that is 26 often performed by outworkers; 27 (c) rights and responsibilities of persons, including 28 employees, employers, independent contractors, 29 outworkers, outworker entities, associations of 30 employees or associations of employers, being rights 31 and responsibilities relating to any of the following: 32 (i) freedom of association in the context of workplace 33 relations, and related protections; 34 Page 77

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 (ii) protection from discrimination relating to 1 employment; 2 (iii) termination of employment; 3 (iv) industrial action; 4 (v) protection from payment of fees for services 5 related to bargaining; 6 (vi) sham independent contractor arrangements; 7 (vii) standing down employees without pay; 8 (viii) union rights of entry and rights of access to 9 records; 10 (d) compliance with, and enforcement of, this Act; 11 (e) the administration of this Act; 12 (f) the application of this Act; 13 (g) matters incidental or ancillary to the operation of this 14 Act or of instruments made or given effect under this 15 Act; 16 but does not include any excluded subject matter. 17 referring State: see section 30L. 18 State public sector employee, of a State, means: 19 (a) an employee of a State public sector employer of the 20 State; or 21 (b) any other employee in the State of a kind specified in the 22 regulations; 23 and includes a law enforcement officer of the State. 24 State public sector employer, of a State, means an employer 25 that is: 26 (a) the State, the Governor of the State or a Minister of the 27 State; or 28 (b) a body corporate that is established for a public purpose 29 by or under a law of the State, by the Governor of the 30 State or by a Minister of the State; or 31 Page 78

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 (c) a body corporate in which the State has a controlling 1 interest; or 2 (d) a person who employs individuals for the purposes of an 3 unincorporated body that is established for a public 4 purpose by or under a law of the State, by the Governor 5 of the State or by a Minister of the State; or 6 (e) any other employer in the State of a kind specified in the 7 regulations; 8 and includes a holder of an office of the State whom the 9 State's referral law provides is to be taken, for the purposes of 10 this Act, to be an employer of law enforcement officers of the 11 State. 12 transition reference of a State means the reference by the 13 Parliament of the State to the Parliament of the 14 Commonwealth of the matters covered by subsection 30L(5). 15 (2) Words or phrases in the definition of excluded subject matter 16 in subsection (1), or in the definition of referred subject 17 matters in subsection (1), that are defined in this Act (other 18 than in this Division) have, in that definition, the meanings set 19 out in this Act as in force on 1 July 2009. 20 30L Meaning of referring State 21 Reference of matters by State Parliament to Commonwealth 22 Parliament 23 (1) A State is a referring State if the Parliament of the State has, 24 after 1 July 2009 but on or before 1 January 2010, referred the 25 matters covered by subsections (3), (4) and (5) in relation to 26 the State to the Parliament of the Commonwealth for the 27 purposes of paragraph 51(xxxvii) of the Constitution: 28 (a) if and to the extent that the matters are not otherwise 29 included in the legislative powers of the Parliament of 30 the Commonwealth (otherwise than by a reference 31 under paragraph 51(xxxvii) of the Constitution); and 32 (b) if and to the extent that the matters are included in the 33 legislative powers of the Parliament of the State. 34 Page 79

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 This subsection has effect subject to subsection (6). 1 (2) A State is a referring State even if: 2 (a) the State's referral law provides that the reference to the 3 Parliament of the Commonwealth of any or all of the 4 matters covered by subsections (3), (4) and (5) is to 5 terminate in particular circumstances; or 6 (b) the State's referral law provides that particular matters, 7 or all matters, relating to State public sector employees, 8 or State public sector employers, of the State are not 9 included in any or all of the matters covered by 10 subsections (3), (4) and (5); or 11 (c) the State's referral law provides that particular matters, 12 or all matters, relating to local government employees, 13 or local government employers, of the State are not 14 included in any or all of the matters covered by 15 subsections (3), (4) and (5). 16 Reference covering referred provisions 17 (3) This subsection covers the matters to which the referred 18 provisions relate to the extent of making laws with respect to 19 those matters by amending this Act, as originally enacted, and 20 as subsequently amended by amendments enacted at any time 21 before the State's referral law commenced, to include the 22 referred provisions. 23 Reference covering amendments 24 (4) This subsection covers the referred subject matters to the 25 extent of making laws with respect to those matters by making 26 express amendments of this Act. 27 Reference covering transitional matters 28 (5) This subsection covers making laws with respect to the 29 transition from the regime provided for by: 30 (a) the Workplace Relations Act 1996 (as it continues to 31 apply because of the Fair Work (Transitional Provisions 32 and Consequential Amendments) Act 2009); or 33 (b) a law of a State relating to workplace relations or 34 industrial relations; 35 Page 80

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 to the regime provided for by this Act. 1 Effect of termination of reference 2 (6) Despite anything to the contrary in a referral law of a State, a 3 State ceases to be a referring State if any or all of the 4 following occurs: 5 (a) the State's initial reference terminates; 6 (b) the State's amendment reference terminates, and neither 7 of subsections (7) and (8) apply to the termination; 8 (c) the State's transition reference terminates. 9 (7) A State does not cease to be a referring State because of the 10 termination of its amendment reference if: 11 (a) the termination is effected by the Governor of that State 12 fixing a day by proclamation as the day on which the 13 reference terminates; and 14 (b) the day fixed is no earlier than the first day after the end 15 of the period of 6 months beginning on the day on which 16 the proclamation is published; and 17 (c) that State's amendment reference, and the amendment 18 reference of every other referring State (other than a 19 referring State that has terminated its amendment 20 reference in the circumstances referred to in subsection 21 (8)), terminate on the same day. 22 (8) A State does not cease to be a referring State because of the 23 termination of its amendment reference if: 24 (a) the termination is effected by the Governor of that State 25 fixing a day by proclamation as the day on which the 26 reference terminates; and 27 (b) the day fixed is no earlier than the first day after the end 28 of the period of 3 months beginning on the day on which 29 the proclamation is published; and 30 (c) the Governor of that State, as part of the proclamation 31 by which the termination is to be effected, declares that, 32 in the opinion of the Governor, this Act: 33 Page 81

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 (i) is proposed to be amended (by an amendment 1 introduced into the Parliament by a Minister); or 2 (ii) has been amended; 3 in a manner that is inconsistent with one or more of the 4 fundamental workplace relations principles. 5 (9) The following are the fundamental workplace relations 6 principles: 7 (a) that this Act should provide for, and continue to provide 8 for, the following: 9 (i) a strong, simple and enforceable safety net of 10 minimum employment standards; 11 (ii) genuine rights and responsibilities to ensure 12 fairness, choice and representation at work, 13 including the freedom to choose whether or not to 14 join and be represented by a union or participate in 15 collective activities; 16 (iii) collective bargaining at the enterprise level with no 17 provision for individual statutory agreements; 18 (iv) fair and effective remedies available through an 19 independent umpire; 20 (v) protection from unfair dismissal; 21 (b) that there should be, and continue to be, in connection 22 with the operation of this Act, the following: 23 (i) an independent tribunal system; 24 (ii) an independent authority able to assist employers 25 and employees within a national workplace 26 relations system. 27 30M Extended meaning of national system employee 28 (1) A national system employee includes: 29 (a) any individual in a State that is a referring State because 30 of this Division so far as he or she is employed, or 31 usually employed, as described in paragraph 30N(1)(a), 32 except on a vocational placement; and 33 Page 82

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 (b) a law enforcement officer of the State to whom 1 subsection 30P(1) applies. 2 (2) This section does not limit the operation of section 13 (which 3 defines a national system employee). 4 Note: Section 30S may limit the extent to which this section extends the 5 meaning of national system employee. 6 30N Extended meaning of national system employer 7 (1) A national system employer includes: 8 (a) any person in a State that is a referring State because of 9 this Division so far as the person employs, or usually 10 employs, an individual; and 11 (b) a holder of an office to whom subsection 30P(2) applies. 12 (2) This section does not limit the operation of section 14 (which 13 defines a national system employer). 14 Note: Section 30S may limit the extent to which this section extends the 15 meaning of national system employer. 16 30P Extended ordinary meanings of employee and employer 17 (1) A reference in this Act to an employee with its ordinary 18 meaning includes a reference to a law enforcement officer of a 19 referring State if the State's referral law so provides for the 20 purposes of that law. 21 (2) A reference in this Act to an employer with its ordinary 22 meaning includes a reference to a holder of an office of a State 23 if the State's referral law provides, for the purposes of that 24 law, that the holder of the office is taken to be the employer of 25 a law enforcement officer of the State. 26 (3) This section does not limit the operation of section 15 (which 27 deals with references to employee and employer with their 28 ordinary meanings). 29 Note: Section 30S may limit the extent to which this section extends the 30 meanings of employee and employer. 31 Page 83

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 30Q Extended meaning of outworker entity 1 (1) An outworker entity includes a person, other than in the 2 person's capacity as a national system employer, so far as: 3 (a) the person arranges for work to be performed for the 4 person (either directly or indirectly); and 5 (b) the work is of a kind that is often performed by 6 outworkers; and 7 (c) one or more of the following applies: 8 (i) at the time the arrangement is made, one or more 9 parties to the arrangement is in a State that is a 10 referring State because of this Division; 11 (ii) the work is to be performed in a State that is a 12 referring State because of this Division; 13 (iii) the person referred to in paragraph (a) carries on an 14 activity (whether of a commercial, governmental 15 or other nature) in a State that is a referring State 16 because of this Division, and the work is 17 reasonably likely to be performed in that State; 18 (iv) the person referred to in paragraph (a) carries on an 19 activity (whether of a commercial, governmental 20 or other nature) in a State that is a referring State 21 because of this Division, and the work is to be 22 performed in connection with that activity. 23 (2) This section does not limit the operation of the definition of 24 outworker entity in section 12. 25 Note: Section 30S may limit the extent to which this section extends the 26 meaning of outworker entity. 27 30R General protections 28 (1) Part 3-1 (which deals with general protections) applies to 29 action taken in a State that is a referring State because of this 30 Division. 31 (2) This section applies despite section 337 (which limits the 32 application of Part 3-1), and does not limit the operation of 33 Page 84

 


 

Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 Schedule 2 sections 338 and 339 (which set out the application of that 1 Part). 2 Note: Section 30S may limit the extent to which this section extends the 3 application of Part 3-1. 4 30S Division only has effect if supported by reference 5 A provision of this Division has effect in relation to a State 6 that is a referring State because of this Division only to the 7 extent that the State's referral law refers to the Parliament of 8 the Commonwealth the matters mentioned in subsection 9 30L(1) that result in the Parliament of the Commonwealth 10 having sufficient legislative power for the provision so to have 11 effect. 12 State of Queensland 2009 Page 85

 


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