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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Tackling Job
Insecurity) Bill 2018
No. , 2018
(Mr Bandt)
A Bill for an Act to amend the Fair Work Act 2009,
and for related purposes
No. , 2018
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Fair Work Act 2009
3
No. , 2018
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
1
A Bill for an Act to amend the Fair Work Act 2009,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Fair Work Amendment (Tackling Job Insecurity)
5
Act 2018.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
No. , 2018
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
3
Schedule 1--Amendments
1
2
Fair Work Act 2009
3
1 After paragraph 5(8)(a)
4
Insert:
5
(ab) provided by a secure employment order (see Part 2-7A); and
6
2 Section 12
7
Insert:
8
rolling contract basis: see section 21A.
9
3 Section 12
10
Insert:
11
rolling contract employee: see section 21A.
12
4 Section 12
13
Insert:
14
secure employment arrangement means ongoing employment on a
15
part-time or full-time basis.
16
5 Section 12
17
Insert:
18
secure employment order: see subsection 306E(1).
19
6 Section 12
20
Insert:
21
small business exempt casual: a casual employee is a small
22
business exempt casual if:
23
(a) the employer is a small business employer; and
24
(b) the employee has been employed by the employer for a
25
period of less than 3 months; and
26
Schedule 1 Amendments
4
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
No. , 2018
(c) the employee had not been employed by the employer at any
1
time in the 3 months prior to the period of employment
2
referred to in paragraph (b) commencing.
3
7 After section 21
4
Insert:
5
21A Meaning of rolling contract employee and rolling contract basis
6
(1) An employee who is employed on a rolling contract basis is a
7
rolling contract employee.
8
(2) An employee is employed by an employer on a rolling contract
9
basis if:
10
(a) the contract of employment ends on a specified date or at the
11
end of a specified period; and
12
(b) the employee has previously been employed by the employer
13
under such a contract; and
14
(c) the current and previous contracts relate to the same kind of
15
work.
16
(3) For the purposes of paragraph (2)(a), a contract may end on a
17
specified date or at the end of a specified period even if a term of
18
the contract has the effect that the contract might be terminated
19
before that date or before the end of that period.
20
8 After paragraph 43(2)(a)
21
Insert:
22
(ab) those terms and conditions arising from a secure employment
23
order (see Part 2-7A); and
24
9 After paragraph 172(1)(c)
25
Insert:
26
(ca) matters pertaining to secure employment arrangements,
27
including moving from casual employment, or from
28
employment on a rolling contract basis, to secure
29
employment arrangements;
30
10 After Part 2-7
31
Insert:
32
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
5
Part 2-7A--Secure employment arrangements
1
Division 1--Introduction
2
306A Guide to this Part
3
This Part provides for transition to, and maintenance of, secure
4
employment arrangements.
5
Division 1 deals with preliminary matters.
6
Division 2 deals with requests for secure employment
7
arrangements. These include the following:
8
(a)
requests to change from casual employment to secure
9
employment arrangements;
10
(b)
requests to change from employment on a rolling
11
contract basis to secure employment arrangements.
12
Division 3 provides for the making of secure employment orders
13
by the FWC for employees or prospective employees.
14
306B Meanings of employee and employer
15
In this Part, employee means a national system employee, and
16
employer means a national system employer.
17
Division 2--Requests for secure employment arrangements
18
306C Requests to change from casual employment to secure
19
employment arrangements
20
(1) A casual employee may request the employer, in writing, for a
21
secure employment arrangement.
22
(2) An employee organisation that is entitled to represent casual
23
employees may, if asked to do so by one or more of the employees,
24
request the employer, in writing, for a secure employment
25
arrangement for that employee or those employees.
26
Schedule 1 Amendments
6
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
No. , 2018
(3) The employer must give the employee or organisation a written
1
response to the request within 21 days, stating whether the
2
employer grants or refuses the request.
3
(4) If the employer refuses the request, the employer's written
4
response must include details of the reasons for the refusal.
5
(5) This section does not apply in relation to a small business exempt
6
casual.
7
306D Requests to change from employment on rolling contract basis
8
to secure employment arrangements
9
(1) A rolling contract employee may request the employer, in writing,
10
for a secure employment arrangement.
11
(2) An employee organisation that is entitled to represent rolling
12
contract employees may, if asked to do so by one or more of the
13
employees, request the employer, in writing, for a secure
14
employment arrangement for that employee or those employees.
15
(3) The employer must give the employee or organisation a written
16
response to the request within 21 days, stating whether the
17
employer grants or refuses the request.
18
(4) If the employer refuses the request, the employer's written
19
response must include details of the reasons for the refusal.
20
Division 3--Secure employment orders
21
306E FWC may make secure employment order
22
(1) The FWC may, on application in accordance with section 306F,
23
make any order (a secure employment order) it considers
24
appropriate to provide, or to maintain, secure employment
25
arrangements for the person or persons to whom the order will
26
apply.
27
(2) A secure employment order may apply to:
28
(a) any one of the following persons (a relevant person):
29
(i) a casual employee;
30
(ii) a rolling contract employee;
31
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
7
(iii) a prospective employee who, if employed at the time the
1
application for the order was made, would be a casual
2
employee or rolling contract employee;
3
(iv) an employee who already has a secure employment
4
arrangement;
5
(v) a prospective employee who, if employed at the time the
6
application for the order was made, would have a secure
7
employment arrangement; or
8
(b) two or more relevant persons; or
9
(c) a class of relevant persons.
10
(3) Without limiting paragraph (2)(c), the class may be described by
11
reference to one or more of the following:
12
(a) a particular industry or part of an industry;
13
(b) a particular kind of work;
14
(c) a particular type of employment;
15
(d) a particular employer.
16
(4) A secure employment order must specify the employer or
17
employers who are required to comply with the order, being the
18
employer or employers of the relevant person, relevant persons or
19
class of relevant persons to whom the order applies.
20
(5) Despite subsection (2), a secure employment order cannot apply to
21
a small business exempt casual. However, if the FWC is satisfied
22
that a small business is continuously engaging employees as small
23
business exempt casuals for a purpose other than the genuine
24
operational needs of the business, a secure employment order may
25
apply to those small business exempt casuals.
26
306F Application for secure employment order
27
(1) Application for a secure employment order in relation to a request
28
refused under section 306C or 306D may be made by:
29
(a) if the employee made the request--any of the following:
30
(i) the employee;
31
(ii) an organisation that is entitled to represent the interests
32
of the employee, if asked by the employee to make the
33
application;
34
Schedule 1 Amendments
8
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
No. , 2018
(iii) the Age Discrimination Commissioner, the Disability
1
Discrimination Commissioner or the Sex Discrimination
2
Commissioner; or
3
(b) if an organisation made the request--the organisation.
4
(2) Application for a secure employment order otherwise than in
5
relation to a request refused under section 306C or 306D may be
6
made by an organisation that is (or, for prospective employees, that
7
would be) entitled to represent the interests of the relevant person,
8
relevant persons or class of relevant persons to whom the order
9
will apply.
10
306G Matters for FWC to consider
11
In deciding whether, or the terms on which, to make a secure
12
employment order, the FWC must have regard to the following:
13
(a) that all employees should be entitled to be ongoing
14
employees, unless there are serious countervailing business
15
reasons relating to the specific needs of an employer's
16
business;
17
(b) if the application was made under subsection 306F(2)--
18
whether the order should apply to the same employees and
19
prospective employees, and require the same employers to
20
comply with it, as are covered by a relevant modern award;
21
(c) any other matter the FWC considers relevant.
22
306H Content of orders affecting more than one person
23
(1) Orders providing or maintaining secure employment arrangements
24
for more than one relevant person may include one or more of the
25
following:
26
(a) an order requiring that all the relevant persons who are long
27
term casual employees or rolling contract employees be
28
offered or be subject to a secure employment arrangement;
29
(b) an order providing for a process by which all the relevant
30
persons who have been employed by the employer for a
31
certain period of time can elect to or be subject to a secure
32
employment arrangement;
33
(c) an order specifying the terms of secure employment
34
arrangements under which casual loadings would be phased
35
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
9
out over a period of time so as to avoid a drop in employee
1
remuneration;
2
(d) an order implementing secure employment arrangements in
3
such stages (as provided in the order) as the FWC thinks
4
appropriate;
5
(e) an order requiring the employer to provide information to the
6
FWC for the purposes of monitoring the staged
7
implementation of secure employment arrangements;
8
(f) an order regulating the engagement of prospective employees
9
on a casual basis, a rolling contract basis or a secure
10
employment basis;
11
(g) an order regulating the engagement of employees currently
12
employed on a fixed-term contract basis, where such
13
employees may in the future becoming rolling contract
14
employees;
15
(h) an order regulating the employer's use of arrangements that
16
are not secure work arrangements in circumstances in which
17
secure work arrangements could be used.
18
(2) Subsection (1) does not limit the orders that the FWC may make
19
under this section.
20
306J Implementation of secure employment order in stages
21
A secure employment order may implement secure employment
22
arrangements in such stages (as provided in the order) as the FWC
23
thinks appropriate.
24
306K Contravening a secure employment order
25
An employer must not contravene a secure employment order.
26
Note:
This section is a civil remedy provision (see Part 4-1).
27
306L Inconsistency with modern awards and enterprise agreements
28
A term of a modern award or an enterprise agreement has no effect
29
in relation to an employee to the extent that it is less beneficial to
30
the employee than a term of a secure employment order that
31
applies to the employee.
32
Schedule 1 Amendments
10
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
No. , 2018
11 Subsection 539(2) (after table item 9)
1
Insert:
2
3
Part 2-7A--Secure employment arrangements
9A
306K
(a) a person to whom
a secure
employment order
applies;
(b) an organisation
entitled to
represent a person
to whom a secure
employment order
applies
(a) the Federal
Court;
(b) the Federal
Circuit Court;
(c) an eligible
State or
Territory court
for a serious
contravention
--600 penalty
units; or
otherwise--60
penalty units
4
12 After paragraph 557(2)(f)
5
Insert:
6
(fa) section 306K (which deals with contraventions of secure
7
employment orders);
8
13 After paragraph 557C(3)(f)
9
Insert:
10
(fa) section 306K (which deals with contraventions of secure
11
employment orders);
12
14 After paragraph 558B(7)(f)
13
Insert:
14
(fa) section 306K (which deals with contraventions of secure
15
employment orders);
16
15 After paragraph 576(1)(f)
17
Insert:
18
(fa) secure employment arrangements (Part 2-7A);
19
16 After paragraph 653(1)(c)
20
Insert:
21
(ca) conduct research into the operation of Part 2-7A in relation to
22
requests for secure employment arrangements; and
23
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Tackling Job Insecurity) Bill 2018
11
17 Subparagraph 653(1)(d)(i)
1
Repeal the subparagraph, substitute:
2
(i) the circumstances in which such requests are made; and
3
18 After paragraph 675(2)(e)
4
Insert:
5
(ea) a secure employment order;
6
19 At the end of subsection 716(1)
7
Add:
8
; (g) a term of a secure employment order.
9