Fair Work (Commonwealth Powers) Act 2009

Version No. 005 Fair Work (Commonwealth Powers) Act 2009 No. 24 of 2009 Version incorporating amendments as at 1 January 2010

TABLE OF PROVISIONS

Section Page

PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 1

PART 2—REFERENCE OF MATTERS 3 3 Definitions 3 3A Fundamental workplace relations principles 10 4 Reference of matters 11 5 Matters excluded from a reference 12 6 Termination of reference 16 7 Effect of termination of amendment reference or transition reference before initial reference 16 7A Period for termination of references 17

PART 3—REPEAL OF THE COMMONWEALTH POWERS (INDUSTRIAL RELATIONS) ACT 1996 19 8 Repeal of the Commonwealth Powers (Industrial Relations) Act 1996 19

PART 4—AMENDMENT OF THE LONG SERVICE LEAVE ACT 1992 20 9 Definitions 20 10 Meaning of continuous employment 23 11 Contracting out prohibited 24 12 Reverse onus of proof in certain cases 24 13 Recovery of money owed 24

i PART 5—AMENDMENT OF THE PUBLIC SECTOR EMPLOYMENT (AWARD ENTITLEMENTS) ACT 2006 26 14 Definitions 26 15 Preserved award 27 16 Preserved entitlements 27 17 Preservation of award conditions 27 18 Definitions 28

PART 6—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 29 Division 1—Amendments to the Outworkers (Improved Protection) Act 2003 29 19 Definitions 29 20 Outworkers are employees for the purposes of certain laws 31 21 Effect of sections 5 to 10 31 22 Operation of section 12 31 23 Minimum conditions for outworkers 31 24 Effect of the mandatory code 32 25 Definitions and purpose of Division 32 26 Investigating suspected contraventions of Act 33 27 Discussions with outworkers 33 28 Consequential amendment of registered organisation 33 29 Consequential amendment of registered organisation 33 30 Consequential amendment of registered organisation 33 31 Prosecutions under Federal Awards (Uniform System) Act 2003 34 32 Consequential amendment of registered organisation 34 Division 2—Amendments to the Public Holidays Act 1993 34 33 Holiday entitlements 34 Division 3—Amendments to the Occupational Health and Safety Act 2004 35 34 Definitions relating to registered employee organisations 35 35 Entry powers of authorised representatives 36

PART 7—REPEAL OF OTHER ACTS AND PROVISIONS 38 36 Repeal of the Victorian Workers' Wages Protection Act 2007 38 37 Repeal of provisions of the Public Administration Act 2004 38 38 New section 117 inserted in the Public Administration Act 2004 39

ii 117 Transitional provision—repeal of Subdivision 5A of Division 2 of Part 4 39 39 Repeal of provisions of the Parliamentary Administration Act 2005 39 40 New section 36 inserted in the Parliamentary Administration Act 2005 39 36 Transitional provision—repeal of Division 7 of Part 3 39

PART 8—REPEAL OF CERTAIN PARTS OF THIS ACT 40 41 Repeal of Parts 4 to 7 and this Part 40 ______

SCHEDULE—Text to be Included in the Provisions of the Commonwealth Fair Work Act 41 Division 2A—Application of this Act in a referring State 41 30A Meaning of terms used in this Division 41 30B Meaning of referring State 44 30C Extended meaning of national system employee 46 30D Extended meaning of national system employer 47 30E Extended ordinary meanings of employee and employer 47 30F Extended meaning of outworker entity 48 30G General protections 49 30H Division only has effect if supported by reference 49 30J Application of the Acts Interpretation Act 1901 49 ═══════════════

ENDNOTES 50 1. General Information 50 2. Table of Amendments 51 3. Explanatory Details 52

iii Version No. 005 Fair Work (Commonwealth Powers) Act 2009 No. 24 of 2009

Version incorporating amendments as at 1 January 2010

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes The purposes of this Act are— (a) to refer certain matters relating to workplace relations to the Commonwealth Parliament for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth; and (b) to repeal the Commonwealth Powers (Industrial Relations) Act 1996 and the Victorian Workers' Wages Protection Act 2007; and (c) to consequentially amend the Long Service Leave Act 1992, the Public Sector Employment (Award Entitlements) Act 2006, the Outworkers (Improved Protection) Act 2003, the Public Holidays Act 1993, the Occupational Health and Safety Act 2004, the Public Administration Act 2004 and the Parliamentary Administration Act 2005. 2 Commencement (1) This Part and Part 2 come into operation on the day on which this Act receives the Royal Assent.

1 s. 2

(2) The remaining provisions of this Act come into operation on a day or days to be proclaimed. ______

2 Fair Work (Commonwealth Powers) Act 2009 No. 24 of 2009 s. 3

PART 2—REFERENCE OF MATTERS

3 Definitions (1) In this Part— amendment reference means the reference under section 4(1)(b); Commonwealth Fair Work Act means the Fair Work Act 2009 of the Commonwealth; * * * * * S. 3(1) def. of essential services repealed by No. 74/2009 s. 3(4).

excluded subject matter means— (a) a State subject matter; or (b) rights or remedies incidental to a matter referred to in paragraph (a)— except to the extent that the Commonwealth Fair Work Act as originally enacted so deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under the Commonwealth Fair Work Act so to deal with the matter; express amendment of the Commonwealth Fair Work Act means the direct amendment of the text of that Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the Commonwealth Fair Work Act; fundamental workplace relations principles S. 3(1) def. of fundamental means the principles set out in section 3A; workplace relations principles inserted by No. 74/2009 3 s. 3(3). Fair Work (Commonwealth Powers) Act 2009 No. 24 of 2009 s. 3

initial reference means the reference under section 4(1)(a); initial referred provisions means the scheduled text, to the extent to which that text deals with matters that are included in the legislative powers of the Parliament of the State; law enforcement officer means any of the following— (a) a member of the force within the meaning of the Police Regulation Act 1958; (b) a police reservist appointed under Part VI of the Police Regulation Act 1958; (c) a protective services officer appointed under Part VIA of the Police Regulation Act 1958; (d) a police recruit appointed under section 8A of the Police Regulation Act 1958; public sector has the meaning in the Public Administration Act 2004 and, in addition, includes any person in the service of the State; public sector body has the same meaning as in the Public Administration Act 2004;

reference means— (a) the initial reference; or

(b) the amendment reference; or (c) the transition reference; referred subject matters means any of the S. 3(1) def. of referred following— subject matters (a) terms and conditions of employment amended by No. 74/2009 including any of the following— s. 3(1). (i) minimum terms and conditions of employment (including employment standards and minimum wages); (ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise-level agreements); (iii) bargaining in relation to terms and conditions of employment; (iv) the effect of transfer of business on terms and conditions of employment; (b) terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers; (c) rights and responsibilities of persons, including employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following—

(i) freedom of association in the context of workplace relations, and related protections; (ii) protection from discrimination relating to employment; (iii) termination of employment; (iv) industrial action; (v) protection from payment of fees for services related to bargaining; (vi) sham independent contractor arrangements; (vii) standing down employees without pay; (viii) union rights of entry and rights of access to records; (d) compliance with, and enforcement of, the Commonwealth Fair Work Act; (e) the administration of the Commonwealth Fair Work Act; (f) the application of the Commonwealth Fair Work Act; (g) matters incidental or ancillary to the operation of the Commonwealth Fair Work Act or of instruments made or given effect under the Commonwealth Fair Work Act— but does not include any excluded subject matter;

6 Fair Work (Commonwealth Powers) Act 2009 No. 24 of 2009 s. 3 referred transition matters means the matters of the making of laws with respect to the transition from the regime provided for by— (a) the Workplace Relations Act 1996 of the Commonwealth; or (b) a law of this State relating to workplace relations— to the regime provided for by the Commonwealth Fair Work Act; scheduled text means the text set out in the Schedule; State subject matters means the following subject S. 3(1) def. of State subject matters— matters amended by (a) a matter dealt with in the Equal No. 74/2009 Opportunity Act 1995; s. 3(2). (b) superannuation; (c) workers compensation; (d) occupational health and safety; (e) matters relating to outworkers (within the ordinary meaning of the term); (f) child labour; (g) training arrangements; (h) long service leave; (i) leave for victims of crime; (j) attendance for service on a jury, or for emergency service duties; (k) declaration, prescription or substitution of public holidays;

(l) the following matters relating to the provision of essential services or to situations of emergency— (i) directions to perform work (including to perform work at a particular time or place, or in a particular way); (ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way); (m) regulation of any of the following— (i) employee associations; (ii) employer associations; (iii) members of employee associations or employer associations; (n) workplace surveillance; (o) business trading hours; (p) claims for enforcement of contracts of employment, except so far as a law of the State provides for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; state of emergency means— (a) any state of emergency or emergency situation that is declared under an Act and includes any of the following— (i) a state of emergency declared under the Essential Services Act 1958;

(ii) a state of emergency declared under the Public Safety Preservation Act 1958; (iii) a proclamation under the Fuel Emergency Act 1977 declaring that a state of emergency exists in relation to fuel; (b) any declaration or proclamation under the Public Administration Act 2004 that authorises a public sector body Head to take any of the following actions— (i) assign any duties to an employee; (ii) require an employee to perform duties with another public sector body; (iii) require an employee to perform duties at a place other than the employee's usual place of work; (iv) direct an employee not to attend for duty; (c) any other similar declaration or proclamation; transition reference means the reference under section 4(1)(c). (2) For the purpose of a reference of matters under this Act— (a) the Chief Commissioner of Police under the Police Regulation Act 1958 is taken to be the employer of any law enforcement officer; and (b) any law enforcement officer is taken to be an employee in the public sector.

9 Fair Work (Commonwealth Powers) Act 2009 No. 24 of 2009 s. 3A

S. 3(3) (3) Words or phrases in the definition of referred substituted b subject matters or in the definition of State y No. 74/2009 s. 3(5). subject matters that are defined in the Commonwealth Fair Work Act (other than in Division 2A of Part 1–3 of the Commonwealth Fair Work Act) have the meaning set out in the Commonwealth Fair Work Act as in force on 1 July 2009. S. 3A 3A Fundamental workplace relations principles inserted by No. 74/2009 s. 4. The following are the fundamental workplace relations principles under this Act— (a) that the Commonwealth Fair Work Act should provide for, and continue to provide for, the following— (i) a strong, simple and enforceable safety net of minimum employment standards; (ii) genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities; (iii) collective bargaining at the enterprise level with no provision for individual statutory agreements; (iv) fair and effective remedies available through an independent umpire; (v) protection from unfair dismissal; (b) that there should be, and continue to be, in connection with the operation of the Commonwealth Fair Work Act, the following— (i) an independent tribunal system;

(ii) an independent authority able to assist employers and employees within a national workplace relations system. 4 Reference of matters (1) Subject to section 5, the following matters are referred to the Parliament of the Commonwealth — (a) the matters to which the initial referred provisions relate, but only to the extent of the making of laws with respect to those matters by including the provisions set out in the scheduled text in the Commonwealth Fair Work Act, as originally enacted, in the terms, or substantially in the terms, set out in the scheduled text; (b) the referred subject matters, but only to the extent of making laws with respect to any such matter by making express amendments of the Commonwealth Fair Work Act; (c) the referred transition matters. (2) The reference of a matter under subsection (1) has effect only— (a) if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth); and (b) if and to the extent that the matter is included in the legislative powers of the Parliament of the State. (3) The operation of each paragraph of subsection (1) is not affected by any other paragraph.

(4) For the avoidance of doubt, it is the intention of the Parliament of the State that the Commonwealth Fair Work Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts whose operation is based on legislative powers that the Parliament of the Commonwealth has apart from under the references under subsection (1). (5) Despite any other provision of this section a reference under subsection (1) has effect for a period— (a) beginning when this section commences; and (b) ending at the end of the day fixed under section 6 as the day on which the reference is to terminate— but no longer. 5 Matters excluded from a reference (1) A matter referred by section 4(1) does not include — (a) matters pertaining to the number, identity or appointment (other than terms and conditions of appointment) of employees in the public sector who are not law enforcement officers; (b) matters pertaining to the number or identity of employees in the public sector dismissed or to be dismissed on grounds of redundancy; (c) matters pertaining to Ministers, members of the Parliament, judicial officers or members of administrative tribunals; (d) matters pertaining to persons holding office in the public sector to which the right to

appoint is vested in the Governor in Council or a Minister (including the Premier); (e) matters pertaining to persons employed as executives within the meaning of the Public Administration Act 2004 or persons employed at higher managerial levels in the public sector; (f) matters pertaining to persons employed as Ministerial officers under Part 6 of the Public Administration Act 2004; (g) matters pertaining to persons holding office as Parliamentary officers (but not persons employed as Parliamentary officers under Division 3 of Part 3 of the Parliamentary Administration Act 2005) or persons employed as Department Heads within the meaning of the Parliamentary Administration Act 2005, including the Secretary of the Department of Parliamentary Services; (h) matters pertaining to— (i) the transfer of employees between public sector bodies; or (ii) the redundancy of employees of a public sector body— as a result of a restructure by or under an Act; (i) the following matters relating to provision of essential services or to a state of emergency — (i) directions to employees of a public sector body to perform work (including to perform work at a particular time or place, or in a particular way), being directions that are given under the Act

under which the relevant proclamation or declaration is made; (ii) directions to employees of a public sector body not to perform work (including not to perform work at a particular time or place, or in a particular way), being directions that are given under the Act under which the relevant proclamation or declaration is made; (j) matters that would allow or require a public sector employer within the meaning of the Public Sector Employment (Award Entitlements) Act 2006 to provide a term or condition of employment in breach of section 10 of that Act; (k) matters that would allow or require a public sector employer within the meaning of the Public Sector Employment (Award Entitlements) Act 2006 to offer an employee within the meaning of that Act, or to accept an offer from an employee of, a statutory industrial agreement within the meaning of that Act that provides any terms or conditions of employment that are materially different from the terms and conditions of employment that would otherwise apply to the employee in employment with the employer under a collective agreement or that would apply to the employee under the terms of a relevant award or a designated preserved award within the meaning of that Act. (2) In addition to the matters set out in subsection (1), a matter referred by section 4(1) does not include —

(a) matters pertaining to the number, identity or appointment (including terms and conditions of appointment, to the extent provided for in paragraph (b)) of law enforcement officers; (b) matters pertaining to probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers except— (i) matters pertaining to the payment of allowances and reimbursement of expenses and pertaining to notice of termination of employment and payment in lieu of notice of termination of employment; and (ii) to the extent that Divisions 1 and 2 of Part 6-4 of the Commonwealth Fair Work Act, as originally enacted, deal with the matters. (3) In this section, essential services means any of the S. 5(3) inserted by following— No. 74/2009 s. 5. (a) any matter in respect of which a proclamation has been made under Part 6 of the Electricity Industry Act 2000; (b) any matter in respect of which a proclamation has been made under Part 9 of the Gas Industry Act 2001; (c) any vital State project that is declared to be so under the Vital State Projects Act 1976; (d) any vital industry that is declared to be so under the Vital State Industries (Works and Services) Act 1992.

6 Termination of reference (1) The Governor in Council may, at any time, by proclamation published in the Government Gazette, fix a day as the day on which— (a) the references are to terminate; or (b) the amendment reference is to terminate; or (c) the transition reference is to terminate. (2) The Governor in Council may, by proclamation published in the Government Gazette, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 4) never to have been published. (3) A revoking proclamation has effect only if published before the day fixed under subsection (1). (4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection. S. 6(5) (5) If the amendment reference and the transition inserted by No. 74/2009 reference have been terminated, the expression s. 6. the references in subsection (1) refers only to the initial reference. 7 Effect of termination of amendment reference or transition reference before initial reference (1) If the amendment reference or the transition reference terminates before the initial reference, the termination of the amendment reference or transition reference does not affect— (a) laws that were made under that reference before that termination (whether or not they have come into operation before that termination); or

(b) the continued operation in the State of the Commonwealth Fair Work Act as in operation immediately before that termination or as subsequently amended or affected by— (i) laws referred to in paragraph (a) that come into operation after that termination; or (ii) provisions referred to in section 4(4). (2) Accordingly, the amendment reference or transition reference continues to have effect for the purposes of subsection (1) unless the initial reference is terminated. * * * * * S. 7(3) repealed by No. 74/2009 s. 7.

7A Period for termination of references S. 7A inserted by No. 74/2009 (1) Subject to subsection (2), a day fixed by a s. 8. proclamation under section 6(1) must be no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published. (2) If— (a) a proclamation under section 6(1) only provides for the termination of the amendment reference; and (b) the Governor in Council, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor in Council, the Commonwealth Fair Work Act—

(i) is proposed to be amended (by an amendment introduced into the Parliament of the Commonwealth by a Commonwealth Minister); or (ii) has been amended— in a manner that is inconsistent with one or more of the fundamental workplace relations principles— the day fixed by the proclamation under section 6(1)(b) may be earlier than the day that applies under subsection (1) but must be no earlier than the first day after the end of the period of 3 months beginning on the day on which the proclamation is published. (3) If the Governor in Council terminates the amendment reference and fixes a day under subsection (2), the Minister must, as soon as practicable after the publication of the relevant proclamation, prepare a report on the matter and cause copies of that report to be laid before both Houses of Parliament. ______

PART 3—REPEAL OF THE COMMONWEALTH POWERS (INDUSTRIAL RELATIONS) ACT 1996

8 Repeal of the Commonwealth Powers (Industrial See: Act No. Relations) Act 1996 59/1996 and The Commonwealth Powers (Industrial amending Act Nos Relations) Act 1996 is repealed. 18/2003, 15/2006 and 80/2006. LawToday: www. legislation. vic.gov.au ______

PART 4—AMENDMENT OF THE LONG SERVICE LEAVE ACT 1992

9 Definitions See: In section 4 of the Long Service Leave Act 1992 Act No. 83/1992. — Reprint No. 3 as at (a) for the definition of employment agreement 16 February 2006 substitute— and amending "employment agreement means the Act Nos agreement (whether written or oral) 29/2006 and 56/2006. under which an employee is employed LawToday: and includes— www. legislation. (a) a federal agreement; vic.gov.au (b) any terms and conditions of employment to which an employee is entitled under— (i) any federal award; (ii) any federal determination; (iii) any federal wage setting instrument;"; (b) for the definition of organisation substitute — "organisation means— (a) an organisation of employees; (b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or a Territory of the Commonwealth; (c) an association of employees, a principal purpose of which is the protection and promotion of the

employees' interests in matters concerning their employment;"; (c) insert the following definitions— "Commonwealth Fair Work Act means the Fair Work Act 2009 of the Commonwealth; Fair Work Transition Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; federal agreement means— (a) a certified agreement or an Australian Workplace Agreement made under the Workplace Relations Act 1996 of the Commonwealth, as in force immediately before 27 March 2006; or (b) a workplace agreement within the meaning of the Workplace Relations Act 1996 of the Commonwealth (as in force before the WR Act repeal day); (c) any— (i) pre-reform certified agreement; or (ii) Australian Workplace Agreement; or (iii) pre-reform Australian Workplace Agreement; or (iv) workplace agreement; or

(v) Individual Transitional Employment Agreement— that is a transitional instrument that continues in existence or is made under the Fair Work Transition Act; (d) any enterprise agreement within the meaning of the Commonwealth Fair Work Act; federal award means— (a) an award made under the Workplace Relations Act 1996 of the Commonwealth (as in force before the WR Act repeal day); (b) an award that is a transitional instrument that continues in existence under the Fair Work Transition Act; (c) a transitional award or common rule that continues in existence under the Fair Work Transition Act; (d) any other award-based transitional instrument under the Fair Work Transition Act; (e) any award, that is taken to be a modern award under the Fair Work Transition Act; (f) any other modern award, within the meaning of the Commonwealth Fair Work Act;

federal determination means— (a) any workplace determination that continues in existence under the Fair Work Transition Act; (b) any workplace determination within the meaning of the Commonwealth Fair Work Act; federal wage setting instrument means— (a) any transitional minimum wage instrument that continues in existence under the Fair Work Transition Act; (b) any national minimum wage order within the meaning of the Commonwealth Fair Work Act; WR Act repeal day has the same meaning as in the Fair Work Transition Act.". 10 Meaning of continuous employment For section 62(2)(ca) of the Long Service Leave Act 1992 substitute— "(ca) the taking of any period of adoption, maternity or paternity leave (paid or unpaid), not exceeding— (i) 12 months; or (ii) any longer period— (A) specified in the employee's employment agreement; or (B) to which the employee is entitled under Division 6 of Part 7 of the Workplace Relations Act 1996 of the Commonwealth, as continued in force under the Fair Work Transition Act; or

(C) to which the employee is entitled under the National Employment Standards within the meaning of the Commonwealth Fair Work Act;". 11 Contracting out prohibited For section 79(3) of the Long Service Leave Act 1992 substitute— "(3) In this section, employment agreement does not include— (a) a workplace agreement to which paragraph (c) of the definition of federal agreement applies; (b) any terms and conditions of employment to which an employee is entitled under an award to which paragraph (b), (c) or (d) of the definition of federal award applies.". 12 Reverse onus of proof in certain cases For section 159(2) of the Long Service Leave Act 1992 substitute— "(2) In this section, employment agreement does not include— (a) a federal agreement; or (b) any terms and conditions of employment to which an employee is entitled under— (i) a federal award; or (ii) a federal determination.". 13 Recovery of money owed (1) In section 160(2) of the Long Service Leave Act 1992, for "A registered organisation" substitute "An organisation".

(2) In section 160(8) of the Long Service Leave Act 1992— (a) for the definition of employment agreement substitute— "employment agreement does not include— (a) a federal agreement; or (b) terms and conditions of employment to which an employee is entitled under— (i) a federal award; or (ii) a federal determination;"; (b) for the definition of registered organisation substitute— "organisation has the same meaning as in the Commonwealth Fair Work Act.". ______

PART 5—AMENDMENT OF THE PUBLIC SECTOR EMPLOYMENT (AWARD ENTITLEMENTS) ACT 2006

14 Definitions See: In section 3(1) of the Public Sector Employment Act No. 15/2006 (Award Entitlements) Act 2006— and amending (a) insert the following definitions— Act Nos 80/2006 and "Commonwealth Fair Work Act means the 27/2008. LawToday: Fair Work Act 2009 of the www. Commonwealth as in force from time to legislation. vic.gov.au time; Fair Work Australia has the same meaning as it has in the Commonwealth Fair Work Act; Fair Work Transition Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;"; (b) in the definition of Commonwealth Act, for "from time to time" substitute "as in force before the WR Act repeal day (within the meaning of the Fair Work Transition Act)"; (c) in the definition of workplace agreement, after "Commonwealth Act" insert "and includes any workplace agreement that is the subject of a transitional arrangement under the Fair Work Transition Act"; (d) in the definition of workplace determination, after "Commonwealth Act" insert "and includes any workplace determination that is the subject of a transitional arrangement under the Fair Work Transition Act".

15 Preserved award (1) In section 5(2)(b) of the Public Sector Employment (Award Entitlements) Act 2006, for "Commission." substitute "Commission;". (2) After section 5(2)(b) of the Public Sector Employment (Award Entitlements) Act 2006 insert— "(c) an order or determination of Fair Work Australia made under the Commonwealth Fair Work Act or the Fair Work Transition Act.". 16 Preserved entitlements In section 9 of the Public Sector Employment (Award Entitlements) Act 2006, for "Act." substitute "Act, or continued in force under a transitional arrangement under the Fair Work Transition Act.". 17 Preservation of award conditions (1) In section 10(2)(b) of the Public Sector Employment (Award Entitlements) Act 2006, for "operation." substitute "operation; or". (2) After section 10(2)(b) of the Public Sector Employment (Award Entitlements) Act 2006 insert— "(c) if an enterprise agreement made under the Commonwealth Fair Work Act applies to the public sector employer and employee; or (d) to the extent that it is inconsistent with a workplace determination (within the meaning of the Commonwealth Fair Work Act); or

(e) if the public sector employer and the employee are covered by a modern award within the meaning of the Commonwealth Fair Work Act.". 18 Definitions (1) In section 15A of the Public Sector Employment (Award Entitlements) Act 2006, in the definition of collective agreement, after paragraph (b) insert — "(c) an enterprise agreement made under the Commonwealth Fair Work Act;". (2) In section 15A of the Public Sector Employment (Award Entitlements) Act 2006, in the definition of statutory industrial agreement, for "collective agreement." substitute "collective agreement or an individual flexibility arrangement made under the Commonwealth Fair Work Act.". ______

PART 6—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

Division 1—Amendments to the Outworkers (Improved Protection) Act 2003

19 Definitions (1) In section 3 of the Outworkers (Improved See: Act No. Protection) Act 2003— 22/2003. Reprint No. 1 (a) for the definition of Australian Fair Pay as at 26 September and Conditions Standard substitute— 2007 and "Australian Fair Pay and Conditions amending Standard means the Australian Fair Act Nos 40/2007, Pay and Conditions Standard that 71/2007 and continues in existence under the Fair 4/2008. LawToday: Work Transition Act;"; www. legislation. (b) the definition of common rule order is vic.gov.au repealed; (c) the definition of Commonwealth Act is repealed; (d) for the definition of federal award substitute— "federal award means— (a) an award that is a transitional instrument that continues in existence under the Fair Work Transition Act; (b) a transitional award or common rule that continues in existence under the Fair Work Transition Act; (c) any other award-based transitional instrument under the Fair Work Transition Act;

(d) any award that is taken to be a modern award under the Fair Work Transition Act; (e) any other modern award, within the meaning of the Commonwealth Fair Work Act;"; (e) in the definition of interested organisation, for "an organisation that is not a registered organisation but" substitute "an organisation (other than within the meaning in this Act)"; (f) in the definition of outwork document omit "or a common rule order"; (g) the definition of registered organisation is repealed. (2) In section 3 of the Outworkers (Improved Protection) Act 2003 insert the following definitions— "Commonwealth Fair Work Act means the Fair Work Act 2009 of the Commonwealth; Fair Work Transition Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; National Employment Standards has the same meaning as in the Commonwealth Fair Work Act; organisation has the same meaning as in the Commonwealth Fair Work Act; payment of wages provisions means Division 2 of Part 2-9 of the Commonwealth Fair Work Act;".

20 Outworkers are employees for the purposes of certain laws (1) Section 4(2)(b) of the Outworkers (Improved Protection) Act 2003 is repealed. (2) Section 4(2)(ea) of the Outworkers (Improved Protection) Act 2003 is repealed. (3) In section 4(2)(f) of the Outworkers (Improved Protection) Act 2003— (a) omit "(including common rule orders)"; (b) for "(a), (b), (c), (d), (e) or (ea)" substitute "(a), (c), (d) or (e)". 21 Effect of sections 5 to 10 In section 11(1) of the Outworkers (Improved Protection) Act 2003 omit "or a common rule order". 22 Operation of section 12 In section 14(2) of the Outworkers (Improved Protection) Act 2003 omit "or any common rule order". 23 Minimum conditions for outworkers (1) In section 14A(1) of the Outworkers (Improved Protection) Act 2003— (a) in paragraph (a), after "if the person were bound by the award" insert "or the award applied to the person"; (b) in paragraph (b) for "Standard." substitute "Standard; and". (2) After section 14A(1)(b) of the Outworkers (Improved Protection) Act 2003 insert— "(c) the National Employment Standards; and (d) the payment of wages provisions.".

(3) In section 14A(2) of the Outworkers (Improved Protection) Act 2003— (a) in paragraph (a), after "if the person were bound by the award" insert "or the award applied to the person"; (b) in paragraph (b) for "Standard." substitute "Standard; and". (4) After section 14A(2)(b) of the Outworkers (Improved Protection) Act 2003 insert— "(c) the National Employment Standards; and (d) the payment of wages provisions.". 24 Effect of the mandatory code In section 25(2) of the Outworkers (Improved Protection) Act 2003— (a) omit "or a common rule order"; (b) omit "or common rule order". 25 Definitions and purpose of Division (1) In section 40(1) of the Outworkers (Improved Protection) Act 2003— (a) the definition of ancillary document is repealed; (b) the definition of AWA is repealed. (2) In section 40(2) of the Outworkers (Improved Protection) Act 2003 omit ", similar to the provisions in Division 11A of Part IX of the Commonwealth Act (as in force on 27 February 2003)".

26 Investigating suspected contraventions of Act (1) For section 41(2)(a) of the Outworkers (Improved Protection) Act 2003 substitute— "(a) occupied by an employer or contractor who is bound by a federal award that relates to outwork or to whom a federal award that relates to outwork applies; or". (2) In section 41(3)(a)(iii) of the Outworkers (Improved Protection) Act 2003 omit ", other than an AWA, an ancillary document or a document that shows some or all of the content of an AWA or of an ancillary document". 27 Discussions with outworkers (1) In section 42(1) of the Outworkers (Improved Protection) Act 2003, for "subsections (2) and (3)" substitute "subsection (2)". (2) Section 42(3) of the Outworkers (Improved Protection) Act 2003 is repealed. 28 Consequential amendment of registered organisation In section 46(1)(b) of the Outworkers (Improved Protection) Act 2003, for "a registered organisation" substitute "an organisation". 29 Consequential amendment of registered organisation In section 49(1)(b) of the Outworkers (Improved Protection) Act 2003, for "registered organisation" substitute "organisation". 30 Consequential amendment of registered organisation In section 50(1) of the Outworkers (Improved Protection) Act 2003, for "a registered organisation" substitute "an organisation".

31 Prosecutions under Federal Awards (Uniform System) Act 2003 Section 57 of the Outworkers (Improved Protection) Act 2003 is repealed. 32 Consequential amendment of registered organisation In sections 62(1)(a) and 62(2)(a) of the Outworkers (Improved Protection) Act 2003, for "a registered organisation" substitute "an organisation".

Division 2—Amendments to the Public Holidays Act 1993

33 Holiday entitlements See: (1) For section 10(1AA) of the Public Holidays Act Act No. 119/1993. 1993 substitute— Reprint No. 2 as at "(1AA) This section is of no effect to the extent that 17 February 2005 it is inconsistent with— and amending (a) the Fair Work Act 2009 of the Act Nos Commonwealth; 74/2006 and 55/2008. (b) any instrument given effect to by the LawToday: www. Fair Work Act 2009 of the legislation. Commonwealth; vic.gov.au (c) any instrument given continuing effect to by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth, being an instrument made under the Workplace Relations Act 1996 (as in force before the WR Act repeal day).".

(2) After section 10(2) of the Public Holidays Act 1993 insert— "(3) In this section WR Act repeal day has the same meaning as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.".

Division 3—Amendments to the Occupational Health and Safety Act 2004

34 Definitions relating to registered employee organisations (1) In section 79 of the Occupational Health and See: Act No. Safety Act 2004— 107/2004. Reprint No. 1 (a) in the definition of committee of as at 23 February management , for "Schedule 1B to the 2007 Workplace Relations Act 1996" substitute and amending "the Fair Work (Registered Organisations) Act Nos Act 2009"; 97/2005, 28/2007, (b) in the definition of office and officer, for 66/2008 and 6/2009. "Schedule 1B to the Workplace Relations LawToday: Act 1996" substitute "the Fair Work www. legislation. (Registered Organisations) Act 2009"; vic.gov.au (c) in the definition of registered employee organisation, for "Schedule 1B to the Workplace Relations Act 1996" substitute "the Fair Work (Registered Organisations) Act 2009". (2) In section 79 of the Occupational Health and Safety Act 2004 insert the following definitions — "Commonwealth Fair Work Act means the Fair Work Act 2009 of the Commonwealth;

Fair Work Transition Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;". 35 Entry powers of authorised representatives (1) For sections 87(1)(b) and 87(1)(c) of the Occupational Health and Safety Act 2004 substitute— "(b) the suspected contravention relates to or affects work that is being carried out by one or more persons whose employment is subject to a collective agreement, a certified agreement or an enterprise agreement, or relates to or affects any of those persons, and that agreement applies to the registered employee organisation; (c) the suspected contravention relates to or affects work that is being carried out by one or more persons— (i) who are eligible to be members of the registered employee organisation; and (ii) whose employment is not subject to a collective agreement, a certified agreement or an enterprise agreement which applies to any registered employee organisation— or relates to or affects any of those persons.". (3) For section 87(4) of the Occupational Health and Safety Act 2004 substitute— "(4) In this section— certified agreement means a pre-reform certified agreement that continues in existence as a transitional instrument under the Fair Work Transition Act;

collective agreement means a workplace agreement that is a collective agreement that continues in existence as a transitional instrument under the Fair Work Transition Act; enterprise agreement means an enterprise agreement made under the Commonwealth Fair Work Act.". ______

PART 7—REPEAL OF OTHER ACTS AND PROVISIONS

See: 36 Repeal of the Victorian Workers' Wages Protection Act No. 71/2007 Act 2007 and amending The Victorian Workers' Wages Protection Act Act Nos 12/2008 and 2007 is repealed. 4/2009. LawToday: www. legislation. vic.gov.au

See: 37 Repeal of provisions of the Public Administration Act No. 108/2004. Act 2004 Reprint No. 1 as at (1) In section 1(b) of the Public Administration Act 11 October 2006 2004, for "Authority;" substitute "Authority." and amending (2) Section 1(c) of the Public Administration Act Act Nos 2004 is repealed. 23/2006, 24/2006, (3) Section 1(d) of the Public Administration Act 43/2006, 28/2007, 2004 is repealed. 58/2007, 4/2008, (4) Section 3(da) of the Public Administration Act 24/2008, 77/2008, 2004 is repealed. 79/2008 and 83/2008. (5) Section 35(2)(ba) of the Public Administration LawToday: Act 2004 is repealed. www. legislation. (6) Section 45(1)(da) of the Public Administration vic.gov.au Act 2004 is repealed. (7) In section 48(2) of the Public Administration Act 2004, omit "or role 5" (wherever occurring). (8) Subdivision 5A of Division 2 of Part 4 of the Public Administration Act 2004 is repealed. (9) In section 103(5) of the Public Administration Act 2004, for "Subject to Subdivision 5A of Division 2 of Part 4, a" substitute "A".

38 New section 117 inserted in the Public Administration Act 2004 After section 116 of the Public Administration Act 2004 insert— "117 Transitional provision—repeal of Subdivision 5A of Division 2 of Part 4 Any application begun but not completed under Subdivision 5A of Division 2 of Part 4 immediately before the repeal of the subdivision by section 37 of the Fair Work (Commonwealth Powers) Act 2009 may be continued and completed in accordance with that Subdivision, as if that Subdivision were still in operation.". 39 Repeal of provisions of the Parliamentary See: Act No. Administration Act 2005 20/2005 and Division 7 of Part 3 of the Parliamentary amending Act No. Administration Act 2005 is repealed. 80/2006. LawToday: www. legislation. vic.gov.au

40 New section 36 inserted in the Parliamentary Administration Act 2005 After section 35 of the Parliamentary Administration Act 2005 insert— "36 Transitional provision—repeal of Division 7 of Part 3 Any application begun but not completed under Division 7 of Part 3 immediately before the repeal of the Division by section 39 of the Fair Work (Commonwealth Powers) Act 2009 may be continued and completed in accordance with that Division, as if that Division were still in operation.". ______

PART 8—REPEAL OF CERTAIN PARTS OF THIS ACT

41 Repeal of Parts 4 to 7 and this Part This Part and Parts 4 to 7 are repealed on the first anniversary of the commencement of the Parts. Note The repeal of this Part and Parts 4 to 7 does not affect the continuing operation of the amendments made by the Parts (see section 15(1) of the Interpretation of Legislation Act 1984). ______

40 Fair Work (Commonwealth Powers) Act 2009 No. 24 of 2009 Sch.

SCHEDULE

TEXT TO BE INCLUDED IN THE PROVISIONS OF THE COMMONWEALTH FAIR WORK ACT

Division 2A—Application of this Act in a referring State

30A Meaning of terms used in this Division In this Division: amendment includes the insertion, omission, repeal, substitution, addition or relocation of words or matter. excluded subject matter means: (a) a matter dealt with in a law referred to in subsection 27(1A) of this Act as originally enacted; or (b) a non-excluded matter within the meaning of subsection 27(2) of this Act as so enacted (other than paragraph 27(2)(p) of this Act as so enacted); or (c) rights or remedies incidental to a matter referred to in paragraph (a) or (b) of this definition; except to the extent that this Act as so enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter. express amendment means the direct amendment of this Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act.

law enforcement officer is a member of a police force, a police reservist, a police recruit or a protective services officer. referral law, of a State, means the law of the State that refers matters, as mentioned in subsection 30B(1), to the Parliament of the Commonwealth. referred provisions means the provisions of this Division to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States. referred subject matters means any of the following: (a) terms and conditions of employment, including any of the following: (i) minimum terms and conditions of employment, (including employment standards and minimum wages); (ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise-level agreements); (iii) bargaining in relation to terms and conditions of employment; (iv) the effect of a transfer of business on terms and conditions of employment; (b) terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers;

(c) rights and responsibilities of employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following: (i) freedom of association and related protections; (ii) protection from discrimination relating to employment; (iii) termination of employment; (iv) industrial action; (v) protection from payment of fees for services related to bargaining; (vi) sham independent contractor arrangements; (vii) standing down employees without pay; (viii) rights of entry and rights of access to records; (d) compliance with, and enforcement of, this Act; (e) the administration of this Act; (f) the application of this Act; (g) matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act; but does not include any excluded subject matter. referring State: see section 30B.

State public sector employee, of a State, means: (a) an employee of a State public sector employer of the State; or (b) any other employee in the State of a kind specified in the regulations; and includes a law enforcement officer to whom subsection 30E(1) applies. State public sector employer, of a State, means an employer that is: (a) the State; or (b) a body (whether incorporated or unincorporated) established for a public purpose by or under a law of the State, by the Governor of a State or by a Minister of the State; or (c) a body corporate in which the State has a controlling interest; or (d) any other employer in the State of a kind specified in the regulations; and includes a holder of an office to whom subsection 30E(2) applies. 30B Meaning of referring State Reference of matters by State Parliament to Commonwealth Parliament (1) A State is a referring State if the Parliament of the State has referred the matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution: (a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth

(otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and (b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State. This subsection has effect subject to subsection (6). (2) A State is a referring State even if: (a) the State’s referral law provides that the reference to the Parliament of the Commonwealth of any or all of the matters covered by subsections (3), (4) and (5) is to terminate in particular circumstances; or (b) the State’s referral law provides that particular matters relating to State public sector employees, or State public sector employers, of the State are not included in any or all of those matters. Reference covering referred provisions (3) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by amending this Act, as originally enacted, to include the referred provisions. Reference covering amendments (4) This subsection covers the referred subject matters to the extent of making laws with respect to those matters by making express amendments of this Act. Reference covering transitional matters (5) This subsection covers making laws with respect to the transition from the regime provided for by: (a) the Workplace Relations Act 1996; or

(b) a law of a State relating to workplace relations; to the regime provided for by this Act. Effect of termination of reference (6) Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs: (a) the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (3) terminates; (b) the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (4) terminates; (c) the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (5) terminates. 30C Extended meaning of national system employee (1) A national system employee includes: (a) any individual in a referring State so far as he or she is employed, or usually employed, as described in paragraph 30D(1)(a), except on a vocational placement; and (b) a law enforcement officer of the State to whom subsection 30E(1) applies. (2) This section does not limit the operation of section 13 (which defines a national system employee). Note: Section 30H may limit the extent to which this section extends the meaning of national system employee.

30D Extended meaning of national system employer (1) A national system employer includes: (a) any person in a referring State so far as the person employs, or usually employs, an individual; and (b) a holder of an office to whom subsection 30E(2) applies. (2) This section does not limit the operation of section 14 (which defines a national system employer). Note: Section 30H may limit the extent to which this section extends the meaning of national system employer. 30E Extended ordinary meanings of employee and employer (1) A reference in this Act to an employee with its ordinary meaning includes a reference to a law enforcement officer of a referring State if the State’s referral law so provides for the purposes of that law. (2) A reference in this Act to an employer with its ordinary meaning includes a reference to a holder of an office of a State if the State’s referral law provides, for the purposes of that law, that the holder of the office is taken to be the employer of a law enforcement officer of the State. (3) This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings). Note: Section 30H may limit the extent to which this section extends the meanings of employee and employer.

30F Extended meaning of outworker entity (1) An outworker entity includes a person, other than in the person’s capacity as a national system employer, so far as: (a) the person arranges for work to be performed for the person (either directly or indirectly); and (b) the work is of a kind that is often performed by outworkers; and (c) one or more of the following applies: (i) at the time the arrangement is made, one or more parties to the arrangement is in a referring State; (ii) the work is to be performed in a referring State; (iii) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a referring State, and the work is reasonably likely to be performed in that State; (iv) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a referring State, and the work is to be performed in connection with that activity. (2) This section does not limit the operation of the definition of outworker entity in section 12. Note: Section 30H may limit the extent to which this section extends the meaning of outworker entity.

30G General protections (1) Part 3-1 (which deals with general protections) applies to action taken in a referring State. (2) This section applies despite section 337 (which limits the application of Part 3-1), and does not limit the operation of sections 338 and 339 (which set out the application of that Part). Note: Section 30H may limit the extent to which this section extends the application of Part 3-1. 30H Division only has effect if supported by reference A provision of this Division has effect in relation to a referring State only to the extent that the State’s referral law refers to the Parliament of the Commonwealth the matters mentioned in subsection 30B(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect. 30J Application of the Acts Interpretation Act 1901 (1) The Acts Interpretation Act 1901, as in force on the day on which this Division commences, applies to this Act. (2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act. ═══════════════

49 Fair Work (Commonwealth Powers) Act 2009 No. 24 of 2009 Endnotes

ENDNOTES

1. General Information Minister's second reading speech— Legislative Assembly: 3 June 2009 Legislative Council: 4 June 2009 The long title for the Bill for this Act was "A Bill for an Act to refer certain matters to the Commonwealth regarding workplace relations, to repeal the Commonwealth Powers (Industrial Relations) Act 1996 and the Victorian Workers' Wages Protection Act 2007, to amend the Long Service Leave Act 1992, the Public Sector Employment (Award Entitlements) Act 2006, the Outworkers (Improved Protection) Act 2003, the Public Holidays Act 1993, the Occupational Health and Safety Act 2004, the Public Administration Act 2004 and the Parliamentary Administration Act 2005 and for other purposes." The Fair Work (Commonwealth Powers) Act 2009 was assented to on 17 June 2009 and came into operation as follows: Sections 1–7 on 17 June 2009: section 2(1); Schedule on 23 June 2009: Special Gazette (No. 196) 23 June 2009 page 1; rest of Act (except Part 3) on 1 July 2009: Special Gazette (No. 227) 1 July 2009 page 1; Part 3 on 2 July 2009: Special Gazette (No. 230) 2 July 2009 page 1. 2.

. Table of Amendments This Version incorporates amendments made to the Fair Work (Commonwealth Powers) Act 2009 by Acts and subordinate instruments. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Fair Work (Commonwealth Powers) Amendment Act 2009, No. 74/2009 Assent Date: 1.12.09 Commencement Date: Ss 3–8 on 1.1.10: Government Gazette 17.12.09 p. 3338 Current State: This information relates only to the provision/s amending the Fair Work (Commonwealth Powers) Act 2009 –––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3. Explanatory Details No entries at date of publication.