INDUSTRIAL RELATIONS LEGISLATION AMENDMENT BILL 2020

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INDUSTRIAL RELATIONS LEGISLATION AMENDMENT BILL 2020

Western Australia Industrial Relations Legislation Amendment Bill 2020 Contents Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Industrial Relations Act 1979 amended 3. Act amended 3 4. Section 6 amended 3 5. Section 7 amended 3 6. Section 10 amended 8 7. Section 16 amended 8 8. Section 23 amended 9 9. Section 23A amended 10 10. Section 26 amended 10 11. Section 29 amended 10 12. Section 31 amended 12 13. Section 37 amended 12 14. Sections 37A to 37D inserted 12 37A. Public sector awards and enterprise awards 12 37B. Private sector awards: general 13 37C. Private sector awards: limitations on making and varying 14 37D. Private sector awards: variations of the Commission's own motion 14 15. Section 38 amended 15 16. Section 40 amended 16 17. Part II Division 2F heading amended 17 18. Section 49D amended 17 198--1 page i Industrial Relations Legislation Amendment Bill 2020 Contents 19. Section 49DA inserted 21 49DA. Employer obligations in relation to pay slips 21 20. Section 49E amended 23 21. Section 49F amended 24 22. Section 49I amended 24 23. Section 49K replaced 24 49K. No entry to premises used for habitation 24 24. Section 50 amended 25 25. Section 50A amended 26 26. Section 50B amended 28 27. Part II Division 3AA inserted 28 Division 3AA -- Workers bullied at work 51BF. Terms used 28 51BG. Person conducting a business or undertaking 29 51BH. Worker 30 51BI. Worker bullied at work 31 51BJ. Stop bullying application 31 51BK. Dealing with a stop bullying application 31 51BL. Power to dismiss stop bullying applications involving covert operations 32 51BM. Commission may make stop bullying orders 32 51BN. Contravening stop bullying order 33 28. Part II Division 3B replaced 34 Division 3B -- Equal remuneration 51O. Equal remuneration orders 34 51P. Employer not to reduce remuneration 35 51Q. Alternative remedies 35 51R. Remuneration-related action 36 29. Section 52 amended 37 30. Section 52A inserted 37 52A. Counterpart federal body 37 31. Section 59 amended 39 32. Section 71 amended 40 33. Section 71A amended 42 34. Part IIAA inserted 42 Part IIAA -- Employers declared not to be national system employers Division 1 -- Declarations 80A. Employers declared not to be national system employers 42 page ii Industrial Relations Legislation Amendment Bill 2020 Contents Division 2 -- Change from federal to State system 80B. Terms used 43 80BA. Operation of awards, industrial agreements or orders 44 80BB. New State instruments 44 80BC. Amendment of new State instruments 45 80BD. Ability to carry over matters 46 80BE. References in new State instruments to federal industrial authority and General Manager 46 80BF. References in new State instruments to provisions of Commonwealth laws 47 80BG. References in new State instruments to federal organisations 47 80BH. Named parties to new State instruments 48 80BI. Employment under old federal instrument 48 80BJ. Leave accrued immediately before relevant day 49 80BK. Leave taken under old federal instrument 49 35. Section 80E amended 50 36. Section 80I amended 50 37. Part III Division 1 heading inserted 50 Division 1 -- Industrial magistrate's court 38. Section 81G inserted 50 81G. Industrial inspectors may assist industrial magistrate's court 50 39. Part III Division 2 heading inserted 51 Division 2 -- Enforcement generally 40. Section 83 amended 51 41. Section 83A amended 54 42. Section 83B amended 55 43. Section 83C amended 56 44. Section 83E amended 57 45. Sections 83EA and 83EB inserted 59 83EA. Serious contravention of entitlement provision or civil penalty provision 59 83EB. Employer to have burden of disproving certain allegations by applicant under s. 83 61 46. Section 84 amended 62 47. Section 84AA inserted 62 84AA. Illegal contracts of employment may be treated as valid 62 48. Section 84A amended 63 page iii Industrial Relations Legislation Amendment Bill 2020 Contents 49. Part III Divisions 3 to 5 inserted 63 Division 3 -- Civil infringement notices 84B. Terms used 63 84C. Giving civil infringement notice 64 84D. Content of civil infringement notice 64 84E. Amount of civil infringement notice penalty 66 84F. Time for payment of civil infringement notice penalty 66 84G. Extension of time to pay civil infringement notice penalty 67 84H. Withdrawal of civil infringement notice 67 84I. Effect of payment of civil infringement notice penalty 68 84J. Refund of civil infringement notice penalty 68 Division 4 -- Enforceable undertakings 84K. Terms used 69 84L. Application of Division 69 84M. Enforceable undertaking 69 84N. Enforcement of enforceable undertakings 70 Division 5 -- Compliance notices 84O. Terms used 70 84P. Application of Division 71 84Q. Giving compliance notice 71 84R. Relationship with enforceable undertakings 72 84S. Relationship with proceedings under s. 83 72 84T. Person must comply with compliance notice 73 84U. Review of compliance notices 73 84V. Withdrawal of compliance notice 74 50. Section 86 amended 74 51. Section 91A inserted 74 91A. Court's power to order costs and expenses 74 52. Section 93 amended 75 53. Section 96 amended 75 54. Part VIB inserted 76 Part VIB -- Protection of employee rights Division 1 -- Preliminary 97. Terms used 76 Division 2 -- Damaging action 97A. Damaging action because of inquiry or complaint 77 97B. Court orders to employers 77 97C. Court orders to third parties 78 page iv Industrial Relations Legislation Amendment Bill 2020 Contents Division 3 -- Sham contracts for services 97D. Misrepresenting contract of employment as contract for services 79 97E. Dismissing to engage under contract for services 79 97F. False statement to engage under contract for services 80 97G. Court orders to employers 80 Division 4 -- Miscellaneous 97H. Certain advertising prohibited 82 55. Section 97U amended 82 56. Section 97UF amended 82 57. Section 97YA amended 83 58. Section 98 amended 83 59. Section 98A inserted 87 98A. Information obtained under s. 98 not to be disclosed 87 60. Section 102 amended 88 61. Section 103 amended 88 62. Section 117 inserted 89 117. Savings and transitional provisions for Industrial Relations Legislation Amendment Act 2020 89 63. Schedule 4 amended 90 64. Various penalties amended 90 65. Various references to "Federal" amended 93 66. Various references to titles amended 94 67. Various references to "shall" replaced 97 68. Various references to gender removed 107 69. Various other modernisations 120 Part 3 -- Long Service Leave Act 1958 amended 70. Act amended 128 71. Part II Division 1 heading inserted 128 Division 1 -- General 72. Section 4 amended 128 73. Sections 5 and 6 replaced 130 4A. Employees with equivalent separate LSL entitlements 130 5. Cashing out of accrued long service leave 131 6. Continuous employment 132 6A. Calculating length of continuous employment 135 page v Industrial Relations Legislation Amendment Bill 2020 Contents 74. Part II Division 2 heading inserted 136 Division 2 -- Ordinary pay 75. Section 7 replaced 136 7. Ordinary pay: general 136 7A. Ordinary pay: shift premiums, overtime, penalty rates or allowances 137 7B. Ordinary pay: casual employees' loading 137 7C. Ordinary pay: board and lodging 138 76. Part II Division 3 inserted 138 Division 3 -- Transfer of business 7D. Terms used 138 7E. Transfer of business, old employer, new employer, transferring work 139 7F. Transferring employee 139 7G. Connection between old employer and new employer 140 7H. Status of transferring employees on transfer of business 141 7I. Transfer of employment records 141 77. Part III heading amended 142 78. Section 8 amended 142 79. Section 9 amended 142 80. Section 11 amended 144 81. Section 26 amended 145 82. Section 26A amended 146 83. Section 39 amended 147 84. Part VIII inserted 147 Part VIII -- Savings provisions for Industrial Relations Legislation Amendment Act 2020 40. Terms used 147 41. Business transmitted before commencement day 148 85. Various references to "shall" replaced 148 86. Various references to gender removed 149 87. Various other modernisations 150 Part 4 -- Minimum Conditions of Employment Act 1993 amended 88. Act amended 152 89. Section 3 amended 152 90. Section 5 amended 152 91. Section 7 replaced 153 7. Enforcement of minimum conditions 153 page vi Industrial Relations Legislation Amendment Bill 2020 Contents 92. Section 8 amended 153 93. Section 9 deleted 153 94. Section 9A amended 153 95. Section 9B amended 154 96. Part 3 Division 1 heading inserted 154 Division 1 -- General 97. Section 10 amended 154 98. Part 3 Division 2 inserted 155 Division 2 -- Employees with disabilities 15. Terms used 155 16. Application of Act to employee with disability 157 17. Minimum pay for employee with disability 157 99. Section 17B amended 158 100. Section 17BA inserted 158 17BA. Employee and prospective employees not to be unreasonably compelled to spend or pay amount 158 101. Section 18 amended 161 102. Part 6 deleted 161 103. Part 8 inserted 162 Part 8 -- Transitional provisions for Industrial Relations Legislation Amendment Act 2020 48. Term used: commencement day 162 49. Employees remunerated wholly by percentage reward or at piece rates 162 50. Employees with disabilities 163 51. "Under rate employee" provisions in awards 164 104. Various references to gender removed 165 page vii Western Australia LEGISLATIVE ASSEMBLY Industrial Relations Legislation Amendment Bill 2020 A Bill for An Act to amend the Industrial Relations Act 1979, the Long Service

eave Act 1958 and the Minimum Conditions of Employment Act 1993. The Parliament of Western Australia enacts as follows: page 1 Industrial Relations Legislation Amendment Bill 2020 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Industrial Relations Legislation Amendment 4 Act 2020. 5 2. Commencement 6 This Act comes into operation as follows -- 7 (a) Part 1 -- on the day on which this Act receives the 8 Royal Assent; 9 (b) the rest of the Act -- on a day fixed by proclamation, 10 and different days may be fixed for different provisions. page 2 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 3 1 Part 2 -- Industrial Relations Act 1979 amended 2 3. Act amended 3 This Part amends the Industrial Relations Act 1979. 4 4. Section 6 amended 5 In section 6(ac) delete "remuneration for men and women for 6 work of equal value; and" and insert: 7 8 remuneration; and 9 10 5. Section 7 amended 11 (1) In section 7(1) delete the definitions of: 12 award 13 canvasser 14 Commonwealth Act 15 employee 16 employer 17 Fair Work Commission 18 (2) In section 7(1) insert in alphabetical order: 19 20 award -- 21 (a) means an award made by the Commission 22 under this Act; and 23 (b) for the purposes of section 37C(1), includes an 24 award made under a law of the Commonwealth, 25 another State or a Territory extending to and 26 binding employees; page 3 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 5 1 employee means -- 2 (a) a person who is employed by an employer to do 3 work for hire or reward, including as an 4 apprentice; or 5 (b) a person whose usual status is that of an 6 employee; 7 employer means -- 8 (a) a person or public authority employing 1 or 9 more employees; or 10 (b) except as provided in the Foreign States 11 Immunities Act 1985 (Commonwealth) 12 section 12, a foreign state or consulate 13 employing 1 or more employees; or 14 (c) a labour hire agency or group training 15 organisation that arranges for an employee 16 (being a person who is a party to a contract of 17 service with the agency or organisation) to do 18 work for another person, even though the 19 employee is working for the other person under 20 an arrangement between the agency or 21 organisation and the other person; 22 enterprise award means an award that extends to and 23 binds a single employer who is not a body or entity 24 referred to in the definition of public sector award; 25 entitlement provision means -- 26 (a) a provision of any of the following -- 27 (i) an award; 28 (ii) an industrial agreement; 29 (iii) an employer-employee agreement; 30 (iv) an order made by the Commission, 31 other than an order made under 32 section 23A, 32(8), 44(6) or 66; 33 or page 4 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 5 1 (b) a provision of the LSL Act Part III; or 2 (c) a minimum condition of employment as 3 defined in the MCE Act section 3(1); 4 equal remuneration means equal remuneration for 5 men and women for work of equal or comparable 6 value; 7 equal remuneration order has the meaning given in 8 section 51O(2); 9 federal organisation means an organisation of 10 employees registered under the FW (Registered 11 Organisations) Act; 12 FW Act means the Fair Work Act 2009 13 (Commonwealth); 14 FW Commission means the body established by the 15 FW Act section 575; 16 FW (Registered Organisations) Act means the Fair 17 Work (Registered Organisations) Act 2009 18 (Commonwealth); 19 FW (Transitional) Act means the Fair Work 20 (Transitional Provisions and Consequential 21 Amendments) Act 2009 (Commonwealth); 22 industrial instrument means -- 23 (a) an award; or 24 (b) an order of the Commission under this Act; or 25 (c) an industrial agreement; or 26 (d) for the purposes of section 49D or in relation to 27 a SWIIP -- an employer-employee agreement; 28 LSL Act means the Long Service Leave Act 1958; 29 MSI Act means the Mines Safety and Inspection 30 Act 1994; 31 OSH Act means the Occupational Safety and Health 32 Act 1984; page 5 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 5 1 private sector award means an award other than a 2 public sector award or enterprise award; 3 produce includes exhibit, send or deliver; 4 public sector award means an award that only extends 5 to and binds the following -- 6 (a) a public sector body as defined in the Public 7 Sector Management Act 1994 section 3(1); 8 (b) an entity specified in the Public Sector 9 Management Act 1994 Schedule 1 column 2; 10 record-related civil penalty provision means the 11 following -- 12 (a) section 49D(1), (6) or (8); 13 (b) section 49DA(1) or (3); 14 (c) section 49E(1); 15 (d) section 102(1)(a); 16 (e) the LSL Act section 7I(2), 26(1) or (2) 17 or 26A(1); 18 serious contravention has the meaning given in 19 section 83EA(2); 20 supported wage industrial instrument provision or 21 SWIIP means a provision of an industrial instrument 22 that -- 23 (a) applies to an employee with a disability; and 24 (b) provides a means (a wage assessment tool) for 25 the assessment of whether, and the extent to 26 which, the employee's productive capacity is 27 reduced because of the disability; and 28 (c) provides that the employer may pay a wage 29 that -- 30 (i) relates to the employee's productive 31 capacity as assessed using the wage 32 assessment tool; and page 6 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 5 1 (ii) may be less than the applicable 2 minimum wage in the industrial 3 instrument; 4 Supported Wage System or SWS means the scheme 5 established by the Commonwealth Government to 6 enable the assessment of whether, and the extent to 7 which, a person's productive capacity is reduced 8 because of a disability; 9 10 (3) In section 7(1) in the definition of industry delete paragraph (b) 11 and insert: 12 13 (b) the performance of the functions of any public 14 authority; 15 16 (4) In section 7(1) in the definition of public authority after 17 "means" insert: 18 19 the Crown, 20 21 (5) After section 7(1a) insert: 22 23 (2) In subsection (2A) -- 24 bullying means behaviour to which section 51BI(1) 25 applies; 26 worker has the meaning given in section 51BH. 27 (2A) A matter relating or pertaining to the bullying of a 28 worker is an industrial matter. 29 30 (6) Delete section 7(5). page 7 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 6 1 (7) In section 7(7) delete "section 29(1)(b)(ii)" and insert: 2 3 section 29(1)(d) 4 5 6. Section 10 amended 6 In section 10: 7 (a) delete "attained the age of 65 years" and insert: 8 9 reached 70 years of age 10 11 (b) delete "attaining the age of 65 years." and insert: 12 13 reaching 70 years of age. 14 15 7. Section 16 amended 16 (1) In section 16(1) delete "(1aa)" and insert: 17 18 (1AA) 19 20 (2) Delete section 16(1aa) and insert: 21 22 (1AA) The Chief Commissioner is responsible for matters of 23 an administrative nature relating to the Commission 24 and commissioners, including the following -- 25 (a) giving directions about the practices and 26 procedures to be followed by the Commission; 27 (b) developing and implementing performance 28 standards and setting benchmarks for the 29 Commission; page 8 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 8 1 (c) overseeing the proper use of the resources of 2 the Commission; 3 (d) managing the business of the Commission, 4 including by ensuring that the Commission 5 operates efficiently and effectively and 6 continually improves the way in which it 7 carries out its functions; 8 (e) providing leadership and guidance to the 9 Commission and engendering cohesiveness and 10 collaboration amongst commissioners; 11 (f) being responsible for promoting the training, 12 education and professional development of 13 commissioners. 14 15 (3) Delete section 16(2D) and (2E). 16 (4) After section 16(3) insert: 17 18 (4) The Chief Commissioner may do all things necessary 19 or convenient to be done in the performance of the 20 Chief Commissioner's functions. 21 22 8. Section 23 amended 23 In section 23(3)(c) before "make" insert: 24 25 except as provided in section 49K(3), 26 page 9 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 9 1 9. Section 23A amended 2 Delete section 23A(2) and insert: 3 4 (2) In determining whether the dismissal of an employee 5 was harsh, oppressive or unfair the Commission must 6 have regard to the following -- 7 (a) whether, at the time of the dismissal, the 8 employee -- 9 (i) was employed for a probationary period 10 agreed between the employer and 11 employee; and 12 (ii) had been employed on that basis for a 13 period of less than 3 months; 14 (b) whether, at the time of the dismissal, the 15 employee was employed in a private home to 16 provide services directly to the employer or a 17 member of the employer's family or household. 18 19 10. Section 26 amended 20 In section 26(2B) in the definition of public sector decision 21 paragraph (c) delete "decision that" and insert: 22 23 decision (except an equal remuneration order) that 24 25 11. Section 29 amended 26 (1) Delete section 29(1)(b) and insert: 27 28 (b) except as provided in section 51Q(2), in the 29 case of an equal remuneration order -- by an 30 application made by any of the following -- 31 (i) an employee to be covered by the order; page 10 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 11 1 (ii) an organisation in which employees to 2 be covered by the order are eligible to 3 be enrolled as members; 4 (iii) an organisation in which employers of 5 employees to be covered by the order 6 are eligible to be enrolled as members; 7 (iv) UnionsWA; 8 (v) the Chamber; 9 (vi) the Minister; 10 (vii) the Commissioner for Equal 11 Opportunity; 12 and 13 (c) in the case of a claim by an employee that the 14 employee has been harshly, oppressively or 15 unfairly dismissed from the employee's 16 employment -- by the employee; and 17 (d) in the case of a claim by an employee that the 18 employer has not allowed the employee a 19 benefit, other than a benefit under an award or 20 order, to which the employee is entitled under 21 the contract of employment -- by the 22 employee; and 23 (e) in the case of an industrial matter mentioned in 24 section 7(2A) -- by the worker. 25 26 (2) In section 29(2) and (3) delete "subsection (1)(b)(i)" and insert: 27 28 subsection (1)(c) 29 page 11 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 12 1 12. Section 31 amended 2 In section 31(1)(c)(ii) delete "section 29(1)(b)" and insert: 3 4 section 29(1)(c) or (d) 5 6 13. Section 37 amended 7 Delete section 37(1) and insert: 8 9 (1) An award has effect according to its terms. 10 (2) Except as provided in its terms, an award operates 11 throughout the State, other than in the areas to which 12 section 3(1) applies. 13 14 Note: The heading to amended section 37 is to read: 15 Effect, area of operation and duration of award 16 14. Sections 37A to 37D inserted 17 After section 37 insert: 18 19 37A. Public sector awards and enterprise awards 20 Except as provided in its terms, a public sector award 21 or enterprise award extends to and binds -- 22 (a) employees employed in a calling specified in 23 the award in the industry or industries to which 24 the award applies; and 25 (b) employers employing those employees. page 12 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 14 1 37B. Private sector awards: general 2 (1) Except as provided in its terms, a private sector award 3 extends to and binds -- 4 (a) employers -- 5 (i) of a class or classes specified in the 6 award; or 7 (ii) specified by name in the award; 8 and 9 (b) employees who are -- 10 (i) employees of employers referred to in 11 paragraph (a); and 12 (ii) of a class or classes specified in the 13 award. 14 (2) For the purposes of subsection (1)(a)(i) and (b)(ii), the 15 class may be described by reference to -- 16 (a) a particular industry or part of an industry; or 17 (b) a particular kind of work. 18 (3) A private sector award may be made or varied to -- 19 (a) prevent any overlap with another award; and 20 (b) extend to and bind a labour hire agency, and 21 any employees of a labour hire agency, 22 conducting business -- 23 (i) in an industry to which the award 24 relates; and 25 (ii) in relation to employees to whom a 26 classification in the award applies. page 13 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 14 1 37C. Private sector awards: limitations on making and 2 varying 3 (1) A private sector award must not be made or varied to 4 extend to and bind a class of employees -- 5 (a) who, because of the nature or seniority of their 6 role, have not had awards (whether made under 7 laws of the State, the Commonwealth, another 8 State or a Territory) extend to and bind them; or 9 (b) who perform work that is not of a similar nature 10 to work that has traditionally been regulated by 11 the awards referred to in paragraph (a). 12 (2) The scope of a private sector award must not be fixed 13 by reference to an industry or part of an industry 14 carried on by an employer if the Commission makes or 15 varies the private sector award to extend to and bind an 16 employer specified by name in the award. 17 (3) A private sector award must not be made or varied to 18 extend to and bind an employee and employer if a 19 public sector award or enterprise award extends to and 20 binds the employee and employer. 21 37D. Private sector awards: variations of the 22 Commission's own motion 23 (1) Except as provided in this section, the Commission 24 may vary the scope of a private sector award of its own 25 motion. 26 (2) A variation must not be made in relation to -- 27 (a) an application under section 50(2) that does not 28 seek the variation of the scope of the private 29 sector award; or 30 (b) a State Wage order under section 50A. page 14 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 15 1 (3) A variation must specify that the scope of the private 2 sector award extends to and binds -- 3 (a) employers of a class or classes specified in the 4 award, whether or not the employers are also 5 specified by name in the award; and 6 (b) employees who are -- 7 (i) employees of employers referred to in 8 paragraph (a); and 9 (ii) of a class or classes specified in the 10 award. 11 (4) For the purposes of subsection (3)(a) and (b)(ii), the 12 class may be described by reference to -- 13 (a) a particular industry or part of an industry; or 14 (b) a particular kind of work. 15 (5) A variation that stops the private sector award from 16 extending to and binding particular employers or 17 employees must not be made unless the Commission is 18 satisfied that another appropriate award will extend to 19 and bind them. 20 (6) Section 29A(1a), (1b), (2), (2A) and (2b) apply, with 21 necessary modifications, to and in relation to the 22 variation of the scope of a private sector award. 23 24 15. Section 38 amended 25 (1) In section 38(3): 26 (a) delete "an award" and insert: 27 28 a public sector award or enterprise award 29 page 15 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 16 1 (b) delete "shall for the purposes of section 37(1) be 2 expressly limited to that industry." and insert: 3 4 is expressly limited to that industry for the purposes of 5 section 37A. 6 7 (2) In section 38(4) delete "an award" and insert: 8 9 a public sector award or enterprise award 10 11 16. Section 40 amended 12 (1) In section 40(1) delete "sections 29A" and insert: 13 14 sections 29A, 37C, 37D(5) 15 16 (2) After section 40(2) insert: 17 18 (2A) A variation to the scope of a private sector award must 19 specify that it extends to and binds -- 20 (a) employers of a class or classes specified in the 21 award, whether or not the employers are also 22 specified by name in the award; and 23 (b) employees who are -- 24 (i) employees of employers referred to in 25 paragraph (a); and 26 (ii) of a class or classes specified in the 27 award. 28 (2B) For the purposes of subsection (2A)(a) and (b)(ii), the 29 class may be described by reference to -- 30 (a) a particular industry or part of an industry; or page 16 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 17 1 (b) a particular kind of work. 2 3 Note: The heading to amended section 40 is to read: 4 Varying and cancelling awards generally 5 17. Part II Division 2F heading amended 6 In the heading to Part II Division 2F after "records" insert: 7 8 and pay slips 9 10 18. Section 49D amended 11 (1) Delete section 49D(1) and insert: 12 13 (1) Employment records relating to an employee must be 14 kept in accordance with this section. 15 16 (2) In section 49D(2): 17 (a) delete "details are recorded of --" and insert: 18 19 the following employment records are kept -- 20 21 (b) in paragraph (a) delete "birth; and" and insert: 22 23 birth; 24 25 (c) after paragraph (a) insert: 26 27 (aa) the employer's name and Australian Business 28 Number (if any); 29 page 17 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 18 1 (d) in paragraph (b) delete "applies; and" and insert: 2 3 applies; 4 5 (e) in paragraph (c) delete "employer; and" and insert: 6 7 employer; 8 9 (f) after paragraph (d)(iii) delete "and"; 10 (g) in paragraph (e)(ii) delete "the industrial instrument; 11 and" and insert: 12 13 an industrial instrument or the MCE Act and any 14 amount withheld as tax; and 15 16 (h) after paragraph (e)(iii) delete "and"; 17 (i) after paragraph (e) insert: 18 19 (ea) any incentive based payment, bonus, loading, 20 penalty rates or another monetary allowance or 21 separately identifiable entitlement; 22 23 (j) in paragraph (f) delete "unpaid; and" and insert: 24 25 unpaid; 26 27 (k) delete paragraph (g) and insert: 28 29 (fa) any agreement under the MCE Act section 8(1), 30 including details of -- 31 (i) the benefit for, and the amount of, 32 annual leave that was foregone; and 33 (ii) when the benefit was paid; page 18 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 18 1 (g) the information necessary for the calculation of, 2 and payment for, long service leave under the 3 LSL Act, the Construction Industry Portable 4 Paid Long Service Leave Act 1985 or an 5 industrial instrument; 6 7 (l) in paragraph (h) delete "the industrial instrument to be 8 recorded; and" and insert: 9 10 an industrial instrument to be recorded; 11 12 (m) in paragraph (i) delete "the industrial instrument." and 13 insert: 14 15 an industrial instrument or other entitlement provision; 16 17 (n) after paragraph (i) insert: 18 19 (j) the following matters relating to 20 superannuation -- 21 (i) the amount of the superannuation 22 contributions made; 23 (ii) the period over which the 24 superannuation contributions were 25 made; 26 (iii) the date on which each superannuation 27 contribution was made; 28 (iv) the name of any fund to which a 29 superannuation contribution was made; 30 (v) how the employer worked out the 31 amount of superannuation owed; 32 (vi) any election made by the employee as to 33 the fund to which the contributions are page 19 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 18 1 to be made and the date the election was 2 made; 3 (k) termination-related matters, including -- 4 (i) whether the employee's employment 5 was terminated by consent, notice, 6 summarily or in some other specified 7 manner; and 8 (ii) the name of the person who terminated 9 the employee's employment. 10 11 (3) In section 49D(3): 12 (a) in paragraph (b) after "to" insert: 13 14 annual and 15 16 (b) in paragraph (c) delete "entry" and insert: 17 18 employment record 19 20 (4) Delete section 49D(4) and insert: 21 22 (4) An employer who enters into an agreement under the 23 MCE Act section 8(1) must ensure that a copy of the 24 agreement is kept as an employment record. 25 (5) If the SWS or a SWIIP applies to an employee with a 26 disability, an employer must ensure that the following 27 are kept as employment records in relation to the 28 employee -- 29 (a) any agreement entered into under the SWS or a 30 SWIIP by the employer and the employee; page 20 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 19 1 (b) any other document required to be kept by the 2 SWS or a SWIIP relating to the determination 3 of a wage for the employee. 4 (6) The employer must, as soon as practicable, lodge with 5 the Registrar a copy of an agreement entered into under 6 the SWS that is required to be kept under 7 subsection (5)(a). 8 (7) If an employer makes a payment to an employee in 9 cash, the employer must provide a record of payment 10 to the employee and ensure that a copy of the record of 11 payment is kept as an employment record. 12 (8) An employer must not make or keep an employment 13 record for the purposes of this section that the 14 employer knows, or could reasonably be expected to 15 know, is false or misleading. 16 (9) Subsection (8) does not apply if the employment record 17 is not false or misleading in a material particular. 18 19 19. Section 49DA inserted 20 After section 49D insert: 21 22 49DA. Employer obligations in relation to pay slips 23 (1) An employer must, in accordance with this section, 24 give a pay slip (in hard copy or electronic form) to each 25 employee within 1 working day after paying an amount 26 to the employee in relation to the performance of work. 27 (2) The pay slip must include the following information -- 28 (a) the employer's name and Australian Business 29 Number (if any); 30 (b) the employee's name; 31 (c) the period to which the pay slip relates; page 21 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 19 1 (d) the date on which the payment referred to in the 2 pay slip was made; 3 (e) the gross and net amounts of the payment and 4 any amount withheld as tax; 5 (f) any incentive based payment, or payment of a 6 bonus, loading, penalty rates or another 7 monetary allowance or separately identifiable 8 entitlement; 9 (g) if an amount is deducted from the gross amount 10 of the payment -- 11 (i) the name of the person in relation to 12 whom or which the deduction was 13 made; and 14 (ii) if the deduction was paid into a fund or 15 account -- the name, or the name and 16 number, of the fund or account; and 17 (iii) the purpose of the deduction; 18 (h) if the employee is paid at an hourly rate of 19 pay -- 20 (i) the rate of pay for the employee's 21 ordinary hours; and 22 (ii) the number of hours worked during the 23 period to which the pay slip relates; and 24 (iii) the amount of the payment made at that 25 rate; 26 (i) if the employee is paid at a weekly or an annual 27 rate of pay -- the rate as at the latest date to 28 which the payment relates; 29 (j) if the employer is required to make 30 superannuation contributions for the benefit of 31 the employee -- 32 (i) the amount of each contribution that the 33 employer made during the period to page 22 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 20 1 which the pay slip relates and the name, 2 or the name and number, of any fund to 3 which the contribution was made; or 4 (ii) the amounts of contributions that the 5 employer is liable to make in relation to 6 the period to which the pay slip relates, 7 and the name, or the name and number, 8 of any fund to which the contributions 9 will be made. 10 (3) An employer must not give a pay slip for the purposes 11 of this section if the pay slip is false or misleading. 12 (4) Subsection (3) does not apply if -- 13 (a) the employer gives the pay slip without 14 knowing, or being reasonably expected to 15 know, that it is false or misleading; or 16 (b) the pay slip is not false or misleading in a 17 material particular. 18 19 20. Section 49E amended 20 In section 49E(2)(a): 21 (a) after "the" insert: 22 23 employment 24 25 (b) delete "section 49D(3); and" and insert: 26 27 section 49D; and 28 page 23 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 21 1 21. Section 49F amended 2 In section 49F delete "section 49D(2), 49D(3)" and insert: 3 4 section 49D(1), (6) or (8), 49DA(1) or (3) 5 6 22. Section 49I amended 7 (1) In section 49I(1) delete "Long Service Leave Act 1958, the MCE 8 Act, the Occupational Safety and Health Act 1984, the Mines 9 Safety and Inspection Act 1994" and insert: 10 11 LSL Act, the MCE Act, the OSH Act, the MSI Act, the 12 Construction Industry Portable Paid Long Service Leave 13 Act 1985 14 15 (2) In section 49I(2)(c) delete "view" and insert: 16 17 view, and take photographs, films and audio, video or other 18 recordings of, 19 20 23. Section 49K replaced 21 Delete section 49K and insert: 22 23 49K. No entry to premises used for habitation 24 (1) Except as provided in subsection (3), an authorised 25 representative does not have authority under this 26 Division to enter any part of premises principally used 27 for habitation by an employer or a member of the 28 employer's household (habitation premises). page 24 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 24 1 (2) An authorised representative may apply to the 2 Commission for an order permitting the authorised 3 representative to enter habitation premises under 4 section 49I(1). 5 (3) The Commission may make the order only if it is 6 satisfied that exceptional circumstances exist 7 warranting the making of the order. 8 9 24. Section 50 amended 10 After section 50(4) insert: 11 12 (5) A General Order that varies the scope of a private 13 sector award must specify that it extends to and 14 binds -- 15 (a) employers of a class or classes specified in the 16 award, whether or not the employers are also 17 specified by name in the award; and 18 (b) employees -- 19 (i) of employers referred to in 20 paragraph (a); and 21 (ii) of a class or classes specified in the 22 award. 23 (6) For the purposes of subsection (5)(a) and (b)(ii), the 24 class may be described by reference to -- 25 (a) a particular industry or part of an industry; or 26 (b) a particular kind of work. 27 page 25 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 25 1 25. Section 50A amended 2 (1) Before section 50A(1) insert: 3 4 (1AA) In this section -- 5 instrument-governed employee with a disability means 6 an employee -- 7 (a) whose contract of employment is governed by 8 an industrial instrument that includes a SWIIP 9 that incorporates the SWS; and 10 (b) whose productive capacity has been assessed 11 under the SWS as being reduced because of a 12 disability; and 13 (c) who is not employed by a supported 14 employment service as defined in the Disability 15 Services Act 1986 (Commonwealth) section 7; 16 and 17 (d) who is being paid a weekly rate of pay 18 determined by the SWS under the SWIIP. 19 20 (2) In section 50A(1): 21 (a) in paragraph (a) delete "setting --" and insert: 22 23 setting the following -- 24 25 (b) after paragraph (a)(ii) insert: 26 27 (iii) the minimum amount payable under the 28 MCE Act section 17(2); 29 page 26 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 25 1 (c) delete paragraph (d) and insert: 2 3 (d) setting out a statement of principles to be 4 applied and followed in relation to the exercise 5 of jurisdiction under this Act to -- 6 (i) set the wages, salaries, allowances or 7 other remuneration of employees or the 8 prices to be paid in respect of their 9 employment; and 10 (ii) ensure employees receive equal 11 remuneration. 12 13 (3) After section 50A(1) insert: 14 15 (1A) The amount set by the Commission under 16 subsection (1)(a)(iii) must be the same as that set by 17 the FW Commission in the national minimum wage 18 order under the FW Act section 285(2)(c) for an 19 eligible employee whose productive capacity is, under 20 the SWS, assessed as reduced because of a disability. 21 (1B) For the purposes of subsection (1)(b), the Commission 22 must, in relation to an instrument-governed employee 23 with a disability -- 24 (a) order that the minimum amount payable is to be 25 the same as in the previous State Wage order; 26 or 27 (b) order that the minimum amount payable is to be 28 the same as that set by the FW Commission in 29 the national minimum wage order under the 30 FW Act section 285(2)(c) for an eligible 31 employee whose productive capacity is, under 32 the SWS, assessed as reduced because of a 33 disability. 34 page 27 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 26 1 (4) In section 50A(3)(a)(vii) delete "remuneration for men and 2 women for work of equal or comparable value;" and insert: 3 4 remuneration; 5 6 26. Section 50B amended 7 In section 50B(1) delete "section 50A(1)(a)(ii) and (iii)," and 8 insert: 9 10 section 50A(1)(a)(ii), 11 12 27. Part II Division 3AA inserted 13 After Part II Division 3 insert: 14 15 Division 3AA -- Workers bullied at work 16 51BF. Terms used 17 In this Division -- 18 bullied at work has the meaning given in section 51BI; 19 person conducting a business or undertaking includes a 20 public authority conducting the business or 21 undertaking; 22 stop bullying application has the meaning given in 23 section 51BJ(1); 24 stop bullying order has the meaning given in 25 section 51BM(1); 26 volunteer means a person who is acting on a voluntary 27 basis (irrespective of whether the person receives 28 out-of-pocket expenses); page 28 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 27 1 WA Police means the Police Force of Western 2 Australia provided for by the Police Act 1892; 3 worker has the meaning given in section 51BH. 4 51BG. Person conducting a business or undertaking 5 (1) A reference in section 51BH to a person conducting a 6 business or undertaking includes a reference to the 7 following -- 8 (a) a person conducting the business or 9 undertaking -- 10 (i) whether alone or with others; and 11 (ii) whether or not for profit or gain; 12 (b) a partnership, or an unincorporated association, 13 conducting the business or undertaking; 14 (c) in the case of a partnership (other than an 15 incorporated partnership) referred to in 16 paragraph (b) -- each partner in the 17 partnership. 18 (2) A reference in section 51BH to a person conducting a 19 business or undertaking does not include a reference to 20 the following -- 21 (a) an individual engaged solely as a worker in the 22 business or undertaking; 23 (b) in the case of a business or undertaking 24 conducted by a local government or a regional 25 local government -- a member of the council 26 of the local government or regional local 27 government; 28 (c) a volunteer association; 29 (d) a person of a prescribed class. page 29 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 27 1 (3) In subsection (2)(c) -- 2 volunteer association means a group of volunteers 3 working together for 1 or more community purposes 4 where none of the volunteers, whether alone or jointly 5 with any other volunteers, employs any person to carry 6 out work for the volunteer association. 7 51BH. Worker 8 (1) A person is a worker if the person carries out work in 9 any capacity for a person conducting a business or 10 undertaking, including work as any of the following -- 11 (a) an employee; 12 (b) a contractor or subcontractor; 13 (c) an employee of a contractor or subcontractor; 14 (d) an employee of a labour hire agency who has 15 been assigned to work in the person's business 16 or undertaking; 17 (e) an outworker; 18 (f) an apprentice or trainee; 19 (g) a student gaining work experience; 20 (h) a volunteer; 21 (i) a person of a prescribed class. 22 (2) A police officer is -- 23 (a) a worker of WA Police; and 24 (b) at work throughout the time when the officer is 25 on duty or lawfully performing the functions of 26 a police officer, but not otherwise. 27 (3) A person conducting the business or undertaking 28 referred to in subsection (1) is also a worker if the 29 person is an individual who carries out work in that 30 business or undertaking. page 30 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 27 1 51BI. Worker bullied at work 2 (1) A worker is bullied at work if -- 3 (a) while the worker is at work, an individual, or 4 group of individuals, repeatedly behaves 5 unreasonably towards -- 6 (i) the worker; or 7 (ii) a group of workers of which the worker 8 is a member; 9 and 10 (b) that behaviour creates a risk to the safety and 11 health of the worker. 12 (2) Subsection (1) does not apply to reasonable 13 management action carried out in a reasonable manner. 14 51BJ. Stop bullying application 15 (1) A worker who reasonably believes that the worker has 16 been bullied at work may make an application (a stop 17 bullying application) to the Commission for a stop 18 bullying order. 19 (2) The application must be accompanied by any fee 20 prescribed by the regulations. 21 51BK. Dealing with a stop bullying application 22 (1) The Commission must start to deal with a stop bullying 23 application within 14 days after the application is 24 made. 25 (2) Section 44 does not apply to a stop bullying 26 application. 27 (3) Section 48A(2) or any other enactment providing for 28 the resolution of grievances or disputes by workers 29 does not limit the power of the Commission to deal 30 with a stop bullying application under this Division. page 31 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 27 1 51BL. Power to dismiss stop bullying applications 2 involving covert operations 3 (1) In this section -- 4 exercise of a power includes the performance of a 5 function. 6 (2) The Commission may dismiss a stop bullying 7 application if the Commission considers that the 8 application might involve matters that relate to the 9 exercise of a power of a police officer in circumstances 10 where -- 11 (a) a covert operation is undertaken by WA Police 12 for the purpose of obtaining information about 13 criminal activity; and 14 (b) unless the exercise of the power is secret or 15 confidential, it would be likely that -- 16 (i) the effectiveness of the exercise of the 17 power is reduced; or 18 (ii) a person is exposed to the danger of 19 physical harm arising from the actions 20 of another person. 21 51BM. Commission may make stop bullying orders 22 (1) The Commission may make any order it considers 23 appropriate (other than an order requiring payment of a 24 pecuniary amount by way of compensation to a 25 worker) to prevent a worker from being bullied at work 26 by an individual or group of individuals (a stop 27 bullying order) if -- 28 (a) the worker has made a stop bullying 29 application; and page 32 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 27 1 (b) the Commission is satisfied that -- 2 (i) the worker has been bullied at work by 3 an individual or group of individuals; 4 and 5 (ii) there is a risk that the worker will 6 continue to be bullied at work by the 7 individual or group of individuals. 8 (2) In considering the terms of the order, the Commission 9 must take into account -- 10 (a) if the Commission is aware of any final or 11 interim outcomes arising out of an investigation 12 into the matter that is being, or has been, 13 undertaken by another person or body -- those 14 outcomes; and 15 (b) if the Commission is aware of any procedure 16 available to the worker to resolve grievances or 17 disputes -- that procedure; and 18 (c) if the Commission is aware of any final or 19 interim outcomes arising out of any procedure 20 available to the worker to resolve grievances or 21 disputes -- those outcomes; and 22 (d) any matters that the Commission considers 23 relevant. 24 51BN. Contravening stop bullying order 25 (1) A person to whom a stop bullying order applies must 26 not contravene a term of the order. 27 (2) A contravention of subsection (1) is not an offence but 28 the subsection is a civil penalty provision for the 29 purposes of section 83E. 30 page 33 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 28 1 28. Part II Division 3B replaced 2 Delete Part II Division 3B and insert: 3 4 Division 3B -- Equal remuneration 5 51O. Equal remuneration orders 6 (1) In this section -- 7 statement of principles means the statement of 8 principles referred to in section 50A(1)(d)(ii). 9 (2) On an application under section 29(1)(b), the 10 Commission must make an order (an equal 11 remuneration order) to ensure that an employee 12 receives equal remuneration if the Commission is 13 satisfied that the employee does not receive that 14 remuneration. 15 (3) The equal remuneration order may relate to any matter 16 the Commission considers appropriate, including (but 17 not limited to) the following -- 18 (a) reclassifying work; 19 (b) establishing new career paths; 20 (c) implementing changes to incremental pay 21 scales; 22 (d) providing for increases in remuneration rates, 23 including -- 24 (i) minimum rates of pay in awards, 25 industrial agreements and enterprise 26 orders; and 27 (ii) new allowances; 28 (e) reassessing definitions and descriptions of work 29 to properly reflect the value of the work. page 34 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 28 1 (4) The Commission must apply the statement of 2 principles, with any necessary modifications, in -- 3 (a) determining whether an employee receives 4 equal remuneration; and 5 (b) deciding the terms of an equal remuneration 6 order. 7 (5) For the purposes of subsection (3), this Division 8 prevails over the statement of principles to the extent of 9 any inconsistency. 10 (6) An equal remuneration order may introduce measures 11 to ensure equal remuneration -- 12 (a) immediately; or 13 (b) progressively, in stages specified in the order. 14 51P. Employer not to reduce remuneration 15 (1) An employer must not reduce an employee's 16 remuneration because an equal remuneration order, or 17 an application for the order, has been made in relation 18 to the employee. 19 (2) The purported reduction is of no effect. 20 51Q. Alternative remedies 21 (1) Except as provided in subsection (3), this Division does 22 not limit a right a person might otherwise have to a 23 remedy (an alternative remedy) to secure equal 24 remuneration under another provision of this Act or 25 another enactment. 26 (2) A person who has applied for an alternative remedy in 27 relation to an employee cannot apply for an equal 28 remuneration order in relation to the employee unless 29 the proceedings for the alternative remedy have been 30 withdrawn or determined. page 35 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 28 1 (3) A person who has applied for an equal remuneration 2 order in relation to an employee cannot commence 3 proceedings for an alternative remedy in relation to the 4 employee unless the application for the equal 5 remuneration order has been withdrawn or determined. 6 (4) Subsection (3) does not prevent an organisation from 7 commencing proceedings -- 8 (a) that relate, in part or as a whole, to the securing 9 of equal remuneration for the employee; and 10 (b) that comprise any of the following -- 11 (i) an application to vary an award under 12 section 40; 13 (ii) an application for the registration of an 14 industrial agreement under section 41; 15 (iii) an initiation of bargaining under 16 section 42(1); 17 (iv) an application under section 42G for an 18 order regarding provisions of an 19 industrial agreement; 20 (v) an application under section 42I for an 21 enterprise order. 22 51R. Remuneration-related action 23 (1) In this section -- 24 remuneration-related action means -- 25 (a) the registration of an industrial agreement 26 under section 41; or 27 (b) the making of an award under this Act; or 28 (c) the making of an order under this Act. page 36 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 29 1 (2) The Commission must not take remuneration-related 2 action that -- 3 (a) prohibits or restricts the making of an 4 application for an equal remuneration order; or 5 (b) is inconsistent with, or prohibits or restricts the 6 application of, an equal remuneration order. 7 8 29. Section 52 amended 9 (1) In section 52 insert in alphabetical order: 10 11 counterpart federal body has the meaning given in 12 section 52A; 13 State organisation means an organisation that is 14 registered under this Division. 15 16 (2) In section 52 in the definition of postal ballot delete "him." and 17 insert: 18 19 the person; 20 21 30. Section 52A inserted 22 After section 52 insert: 23 24 52A. Counterpart federal body 25 (1) In this section -- 26 rules, of a branch of a federal organisation, means -- 27 (a) rules relating to the qualifications of persons for 28 membership; and 29 (b) rules prescribing the offices that exist within 30 the branch. page 37 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 30 1 (2) A Western Australian branch of a federal organisation 2 is a counterpart federal body in relation to a State 3 organisation if the rules of the branch are, or in 4 accordance with section 71(2) or (4) are taken to be, 5 the same as the rules of the State organisation relating 6 to the corresponding subject matter. 7 (3) A federal organisation is a counterpart federal body of 8 a State organisation even though the body does not 9 have or comprise a Western Australian branch of the 10 federal organisation if the Commission in Court 11 Session is of the opinion that the federal organisation is 12 a counterpart federal body in relation to a State 13 organisation. 14 (4) The Commission in Court Session may form the 15 opinion referred to in subsection (3) only if -- 16 (a) a substantial number of members of the State 17 organisation are -- 18 (i) members or eligible to be members of 19 the federal organisation; or 20 (ii) engaged in the same work, in aspects of 21 the same work or in similar work as 22 members of the federal organisation; or 23 (iii) employed in the same or similar work 24 by employers engaged in the same 25 industry as members of the federal 26 organisation; or 27 (iv) engaged in work or in industries for 28 which there is a community of interest 29 between the federal organisation and the 30 State organisation; 31 or page 38 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 31 1 (b) there is an agreement in force under the FW 2 (Registered Organisations) Act section 151 3 between the federal organisation and the State 4 organisation. 5 (5) The Commission in Court Session may form the 6 opinion referred to in subsection (3) despite the fact 7 that a person who is eligible to be a member of the 8 State organisation is, by reason of being a member of a 9 particular class of persons, ineligible to be a member of 10 that State organisation's counterpart federal body. 11 (6) The Commission in Court Session may form the 12 opinion referred to in subsection (3) despite the fact 13 that a person who is eligible to be a member of the 14 counterpart federal body is, by reason of being a 15 member of a particular class of persons, ineligible to be 16 a member of the State organisation. 17 (7) A State organisation may apply to the Commission in 18 Court Session for a declaration that, for the purposes of 19 subsection (2) or (3), a Western Australian branch of a 20 federal organisation, or a federal organisation, is a 21 counterpart federal body in relation to the State 22 organisation. 23 24 31. Section 59 amended 25 In section 59(3) delete "Federal body under that section." and 26 insert: 27 28 federal body. 29 page 39 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 32 1 32. Section 71 amended 2 (1) Delete section 71(1) and (2) and insert: 3 4 (2) The rules, as defined in section 52A(1), of the State 5 organisation and a counterpart federal body described 6 in section 52A(2) are taken to be the same if the rules 7 of the organisation and body -- 8 (a) relate to the qualifications of persons for 9 membership; and 10 (b) are, in the opinion of the Commission in Court 11 Session, substantially the same. 12 13 (2) Delete section 71(4) and insert: 14 15 (4) The rules, as defined in section 52A(1), of the State 16 organisation and a counterpart federal body described 17 in section 52A(2) are taken to be the same if -- 18 (a) the rules prescribe the offices existing in the 19 body; and 20 (b) for every office in the organisation there is a 21 corresponding office in the body. 22 23 (3) In section 71(5)(a) delete "Federal body, holds the 24 corresponding office in that body; and" and insert: 25 26 federal body, holds an office described in subsection (5A) in 27 that body; and 28 page 40 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 32 1 (4) After section 71(5) insert: 2 3 (5A) The office referred to in subsection (5)(a) is -- 4 (a) in the case of a counterpart federal body 5 referred to in section 52A(2) -- the 6 corresponding office in the body; 7 (b) in the case of a counterpart federal body 8 referred to in section 52A(3) -- an office that is 9 specified in the rules of the State organisation 10 for the purposes of this subsection and in 11 relation to which the members of the State 12 organisation are, under the rules of the 13 counterpart federal body, entitled to -- 14 (i) nominate a person to be the office 15 holder; and 16 (ii) vote for a person to be the office holder. 17 18 (5) In section 71(6): 19 (a) after "State organisation" insert: 20 21 referred to in section 52A(2) or (3) 22 23 (b) delete "organisation of which the State organisation's 24 counterpart Federal body is the Branch," and insert: 25 26 branch or organisation that is the State organisation's 27 counterpart federal body, 28 29 Note: The heading to amended section 71 is to read: 30 Rules of State and federal organisations as to membership and 31 offices page 41 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 33 1 33. Section 71A amended 2 (1) Delete section 71A(1). 3 (2) After section 71A(2)(b) insert: 4 5 (ba) a rule described in section 71(5)(a) relating to 6 an office described in section 71(5A)(b); and 7 (bb) a rule described in section 71(5A)(b); and 8 9 Note: The heading to amended section 71A is to read: 10 State organisation may adopt rules of federal organisation 11 34. Part IIAA inserted 12 After section 80 insert: 13 14 Part IIAA -- Employers declared not to be 15 national system employers 16 Division 1 -- Declarations 17 80A. Employers declared not to be national system 18 employers 19 (1) This section applies to an employer who, under the FW 20 Act section 14(2), may be declared by or under a law 21 of the State not to be a national system employer. 22 (2) The regulations may -- 23 (a) declare the employer not to be a national 24 system employer for the purposes of the FW 25 Act; and 26 (b) fix a day (the relevant day) for the purposes of 27 that declaration. page 42 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 34 1 Division 2 -- Change from federal to State system 2 80B. Terms used 3 In this Division -- 4 declared employee means a person employed by a 5 declared employer; 6 declared employer means an employer declared not to 7 be a national system employer under section 80A(2)(a); 8 federal award means -- 9 (a) a modern award under the FW Act; or 10 (b) an award under the repealed Workplace Act 11 continued in existence under the FW 12 (Transitional) Act; 13 federal industrial authority means -- 14 (a) the Australian Industrial Relations Commission 15 under the repealed Workplace Act; or 16 (b) the FW Commission; 17 federal industrial instrument means a fair work 18 instrument under the FW Act; 19 national fair work legislation means -- 20 (a) the FW Act; or 21 (b) the FW (Transitional) Act; 22 new State instrument has the meaning given in 23 section 80BB(2); 24 old federal instrument has the meaning given in 25 section 80BB(1)(b); 26 relevant day has the meaning given in 27 section 80A(2)(b); 28 repealed Workplace Act means the Workplace 29 Relations Act 1996 (Commonwealth); 30 terms includes conditions, restrictions and other 31 provisions. page 43 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 34 1 80BA. Operation of awards, industrial agreements or 2 orders 3 (1) The regulations may provide that, on and from the 4 relevant day, an award, industrial agreement or order 5 specified in the regulations applies to the employees of 6 a declared employer specified in the regulations. 7 (2) If regulations are made under subsection (1), on and 8 from the relevant day the award, industrial agreement 9 or order applies to each of the following -- 10 (a) the declared employer; 11 (b) the declared employees of the declared 12 employer; 13 (c) an organisation that is a party to the award or 14 industrial agreement or that is bound by the 15 order. 16 80BB. New State instruments 17 (1) This section applies -- 18 (a) to the extent section 80BA does not provide for 19 a declared employee of a declared employer; 20 and 21 (b) if, immediately before the relevant day, a 22 federal industrial instrument (the old federal 23 instrument) applies to, or purports to apply to, 24 the declared employee. 25 (2) On the relevant day, an industrial agreement (the new 26 State instrument) applies to the declared employer and 27 declared employees. 28 (3) The new State instrument is taken -- 29 (a) to have been registered under this Act on the 30 relevant day; and page 44 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 34 1 (b) except as provided in this section or 2 section 80BC, to have the same terms as the old 3 federal instrument including those terms as 4 added to or modified by any of the following -- 5 (i) terms of a federal award incorporated by 6 the old federal instrument; 7 (ii) orders of a federal industrial authority; 8 (iii) another instrument under the national 9 fair work legislation or the repealed 10 Workplace Act; 11 and 12 (c) to have a nominal expiry date that is the earlier 13 of the following -- 14 (i) a day that is 2 years after the relevant 15 day; 16 (ii) the day that, immediately before the 17 relevant day, was the nominal expiry 18 day of the old federal instrument. 19 (4) This Act applies in relation to the new State instrument 20 subject to any modifications or exclusions prescribed 21 by regulations for this subsection. 22 (5) The new State instrument applies except as provided in 23 the MCE Act. 24 80BC. Amendment of new State instruments 25 (1) A declared employer, a declared employee or an 26 organisation may apply to the Commission to amend a 27 new State instrument. 28 (2) On the application, the Commission may make the 29 amendment if it is satisfied it is fair and reasonable to 30 do so in the circumstances. page 45 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 34 1 (3) The amendment may be provided to take effect -- 2 (a) immediately; or 3 (b) progressively, in stages specified in the 4 amendment. 5 80BD. Ability to carry over matters 6 The Commission may, in connection with the operation 7 of this Part, or any matter arising directly or indirectly 8 out of the operation of this Part -- 9 (a) accept, recognise, adopt or rely on any step 10 taken under, or for, the national fair work 11 legislation; and 12 (b) accept or rely on anything (including in the 13 nature of evidence presented for the purpose of 14 any proceedings) that has been presented, filed 15 or provided under, or for, the national fair work 16 legislation; and 17 (c) give effect in any other way to any other thing 18 done under, or for, the national fair work 19 legislation. 20 80BE. References in new State instruments to federal 21 industrial authority and General Manager 22 (1) In this section -- 23 General Manager means the General Manager under 24 the FW Act. 25 (2) On and from the relevant day, a term of a new State 26 instrument expressed to confer a power or function on 27 a federal industrial authority has effect as if it conferred 28 the power or function on the Commission. 29 (3) On and from the relevant day, a term of a new State 30 instrument expressed to confer a power or function on page 46 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 34 1 the General Manager has effect as if it conferred the 2 power or function on the Registrar. 3 80BF. References in new State instruments to provisions of 4 Commonwealth laws 5 (1) In this section -- 6 corresponding provision of this Act, to a provision of 7 the FW Act, means -- 8 (a) if paragraph (b) does not apply -- a provision 9 of this Act that is of similar effect to the 10 provision of the FW Act; or 11 (b) a provision of this Act declared by regulations 12 to be a corresponding provision. 13 (2) On and from the relevant day, a term of a new State 14 instrument expressed to refer to a provision of the FW 15 Act is taken to refer to the corresponding provision of 16 this Act. 17 80BG. References in new State instruments to federal 18 organisations 19 (1) In this section -- 20 federal counterpart has the meaning given in the FW 21 (Registered Organisations) Act section 9A. 22 (2) On and from the relevant day, a term of a new State 23 instrument expressed to refer to a federal organisation 24 is taken to refer to an organisation under this Act of 25 which the federal organisation is a federal counterpart. 26 (3) If the federal organisation is not a federal counterpart 27 of an organisation under this Act, the federal 28 organisation is taken to be an organisation under this 29 Act representing the declared employees of the relevant 30 declared employer in proceedings or other matters 31 arising under this Act. page 47 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 34 1 (4) Subsection (3) ceases to apply to the federal 2 organisation when the new State instrument ceases to 3 apply to the relevant declared employer and declared 4 employees. 5 80BH. Named parties to new State instruments 6 (1) An organisation of employees, or an industrial 7 association of employees registered under section 67, 8 may apply to the Commission to make an order naming 9 the organisation or association as a party to a new State 10 instrument. 11 (2) On the application, the Commission must grant the 12 order if, in the opinion of the Commission, the 13 instrument applies to an employee who is eligible to be 14 a member of the organisation or industrial association. 15 80BI. Employment under old federal instrument 16 (1) Subsection (2) applies in relation to deciding the 17 entitlements of a declared employee under a new State 18 instrument. 19 (2) Employment of the declared employee with a declared 20 employer before the relevant day that counted under 21 the old federal instrument also counts as employment 22 of the declared employee with the declared employer 23 under the new State instrument. 24 (3) If, before the relevant day, the declared employee has 25 already had the benefit of an entitlement determined by 26 reference to a period of service, the period of service 27 cannot be counted again under subsection (2) for 28 calculating the declared employee's entitlements of 29 that type under the new State instrument. page 48 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 34 1 80BJ. Leave accrued immediately before relevant day 2 (1) This section applies to any paid or unpaid leave 3 accrued under an old federal instrument, the national 4 fair work legislation or a law of this State. 5 (2) Leave accrued immediately before the relevant day by 6 a declared employee to whom a new State instrument 7 applies is taken to have accrued under the new State 8 instrument. 9 80BK. Leave taken under old federal instrument 10 (1) A declared employee who was, immediately before the 11 relevant day, taking a period of leave under the old 12 federal instrument or under the FW Act is entitled to 13 continue on that leave under the new State instrument 14 or a law of this State for the remainder of the period. 15 (2) A declared employee who has, before the relevant day, 16 taken a step under the old federal instrument or the FW 17 Act that the employee is required to take so the 18 employee can, on and from the relevant day, take a 19 period of leave under the old federal instrument or the 20 FW Act, is taken to have taken the step under the new 21 State instrument or a law of this State. 22 (3) The regulations may deal with other matters relating to 23 how a new State instrument applies to leave that, 24 immediately before the relevant day, is being, or is to 25 be, taken by a declared employee under the old federal 26 instrument or the FW Act. 27 page 49 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 35 1 35. Section 80E amended 2 In section 80E(1) delete "Subject to Division 3 of Part II" and 3 insert: 4 5 Except as provided in Part II Divisions 3, 3AA and 3B 6 7 36. Section 80I amended 8 In section 80I(1)(c) delete "subsection (1)(b)" and insert: 9 10 subsection (1) 11 12 37. Part III Division 1 heading inserted 13 At the beginning of Part III insert: 14 15 Division 1 -- Industrial magistrate's court 16 17 38. Section 81G inserted 18 After section 81F insert: 19 20 81G. Industrial inspectors may assist industrial 21 magistrate's court 22 (1) An industrial inspector may, with the leave of the 23 industrial magistrate's court, assist the court. 24 (2) The industrial magistrate's court may grant the leave in 25 respect of -- 26 (a) proceedings that, in the opinion of the court, 27 have significant implications for the page 50 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 39 1 administration of this Act, the LSL Act or the 2 MCE Act; or 3 (b) proceedings that involve special circumstances 4 that satisfy the court that it would be in the 5 public interest for the industrial inspector to 6 assist the court. 7 8 39. Part III Division 2 heading inserted 9 Before section 82 insert: 10 11 Division 2 -- Enforcement generally 12 13 40. Section 83 amended 14 (1) Before section 83(1) insert: 15 16 (1A) In this section -- 17 contravene, in relation to an entitlement provision, 18 includes fail to comply with that provision. 19 20 (2) In section 83(1): 21 (a) delete "where a person contravenes or fails to comply 22 with a provision of an instrument to which this section 23 applies" and insert: 24 25 if a person contravenes an entitlement provision, 26 page 51 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 40 1 (b) delete paragraph (e) and insert: 2 3 (e) a person -- 4 (i) who is a party to the award, agreement 5 or order or to whom the award, 6 agreement or order applies; or 7 (ii) to whom the entitlement provision 8 applies under the LSL Act or MCE Act; 9 10 (3) Delete section 83(2) and insert: 11 12 (2) A person who is involved in a contravention of an 13 entitlement provision is taken to contravene that 14 provision. 15 (2A) A person is involved in a contravention of an 16 entitlement provision if, and only if, the person -- 17 (a) aids, abets, counsels or procures the 18 contravention; or 19 (b) induces the contravention, whether by threats or 20 promises or otherwise; or 21 (c) is in any way, by act or omission, directly or 22 indirectly, knowingly concerned in or party to 23 the contravention; or 24 (d) conspires with others to effect the 25 contravention. 26 27 (4) In section 83(3) delete "instrument to which this section applies 28 shall" and insert: 29 30 entitlement provision must 31 page 52 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 40 1 (5) In section 83(4): 2 (a) in paragraph (a) delete "or failure to comply"; 3 (b) delete paragraph (a)(ii) and insert: 4 5 (ii) impose a pecuniary penalty in 6 accordance with subsection (4A); 7 8 (6) After section 83(4) insert: 9 10 (4A) The pecuniary penalty may be an amount not 11 exceeding -- 12 (a) in the case of a body corporate -- 13 (i) if the contravention is a serious 14 contravention -- $600 000; or 15 (ii) if the contravention is not a serious 16 contravention -- $60 000; 17 and 18 (b) in the case of an individual -- 19 (i) if the contravention is a serious 20 contravention -- $120 000; or 21 (ii) if the contravention is not a serious 22 contravention -- $12 000. 23 24 (7) In section 83(5): 25 (a) delete "or failure to comply with a provision of an 26 instrument to which this section applies" and insert: 27 28 of an entitlement provision 29 page 53 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 41 1 (b) delete "or failure to comply with" (second occurrence) 2 and insert: 3 4 of 5 6 (8) In section 83(8) delete the Penalty and insert: 7 8 Penalty for this subsection: 9 (a) a fine of $12 000; 10 (b) a daily penalty of a fine of $1 000 for each 11 day or part of a day during which the offence 12 continues. 13 14 (9) After section 83(8) insert: 15 16 (9) A contravention of an entitlement provision is not an 17 offence and section 83E(8) applies to the contravention 18 as if it were a contravention of a civil penalty 19 provision. 20 21 41. Section 83A amended 22 (1) In section 83A(1): 23 (a) delete "an employer" and insert: 24 25 a person 26 27 (b) delete "of that employer has not been paid by that 28 employer" and insert: 29 30 has not been paid 31 page 54 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 42 1 (c) delete "instrument to which that section applies" and 2 insert: 3 4 entitlement provision, 5 6 (d) delete "employer to" and insert: 7 8 person to 9 10 (2) In section 83A(2): 11 (a) in paragraph (b) delete "employer" and insert: 12 13 person 14 15 (b) in paragraph (b)(iii) delete "employer's" and insert: 16 17 person's 18 19 42. Section 83B amended 20 (1) In section 83B(3) and (4) after "contravention" (each 21 occurrence) insert: 22 23 of 24 25 (2) In section 83B(5): 26 (a) in paragraph (a) delete "$5 000; and" and insert: 27 28 $12 000; and 29 page 55 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 43 1 (b) in paragraph (b) after "contravention" insert: 2 3 of 4 5 (3) In section 83B(10) delete the Penalty and insert: 6 7 Penalty for this subsection: 8 (a) a fine of $12 000; 9 (b) a daily penalty of a fine of $1 000 for each 10 day or part of a day during which the offence 11 continues. 12 13 43. Section 83C amended 14 Delete section 83C(2) and insert: 15 16 (2) In proceedings under section 83 or 83B costs must not 17 be given to any party to the proceedings for the 18 services of a legal practitioner or agent of that party 19 unless -- 20 (a) the industrial magistrate's court finds that the 21 other party has committed a serious 22 contravention; or 23 (b) in the opinion of the industrial magistrate's 24 court, the proceedings have been frivolously or 25 vexatiously instituted or defended, as the case 26 requires, by the other party. 27 page 56 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 44 1 44. Section 83E amended 2 (1) Delete section 83E(1) and insert: 3 4 (1) If a person contravenes a civil penalty provision, the 5 industrial magistrate's court may, on an application to 6 the court, make an order imposing a pecuniary penalty 7 on the person, not exceeding -- 8 (a) in the case of a body corporate -- 9 (i) if the contravention is a serious 10 contravention -- $600 000; or 11 (ii) if the contravention is not a serious 12 contravention -- $60 000; 13 (b) in the case of an individual -- 14 (i) if the contravention is a serious 15 contravention -- $120 000; or 16 (ii) if the contravention is not a serious 17 contravention -- $12 000. 18 (1A) A person who is involved in a contravention of a civil 19 penalty provision is taken to contravene that provision. 20 (1B) A person is involved in a contravention of a civil 21 penalty provision if, and only if, the person -- 22 (a) aids, abets, counsels or procures the 23 contravention; or 24 (b) induces the contravention, whether by threats or 25 promises or otherwise; or 26 (c) is in any way, by act or omission, directly or 27 indirectly, knowingly concerned in or party to 28 the contravention; or 29 (d) conspires with others to effect the 30 contravention. 31 page 57 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 44 1 (2) In section 83E(3) delete "section 49D(2) or (3)," and insert: 2 3 section 49D(1) or (8) or section 49DA(1) or (3), or the LSL Act 4 section 26(1) or (2), 5 6 (3) In section 83E(6a) delete "section 8(3), 44(3) or 45(1) of the 7 MCE Act or of section 26(2) or 26A(1) of the Long Service 8 Leave Act 1958." and insert: 9 10 the MCE Act section 8(3) or the LSL Act section 7I(2), 26(1) 11 or (2) or 26A(1). 12 13 (4) In section 83E(9) delete the Penalty and insert: 14 15 Penalty for this subsection: 16 (a) a fine of $12 000; 17 (b) a daily penalty of a fine of $1 000 for each 18 day or part of a day during which the offence 19 continues. 20 21 (5) Delete section 83E(12) and insert: 22 23 (12) In proceedings under this section costs must not be 24 given to any party to the proceedings for the services of 25 a legal practitioner or agent of that party unless -- 26 (a) the industrial magistrate's court finds that the 27 other party has committed a serious 28 contravention; or page 58 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 45 1 (b) in the opinion of the industrial magistrate's 2 court, the proceedings have been frivolously or 3 vexatiously instituted or defended, as the case 4 requires, by the other party. 5 6 45. Sections 83EA and 83EB inserted 7 After section 83E insert: 8 9 83EA. Serious contravention of entitlement provision or 10 civil penalty provision 11 (1) In this section -- 12 contravention means a contravention of or failure to 13 comply with -- 14 (a) a civil penalty provision; or 15 (b) an entitlement provision. 16 (2) A contravention by a person is a serious contravention 17 if -- 18 (a) the person knowingly commits the 19 contravention; and 20 (b) the person's conduct constituting the 21 contravention is part of a systematic pattern of 22 conduct relating to 1 or more other persons. 23 (3) For the purposes of subsection (2), a body corporate 24 knowingly commits a contravention if the body 25 corporate expressly, tacitly or impliedly authorises the 26 contravention. page 59 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 45 1 (4) In determining whether the person's conduct 2 constituting the contravention was part of a systematic 3 pattern of conduct, the industrial magistrate's court 4 may have regard to all or any of the following -- 5 (a) the number of contraventions (the relevant 6 contraventions) committed by the person; 7 (b) the period over which the relevant 8 contraventions were committed; 9 (c) the number of other persons affected by the 10 relevant contraventions; 11 (d) the person's response, or failure to respond, to 12 any complaints made about the relevant 13 contraventions; 14 (e) unless the provision contravened is a 15 record-related civil penalty provision -- 16 whether the person also failed to comply with a 17 record-related civil penalty provision relating to 18 the conduct constituting the relevant 19 contraventions. 20 (5) Subsection (4) does not limit the matters to which the 21 industrial magistrate's court may have regard. 22 (6) A person (the involved person) who is involved in a 23 contravention by another person (the principal) 24 commits a serious contravention only if -- 25 (a) the principal's contravention is a serious 26 contravention; and 27 (b) the involved person knows that the principal's 28 contravention is a serious contravention. 29 (7) Subsection (8) applies in proceedings for an order in 30 relation to a serious contravention. page 60 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 45 1 (8) The industrial magistrate's court may, instead of 2 imposing a pecuniary penalty on a person for the 3 serious contravention, impose a pecuniary penalty on 4 the person for the contravention if the court -- 5 (a) is not satisfied that the person has committed a 6 serious contravention; but 7 (b) is satisfied that the person has committed a 8 contravention. 9 83EB. Employer to have burden of disproving certain 10 allegations by applicant under s. 83 11 (1) In proceedings under section 83, the employer has the 12 burden of disproving an allegation by an applicant in 13 relation to a matter if the employer -- 14 (a) was required under this Act or the LSL Act 15 to -- 16 (i) make or keep a record in relation to the 17 matter; or 18 (ii) give a pay slip in relation to the matter; 19 or 20 (iii) make available for inspection a record 21 in relation to the matter; 22 and 23 (b) failed to comply with the requirement. 24 (2) Subsection (1) does not apply if the employer provides 25 a reasonable excuse for the failure to comply with the 26 requirement. 27 page 61 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 46 1 46. Section 84 amended 2 Delete section 84(5) and insert: 3 4 (5) In proceedings under this section costs must not be 5 given to any party to the proceedings for the services of 6 a legal practitioner or agent of that party except -- 7 (a) in respect of an appeal from proceedings under 8 section 83 or 83E -- to the party that was the 9 applicant in those proceedings, if the Full 10 Bench finds, or upholds a finding, that the other 11 party has committed a serious contravention; or 12 (b) if, in the opinion of the Full Bench, the 13 proceedings have been frivolously or 14 vexatiously instituted or defended, as the case 15 requires, by the other party. 16 17 47. Section 84AA inserted 18 After section 84 insert: 19 20 84AA. Illegal contracts of employment may be treated as 21 valid 22 (1) In this section -- 23 contravention means a contravention of or failure to 24 comply with -- 25 (a) a civil penalty provision; or 26 (b) an entitlement provision. page 62 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 48 1 (2) If in any proceedings under section 83 or 83E the 2 industrial magistrate's court finds that an employee 3 was engaged under an illegal contract at the time a 4 contravention occurred, the court may nonetheless deal 5 with the matter as if the contract was valid. 6 7 48. Section 84A amended 8 In section 84A(5)(a)(ii) delete "$2 000 in the case of an 9 employer, organisation, or association and $500 in any other 10 case; or" and insert: 11 12 $10 000; or 13 14 49. Part III Divisions 3 to 5 inserted 15 At the end of Part III insert: 16 17 Division 3 -- Civil infringement notices 18 84B. Terms used 19 In this Division -- 20 civil infringement notice has the meaning given in 21 section 84C(2); 22 civil infringement notice penalty has the meaning 23 given in section 84C(2); 24 nominated person means the person to whom a 25 recipient can apply -- 26 (a) to have a civil infringement notice withdrawn; 27 or 28 (b) to be allowed more time to pay a civil 29 infringement notice penalty; page 63 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 49 1 recipient means a person to whom a civil infringement 2 notice is given under section 84C(2). 3 84C. Giving civil infringement notice 4 (1) This section applies if an industrial inspector 5 reasonably believes that a person has committed 1 or 6 more contraventions of a record-related civil penalty 7 provision other than section 49D(8) or 49DA(3). 8 (2) The industrial inspector may give to the person a notice 9 (a civil infringement notice) relating to the alleged 10 contravention or contraventions inviting the person, as 11 an alternative to proceedings under section 83E, to pay 12 to the Treasurer a penalty specified in the notice (a civil 13 infringement notice penalty). 14 (3) The civil infringement notice must be given within 15 12 months after the day on which the contravention or 16 contraventions are alleged to have taken place. 17 (4) This section does not authorise the giving of 2 or more 18 civil infringement notices to a person in relation to 19 contraventions of a record-related civil penalty 20 provision that allegedly -- 21 (a) took place on the same day; and 22 (b) relate to the same action or conduct by the 23 person. 24 84D. Content of civil infringement notice 25 (1) A civil infringement notice must -- 26 (a) specify the recipient's full name; and 27 (b) specify the recipient's address; and page 64 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 49 1 (c) specify the name of the industrial inspector who 2 issued it; and 3 (d) specify its date of issue; and 4 (e) set out brief details of the alleged contravention 5 or contraventions, including the record-related 6 civil penalty provision that has been allegedly 7 contravened; and 8 (f) specify the civil infringement notice penalty; 9 and 10 (g) state how the civil infringement notice penalty 11 can be paid; and 12 (h) specify the maximum penalty that the industrial 13 magistrate's court could impose on the 14 recipient for the alleged contravention or 15 contraventions; and 16 (i) identify the nominated person; and 17 (j) explain how the recipient can apply to the 18 nominated person -- 19 (i) to have the civil infringement notice 20 withdrawn; or 21 (ii) to be allowed more time to pay the civil 22 infringement notice penalty; 23 and 24 (k) state the effect of the recipient paying the civil 25 infringement notice penalty within the required 26 time, as explained in section 84I; and 27 (l) be signed by the industrial inspector who issued 28 it. page 65 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 49 1 (2) The civil infringement notice may contain any other 2 information that the industrial inspector who issues it 3 thinks necessary. 4 84E. Amount of civil infringement notice penalty 5 A civil infringement notice penalty must not exceed 6 one-tenth of the statutory penalty that the industrial 7 magistrate's court could have ordered the recipient to 8 pay under section 83E(1) for contravening the 9 record-related civil penalty provision specified in the 10 civil infringement notice. 11 84F. Time for payment of civil infringement notice 12 penalty 13 (1) A civil infringement notice penalty must be paid within 14 28 days after the day on which the notice is served on 15 the recipient unless subsection (2), (3) or (4) applies. 16 (2) If the recipient applies for a further period of time in 17 which to pay the civil infringement notice penalty and 18 the application is granted, the penalty must be paid 19 within the further period allowed. 20 (3) If the recipient applies for a further period of time in 21 which to pay the civil infringement notice penalty and 22 the application is refused, the penalty must be paid 23 within 7 days after the notice of the refusal is served on 24 the recipient. 25 (4) If the recipient applies for the notice to be withdrawn 26 and the application is refused, the civil infringement 27 notice penalty must be paid within 28 days after the 28 notice of the refusal is served on the recipient. page 66 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 49 1 84G. Extension of time to pay civil infringement notice 2 penalty 3 (1) Before the end of 28 days after receiving a civil 4 infringement notice, the recipient may apply, in 5 writing, to the nominated person for a further period of 6 up to 28 days in which to pay the civil infringement 7 notice penalty. 8 (2) Within 14 days after receiving the application, the 9 nominated person must -- 10 (a) grant or refuse a further period not longer than 11 the period sought (but less than 28 days); and 12 (b) notify the recipient in writing of the decision 13 and, if the decision is a refusal, the reasons for 14 the decision. 15 84H. Withdrawal of civil infringement notice 16 (1) Before the end of 28 days after receiving the civil 17 infringement notice, the recipient may apply, in 18 writing, to the nominated person for the civil 19 infringement notice to be withdrawn. 20 (2) Within 14 days after receiving the application, the 21 nominated person must -- 22 (a) withdraw or refuse to withdraw the civil 23 infringement notice; and 24 (b) notify the recipient in writing of the decision 25 and, if the decision is a refusal, the reasons for 26 the decision. 27 (3) If the nominated person has not approved the 28 withdrawal of the civil infringement notice within the 29 period allowed by subsection (2), the application is 30 taken to have been refused. page 67 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 49 1 (4) The inspector who issued it may also withdraw the 2 civil infringement notice at any time by serving a 3 notice of withdrawal on the recipient. 4 (5) A notice of the withdrawal of a civil infringement 5 notice under subsection (4) must -- 6 (a) specify the recipient's full name; and 7 (b) specify the recipient's address; and 8 (c) specify its date of issue; and 9 (d) state that the civil infringement notice is 10 withdrawn. 11 84I. Effect of payment of civil infringement notice 12 penalty 13 If a civil infringement notice is not withdrawn and the 14 recipient pays the civil infringement notice penalty -- 15 (a) any liability of the recipient for the alleged 16 contravention is discharged; and 17 (b) no proceedings may be brought against the 18 recipient, by any person, for the alleged 19 contravention; and 20 (c) the recipient is not taken to have admitted to 21 having contravened the record-related civil 22 penalty provision; and 23 (d) the recipient is not taken to have committed a 24 contravention of the provision in relation to 25 which the civil infringement notice was issued. 26 84J. Refund of civil infringement notice penalty 27 If a civil infringement notice is withdrawn after the 28 civil infringement notice penalty has been paid, the 29 Treasurer must refund the amount of the penalty to the 30 person who paid it. page 68 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 49 1 Division 4 -- Enforceable undertakings 2 84K. Terms used 3 In this Division -- 4 contravention means a contravention of or failure to 5 comply with -- 6 (a) a civil penalty provision; or 7 (b) an entitlement provision. 8 enforceable undertaking has the meaning given in 9 section 84M(1). 10 84L. Application of Division 11 This Division applies if an industrial inspector 12 reasonably believes that a person has committed a 13 contravention. 14 84M. Enforceable undertaking 15 (1) Except as provided by subsection (4), an industrial 16 inspector may accept a written undertaking (an 17 enforceable undertaking) given by a person in relation 18 to a contravention. 19 (2) The person may withdraw or vary the enforceable 20 undertaking at any time, but only with the industrial 21 inspector's consent. 22 (3) An industrial inspector must not apply for an order 23 under section 83 or 83E in relation to the contravention 24 unless the enforceable undertaking has been -- 25 (a) withdrawn; or 26 (b) cancelled under section 84N(2)(c). 27 (4) The industrial inspector must not accept an enforceable 28 undertaking in relation to a contravention if the person page 69 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 49 1 has been given a compliance notice as defined in 2 section 84Q in relation to the contravention. 3 84N. Enforcement of enforceable undertakings 4 (1) If an industrial inspector considers that a person who 5 gave an enforceable undertaking has contravened any 6 of its terms, the industrial inspector may apply to the 7 industrial magistrate's court for an order under 8 subsection (2). 9 (2) If the industrial magistrate's court is satisfied that the 10 person has contravened a term of the enforceable 11 undertaking, the court may make 1 or more of the 12 following orders -- 13 (a) an order directing the person to comply with 14 the term of the undertaking; 15 (b) an order awarding compensation for loss that a 16 person has suffered because of the 17 contravention; 18 (c) an order varying or cancelling the enforceable 19 undertaking; 20 (d) any other order that the court considers 21 appropriate. 22 Division 5 -- Compliance notices 23 84O. Terms used 24 In this Division -- 25 compliance notice has the meaning given in 26 section 84Q; 27 contravention means a contravention of or failure to 28 comply with an entitlement provision. page 70 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 49 1 84P. Application of Division 2 This Division applies if an industrial inspector (the 3 industrial inspector) reasonably believes that a person 4 has contravened an entitlement provision. 5 84Q. Giving compliance notice 6 (1) Except as provided in section 84R, the industrial 7 inspector may give the person a notice (a compliance 8 notice) requiring the person to do either or both of the 9 following within a reasonable time specified in the 10 notice -- 11 (a) take specified action to remedy the direct 12 effects of the contravention; 13 (b) produce reasonable evidence of the person's 14 compliance with the notice. 15 (2) The compliance notice must also set out all of the 16 following -- 17 (a) the name of the person to whom the notice is 18 given; 19 (b) the name of the industrial inspector who gave 20 the notice; 21 (c) brief details of the contravention; 22 (d) an explanation that a failure to comply with the 23 notice may contravene a civil penalty 24 provision; 25 (e) an explanation that the person may apply to the 26 industrial magistrate's court for a review of the 27 notice on either or both of the following 28 grounds -- 29 (i) the person has not committed a 30 contravention set out in the notice; 31 (ii) the notice does not comply with 32 subsection (1) or this subsection; page 71 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 49 1 (f) any other matters prescribed by the regulations. 2 84R. Relationship with enforceable undertakings 3 The industrial inspector must not give a person a 4 compliance notice in relation to a contravention if -- 5 (a) the person has given an enforceable 6 undertaking as defined in section 84M(1) in 7 relation to the contravention; and 8 (b) the undertaking has not been withdrawn under 9 section 84M(2) or cancelled under 10 section 84N(2)(c). 11 84S. Relationship with proceedings under s. 83 12 (1) The industrial inspector must not apply for an order 13 under section 83 in relation to a contravention by a 14 person if -- 15 (a) the inspector has given the person a compliance 16 notice in relation to the contravention; and 17 (b) the compliance notice has not been withdrawn; 18 and 19 (c) either of the following applies -- 20 (i) the person has complied with the notice; 21 (ii) the person has made an application 22 under section 84U(1) in relation to the 23 compliance notice and that application 24 has not been completely dealt with. 25 (2) A person who complies with a compliance notice is not 26 taken to have -- 27 (a) admitted to contravening an entitlement 28 provision to which the compliance notice 29 relates; or page 72 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 49 1 (b) been found to have contravened an entitlement 2 provision to which the compliance notice 3 relates. 4 84T. Person must comply with compliance notice 5 (1) A person must comply with a compliance notice. 6 (2) A contravention of subsection (1) is not an offence but 7 the subsection is a civil penalty provision for the 8 purposes of section 83E, except that the pecuniary 9 penalty cannot exceed -- 10 (a) in the case of a body corporate -- $30 000; 11 (b) in the case of an individual -- $6 000. 12 (3) Subsection (1) does not apply if the person has a 13 reasonable excuse. 14 84U. Review of compliance notices 15 (1) A person who has been given a compliance notice may 16 apply to the industrial magistrate's court for a review 17 of the notice on either or both of the following 18 grounds -- 19 (a) the person has not committed a contravention 20 set out in the notice; 21 (b) the notice does not comply with section 84Q. 22 (2) At any time after the application has been made, the 23 industrial magistrate's court may stay the operation of 24 the notice on the terms and conditions that the court 25 considers appropriate. 26 (3) In an application made on the ground referred to in 27 subsection (1)(a), the person making the application 28 has the burden of proving that the person has not 29 committed the contravention. page 73 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 50 1 (4) The industrial magistrate's court may confirm, cancel 2 or vary the notice after reviewing it. 3 84V. Withdrawal of compliance notice 4 (1) The industrial inspector may withdraw the compliance 5 notice at any time by serving a notice of withdrawal on 6 the person (the recipient) who has been given the 7 compliance notice. 8 (2) The notice of withdrawal must -- 9 (a) specify the full name of the recipient; and 10 (b) specify the recipient's address; and 11 (c) specify its date of issue; and 12 (d) state that the compliance notice is withdrawn. 13 14 50. Section 86 amended 15 Delete section 86(2). 16 51. Section 91A inserted 17 After section 91 insert: 18 19 91A. Court's power to order costs and expenses 20 (1) Except as provided in subsection (2), in the exercise of 21 its jurisdiction under this Act the Court may make such 22 orders as it thinks just as to the costs and expenses 23 (including the expenses of witnesses) of proceedings 24 before the Court, including proceedings dismissed for 25 want of jurisdiction. page 74 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 52 1 (2) Costs for the services of any legal practitioner or agent 2 of any party to the proceedings must not be given to 3 that party except as follows -- 4 (a) costs can be given to that party if, in the 5 opinion of the Court, the proceedings have been 6 frivolously or vexatiously instituted or 7 defended, as the case requires, by the other 8 party; 9 (b) in respect of an appeal from proceedings under 10 section 83 or 83E -- costs can be given to the 11 party that was the applicant in those 12 proceedings, if the Court finds, or upholds a 13 finding, that the other party has committed a 14 serious contravention. 15 16 52. Section 93 amended 17 (1) In section 93(6) delete "Subject to subsection (6a), the" and 18 insert: 19 20 The 21 22 (2) Delete section 93(6a). 23 53. Section 96 amended 24 In section 96(2)(a) delete "section 29(1)(b);" and insert: 25 26 section 29(1)(c) or (d); 27 page 75 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 54 1 54. Part VIB inserted 2 After section 96L insert: 3 4 Part VIB -- Protection of employee rights 5 Division 1 -- Preliminary 6 97. Terms used 7 In this Part -- 8 damaging action, against an employee, means -- 9 (a) in the case of an employee -- 10 (i) dismissing the employee; or 11 (ii) altering the employee's position to the 12 employee's disadvantage; or 13 (iii) refusing to promote or transfer the 14 employee; or 15 (iv) otherwise injuring the employee in 16 relation to the employee's employment 17 with the employer or another person; or 18 (v) threatening to do anything referred to in 19 subparagraphs (i) to (iv); 20 and 21 (b) in the case of a prospective employee -- 22 (i) refusing to employ the prospective 23 employee; or 24 (ii) discriminating against the prospective 25 employee in the terms or conditions on 26 which the employer offers to employ the 27 prospective employee; or 28 (iii) threatening to do anything referred to in 29 subparagraphs (i) and (ii); page 76 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 54 1 employee includes a prospective employee; 2 employer includes a former employer or prospective 3 employer. 4 Division 2 -- Damaging action 5 97A. Damaging action because of inquiry or complaint 6 (1) An employer must not take damaging action against an 7 employee for the reason, or for reasons that include, 8 that the employee is able to make an 9 employment-related inquiry or complaint to the 10 employer or another person. 11 (2) In any proceedings for a contravention of 12 subsection (1), if it is proved that an employer took the 13 damaging action against the employee, it is for the 14 employer to prove that the employer did not do so 15 because the employee made the inquiry or complaint or 16 proposed to make the inquiry or complaint. 17 (3) A contravention of subsection (1) is not an offence but 18 that subsection is a civil penalty provision for the 19 purposes of section 83E. 20 97B. Court orders to employers 21 (1) This section applies if the industrial magistrate's court 22 determines that an employer has contravened 23 section 97A(1) in respect of an employee. 24 (2) Except as provided in subsection (5), the industrial 25 magistrate's court may order the employer to do 1 or 26 more of the following -- 27 (a) if the employee was dismissed from 28 employment -- to reinstate the employee; 29 (b) if the employee was refused employment -- to 30 employ the employee; page 77 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 54 1 (c) to pay to the employee compensation for any 2 loss or injury suffered as a result of the 3 contravention. 4 (3) The employer must comply with the order. 5 Penalty for this subsection: 6 (a) a fine of $12 000; 7 (b) a daily penalty of a fine of $1 000 for each 8 day or part of a day during which the offence 9 continues. 10 (4) The industrial magistrate's court may make the order in 11 addition to imposing a penalty under section 83E. 12 (5) The industrial magistrate's court must not make the 13 order if the employee has applied under another 14 provision of this Act or any other written law for relief 15 in relation to the same damaging action unless the 16 proceedings for that relief have been withdrawn or 17 failed for want of jurisdiction. 18 (6) The employee is not entitled to compensation for the 19 same damaging action under both subsection (2)(c) and 20 another provision of this Act or any other written law. 21 97C. Court orders to third parties 22 (1) In this section -- 23 third party, in relation to proceedings for a 24 contravention of section 97A(1), means a person, other 25 than the employer, on whom a copy of the application 26 under section 83E(1) has been served. 27 (2) This section applies if the industrial magistrate's court 28 determines that an employer has contravened 29 section 97A(1) in respect of an employee. page 78 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 54 1 (3) The industrial magistrate's court may order a third 2 party -- 3 (a) to refrain from taking any damaging action 4 against the employee; and 5 (b) to take any action necessary or desirable to give 6 effect to an order under section 97B(2). 7 (4) The third party must comply with the order. 8 Penalty for this subsection: 9 (a) a fine of $12 000; 10 (b) a daily penalty of a fine of $1 000 for each 11 day or part of a day during which the offence 12 continues. 13 Division 3 -- Sham contracts for services 14 97D. Misrepresenting contract of employment as 15 contract for services 16 (1) An employer must not represent to an employee that a 17 contract of employment is a contract for services. 18 (2) Subsection (1) does not apply if the employer proves 19 that, when the representation was made, the employer 20 did not know, and could not reasonably be expected to 21 have known, that the contract was a contract of 22 employment rather than a contract for services. 23 (3) A contravention of subsection (1) is not an offence but 24 that subsection is a civil penalty provision for the 25 purposes of section 83E. 26 97E. Dismissing to engage under contract for services 27 (1) An employer must not dismiss or threaten to dismiss an 28 employee performing particular work for the employer 29 in order to engage the employee to perform the same, page 79 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 54 1 or substantially the same, work under a contract for 2 services. 3 (2) In any proceedings for a contravention of 4 subsection (1), if it is proved that an employer 5 dismissed, or threatened to dismiss, the employee, it is 6 for the employer to prove that the employer did not do 7 so in order to engage the employee under the contract 8 for services. 9 (3) A contravention of subsection (1) is not an offence but 10 that subsection is a civil penalty provision for the 11 purposes of section 83E. 12 97F. False statement to engage under contract for 13 services 14 (1) An employer must not make a statement that the 15 employer knows, or could reasonably be expected to 16 know, is false in order to persuade or influence an 17 employee performing particular work for the employer 18 to enter into a contract for services under which the 19 employee will perform the same, or substantially the 20 same, work. 21 (2) In any proceedings for a contravention of 22 subsection (1), if it is proved that an employer made 23 the statement, it is for the employer to prove that the 24 employer did not do so in order to persuade or 25 influence the employee to enter into the contract for 26 services. 27 (3) A contravention of subsection (1) is not an offence but 28 that subsection is a civil penalty provision for the 29 purposes of section 83E. 30 97G. Court orders to employers 31 (1) This section applies if an industrial magistrate's court 32 determines that an employer has contravened page 80 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 54 1 section 97D(1), 97E(1) or 97F(1) in respect of an 2 employee. 3 (2) Except as provided in subsection (5), the industrial 4 magistrate's court may order the employer to do 1 or 5 more of the following -- 6 (a) if the employee was dismissed from 7 employment -- to reinstate the employee; 8 (b) if the employee was refused employment -- to 9 employ the employee; 10 (c) to pay to the employee compensation for any 11 loss or injury suffered as a result of the 12 contravention. 13 (3) The employer must comply with the order. 14 Penalty for this subsection: 15 (a) a fine of $12 000; 16 (b) a daily penalty of a fine of $1 000 for each 17 day or part of a day during which the offence 18 continues. 19 (4) The court may make the order in addition to imposing 20 a penalty under section 83E. 21 (5) The industrial magistrate's court must not make the 22 order if the employee has applied under another 23 provision of this Act or any other written law for relief 24 in relation to the same act or omission unless the 25 proceedings for that relief have been withdrawn or 26 failed for want of jurisdiction. 27 (6) The employee is not entitled to compensation for the 28 same act or omission under both subsection (2)(c) and 29 another provision of this Act or any other written law. page 81 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 55 1 Division 4 -- Miscellaneous 2 97H. Certain advertising prohibited 3 (1) A person must not advertise the availability of 4 employment at a rate of pay that is less than the 5 minimum wage applicable to the position under the 6 MCE Act or an award, order of the Commission or an 7 industrial agreement. 8 (2) A contravention of subsection (1) is not an offence but 9 that subsection is a civil penalty provision for the 10 purposes of section 83E. 11 12 55. Section 97U amended 13 (1) In section 97U(1) delete the definitions of: 14 supported wage provisions 15 Supported Wage System 16 (2) In section 97U(1) in the definition of section 97UM signatory 17 delete "97UM(2);" and insert: 18 19 97UM(2). 20 21 56. Section 97UF amended 22 In section 97UF(3)(a) delete "supported wage provisions; and" 23 and insert: 24 25 a SWIIP; and 26 page 82 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 57 1 57. Section 97YA amended 2 In section 97YA(1)(a) delete "supported wage provisions" and 3 insert: 4 5 a SWIIP 6 7 58. Section 98 amended 8 (1) In section 98(3): 9 (a) delete paragraph (a) and insert: 10 11 (a) with or without giving notice to the owner or 12 occupier, enter -- 13 (i) a place (industrial location) at which 14 there are reasonable grounds to suspect 15 that an industry is being or has been 16 carried on or any work is being done or 17 has been done or commenced in relation 18 to an industry; or 19 (ii) a place (business premises) at which 20 there are reasonable grounds to suspect 21 that records relevant to an industry are 22 kept or can be accessed; 23 and 24 25 (b) in paragraph (b) delete "location; and" and insert: 26 27 location or business premises, or any record accessible 28 from a computer kept at the industrial location or 29 business premises; and 30 page 83 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 58 1 (c) delete paragraphs (c) to (f) and insert: 2 3 (c) take with the inspector into an industrial 4 location or business premises any person or 5 persons the inspector considers necessary to 6 provide assistance to the inspector; and 7 (d) require (either alone or in the presence, or with 8 the assistance, of some other person) any 9 person the inspector finds in an industrial 10 location or business premises to answer 11 questions by the inspector -- 12 (i) orally; or 13 (ii) if the inspector thinks fit -- in writing; 14 and 15 (e) by notice in writing or orally require a person 16 having the control of, or access to, a record to 17 produce the record for inspection by the 18 inspector; and 19 (f) in relation to a record referred to in 20 paragraph (b) or (e), do all or any of the 21 following -- 22 (i) seize the record; 23 (ii) retain the record for as long as is 24 necessary for the purposes of carrying 25 out the function to which the record is 26 relevant; 27 (iii) take extracts from or copies of the 28 record; 29 and page 84 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 58 1 (fa) post at an industrial location, in a place where it 2 may be viewed by employees at the location, a 3 notice containing information regarding any of 4 the following -- 5 (i) the rights and obligations under any law 6 of the State or Commonwealth relating 7 to employment (an employment law) of 8 the employees or their employer; 9 (ii) a conviction of the employer of an 10 offence under an employment law; 11 (iii) a finding that the employer has 12 contravened an entitlement provision or 13 civil penalty provision under this Act or 14 a civil remedy provision under the FW 15 Act; 16 and 17 18 (d) In paragraph (h) delete "(f)" and insert: 19 20 (f), (fa) 21 22 (2) After section 98(3) insert: 23 24 (3A) If an industrial inspector proposes to exercise the 25 power under subsection (3)(a) to enter an industrial 26 location or business premises that also comprises 27 premises principally used for habitation, the inspector 28 must give the owner or occupier of the location or 29 premises at least 24 hours' written notice of the 30 proposed entry unless -- 31 (a) the owner or occupier is carrying on an industry 32 at the location or premises; or page 85 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 58 1 (b) the Commission has made an order waiving the 2 requirement under this subsection to give the 3 notice. 4 (3B) An industrial inspector may apply to the Commission 5 for an order under subsection (3A)(b). 6 (3C) The application may be heard in the absence of the 7 owner or occupier of the industrial location or business 8 premises. 9 (3D) The Commission may make the order if it is satisfied 10 that a notice under subsection (3A) would defeat the 11 purpose for which the power in subsection (3)(a) is 12 intended to be exercised. 13 14 (3) Delete section 98(5) and insert: 15 16 (5) The power of an industrial inspector under 17 subsection (3)(e) may be exercised -- 18 (a) whether or not the industrial inspector has 19 entered, or proposes to enter, an industrial 20 location or business premises; and 21 (b) if exercised when the industrial inspector has 22 entered an industrial location or business 23 premises -- in relation to any record whether or 24 not it is kept at the location or premises. 25 (5A) The regulations may prescribe the form and manner in 26 which records may be produced for inspection under 27 subsection (3)(e). 28 29 (4) In section 98(6) delete the definition of conveyance. page 86 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 59 1 (5) In section 98(7) delete "subsection (2), (3) or (5)" and insert: 2 3 subsection (2) or (3) 4 5 59. Section 98A inserted 6 After section 98 insert: 7 8 98A. Information obtained under s. 98 not to be disclosed 9 (1) This section applies to a person who is -- 10 (a) an industrial inspector; or 11 (b) a person assisting an industrial inspector under 12 section 98(3)(c) or (d). 13 (2) The person must not, directly or indirectly, record, 14 disclose or make use of information obtained in the 15 course of performing functions under section 98 16 except -- 17 (a) in the course of performing those functions; or 18 (b) as required or allowed by this Act or any other 19 written law or a law of the Commonwealth, 20 another State or a Territory; or 21 (c) to assist in the administration or enforcement of 22 a written law or a law of the Commonwealth, 23 another State or a Territory; or 24 (d) for the purpose of proceedings in a court; or 25 (e) with the written authority of each person to 26 whom the information relates; or 27 (f) in other circumstances prescribed by the 28 regulations. 29 Penalty for this subsection: a fine of $5 000. 30 page 87 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 60 1 60. Section 102 amended 2 (1) After section 102(2) insert: 3 4 (2A) For the purposes of subsection (2)(a), a person who 5 destroys, defaces, alters, takes, or otherwise interferes 6 with a notice posted at an industrial location by an 7 industrial inspector under section 98(3)(fa) is taken to 8 obstruct the industrial inspector in the performance of 9 the inspector's function under that section. 10 11 (2) After section 102(3) insert: 12 13 (4) If in proceedings under section 83E an industrial 14 magistrate's court is required to consider whether a 15 contravention of subsection (1)(a) has occurred it may, 16 as an alternative, determine that a contravention of a 17 record-related civil penalty provision has occurred. 18 (5) If in proceedings under section 83E an industrial 19 magistrate's court is required to consider whether a 20 contravention of a record-related civil penalty 21 provision has occurred it may, as an alternative, 22 determine that a contravention of subsection (1)(a) has 23 occurred. 24 25 61. Section 103 amended 26 In section 103(3) in the definition of breach after 27 "contravention" (first occurrence) insert: 28 29 of 30 page 88 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 62 1 62. Section 117 inserted 2 At the end of Part VII insert: 3 4 117. Savings and transitional provisions for Industrial 5 Relations Legislation Amendment Act 2020 6 (1) In this section -- 7 commencement day means the day on which the 8 Industrial Relations Legislation Amendment Act 2020 9 section 13 comes into operation; 10 former section means a section of this Act as in 11 operation immediately before the commencement day; 12 transitioned private sector award means a private 13 sector award that was in force immediately before the 14 commencement day. 15 (2) On and after the commencement day, former 16 section 37(1) continues in operation in relation to a 17 transitioned private sector award until the award is -- 18 (a) cancelled; or 19 (b) varied under section 37D, 40(2A) or 50(5). 20 (3) Sections 37B and 37C do not apply to a transitioned 21 private sector award until it is varied under 22 section 37D, 40(2A) or 50(5). 23 (4) This section does not affect the operation of the 24 Interpretation Act 1984 Part V. 25 page 89 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 63 1 63. Schedule 4 amended 2 Delete Schedule 4 clause 1(2)(a) and insert: 3 4 (a) there is no industrial instrument containing a SWIIP 5 that extends to the employee; and 6 7 64. Various penalties amended 8 (1) Amend the provisions listed in the Table as set out in the Table. 9 Table Provision Delete Insert s. 48B(4) Penalty Penalty for this subsection individual, $1 000 individual -- a fine of $1 000 case, $5 000 case -- a fine of $5 000 s. 73(14) Penalty: Penalty for this subsection: a fine of s. 97WF(1) s. 97XV(1) s. 111(2) s. 112A(2) s. 99A(3) Penalty Penalty for this subsection Sch. 5 cl. 2 $2 000 a fine of $2 000 Sch. 5 cl. 3 page 90 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 64 Provision Delete Insert Sch. 5 cl. 4(1) and Penalty: Penalty for this (2) subclause: a fine of 1 (2) In section 78 delete "is guilty of an offence and liable to a 2 penalty of $5 000 and a daily penalty of $500." and insert: 3 4 commits an offence. 5 6 (3) At the end of section 78 insert: 7 8 Penalty: 9 (a) a fine of $5 000; 10 (b) a daily penalty of a fine of $500 for each day 11 or part of a day during which the offence 12 continues. 13 14 (4) At the end of the provisions listed in the Table insert: 15 16 Penalty for this subsection: 17 (a) in the case of an individual -- a fine of not 18 less than $400 or more than $5 000; 19 (b) in any other case -- 20 (i) a fine of not less than $1 000 or more 21 than $10 000; 22 (ii) a daily penalty of a fine of $500 for 23 each day or part of a day during which 24 the offence continues. 25 page 91 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 64 1 Table s. 96C(1) and (2) s. 96D(1) and (2) s. 96E(1) and (2) 2 (5) In section 96C(3) delete the Penalty. 3 (6) In section 96D(3) delete the Penalty and insert: 4 5 Penalty for this subsection: 6 (a) in the case of an individual -- a fine of not 7 less than $400 or more than $5 000; 8 (b) in any other case -- 9 (i) a fine of not less than $1 000 or more 10 than $10 000; 11 (ii) a daily penalty of a fine of $500 for 12 each day or part of a day during which 13 the offence continues. 14 15 (7) In section 96E(3) delete the Penalty and insert: 16 17 Penalty for this subsection: 18 (a) in the case of an individual -- a fine of not 19 less than $400 or more than $5 000; 20 (b) in any other case -- 21 (i) a fine of not less than $1 000 or more 22 than $10 000; 23 (ii) a daily penalty of a fine of $500 for 24 each day or part of a day during which 25 the offence continues. 26 page 92 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 65 1 (8) In section 97YC(4) delete the Penalty and insert: 2 3 Penalty for this subsection: 4 (a) a fine of $5 000; 5 (b) a daily penalty of a fine of $500 for each day 6 or part of a day during which the offence 7 continues. 8 9 (9) In section 97YG(7) delete the Penalty and insert: 10 11 Penalty for this subsection: 12 (a) a fine of $5 000; 13 (b) a daily penalty of a fine of $500 for each day 14 or part of a day during which the offence 15 continues. 16 17 65. Various references to "Federal" amended 18 In the provisions listed in the Table delete "Federal" (each 19 occurrence) and insert: 20 21 federal 22 23 Table s. 71(3)(a) and (b) s. 71(7) s. 71(9)(b) and (c) s. 71A(2) s. 71A(4)(b) page 93 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 66 1 Note: The heading to the amended sections listed in the Table are to read as 2 set out in the Table. 3 Table Amended section Section heading s. 14A Dual federal and State appointments s. 14B Performance of duties by dual federal and State appointees 4 66. Various references to titles amended 5 Amend the provisions listed in the Table as set out in the Table. 6 Table Provision Delete Insert s. 31(1)(c)(i) Fair Work Act 2009 FW Act (Commonwealth) s. 73(3)(a)(ii) and (7b) s. 80ZJ(1) s. 97VS(5)(a) s. 73(3)(a)(ii) and Fair Work FW (Transitional) (7b) (Transitional Act Provisions and s. 97VS(5)(a) Consequential Amendments) Act 2009 (Commonwealth) s. 7(1) def. of Fair Work FW Commission secondary office Commission (each occurrence) s. 14A s. 14B s. 22(2)(c) page 94 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 66 Provision Delete Insert s. 29AA(1) and (2) s. 80ZF def. of Fair Work Commission s. 80ZG(1)(a), (b) and (c), (2) and (3) s. 80ZH(1), (2) and (4) s. 80ZI(2) and (3) s. 80ZF def. of Fair Fair Work FW Commission Work Commission Commission s. 80H(6) Fair Work FW (Registered (Registered Organisations) Act Organisations) Act 2009 (Commonwealth) s. 81AA(ba) Part IV of the Long the LSL Act Part IV Service Leave s. 81CA(1)(b) Act 1958 s. 8(3A)(b) Mines Safety and MSI Act Inspection Act 1994 s. 113(1)(d)(ii)(II) s. 7(3)(b) section 102(1) of the the MSI Act Mines Safety and section 102(1) Inspection Act 1994 s. 7(3)(c) clause 69(1) of the Petroleum and Schedule 1 to the Geothermal Energy Petroleum and Resources Act 1967 Geothermal Energy Schedule 1 page 95 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 66 Provision Delete Insert Resources Act 1967, clause 69(1), the clause 69(1) of Petroleum Pipelines Schedule 1 to the Act 1969 Schedule 1 Petroleum Pipelines clause 69(1), or the Act 1969, or Petroleum clause 70(1) of (Submerged Lands) Schedule 5 to the Act 1982 Schedule 5 Petroleum clause 70(1) (Submerged Lands) Act 1982 s. 7(3) Occupational Safety OSH Act and Health Act 1984 s. 8(3A)(b) s. 16(2A) and (2C) s. 113(1)(d)(ii)(I) s. 97VS(6) Note Minimum Conditions MCE Act of Employment Sch. 4 cl. 1(1)(f) Act 1993 Note 1 Note: The heading to the amended sections listed in the Table are to read as 2 set out in the Table. 3 Table Amended section Section heading s. 80ZF Term used: FW Commission s. 80ZG Joint proceedings of Commission and FW Commission s. 80ZH Referring matters to FW Commission for determination under this Act s. 80ZJ Commission may exercise powers conferred by FW Act or prescribed enactments page 96 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 67 1 67. Various references to "shall" replaced 2 (1) In the provisions listed in the Table delete "shall". 3 Table s. 67(3) s. 72(3) s. 80G(1) s. 80L(1) s. 80W(1) 4 (2) In the provisions listed in the Table delete "shall" and insert: 5 6 must 7 8 Table s. 3(5) s. 9(2) s. 12(1) and (2) (each s. 14B(2), (3) and (4) occurrence) (each occurrence) s. 15(2) s. 16(2)(b) s. 20(9) s. 23(3) s. 26(1)(a), (b), (c) and (d) and s. 27(1a) (3) s. 29A(1), (2), (3) and (4) s. 32(1), (2), (4) and (7) s. 33(1)(a), (c) and (e), (3), (4) s. 38(1) and (5) (each occurrence) s. 40(3)(b) s. 40A(1) (each occurrence) s. 40B(2) and (3) s. 41(2) and (4) page 97 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 67 s. 41A(1) and (2) s. 42B(1) s. 42C(2) and (5) s. 44(3), (5), (5a), (11) and (12d) (each occurrence) s. 46(2) s. 47(3) and (5) s. 48(2), (8), (9) and (12) s. 48A(1) and (1a) (each occurrence) s. 48B(2) and (4) s. 49(3), (4)(a) and (b) and (6) (each occurrence) s. 50(7) s. 50A(1), (3), (4) and (7) s. 50B(3) s. 51A(4) and (5) s. 51BA(1) s. 51BB s. 51BE s. 51J s. 51K s. 51L s. 51M s. 55(1), (2), (3) and (4)(e)(i) s. 56(1) (each occurrence) s. 56(3) (1st occurrence) s. 56A(3) s. 57(1) s. 59(2) s. 62(2) and (3) s. 63(1), (2), (3), (6) and (7) s. 64(2) s. 64A(2) s. 64D s. 65 s. 66(2)(f)(ii) and (4) (each occurrence) page 98 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 67 s. 69(3), (4), (6), (8), (9) and s. 70(1) and (2) (11) (each occurrence) s. 71(5) (1st occurrence) s. 71(9)(a) s. 71A(5)(a) s. 72(2) (each occurrence) s. 72B(4), (5) and (6) s. 73(3)(a) and (b), (4), (5), (7)(a), (7b)(a), (11), (12a), (13) and (14) (each occurrence) s. 77(6) and (7) s. 80C(2) and (4) s. 80J(a) s. 80K(3) (each occurrence) s. 80M(3) (1st and 3rd s. 80N(3), (4) and (5)(a) occurrences) s. 80U(3) s. 80V(2) (each occurrence) s. 80ZE(1) s. 81(2) and (4) (each occurrence) s. 81C(2) s. 81D(1) (1st occurrence) s. 82(2) s. 82A s. 83(8) s. 83A(1) s. 83A(3) (2nd occurrence) s. 83B(6)(a) and (10) s. 83F(1) s. 84(3) s. 84A(4)(a) and (b) and (7) s. 85(4) and (5) (each occurrence) s. 87(1) s. 90(2) and (3a) page 99 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 67 s. 93(3), (4), (5) and (6) (each s. 95(2) (2nd occurrence) occurrence) s. 96F(4)(b) and (c) s. 96J(2)(a) s. 98(2) (each occurrence) s. 102(1) and (2) s. 103(2) s. 106 s. 109 s. 110(1) s. 111(1) and (2) s. 112(2) s. 112A(4) s. 113(2) s. 113(3b) (2nd occurrence) s. 114(2) (2nd occurrence) 1 Note: The heading to amended section 41A is to read: 2 Which industrial agreements must not be registered under s. 41 3 (3) In the provisions listed in the Table delete "shall be" and insert: 4 5 is 6 7 Table s. 8(3)(c) s. 31(2) s. 33(1)(b) s. 34(4) s. 56A(5) s. 80H(1) s. 80H(4) (2nd occurrence) s. 80M(2) s. 80N(1) and (2)(a), (b) and (c) s. 80ZG(3) (each occurrence) page 100 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 67 s. 80ZH(3) s. 81B(1) s. 81CA(8) s. 81D(1) (2nd occurrence) s. 83A(3) (1st occurrence) s. 84A(8) s. 85(2)(a) and (b) and (3a) s. 92(2) s. 96I(1) and (2) s. 114(2) (1st occurrence) 1 (4) In the provisions listed in the Table delete "shall be" and insert: 2 3 are 4 5 Table s. 27(1)(c) s. 29B s. 56(3) s. 61 (each occurrence) s. 72(5)(b) s. 80H(4) (1st occurrence) s. 80M(3) s. 85(2)(c) and (3) (each occurrence) s. 93(2) s. 96F(4)(d) s. 114(1) 6 (5) In the provisions listed in the Table delete "shall not" and insert: 7 8 cannot 9 page 101 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 67 1 Table s. 34(3) s. 51N(2) s. 83D(3) s. 84A(6) 2 (6) In the provisions listed in the Table delete "shall" and insert: 3 4 can 5 6 Table s. 83C(1) s. 83E(11) s. 84A(5) s. 107 7 (7) In the provisions listed in the Table delete "shall" and insert: 8 9 is 10 11 Table s. 71(9)(c) s. 80ZH(4) s. 80ZJ(2) s. 105 12 (8) Amend the provisions listed in the Table as set out in the Table. 13 Table Provision Delete Insert s. 3(2) An employer shall, For the purposes of for the purposes of subsection (1), an subsection (1), be employer is page 102 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 67 Provision Delete Insert s. 3(4) process process is, in the absence of proof to the contrary, taken to be proved if it is either of the following s. 3(4)(b) (3), (3). s. 3(4) shall, in the absence of proof to the contrary, be deemed to be proved. s. 3(6) Effect shall be given Subsections (1), (2), to subsections (1), and (3) have effect (2), and (3) s. 7(4) no regard shall regard must not s. 20(8) shall, while he holds holding office is his office, be taken deemed s. 20(8a) 1938 the duration of 1938, the following are taken to be increased by 100% s. 20(8a)(a) any the period of any s. 20(8a)(c)(ii) duties, duties. s. 20(8a) shall be deemed to be increased by 100%. page 103 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 67 Provision Delete Insert s. 20(10) shall be not cannot be s. 29A(1b) (2A) (2A), the following must be published in the required manner s. 29A(1b)(b) agreement, agreement. s. 29A(1b) shall be published in the required manner. s. 33(1)(d) whenever it shall if the Commission appear considers it s. 34(3) shall they can they s. 35(3) shall, at a time fixed are, at a time fixed by the Commission, by the Commission, be s. 37(4) An award, and any Subject to any provision of an variation made under award, whether or this Act, an award, not it has been made and any provision of for a specified term, an award, whether or shall, subject to any not it has been made variation made under for a specified term, this Act, remain remains s. 37(4) shall cease ceases s. 41(5) shall operate operates s. 41(6) shall, subject to this continues Act, continue page 104 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 67 Provision Delete Insert s. 41(7) such filing, and such the filing, and, on party shall on the the expiration of that expiration of that period, the party period cease ceases s. 44(12c) no appeal shall an appeal does not s. 48(1) shall be is established s. 50(3) shall does s. 80G(2) s. 99 s. 60(1) shall, upon and is, upon and during during registration, registration, become and be, s. 62(1) shall not be or is not become s. 71A(5)(b) s. 71(5)(d) shall, for all are, for all purposes, purposes, be s. 73(9) shall will s. 80D(4) shall hold holds s. 80O(1)(a) and (b) s. 80E(5) shall affect or affects or interferes interfere page 105 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 67 Provision Delete Insert s. 80H(2) shall consist consists s. 80N(2) s. 85(2) s. 80L(2) shall apply applies s. 80M(2) shall have and enjoy has and enjoys s. 80O(5) shall become becomes s. 80R(2)(c) shall be advanced advance s. 80U(2) shall not be is not s. 87(2) s. 114(1) s. 81B(5) An industrial If an industrial magistrate or acting magistrate's court industrial magistrate constituted by an shall, if the industrial industrial magistrate magistrate's court or acting industrial constituted by him magistrate s. 85(3) shall nominate nominates s. 85(3) such judges as the judges the Chief Chief Justice of Justice of Western Western Australia Australia from time shall from time to to time nominates time nominate s. 85(3b) shall is to s. 93(1a) shall appoint may appoint page 106 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 68 Provision Delete Insert s. 93(1a) shall not be are not s. 93(7) shall forthwith must immediately s. 95(1) and (2) shall have has s. 98(4) shall for all purposes is taken be deemed (each occurrence) s. 102A(1) his own motion, and the Registrar's or shall, if he is deputy registrar's s. 104(4) own motion, and must, if s. 108 shall not, on and is not, on and from from the date of its the date of its registration, and registration, and while so registered, while so registered, be s. 113(3b) what fees shall the fees to s. 114(1) shall, to that extent, is, to that extent, be null and void void 1 68. Various references to gender removed 2 (1) In the provisions listed in the Table delete "chairman" and 3 insert: 4 5 chairperson 6 page 107 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 68 1 Table s. 7(1) def. of principal s. 44(6)(a) (each occurrence) executive officer s. 48(2), (5), (8) and (9) s. 80H(4)(a) s. 80K(1) and (2) s. 80M(1) def. of member s. 80N(2)(a) s. 80O(1)(a), (2), (3), (7) and (8)(a) s. 80V(1) and (3) Sch 1 it. 5 2 (2) In the provisions listed in the Table delete "he" and insert: 3 4 the person 5 6 Table s. 9(2)(a) and (b) s. 33(1)(b) and (c) and (2) s. 44(2)(b) s. 69(5) s. 70(1)(d) s. 80O(9) s. 80P(1) s. 102(1)(d) 7 (3) In the provisions listed in the Table delete "his". 8 Table s. 16(3) s. 20(8a)(b) s. 44(11)(a) s. 80D(4) s. 80M(1) def. of head of s. 80O(1)(a) branch and sub-head of branch page 108 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 68 s. 91(1)(a) s. 93(10) s. 111(1) 1 (4) In the provisions listed in the Table delete "his" and insert: 2 3 the person's 4 5 Table s. 20(8a)(c) (each occurrence) s. 33(1)(a) (each occurrence) s. 70(1)(h) s. 102(1)(b) s. 114(1) 6 (5) In the provisions listed in the Table delete "him" and insert: 7 8 the person 9 10 Table s. 33(1)(c) and (2) s. 44(3) s. 56(1)(b) s. 69(5)(c) s. 80P(1) s. 114(1) 11 (6) In the provisions listed in the Table delete "his" and insert: 12 13 the Registrar's 14 page 109 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 68 1 Table s. 48(9) s. 56(2) and (3) s. 57(3) s. 73(11) s. 93(3) 2 (7) In the provisions listed in the Table delete "his or her" and 3 insert: 4 5 the employee's 6 7 Table s. 49D(2)(a) s. 49E(4) def. of relevant person para. (b) s. 83(1)(f) s. 97U def. of party para. (b) s. 97UF(2)(b) s. 97UG(1)(b) and (4)(a) s. 97UH(b)(i) s. 97UL(1)(d)(ii) and (3)(b) s. 97UU(1)(b) s. 97UY(6) def. of day of execution para. (a)(ii) s. 97VA(1)(b) s. 97VK(1)(b) s. 97VS(1) and (6) s. 97VV s. 97YF(b) and (d) page 110 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 68 1 (8) In the provisions listed in the Table delete "he or she" and 2 insert: 3 4 the person 5 6 Table s. 49L(1) s. 97WY(1) s. 97XI(2)(b) s. 97XZ(1)(b) s. 97YG(2)(a) 7 (9) In the provisions listed in the Table delete "his or her" and 8 insert: 9 10 the person's 11 12 Table s. 49L(1)(b) s. 83E(6)(a) s. 97WV(2) 13 (10) In the provisions listed in the Table delete "he" and insert: 14 15 the Registrar 16 17 Table s. 56(2) s. 57(3) s. 64(1) (each occurrence) s. 69(3), (4) and (11) s. 93(6) and (7) page 111 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 68 1 (11) In the provisions listed in the Table delete "him or her" and 2 insert: 3 4 the person 5 6 Table s. 83(8) s. 83E(9) s. 97YC(4) s. 97YG(7) 7 (12) In the provisions listed in the Table delete "he or she" and 8 insert: 9 10 the Registrar 11 12 Table s. 97WZ(1) s. 97XA s. 97XN(1) s. 97XP 13 (13) Amend the provisions listed in the Table as set out in the Table. 14 Table Provision Delete Insert s. 7(1) def. of public his or her the Governor's authority s. 7(1a) his the employee's page 112 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 68 Provision Delete Insert s. 11(2) he (each occurrence) the commissioner s. 14(2) s. 44(11) s. 16(3) himself s. 18(2) him the Governor he the Governor s. 20(9) his appointment being appointed he retains his the commissioner existing retains any existing his service the service s. 23(3)(c)(i) his the employer's s. 80E(5) (1st occurrence) s. 25(1)(c) he (each occurrence) the Chief Commissioner s. 44(12) s. 93(1a) s. 27(1)(i) his the expert's s. 29AA(4) his or her an s. 30(1) his the Minister's s. 73(3)(a) s. 41(7) his the party's s. 44(3) his that page 113 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 68 Provision Delete Insert s. 44(7)(a)(iii) his an s. 44(11) his (1st occurrence) the commissioner's s. 44(11)(b) him the commissioner s. 48(9) him the chairperson s. 80K(1) s. 80V(1) s. 49E(2)(b) him or her the employee s. 56(1)(b) he the officer s. 80C(3) s. 56(1)(b) his being so the person is s. 56(2) and (3) him the Registrar s. 63(7) s. 63(1)(a) financial status of status of each each member in member in respect of respect of his the financial requirements for s. 73(3)(a) him the Minister s. 80N(3) s. 73(12a) him or her the Registrar s. 80D(5)(a) he the arbitrator s. 80D(5)(b) his appointment the appointment of the commissioner page 114 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 68 Provision Delete Insert s. 80E(2)(a) him (each the officer occurrence) s. 94 s. 80E(5) by him of his of the Arbitrator's s. 80F(2) his (each occurrence) the officer's s. 80J(b) s. 80G(1) his the Arbitrator's s. 80N(4) him the Electoral Commissioner s. 80N(5)(b) he the Minister s. 80O(2)(a) he the chairperson s. 80O(2)(b) his the chairperson's s. 80O(5)(b), (c) and he the member (e) s. 87(3) s. 80O(5)(d), (6) and his the member's (9)(a) s. 85(6) s. 80O(6) him the member s. 80ZH(4) s. 80O(9) his (1st occurrence) the person's s. 80P(1) member (1st person as a member occurrence) page 115 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 68 Provision Delete Insert s. 80P(2) him the Chief Commissioner or Governor he the Chief Commissioner or Governor s. 80R(2)(d) his or their of the relevant s. 80R(2)(f) his or their position of the relevant position or positions s. 80S(2) on his or their behalf s. 80ZH(1) where in his opinion if s. 80ZH(3) him under the member of the subsection (2), the FW Commission member of the Fair under subsection (2), Work Commission the member s. 81B(3) when when the industrial magistrate s. 81B(3)(a) he s. 81B(3)(b) he resigns his resigns from s. 81B(4) his s. 81B(5) he the magistrate s. 85(6) him the judge he (each occurrence) the judge page 116 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 68 Provision Delete Insert s. 95(1)(a) and (b) him the deputy registrar s. 96(3)(b) his or her an (1st occurrence) s. 96(3)(b) he or she the employee s. 97UM(4) s. 96(3)(b) his or her a (2nd occurrence) s. 96(11) his or her the Chief Commissioner's s. 96L(1)(a)(i) he or she the complainant s. 96L(1)(a)(iii) him or her the complainant s. 97UD(2) his or her the represented person's s. 97XJ(2) s. 97UG(1) he or she the employer s. 97YH s. 97UH him or her the employer s. 97UJ(1) his or her a s. 97UJ(1)(d) him or her the employer or employee s. 97V(1) he or she the party s. 97VJ(1) page 117 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 68 Provision Delete Insert s. 97VB satisfy himself or consider whether herself that s. 97VC(3) his or her the party's s. 97VD(2)(a) his or her the Registrar's s. 97WZ(2) s. 97WJ his or her a s. 97WN(3)(b) and he or she the arbitrator (4)(c) s. 97WS(3) he or she the representative s. 97XF(2) s. 97WU(1) he or she the Public Advocate s. 97WX(2) his or her s. 97XM(7) Sch. 4 it. 1(h)(i) s. 97WZ(3)(a) he or she the applicant s, 97XN(2)(a) s. 97XB(1) his or her that person's s. 97XD(1) his or her performing s. 97XF(1) his or her the representative's s. 97XH(1) of his or her wish that the representative wishes page 118 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 68 Provision Delete Insert s. 97XI(2)(a) his or her behalf behalf of the and (3)(c) represented person s. 97XK(1)(b) s. 98(3) his (each occurrence) the inspector's s. 102A(2) s. 104(3) s. 98(3)(g) he the inspector s. 98(3)(h) him the inspector s. 102(1)(c) his the returning officer's s. 103(2) he the applicant s. 107 by him s. 112(1) his a s. 112A(2) holds himself out as represents that the person is s. 114(2) his (1st occurrence) the employee's nd his (2 occurrence) the him the employee he the employee Sch. 4 it. 1(g) he or she (each the employee occurrence) Sch. 4 it. 1(h) Sch. 4 it. 1(i) his or her that party's page 119 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 69 Provision Delete Insert Sch. 5 it. 1(c) he or she the authorised person 1 69. Various other modernisations 2 (1) In the provisions listed in the Table delete "of the 3 Commonwealth" and insert: 4 5 (Commonwealth) 6 7 Table s. 3(2)(c)(iii) s. 48B(1) def. of complying superannuation fund or scheme para. (a) s. 65(a) s. 96H(3) def. of corporation s. 97U(1) def. of employment services for persons with disabilities 8 (2) In the provisions listed in the Table delete "hereby". 9 Table s. 4 s. 8(1) s. 85(1) s. 114(2) 10 (3) In the provisions listed in the Table delete "deemed" and insert: 11 12 taken 13 page 120 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 69 1 Table s. 20(8a)(b) s. 31(2) s. 44(2)(b) s. 56(3) s. 66(2)(f)(ii) s. 71A(3) s. 80M(2) and (3) s. 80ZH(3) s. 92(2) s. 96F(4)(d) 2 (4) In the provisions listed in the Table delete "thereto". 3 Table s. 27(1)(d) s. 41(3) s. 43(1) s. 44(8) and (11) 4 (5) In the provisions listed in the Table delete "any matter or thing" 5 and insert: 6 7 anything 8 9 Table s. 27(1)(p) s. 48(6)(a) and (b) and (15) s. 112A(5)(e) 10 (6) In the provisions listed in the Table delete "be deemed" and 11 insert: 12 13 taken 14 page 121 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 69 1 Table s. 71(9)(c) s. 80ZH(4) s. 80ZJ(2) s. 96F(4)(c) 2 (7) Amend the provisions listed in the Table as set out in the Table. 3 Table Provision Delete Insert s. 3(1) industrial matter or related industrial industrial action matter or industrial related thereto action extends thereto extends to the matter or action s. 6(b) agreement, thereby agreement and s. 7(1) def. of therein (each industrial matter occurrence) para. (c) s. 73(9) s. 7(1) def. of therein in the industry industrial matter s. 7(1) def. of thereof of an organisation or industrial matter association para. (e) s. 27(1)(a) thereof (1st and 3rd of it occurrence) thereof (2nd occurrence) page 122 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 69 Provision Delete Insert s. 27(1)(d) thereof of the matter s. 80E(6) s. 80R(3) s. 27(1)(h) wherein in which s. 49(3)(a) s. 84(3) s. 90(2)(a) s. 27(1)(p) whatsoever, wherein in, of a matter before of, or related to, a the Commission or is matter before the related thereto Commission s. 27(1)(q) thing whatsoever other thing s. 32(4)(a) thereafter s. 47(5) s. 32(4)(c) (8) and of the (8), and of any preamble thereto preamble to it, s. 33(5) therefrom from the documents s. 35(4) therein prescribed prescribed in this section s. 40(3) thereof of it page 123 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 69 Provision Delete Insert s. 41(1) disputes, any related disputes, disagreements, or disagreements, or questions relating questions thereto s. 41(5)(a) and (b) therein in the agreement s. 41(6) and (7) thereto to the agreement therefrom from the agreement s. 44(2)(b) shall, in any is, in any proceedings under proceedings under this Act relating this Act relating to thereto, be the summons, s. 44(3) thereat s. 44(6) the foregoing this subsection, s. 44(11) thereupon s. 56(3) s. 46(1)(b) therein or of giving in, or giving fuller fuller effect thereto effect to, the provision s. 48(10) as prescribed therein in accordance with that subsection s. 51A(1)(a) matter related related matter thereto s. 55(2)(b) thereof of this paragraph page 124 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 69 Provision Delete Insert s. 55(4)(d) therefor for the alteration s. 62(3)(b)(i) s. 63(2) therein in the records s. 64(2) therewith with the direction s. 65(a) in this section called s. 66(2) the foregoing this subsection s. 87(3) s. 66(2)(ca) any act, matter or anything thing s. 80E(5) s. 66(2)(e)(ii) thereof of the irregularity s. 69(9) therefrom from it s. 69(10) therein in the register s. 71(7) howsoever however s. 73(4) therewith with the summons s. 80M(3) Forthwith Immediately under the hands of by thereafter s. 80ZE(1) thereon s. 80ZI(3) of the Commonwealth page 125 Industrial Relations Legislation Amendment Bill 2020 Part 2 Industrial Relations Act 1979 amended s. 69 Provision Delete Insert s. 81B(5) be deemed the magistrate is, notwithstanding that despite the cessation, cessation taken s. 85(3) such of those members members as s. 93(7) Industrial s. 93(8) deems considers s. 94 any act or thing anything act or s. 96C(3) whereby by which s. 96F(2) forthwith immediately s. 96F(4)(d) thereunder under this Act s. 98(3)(h) s. 98(3)(b) thing whatsoever other thing s. 105 be evidence evidence therein in it s. 109 thereof (each occurrence) s. 109 represented therein s. 110(1) and (2) s. 113(1)(c) the generality this paragraph thereof page 126 Industrial Relations Legislation Amendment Bill 2020 Industrial Relations Act 1979 amended Part 2 s. 69 Provision Delete Insert s. 113(1)(e) any act or thing anything s. 113(2) thereto of such of s. 113(3) in respect thereof s. 114(1) deemed to be taken to be severable severable from any from any voided provisions hereby provisions annulled page 127 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 70 1 Part 3 -- Long Service Leave Act 1958 amended 2 70. Act amended 3 This Part amends the Long Service Leave Act 1958. 4 71. Part II Division 1 heading inserted 5 At the beginning of Part II insert: 6 7 Division 1 -- General 8 9 72. Section 4 amended 10 (1) In section 4(1) delete the definitions of: 11 employee 12 employer 13 industrial inspector 14 ordinary pay 15 (2) In section 4(1) insert in alphabetical order: 16 17 continuous employment has the meaning given in 18 section 6; 19 employee -- 20 (a) means -- 21 (i) a person who is employed by an 22 employer to do work for hire or reward, 23 including as an apprentice; or 24 (ii) a person whose usual status is that of an 25 employee; 26 and 27 (b) includes a casual or seasonal employee; page 128 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 72 1 employer includes any of the following employing 1 or 2 more employees -- 3 (a) a person or public authority as defined in the 4 IR Act; 5 (b) except as provided in the Foreign States 6 Immunities Act 1985 (Commonwealth) 7 section 12, a foreign state or consulate; 8 (c) a related body corporate of the employer if the 9 employer is itself a body corporate; 10 employer-employee agreement has the meaning given 11 in the IR Act section 7(1); 12 industrial inspector has the meaning given in the 13 IR Act section 7(1); 14 IR Act means the Industrial Relations Act 1979; 15 MCE Act means the Minimum Conditions of 16 Employment Act 1993; 17 ordinary pay has the meaning given in Division 2; 18 related body corporate, of an employer that is a body 19 corporate, has the meaning given in the Corporations 20 Act 2001 (Commonwealth) section 9. 21 22 (3) In section 4(1) in the definitions of award, industrial agreement 23 and industrial magistrate's court delete "Industrial Relations 24 Act 1979;" and insert: 25 26 IR Act; 27 28 (4) Delete section 4(2) and (3). 29 Note: The heading to amended section 4 is to read: 30 Terms used page 129 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 73 1 73. Sections 5 and 6 replaced 2 Delete sections 5 and 6 and insert: 3 4 4A. Employees with equivalent separate LSL 5 entitlements 6 (1) In this section -- 7 award, agreement or enactment means -- 8 (a) an award or industrial agreement; or 9 (b) an agreement between an employer and 10 employee (including an employer-employee 11 agreement); or 12 (c) an enactment of the State, the Commonwealth, 13 another State or a Territory; 14 entitlement, in relation to long service leave or 15 payment on termination instead of long service leave, 16 includes an eligibility to become entitled to the long 17 service leave or payment on termination instead of long 18 service leave; 19 WA LSL means long service leave, or payment on 20 termination instead of long service leave, under 21 Part III. 22 (2) For the purposes of this section, a separate LSL 23 entitlement is an entitlement to long service leave, or a 24 payment on termination instead of long service leave, 25 under an award, agreement or enactment. 26 (3) For the purposes of this section, a payment (whether in 27 the form of a loading, other additional incremental 28 payment or otherwise) instead of an entitlement under 29 subsection (2) is not a separate LSL entitlement. 30 (4) This Act does not apply to an employee who has a 31 separate LSL entitlement to take long service leave or 32 to be paid on termination instead of long service leave page 130 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 73 1 that is at least equivalent to the entitlement to WA LSL 2 to take long service leave or to be paid on termination 3 instead of long service leave. 4 (5) Subsection (6) applies to an employee -- 5 (a) who becomes entitled to WA LSL in relation to 6 employment with an employer; and 7 (b) who, immediately before becoming entitled to 8 WA LSL, had a separate LSL entitlement in 9 relation to employment with the employer. 10 (6) Any long service leave taken by, or payment on 11 termination instead of long service leave made to, the 12 employee under the separate LSL entitlement must be 13 taken into account in the calculation of the employee's 14 entitlement to WA LSL as if it were taken, or paid on 15 termination, as WA LSL. 16 5. Cashing out of accrued long service leave 17 (1) An employer and an employee may agree that the 18 employee may forgo the employee's entitlement, or 19 part of the employee's entitlement, to long service 20 leave under section 8(2)(a) or (b) if -- 21 (a) the employee is given an adequate benefit 22 instead of the entitlement; and 23 (b) the agreement is in writing, signed by the 24 employer and employee. 25 (2) For the purposes of subsection (1), a benefit is not 26 adequate unless the employee is paid at least the 27 amount of ordinary pay the employee would have 28 received had the employee taken the long service leave 29 or part of the leave. 30 (3) Nothing in this section enables the employer and 31 employee to reach the agreement before the page 131 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 73 1 employee's entitlement to long service leave has 2 accrued. 3 6. Continuous employment 4 (1) An employee's continuous employment with an 5 employer includes an absence from work by the 6 employee comprising any of the following, whether 7 paid or unpaid and irrespective of the duration -- 8 (a) annual leave; 9 (b) leave for illness or injury, or carer's leave; 10 (c) long service leave; 11 (d) parental leave; 12 (e) compassionate leave; 13 (f) bereavement leave; 14 (g) public holidays; 15 (h) any other form of leave provided as part of the 16 employee's employment. 17 (2) An employee's continuous employment with an 18 employer also includes any of the following absences 19 from work, whether paid or unpaid and irrespective of 20 the duration -- 21 (a) a period following the termination of the 22 employee's employment by the employer if the 23 termination has been made with the intention of 24 avoiding -- 25 (i) obligations under this Act in respect of 26 long service leave; or 27 (ii) obligations in respect of annual leave 28 under an award, industrial agreement, 29 employer-employee agreement, order of 30 the Commission, the MCE Act or any 31 other enactment; page 132 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 73 1 (b) if the employee resumes employment with the 2 employer as soon as practicable after the 3 absence -- a period during which the 4 employment is interrupted by service as a 5 member of the naval, military or air forces of 6 the Commonwealth other than as a member of 7 the Permanent Forces of the Commonwealth of 8 Australia. 9 (3) An employee has continuous employment with an 10 employer despite an absence from work comprising 11 any of the following, whether paid or unpaid and 12 irrespective of the duration -- 13 (a) an absence other than that referred to in 14 subsection (1) or (2) which is authorised by the 15 employer; 16 (b) a standing-down of the employee in accordance 17 with the provisions of -- 18 (i) an award, agreement, order or 19 determination in force under the IR Act; 20 or 21 (ii) the Fair Work Act 2009 22 (Commonwealth) or an enterprise 23 agreement under that Act; or 24 (iii) any other enactment; 25 (c) an absence arising directly or indirectly from an 26 industrial dispute if the employee returns to 27 work in accordance with the terms of settlement 28 of the dispute; 29 (d) a reasonable absence from work on legitimate 30 union business in respect of which the 31 employee has requested and been refused leave; 32 (e) an absence for a reason not specified in 33 subsection (1) or (2) or in this subsection unless 34 the employer gives, during or within 14 days page 133 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 73 1 after the absence, written notice to the 2 employee that the continuity of the employment 3 has been broken by the absence. 4 (4) An employee has continuous employment with an 5 employer despite a termination of the employment by 6 the employer -- 7 (a) on any ground other than slackness of trade -- 8 if the employee is re-employed by the employer 9 within a period not exceeding 2 months from 10 the date of the termination; 11 (b) on the ground of slackness of trade -- if the 12 employee is re-employed by the employer 13 within a period not exceeding 6 months from 14 the date of the termination. 15 (5) A casual or seasonal employee has continuous 16 employment with an employer despite an absence from 17 work comprising any of the following, irrespective of 18 the duration -- 19 (a) an absence under the terms of the employment; 20 (b) an absence caused by seasonal factors; 21 (c) any other absence after which the employee 22 has, due to the regular and systematic nature of 23 the employment, a reasonable expectation of 24 returning to work for the employer. 25 (6) In addition, a casual or seasonal employee has 26 continuous employment with an employer despite the 27 fact that the employee -- 28 (a) is employed by the employer under 2 or more 29 contracts of employment; or 30 (b) is also employed by another person during the 31 period of employment with the employer. 32 (7) If an employee enters into a contract of employment 33 with an employer within 52 weeks after completing an page 134 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 73 1 apprenticeship with the employer, the period of 2 apprenticeship is taken to be a part of the employee's 3 continuous employment with the employer. 4 6A. Calculating length of continuous employment 5 (1) When calculating the length of continuous employment 6 for the purposes of this Act, a period is counted if it is 7 any of the following -- 8 (a) leave referred to in section 6(1) that is paid; 9 (b) an absence referred to in section 6(2); 10 (c) an absence referred to in section 6(5). 11 (2) When calculating the length of continuous employment 12 for the purposes of this Act, a period is not counted if it 13 is any of the following -- 14 (a) leave referred to in section 6(1) that is unpaid; 15 (b) an absence referred to in section 6(3); 16 (c) a period between a termination and 17 re-employment referred to in section 6(4); 18 (d) in respect of an employee to whom section 6(7) 19 applies, any period between -- 20 (i) the completion of the employee's 21 apprenticeship; and 22 (ii) the employment of the employee by the 23 employer; 24 (e) a period during the transfer of business as 25 defined in section 7D where -- 26 (i) the employment of an employee of the 27 old employer as defined in section 7D 28 has terminated; and 29 (ii) the employee has not yet been employed 30 by the new employer as defined in 31 section 7D. 32 page 135 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 74 1 74. Part II Division 2 heading inserted 2 Before section 7 insert: 3 4 Division 2 -- Ordinary pay 5 6 75. Section 7 replaced 7 Delete section 7 and insert: 8 9 7. Ordinary pay: general 10 (1) Except as provided in subsection (4), an employee's 11 ordinary pay is the employee's remuneration for the 12 employee's normal weekly number of hours of work 13 calculated on the ordinary time rate of pay applicable 14 to the employee as at the time when any period of long 15 service leave granted to the employee under this Act 16 commences, or is taken to commence. 17 (2) For the purposes of subsection (1), the normal weekly 18 number of hours of work of an employee whose hours 19 have varied during a period of employment is the 20 average weekly hours worked by the employee during 21 the period, calculated by reference to ascertainable 22 hours worked by the employee during the period. 23 (3) For the purposes of subsection (1), the rate of pay of an 24 employee whose leave, or any portion of it, is 25 postponed to meet the convenience of the employee by 26 agreement between the employer and employee is the 27 rate of pay applicable to the employee -- 28 (a) on the day on which the leave accrues; or 29 (b) if the employer and employee agree -- on the 30 day on which the employee commences the 31 leave. page 136 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 75 1 (4) The ordinary pay of an employee employed on 2 piecework, commission, bonus work, percentage 3 reward or any other system of payment by results, is 4 the employee's average weekly rate of pay earned 5 while in employment during the period of 12 months -- 6 (a) if the employee is in employment -- ending on 7 the day immediately before the day on which 8 the employee commences long service leave or 9 would, but for payment instead of long service 10 leave under section 5, have commenced long 11 service leave; or 12 (b) if the employee is not in employment -- ending 13 on the day immediately before the day on 14 which the employee was last in employment; or 15 (c) if the employee is dead -- ending on the day 16 immediately before the day on which the 17 employee died. 18 7A. Ordinary pay: shift premiums, overtime, penalty 19 rates or allowances 20 Except as provided in section 7B, an employee's 21 ordinary pay does not include shift premiums, 22 overtime, penalty rates, allowances or any similar 23 payments. 24 7B. Ordinary pay: casual employees' loading 25 A casual employee's ordinary pay includes any casual 26 loading payable under any of the following -- 27 (a) an award, industrial agreement, 28 employer-employee agreement or order of the 29 Commission; 30 (b) a modern award, enterprise agreement or 31 national minimum wage order made by the Fair 32 Work Commission under the Fair Work 33 Act 2009 (Commonwealth); page 137 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 76 1 (c) a contract of employment; 2 (d) an enactment. 3 7C. Ordinary pay: board and lodging 4 (1) An employee's ordinary pay includes the cash value of 5 board and lodging during a period of long service leave 6 if the board and lodging -- 7 (a) is provided to the employee by the employer; 8 but 9 (b) is not provided to, and taken by, the employee 10 during the period of long service leave. 11 (2) For the purposes of subsection (1), the cash value of 12 board and lodging provided to an employee is -- 13 (a) if the value is fixed by or under the conditions 14 of the employee's employment -- that value; or 15 (b) if the value is not fixed by or under the 16 conditions of the employee's employment -- a 17 value calculated by reference to a rate 18 prescribed in the regulations. 19 20 76. Part II Division 3 inserted 21 At the end of Part II insert: 22 23 Division 3 -- Transfer of business 24 7D. Terms used 25 In this Division -- 26 connection between the old employer and the new 27 employer has the meaning given in section 7G; page 138 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 76 1 new employer has the meaning given in section 7E; 2 old employer has the meaning given in section 7E; 3 transfer of business has the meaning given in 4 section 7E; 5 transferring employee has the meaning given in 6 section 7F; 7 transferring work has the meaning given in section 7E. 8 7E. Transfer of business, old employer, new employer, 9 transferring work 10 There is a transfer of business from an employer (the 11 old employer) to another employer (the new employer) 12 if the following requirements are satisfied -- 13 (a) the employment of an employee of the old 14 employer has terminated; 15 (b) within 3 months after the termination, the 16 employee becomes employed by the new 17 employer; 18 (c) the work (the transferring work) the employee 19 performs for the new employer is the same, or 20 substantially the same, as the work the 21 employee performed for the old employer; 22 (d) there is a connection between the old employer 23 and the new employer. 24 7F. Transferring employee 25 An employee in relation to whom the requirements in 26 section 7E(a), (b) and (c) are satisfied is a transferring 27 employee. page 139 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 76 1 7G. Connection between old employer and new 2 employer 3 (1) There is a connection between the old employer and 4 the new employer if, in accordance with an 5 arrangement between them, the new employer owns or 6 has the beneficial use of some or all of the assets 7 (whether tangible or intangible) that -- 8 (a) the old employer owned or had the beneficial 9 use of; and 10 (b) relate to, or are used in connection with, the 11 transferring work. 12 (2) There is a connection between the old employer and 13 the new employer if, because the old employer has 14 outsourced the transferring work to the new employer, 15 the transferring work is performed by 1 or more 16 transferring employees as employees of the new 17 employer. 18 (3) There is a connection between the old employer and 19 the new employer if -- 20 (a) because the new employer had outsourced the 21 transferring work to the old employer, the 22 transferring work had been performed by 1 or 23 more transferring employees, as employees of 24 the old employer; and 25 (b) because the new employer has ceased to 26 outsource the work to the old employer, the 27 transferring work is performed by those 28 transferring employees, as employees of the 29 new employer. page 140 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 76 1 (4) There is a connection between the old employer and 2 the new employer if the new employer is a related 3 body corporate of the old employer when the 4 transferring employee becomes employed by the new 5 employer. 6 7H. Status of transferring employees on transfer of 7 business 8 For the purposes of this Act, on a transfer of 9 business -- 10 (a) a transferring employee's employment before 11 and after the transfer is taken to be a single 12 period of continuous employment; and 13 (b) the new employer is taken to have been the 14 transferring employee's sole employer for the 15 entire period. 16 7I. Transfer of employment records 17 (1) In this section -- 18 employment records means employment records 19 required to be kept by an employer under section 26(1). 20 (2) On the transfer of a business, the old employer must 21 transfer copies of all transferring employees' 22 employment records to the new employer. 23 (3) A contravention of subsection (2) is not an offence but 24 that subsection is a civil penalty provision for the 25 purposes of the IR Act section 83E. 26 (4) In proceedings under the IR Act section 83E for a 27 contravention of subsection (2), an industrial 28 magistrate's court may, as an alternative, determine 29 that a contravention of section 26(1) or (2) has 30 occurred. 31 page 141 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 77 1 77. Part III heading amended 2 In the heading to Part III delete "in lieu thereof " and insert: 3 4 on termination instead 5 6 78. Section 8 amended 7 (1) In section 8(1) delete the passage that begins with "continuous 8 employment" and continues to the end of the subsection and 9 insert: 10 11 the length of continuous employment calculated under 12 section 6A with the same employer. 13 14 (2) Delete section 8(3)(b) and insert: 15 16 (b) in any circumstances other than by the 17 employer for serious misconduct, 18 19 79. Section 9 amended 20 (1) In section 9(1): 21 (a) in paragraph (a) delete "subject to any agreement 22 between the employer and the employee," and insert: 23 24 except as provided in subsection (1AA), 25 26 (b) in paragraph (b) delete "periods of not less than one 27 week." and insert: 28 29 periods. 30 page 142 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 79 1 (2) After section 9(1) insert: 2 3 (1AA) The employee and employer may agree when the 4 employee will take long service leave. 5 6 (3) After section 9(1b) insert: 7 8 (1C) The employee may request the employer to grant the 9 employee a period of long service leave -- 10 (a) twice as long as the period to which the 11 employee would otherwise be entitled; and 12 (b) at a rate of pay equal to half the employee's 13 ordinary pay. 14 (1D) The employee may request the employer to grant the 15 employee a period of long service leave -- 16 (a) half as long as the period to which the 17 employee would otherwise be entitled; and 18 (b) at a rate of pay equal to twice the employee's 19 ordinary pay. 20 21 (4) In section 9(3) after "a period of " insert: 22 23 accrued 24 25 Note: The heading to amended section 9 is to read: 26 Taking long service leave page 143 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 80 1 80. Section 11 amended 2 (1) In section 11(1): 3 (a) in paragraph (b) delete "payment in lieu of long service 4 leave;" and insert: 5 6 payment on termination instead of long service leave; 7 8 (b) in paragraph (c) delete "rate of " ; 9 (c) in paragraph (d) delete "in order to avoid or to attempt" 10 and insert: 11 12 with the intention of avoiding or attempting 13 14 (d) in paragraph (e) delete "in lieu of " and insert: 15 16 instead of 17 18 (2) After section 11(2) insert: 19 20 (3) Jurisdiction granted under subsection (1) is in addition 21 to jurisdiction an industrial magistrate's court has -- 22 (a) under the IR Act section 83(1)(e) to enforce a 23 provision of Part III as an entitlement provision 24 as defined in the IR Act section 7(1); and 25 (b) under the IR Act section 83E to enforce a 26 provision of this Act that is a civil penalty 27 provision as defined in the IR Act section 7(1). 28 page 144 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 81 1 81. Section 26 amended 2 (1) In section 26(1): 3 (a) delete "details are recorded of --" and insert: 4 5 the following employment records are kept -- 6 7 (b) after paragraph (a) insert: 8 9 (aa) the employer's name and Australian Business 10 Number (if any); 11 (ab) the date of any transfer of business as defined 12 in section 7D during the employment of the 13 employee; 14 15 (c) after paragraph (b) insert: 16 17 (ba) the weekly hours worked by the employee; 18 19 (d) delete paragraph (e) and insert: 20 21 (e) any agreement made under section 5, including 22 details of -- 23 (i) the benefit for, and the amount of, long 24 service leave that was foregone; and 25 (ii) when the benefit was paid; 26 27 (e) in paragraph (f) delete "Act; and" and insert: 28 29 Act; 30 page 145 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 82 1 (2) In section 26(2): 2 (a) in paragraph (a) before "records" insert: 3 4 employment 5 6 (b) in paragraph (b) delete "entry" and insert: 7 8 employment record 9 10 (3) Delete section 26(3) and (4) and insert: 11 12 (3) A contravention of subsection (1) or (2) is not an 13 offence but those subsections are civil penalty 14 provisions for the purposes of the IR Act section 83E. 15 16 82. Section 26A amended 17 (1) In section 26A(1): 18 (a) in paragraph (a) before "records" insert: 19 20 employment 21 22 (b) in paragraph (b) before "records." insert: 23 24 employment 25 26 (2) In section 26A(1a) delete "Industrial Relations Act 1979" and 27 insert: 28 29 IR Act 30 31 (3) Delete section 26A(1b). page 146 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 83 1 (4) In section 26A(3): 2 (a) in paragraph (a) before "record" insert: 3 4 employment 5 6 (b) in paragraph (c)(i) and (ii) before "records;" insert: 7 8 employment 9 10 Note: The heading to amended section 26A is to read: 11 Access to employment records kept by employer 12 83. Section 39 amended 13 In section 39 delete "Industrial Relations Act 1979" and insert: 14 15 IR Act 16 17 Note: The heading to amended section 39 is to read: 18 Application to this Act of certain regulations made under the IR 19 Act 20 84. Part VIII inserted 21 After section 39 insert: 22 23 Part VIII -- Savings provisions for Industrial 24 Relations Legislation Amendment Act 2020 25 40. Terms used 26 In this Part -- 27 commencement day means the day on which the 28 Industrial Relations Legislation Amendment Act 2020 29 section 73 comes into operation; page 147 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 85 1 former section means a section of this Act as in 2 operation immediately before the commencement day. 3 41. Business transmitted before commencement day 4 (1) This section applies in relation to the transmission, as 5 defined in former section 6(5), of a business before the 6 commencement day. 7 (2) For the purposes of determining whether an employee 8 in the business has had continuous employment with an 9 employer, on and after the commencement day -- 10 (a) former sections 6 and 8 continue in operation; 11 and 12 (b) Part II Division 3 does not apply. 13 14 85. Various references to "shall" replaced 15 Amend the provisions listed in the Table as set out in the Table. 16 Table Provision Delete Insert s. 8(3) shall be (each is occurrence) s. 9(2) s. 27(2) s. 9(2) employer shall employer must s. 10(1) shall not become is not s. 27(1) shall must s. 27(2) shall thereupon forfeits the forfeit his page 148 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 86 Provision Delete Insert s. 27(3) shall do s. 39 shall 1 86. Various references to gender removed 2 Amend the provisions listed in the Table as set out in the Table. 3 Table Provision Delete Insert s. 8(2)(c)(i) his the employee's s. 8(3)(a) s. 8(2)(c)(ii) his the s. 8(5) his or her s. 8(9) his or her the employee's s. 9(2) his s. 27(3) s. 9(2) he (each occurrence) the employee s. 10(2) s. 27(1) and (2) s. 12 his or her the inspector's s. 38(1) him to page 149 Industrial Relations Legislation Amendment Bill 2020 Part 3 Long Service Leave Act 1958 amended s. 87 1 87. Various other modernisations 2 Amend the provisions listed in the Table as set out in the Table. 3 Table Provision Delete Insert s. 4(1) def. of thereof of it business s. 8(2) such continuous continuous employment, as is employment referred to in subsection (1), s. 8(3) of such continuous but less than employment since 10 years of the commencement continuous thereof, but less than employment 10 years s. 9(2) deemed (each taken occurrence) s. 27(3) s. 9(2) hereunder (each under this subsection occurrence) s. 10(1) thereto s. 10(1) hereunder s. 10(2) thereto (1st occurrence) s. 10(2) prior thereto before s. 11(1) the foregoing this subsection page 150 Industrial Relations Legislation Amendment Bill 2020 Long Service Leave Act 1958 amended Part 3 s. 87 Provision Delete Insert s. 26(2)(b) 7 years thereafter 7 years after that s. 27(2) hereunder s. 39 deemed page 151 Industrial Relations Legislation Amendment Bill 2020 Part 4 Minimum Conditions of Employment Act 1993 amended s. 88 1 Part 4 -- Minimum Conditions of Employment Act 1993 2 amended 3 88. Act amended 4 This Part amends the Minimum Conditions of Employment 5 Act 1993. 6 89. Section 3 amended 7 (1) In section 3(1) delete the definition of employee. 8 (2) In section 3(1) insert in alphabetical order: 9 10 employee means -- 11 (a) a person who is employed by an employer to do 12 work for hire or reward, including as an 13 apprentice; or 14 (b) a person whose usual status is that of an 15 employee; 16 industrial instrument means an award or 17 employer-employee agreement; 18 19 90. Section 5 amended 20 (1) Delete section 5(1) and insert: 21 22 (1) The minimum conditions of employment extend to and 23 bind all employees and employers and are taken to be 24 implied -- 25 (a) in an industrial instrument; or 26 (b) if a contract of employment is not governed by 27 an industrial instrument -- in that contract. 28 page 152 Industrial Relations Legislation Amendment Bill 2020 Minimum Conditions of Employment Act 1993 amended Part 4 s. 91 1 (2) In section 5(5) delete "sections 8 and 9(1)." and insert: 2 3 section 8. 4 5 91. Section 7 replaced 6 Delete section 7 and insert: 7 8 7. Enforcement of minimum conditions 9 A minimum condition of employment may be enforced 10 under the IR Act section 83 -- 11 (a) as an entitlement provision; or 12 (b) if the condition is implied in an industrial 13 instrument -- as a provision of the instrument. 14 15 92. Section 8 amended 16 In section 8(1)(c) delete "writing." and insert: 17 18 writing, signed by the employer and the employee. 19 20 Note: The heading to amended section 8 is to read: 21 Cashing out of accrued annual leave 22 93. Section 9 deleted 23 Delete section 9. 24 94. Section 9A amended 25 (1) In section 9A(4) delete the definition of industrial instrument. page 153 Industrial Relations Legislation Amendment Bill 2020 Part 4 Minimum Conditions of Employment Act 1993 amended s. 95 1 (2) In section 9A(4) in the definition of authorised leave 2 paragraph (c) delete "Commonwealth;" and insert: 3 4 Commonwealth. 5 6 95. Section 9B amended 7 In section 9B(2)(a) delete "health and safety" and insert: 8 9 safety and health 10 11 96. Part 3 Division 1 heading inserted 12 At the beginning of Part 3 insert: 13 14 Division 1 -- General 15 16 97. Section 10 amended 17 (1) In section 10: 18 (a) delete "An" and insert: 19 20 (1) Except as provided in section 16, an 21 22 (b) delete "13, 14 or 15," and insert: 23 24 13 or 14, 25 page 154 Industrial Relations Legislation Amendment Bill 2020 Minimum Conditions of Employment Act 1993 amended Part 4 s. 98 1 (2) At the end of section 10 insert: 2 3 (2) Nothing in this section prevents an industrial 4 instrument from providing for minimum rates of pay 5 for an employee with a disability. 6 7 98. Part 3 Division 2 inserted 8 At the end of Part 3 insert: 9 10 Division 2 -- Employees with disabilities 11 15. Terms used 12 In this Division -- 13 employee with a disability means an employee whose 14 productive capacity -- 15 (a) has been assessed under -- 16 (i) the SWS; or 17 (ii) a supported wage industrial instrument 18 provision; 19 and 20 (b) is assessed as being reduced because of a 21 disability; 22 instrument-free employee with a disability means an 23 employee -- 24 (a) whose contract of employment is not governed 25 by an industrial instrument; and 26 (b) whose productive capacity has been assessed 27 under the SWS as being reduced because of a 28 disability; page 155 Industrial Relations Legislation Amendment Bill 2020 Part 4 Minimum Conditions of Employment Act 1993 amended s. 98 1 instrument-governed employee with a disability means 2 an employee -- 3 (a) whose contract of employment is governed by 4 an industrial instrument that includes a SWIIP 5 that incorporates the SWS; and 6 (b) whose productive capacity has been assessed 7 under the SWS as being reduced because of a 8 disability; and 9 (c) who is not employed by a supported 10 employment service as defined in the Disability 11 Services Act 1986 (Commonwealth) section 7; 12 and 13 (d) who is being paid a weekly rate of pay 14 determined by the SWS under the SWIIP; 15 supported wage industrial instrument provision or 16 SWIIP means a provision of an industrial instrument 17 that -- 18 (a) applies to an employee with a disability; and 19 (b) provides a means (a wage assessment tool) for 20 the assessment of whether, and the extent to 21 which, the employee's productive capacity is 22 reduced because of the disability; and 23 (c) provides that the employer may pay a wage 24 that -- 25 (i) relates to the employee's productive 26 capacity as assessed using the wage 27 assessment tool; and 28 (ii) may be less than the applicable 29 minimum wage in the industrial 30 instrument; page 156 Industrial Relations Legislation Amendment Bill 2020 Minimum Conditions of Employment Act 1993 amended Part 4 s. 98 1 Supported Wage System or SWS means the scheme 2 established by the Commonwealth Government to 3 enable the assessment of whether, and the extent to 4 which, a person's productive capacity is reduced 5 because of a disability. 6 16. Application of Act to employee with disability 7 (1) Section 10 does not apply to an employee with a 8 disability who has been assessed under the SWS or a 9 SWIIP and is being paid a rate of pay in accordance 10 with that assessment. 11 (2) A person eligible to be employed under the SWS may 12 be employed under its provisions for the purposes of 13 this Act. 14 17. Minimum pay for employee with disability 15 (1) This section applies to the following -- 16 (a) an instrument-free employee with a disability; 17 (b) an instrument-governed employee with a 18 disability; 19 (c) an employee who is employed for a trial period 20 for the purpose of an assessment under the 21 SWS as to whether the employee will become 22 an employee referred to in paragraph (a) or (b). 23 (2) Except as provided in subsection (3), the minimum 24 amount payable for each week worked by the 25 employee is an amount not less than the amount 26 in effect at that time under the IR Act 27 section 50A(1)(a)(iii), regardless of the number of 28 hours worked by the employee during the relevant 29 week. page 157 Industrial Relations Legislation Amendment Bill 2020 Part 4 Minimum Conditions of Employment Act 1993 amended s. 99 1 (3) An instrument-free employee with a disability is 2 entitled to be paid the higher of the following 3 amounts -- 4 (a) for each hour worked by the employee in a 5 week, an amount calculated by -- 6 (i) determining the weekly rate of pay 7 applicable to the employee by reference 8 to the percentage of the rate referred to 9 in section 12 that corresponds to the 10 employee's assessed productive 11 capacity under the SWS, rounded up to 12 the nearest 10 cents; and 13 (ii) dividing that weekly rate by 38; 14 (b) the amount referred to in subsection (2). 15 16 99. Section 17B amended 17 Delete section 17B(2) and (3) and insert: 18 19 (2) In proceedings by an employee for recovery of any 20 amount due as the employee's pay, anything given or 21 provided by the employer contrary to subsection (1) is 22 to be treated as if it had never been given or provided. 23 24 100. Section 17BA inserted 25 After section 17B insert: 26 27 17BA. Employee and prospective employees not to be 28 unreasonably compelled to spend or pay amount 29 (1) In this section -- page 158 Industrial Relations Legislation Amendment Bill 2020 Minimum Conditions of Employment Act 1993 amended Part 4 s. 100 1 party related, in relation to an employer or prospective 2 employer, means a relative of the employer or 3 prospective employer; 4 relative, of an employer, means -- 5 (a) each of the following people, whether the 6 relationship is established by, or traced through, 7 consanguinity, marriage, a de facto 8 relationship, a written law or a natural 9 relationship -- 10 (i) a parent, grandparent or other ancestor; 11 (ii) a step-parent; 12 (iii) a sibling; 13 (iv) an uncle or aunt; 14 (v) a cousin; 15 (vi) a spouse or de facto partner; 16 or 17 (b) in the case of an employer who is an Aboriginal 18 person or Torres Strait Islander -- a person 19 regarded under the customary law or tradition 20 of the employer's community as the equivalent 21 of a person mentioned in paragraph (a). 22 (2) An employer must not directly or indirectly require an 23 employee to spend, or pay to the employer or another 24 person, an amount of the employee's money or the 25 whole or any part of an amount payable to the 26 employee in relation to the performance of work, if -- 27 (a) the requirement is unreasonable in the 28 circumstances; and page 159 Industrial Relations Legislation Amendment Bill 2020 Part 4 Minimum Conditions of Employment Act 1993 amended s. 100 1 (b) in the case of a payment -- the payment is 2 directly or indirectly for the benefit of the 3 employer or a party related to the employer. 4 (3) An employer (the prospective employer) must not 5 directly or indirectly require another person (the 6 prospective employee) to spend, or pay to the 7 prospective employer or any other person, an amount 8 of the prospective employee's money if -- 9 (a) the requirement is in connection with 10 employment or potential employment of the 11 prospective employee by the prospective 12 employer; and 13 (b) the requirement is unreasonable in the 14 circumstances; and 15 (c) in the case of a payment -- the payment is 16 directly or indirectly for the benefit of the 17 prospective employer or a party related to the 18 prospective employer. 19 (4) The regulations may prescribe circumstances in which 20 a requirement referred to in subsection (2) or (3) is or is 21 not reasonable. 22 (5) A contravention of subsection (2) or (3) is not an 23 offence but that subsection is a civil penalty provision 24 for the purposes of the IR Act section 83E. 25 (6) In proceedings under the IR Act section 83E for a 26 contravention of subsection (2), an industrial 27 magistrate's court may, as an alternative, determine 28 that a contravention of an entitlement provision has 29 occurred for the purposes of the IR Act section 83. 30 (7) If the industrial magistrate's court determines that an 31 employer has contravened subsection (2) or (3) in 32 respect of an employee or prospective employee, the 33 industrial magistrate's court may order the employer to page 160 Industrial Relations Legislation Amendment Bill 2020 Minimum Conditions of Employment Act 1993 amended Part 4 s. 101 1 pay to the employee or prospective employee 2 compensation for any loss or injury suffered as a result 3 of the contravention. 4 (8) The industrial magistrate's court may make an order 5 under subsection (7) in addition to imposing a penalty 6 under section 83E. 7 8 101. Section 18 amended 9 (1) In section 18(2): 10 (a) delete "determined under subsection (1)," and insert: 11 12 determined, or have varied over the period of 13 employment, for the purpose of payment for leave under 14 subsection (1), 15 16 (b) delete "in the 52 weeks" and insert: 17 18 during the period prescribed in subsection (2A) 19 20 (2) After section 18(2) insert: 21 22 (2A) For the purposes of subsection (2), the period 23 prescribed is the shorter of the following -- 24 (a) 52 weeks; 25 (b) the period of employment. 26 27 102. Part 6 deleted 28 Delete Part 6. page 161 Industrial Relations Legislation Amendment Bill 2020 Part 4 Minimum Conditions of Employment Act 1993 amended s. 103 1 103. Part 8 inserted 2 After section 47 insert: 3 4 Part 8 -- Transitional provisions for Industrial 5 Relations Legislation Amendment Act 2020 6 48. Term used: commencement day 7 In this Part -- 8 commencement day means the day on which the 9 Industrial Relations Legislation Amendment Act 2020 10 section 89 comes into operation. 11 49. Employees remunerated wholly by percentage 12 reward or at piece rates 13 (1) This section applies to an employee -- 14 (a) whose services were, immediately before the 15 commencement day, remunerated wholly -- 16 (i) by commission or percentage reward; or 17 (ii) at piece rates; 18 and 19 (b) in relation to whom an industrial instrument or 20 contract of employment did not specify the rate 21 of pay the employee was entitled to when on a 22 period of leave. 23 (2) For the purposes of section 18, the employee's contract 24 of employment is, on and after the commencement day, 25 taken to specify the employee's weekly rate of pay as 26 the minimum weekly rate of pay applicable under 27 section 12, 13 or 14. page 162 Industrial Relations Legislation Amendment Bill 2020 Minimum Conditions of Employment Act 1993 amended Part 4 s. 103 1 50. Employees with disabilities 2 (1) In this section -- 3 assessment means assessment of an employee's 4 productive capacity under the SWS as defined in 5 section 15; 6 assessment period means a period starting on the 7 commencement day and ending on the earlier of the 8 following -- 9 (a) the day on which an assessment of the 10 employee's productive capacity is completed 11 for the purposes of determining the employee's 12 minimum rate of pay under section 17(3)(a); 13 (b) the day that is 6 months after the 14 commencement day. 15 (2) This section applies to a person who, immediately 16 before the commencement day, was an employee with 17 a disability whose contract of employment was not 18 governed by an industrial instrument. 19 (3) During the assessment period the employee is entitled 20 to be paid, for each week worked by the employee, the 21 higher of the following -- 22 (a) the employee's weekly wage immediately 23 before the commencement day; 24 (b) the amount referred to in section 17(2). 25 (4) If the employee's assessment is completed, and the 26 employee's wage is determined, within the assessment 27 period, subsection (3) ceases to apply to the employee 28 on the day of completion. 29 (5) If the employee is not assessed, or the employee's 30 assessment is not completed, within the assessment 31 period, then on and after the expiry of the assessment 32 period the employee is entitled to be paid in accordance page 163 Industrial Relations Legislation Amendment Bill 2020 Part 4 Minimum Conditions of Employment Act 1993 amended s. 103 1 with section 10(1) until such time as the employee's 2 productive capacity is determined, on an assessment, to 3 be reduced by a disability. 4 51. "Under rate employee" provisions in awards 5 (1) In this section -- 6 assessment means assessment of an employee's 7 productive capacity under the SWS or a SWIIP, as 8 those terms are defined in section 15; 9 assessment period means the period ending 6 months 10 after the commencement day; 11 pre-commencement day wage means the weekly wage 12 that an under rate employee was entitled to be paid 13 immediately before the commencement day; 14 under rate employee means an employee who was, 15 immediately before the commencement day, entitled to 16 be paid under an under rate employee provision by 17 reason of infirmity; 18 under rate employee provision means a provision in an 19 award to the effect that an employee who by reason of 20 old age or infirmity is unable to earn the minimum 21 wage may be paid a lesser wage as is agreed in writing 22 between a union and the employer. 23 (2) On and from the commencement day each under rate 24 employee provision is of no effect to the extent to 25 which it applies to an employee who by reason of 26 infirmity or old age is unable to earn the minimum 27 wage. 28 (3) During the assessment period, an under rate employee 29 is entitled to be paid, for each week worked by the 30 employee, the higher of the following amounts -- 31 (a) the employee's pre-commencement day wage; 32 (b) the amount referred to in section 17(2). page 164 Industrial Relations Legislation Amendment Bill 2020 Minimum Conditions of Employment Act 1993 amended Part 4 s. 104 1 (4) If an employee's assessment is completed, and the 2 employee's wage is determined, within the assessment 3 period, subsection (3) ceases to apply to the employee 4 on the day of completion. 5 (5) If an employee is not assessed, or the employee's 6 assessment is not completed, within the assessment 7 period, then on and after the expiry of the assessment 8 period the employee is entitled to be paid in accordance 9 with the rate of pay applicable under the award until 10 such time as the employee's productive capacity is 11 determined, on an assessment, to be reduced by a 12 disability. 13 14 104. Various references to gender removed 15 (1) In the provisions listed in the Table delete "his or her" and 16 insert: 17 18 the employee's 19 20 Table s. 3(3)(a) s. 17B(1) s. 33(2)(b) s. 35 s. 36(1) s. 37(1) s. 38(2) 21 (2) In the provisions listed in the Table delete "he or she" and 22 insert: 23 24 the employee 25 page 165 Industrial Relations Legislation Amendment Bill 2020 Part 4 Minimum Conditions of Employment Act 1993 amended s. 104 1 Table s. 11(1) s. 24(1), (2) and (3) s. 30 s. 33(2) s. 38(1) s. 43(1) 2 (3) In the provisions listed in the Table delete "his or her". 3 Table s. 17C(1) s. 18(1) s. 24(2)(a) and (3)(a) s. 25(1) and (2) 4

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