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Queensland Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013
Queensland Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Part 2 Amendments relating to industrial relations Division 1 Amendment of Industrial Relations Act 1999 3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 4 Amendment of s 3 (Principal object of this Act) . . . . . . . . . . . . . . 21 5 Amendment of ch 2, hdg (General employment conditions) . . . . 21 6 Insertion of new ch 2, pt 1AA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Part 1AA Preliminary 8AA Application of ch 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 7 Insertion of new ch 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Chapter 2A Modern employment conditions Part 1 Preliminary 71B Application of ch 2A . . . . . . . . . . . . . . . . . . . . . . . . . . 22 71BA Definitions for ch 2A . . . . . . . . . . . . . . . . . . . . . . . . . . 22 71BB Meaning of long term casual employee . . . . . . . . . . . 24 Part 2 Queensland Employment Standards Division 1 Preliminary 71C Meaning of Queensland Employment Standards . . . . 24 71CA Queensland Employment Standards subject to provisions of modern industrial instrument. . . . . . . . . 25 71CB Relationship between Queensland Employment Standards and directives . . . . . . . . . . . . . . . . . . . . . . 25 Division 2 Minimum wage
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 71D Entitlement to minimum wage . . . . . . . . . . . . . . . . . . 26 Division 3 Annual leave Subdivision 1 Entitlement to annual leave 71E Application of sdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 26 71EA Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 71EB Working out completed year of employment . . . . . . . 27 Subdivision 2 Taking annual leave 71EC When annual leave may be taken . . . . . . . . . . . . . . . 28 71ED Terms that may be included in modern industrial instruments ............................ 28 Subdivision 3 Payment for annual leave 71EE Payment for annual leave . . . . . . . . . . . . . . . . . . . . . . 29 71EF Annual leave loading . . . . . . . . . . . . . . . . . . . . . . . . . 30 Subdivision 4 Cashing out annual leave 71EG Requirements for cashing out annual leave . . . . . . . . 31 Subdivision 5 Payment on termination of employment 71EH Payment for annual leave on termination of employment 32 Division 4 Personal leave Subdivision 1 Sick leave 71F Application of sdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 32 71FA Entitlement to sick leave. . . . . . . . . . . . . . . . . . . . . . . 33 71FB Requirement for employee to give notice etc. . . . . . . 34 Subdivision 2 Carer's leave 71FC Entitlement--employees other than casual employees 35 71FD Entitlement--long term casual employees . . . . . . . . . 36 71FE Entitlement--short term casual employees . . . . . . . . 36 71FF Employee to provide supporting information to employer 37 Subdivision 3 Bereavement leave 71FG Application of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 38 71FH Entitlement--employees other than casual employees 38 71FI Entitlement--casual employees . . . . . . . . . . . . . . . . . 39 71FJ Evidence to be provided by employee . . . . . . . . . . . . 39 71FK Additional leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Subdivision 4 Cultural leave 71FL Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Subdivision 5 General provision Page 2
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 71FM Relationship to other rights. . . . . . . . . . . . . . . . . . . . . 41 Division 5 Parental leave Subdivision 1 Preliminary 71G Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 71GA Explanation of types of parental leave . . . . . . . . . . . . 42 71GB Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Subdivision 2 Entitlement 71GC Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 45 71GD Entitlement to birth-related leave . . . . . . . . . . . . . . . . 45 71GE Entitlement to adoption leave . . . . . . . . . . . . . . . . . . . 46 71GF Entitlement to surrogacy leave . . . . . . . . . . . . . . . . . . 46 71GG Maximum period of parental leave . . . . . . . . . . . . . . . 46 Subdivision 3 Notices and information 71GH Employee notice--intention to take maternity leave. . 47 71GI Employee notice--intention to take birth-related leave other than maternity leave . . . . . . . . . . . . . . . . . . . . . 47 71GJ Employee notice--intention to take adoption leave . . 48 71GK Employee notice--intention to take surrogacy leave . 49 71GL Reasons not to give notice or documents . . . . . . . . . 50 71GM Consequences of failure to give notice of intention to take parental leave . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 71GN Employee notice--change to situation . . . . . . . . . . . . 51 71GO Employee to advise employer about particular changes 51 71GP Employer to advise about parental leave entitlements 52 71GQ Employer's obligation to advise about significant change at the workplace . . . . . . . . . . . . . . . . . . . . . . 52 Subdivision 4 Application to extend parental leave or return part-time 71GR Application for extension of parental leave . . . . . . . . . 53 71GS Application to work part-time . . . . . . . . . . . . . . . . . . . 53 71GT Application for extension or part-time work . . . . . . . . 54 71GU Employer's decision on application for extension or part-time work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Subdivision 5 Other provisions affecting duration of parental leave 71GV Spouses not to take long parental leave at same time 56 71GW Cancelling parental leave . . . . . . . . . . . . . . . . . . . . . . 57 71GX Parental leave with other leave. . . . . . . . . . . . . . . . . . 58 Page 3
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 71GY Interruption of parental leave by return to work . . . . . 58 71GZ Extending period of parental leave by notice . . . . . . . 59 71GZA Shortening period of parental leave . . . . . . . . . . . . . . 59 71GZB Effect on parental leave of employee ceasing to be primary caregiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Subdivision 6 Other entitlements 71GZC Special maternity leave and sick leave. . . . . . . . . . . . 60 71GZD Special adoption leave . . . . . . . . . . . . . . . . . . . . . . . . 60 71GZE Special surrogacy leave . . . . . . . . . . . . . . . . . . . . . . . 61 71GZF Return to work after parental leave etc. . . . . . . . . . . . 61 71GZG Transfer to a safe job . . . . . . . . . . . . . . . . . . . . . . . . . 62 71GZH Continuity of service . . . . . . . . . . . . . . . . . . . . . . . . . . 63 71GZI Dismissal because of pregnancy or parental leave . . 63 71GZJ Replacement employees . . . . . . . . . . . . . . . . . . . . . . 64 Subdivision 7 General 71GZK Relationship to other rights ............... 64 Division 6 Long service leave Subdivision 1 Preliminary 71H Definitions for div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Subdivision 2 Relationship of division 6 with continuity of service provisions 71HA Application of pt 5 for particular purposes . . . . . . . . . 66 Subdivision 3 Entitlement 71HB Entitlement--employees other than seasonal employees 66 71HC Continuity of service--service before 23 June 1990 . 69 Subdivision 2 Taking long service leave 71HD Taking long service leave . . . . . . . . . . . . . . . . . . . . . . 69 Subdivision 3 Payment for long service leave etc. for employees generally 71HE Rate of payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 71HF Payment for commission . . . . . . . . . . . . . . . . . . . . . . 71 71HG Disputes about payment--piecework rates . . . . . . . . 72 71HH Other matters relating to payment for long service leave 72 Subdivision 4 Casual or regular part-time employees 71HI Definition for sdiv 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 71HJ Continuity of service--casual employees. . . . . . . . . . 73 Page 4
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 71HK Taking long service leave--casual or regular part-time employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 71HL Payment for long service leave. . . . . . . . . . . . . . . . . . 75 Subdivision 5 Seasonal employees in sugar industry and meat works 71HM Application of sdiv 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 76 71HN Entitlement to long service leave . . . . . . . . . . . . . . . . 76 71HO Taking long service leave . . . . . . . . . . . . . . . . . . . . . . 77 Subdivision 6 Other seasonal employees 71HP Entitlement of other seasonal employees. . . . . . . . . . 78 Subdivision 7 Miscellaneous provisions 71HQ Payment instead of long service leave . . . . . . . . . . . . 78 71HR Payment instead of long service leave on death . . . . 79 71HS Continuity not broken by service in Reserve Forces . 80 71HT Recognition of certain exemptions . . . . . . . . . . . . . . . 80 71HU Person who is both employer and employee . . . . . . . 80 Division 7 Public holidays 71I Definitions for div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 71IA Entitlement to be absent on public holiday . . . . . . . . . 81 71IB Payment for public holiday . . . . . . . . . . . . . . . . . . . . . 82 Division 8 Jury service leave 71J Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Division 9 Notice of termination and redundancy Subdivision 1 Notice of termination 71K Application of sdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 86 71KA What employer must do to dismiss employee . . . . . . 87 71KB Employer's failure to give notice or pay compensation 88 71KC Minimum period of notice required from employers . . 88 71KD Minimum amount of compensation required . . . . . . . 89 Subdivision 2 Redundancy pay 71KE Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 90 71KF Entitlement to redundancy pay . . . . . . . . . . . . . . . . . . 91 71KG Variation of redundancy pay by commission . . . . . . . 92 Part 3 Content of modern industrial instruments Division 1 Preliminary 71L Meaning of modern industrial instrument for pt 3 . . . . 93 Page 5
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 71LA Required or permitted provisions . . . . . . . . . . . . . . . . 93 71LB Non-allowable provisions . . . . . . . . . . . . . . . . . . . . . . 94 71LC Provisions that contravene s 71LA or 71LB of no effect 94 Division 2 Required content Subdivision 1 Required content--all modern industrial instruments 71M Consultation--major organisational changes. . . . . . . 95 71MA Dispute resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 71MB Individual flexibility arrangements. . . . . . . . . . . . . . . . 95 Subdivision 2 Required content--modern awards 71MC Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Subdivision 3 Required content--certified agreements 71MD Nominal expiry date . . . . . . . . . . . . . . . . . . . . . . . . . . 98 71ME Other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Division 3 Permitted content Subdivision 1 Permitted content--all modern industrial instruments 71N General matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 71NA Provisions related to Queensland Employment Standards ............................. 100 71NB Other incidental provisions . . . . . . . . . . . . . . . . . . . . . 100 71NC Machinery provisions . . . . . . . . . . . . . . . . . . . . . . . . . 101 Subdivision 2 Permitted content--modern awards 71ND General matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Subdivision 3 Permitted content--certified agreements 71NE Provisions about employment relationship . . . . . . . . . 102 Division 4 Non-allowable content Subdivision 1 Non-allowable content--all modern industrial instruments 71O Contracting provision . . . . . . . . . . . . . . . . . . . . . . . . . 102 71OA Employment security provision. . . . . . . . . . . . . . . . . . 103 71OB Encouragement provision. . . . . . . . . . . . . . . . . . . . . . 105 71OC Organisational change provision . . . . . . . . . . . . . . . . 106 71OD Policy incorporation provision. . . . . . . . . . . . . . . . . . . 107 71OE Private practice provision . . . . . . . . . . . . . . . . . . . . . . 108 71OF Resource allocation provision . . . . . . . . . . . . . . . . . . 108 71OG Right of entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Page 6
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 71OH Discriminatory provisions . . . . . . . . . . . . . . . . . . . . . . 109 71OI Particular provisions displacing Queensland Employment Standards . . . . . . . . . . . . . . . . . . . . . . . 109 71OJ General matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Subdivision 2 Non-allowable content--modern awards 71OK General matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Subdivision 3 Non-allowable content--certified agreements 71OL General matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Part 4 Equal remuneration for work of equal or comparable value 71P Definition for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 71PA Orders requiring equal remuneration . . . . . . . . . . . . . 111 71PB Orders only on application . . . . . . . . . . . . . . . . . . . . . 112 71PC Requirements about making of order by commission 112 71PD Immediate or progressive introduction of equal remuneration .......................... 112 71PE Employer not to reduce remuneration . . . . . . . . . . . . 112 71PF Pt 4 does not limit other rights . . . . . . . . . . . . . . . . . . 113 71PG Applications under pt 4. . . . . . . . . . . . . . . . . . . . . . . . 113 Part 5 Continuity of service and employment 71Q Definitions for pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 71QA How pt 5 applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 71QB Continuity of service--transfer of calling . . . . . . . . . . 114 71QC Continuity of service--apprentices or trainees. . . . . . 115 71QD Continuity of service--generally. . . . . . . . . . . . . . . . . 116 8 Amendment of s 72 (Who this chapter does not apply to) . . . . . . 118 9 Amendment of s 85A (Application of div 1AA) . . . . . . . . . . . . . . . 118 10 Replacement of ch 5, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 11 Insertion of new ch 5, pt 1AA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Part 1AA Application of ch 5 122B Application of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 12 Amendment of s 123 (Form, effect and term of award) . . . . . . . . 119 13 Amendment of s 124 (Persons bound by award) . . . . . . . . . . . . . 119 14 Replacement of ch 5, pts 2 and 3. . . . . . . . . . . . . . . . . . . . . . . . . 120 Part 2 Commission's powers 125 Repealing awards. . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 15 Amendment of s 135 (Inconsistency between awards and contracts)120 Page 7
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 16 Insertion of new ch 5, pt 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Part 8 Modernisation of awards Division 1 Preliminary 140B Definitions for pt 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 140BA Object of modernising awards . . . . . . . . . . . . . . . . . . 121 140BB Commission's award modernisation function . . . . . . . 122 Division 2 Award modernisation process Subdivision 1 Award modernisation requests 140C Minister may make award modernisation request . . . 123 140CA Variation of award modernisation request . . . . . . . . . 124 140CB Publication of award modernisation request or variation notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Subdivision 2 Procedure for modernisation process 140CC Procedure for carrying out modernisation process. . . 125 140CD Deadline for completion of award modernisation process ............................... 126 140CE Making of modern awards and repeal of pre-modernisation awards . . . . . . . . . . . . . . . . . . . . . 126 17 Insertion of new ch 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Chapter 5A Modern awards Part 1 Preliminary 140D Modern awards objectives . . . . . . . . . . . . . . . . . . . . . 127 140DA Definitions for ch 5A . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Part 2 Coverage and operation of modern awards 140E Who a modern award applies to. . . . . . . . . . . . . . . . . 131 140EA Significance of application of modern award . . . . . . . 131 140EB When a modern award operates . . . . . . . . . . . . . . . . 132 140EC Relationship of modern award with certified agreement 132 140ED Relationship of modern award with contract of service 133 Part 3 Making, varying and revoking modern awards Division 1 Periodic reviews of modern awards 140F Periodic reviews of a modern award. . . . . . . . . . . . . . 134 140FA Requirement about variation of minimum wages . . . . 134 Division 2 Other exercise of powers to make, vary or revoke modern awards 140G Powers may be exercised to achieve modern awards objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Page 8
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 140GA Application to vary, revoke or make modern award under s 140G . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 140GB Variation to update or omit name of employer or organisation ........................... 137 140GC Variation to remove ambiguity or uncertainty or to correct error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 140GD Variation on referral by Anti-Discrimination Commission 139 Division 3 General provisions about exercise of commission's powers 140H Requirements about revoking a modern award . . . . . 139 140HA When variation determination comes into operation . 139 140HB Retrospective variation of modern awards . . . . . . . . . 140 Part 4 Technical matters 140I Definition for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 140IA Formal requirements of relevant instruments . . . . . . . 141 140IB Publication of relevant instruments. . . . . . . . . . . . . . . 141 140IC Publication of varied awards. . . . . . . . . . . . . . . . . . . . 142 140ID Interpretation of relevant instrument. . . . . . . . . . . . . . 142 18 Replacement of ch 6, div 1, hdg. . . . . . . . . . . . . . . . . . . . . . . . . . 143 Division 1A Preliminary 140J Application of ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 140K Definitions for ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 19 Amendment of s 141 (Certified agreements) . . . . . . . . . . . . . . . . 144 141 Meaning of certified agreement . . . . . . . . . . . . . . . . . 144 20 Replacement of s 142 (Who may make certified agreements). . . 144 142 Who may make certified agreements . . . . . . . . . . . . . 144 21 Insertion of new ch 6, div 1 and sdiv 1, hdgs . . . . . . . . . . . . . . . . 145 22 Amendment of s 143 (Proposed parties to be advised when agreement is proposed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 23 Amendment of s 144 (What is to be done when an agreement is proposed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 24 Amendment of s 147A (Employer may ask employees to approve proposed agreement being negotiated with employee organisation) 147 25 Insertion of new ch 6, div 1, sdiv 2, hdg . . . . . . . . . . . . . . . . . . . . 148 26 Replacement of s 148 (Assistance in negotiating by conciliation) 148 148 Commission to help negotiating parties . . . . . . . . . . 148 148A Commission's conciliation powers . . . . . . . . . . . . . . . 151 148B Commission can not order wage increase . . . . . . . . . 152 Page 9
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 27 Insertion of new ch 6, div 1, sdiv 3, hdg . . . . . . . . . . . . . . . . . . . . 152 28 Replacement of s 149 (Arbitration if conciliation unsuccessful) . . 152 149 Arbitration if conciliation unsuccessful . . . . . . . . . . . . 152 149A Arbitration period . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 149B Full bench to determine matters by arbitration unless vice-president directs otherwise . . . . . . . . . . . . . . . . . 154 149C Arbitration powers of full bench . . . . . . . . . . . . . . . . . 155 149D Issues full bench must consider . . . . . . . . . . . . . . . . . 155 149E Full bench must publish reasons . . . . . . . . . . . . . . . . 158 29 Amendment of s 150 (Determinations made under s 149). . . . . . 158 30 Insertion of new ch 6, div 1, sdivs 4 and 5 . . . . . . . . . . . . . . . . . . 159 Subdivision 4 Industrial action during conciliation and arbitration periods 150A No protected industrial action during conciliation and arbitration periods. . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Subdivision 5 Other matters 31 Replacement of s 155 (Right of employee organisation to be heard) 160 155 Entities that may be heard on application. . . . . . . . . . 160 32 Amendment of s 156 (Certifying an agreement) . . . . . . . . . . . . . 160 33 Amendment of s 157 (When commission to refuse to certify an agreement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 34 Amendment of s 158 (Other options open to the commission instead of refusing to certify agreement) . . . . . . . . . . . . . . . . . . . 162 35 Amendment of s 166 (Persons bound). . . . . . . . . . . . . . . . . . . . . 162 36 Amendment of s 168 (Extending a certified agreement) . . . . . . . 163 37 Amendment of s 176 (Requirements for other industrial action by an employee organisation or employees). . . . . . . . . . . . . . . . . . . 163 38 Insertion of new s 176A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 176A Claims including non-allowable content . . . . . . . . . . . 163 39 Amendment of s 177A (Provision about notice of industrial action) 164 40 Amendment of s 181E (Conciliation of matter during post-industrial action negotiation period) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 41 Amendment of s 181F (Determination of matter by commission after post-industrial action negotiation period) . . . . . . . . . . . . . . . 164 42 Insertion of new ch 6A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Chapter 6A Arrangements for high-income senior employees Part 1 Preliminary 188 Definitions for ch 6A . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Page 10
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 189 Who is a high-income senior employee . . . . . . . . . . . 166 190 What is a high-income position . . . . . . . . . . . . . . . . . 166 191 What is the high-income threshold . . . . . . . . . . . . . . . 166 192 What is an employee's remuneration . . . . . . . . . . . . 166 193 What is a high-income guarantee contract . . . . . . . . . 168 Part 2 High-income guarantee contracts and high-income positions 194 Effect of engagement under high-income guarantee contract ............................... 169 195 Effect of high-income position . . . . . . . . . . . . . . . . . . 169 196 Effect of position ceasing to be high-income position. 171 Part 3 Other matters for high-income senior employees 197 Offering high-income guarantee contract not prohibited conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 198 Inconsistency between awards and high-income guarantee contracts . . . . . . . . . . . . . . . . . . . . . . . . . . 173 199 Private practice provision in industrial instrument . . . 173 200 Medical practitioner's private practice arrangements in contract of service . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 201 Medical practitioner's refusal to accept high-income guarantee contract . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 43 Amendment of s 242D (Appointment of members on full-time or part-time basis) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 44 Amendment of s 242E (Functions of the president) . . . . . . . . . . . 175 45 Amendment of s 242F (Functions of the vice-president) . . . . . . . 176 46 Amendment of s 242G (Administration of the court) . . . . . . . . . . 176 47 Amendment of s 243 (Appointment of president). . . . . . . . . . . . . 176 48 Amendment of s 244 (When a Supreme Court judge is appointed as president). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 49 Amendment of s 245 (When president holds office) . . . . . . . . . . 177 50 Amendment of s 246 (Acting president) . . . . . . . . . . . . . . . . . . . . 178 51 Amendment of s 248 (Court's jurisdiction) . . . . . . . . . . . . . . . . . . 178 52 Amendment of s 256 (Composition). . . . . . . . . . . . . . . . . . . . . . . 178 53 Amendment of s 258A (Appointment of other deputy presidents of the commission) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 54 Amendment of s 259 (Industrial commissioners) . . . . . . . . . . . . . 179 55 Amendment of s 260 (When deputy president or industrial commissioner holds office). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Page 11
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 56 Amendment of s 273 (Commission's functions) . . . . . . . . . . . . . . 180 57 Amendment of s 287 (General rulings) . . . . . . . . . . . . . . . . . . . . 180 58 Omission of s 288 (Statement of policy). . . . . . . . . . . . . . . . . . . . 181 59 Amendment of s 292 (Magistrate's jurisdiction) . . . . . . . . . . . . . . 181 60 Amendment of s 319 (Representation of parties) . . . . . . . . . . . . 181 61 Amendment of s 320 (Basis of decisions of the commission and magistrates) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 62 Amendment of s 341 (Appeal from commission, magistrate or registrar) ...................................... 182 63 Amendment of s 342 (Appeal from commission, magistrate or registrar) ...................................... 182 64 Amendment of s 391 (Wages etc. to be paid without deduction) . 182 65 Insertion of new s 391A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 391A Deduction for industrial association membership prohibited ............................ 183 66 Amendment of s 459 (Powers of court) . . . . . . . . . . . . . . . . . . . . 183 67 Amendment of s 462 (Interim orders). . . . . . . . . . . . . . . . . . . . . . 183 68 Amendment of s 463 (Hearing application) . . . . . . . . . . . . . . . . . 184 69 Amendment of s 464 (Effect of declaration) . . . . . . . . . . . . . . . . . 184 70 Amendment of s 465 (Direction must be complied with) . . . . . . . 184 71 Amendment of s 535 (Court may decide). . . . . . . . . . . . . . . . . . . 184 72 Amendment of s 536 (Deciding application). . . . . . . . . . . . . . . . . 184 73 Amendment of s 691B (Industrial instruments to which this part applies) 185 74 Amendment of s 691C (Particular provisions are of no effect) . . . 185 75 Insertion of new ch 20, pt 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 Part 18 Transitional provisions for Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 Division 1 Preliminary 807 Definitions for pt 18. . . . . . . . . . . . . . . . . . . . . . . . . . . 186 Division 2 Provisions about conditions of employment Subdivision 1 General provisions 808 Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 809 Leave accrued or approved before application day . . 187 810 Working out leave entitlements . . . . . . . . . . . . . . . . . 187 811 Notices etc. given before application day . . . . . . . . . . 188 Subdivision 2 Annual leave Page 12
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 812 Order about payment for commission . . . . . . . . . . . . 189 813 Leave loading payments made before application day 189 Subdivision 3 Parental leave 814 Parental leave started under ch 2. . . . . . . . . . . . . . . . 190 815 Application of obligation to advise about significant change ............................... 191 816 Spouses not to take long parental leave at same time 191 Subdivision 4 Long service leave 817 Agreement or notice under s 45 . . . . . . . . . . . . . . . . . 192 818 Order about payment for commission . . . . . . . . . . . . 192 819 Decision by commission about piecework rates. . . . . 192 820 Existing decisions or agreements about entitlement to, payment for, or taking of, long service leave . . . . . . . 193 Division 3 Provisions about awards Subdivision 1 Provisions for pre-modernisation awards 821 Application of new ch 5, pt 2 . . . . . . . . . . . . . . . . . . . 194 822 Existing matters being heard under s 125 or 130. . . . 194 823 Continuation of exemptions under ch 5, pt 3 . . . . . . . 195 Subdivision 2 Provisions for modern awards 824 Modern award does not apply to employee covered by pre-modernisation certified agreement . . . . . . . . . . . 195 Division 4 Provisions about certified agreements 825 Retrospective operation . . . . . . . . . . . . . . . . . . . . . . . 196 826 Certified agreements and determinations continue . . 196 827 Continuing agreements and determinations. . . . . . . . 196 828 Extension of nominal expiry date by up to 1 year. . . . 197 829 Continuing agreements can not be dealt with . . . . . . 197 830 Regulation may prescribe a wage increase . . . . . . . . 198 831 Existing arbitrations . . . . . . . . . . . . . . . . . . . . . . . . . . 198 832 Existing applications for certification . . . . . . . . . . . . . 199 Division 5 Other provisions 833 Wage deductions for industrial association membership 200 834 Continued protection from liability for ombudsman and official of QWRO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 835 Transitional regulation-making power . . . . . . . . . . . . . 200 76 Amendment of sch 2 (Appointments) . . . . . . . . . . . . . . . . . . . . . . 201 77 Amendment of sch 3 (Minimum redundancy payment) . . . . . . . . 201 Page 13
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 78 Amendment of sch 4 (Provisions for protected action ballots) . . . 202 79 Amendment of sch 4A (Application of this Act to prescribed Hospital and Health Services and their employees). . . . . . . . . . . 203 80 Amendment of sch 5 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 203 Division 2 Amendment of Hospital and Health Boards Act 2011 81 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 82 Amendment of s 10 (Statewide employment and industrial relations arrangements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 83 Amendment of s 19 (Functions of Services) . . . . . . . . . . . . . . . . 211 84 Amendment of s 20 (Powers of Services) . . . . . . . . . . . . . . . . . . 211 85 Amendment of s 45 (Functions of chief executive). . . . . . . . . . . . 211 86 Amendment of s 46 (Delegation by chief executive) . . . . . . . . . . 211 87 Amendment of s 47 (Health service directives) . . . . . . . . . . . . . . 212 88 Insertion of new pt 3, div 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212 Division 2A Chief executive may issue health employment directives 51A Health employment directives . . . . . . . . . . . . . . . . . . 212 51B Relationship with legislation . . . . . . . . . . . . . . . . . . . . 213 51C Relationship between health employment directives and other instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 51D Publication of health employment directives. . . . . . . . 214 51E Health employment directives binding . . . . . . . . . . . . 214 51F Review of health employment directives . . . . . . . . . . 214 89 Amendment of s 66 (Conditions of employment) . . . . . . . . . . . . . 215 90 Amendment of s 67 (Appointment of health service employees) . 216 91 Amendment of s 68 (Contracted health service employees other than health executives). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 92 Amendment of pt 5, div 2, hdg (Health executive service) . . . . . . 217 93 Insertion of new pt 5, div 2, sdiv 1, hdg . . . . . . . . . . . . . . . . . . . . 217 Subdivision 1 Health executive service 94 Insertion of new pt 5, div 2, sdiv 2 and sdiv 3, hdg. . . . . . . . . . . . 217 Subdivision 2 Senior health service employees 74A Meaning of senior health service employee . . . . . . . . 218 74B Terms of contract for contracted senior health service employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 Subdivision 3 Excluded matters 95 Amendment of s 75 (Exclusion of certain matters from review under other Acts) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Page 14
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 96 Omission of s 76 (Fixing of remuneration packages and classification levels for health executives) . . . . . . . . . . . . . . . . . . 219 97 Amendment of s 78 (Transfer of health service employees). . . . . 220 98 Amendment of s 79 (Entitlement on ending of particular employment contracts) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 99 Amendment of s 80 (Departmental health service employees to be employed by Services) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 100 Insertion of new s 80AA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 80AA High-income senior employees to be employed by Services .............................. 220 101 Amendment of s 80B (Matters and proceedings not affected by persons becoming employees of prescribed Service) . . . . . . . . . 222 102 Insertion of new s 80C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 80C Matters and proceedings not affected by persons becoming contracted senior health service employees in Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 103 Insertion of new pt 13, div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Division 4 Transitional provision for the Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 320 Senior health service employees . . . . . . . . . . . . . . . 223 104 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 223 Division 3 Amendment of Trading (Allowable Hours) Act 1990 105 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 106 Amendment of s 4 (Meaning of terms) . . . . . . . . . . . . . . . . . . . . . 224 107 Amendment of pt 5, hdg (Orders concerning non-exempt shops, exhibitions and special displays) . . . . . . . . . . . . . . . . . . . . . . . . . 225 108 Amendment of s 21 (Trading hours orders on non-exempt shops) 225 109 Replacement of s 22 (Orders on exhibitions etc.) . . . . . . . . . . . . 225 22 Approval of special exhibitions . . . . . . . . . . . . . . . . . . 226 110 Amendment of s 23 (Powers and procedures relevant to proceedings under ss 21 and 22). . . . . . . . . . . . . . . . . . . . . . . . . 226 111 Insertion of new s 23A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 23A Reference to full bench. . . . . . . . . . . . . . . . . . . . . . . . 227 112 Amendment of s 25 (Leave may be granted by full bench) . . . . . 227 113 Amendment of s 27 (Summary dismissal of application) . . . . . . . 228 114 Replacement of s 29 (Compliance with conditions for exhibitions etc.) ......................................... 228 29 Compliance with conditions of special exhibitions order 228 115 Insertion of new pt 8, div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Page 15
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents Division 3 Transitional provisions for Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 50 Definitions for div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 51 Proceedings started before commencement . . . . . . . 229 52 Special exhibition orders . . . . . . . . . . . . . . . . . . . . . . 230 116 Insertion of new sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 Schedule 1 Dictionary Division 4 Minor and consequential amendments 117 Legislation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 Part 3 Other amendments Division 1 Amendment of Superannuation (State Public Sector) Act 1990 118 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 119 Amendment of s 2 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . . 231 120 Amendment of s 3 (Establishment of board) . . . . . . . . . . . . . . . . 231 121 Replacement of ss 5-6AA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 5 Membership of the board . . . . . . . . . . . . . . . . . . . . . . 232 122 Renumbering of s 6B (Appointment not affected by other laws restricting employment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 123 Omission of ss 6C-6DAA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 124 Renumbering of ss 6DA-6F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 125 Omission of ss 6G-6J . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 126 Replacement of s 31 (Regulations) . . . . . . . . . . . . . . . . . . . . . . . 232 31 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . 232 127 Insertion of new pt 6, div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Division 5 Transitional provision for Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 44 Appointments of existing trustees end . . . . . . . . . . . . 234 Division 2 Amendment of Superannuation (State Public Sector) Regulation 2006 128 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 129 Insertion of new pt 1 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 130 Insertion of new s 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 2A Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 131 Insertion of new pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Part 2 Board of trustees Page 16
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Contents 2B Membership of the board . . . . . . . . . . . . . . . . . . . . . . 235 2C Appointment of trustees . . . . . . . . . . . . . . . . . . . . . . . 235 2D Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 2E Term of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . 236 2F Vacancy in the office of trustee . . . . . . . . . . . . . . . . . 236 2G Board may ask Minister to revoke trustee's appointment 237 2H Filling a vacancy in the office of a trustee . . . . . . . . . 238 2I Alternate trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 2J Appointment of alternate trustees . . . . . . . . . . . . . . . 239 2K Chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240 2L Deputy chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . 240 2M Conduct of business . . . . . . . . . . . . . . . . . . . . . . . . . . 241 2N Time and place of meetings . . . . . . . . . . . . . . . . . . . . 241 2O Conduct of meetings . . . . . . . . . . . . . . . . . . . . . . . . . 242 2P Resolutions other than at meetings . . . . . . . . . . . . . . 242 Part 3 Miscellaneous 132 Amendment of s 3 (Units of the State public sector--Act, s 2(1)) 243 133 Omission of s 5 (Prescribed number--Act, s 5) . . . . . . . . . . . . . . 243 134 Insertion of new pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 Part 4 Transitional provision for Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 7 Particular persons may hold office as trustee for more than 9 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 135 Amendment of schedule (Units of the State public sector). . . . . . 244 136 Insertion of new sch 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 Schedule 2 Dictionary Schedule 1 Minor and consequential amendments . . . . . . . . . . . . . . . . . . 245 Part 1 Amendments commencing on assent Industrial Relations Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 Integrity Act 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 Public Service Act 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 Part 2 Amendments commencing on 1 December 2013 Industrial Relations Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 Page 17
2013 A Bill for An Act to amend the Industrial Relations Act 1999, the Hospital and Health Boards Act 2011, the Superannuation (State Public Sector) Act 1990, the Superannuation (State Public Sector) Regulation 2006 and the Trading (Allowable Hours) Act 1990, and to make minor and consequential amendments to the Acts listed in schedule 1, for particular purposes
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Industrial Relations (Fair Work 4 Act Harmonisation No. 2) and Other Legislation Amendment 5 Act 2013. 6 Clause 2 Commencement 7 This Act, other than the following provisions, commences on 8 1 December 2013-- 9 (a) sections 13(1), 14, 43 to 55, 59 and 64 to 72; 10 (b) section 75 to the extent it inserts the following 11 provisions of new chapter 20, part 18-- 12 � part heading 13 � division 1 14 � division 3, subdivision 1 15 � division 4 16 � division 5, heading 17 � sections 833 and 834; 18 (c) section 76; 19 (d) part 2, divisions 3 and 4; 20 (e) schedule 1, part 1. 21 Page 20
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 3] Part 2 Amendments relating to 1 industrial relations 2 Division 1 Amendment of Industrial Relations 3 Act 1999 4 Clause 3 Act amended 5 This division amends the Industrial Relations Act 1999. 6 Note-- 7 See also the amendments in schedule 1, parts 1 and 2. 8 Clause 4 Amendment of s 3 (Principal object of this Act) 9 (1) Section 3(j)-- 10 omit. 11 (2) Section 3(o)-- 12 omit. 13 Clause 5 Amendment of ch 2, hdg (General employment 14 conditions) 15 Chapter 2, heading, `General'-- 16 omit, insert-- 17 Pre-modernisation 18 Clause 6 Insertion of new ch 2, pt 1AA 19 Chapter 2, before part 1-- 20 insert-- 21 Page 21
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Part 1AA Preliminary 1 8AA Application of ch 2 2 This chapter applies to an employee who is bound by a 3 pre-modernisation industrial instrument in relation to 4 particular employment. 5 Note-- 6 See chapter 2A (Modern employment conditions) in 7 relation to conditions of employment for all other 8 employees. 9 Clause 7 Insertion of new ch 2A 10 After chapter 2-- 11 insert-- 12 Chapter 2A Modern employment 13 conditions 14 Part 1 Preliminary 15 71B Application of ch 2A 16 This chapter applies to all employees in relation to 17 particular employment if chapter 2 does not apply to 18 the employee in relation to the employment. 19 71BA Definitions for ch 2A 20 In this chapter-- 21 modern industrial instrument means any of the 22 following-- 23 (a) a modern award; 24 Page 22
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) a certified agreement that is certified under 1 chapter 6 as amended by the modernising 2 Act; 3 (c) a determination made under section 149 as 4 inserted by the modernising Act. 5 modernising Act means the Industrial Relations 6 (Fair Work Act Harmonisation No. 2) and Other 7 Legislation Amendment Act 2013. 8 ordinary hours of work, for an employee, 9 means-- 10 (a) the employee's ordinary hours of work as 11 provided for under a modern industrial 12 instrument that applies to the employee; or 13 (b) if paragraph (a) does not apply--the hours 14 agreed by the employee and his or her 15 employer as the employee's ordinary hours 16 of work. 17 pre-modernisation industrial instrument means 18 any of the following-- 19 (a) an award made under chapter 5 or continued 20 in force under this Act, including an award 21 as amended under chapter 5; 22 (b) a certified agreement that is certified under 23 chapter 6 as in force before its amendment 24 by the modernising Act; 25 (c) a determination made under section 149 as it 26 was in force before its replacement by the 27 modernising Act. 28 relevant industrial instrument, in relation to an 29 employee, means a modern industrial instrument 30 that applies to the employee. 31 Page 23
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71BB Meaning of long term casual employee 1 (1) For this chapter, a long term casual employee is 2 a casual employee engaged by a particular 3 employer, on a regular and systematic basis, for 4 several periods of employment during a period of 5 at least 1 year immediately before the employee 6 seeks to access an entitlement under this chapter. 7 (2) The periods of employment mentioned in 8 subsection (1) include periods before and after 9 the commencement of this section. 10 Part 2 Queensland 11 Employment Standards 12 Division 1 Preliminary 13 71C Meaning of Queensland Employment 14 Standards 15 (1) This part provides for minimum standards of 16 employment of employees. 17 (2) The minimum standards relate to the following 18 matters-- 19 (a) minimum wage--division 2; 20 (b) annual leave--division 3; 21 (c) personal leave, including sick leave, carer's 22 leave, bereavement leave and cultural 23 leave--division 4; 24 (d) parental leave--division 5; 25 (e) long service leave--division 6; 26 (f) public holidays--division 7; 27 (g) jury service leave--division 8; 28 Page 24
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (h) notice of termination and redundancy 1 pay--division 9. 2 (3) Divisions 2 to 9 are the Queensland 3 Employment Standards. 4 71CA Queensland Employment Standards subject 5 to provisions of modern industrial instrument 6 The Queensland Employment Standards have effect 7 subject to provisions included in a modern industrial 8 instrument under this Act. 9 Note-- 10 See part 3 for provisions about the content of modern industrial 11 instruments. 12 71CB Relationship between Queensland 13 Employment Standards and directives 14 (1) This section applies if a directive is inconsistent 15 with a provision of the Queensland Employment 16 Standards (a QES provision). 17 (2) For an inconsistency provision, the directive is 18 taken not to be inconsistent with the QES 19 provision to the extent that the effect of the 20 directive is more favourable to an employee than 21 the QES provision. 22 (3) In this section-- 23 directive means-- 24 (a) a directive under the Public Service Act 25 2008 made by the chief executive of the 26 Public Service Commission that is the 27 subject of a regulation under section 52(2) 28 of that Act; or 29 (b) a directive under the Public Service Act 30 2008 made by the Minister administering 31 this Act; or 32 Page 25
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (c) a health employment directive under the 1 Hospital and Health Boards Act 2011. 2 inconsistency provision means-- 3 (a) the Public Service Act 2008, section 51; or 4 (b) the Hospital and Health Boards Act 2011, 5 section 51B. 6 Division 2 Minimum wage 7 71D Entitlement to minimum wage 8 (1) An employee is entitled to a wage that is not less 9 than the Queensland minimum wage. 10 (2) This section does not apply to an employee who 11 is excluded under section 287(5) from the 12 operation of the full bench's general ruling 13 declaring the Queensland minimum wage. 14 Division 3 Annual leave 15 Subdivision 1 Entitlement to annual leave 16 71E Application of sdiv 1 17 This subdivision does not apply to-- 18 (a) casual employees; or 19 (b) pieceworkers; or 20 (c) school-based apprentices or trainees. 21 71EA Entitlement 22 (1) For each completed year of employment with an 23 employer, an employee is entitled to-- 24 Page 26
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (a) if the employee is not a shift worker--at 1 least 4 weeks annual leave; or 2 (b) if the employee is a shift worker--at least 5 3 weeks annual leave. 4 (2) Annual leave is exclusive of a public holiday that 5 falls during the leave. 6 (3) However, if an employee is entitled to additional 7 annual leave as compensation for working on a 8 particular public holiday, annual leave is 9 inclusive of the particular public holiday. 10 (4) Annual leave accumulates, unless a modern 11 industrial instrument provides otherwise. 12 (5) This section does not confer an entitlement or an 13 additional entitlement in relation to employment 14 before 4 June 1999. 15 (6) In this section-- 16 shift worker means an employee who-- 17 (a) is employed in a calling in which shifts are 18 worked 24 hours a day, 7 days a week; and 19 (b) works a rotating roster that includes each of 20 the shifts. 21 71EB Working out completed year of employment 22 (1) This section applies for working out a completed 23 year of employment for section 71EA. 24 (2) The following periods when an employee is 25 absent without pay are not to be taken into 26 account-- 27 (a) a period of more than 3 months when an 28 employee is absent with the employer's 29 approval; 30 (b) a period when an employee is absent 31 without the employer's approval, unless the 32 Page 27
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] employee is absent for not more than 3 1 months because of illness or injury certified 2 to by a doctor. 3 Subdivision 2 Taking annual leave 4 71EC When annual leave may be taken 5 (1) An employee and employer may agree when the 6 employee is to take annual leave. 7 (2) If the employee and employer can not agree, the 8 employer-- 9 (a) may decide when the employee is to take 10 leave; and 11 (b) must give the employee at least 14 days 12 written notice of the starting date of the 13 leave. 14 (3) An employee and employer may agree that the 15 employee take all or any part of the employee's 16 annual leave before becoming entitled to it. 17 (4) If the employee takes leave before becoming 18 entitled to it, the employee is only entitled, at the 19 end of the completed year of employment, to the 20 balance of the leave that would be due at the end 21 of the year. 22 71ED Terms that may be included in modern 23 industrial instruments 24 A modern industrial instrument may include the 25 following-- 26 (a) terms requiring an employee to take annual 27 leave in particular circumstances, but only if 28 the requirement is reasonable; 29 Page 28
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) terms otherwise dealing with the taking of 1 annual leave. 2 Subdivision 3 Payment for annual leave 3 71EE Payment for annual leave 4 (1) Unless an employee and employer otherwise 5 agree, the employer must pay the employee for 6 annual leave in advance. 7 (2) The employer must pay for the leave-- 8 (a) at the ordinary rate being paid to the 9 employee immediately before the leave is 10 taken; or 11 (b) if, immediately before taking the leave, the 12 employee is being paid at a higher rate than 13 the ordinary rate--at the higher rate. 14 (3) If an employee is entitled to receive an amount 15 representing commission in the employee's 16 annual leave payment, the employer must pay the 17 default average commission unless-- 18 (a) a relevant industrial instrument, or a 19 contract between the employer and 20 employee, otherwise provides; or 21 (b) the commission, on application, considers 22 that the default average commission would 23 not represent a fair amount in the 24 circumstances. 25 (4) If, on application under subsection (3)(b), the 26 commission considers the default average 27 commission would not represent a fair amount in 28 the circumstances, the commission may make the 29 order it considers appropriate in the 30 circumstances. 31 (5) In this section-- 32 Page 29
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] default average commission means-- 1 � the total commissions payable to the 2 employee in the 1 year before the leave is 3 taken, or during the employee's period of 4 employment, whichever is less 5 � divided by 365.25, or the number of days in 6 the employee's period of employment, 7 whichever is less 8 � multiplied by the number of days starting on 9 the day the leave commences and ending on 10 the day before the employee is due to return 11 to work. 12 71EF Annual leave loading 13 (1) In addition to the employee's annual leave 14 entitlement under this division, the employee is 15 entitled to receive a further amount of at least 16 171/2% of the amount payable under section 17 71EE(2)(a). 18 (2) However, if the employee's employer pays the 19 employee a prescribed additional amount and the 20 amount-- 21 (a) is less than 171/2% of the amount payable 22 under section 71EE(2)(a)--the employee is 23 entitled to receive a further amount so the 24 employee receives the amount the employee 25 is entitled to under subsection (1); or 26 (b) is at least 171/2% of the amount payable 27 under section 71EE(2)(a)--the employee is 28 not entitled to receive an amount under 29 subsection (1). 30 (3) In this section-- 31 Page 30
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] prescribed additional amount means an amount, 1 however described, in addition to the employee's 2 annual leave entitlement under this division. 3 Example of how a prescribed additional amount might be 4 described-- 5 annual leave bonus, annual leave loading 6 Subdivision 4 Cashing out annual leave 7 71EG Requirements for cashing out annual leave 8 (1) Annual leave may not be cashed out except under 9 this section. 10 (2) An employer and an employee may agree to the 11 employee cashing out a particular amount of the 12 employee's annual leave. 13 (3) The employer and employee must not agree to 14 the employee cashing out an amount of annual 15 leave if the cashing out would result in the 16 employee's accrued annual leave entitlement 17 being less than 4 weeks. 18 (4) Each cashing out of a particular amount of annual 19 leave must be by a separate agreement in writing. 20 (5) The employer must pay the employee at least the 21 full amount that would have been payable to the 22 employee had the employee taken the annual 23 leave that has been forgone. 24 Page 31
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Subdivision 5 Payment on termination of 1 employment 2 71EH Payment for annual leave on termination of 3 employment 4 (1) This section applies if an employee's 5 employment is terminated by the employee or 6 employer. 7 (2) If the employee has not taken all the annual leave 8 the employee is entitled to, the employee is 9 presumed to have taken the leave from the day 10 the termination takes effect (the termination 11 day). 12 (3) The employer must immediately pay the 13 employee for the annual leave not taken, 14 including any public holiday during the period 15 the employee is presumed to have taken the 16 leave. 17 (4) If the employee has been employed for less than 18 1 year, the employer must pay the employee 19 proportionate annual leave for the period. 20 (5) The employer must pay the employee at least the 21 ordinary rate being paid to the employee 22 immediately before the termination day, unless a 23 modern industrial instrument states otherwise. 24 Division 4 Personal leave 25 Subdivision 1 Sick leave 26 71F Application of sdiv 1 27 This subdivision does not apply to-- 28 (a) casual employees; or 29 (b) pieceworkers; or 30 Page 32
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (c) school-based apprentices or trainees. 1 71FA Entitlement to sick leave 2 (1) An employee is entitled to at least 10 days sick 3 leave on full pay for each completed year of 4 employment with an employer. 5 (2) Unless a modern industrial instrument provides 6 otherwise, an employee's entitlement to paid sick 7 leave accumulates-- 8 (a) progressively during a year of employment 9 according to the employee's ordinary hours 10 of work; and 11 (b) from year to year. 12 (3) Sick leave may be taken for part of a day. 13 Examples-- 14 1 An employee is ordinarily required to work for 8 15 hours on a particular day and on that day becomes 16 sick after working 3 hours. The employee may take 17 sick leave for the remaining 5 hours that the 18 employee is unable to work because of the sickness. 19 2 An employee is ordinarily required to perform work 20 for 40 hours a week over 5 days, but has come to an 21 arrangement with the employer to work 10 hours a 22 day for 4 days a week. If the employee is unable to 23 work because of sickness on a day, the employee may 24 take 10 hours sick leave, which equates to 11/4 days 25 sick leave. 26 (4) This section does not confer an entitlement or an 27 additional entitlement in relation to employment 28 before the commencement of this section. 29 (5) In this section-- 30 day, for an employee who is paid on the basis of 31 the number of hours worked, means-- 32 (a) for an employee for whom a modern 33 industrial instrument provides sick leave--a 34 Page 33
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] day within the meaning of the instrument to 1 the extent it relates to sick leave; or 2 (b) otherwise--one-fifth of the number of the 3 employee's ordinary hours of work for a 4 week, averaged over each completed 6 5 weeks of employment with the employer. 6 71FB Requirement for employee to give notice etc. 7 (1) An employee's entitlement under section 71FA is 8 conditional on-- 9 (a) the employee promptly notifying the 10 employer of-- 11 (i) any illness that will cause the employee 12 to be absent from work; and 13 (ii) the approximate period for which the 14 employee will be absent; and 15 (b) if the employee is absent for more than 2 16 days-- 17 (i) the employee giving the employer a 18 doctor's certificate about the nature of 19 the illness and the approximate period 20 for which the employee will be absent; 21 or 22 (ii) the employee giving the employer 23 other evidence of the illness to the 24 employer's satisfaction. 25 (2) This section does not apply if-- 26 (a) a modern industrial instrument provides 27 otherwise; or 28 (b) the employee and employer agree otherwise. 29 Page 34
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Subdivision 2 Carer's leave 1 71FC Entitlement--employees other than casual 2 employees 3 (1) This section does not apply to a casual employee. 4 (2) An employee may use up to 10 days of sick leave 5 on full pay (carer's leave) in each year to care for 6 and support members of the employee's 7 immediate family or household-- 8 (a) when they are ill; or 9 (b) because an unexpected emergency arises. 10 Example for paragraph (b)-- 11 unexpected failure of child care arrangements 12 (3) If the employee has exhausted the entitlement 13 under subsection (2), the employee may take up 14 to an additional 2 days unpaid carer's leave each 15 time the employee needs to care for and support 16 members of the employee's immediate family or 17 household-- 18 (a) when they are ill; or 19 (b) because an unexpected emergency arises. 20 (4) The employee may take additional unpaid carer's 21 leave with the employer's agreement. 22 (5) An employee can not take carer's leave if another 23 person has taken leave enabling him or her to 24 care for the same person unless there are special 25 circumstances requiring more than 1 person to 26 care for the person. 27 (6) Carer's leave may be taken for part of a day. 28 (7) In this section-- 29 sick leave includes sick leave accrued before the 30 commencement of this section. 31 Page 35
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71FD Entitlement--long term casual employees 1 (1) This section applies to a long term casual 2 employee. 3 (2) The employee is entitled to 10 days leave (also 4 carer's leave) in each year to care for and support 5 members of the employee's immediate family or 6 household-- 7 (a) when they are ill; or 8 (b) because an unexpected emergency arises. 9 (3) The employee may take additional carer's leave if 10 the employer agrees. 11 (4) The employee can not take carer's leave if 12 another person has taken leave to care for the 13 same person unless there are special 14 circumstances requiring more than 1 person to 15 care for the person. 16 (5) Carer's leave may be taken for part of a day. 17 (6) The employer must not fail to re-engage the 18 employee only because the employee has taken 19 carer's leave under this section. 20 (7) Leave taken under this section is unpaid. 21 71FE Entitlement--short term casual employees 22 (1) This section applies to a short term casual 23 employee. 24 (2) The employee is entitled to leave work or to be 25 unavailable to attend work for up to 2 days (also 26 carer's leave) each time the employee needs to 27 care for and support members of the employee's 28 immediate family or household-- 29 (a) when they are ill; or 30 (b) because an unexpected emergency arises; or 31 (c) because of the birth of a child. 32 Page 36
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (3) The employee may leave work or be unavailable 1 to attend work for reasons mentioned in 2 subsection (2) for additional periods if the 3 employer agrees. 4 (4) The employee can not take carer's leave if 5 another person has taken leave to care for the 6 same person unless there are special 7 circumstances requiring more than 1 person to 8 care for the person. 9 (5) Carer's leave may be taken for part of a day. 10 (6) The employer must not fail to re-engage the 11 employee only because the employee has taken 12 carer's leave under this section. 13 (7) However, the rights of an employer not to 14 re-engage the employee are not otherwise 15 affected. 16 (8) Leave taken under this section is unpaid. 17 71FF Employee to provide supporting information 18 to employer 19 (1) This section applies if an employee is taking 20 carer's leave to care for and support a member of 21 the employee's immediate family or household 22 who is ill. 23 (2) The employee must, if required by the employer, 24 produce a doctor's certificate or statutory 25 declaration evidencing that the member is ill with 26 an illness requiring care by another person. 27 (3) The employee must, if practicable, give the 28 employer-- 29 (a) notice of the intention to take carer's leave 30 before taking the leave; and 31 Page 37
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) the name of the person requiring care and 1 the person's relationship to the employee; 2 and 3 (c) the reason for taking the leave; and 4 (d) the period that the employee estimates he or 5 she will be absent; and 6 (e) if the reason for taking the leave is because 7 an unexpected emergency has arisen--the 8 nature of the emergency. 9 (4) If it is not practicable for the employee to notify 10 the employer of the intention to take carer's leave 11 before taking the leave, the employee must notify 12 the employer at the first reasonable opportunity. 13 Subdivision 3 Bereavement leave 14 71FG Application of sdiv 3 15 This subdivision does not apply to pieceworkers. 16 71FH Entitlement--employees other than casual 17 employees 18 An employee, other than a casual employee, is entitled 19 to-- 20 (a) at least 2 days bereavement leave on full pay 21 on the death of a member of the person's 22 immediate family or household; and 23 (b) if the employee reasonably requires extra 24 time to travel to and from the funeral or 25 other ceremony for the death--an amount of 26 unpaid bereavement leave equal to the time 27 reasonably required for the travel. 28 Page 38
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71FI Entitlement--casual employees 1 (1) A long term casual employee is entitled to-- 2 (a) at least 2 days unpaid bereavement leave on 3 the death of a member of the person's 4 immediate family or household; and 5 (b) if the employee reasonably requires extra 6 time to travel to and from the funeral or 7 other ceremony for the death--an amount of 8 unpaid bereavement leave equal to the time 9 reasonably required for the travel. 10 (2) A short term casual employee is entitled to be 11 unavailable to attend work-- 12 (a) for up to 2 days on unpaid bereavement 13 leave on the death of a member of the 14 person's immediate family or household; 15 and 16 (b) if the employee reasonably requires extra 17 time to travel to and from the funeral or 18 other ceremony for the death--an amount of 19 unpaid bereavement leave equal to the time 20 reasonably required for the travel. 21 (3) The employer must not fail to re-engage a casual 22 employee only because the employee has taken 23 bereavement leave under this section. 24 (4) However, the rights of an employer not to 25 re-engage a casual employee are not otherwise 26 affected. 27 71FJ Evidence to be provided by employee 28 An employee who takes bereavement leave must give 29 the employer a copy of the funeral notice or other 30 evidence of the death the employer reasonably 31 requires. 32 Page 39
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71FK Additional leave 1 An employee may take additional leave as unpaid 2 bereavement leave if the employer agrees. 3 Subdivision 4 Cultural leave 4 71FL Entitlement 5 (1) This section applies to an employee who is 6 required by Aboriginal tradition or Island custom 7 to attend an Aboriginal or Torres Strait Islander 8 ceremony. 9 (2) The employee may take up to 5 days unpaid 10 cultural leave in each year, if the employer 11 agrees. 12 (3) The employer must not unreasonably refuse the 13 leave. 14 (4) In considering the employee's request for leave, 15 the employer must consider at least the 16 following-- 17 (a) the employer's capacity to reorganise work 18 arrangements to accommodate the 19 employee's request; 20 (b) the impact of the employee's absence on the 21 delivery of customer service; 22 (c) the particular circumstances of the 23 employee; 24 (d) the impact of a refusal on the employee, 25 including the employee's ability to balance 26 work and family responsibilities. 27 (5) The employee must, if practicable, give the 28 employer-- 29 (a) reasonable notice of the intention to take 30 cultural leave before taking the leave; and 31 Page 40
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) the reason for taking the leave; and 1 (c) the period that the employee estimates the 2 employee will be absent. 3 (6) If it is not practicable for the employee to give the 4 notice before taking the leave, the employee must 5 give the employer notice of the matters in 6 subsection (5)(b) and (c) at the first opportunity. 7 (7) It is declared that leave provided under this 8 section is a welfare measure for the purposes of 9 the Anti-Discrimination Act 1991, section 104. 10 Subdivision 5 General provision 11 71FM Relationship to other rights 12 (1) This part has effect despite a relevant law to the 13 extent the relevant law provides an employee 14 with a benefit that is less favourable to the 15 employee. 16 (2) In this section-- 17 relevant law means another law of the State. 18 Division 5 Parental leave 19 Subdivision 1 Preliminary 20 71G Application of div 5 21 This division does not apply to-- 22 (a) short term casual employees; or 23 (b) seasonal employees; or 24 (c) pieceworkers. 25 Page 41
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71GA Explanation of types of parental leave 1 (1) This division provides for parental leave. 2 (2) The types of parental leave are as follows-- 3 (a) birth-related leave, for-- 4 (i) an employee who is pregnant; or 5 (ii) an employee whose spouse gives birth; 6 Notes-- 7 1 Birth-related leave for a pregnant employee 8 (maternity leave) may be taken by a pregnant 9 employee in connection with the birth of her 10 child or to enable her to be the child's primary 11 caregiver. 12 2 Birth-related leave for an employee whose 13 spouse gives birth may be short (in connection 14 with the child's birth) or long (to enable the 15 employee to be the child's primary caregiver). 16 (b) adoption leave, for an employee with whom 17 an adopted child is placed; 18 Note-- 19 Adoption leave may be short (in connection with 20 the child's placement) or long (to enable the 21 employee to be the child's primary caregiver). 22 (c) surrogacy leave, for an employee who is an 23 intended parent under a surrogacy 24 arrangement. 25 Note-- 26 Surrogacy leave may be short (when the child born 27 as a result of the surrogacy arrangement starts 28 residing with the employee) or long (to enable the 29 employee to be the child's primary caregiver). 30 71GB Definitions for div 5 31 In this division-- 32 adoption leave means short adoption leave or 33 long adoption leave. 34 Page 42
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] birth-related leave means short birth-related 1 leave or long birth-related leave. 2 child means-- 3 (a) for adoption leave--a child who is under the 4 age of 5 years, but does not include a child 5 who, immediately before the child was 6 adopted by the employee-- 7 (i) had been living with the employee for a 8 continuous period of at least 6 months; 9 or 10 (ii) was the employee's stepchild or the 11 child or stepchild of the employee's 12 spouse; or 13 (b) for surrogacy leave--a child born as a result 14 of a surrogacy arrangement. 15 intended parent, for a surrogacy arrangement, 16 see the Surrogacy Act 2010, section 9. 17 long adoption leave means leave taken by an 18 employee to enable the employee to be the 19 primary caregiver of an adopted child. 20 long birth-related leave means-- 21 (a) maternity leave; or 22 (b) leave taken by an employee whose spouse 23 has given birth to enable the employee to be 24 the child's primary caregiver. 25 long parental leave means-- 26 (a) long birth-related leave; or 27 (b) long adoption leave; or 28 (c) long surrogacy leave. 29 long surrogacy leave means leave taken by an 30 employee to enable the employee to be the 31 primary caregiver of a child born as a result of a 32 surrogacy arrangement. 33 Page 43
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] maternity leave means leave taken by a pregnant 1 employee-- 2 (a) for the birth of her child; or 3 (b) to enable her to be the child's primary 4 caregiver. 5 parental leave means long parental leave or short 6 parental leave. 7 parental leave entitlement means the parental 8 leave entitlement mentioned in section 71GD, 9 71GE or 71GF. 10 short adoption leave means leave taken by an 11 employee at the time of the placement of an 12 adopted child with the employee. 13 short birth-related leave means leave taken by an 14 employee, in connection with the birth of a child 15 of the employee's spouse, at the time of-- 16 (a) the birth of the child; or 17 (b) the other termination of the pregnancy. 18 short parental leave means-- 19 (a) short birth-related leave; or 20 (b) short adoption leave; or 21 (c) short surrogacy leave. 22 short surrogacy leave means leave taken by an 23 employee when a child born as a result of a 24 surrogacy arrangement starts residing with the 25 employee. 26 short term casual employee means a casual 27 employee, other than a long term casual 28 employee. 29 surrogacy arrangement see the Surrogacy Act 30 2010, section 7. 31 Page 44
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] surrogacy leave means long surrogacy leave or 1 short surrogacy leave. 2 Subdivision 2 Entitlement 3 71GC Application of sdiv 2 4 (1) This subdivision applies to-- 5 (a) an employee, other than a long term casual 6 employee, who has had at least 12 months 7 continuous service with the employer; and 8 (b) a long term casual employee. 9 (2) In this section-- 10 continuous service means service, including a 11 period of authorised leave or absence, under an 12 unbroken employment contract. 13 71GD Entitlement to birth-related leave 14 (1) A pregnant employee is entitled to an unbroken 15 period of up to 52 weeks unpaid maternity 16 leave-- 17 (a) for the child's birth; and 18 (b) to be the child's primary caregiver. 19 (2) For the birth of a child of an employee's spouse, 20 the employee is entitled to the following leave-- 21 (a) an unbroken period of up to 1 week's unpaid 22 short birth-related leave; 23 (b) a further unbroken period of up to 51 weeks 24 unpaid long birth-related leave. 25 Page 45
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71GE Entitlement to adoption leave 1 For the adoption of a child, an employee is entitled to 2 the following leave-- 3 (a) an unbroken period of up to 3 weeks unpaid 4 short adoption leave; 5 (b) a further unbroken period of up to 49 weeks 6 unpaid long adoption leave. 7 71GF Entitlement to surrogacy leave 8 An employee who is an intended parent under a 9 surrogacy arrangement is entitled to the following 10 leave-- 11 (a) an unbroken period of up to 1 week's unpaid 12 short surrogacy leave; 13 (b) a further unbroken period of up to 51 weeks 14 unpaid long surrogacy leave. 15 71GG Maximum period of parental leave 16 (1) Parental leave must not extend-- 17 (a) beyond 1 year after the child was born or 18 adopted or started residing with the 19 employee under the surrogacy arrangement; 20 or 21 (b) if an application for an extension of parental 22 leave under section 71GR is agreed 23 to--beyond 2 years after the child was born 24 or adopted or started residing with the 25 employee under the surrogacy arrangement. 26 (2) The maximum period of parental leave allowed 27 under subsection (1) is the maximum period of 28 parental leave. 29 (3) This section applies despite sections 71GD to 30 71GF. 31 Page 46
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Subdivision 3 Notices and information 1 71GH Employee notice--intention to take 2 maternity leave 3 (1) This section applies if a pregnant employee 4 wants to take maternity leave. 5 (2) The employee must give the employer-- 6 (a) at least 10 weeks written notice of intention 7 to take the leave; and 8 (b) at least 4 weeks written notice of the dates 9 on which she wants to start and end the 10 leave. 11 (3) The employee must, before starting the leave, 12 give the employer-- 13 (a) a doctor's certificate confirming that she is 14 pregnant and the expected date of birth; and 15 (b) a statutory declaration by the employee 16 stating the period of any parental leave 17 sought by her spouse. 18 71GI Employee notice--intention to take 19 birth-related leave other than maternity leave 20 (1) This section applies if an employee wants to take 21 birth-related leave, other than maternity leave. 22 (2) The employee must give the employer-- 23 (a) for long birth-related leave--at least 10 24 weeks written notice of intention to take the 25 leave; and 26 (b) at least 4 weeks written notice of the dates 27 on which the employee wants to start and 28 end the leave. 29 (3) The employee must, before starting the leave, 30 give the employer-- 31 Page 47
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (a) a doctor's certificate confirming that the 1 employee's spouse is pregnant and the 2 expected date of birth; and 3 (b) for long birth-related leave--a statutory 4 declaration by the employee stating-- 5 (i) the period of any maternity leave 6 sought by the employee's spouse; and 7 (ii) that the employee is seeking the leave 8 to be the child's primary caregiver. 9 71GJ Employee notice--intention to take adoption 10 leave 11 (1) This section applies if an employee wants to take 12 adoption leave. 13 (2) The employee must give the employer-- 14 (a) for long adoption leave--written notice of 15 any approval to adopt a child at least 10 16 weeks before the expected date of 17 placement of the child for adoption purposes 18 (the expected placement date); and 19 (b) written notice of the dates on which the 20 employee wants to start and end the leave, 21 as soon as practicable after the employee is 22 notified of the expected placement date but, 23 in any case, at least 14 days before starting 24 the leave. 25 (3) The employee must, before starting the leave, 26 give the employer-- 27 (a) a statement from an adoption agency of the 28 expected placement date; and 29 (b) for long adoption leave--a statutory 30 declaration by the employee stating-- 31 (i) the period of any adoption leave sought 32 by the employee's spouse; and 33 Page 48
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (ii) that the employee is seeking the leave 1 to be the child's primary caregiver. 2 (4) In this section-- 3 adoption agency means an agency, body, office 4 or court, authorised by a Commonwealth or State 5 law to perform functions about adoption. 6 71GK Employee notice--intention to take 7 surrogacy leave 8 (1) This section applies if an employee wants to take 9 surrogacy leave. 10 (2) The employee must give the employer-- 11 (a) for long surrogacy leave--written notice of 12 intention to take the leave at least 10 weeks 13 before the expected date when a child is to 14 start residing with the employee under the 15 surrogacy arrangement (the expected 16 residence date); and 17 (b) at least 4 weeks written notice of the dates 18 on which the employee wants to start and 19 end the leave. 20 (3) The employee must, before starting the leave, 21 give the employer a statutory declaration by the 22 employee stating-- 23 (a) the employee is an intended parent under a 24 surrogacy arrangement; and 25 (b) the expected residence date; and 26 (c) for long surrogacy leave-- 27 (i) the period of leave sought by the 28 employee; and 29 (ii) the period of any surrogacy leave 30 sought by the employee's spouse; and 31 Page 49
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (iii) that the employee is seeking the leave 1 to be the child's primary caregiver. 2 71GL Reasons not to give notice or documents 3 (1) An employee does not fail to comply with section 4 71GH, 71GI, 71GJ or 71GK if the failure was 5 caused by-- 6 (a) the child being born, or the pregnancy 7 otherwise terminating, before the expected 8 date of birth; or 9 (b) the child being placed for adoption before 10 the expected placement date; or 11 (c) the child starting to reside with the 12 employee before the expected residence 13 date; or 14 (d) another reason that was reasonable in the 15 circumstances. 16 (2) However, the employee must give the 17 employer-- 18 (a) notice of the period of the leave within 2 19 weeks after the child's birth or placement or 20 the child starts residing with the employee; 21 and 22 (b) in the case of the birth of a living child--a 23 doctor's certificate stating the date on which 24 the child was born. 25 71GM Consequences of failure to give notice of 26 intention to take parental leave 27 (1) This section applies if an employee fails to 28 comply with section 71GH, 71GI, 71GJ or 29 71GK. 30 Page 50
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (2) Despite subdivision 2, the employer is not 1 required to provide the parental leave until the 2 employee complies with the section. 3 71GN Employee notice--change to situation 4 An employee must notify the employer of any change 5 in the information provided under section 71GH, 6 71GI, 71GJ or 71GK within 2 weeks after the change. 7 71GO Employee to advise employer about 8 particular changes 9 (1) This section applies to an employee who is 10 absent on parental leave. 11 (2) The employee must advise the employer of any 12 change in the employee's contact details, 13 including any change of address. 14 Note-- 15 Advice given under subsection (2) may be used by an 16 employer for section 71GQ to advise the employee about 17 significant change at the workplace. 18 (3) The employee must also take reasonable steps to 19 advise the employer of any significant change 20 affecting the following as soon as possible after 21 the change happens-- 22 (a) the length of the employee's parental leave; 23 (b) the date the employee intends to return to 24 work; 25 (c) an earlier decision to return to work on a 26 full-time basis or to apply to return to work 27 on a part-time basis. 28 Page 51
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71GP Employer to advise about parental leave 1 entitlements 2 (1) Subsection (2) applies to an employer on 3 becoming aware-- 4 (a) an employee or an employee's spouse is 5 pregnant; or 6 (b) an employee is adopting a child; or 7 (c) an employee is an intended parent under a 8 surrogacy arrangement. 9 (2) The employer must inform the employee of-- 10 (a) the employee's entitlement to parental leave 11 under this division; and 12 (b) the employee's obligations to notify the 13 employer of any matter under this division. 14 (3) An employer can not rely on an employee's 15 failure to give a notice or other document 16 required by this division unless the employer 17 establishes that subsection (2) has been complied 18 with. 19 71GQ Employer's obligation to advise about 20 significant change at the workplace 21 (1) This section applies if an employer decides to 22 implement significant change at a workplace. 23 (2) The employer must take reasonable action to 24 advise each employee who is absent from the 25 workplace on parental leave about the proposed 26 change before it is implemented. 27 (3) The advice must inform the employee of the 28 change and any effect it will have on the position 29 the employee held before starting parental leave, 30 including, for example, the status or level of 31 responsibility attached to the position. 32 Page 52
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (4) The employer must give the employee a 1 reasonable opportunity to discuss any significant 2 effect the change will have on the employee's 3 position. 4 Subdivision 4 Application to extend 5 parental leave or return 6 part-time 7 71GR Application for extension of parental leave 8 (1) An employee entitled to parental leave under 9 subdivision 2, or who is taking parental leave, 10 may apply to the employer-- 11 (a) if the parental leave is maternity leave--for 12 an extension of the maternity leave for an 13 unbroken period of up to 104 weeks in total; 14 or 15 (b) otherwise--for an extension of either or 16 both of the following-- 17 (i) the short parental leave for an unbroken 18 period of up to 8 weeks in total; 19 (ii) the long parental leave for an unbroken 20 period of up to 96 weeks in total. 21 (2) An employee may not make more than 1 22 application under subsection (1) within a 23 12-month period in relation to a particular 24 instance of parental leave, unless the employer 25 agrees. 26 71GS Application to work part-time 27 (1) An employee on parental leave may apply to the 28 employer to return to work on a part-time basis. 29 Page 53
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (2) An employee may not make more than 1 1 application under this section within a 12-month 2 period, unless the employer agrees. 3 71GT Application for extension or part-time work 4 (1) An application mentioned in section 71GR or 5 71GS must-- 6 (a) be in writing; and 7 (b) be made-- 8 (i) for an application for extension of short 9 parental leave--at least 2 business days 10 before the leave ends; or 11 (ii) for an application for extension of long 12 parental leave--at least 4 weeks before 13 the leave ends; or 14 (iii) for an application to return to work on 15 a part-time basis--at least 7 weeks 16 before the leave ends; and 17 (c) state it is an application for extension of 18 parental leave under section 71GR or an 19 application to return to work on a part-time 20 basis under section 71GS, as appropriate; 21 and 22 (d) state the dates the extension, or return to 23 work on a part-time basis, being applied for 24 is to start and end; and 25 (e) state the impact refusal of the application 26 might have on the employee and the 27 employee's dependants; and 28 (f) for an application for extension of long 29 parental leave or to return to work on a 30 part-time basis--be accompanied by a 31 statutory declaration by the employee 32 stating-- 33 Page 54
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (i) for an application for extension of long 1 parental leave--that the employee is 2 seeking the extension so the employee 3 can continue to be the child's primary 4 caregiver; or 5 (ii) for an application to return to work on 6 a part-time basis--that the employee is 7 seeking to work on a part-time basis so 8 the employee can continue to be the 9 child's primary caregiver when not at 10 work. 11 (2) The period for which an application may be made 12 under section 71GS can not extend beyond the 13 day the child in relation to whom parental leave 14 was taken is required to be enrolled for 15 compulsory schooling under the Education 16 (General Provisions) Act 2006. 17 71GU Employer's decision on application for 18 extension or part-time work 19 (1) In deciding whether to agree to an application 20 under section 71GR or 71GS, the employer must 21 consider the following-- 22 (a) the particular circumstances of the 23 employee that give rise to the application, 24 particularly circumstances relating to the 25 employee's role as the child's caregiver; 26 (b) the impact refusal of the application might 27 have on the employee and the employee's 28 dependants; 29 (c) the effect that agreeing to the application 30 would have on the conduct of the 31 employer's business, including, for 32 example-- 33 (i) any additional cost the employer would 34 incur; and 35 Page 55
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (ii) the employer's capacity to reorganise 1 work arrangements; and 2 (iii) the availability of competent 3 replacement staff; and 4 (iv) any loss of efficiency in the conduct of 5 the employer's business; and 6 (v) the impact of the employee's absence 7 or temporary absence on the delivery of 8 customer service. 9 (2) The employer must not unreasonably refuse an 10 application under section 71GR or 71GS. 11 (3) The employer must advise the employee, in 12 writing, of the employer's decision-- 13 (a) if the application is for an extension of short 14 parental leave--as soon as possible after 15 receiving the application but before the short 16 parental leave ends; or 17 (b) for any other application--within 14 days 18 after receiving the application. 19 (4) If the employer refuses the application, the 20 employer must provide the employee with 21 written reasons for refusing the application. 22 Subdivision 5 Other provisions affecting 23 duration of parental leave 24 71GV Spouses not to take long parental leave at 25 same time 26 (1) An employee is not entitled to long parental leave 27 when his or her spouse is on parental leave. 28 (2) If the employee contravenes subsection (1), the 29 period of parental leave the employee is entitled 30 to is reduced by the period for which the 31 Page 56
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] employee and his or her spouse were on parental 1 leave in contravention of subsection (1). 2 71GW Cancelling parental leave 3 (1) Parental leave applied for but not started is 4 automatically cancelled if-- 5 (a) the employee withdraws the application for 6 leave by written notice to the employer; or 7 (b) the pregnancy terminates other than by the 8 birth of a living child; or 9 (c) the placement of the child with the 10 employee for adoption purposes does not 11 proceed; or 12 (d) a child does not start residing with the 13 employee under the surrogacy arrangement. 14 (2) Subsection (3) applies if, while an employee is 15 on parental leave-- 16 (a) the pregnancy terminates other than by the 17 birth of a living child; or 18 (b) the child in relation to whom the employee 19 is on parental leave dies; or 20 (c) the placement of the child with the 21 employee for adoption purposes does not 22 proceed or continue; or 23 (d) the residence of the child with the employee 24 under the surrogacy arrangement does not 25 start or continue. 26 (3) The employee is entitled to resume work at a 27 time nominated by the employer within 2 weeks 28 after the day on which the employee gives the 29 employer a written notice stating-- 30 (a) the employee intends to resume work; and 31 (b) the reason for the resumption. 32 Page 57
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (4) This section does not affect an employee's 1 entitlement to special maternity leave or sick 2 leave under section 71GZC. 3 71GX Parental leave with other leave 4 (1) An employee may take any annual leave or long 5 service leave to which the employee is entitled 6 instead of or together with parental leave. 7 (2) However, the total period of leave can not extend 8 beyond the maximum period of parental leave. 9 (3) While the employee is on unpaid parental leave, 10 the employee is not entitled to paid sick leave or 11 other paid leave, unless the employer agrees. 12 (4) In this section-- 13 other paid leave means paid leave authorised by 14 any of the following-- 15 (a) a law; 16 (b) a modern industrial instrument; 17 (c) an employment contract. 18 71GY Interruption of parental leave by return to 19 work 20 (1) An employee and employer may agree that the 21 employee break the period of parental leave by 22 returning to work for the employer, whether on a 23 full-time, part-time or casual basis. 24 (2) The period of parental leave can not be extended 25 by the return to work beyond the maximum 26 period of parental leave under section 71GG. 27 Page 58
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71GZ Extending period of parental leave by notice 1 (1) An employee may extend the period of parental 2 leave by written notice given to the employer at 3 least 14 days-- 4 (a) before the start of the parental leave; or 5 (b) if the parental leave has been 6 started--before the parental leave ends. 7 (2) The notice must state when the extended period 8 of parental leave ends. 9 (3) The total period of parental leave can not be 10 extended under subsection (1) beyond the total 11 period mentioned in section 71GG(1)(a). 12 (4) Parental leave may be extended under subsection 13 (1) only once. 14 71GZA Shortening period of parental leave 15 If the employer agrees, an employee may shorten 16 parental leave by written notice given to the employer 17 at least 14 days before the employee wants to return to 18 work. 19 71GZB Effect on parental leave of employee 20 ceasing to be primary caregiver 21 (1) This section applies if-- 22 (a) during a substantial period starting on or 23 after the start of an employee's long parental 24 leave the employee is not the child's primary 25 caregiver; and 26 (b) considering the length of the period and any 27 other relevant circumstances, it is 28 reasonable to expect the employee will not 29 again become the child's primary caregiver 30 within a reasonable period. 31 Page 59
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (2) The employer may notify the employee of the 1 day, at least 4 weeks after the employer gives the 2 notice, on which the employee must return to 3 work. 4 (3) If the employee returns to work, the employer 5 must cancel the rest of the leave. 6 Subdivision 6 Other entitlements 7 71GZC Special maternity leave and sick leave 8 (1) This section applies if, before an employee starts 9 maternity leave-- 10 (a) the employee's pregnancy terminates before 11 the expected date of birth, other than by the 12 birth of a living child; or 13 (b) the employee suffers illness related to her 14 pregnancy. 15 (2) For as long as a doctor certifies it to be necessary, 16 the employee is entitled to the following types of 17 leave-- 18 (a) unpaid leave (special maternity leave); 19 (b) paid sick leave, either instead of, or as well 20 as, special maternity leave. 21 71GZD Special adoption leave 22 An employee who is seeking to adopt a child is 23 entitled to up to 2 days unpaid leave to attend 24 compulsory interviews or examinations as part of the 25 adoption procedure. 26 Page 60
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71GZE Special surrogacy leave 1 An employee who is an intended parent under a 2 surrogacy arrangement is entitled to up to 2 days 3 unpaid leave to attend compulsory interviews or court 4 hearings associated with the surrogacy arrangement. 5 71GZF Return to work after parental leave etc. 6 (1) This section applies to-- 7 (a) an employee who returns to work after 8 parental leave; or 9 (b) a female employee who returns to work 10 after special maternity leave or sick leave 11 under section 71GZC. 12 (2) The employee is entitled to be employed in-- 13 (a) the position held by the employee 14 immediately before starting parental leave; 15 or 16 (b) if the employee worked part-time because of 17 the pregnancy before starting maternity 18 leave--the position held by the employee 19 immediately before starting part-time work; 20 or 21 (c) if the employee was transferred to a safe job 22 under section 71GZG before starting 23 maternity leave--the position held by the 24 employee immediately before the transfer. 25 (3) If the position mentioned in subsection (2) no 26 longer exists but there are other positions 27 available that the employee is qualified for and is 28 capable of performing, the employee is entitled 29 to be employed in a position that is, as nearly as 30 possible, comparable in status and remuneration 31 to that of the employee's former position. 32 Page 61
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (4) An employer must make a position to which the 1 employee is entitled available to the employee. 2 (5) If a long term casual employee's hours were 3 reduced because of the pregnancy before starting 4 maternity leave, the employer must restore the 5 employee's hours to hours equivalent to those 6 worked immediately before the hours were 7 reduced. 8 71GZG Transfer to a safe job 9 (1) This section applies whenever the present work 10 of a female employee is, because of her 11 pregnancy or breastfeeding, a risk to the health or 12 safety of the employee or of her unborn or 13 newborn child. 14 (2) The assessment of the risk is to be made on the 15 basis of-- 16 (a) a doctor's certificate given by the employee 17 to the employer; and 18 (b) the employer's duties under the Work Health 19 and Safety Act 2011. 20 (3) The employer must temporarily adjust the 21 employee's working conditions or hours of work 22 to avoid exposure to the risk. 23 (4) If an adjustment is not feasible or can not 24 reasonably be required to be made, the employer 25 must transfer the employee to other appropriate 26 work that-- 27 (a) will not expose her to the risk; and 28 (b) is, as nearly as possible, comparable in 29 status and remuneration to that of her 30 present work. 31 (5) If a transfer is not feasible or can not reasonably 32 be required to be made, the employer must grant 33 Page 62
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] the employee maternity leave, or any available 1 paid sick leave, for as long as a doctor certifies it 2 is necessary to avoid exposure to the risk. 3 71GZH Continuity of service 4 (1) Parental leave does not break an employee's 5 continuity of service. 6 (2) Parental leave is not to be taken into account in 7 working out the employee's period of service, 8 other than-- 9 (a) to decide the employee's entitlement to a 10 later period of parental leave; or 11 (b) as expressly provided in-- 12 (i) this Act; or 13 (ii) a modern industrial instrument; or 14 (iii) an employment contract. 15 71GZI Dismissal because of pregnancy or parental 16 leave 17 (1) An employer must not dismiss an employee 18 because-- 19 (a) the employee or the employee's spouse is 20 pregnant or has applied to adopt a child; or 21 (b) the employee or the employee's spouse has 22 given birth to a child or adopted a child; or 23 (c) the employee is an intended parent under a 24 surrogacy arrangement or a child has started 25 residing with the employee under a 26 surrogacy arrangement; or 27 (d) the employee has applied for, or is absent 28 on, parental leave. 29 (2) This section does not affect any other rights of-- 30 Page 63
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (a) an employer to dismiss an employee; or 1 (b) a dismissed employee. 2 71GZJ Replacement employees 3 (1) The employer must, before a replacement 4 employee starts employment, give the 5 replacement employee a written notice informing 6 the replacement employee of-- 7 (a) the temporary nature of the employment; 8 and 9 (b) the parent's right to return to work. 10 (2) In this section-- 11 replacement employee means-- 12 (a) a person who is specifically employed 13 because an employee (the parent)-- 14 (i) starts parental leave; or 15 (ii) is transferred to a safe job under 16 section 71GZC; or 17 (b) a person replacing an employee who is 18 temporarily promoted or transferred to 19 replace the parent. 20 Subdivision 7 General 21 71GZK Relationship to other rights 22 (1) This division has effect despite a relevant law to 23 the extent the relevant law provides an employee 24 with a benefit that is less favourable to the 25 employee. 26 (2) In this section-- 27 relevant law means another law of the State. 28 Page 64
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Division 6 Long service leave 1 Subdivision 1 Preliminary 2 71H Definitions for div 6 3 In this division-- 4 continuous service, of an employee, means-- 5 (a) in section 71HN--the period of continuous 6 service the employee is taken to have had 7 with an employer under section 8 71HN(2)(b); or 9 (b) elsewhere--the employee's continuous 10 service with the same employer, whether 11 wholly in the State or partly in and partly 12 outside the State. 13 owner, of a meat works, includes a person who 14 carries on the business of the works. 15 period between seasons includes the period 16 between-- 17 (a) the end of 1 season and the start of the next 18 season; and 19 (b) for a particular employee--the day the 20 employee stops employment in 1 season and 21 the day the employee starts employment in 22 the next season. 23 season means a period, whether falling 24 completely in 1 calendar year or partly in 1 25 calendar year and partly in the next calendar 26 year, when-- 27 (a) for the sugar industry-- 28 (i) sugar cane is delivered to, and crushed 29 at, a sugar mill; or 30 Page 65
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (ii) sugar cane is harvested, or farm work is 1 performed, in the sugar industry; or 2 (b) for a meat works--stock are delivered to, 3 and slaughtered at, the works. 4 Subdivision 2 Relationship of division 6 5 with continuity of service 6 provisions 7 71HA Application of pt 5 for particular purposes 8 To remove any doubt, it is declared that the provisions 9 of part 5 apply for working out an employee's rights 10 and entitlements to long service leave under this 11 division or a modern industrial instrument. 12 Subdivision 3 Entitlement 13 71HB Entitlement--employees other than 14 seasonal employees 15 (1) This section applies to an employee, other than a 16 seasonal employee. 17 Note-- 18 For provisions applicable to seasonal employees, see 19 subdivisions 5 and 6. 20 (2) The employee is entitled to long service leave, on 21 full pay, of-- 22 (a) if the employee has completed 10 years 23 continuous service--8.6667 weeks; and 24 (b) after 10 years service, if the employee has 25 completed at least a further 5 years 26 continuous service--a period that bears to 27 8.6667 weeks the proportion that the 28 Page 66
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] employee's further period of continuous 1 service bears to 10 years. 2 (3) An employee who has completed at least 7 years 3 continuous service is entitled to a proportionate 4 payment for long service leave on the termination 5 of the employee's service. 6 (4) However, if the employee's service is terminated 7 before the employee has completed 10 years 8 continuous service, the employee is entitled to a 9 proportionate payment only if-- 10 (a) the employee's service is terminated 11 because of the employee's death; or 12 (b) the employee terminates the service because 13 of-- 14 (i) the employee's illness or incapacity; or 15 (ii) a domestic or other pressing necessity; 16 or 17 (c) the termination is because the employer-- 18 (i) dismisses the employee for a reason 19 other than the employee's conduct, 20 capacity or performance; or 21 (ii) unfairly dismisses the employee; or 22 (d) the termination is because of the passing of 23 time and-- 24 (i) the employee had a reasonable 25 expectation that the employment with 26 the employer would continue until the 27 employee had completed at least 10 28 years continuous service; and 29 (ii) the employee was prepared to continue 30 the employment with the employer. 31 (5) Long service leave is exclusive of a public 32 holiday that falls during the period of the leave. 33 Page 67
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (6) An employee who is entitled to long service 1 leave other than under this Act is entitled to leave 2 that is at least as favourable as the entitlement 3 under this section. 4 (7) For working out when an employee may take 5 long service leave, only two-thirds of the 6 employee's continuous service completed before 7 3 June 2001 counts as continuous service. 8 (8) Subsection (7) does not reduce an entitlement to 9 long service leave that an employee has accrued 10 before subsection (7) commences. 11 Examples for subsections (7) and (8)-- 12 An employee has completed 15 years of continuous 13 service immediately before the commencement. The 15 14 years counts as 10 years continuous service for working 15 out when the employee may take long service leave. 16 The employee may take the leave immediately. The 17 employee's entitlement then is 13 weeks (15 x 0.86667 18 weeks). 19 An employee has completed 10 years of continuous 20 service immediately before the commencement. The 10 21 years counts as 6.6667 years continuous service for 22 working out when the employee may take long service 23 leave. The employee may take the leave after 24 completing another 3.3333 years continuous service. 25 The employee's entitlement then will be 11.5556 weeks 26 ([10 + 3.3333] x 0.86667 weeks). 27 An employee has completed 1 year of continuous 28 service immediately before the commencement. The 1 29 year counts as 0.6667 years continuous service for 30 working out when the employee may take long service 31 leave. The employee may take the leave after 32 completing another 9.3333 years continuous service. 33 The employee's entitlement then will be 8.9556 weeks 34 ([1 + 9.3333] x 0.86667 weeks). 35 An employee starts employment after the 36 commencement. The employee may take long service 37 leave after completing 10 years continuous service. The 38 employee's entitlement then will be 8.6667 weeks (10 x 39 0.86667 weeks). 40 (9) In this section-- 41 Page 68
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] proportionate payment means a payment equal 1 to the employee's full pay for a period that 2 represents the same proportion of 8.6667 weeks 3 that the employee's period of continuous service 4 bears to 10 years. 5 71HC Continuity of service--service before 23 6 June 1990 7 (1) This section applies to service of an employee, 8 other than a casual employee, before 23 June 9 1990. 10 (2) The repealed Industrial Conciliation and 11 Arbitration Act 1961, sections 17, 18, 19 and 20, 12 applies for-- 13 (a) working out the employee's continuous 14 service before 23 June 1990; and 15 (b) calculating the employee's entitlement to 16 long service leave in relation to continuous 17 service before 23 June 1990. 18 Subdivision 2 Taking long service leave 19 71HD Taking long service leave 20 (1) The commission may insert in a modern 21 industrial instrument provisions-- 22 (a) about when, the way in which, and the 23 conditions on which, long service leave may 24 be taken; or 25 (b) requiring that leave in the nature of long 26 service leave taken, before the provisions 27 take effect, by an employee to whom the 28 instrument applies must be deducted from 29 the long service leave to which the 30 employee is entitled under the provisions. 31 Page 69
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (2) An employee and employer may agree when the 1 employee will take long service leave. 2 (3) If the employee and employer can not agree, the 3 employer may-- 4 (a) decide when the employee will take long 5 service leave; and 6 (b) give the employee at least 3 months written 7 notice of the date on which the employee 8 must take at least 4 weeks long service 9 leave. 10 Subdivision 3 Payment for long service 11 leave etc. for employees 12 generally 13 71HE Rate of payment 14 (1) An employer must pay an employee for long 15 service leave at the following rate-- 16 (a) if the employee is, immediately before 17 taking the leave, being paid at a higher rate 18 than the ordinary rate--the higher rate; 19 (b) otherwise--the ordinary rate being paid to 20 the employee immediately before the leave 21 is taken. 22 (2) An employer must not reduce an employee's 23 usual rate, before an employee starts long service 24 leave, with intent to avoid the employer's 25 obligation under subsection (1)(a). 26 (3) If satisfied an employer has contravened 27 subsection (2), the commission may order the 28 employer to pay the employee at the usual rate 29 even though the employee was not being paid the 30 usual rate immediately before starting leave. 31 (4) If, during the employee's long service leave-- 32 Page 70
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (a) the ordinary rate is increased above the 1 higher rate--the employer must pay the 2 employee at the increased rate for the part of 3 the leave period to which the increased rate 4 applies; or 5 (b) the ordinary rate is reduced--the employer 6 may pay the employee at the reduced rate 7 for the part of the leave period to which the 8 reduced rate applies. 9 (5) If the employee is a seasonal employee, this 10 section applies subject to section 71HN. 11 (6) In this section-- 12 usual rate means the rate-- 13 (a) at which the employee is being paid for 14 ordinary time; and 15 (b) that is higher than the ordinary rate. 16 71HF Payment for commission 17 (1) If an employee is entitled to receive an amount 18 representing commission in the employee's long 19 service leave payment, the employer must pay 20 the default average commission. 21 (2) Subsection (1) does not apply if-- 22 (a) a relevant industrial instrument, or a 23 contract between the employer and 24 employee, otherwise provides; or 25 (b) the commission, on application, considers 26 that the default average commission would 27 not represent a fair amount in the 28 circumstances. 29 (3) If, on application under subsection (2)(b), the 30 commission considers the default average 31 commission would not represent a fair amount in 32 the circumstances, the commission may make the 33 Page 71
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] order it considers appropriate in the 1 circumstances. 2 (4) In this section-- 3 default average commission means-- 4 � the total commission payable to the 5 employee in the 1 year before the leave is 6 taken 7 � divided by 52.179 8 � multiplied by the number of weeks leave for 9 which payment is being made. 10 71HG Disputes about payment--piecework rates 11 (1) This section applies if a dispute arises between an 12 employee who is paid at piecework rates and the 13 employer about the rate the employee should be 14 paid for long service leave. 15 (2) The commission may decide the rate payable. 16 71HH Other matters relating to payment for long 17 service leave 18 (1) An employee and employer may agree on when, 19 and the way in which, the employee will be paid 20 for long service leave. 21 (2) The commission may decide any matter relating 22 to payment for long service leave that the 23 employee and employer can not agree on. 24 (3) An amount payable for long service leave 25 becomes payable at a time agreed between the 26 employee and employer or, if they can not agree, 27 at a time decided by the commission. 28 Page 72
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Subdivision 4 Casual or regular part-time 1 employees 2 71HI Definition for sdiv 4 3 In this subdivision-- 4 casual employee means an employee who is 5 employed more than once by the same employer 6 over a period. 7 71HJ Continuity of service--casual employees 8 (1) This section applies to a casual employee. 9 (2) The employee's service is continuous service 10 with the employer even though-- 11 (a) the employment is broken; or 12 (b) any of the employment is not full-time 13 employment; or 14 (c) the employee is employed by the employer 15 under 2 or more employment contracts; or 16 (d) the employee would, apart from this section, 17 be taken to be engaged in casual 18 employment; or 19 (e) the employee has engaged in other 20 employment during the period. 21 (3) However, the continuous service ends if the 22 employment is broken by more than 3 months 23 between the end of 1 employment contract and 24 the start of the next employment contract. 25 (4) In working out the length of the employee's 26 continuous service-- 27 (a) the following service must not be taken into 28 account-- 29 Page 73
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (i) service by the employee before 23 June 1 1990; 2 (ii) if the employee obtained the 3 entitlement only because of the 4 enactment of the repealed Industrial 5 Relations Reform Act 1994, section 6 17--the employee's service between 7 23 June 1990 and 30 March 1994; and 8 (b) subject to subsection (2), a period when the 9 employee was not employed by the 10 employer must be taken into account. 11 (5) Subsection (4)(a)(i) does not affect the 12 employee's entitlement to long service leave 13 under-- 14 (a) an award made before 23 June 1990; or 15 (b) the repealed Industrial Conciliation and 16 Arbitration Act 1961. 17 (6) This section does not limit any other entitlement 18 to long service leave the employee may have. 19 71HK Taking long service leave--casual or 20 regular part-time employees 21 (1) This section applies to a casual or regular 22 part-time employee. 23 (2) The employer may agree with the employee that 24 the employee's entitlement to long service leave 25 may be taken in the form of its full-time 26 equivalent. 27 Example-- 28 If an employee-- 29 (a) is entitled to be paid for 260 hours long service 30 leave; and 31 (b) works under an award that provides for a full-time 32 working week of 40 ordinary working hours; 33 Page 74
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] the employee and the employer may agree that the 1 employee take 61/2 weeks leave (260 � 40 = 61/2). 2 71HL Payment for long service leave 3 (1) This section applies to an employee who is 4 entitled to long service leave if the employee was 5 a casual employee or regular part-time employee 6 at any time during the employee's continuous 7 service to which the long service leave relates. 8 (2) The minimum amount payable to the employee 9 for long service leave is worked out using the 10 formula-- 11 actual service 8.6667 ---------------------------------- � --------------- � hourly rate - 52 10 Example-- 12 An employee who worked 15600 ordinary working 13 hours over a 10-year period and is being paid an hourly 14 rate of $12 is entitled to be paid-- 15 15600 8.6667 -------------- � --------------- � $12 = $3120.01 - - 52 10 (3) In this section-- 16 actual service means the total ordinary working 17 hours actually worked by an employee during the 18 employee's period of continuous service. 19 hourly rate means the hourly rate for ordinary 20 time payable to the employee-- 21 (a) if the employee takes the long service 22 leave--on the day the employee's leave 23 starts; or 24 (b) if the employee's employment is 25 terminated--on the day the termination 26 takes effect. 27 Page 75
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Subdivision 5 Seasonal employees in 1 sugar industry and meat 2 works 3 71HM Application of sdiv 5 4 This subdivision applies to the following seasonal 5 employees-- 6 (a) an employee employed in seasonal 7 employment in the sugar industry; 8 (b) an employee employed in or about meat 9 works in seasonal employment by the meat 10 works owner. 11 71HN Entitlement to long service leave 12 (1) The employee is entitled to long service leave on 13 full pay of at least the number of weeks worked 14 out using the following 15 formula-- 16 actual service s 71HB entitlement � ---------------------------------- 17 10 Example-- 18 An employee who worked half of each year, over a 19 10-year period, is entitled to half the s 71HB 20 entitlement, that is, half of 8.6667 weeks leave 21 (8.6667 x 5 = 4.3334). 22 10 23 (2) In working out the length of the employee's 24 continuous service-- 25 (a) service with the employer of the employee 26 engaged in harvesting sugar cane or farm 27 work in the sugar industry before 23 June 28 1990 must not be taken into account; and 29 Page 76
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) a period between seasons when the 1 employee is not employed by the employer 2 must be taken into account if-- 3 (i) in 1 season--the employee's service 4 with the employer continued until the 5 end of the season or until an earlier day 6 when the employee's employment was 7 terminated by the employer; and 8 (ii) in the next season--the employee's 9 service with the same employer started 10 on the season's opening or on a later 11 day in the season when the employer 12 required the employee to start 13 employment. 14 (3) If the employee is employed by the employer 15 between seasons, the part of the period between 16 seasons when the employee is employed must be 17 taken into account in working out the length of 18 the employee's actual service. 19 (4) If the employee is entitled to long service leave 20 other than under this Act, the employee is 21 entitled to leave that is at least as favourable as 22 the entitlement under this section. 23 (5) In this section-- 24 actual service means the total ordinary time 25 actually worked by the employee during the 26 employee's period of continuous service. 27 s 71HB entitlement means the employee's 28 entitlement to long service leave under section 29 71HB. 30 71HO Taking long service leave 31 (1) The employee may take long service leave 32 between seasons. 33 Page 77
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (2) If the employee takes long service leave between 1 seasons, the leave is taken to have started when 2 the employee last ceased employment with the 3 employer. 4 Subdivision 6 Other seasonal employees 5 71HP Entitlement of other seasonal employees 6 The commission may decide the entitlement to long 7 service leave of an employee-- 8 (a) who is employed in seasonal employment, 9 other than an employee to whom 10 subdivision 5 applies; or 11 (b) who is employed in other periodic 12 employment that is not defined as casual 13 employment by a relevant industrial 14 instrument. 15 Subdivision 7 Miscellaneous provisions 16 71HQ Payment instead of long service leave 17 (1) An employee may be paid for all or part of an 18 entitlement to long service leave instead of taking 19 the leave or part of the leave under subsection (2) 20 or (3). 21 (2) The payment may be made if-- 22 (a) a relevant industrial instrument provides for 23 the employee to be paid for all or part of the 24 entitlement; and 25 (b) the employee and employer agree by a 26 signed agreement the payment may be 27 made; and 28 Page 78
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (c) the payment is made in accordance with the 1 industrial instrument. 2 (3) If no modern industrial instrument provides for 3 the employee to be paid for all or part of the 4 entitlement, the payment may be made only if the 5 payment is ordered by the commission on 6 application by the employee. 7 (4) The commission may order the payment only if 8 satisfied it should be made-- 9 (a) on compassionate grounds; or 10 (b) on the ground of financial hardship. 11 (5) The full bench must not make a general ruling 12 that allows an employee to be paid for an 13 entitlement to long service leave instead of taking 14 the leave. 15 (6) In this section-- 16 employee includes a registered worker under the 17 Building and Construction Industry (Portable 18 Long Service Leave) Act 1991. 19 entitlement to long service leave includes an 20 entitlement to long service leave under the 21 Building and Construction Industry (Portable 22 Long Service Leave) Act 1991, section 57(1). 23 71HR Payment instead of long service leave on 24 death 25 (1) This section applies if an employee entitled to 26 long service leave dies-- 27 (a) before taking the leave; or 28 (b) after starting, but before finishing, the leave. 29 (2) The employer must pay the employee's legal 30 personal representative any amount payable for 31 the employee's entitlement to long service leave 32 that has not already been paid. 33 Page 79
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (3) If the employer does not do so, the employee's 1 legal personal representative or an inspector may 2 recover the amount as unpaid wages. 3 71HS Continuity not broken by service in Reserve 4 Forces 5 (1) An employee's service in the reserve forces is 6 taken to be continuous service with the employer 7 who employed the employee immediately before 8 the employee starting service with the forces. 9 (2) In this section-- 10 reserve forces means the Australian Naval 11 Reserve, Australian Army Reserve or Australian 12 Air Force Reserve. 13 71HT Recognition of certain exemptions 14 (1) This part does not apply to an employer if-- 15 (a) the commission exempted the employer, 16 under the repealed Industrial Conciliation 17 and Arbitration Act 1961, from the 18 application of long service leave provisions 19 in that Act or an award; and 20 (b) the exemption is in force. 21 (2) On application, the commission may revoke the 22 exemption. 23 71HU Person who is both employer and employee 24 (1) This section applies to a person who, in 25 performing duties in a calling, is an employee. 26 (2) The person is entitled to long service leave under 27 this part despite the person being an employer 28 within the meaning of this Act because of-- 29 (a) the person's engagement in the calling; or 30 Page 80
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) the position the person holds in the calling. 1 Division 7 Public holidays 2 71I Definitions for div 7 3 In this division-- 4 ordinary working day means a day on which an 5 employee would ordinarily be required to work. 6 show holiday means-- 7 (a) a public holiday appointed for an annual 8 agricultural, horticultural or industrial show 9 under the Holidays Act 1983, section 4; or 10 (b) for a district in which a holiday is not 11 appointed for an annual agricultural, 12 horticultural or industrial show--the 13 ordinary working day agreed on by the 14 employer and employee that is to be treated 15 as a show holiday for all purposes. 16 71IA Entitlement to be absent on public holiday 17 (1) An employee is entitled to be absent from the 18 employee's employment on a day, or part of a 19 day, that is a public holiday in the place where 20 the employee is based for work purposes. 21 (2) However, the employee's employer may ask the 22 employee to work on a public holiday if the 23 request is reasonable. 24 (3) If the employer asks the employee to work on a 25 public holiday, the employee may refuse the 26 request if-- 27 (a) the request is unreasonable; or 28 (b) the refusal is reasonable. 29 Page 81
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (4) In deciding whether a request, or a refusal of a 1 request, to work on a public holiday is 2 reasonable, the following must be taken into 3 account-- 4 (a) the nature of the employer's calling or 5 business, including its operational 6 requirements; 7 (b) the nature of the work performed by the 8 employee; 9 (c) the employee's personal circumstances, 10 including family responsibilities; 11 (d) whether the employee could reasonably 12 expect that the employer might ask the 13 employee to work on the public holiday; 14 (e) whether the employee is entitled to receive 15 overtime payments, penalty rates or other 16 compensation for, or a level of remuneration 17 that reflects an expectation of, work on the 18 public holiday; 19 (f) the type of employment of the employee, 20 including, for example, whether the 21 employment is full-time, part-time or 22 casual, or involves shift work; 23 (g) the period of notice given by the employer 24 before the public holiday in making the 25 request; 26 (h) for a refusal of a request--the period of 27 notice given by the employee before the 28 public holiday in refusing the request; 29 (i) any other relevant matter. 30 71IB Payment for public holiday 31 (1) Subsection (2) applies if-- 32 Page 82
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (a) under this part, an employee is absent from 1 his or her employment on a day, or part of a 2 day, that is public holiday; and 3 (b) the employee would ordinarily have been 4 required to work on the day or the part of the 5 day. 6 Examples of employees to whom subsection (2) does 7 not apply-- 8 � an employee who is not rostered on for the 9 public holiday 10 � a part-time employee whose part-time hours 11 do not include the day on which the public 12 holiday falls 13 � a casual employee or pieceworker 14 (2) The employer must pay the employee at the 15 employee's base rate of pay for the employee's 16 ordinary hours of work on the day or the part of 17 the day. 18 (3) An employee, while employed by the same 19 employer, is only entitled to be paid under 20 subsection (2) for a show holiday once in each 21 calendar year. 22 (4) If an employee does work on a public holiday, the 23 employer must pay the employee-- 24 (a) if a modern industrial instrument applies to 25 the employee--the penalty rates provided 26 for under the instrument; or 27 (b) otherwise--at the employee's base rate of 28 pay. 29 (5) In this section-- 30 base rate of pay means the rate of pay payable to 31 the employee for the employee's ordinary hours 32 of work, but not including any of the following-- 33 (a) incentive-based payments and bonuses; 34 (b) loadings; 35 Page 83
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (c) monetary allowances; 1 (d) overtime or penalty rates; 2 (e) any other separately identifiable amounts. 3 Division 8 Jury service leave 4 71J Entitlement 5 (1) If the employee is required to attend for jury 6 service, the employee-- 7 (a) is entitled to take leave (jury service leave) 8 to perform jury service; and 9 (b) must, as soon as is practicable, tell the 10 employer-- 11 (i) the employee is required to attend for 12 jury service; and 13 (ii) about the period for which the 14 employee is required to perform jury 15 service. 16 (2) If the employee is given an attendance document 17 in relation to the jury service, the employee must 18 give the employer the document. 19 (3) For the period of jury service leave, the employer 20 must pay the employee the difference between 21 the following-- 22 (a) the amount stated in the employee's 23 attendance document as the amount received 24 as remuneration and allowances, other than 25 meal allowances; 26 (b) the ordinary rate the employee would have 27 been paid if the employee had not taken jury 28 service leave. 29 Page 84
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (4) The amount payable under subsection (3) must 1 be paid on or before the first pay day that is 2 practicable after the employee gives the employer 3 the employee's attendance document. 4 (5) Subsection (6) applies if-- 5 (a) the employee is not required to serve on a 6 jury for a day or part of a day after attending 7 for jury service; and 8 (b) the employee would ordinarily be working 9 for all or part of the remaining day. 10 (6) The employee must, if practicable, present for 11 work at the earliest reasonable opportunity. 12 (7) In this section-- 13 attendance document, in relation to jury service 14 performed by an employee, means a document, 15 or a copy of a document, stating the following 16 matters under the Jury Act 1995-- 17 (a) the employee's attendance under a 18 requirement to attend for jury service; 19 (b) the number of days of attendance; 20 (c) the amount received as remuneration and 21 allowances, other than meal allowances. 22 required to attend for jury service means the 23 employee-- 24 (a) is given a summons under the Jury Act 1995, 25 section 27 requiring the employee to attend 26 for jury service; or 27 (b) is instructed under the Jury Act 1995, 28 section 38 to attend for jury service. 29 Page 85
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Division 9 Notice of termination and 1 redundancy 2 Subdivision 1 Notice of termination 3 71K Application of sdiv 1 4 This subdivision does not apply to any of the 5 following-- 6 (a) a casual employee; 7 (b) an employee engaged by the hour or day; 8 (c) an employee engaged for a specific period 9 or task; 10 (d) an employee during the first 3 months of 11 employment with an employer (the 12 probationary period) unless the employee 13 and employer agree in writing that the 14 employee serve-- 15 (i) a period of probation that is shorter 16 than the probationary period; or 17 (ii) no period of probation; 18 (e) an employee serving a period of probation 19 that is longer than the probationary period if 20 the period decided by written agreement 21 between the employee and employer before 22 the employment started, is a reasonable 23 period having regard to the nature and 24 circumstances of the employment; 25 (f) an employee-- 26 (i) to whom a modern industrial 27 instrument does not apply; and 28 (ii) who is not a public service officer 29 employed on tenure under the Public 30 Service Act 2008; and 31 Page 86
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (iii) whose annual wages immediately 1 before the dismissal are more than 2 $68000 or a greater amount stated in, 3 or worked out in a way prescribed 4 under, a regulation; 5 (g) an apprentice or trainee; 6 (h) an employee participating in a labour 7 market program. 8 71KA What employer must do to dismiss 9 employee 10 (1) An employer may dismiss an employee only if-- 11 (a) the employee has been-- 12 (i) given the period of notice required by 13 section 71KC; or 14 (ii) paid the compensation required by 15 section 71KD; or 16 (b) the employee engages in misconduct of a 17 type that would make it unreasonable to 18 require the employer to continue the 19 employment during the notice period. 20 (2) For subsection (1)(b), misconduct includes the 21 following-- 22 (a) theft; 23 (b) assault; 24 (c) fraud; 25 (d) other misconduct prescribed under a 26 regulation. 27 (3) However, subsection (1)(b) does not apply if the 28 employee can show that, in the circumstances, 29 the conduct was not conduct that made it 30 unreasonable to continue the employment during 31 the notice period. 32 Page 87
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71KB Employer's failure to give notice or pay 1 compensation 2 (1) If an employer dismisses an employee to whom 3 section 71KA(1)(a) applies without giving the 4 required notice or paying the required 5 compensation-- 6 (a) on an application under section 74--the 7 commission may order the employer to pay 8 the employee the compensation that the 9 employer was required to pay under section 10 71KD; or 11 (b) otherwise--the commission or a magistrate 12 may order the employer to pay the employee 13 the compensation the employer was 14 required to pay under section 71KD. 15 (2) An application for an order under subsection 16 (1)(b) may be made by-- 17 (a) the employee who has been dismissed; or 18 (b) with the employee's consent--an 19 organisation whose rules entitle it to 20 represent the employee's industrial interests; 21 or 22 (c) an inspector. 23 (3) The application must be made within 6 years 24 after the day on which the employee is dismissed. 25 (4) A regulation may exclude from the operation of 26 this section dismissals happening in stated 27 circumstances that relate to the transfer of the 28 employer's business. 29 71KC Minimum period of notice required from 30 employers 31 (1) The minimum period of notice is-- 32 (a) if the employee's continuous service is-- 33 Page 88
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (i) not more than 1 year--1 week; and 1 (ii) more than 1 year, but not more than 3 2 years--2 weeks; and 3 (iii) more than 3 years, but not more than 5 4 years--3 weeks; and 5 (iv) more than 5 years--4 weeks; and 6 (b) increased by 1 week if the employee-- 7 (i) is 45 years old or over; and 8 (ii) has completed at least 2 years of 9 continuous service with the employer. 10 (2) A regulation may prescribe matters that must be 11 disregarded when working out continuous 12 service under subsection (1). 13 71KD Minimum amount of compensation required 14 (1) The minimum compensation payable to an 15 employee is at least equal to the total of the 16 amounts the employer would have been liable to 17 pay the employee if the employee's employment 18 had continued until the end of the required notice 19 period. 20 (2) The total must be worked out on the basis of-- 21 (a) the ordinary working hours worked by the 22 employee; and 23 (b) the amounts payable to the employee for the 24 hours, including, for example, allowances, 25 loadings and penalties; and 26 (c) any other amounts payable under the 27 employee's employment contract. 28 (3) A regulation may prescribe the amount that is 29 taken to be payable, or how to work out the 30 amount, under an employment contract 31 mentioned in subsection (2)(c), to an employee 32 Page 89
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] whose wages before dismissal were decided 1 wholly or partly on the basis of commission or 2 piece rates. 3 Subdivision 2 Redundancy pay 4 71KE Application of sdiv 2 5 (1) This subdivision applies to an employee if-- 6 (a) a modern industrial instrument applies to the 7 employee; and 8 (b) the employee's employment is terminated 9 because the employer no longer requires the 10 job done by the employee to be done by 11 anyone. 12 (2) However, this subdivision does not apply if the 13 employee's employment is terminated because of 14 the ordinary and customary turnover of labour. 15 (3) Also, this subdivision does not apply to any of 16 the following employees-- 17 (a) a casual employee; 18 (b) an employee whose period of continuous 19 service with the employer is less than 1 20 year; 21 (c) an employee employed for a fixed period, 22 for a fixed task, or for the duration of a 23 particular season; 24 (d) an apprentice or trainee; 25 (e) an employee participating in a labour 26 market program; 27 (f) another employee prescribed under a 28 regulation or a modern industrial instrument 29 as an employee to whom this division does 30 not apply. 31 Page 90
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Note-- 1 In relation to an employee whose employment is 2 terminated due to the transfer of the employer's 3 calling, see part 5. 4 (4) Subsection (3)(c) does not prevent this 5 subdivision applying to an employee if a 6 substantial reason for employing the employee as 7 mentioned in the subsection was to avoid the 8 application of this division. 9 (5) Except to the extent provided for under 10 subsection (3)(d), a modern industrial instrument 11 must not displace a provision of this subdivision. 12 71KF Entitlement to redundancy pay 13 (1) The employee is entitled to be paid an amount 14 (redundancy pay) equal to the total amount 15 payable to the employee for the redundancy pay 16 period worked out using the following table-- 17 Employee's years of continuous service with Redundancy pay the employer period at least 1 year but not more than 2 years 4 weeks more than 2 years but not more than 3 years 6 weeks more than 3 years but not more than 4 years 7 weeks more than 4 years but not more than 5 years 8 weeks more than 5 years but not more than 6 years 9 weeks more than 6 years but not more than 7 years 10 weeks more than 7 years but not more than 8 years 11 weeks more than 8 years but not more than 9 years 12 weeks more than 9 years but not more than10 years 13 weeks Page 91
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Employee's years of continuous service with Redundancy pay the employer period more than10 years but not more than11 years 14 weeks more than11 years but not more than12 years 15 weeks more than 12 years 16 weeks (2) The amount of the employee's redundancy pay 1 must be worked out at the employee's base rate 2 of pay for the employee's ordinary hours of work. 3 (3) This section applies subject to section 71KG. 4 71KG Variation of redundancy pay by commission 5 (1) This section applies if-- 6 (a) an employee is entitled under this division 7 to be paid an amount of redundancy pay; 8 and 9 (b) the employer-- 10 (i) obtains other acceptable employment 11 for the employee; or 12 (ii) can not pay the amount. 13 (2) On application by the employer, the commission 14 may make an order reducing the amount of the 15 redundancy pay to a stated amount the 16 commission considers appropriate. 17 (3) For subsection (2), the amount may be zero. 18 (4) The amount of redundancy pay to which the 19 employee is entitled under this division is the 20 amount stated in the order. 21 Page 92
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Part 3 Content of modern 1 industrial instruments 2 Division 1 Preliminary 3 71L Meaning of modern industrial instrument for 4 pt 3 5 In this part-- 6 modern industrial instrument does not include a 7 determination made under section 149 as inserted 8 by the modernising Act. 9 71LA Required or permitted provisions 10 (1) A modern industrial instrument must only 11 include provisions that are required or permitted 12 under-- 13 (a) part 2; or 14 (b) division 2, subdivision 1 (required content 15 for all modern industrial instruments); or 16 (c) division 3, subdivision 1 (permitted content 17 for all modern industrial instruments); or 18 (d) for a modern award-- 19 (i) division 2, subdivision 2 (required 20 content for a modern award); or 21 (ii) division 3, subdivision 2 (permitted 22 content for a modern award); or 23 (e) for a certified agreement-- 24 (i) division 2, subdivision 3 (required 25 content for a certified agreement); or 26 (ii) division 3, subdivision 3 (permitted 27 content for a certified agreement). 28 Page 93
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (2) However, a modern award may include matters it 1 is permitted to include, and must include matters 2 it is required to include, only to the extent 3 necessary to achieve the modern awards 4 objectives. 5 (3) Subsection (2) applies despite divisions 2 and 3. 6 71LB Non-allowable provisions 7 (1) A modern industrial instrument must not include 8 provisions (non-allowable provisions) that 9 contravene any of the following-- 10 (a) division 4, subdivision 1 (non-allowable 11 content for all modern industrial 12 instruments); 13 (b) for a modern award--division 4, subdivision 14 2; 15 (c) for a certified agreement--division 4, 16 subdivision 3. 17 (2) However, a provision mentioned in division 2 is 18 not a non-allowable provision. 19 (3) Subsection (2) applies despite division 4. 20 71LC Provisions that contravene s 71LA or 71LB 21 of no effect 22 A provision of a modern industrial instrument that 23 contravenes section 71LA or 71LB is of no effect. 24 Page 94
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Division 2 Required content 1 Subdivision 1 Required content--all 2 modern industrial 3 instruments 4 71M Consultation--major organisational changes 5 A modern industrial instrument must include the 6 provision prescribed under a regulation that requires 7 an employer to consult with employees about the 8 implementation of major organisational changes that 9 are likely to have a significant effect on the 10 employees. 11 71MA Dispute resolution 12 A modern industrial instrument must include the 13 provision prescribed under a regulation for preventing 14 and settling disputes about a matter arising under the 15 instrument or the Queensland Employment Standards. 16 71MB Individual flexibility arrangements 17 (1) A modern industrial instrument must include the 18 provision prescribed under a regulation enabling 19 an employee and employer to agree to a 20 flexibility arrangement to meet the genuine needs 21 of the employee and employer. 22 (2) If an employee and employer agree to a 23 flexibility arrangement under a modern industrial 24 instrument-- 25 (a) the industrial instrument has effect in 26 relation to the employee and employer as if 27 it were varied by the arrangement; and 28 Page 95
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) for this Act, the arrangement is taken to be a 1 provision of the industrial instrument. 2 (3) If an employee and employer purportedly agree 3 to a flexibility arrangement under a modern 4 industrial instrument and the arrangement does 5 not meet a requirement provided for in the 6 industrial instrument-- 7 (a) the arrangement has effect as if it were a 8 flexibility arrangement; and 9 (b) to the extent the industrial instrument 10 requires the employer to ensure the 11 arrangement meets the requirement, the 12 employer contravenes the industrial 13 instrument; and 14 (c) in addition to any method of termination of 15 the arrangement provided for in the 16 industrial instrument, the instrument is taken 17 to provide that the arrangement can be 18 terminated-- 19 (i) by either the employee or employer 20 giving written notice of not more than 21 28 days; or 22 (ii) by the employee and the employer at 23 any time if they agree in writing to the 24 termination. 25 (4) In this section-- 26 flexibility arrangement means a written 27 arrangement between an employer and employee 28 that varies the effect of a modern industrial 29 instrument in relation to the employee and the 30 employer. 31 Page 96
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Subdivision 2 Required content--modern 1 awards 2 71MC Coverage 3 (1) A modern award must include provisions 4 (coverage provisions) stating the employers, 5 employees and organisations to which the award 6 applies. 7 (2) A modern award must be expressed to apply to-- 8 (a) stated employers; and 9 (b) stated employees of employers to whom the 10 award applies. 11 (3) A modern award may be expressed to cover 1 or 12 more stated organisations, in relation to all or 13 stated employees or employers to whom the 14 award applies. 15 (4) For subsections (2) and (3)-- 16 (a) employers may be identified by name or by 17 reference to 1 or more stated classes; and 18 (b) employees must be identified by reference 19 to 1 or more stated classes; and 20 (c) organisations must be identified by name. 21 (5) Without limiting the way a class may be 22 described in a coverage provision, the class may 23 be described by reference to-- 24 (a) a particular industry or part of an industry; 25 or 26 (b) particular kinds of work. 27 Page 97
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Subdivision 3 Required 1 content--certified 2 agreements 3 71MD Nominal expiry date 4 A certified agreement must specify a nominal expiry 5 date that is-- 6 (a) for a project agreement--a date no later than 7 the date on which the project ends; or 8 (b) otherwise--a date no later than 4 years after 9 the date on which the agreement will come 10 into operation. 11 71ME Other matters 12 A certified agreement must-- 13 (a) state the persons covered by the certified 14 agreement; and 15 (b) include, or be accompanied by, information 16 prescribed under a regulation. 17 Division 3 Permitted content 18 Subdivision 1 Permitted content--all 19 modern industrial 20 instruments 21 71N General matters 22 A modern industrial instrument may include 23 provisions, other than non-allowable provisions, about 24 any of the following matters-- 25 (a) types of engagement; 26 Page 98
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) allowances, including for any of the 1 following-- 2 (i) expenses incurred in the course of 3 employment; 4 (ii) responsibilities or skills not taken into 5 account in the basic rates of pay; 6 (iii) disabilities associated with the 7 performance of particular tasks or work 8 in particular conditions or locations; 9 (c) annualised salary arrangements that-- 10 (i) have regard to the patterns of work in 11 the enterprise or industry concerned; 12 and 13 (ii) provide an alternative to the separate 14 payment of wages and other monetary 15 entitlements; and 16 (iii) include appropriate safeguards to 17 ensure individual employees are not 18 disadvantaged; 19 (d) overtime rates; 20 (e) penalty rates, including for any of the 21 following-- 22 (i) employees working unsocial, irregular 23 or unpredictable hours; 24 (ii) employees working on weekends or 25 public holidays; 26 (iii) shift workers; 27 (f) arrangements for when work is performed, 28 including hours of work, rostering, weekend 29 work, shift work, meal and rest breaks and 30 variations to working hours; 31 (g) superannuation; 32 (h) anti-discrimination and equal opportunity. 33 Page 99
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71NA Provisions related to Queensland 1 Employment Standards 2 (1) A modern industrial instrument may include any 3 other provision, other than a non-allowable 4 provision, that-- 5 (a) provides for all or part of a matter that is 6 provided for under the Queensland 7 Employment Standards; or 8 (b) is ancillary or incidental to the operation of 9 the entitlement of an employee under the 10 Queensland Employment Standards; or 11 (c) supplements the Queensland Employment 12 Standards. 13 (2) However, subsection (1)-- 14 (a) applies only to the extent the effect of the 15 provision is no less favourable to an 16 employee than the Queensland Employment 17 Standards; and 18 (b) does not apply to a provision about a matter 19 provided for under part 2, division 9, 20 subdivision 2. 21 71NB Other incidental provisions 22 A modern industrial instrument may include 23 provisions, other than non-allowable provisions, that 24 are-- 25 (a) incidental to a provision that is required or 26 permitted to be included in the instrument; 27 and 28 (b) essential for making a particular provision 29 operate in a practical way. 30 Page 100
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71NC Machinery provisions 1 A modern industrial instrument may include 2 machinery provisions, including, for example, 3 provisions about the following-- 4 (a) commencement; 5 (b) definitions; 6 (c) titles; 7 (d) arrangement. 8 Subdivision 2 Permitted 9 content--modern awards 10 71ND General matters 11 A modern award may include provisions, other than 12 non-allowable provisions, about-- 13 (a) minimum wages, including-- 14 (i) wage rates for young employees, 15 employees with a disability and 16 employees engaged as apprentices or 17 trainees; and 18 (ii) piece rates; and 19 (b) skill-based classifications and career 20 structures. 21 Page 101
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Subdivision 3 Permitted 1 content--certified 2 agreements 3 71NE Provisions about employment relationship 4 (1) A certified agreement may include provisions, 5 other than non-allowable provisions, about the 6 employment relationship. 7 (2) Without limiting subsection (1), a certified 8 agreement may include a term about any or all of 9 the following-- 10 (a) arrangements for the taking of annual leave, 11 parental leave, personal leave or long 12 service leave; 13 (b) bonuses or incentive-based payments; 14 (c) continuous improvement initiatives; 15 (d) productivity improvement initiatives; 16 (e) salary sacrifice; 17 (f) uniforms, including personal protective 18 equipment; 19 (g) wages. 20 Division 4 Non-allowable content 21 Subdivision 1 Non-allowable content--all 22 modern industrial 23 instruments 24 71O Contracting provision 25 A modern industrial instrument must not contain a 26 provision that-- 27 Page 102
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (a) directly or indirectly requires, restricts or 1 prohibits the contracting out, or in, of 2 services; or 3 (b) is about the terms or conditions on which 4 services may be contracted out or in; or 5 (c) is otherwise about the contracting out, or in, 6 of services. 7 Examples-- 8 1 The following provisions of pre-modernisation 9 industrial instruments, as in force on 30 July 2012, are 10 examples of contracting provisions-- 11 � clause 7.3 of the State Government Departments 12 Certified Agreement 2009 13 � appendix 22: Queensland Government Policy on the 14 Contracting-out of Services, of the State 15 Government Departments Certified Agreement 16 2009 17 � clauses 4.2 and 4.3 of the Transport and Main Roads 18 Operational Employees' Certified Agreement 2011 19 � clauses 2.3(1) and 2.3.2 of the QBuild Field Staff 20 Certified Agreement 8 (2011) 21 � clauses 6.2 and 6.3 of the Queensland Public Health 22 Sector Certified Agreement (No. 8) 2011 (EB8) 23 � clause 3.1(b) of the Queensland Ambulance Service 24 - Determination 2010. 25 2 Also, clause 63 of the Queensland Rail Customer 26 Service Enterprise Agreement 2011, as in force 27 immediately before the date of assent of the 28 Queensland Rail Transit Authority Act 2013, is an 29 example of a contracting provision. 30 71OA Employment security provision 31 A modern industrial instrument must not contain a 32 provision about job security or maximising permanent 33 employment, including a provision-- 34 (a) that applies all or part of a government 35 policy about employment security; or 36 Page 103
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) restricting the number or proportion of 1 employees that may be employed; or 2 (c) prescribing levels of staffing or funding; or 3 (d) about converting employees from casual or 4 temporary employment to permanent 5 employment. 6 Examples-- 7 1 The following provisions of pre-modernisation 8 industrial instruments, as in force on 30 July 2012, are 9 examples of employment security provisions-- 10 � clauses 7.1 and 7.2 of the State Government 11 Departments Certified Agreement 2009 12 � appendix 21 of the State Government Departments 13 Certified Agreement 2009 14 � clause 2 contained in Appendix 5 of the State 15 Government Departments Certified Agreement 16 2009: New Provisions Applicable to Employees 17 Engaged in Operations in Youth Detention Centres 18 � clause 4.1.1 of Part 4 of the Transport and Main 19 Roads Operational Employees' Certified 20 Agreement 2011 21 � clause 2.3 of the QBuild Field Staff Certified 22 Agreement 8 (2011) 23 � clauses 6.1, 6.6 and 6.7 of the Queensland Public 24 Health Sector Certified Agreement (No. 8) 2011 25 (EB8). 26 2 Also, the following provisions, as in force 27 immediately before the date of assent of the 28 Queensland Rail Transit Authority Act 2013, are 29 examples of employment security provisions-- 30 � clause 40 of the Queensland Rail Customer Service 31 Enterprise Agreement 2011 32 � clause 47 of the QR Passenger Pty Limited 33 Traincrew Union Collective Workplace Agreement 34 2009. 35 Page 104
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] 71OB Encouragement provision 1 (1) A modern industrial instrument must not contain 2 a provision that directly or indirectly-- 3 (a) requires a person to encourage another 4 person to join or maintain membership of an 5 industrial association; or 6 (b) requires a person to supply the employer's 7 facilities, resources or premises to an officer, 8 employee or other representative of an 9 industrial association; or 10 (c) requires an employer to facilitate deductions 11 of industrial association membership 12 subscriptions from an employee's wages; or 13 (d) requires a person to give employees 14 information about, or on behalf of, an 15 industrial association; or 16 (e) allows employees to attend the following 17 during the employees' working time-- 18 (i) training, conferences or other activities 19 facilitated by an industrial association; 20 (ii) a meeting of members of, or organised 21 by, an industrial association; or 22 (f) requires or permits payment of a bargaining 23 services fee. 24 (2) In this section-- 25 bargaining services-- 26 (a) means services provided by or for an 27 organisation in relation to a certified 28 agreement or a proposed certified 29 agreement; and 30 (b) includes services relating to bargaining for, 31 or the making, certification, operation, 32 variation or termination of, the certified 33 agreement or proposed certified agreement. 34 Page 105
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] bargaining services fee-- 1 (a) means a fee, however described, payable-- 2 (i) to an organisation or someone in lieu of 3 an organisation; and 4 (ii) wholly or partly for the provision, or 5 purported provision, of bargaining 6 services; but 7 (b) does not include membership fees. 8 Examples-- 9 The following provisions of pre-modernisation 10 industrial instruments, as in force on 1 March 2013, are 11 examples of encouragement provisions-- 12 � clause 11.3 of the District Health Services 13 Employees' Award - State 2012 14 � part 11.5 and 11.6 of the Queensland Health 15 Framework Award - State 2012. 16 71OC Organisational change provision 17 A modern industrial instrument must not contain a 18 provision that-- 19 (a) requires the employer to do any of the 20 following before, or in relation to, making a 21 decision about, or implementing, proposed 22 organisational change-- 23 (i) notify an entity about the proposed 24 organisational change; 25 (ii) consult with an entity about the 26 proposed organisational change; 27 (iii) involve an entity in the 28 decision-making process for the 29 proposed organisational change; or 30 (b) is otherwise about organisational change. 31 Page 106
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] Examples-- 1 1 The following provisions of pre-modernisation 2 industrial instruments, as in force on 1 July 2013, are 3 examples of organisational change provisions-- 4 � clause 7.3 of the State Government Departments 5 Certified Agreement 2009 6 � clauses 3.2, 4.1 and 4.2 of the Queensland Public 7 Health Sector Certified Agreement (No. 8) 2011 8 (EB8) 9 � clause 1.17(vi) and (vii) of the Queensland Public 10 Health Sector Certified Agreement (No. 8) 2011 11 (EB8). 12 2 Also, the following provisions, as in force 13 immediately before the date of assent of the 14 Queensland Rail Transit Authority Act 2013, are 15 examples of organisational change provisions-- 16 � clause 22 of the Queensland Rail Customer Service 17 Enterprise Agreement 2011 18 � clause 41 of the QR Passenger Pty Limited 19 Traincrew Union Collective Workplace Agreement 20 2009. 21 71OD Policy incorporation provision 22 A modern industrial instrument must not include a 23 provision that does either or both of the following-- 24 (a) applies or adopts, or incorporates into the 25 instrument, another document that is a 26 policy; 27 (b) provides that another document that is a 28 policy, as it is applied to, adopted for or 29 incorporated into the instrument, can only 30 be amended by agreement between 2 or 31 more parties to the instrument. 32 Examples-- 33 The following provisions of pre-modernisation industrial 34 instruments, as in force on 1 March 2013, are examples of 35 policy incorporation provisions-- 36 Page 107
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] � clause 2.5 and schedule 2 of the Queensland Public 1 Health Sector Certified Agreement (No. 8) 2011 2 (EB8) 3 � clause 4.13 and schedule 4 of the Queensland Health 4 Framework Award - State 2012 5 � clause 11 and schedule 5 of the Health Practitioners' 6 (Queensland Health) Certified Agreement (No. 2) 7 2011 (HPEB2). 8 71OE Private practice provision 9 A modern industrial instrument must not include 10 a provision about a private practice arrangement 11 for a medical practitioner. 12 Example-- 13 Clause 4.11 of the Medical Officers' (Queensland 14 Health) Certified Agreement (No. 3) 2012 is an example 15 of a private practice provision. 16 71OF Resource allocation provision 17 A modern industrial instrument must not include 18 a provision that requires an employer to allocate 19 funding to a program or scheme not directly 20 related to entitlements of, or benefits for, the 21 employer's employees. 22 Example-- 23 Clause 2.9.7 of the Queensland Health Building, 24 Engineering & Maintenance Services Certified 25 Agreement (No. 5) 2011 is an example of a resource 26 allocation provision. 27 71OG Right of entry 28 (1) A modern industrial instrument must not include 29 a provision that entitles a representative of an 30 organisation or an associated entity of an 31 organisation to enter premises for a prescribed 32 purpose. 33 Page 108
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (2) In this section-- 1 prescribed purpose means a purpose for which 2 the representative is entitled to enter the premises 3 under this Act or the Work Health and Safety Act 4 2011. 5 71OH Discriminatory provisions 6 (1) A modern industrial instrument must not include 7 a provision that discriminates against an 8 employee. 9 (2) For subsection (1), a modern industrial 10 instrument does not discriminate against an 11 employee only because it provides for minimum 12 wages for any of the following-- 13 (a) all young employees; 14 (b) all employees with a disability; 15 (c) all employees engaged as apprentices or 16 trainees; 17 (d) a class of employees mentioned in 18 paragraph (a), (b), or (c). 19 71OI Particular provisions displacing Queensland 20 Employment Standards 21 (1) A modern industrial instrument must not include 22 a provision that displaces, or is otherwise 23 inconsistent with, a provision of the Queensland 24 Employment Standards. 25 (2) Subsection (1) does not apply to a provision 26 mentioned in section 71NA. 27 71OJ General matters 28 A modern industrial instrument must not include a 29 provision-- 30 Page 109
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (a) that restricts the type of engagements that 1 are available; or 2 (b) that restricts flexible rostering 3 arrangements; or 4 (c) that is about accident pay or other amounts 5 payable because an employee sustains an 6 injury; or 7 (d) that restricts the ability of an employer to 8 offer a high-income guarantee contract to a 9 high-income senior employee. 10 Subdivision 2 Non-allowable 11 content--modern awards 12 71OK General matters 13 A modern award must not include provisions about-- 14 (a) training arrangements; or 15 (b) workload management; or 16 (c) delivery of services; or 17 (d) workforce planning. 18 Subdivision 3 Non-allowable 19 content--certified 20 agreements 21 71OL General matters 22 (1) A certified agreement must not include a 23 provision that-- 24 (a) is inconsistent with the provisions for 25 industrial action in chapter 6, divisions 6 to 26 8; or 27 Page 110
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) provides for types of engagements or 1 classifications that are inconsistent with the 2 relevant underpinning awards; or 3 (c) requires or permits a contravention of the 4 provisions in chapter 4; or 5 (d) requires an employer to manage workloads 6 in a particular way; or 7 (e) restricts access to training arrangements; or 8 (f) restricts the efficient delivery of services. 9 (2) Also, a certified agreement must not include a 10 provision about unfair dismissal or a remedy 11 arising from termination of employment other 12 than as provided for in the provisions of this Act 13 about notice and redundancy pay. 14 Part 4 Equal remuneration for 15 work of equal or 16 comparable value 17 71P Definition for pt 4 18 In this part-- 19 equal remuneration for work of equal or 20 comparable value means equal remuneration for 21 men and women employees for work of equal or 22 comparable value. 23 71PA Orders requiring equal remuneration 24 (1) The commission may make any order it considers 25 appropriate to ensure employees covered by the 26 order receive equal remuneration for work of 27 equal or comparable value. 28 Page 111
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (2) An order may provide for an increase in 1 remuneration rates, including minimum rates. 2 71PB Orders only on application 3 The commission may make an order under this part 4 only on application by-- 5 (a) an employee to be covered by the order; or 6 (b) an organisation whose rules entitle it to 7 represent the industrial interests of 8 employees to be covered by the order; or 9 (c) a State peak council; or 10 (d) the Minister; or 11 (e) the anti-discrimination commissioner. 12 71PC Requirements about making of order by 13 commission 14 The commission must, and may only, make an order if 15 it is satisfied the employees to be covered by the order 16 do not receive equal remuneration for work of equal or 17 comparable value. 18 71PD Immediate or progressive introduction of 19 equal remuneration 20 The order may introduce equal remuneration for work 21 of equal or comparable value-- 22 (a) immediately; or 23 (b) progressively in stated stages. 24 71PE Employer not to reduce remuneration 25 (1) An employer must not reduce an employee's 26 remuneration because an application or order has 27 been made under this part. 28 Page 112
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (2) If an employer purports to do so, the reduction is 1 of no effect. 2 71PF Pt 4 does not limit other rights 3 (1) This part does not limit any right a person or 4 organisation may otherwise have to secure equal 5 remuneration for work of equal or comparable 6 value. 7 (2) Subsection (1) is subject to section 71PG. 8 71PG Applications under pt 4 9 (1) An application can not be made under this part 10 for an order to secure equal remuneration for 11 work of equal or comparable value for an 12 employee if there are current proceedings for an 13 alternative remedy under-- 14 (a) another provision of this Act; or 15 (b) another Act. 16 (2) If an application under this part has been made, a 17 person can not start proceedings for an 18 alternative remedy under a provision or Act 19 mentioned in subsection (1). 20 (3) Subsection (2) does not prevent proceedings 21 being started for an alternative remedy if the 22 proceedings under this part have-- 23 (a) been discontinued by the party who started 24 the proceedings; or 25 (b) failed for want of jurisdiction. 26 (4) In this section-- 27 alternative remedy means an alternative 28 remedy-- 29 (a) to secure the remuneration for the 30 employee; or 31 Page 113
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) against unequal remuneration for work of 1 equal or comparable value for the employee. 2 Part 5 Continuity of service 3 and employment 4 71Q Definitions for pt 5 5 In this part-- 6 service includes employment. 7 transferred employee see section 71QB(1). 8 71QA How pt 5 applies 9 (1) This part applies for working out an employee's 10 rights and entitlements under this chapter or a 11 modern industrial instrument by prescribing 12 when the employee's continuity of service is not 13 broken. 14 (2) An employee is not entitled to claim the benefit 15 of a right or entitlement more than once for the 16 same period of service. 17 (3) However, when working out the minimum period 18 of notice required to be given under section 19 71KC to a transferred employee, a period of 20 notice previously given in relation to the transfer 21 of the calling, whether given before or after the 22 commencement of this subsection, is to be 23 disregarded. 24 71QB Continuity of service--transfer of calling 25 (1) A transferred employee is a person who becomes 26 an employee of an employer (the new employer) 27 because of the transfer of a calling to the new 28 Page 114
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] employer from another employer (the former 1 employer). 2 (2) Even if a person is dismissed by the former 3 employer before the transfer of a calling, the 4 person is taken to be a transferred employee if-- 5 (a) the person is employed by the new employer 6 after the transfer; and 7 (b) the employee-- 8 (i) was dismissed by the former employer 9 within 1 month immediately before the 10 transfer; and 11 (ii) is re-employed by the new employer 12 within 3 months after the dismissal. 13 (3) The transfer of the calling is taken not to break 14 the transferred employee's continuity of service. 15 (4) A period of service with the former employer, 16 including service before the commencement of 17 this section, is taken to be a period of service 18 with the new employer. 19 (5) In relation to the transfer, the transferred 20 employee is not an employee to whom part 2, 21 division 9, subdivision 2 applies, unless a modern 22 industrial instrument mentioned in section 23 71KE(1)(a) provides otherwise. 24 (6) In this section-- 25 dismissed includes stood down. 26 71QC Continuity of service--apprentices or 27 trainees 28 (1) This section applies if-- 29 (a) an employee, while employed with the 30 employer, starts an apprenticeship or 31 traineeship; or 32 Page 115
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (b) the employer-- 1 (i) continues to employ an apprentice or 2 trainee (the employee) on the 3 completion of the apprenticeship or 4 traineeship; or 5 (ii) re-employs the employee within 3 6 months after completion of the 7 employee's apprenticeship or 8 traineeship. 9 (2) The period of the apprenticeship or traineeship 10 does not break the employee's continuity of 11 service. 12 71QD Continuity of service--generally 13 (1) Service with a partnership and an employer who 14 was, or becomes, a member of the partnership is 15 taken to be continuous service with the same 16 employer. 17 (2) An employee's continuity of service with an 18 employer is not broken if the employee's service 19 is temporarily lent or let on hire by the employer 20 to another employer. 21 (3) An employee's continuity of service with an 22 employer is not broken by an absence, including 23 through illness or injury-- 24 (a) on paid leave approved by the employer; or 25 (b) on unpaid leave approved by the employer. 26 (4) An employee's continuity of service with an 27 employer is not broken if-- 28 (a) the employee's employment is terminated 29 by the employer or employee because of 30 illness or injury; and 31 (b) the employer re-employs the employee; and 32 Page 116
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 7] (c) the employee has not been employed in a 1 calling, whether on the employee's own 2 account or as an employee, between the 3 termination and the re-employment. 4 (5) An employee's continuity of service with an 5 employer is not broken if-- 6 (a) the employee's employment is terminated 7 by the employer or employee; and 8 (b) the employer re-employs the employee 9 within 3 months after the termination. 10 (6) An employee's continuity of service with an 11 employer is not broken if-- 12 (a) the employee's employment is interrupted 13 or terminated by the employer with intent to 14 avoid an obligation under this part, a 15 modern industrial instrument or 16 employment contract; or 17 (b) the employee's employment is interrupted 18 or terminated by the employer as a direct or 19 indirect result of an industrial dispute, and 20 the employer re-employs the employee. 21 (7) An employee's continuity of service is not 22 broken if-- 23 (a) the employee's employment is interrupted 24 or terminated by the employer because of 25 slackness of trade or business; and 26 (b) the employer re-employs the employee. 27 (8) Service with a corporation and any of its 28 subsidiaries is taken to be continuous service 29 with the same employer. 30 (9) However, a period for which the employee is 31 away from work under subsection (3)(b), (4), (5), 32 (6)(b) or (7) is not service under this part 33 unless-- 34 Page 117
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 8] (a) this Act or a modern industrial instrument 1 provides otherwise; or 2 (b) the commission directs otherwise. 3 (10) In this section-- 4 subsidiary has the meaning given by the 5 Corporations Act. 6 terminate includes stand down. 7 Clause 8 Amendment of s 72 (Who this chapter does not apply to) 8 (1) Section 72, heading-- 9 omit, insert-- 10 72 Employees to whom this chapter does not 11 apply 12 (2) Section 72-- 13 insert-- 14 (1A) Without limiting subsection (1), section 73(1)(a) 15 does not apply to a high-income senior employee. 16 (3A) Part 3 does not apply to an employee to whom 17 chapter 2A applies. 18 Clause 9 Amendment of s 85A (Application of div 1AA) 19 Section 85A-- 20 insert-- 21 (2A) Also, this division does not apply to an employee 22 to whom chapter 2A applies. 23 Clause 10 Replacement of ch 5, hdg 24 Chapter 5, heading-- 25 omit, insert-- 26 Page 118
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 11] Chapter 5 Awards 1 (pre-modernisation) 2 Clause 11 Insertion of new ch 5, pt 1AA 3 Chapter 5, before part 1-- 4 insert-- 5 Part 1AA Application of ch 5 6 122B Application of ch 5 7 This chapter applies to an award other than a modern 8 award. 9 Clause 12 Amendment of s 123 (Form, effect and term of award) 10 Section 123(1)-- 11 insert-- 12 Note-- 13 An award that is in force immediately before the commencement of part 14 8 (Modernisation of awards) may be repealed as a result of an award 15 modernisation process carried out under that part. 16 Clause 13 Amendment of s 124 (Persons bound by award) 17 (1) Section 124(2), from `exemptions'-- 18 omit, insert-- 19 exemptions-- 20 (a) the effect of which are continued under 21 section 823; or 22 (b) ordered by the commission under section 23 234. 24 (2) Section 124-- 25 Page 119
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 14] insert-- 1 (3) Despite subsection (1), an award does not bind a 2 person in relation to a calling if a modern award 3 applies to the person. 4 Clause 14 Replacement of ch 5, pts 2 and 3 5 Chapter 5, parts 2 and 3-- 6 omit, insert-- 7 Part 2 Commission's powers 8 125 Repealing awards 9 (1) The commission may repeal an award. 10 Note-- 11 See also part 8 in relation to the modernisation of awards 12 made under this chapter. 13 (2) The commission may act under subsection (1)-- 14 (a) of its own initiative; or 15 (b) on application by-- 16 (i) the Minister; or 17 (ii) an organisation; or 18 (iii) an employer; or 19 (iv) a person who satisfies the commission 20 that the person is not an officer of, or 21 acting for, an eligible association. 22 Clause 15 Amendment of s 135 (Inconsistency between awards and 23 contracts) 24 Section 135(1)-- 25 insert-- 26 Page 120
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 16] Note-- 1 However, for a contract of service that is a high-income 2 guarantee contract, see section 194(2). 3 Clause 16 Insertion of new ch 5, pt 8 4 After section 140A-- 5 insert-- 6 Part 8 Modernisation of 7 awards 8 Division 1 Preliminary 9 140B Definitions for pt 8 10 In this part-- 11 pre-modernisation award means an award-- 12 (a) either-- 13 (i) made under section 125 as in force 14 before the commencement of this part; 15 or 16 (ii) continued in force under this Act; and 17 (b) in force immediately before the 18 commencement of this part. 19 140BA Object of modernising awards 20 The principal object of this part is to provide for the 21 modernisation of awards so they-- 22 (a) are simple to understand and easy to apply; 23 and 24 (b) together with the Queensland Employment 25 Standards, provide for a fair minimum 26 Page 121
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 16] safety net of enforceable conditions of 1 employment for employees; and 2 (c) are economically sustainable, and promote 3 flexible modern work practices and the 4 efficient and productive performance of 5 work; and 6 (d) are in a form that is appropriate for a fair 7 and productive industrial relations system; 8 and 9 (e) result in a certain, stable and sustainable 10 modern award system for Queensland. 11 140BB Commission's award modernisation 12 function 13 (1) The functions of the commission include 14 carrying out a process (award modernisation 15 process) to reform and modernise 16 pre-modernisaton awards. 17 (2) In performing its functions under this part, the 18 commission must have regard to the following 19 factors-- 20 (a) promoting the creation of jobs, high levels 21 of productivity, low inflation, high levels of 22 employment and labour force participation, 23 national and international competitiveness, 24 the development of skills and a fair labour 25 market; 26 (b) the need to help prevent and eliminate 27 discrimination in employment; 28 (c) protecting the position in the labour market 29 of young people, employees engaged as 30 apprentices or trainees and employees with 31 a disability; 32 (d) the needs of low-paid employees; 33 Page 122
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 16] (e) the need to promote the principle of equal 1 remuneration for work of equal value; 2 (f) the need to help employees balance their 3 work and family responsibilities effectively 4 and to improve retention and participation 5 of employees in the workforce; 6 (g) the safety, health and welfare of employees; 7 (h) the Queensland minimum wage; 8 (i) the desirability of reducing the number of 9 awards operating under this Act; 10 (j) the representation rights of organisations 11 and associations under this Act. 12 (3) This section does not limit section 140D. 13 Division 2 Award modernisation 14 process 15 Subdivision 1 Award modernisation 16 requests 17 140C Minister may make award modernisation 18 request 19 (1) The Minister may give the commission a written 20 notice (an award modernisation request) 21 requesting that an award modernisation process 22 be carried out. 23 (2) An award modernisation request must state-- 24 (a) details of the award modernisation process 25 that is to be carried out; and 26 (b) the day by which the process must be 27 completed. 28 Page 123
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 16] (3) The day stated in the notice under subsection 1 (2)(b) must not be later than 2 years after the day 2 on which the award modernisation request is 3 given to the commission. 4 (4) An award modernisation request may state any 5 other matter about the award modernisation 6 process the Minister considers appropriate. 7 (5) Without limiting subsection (4), the award 8 modernisation request may-- 9 (a) require the commission to-- 10 (i) prepare progress reports on stated 11 matters about the award modernisation 12 process; and 13 (ii) make the progress reports available as 14 stated in the request; or 15 (b) state permitted matters about which 16 provisions must be included in a modern 17 award; or 18 (c) direct the commission to include in a 19 modern award terms about particular 20 permitted matters; or 21 (d) give other directions about how, or whether, 22 the commission must deal with particular 23 permitted matters. 24 (6) In this section-- 25 permitted matter means a matter about which 26 provisions may be included in a modern award 27 under chapter 2A, part 3, division 1 or 2. 28 140CA Variation of award modernisation request 29 (1) Before an award modernisation process is 30 completed, the Minister may vary the award 31 modernisation request by written notice (a 32 variation notice) given to the commission. 33 Page 124
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 16] (2) Without limiting subsection (1), a variation 1 notice may extend the day by which the award 2 modernisation process must be completed. 3 (3) For subsection (2), the day must not be later than 4 2 years after the day on which the variation 5 notice is given to the commission. 6 (4) The day by which the award modernisation 7 process must be completed may be extended 8 under this section only once. 9 140CB Publication of award modernisation 10 request or variation notice 11 (1) This section applies if either of the following is 12 given to the commission under this part-- 13 (a) an award modernisation request; 14 (b) a variation notice. 15 (2) As soon as practicable after the request or notice 16 is given to the commission, the registrar must 17 publish the request or notice on the QIRC 18 website. 19 Subdivision 2 Procedure for 20 modernisation process 21 140CC Procedure for carrying out modernisation 22 process 23 (1) The commission must carry out the award 24 modernisation process in accordance with the 25 award modernisation request. 26 (2) Subject to subsection (1)-- 27 (a) the commission may decide the procedure 28 for carrying out the award modernisation 29 process; and 30 Page 125
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 16] (b) without limiting paragraph (a), the 1 commission may inform itself in any way it 2 thinks appropriate, including by consulting 3 with any person, body or organisation in the 4 way the commission considers appropriate. 5 (3) To remove any doubt, it is declared that 6 subsection (2) does not limit the powers of the 7 commission under any other provision of this 8 Act. 9 140CD Deadline for completion of award 10 modernisation process 11 (1) The commission must complete an award 12 modernisation process by-- 13 (a) the day stated in the award modernisation 14 request relating to the process; or 15 (b) if a variation notice states a later day by 16 which the process must be completed--the 17 stated day. 18 (2) For subsection (1), the award modernisation 19 process is completed when 1 or more modern 20 awards are made to give effect to the outcome of 21 the process. 22 140CE Making of modern awards and repeal of 23 pre-modernisation awards 24 (1) To give effect to the outcome of an award 25 modernisation process, the commission must-- 26 (a) make 1 or more modern awards; and 27 (b) under section 125, repeal the 28 pre-modernisation awards to which the 29 process relates. 30 (2) The commission must ensure each relevant class 31 of employees-- 32 Page 126
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] (a) is covered by a modern award; or 1 (b) would be covered by a modern award but for 2 the effect of section 140E(2). 3 (3) Subject to chapter 2A, part 3 and chapter 5A, a 4 modern award made for the purposes of 5 subsection (1) must be consistent with the award 6 modernisation request to which the modern 7 award relates. 8 (4) In this section-- 9 relevant class of employees means a class of 10 employees who were bound by a 11 pre-modernisation award that is repealed to give 12 effect to the outcome of the award modernisation 13 process. 14 Clause 17 Insertion of new ch 5A 15 After chapter 5-- 16 insert-- 17 Chapter 5A Modern awards 18 Part 1 Preliminary 19 140D Modern awards objectives 20 (1) In exercising its chapter 5A powers, the 21 commission must ensure modern awards, 22 together with the Queensland Employment 23 Standards, provide a minimum safety net of 24 employment conditions that is fair and relevant. 25 (2) For subsection (1), the commission must have 26 regard to the following-- 27 (a) relative living standards and the needs of 28 low-paid employees; 29 Page 127
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] (b) the need to promote social inclusion through 1 increased workforce participation; 2 (c) the need to promote flexible modern work 3 practices and the efficient and productive 4 performance of work; 5 (d) the need to ensure equal remuneration for 6 male and female employees for work of 7 equal or comparable value; 8 (e) the need to provide penalty rates for 9 employees who-- 10 (i) work overtime; or 11 (ii) work unsocial, irregular or 12 unpredictable hours; or 13 (iii) work on weekends or public holidays; 14 or 15 (iv) perform shift work; 16 (f) the likely impact of the exercise of the 17 chapter 5A powers on business, including 18 on productivity, employment costs and the 19 regulatory burden; 20 (g) the need to ensure the modern award 21 system-- 22 (i) is simple and easy to understand; and 23 (ii) is certain, stable and sustainable; and 24 (iii) avoids unnecessary overlap of modern 25 awards; 26 (h) the financial position considerations, 27 including the likely impact of the exercise of 28 the chapter 5A powers on those 29 considerations; 30 (i) the likely impact of the exercise of the 31 chapter 5A powers on-- 32 (i) employment growth and inflation; and 33 Page 128
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] (ii) the sustainability, performance and 1 competitiveness of the Queensland 2 economy. 3 (3) Also, to the extent the commission's chapter 5A 4 powers relate to setting, varying or revoking 5 minimum wages in modern awards, the 6 commission must establish and maintain a 7 minimum safety net of fair minimum wages, 8 having regard to-- 9 (a) the matters mentioned in subsection (1)(a), 10 (c), (e), (i) and (j); and 11 (b) providing a comprehensive range of fair 12 minimum wages to-- 13 (i) young employees; and 14 (ii) employees engaged as apprentices or 15 trainees; and 16 (iii) employees with a disability. 17 (4) The objectives of the commission under 18 subsections (1) and (2) are the modern awards 19 objectives. 20 (5) In this section-- 21 chapter 5A powers means powers or functions of 22 the commission under this chapter. 23 financial position considerations means-- 24 (a) if the modern award or proposed modern 25 award applies to, or will apply to, a public 26 sector entity-- 27 (i) the State's financial position and fiscal 28 strategy; and 29 (ii) the financial position of the public 30 sector entity; or 31 (b) if paragraph (a) does not apply--the 32 financial position of the employers the 33 Page 129
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] modern award or proposed modern award 1 applies to or will apply to. 2 public sector entity see section 149D(3). 3 140DA Definitions for ch 5A 4 In this chapter-- 5 employee with a disability means an employee 6 who-- 7 (a) is qualified for a disability support pension 8 under the Social Security Act 1991 (Cwlth), 9 section 94 or 95; or 10 (b) would be qualified for a disability support 11 pension but for section 94(1)(e) or 95(1)(c) 12 of that Act. 13 work value reasons, in relation to fixing rates of 14 minimum wages for a particular kind of work, 15 means reasons that-- 16 (a) justify the amount employees should be paid 17 for doing the work; and 18 (b) relate to any of the following-- 19 (i) the nature of the work; 20 (ii) the level of skill or responsibility 21 involved in doing the work; 22 (iii) the conditions under which the work is 23 done. 24 Page 130
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] Part 2 Coverage and 1 operation of modern 2 awards 3 140E Who a modern award applies to 4 (1) A modern award applies to an employee, 5 employer or organisation if the award is in 6 operation and-- 7 (a) the award states that it applies to the 8 employee, employer or organisation; or 9 (b) the award applies to the employee, employer 10 or organisation under any of the following-- 11 (i) a provision of this Act; 12 (ii) an order made by the commission 13 under this Act; 14 (iii) an order of a court. 15 (2) However, a modern award does not apply to an 16 employee, employer or organisation if a 17 provision of this Act provides that the award does 18 not apply to the employee, employer or 19 organisation. 20 Note-- 21 See, for example, section 824 which provides that a 22 modern award does not apply to an employee who is 23 under a pre-modernisation certified agreement. 24 (3) A reference in this Act to a modern award 25 applying to an employee is a reference to the 26 award applying to the employee in relation to 27 particular employment. 28 140EA Significance of application of modern 29 award 30 (1) A modern award does not-- 31 Page 131
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] (a) impose obligations on a person; or 1 (b) confer an entitlement on a person; 2 unless the award applies to the person. 3 (2) A person does not contravene a term of a modern 4 award unless the award applies to the person. 5 140EB When a modern award operates 6 (1) A modern award starts operating on the day 7 stated in the award as the day on which it comes 8 into operation. 9 (2) The stated day must not be earlier than the day 10 the modern award is made. 11 (3) A modern award does not take effect in relation 12 to a particular employee until the start of the 13 employee's first full pay period starting on or 14 after the day the award comes into operation. 15 Note-- 16 See, however, section 824 in relation to when a modern 17 award takes effect in relation to a particular employee 18 under a pre-modernisation certified agreement. 19 (4) A modern award continues in effect until it is 20 revoked. 21 140EC Relationship of modern award with 22 certified agreement 23 (1) A modern award may apply to an employee in 24 relation to particular employment at the same 25 time as a certified agreement applies to the 26 employee in relation to the employment. 27 (2) If both a modern award and certified agreement 28 apply to an employee in relation to particular 29 employment, the certified agreement prevails to 30 the extent of any inconsistency. 31 Page 132
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] 140ED Relationship of modern award with 1 contract of service 2 (1) A modern award prevails over a relevant contract 3 to the extent of any inconsistency. 4 Note-- 5 However, for a relevant contract that is a high-income 6 guarantee contract, see section 194(2). 7 (2) The contract must be interpreted, and takes 8 effect, as if it were amended to the extent 9 necessary to make the inconsistency consistent 10 with the modern award. 11 (3) However, there is no inconsistency only because 12 the contract provides for employment conditions 13 more favourable to the employee than the modern 14 award. 15 (4) In this section-- 16 relevant contract means a contract of service that 17 is-- 18 (a) in force when the award comes into 19 operation; or 20 (b) made while the award continues in 21 operation. 22 Page 133
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] Part 3 Making, varying and 1 revoking modern 2 awards 3 Division 1 Periodic reviews of 4 modern awards 5 140F Periodic reviews of a modern award 6 (1) The commission must review a modern award (a 7 periodic review) as soon as practicable after each 8 4th anniversary of the making of the award. 9 (2) The president or vice-president may give a 10 direction about the conduct of a periodic review 11 to the member constituting the commission for 12 conducting the review. 13 (3) An industrial commissioner must comply with a 14 direction of the president or vice-president under 15 subsection (2). 16 (4) For the purposes of a periodic review, the 17 commission may make any of the following-- 18 (a) a determination varying the modern award; 19 (b) a modern award; 20 (c) a determination revoking the modern award. 21 (5) Subsection (4)(a) applies subject to section 22 140FA. 23 140FA Requirement about variation of minimum 24 wages 25 For a periodic review, the commission may make a 26 determination varying the rates of minimum wages in 27 a modern award only if the commission is satisfied the 28 variation is justified by work value reasons. 29 Page 134
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] Division 2 Other exercise of powers 1 to make, vary or revoke 2 modern awards 3 140G Powers may be exercised to achieve modern 4 awards objectives 5 (1) The commission may, other than for the purposes 6 of a periodic review-- 7 (a) make a determination varying a modern 8 award; or 9 (b) make a modern award; or 10 (c) make a determination revoking a modern 11 award. 12 (2) The commission may exercise a power under 13 subsection (1) only if the commission is 14 satisfied-- 15 (a) that making the determination or modern 16 award other than for the purposes of a 17 periodic review is necessary to achieve the 18 modern awards objectives; and 19 (b) for a variation of the rates of minimum 20 wages in a modern award--the variation is 21 justified by work value reasons. 22 (3) The commission may exercise a power under this 23 section-- 24 (a) on its own initiative; or 25 (b) on application under section 140GA. 26 140GA Application to vary, revoke or make 27 modern award under s 140G 28 (1) This section provides for who may apply for the 29 making of a determination varying or revoking a 30 modern award, or for the making of a modern 1 Page 135
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] award, under section 140G. 2 (2) An application to vary, omit or include 3 provisions, other than coverage provisions, in a 4 modern award or an application to revoke a 5 modern award may be made by-- 6 (a) an employer, employee or organisation to 7 which the award applies; or 8 (b) an organisation whose rules entitle it to 9 represent the industrial interests of 1 or 10 more employers or employees to whom the 11 award applies. 12 (3) An application to vary or include coverage 13 provisions in a modern award to extend the 14 coverage of the award to include additional 15 employers, employees or organisations may be 16 made by-- 17 (a) an employer, employee or organisation that 18 the award would start applying to; or 19 (b) an organisation whose rules entitle it to 20 represent the industrial interests of 1 or 21 more employers or employees whom the 22 award would start applying to. 23 (4) An application to vary or omit coverage 24 provisions in a modern award so it stops applying 25 to employers, employees or organisations may be 26 made by-- 27 (a) an employer, employee or organisation the 28 award would stop applying to; or 29 (b) an organisation whose rules entitle it to 30 represent the industrial interests of 1 or 31 more employers or employees whom the 32 award would stop applying to; or 33 (5) An application for the making of a modern award 34 may be made by-- 35 Page 136
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] (a) an employee or employer to whom the 1 award would apply; or 2 (b) an organisation entitled to represent the 3 industrial interests of 1 or more employers 4 or employees to whom the award would 5 apply. 6 (6) Subject to subsections (1) to (5), an applicant 7 may make applications for 2 or more related 8 things at the same time. 9 Example-- 10 An applicant may apply for the making of a new modern 11 award and the related revocation of an existing modern 12 award. 13 (7) In this section-- 14 coverage provisions see section 71MC. 15 140GB Variation to update or omit name of 16 employer or organisation 17 (1) The commission may make a determination 18 varying a modern award-- 19 (a) to reflect a change in the name of an 20 employer or organisation; or 21 (b) to omit the name of an employer or 22 organisation from the award, if-- 23 (i) the employer or organisation has 24 ceased to exist; or 25 (ii) the organisation has been deregistered 26 under chapter 12, part 16; or 27 (c) to reflect a transfer of a calling from an 28 employer named in the award (the old 29 employer) to another employer (the new 30 employer). 31 (2) The commission may make a determination 32 under this section-- 33 Page 137
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] (a) on its own initiative; or 1 (b) if subsection (1)(a) or (b)(ii) applies--on 2 application by the employer or organisation; 3 or 4 (c) if subsection (1)(c) applies--on application 5 by-- 6 (i) the old employer or the new employer; 7 or 8 (ii) a transferring employee to whom the 9 award applied as an employee of the 10 old employer; or 11 (iii) an organisation entitled under its rules 12 to represent the industrial interests of a 13 person mentioned in subparagraph (i) 14 or (ii). 15 140GC Variation to remove ambiguity or 16 uncertainty or to correct error 17 (1) The commission may make a determination 18 varying a modern award to-- 19 (a) remove an ambiguity or uncertainty; or 20 (b) correct an error. 21 (2) The commission may make a determination 22 under this section-- 23 (a) on its own initiative; or 24 (b) on application by-- 25 (i) an employer, employee or organisation 26 to which the modern award applies; or 27 (ii) an organisation entitled under its rules 28 to represent the industrial interests of 1 29 or more employers or employees 30 mentioned in subparagraph (i). 31 Page 138
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] 140GD Variation on referral by Anti-Discrimination 1 Commission 2 (1) The Anti-Discrimination Commission may apply 3 to the commission for a review of a modern 4 award on the grounds that it is discriminatory. 5 (2) If an application is made under subsection (1), 6 the commission must-- 7 (a) review the modern award; and 8 (b) if it considers the award requires a person to 9 do an act that would be unlawful under the 10 Anti-Discrimination Act 1991 had the act 11 not been done under the award--make a 12 determination varying the award so it no 13 longer requires the person to do the 14 unlawful act. 15 Division 3 General provisions about 16 exercise of commission's 17 powers 18 140H Requirements about revoking a modern 19 award 20 The commission must not make a determination 21 revoking a modern award unless the commission is 22 satisfied the award is obsolete or no longer capable of 23 operating. 24 140HA When variation determination comes into 25 operation 26 (1) This section applies to a determination varying a 27 modern award. 28 (2) The determination comes into operation on the 29 day stated in the determination. 30 Page 139
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] (3) The stated day must not be earlier than the day on 1 which the determination is made, unless-- 2 (a) the determination is made under 3 section 140GC; and 4 (b) the commission is satisfied exceptional 5 circumstances justify stating an earlier day; 6 and 7 (c) the determination does not adversely affect 8 an employee. 9 (4) The determination does not take effect in relation 10 to a particular employee until the start of the 11 employee's first full pay period that starts on or 12 after the day the determination comes into 13 operation. 14 140HB Retrospective variation of modern awards 15 (1) This section applies if a determination varying a 16 modern award operates retrospectively under 17 section 140HA. 18 (2) If, before the determination was made, a certified 19 agreement or a variation of a certified agreement 20 was approved by the commission, the validity of 21 the approval is not affected by the retrospective 22 operation of the determination. 23 (3) Subsection (4) applies if-- 24 (a) a person engaged in conduct before the 25 determination was made; and 26 (b) but for the retrospective operation of the 27 determination, the conduct would not have 28 contravened a term of the modern award or a 29 certified agreement. 30 (4) The person is taken not to have committed an 31 offence only because the conduct contravened a 32 term of the modern award or certified agreement. 33 Page 140
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] Part 4 Technical matters 1 140I Definition for pt 4 2 In this part-- 3 relevant instrument means-- 4 (a) a modern award; or 5 (b) a determination varying or revoking a 6 modern award. 7 140IA Formal requirements of relevant 8 instruments 9 (1) A relevant instrument must-- 10 (a) be in writing; and 11 (b) be signed by the member of the commission 12 making the instrument; and 13 (c) state the day on which it is signed. 14 (2) Also, a modern award must-- 15 (a) have a unique title; and 16 (b) have a table of contents; and 17 (c) be expressed in plain English and be easy to 18 understand in structure and content. 19 140IB Publication of relevant instruments 20 (1) This section applies if the commission makes a 21 relevant instrument. 22 (2) As soon as practicable after making the relevant 23 instrument, the commission must give the 24 registrar-- 25 (a) a copy of the instrument; and 26 (b) written reasons for the instrument. 27 Page 141
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 17] (3) As soon as practicable after the registrar receives 1 a copy of the relevant instrument under 2 subsection (2), the registrar must-- 3 (a) give the parties to whom the relevant 4 modern award applies, or will or did apply, 5 notice of the making of the instrument; and 6 (b) ensure a copy of the instrument and the 7 written reasons for the instrument are 8 published on the QIRC website. 9 (4) The registrar must give the notice under 10 subsection (3)(a)-- 11 (a) in the way prescribed under a regulation; or 12 (b) if there is no prescribed way--in the way 13 the registrar considers appropriate. 14 140IC Publication of varied awards 15 (1) This section applies if the commission makes a 16 determination under this part or section 287 17 varying a modern award. 18 (2) The registrar must, as soon as practicable after 19 the determination is made, publish the award as 20 varied on the QIRC website. 21 140ID Interpretation of relevant instrument 22 (1) A term used in a relevant instrument has the same 23 meaning as it has-- 24 (a) in this Act; or 25 (b) subject to paragraph (a), under the Acts 26 Interpretation Act 1954. 27 (2) Subsection (1) applies subject to a contrary 28 intention in the modern award or determination. 29 Page 142
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 18] Clause 18 Replacement of ch 6, div 1, hdg 1 Chapter 6, division 1, heading-- 2 omit, insert-- 3 Division 1A Preliminary 4 140J Application of ch 6 5 This chapter applies to-- 6 (a) employees who are covered by a modern 7 award; and 8 (b) employers of employees covered by a 9 modern award. 10 140K Definitions for ch 6 11 In this chapter-- 12 arbitration period, for a matter, means the 13 arbitration period for the matter under section 14 149A. 15 conciliating member, for a matter, see section 16 149(2). 17 conciliation report, for a matter, see section 18 149(2). 19 conciliation period, for a matter, see section 20 148(2). 21 multi-employer agreement means a certified 22 agreement made with a multi-employer. 23 negotiating party see section 148(1). 24 peace obligation period see section 147(2). 25 relevant employee organisation, for a certified 26 agreement or a proposed certified agreement, 27 means an employee organisation that-- 28 (a) is bound by an award or industrial 29 agreement that binds an employer under the 30 Page 143
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 19] certified agreement or proposed certified 1 agreement, or would bind the employer 2 apart from an award under the 3 Commonwealth Act; or 4 (b) if there is no award or agreement that binds, 5 or would bind, an employer under the 6 certified agreement or proposed certified 7 agreement--is entitled to represent the 8 industrial interests of employees of the 9 employer. 10 Clause 19 Amendment of s 141 (Certified agreements) 11 (1) Section 141, heading-- 12 omit, insert-- 13 141 Meaning of certified agreement 14 (2) Section 141(1)-- 15 omit, insert-- 16 (1) A certified agreement is a written agreement-- 17 (a) between an employer and a group of 18 employees of the employer (whether all 19 employees or a category of employees) who 20 are covered by a modern award; and 21 (b) that has been certified under section 156. 22 Clause 20 Replacement of s 142 (Who may make certified 23 agreements) 24 Section 142-- 25 omit, insert-- 26 142 Who may make certified agreements 27 (1) A certified agreement may be made between-- 28 (a) on the one hand, the employer; and 29 (b) on the other hand-- 30 Page 144
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 21] (i) 1 or more employee organisations that 1 represent, or are entitled to represent, 2 any employees to whom this chapter 3 applies and who are, or are eligible to 4 be, members of the organisation; or 5 (ii) the employees, at the time the 6 agreement is made, to whom this 7 chapter applies. 8 (2) However, subsection (1) does not apply if the 9 employees are high-income senior employees 10 under section 189. 11 Clause 21 Insertion of new ch 6, div 1 and sdiv 1, hdgs 12 After section 142-- 13 insert-- 14 Division 1 Making agreements 15 Subdivision 1 Negotiation 16 Clause 22 Amendment of s 143 (Proposed parties to be advised 17 when agreement is proposed) 18 (1) Section 143(2), `advise the following persons, in writing,'-- 19 omit, insert-- 20 give each of the following persons a written notice (a 21 notice of intention) 22 (2) Section 143(3)-- 23 omit, insert-- 24 (3) The proposer must give the notice of intention at 25 least 7 days before the negotiations are proposed 26 to begin. 27 (3A) If there is an existing certified agreement 28 between the parties, the proposer must not, 29 despite anything to the contrary in the agreement, 30 Page 145
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 23] give the notice of intention more than 60 days 1 before the nominal expiry date. 2 (3) Section 143(4), `advice under subsection (2)'-- 3 omit, insert-- 4 a notice of intention 5 (4) Section 143(5), `advice under subsection (2)'-- 6 omit, insert-- 7 a notice of intention 8 (5) Section 143(5), after `proposer'-- 9 insert-- 10 and the commission 11 (6) Section 143(8)-- 12 omit. 13 Clause 23 Amendment of s 144 (What is to be done when an 14 agreement is proposed) 15 (1) Section 144(2)(a)-- 16 omit, insert-- 17 (a) each relevant employee has, or has ready 18 access to, the proposed written agreement or 19 a copy of it during the period starting 7 days 20 before the day the relevant employees are 21 asked to approve the proposed agreement; 22 and 23 (2) Section 144(2)(c), after `relevant employee organisation'-- 24 insert-- 25 of which he or she is a member 26 (3) Section 144(3), after `relevant employee organisation'-- 27 insert-- 28 of which he or she is a member 29 Page 146
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 24] (4) Section 144(5)-- 1 omit. 2 Clause 24 Amendment of s 147A (Employer may ask employees to 3 approve proposed agreement being negotiated with 4 employee organisation) 5 (1) Section 147A(5)(b)(ii), note-- 6 omit, insert-- 7 Note-- 8 See section 142(1)(b) and (2). 9 (2) Section 147A(6)-- 10 omit, insert-- 11 (6) For section 156, if, in negotiating a proposed 12 agreement-- 13 (a) a step was taken by the employer, or an 14 employee organisation mentioned in 15 subsection (1), to comply with a 16 requirement under this Act; and 17 (b) the employer or employee organisation, as 18 applicable, complied with the requirement 19 as it applied to the proposed agreement; 20 the requirement is taken to have been complied 21 with as it applies to the agreement made between 22 the employer and the employees. 23 Example-- 24 For paragraph (a), the step taken was that the employer, 25 or employee organisation, gave a notice of intention 26 under section 143(2). 27 For section 156, section 143(2) is taken to have been 28 complied with for the agreement made between the 29 employer and the employees. 30 (3) Section 147A(7), `a relevant employee organisation'-- 31 omit, insert-- 32 Page 147
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 25] an employee organisation mentioned in subsection (1) 1 (4) Section 147A(8), `commission has jurisdiction to arbitrate the 2 matter under section 149'-- 3 omit, insert-- 4 full bench, or the commission, has jurisdiction to 5 arbitrate the matter under subdivision 3 6 (5) Section 147A(10)-- 7 omit. 8 Clause 25 Insertion of new ch 6, div 1, sdiv 2, hdg 9 After section 147A-- 10 insert-- 11 Subdivision 2 Conciliation 12 Clause 26 Replacement of s 148 (Assistance in negotiating by 13 conciliation) 14 Section 148-- 15 omit, insert-- 16 148 Commission to help negotiating parties 17 (1) After the peace obligation period for negotiations 18 for a proposed certified agreement has ended, the 19 commission must help the parties to the 20 negotiations (each, a negotiating party) to make 21 a certified agreement if-- 22 (a) all of the negotiating parties jointly ask the 23 commission to help them negotiate the 24 agreement; or 25 (b) 1 negotiating party declares a breakdown in 26 the negotiations and the commission 27 considers further negotiations are unlikely 28 to result in making a certified agreement 29 within a reasonable time; or 30 Page 148
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 26] (c) 1 negotiating party asks the commission for 1 help negotiating the matter and the 2 commission considers that a negotiating 3 party is organising or engaging in, or 4 threatening to organise or engage in, 5 relevant industrial action. 6 (2) The negotiating parties must, with the 7 commission's help, try to make a certified 8 agreement during the period (the conciliation 9 period)-- 10 (a) starting on the day-- 11 (i) if subsection (1)(a) applies--the 12 commission is asked to help; or 13 (ii) if subsection (1)(b) applies--the 14 commission notifies the parties that it 15 considers further negotiations are 16 unlikely to result in making a certified 17 agreement within a reasonable time; or 18 (iii) if subsection (1)(c) applies--the 19 commission notifies the parties that it 20 considers that 1 of them is engaging, or 21 threatening to engage, in relevant 22 industrial action; and 23 (b) ending on-- 24 (i) the day that is 14 days after the day 25 mentioned in paragraph (a) for the 26 matter; or 27 (ii) if all the negotiating parties agree to 28 end the conciliation period on a later 29 day--the later day. 30 (3) In this section-- 31 relevant industrial action-- 32 (a) means industrial action-- 33 (i) that has been protracted; or 34 Page 149
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 26] (ii) that has caused, is causing or threatens 1 to cause significant damage to any of 2 the following-- 3 (A) the economy or a part of it; 4 (B) the local community or a part of 5 it; 6 (C) a single enterprise; 7 (D) the employees; or 8 (iii) that has endangered, is endangering or 9 threatens to endanger the personal 10 health, safety or welfare of the 11 community or a part of it; or 12 (iv) that affects, or threatens to affect, 13 directly or indirectly, access to, or 14 delivery of, services to the community 15 or a part of it; or 16 (v) the cumulative effect of which has 17 affected, or threatens to affect, directly 18 or indirectly, access to, or delivery of, 19 services to the community or a part of 20 it; but 21 (b) does not include the making, by a 22 negotiating party, of an application for a 23 protected action ballot order under schedule 24 4, part 2, section 3. 25 single enterprise means-- 26 (a) a business project or undertaking carried on 27 by an employer; or 28 (b) the activities carried on by any of the 29 following-- 30 (i) the Commonwealth or a State; 31 (ii) a body, association, office or other 32 entity established for a public purpose 33 Page 150
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 26] by, or under, a law of the 1 Commonwealth or a State; 2 (iii) another entity in which the 3 Commonwealth or a State has a 4 controlling interest. 5 148A Commission's conciliation powers 6 (1) In helping negotiating parties make a certified 7 agreement under this subdivision, the 8 commission has the conciliation powers it would 9 have under section 230 if that section applied to 10 certified agreement negotiations instead of 11 industrial disputes. 12 (2) Without limiting subsection (1), the commission 13 may make an order-- 14 (a) to promote the efficient conduct of 15 negotiations; or 16 (b) to ensure the parties negotiate in good faith; 17 or 18 (c) if 2 or more employee organisations are 19 involved in the negotiations--that, for 20 conciliating the matter, the organisations be 21 represented by an authorised person; or 22 (d) that otherwise helps the parties to negotiate 23 a certified agreement. 24 (3) In deciding what orders to make, the commission 25 must consider the conduct of each of the 26 negotiating parties. 27 (4) In this section-- 28 authorised person, for 2 or more employee 29 organisations, means a person or a group of 30 persons authorised by the organisations to 31 represent them, whether generally or for 32 particular negotiations. 33 Page 151
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 27] 148B Commission can not order wage increase 1 The Commission can not, in helping negotiating 2 parties negotiate a certified agreement under this 3 subdivision, order an increase in wages payable to the 4 employees. 5 Clause 27 Insertion of new ch 6, div 1, sdiv 3, hdg 6 After new section 148B-- 7 insert-- 8 Subdivision 3 Arbitration 9 Clause 28 Replacement of s 149 (Arbitration if conciliation 10 unsuccessful) 11 Section 149-- 12 omit, insert-- 13 149 Arbitration if conciliation unsuccessful 14 (1) This section applies if-- 15 (a) the commission has helped negotiating 16 parties to try to negotiate a certified 17 agreement; and 18 (b) when the conciliation period for the matter 19 ends, there remain matters at issue between 20 the negotiating parties. 21 (2) The commissioner (the conciliating member) 22 who conciliated the matter under subdivision 2 23 must prepare a written report (the conciliation 24 report) identifying-- 25 (a) the aspects of the matter, if any, on which 26 the negotiating parties agree; and 27 (b) the aspects of the matter (the issues) that 28 remain at issue between the negotiating 29 parties; and 30 Page 152
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 28] (c) any issue the conciliating member considers 1 relates, or may relate, to non-allowable 2 content under chapter 2A, part 3, division 4, 3 subdivisions 1 and 3. 4 (3) The conciliating member must give the 5 conciliation report to the vice-president on the 6 day that is 14 days after the conciliation period 7 for the matter ends. 8 (4) The matter must be determined by arbitration 9 within the arbitration period for the matter. 10 (5) However, subsection (4) does not apply if the 11 parties reach agreement on the terms of a 12 proposed certified agreement before the 13 commission makes an arbitration determination 14 for the matter. 15 149A Arbitration period 16 (1) Unless the vice-president otherwise directs, the 17 arbitration period for a matter is the period of 90 18 days after the day the vice-president receives the 19 conciliation report. 20 (2) The vice-president may direct that the arbitration 21 period for a matter be a stated period of more 22 than 90 days only if the vice-president considers 23 that the arbitration can not reasonably be 24 determined within 90 days. 25 (3) In deciding whether a matter can not reasonably 26 be determined by arbitration within 90 days, the 27 vice-president must consider all of the 28 circumstances, including the number, scope and 29 complexity of the issues identified in the 30 conciliation report. 31 (4) An arbitration period mentioned in subsection 32 (2)-- 33 Page 153
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 28] (a) starts on the day after the vice-president 1 receives the conciliation report for the 2 matter; and 3 (b) ends on the day stated in the vice-president's 4 direction; and 5 (c) must not be longer than is reasonably 6 necessary. 7 (5) The vice-president may make a direction for a 8 matter under subsection (2) at any time-- 9 (a) after the vice-president receives the 10 conciliation report; and 11 (b) before the full bench makes its arbitration 12 determination. 13 149B Full bench to determine matters by 14 arbitration unless vice-president directs 15 otherwise 16 (1) The full bench is to determine matters by 17 arbitration under this subdivision. 18 (2) However, the vice-president may direct that a 19 matter be determined by arbitration by the 20 commission constituted by a commissioner 21 sitting alone. 22 (3) The vice-president may make a direction under 23 subsection (2) only if, having considered all of 24 the circumstances including the number, scope 25 and complexity of the issues identified in the 26 conciliation report, the vice-president considers it 27 would not be appropriate to have the matter 28 determined by arbitration by the full bench. 29 (4) If the vice-president makes a direction under 30 subsection (2)-- 31 (a) the president must choose a commissioner 32 other than the conciliating member for the 33 Page 154
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 28] matter to constitute the commission for the 1 arbitration; and 2 (b) sections 149A(5)(b) and 149C to 149E 3 apply as if a reference in those sections to 4 the full bench were a reference to the 5 commission constituted by a commissioner 6 sitting alone. 7 149C Arbitration powers of full bench 8 (1) For determining a matter by arbitration under this 9 subdivision, the full bench-- 10 (a) has the arbitration powers it would have 11 under section 230 if that section applied to 12 certified agreement negotiations instead of 13 industrial disputes; and 14 (b) may give directions or make orders of an 15 interlocutory nature; and 16 (c) can not order an increase in wages payable 17 to employees before the full bench makes its 18 arbitration determination for the matter. 19 (2) An arbitration determination by the full bench-- 20 (a) must include the provisions required to be 21 included in a certified agreement under 22 chapter 2A, part 3, division 2; and 23 (b) can not include a provision that can not be 24 included in a certified agreement under 25 chapter 2A, part 3, division 4. 26 149D Issues full bench must consider 27 (1) In determining a matter by arbitration under this 28 subdivision, the full bench-- 29 (a) must limit its consideration to the issues 30 identified in the conciliation report for the 31 matter; and 32 Page 155
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 28] (b) in considering the issues, must consider at 1 least the following-- 2 (i) the merits of the case; 3 (ii) the likely effect of the proposed 4 arbitration determination, and any 5 matters agreed between the negotiating 6 parties before the arbitration, on 7 employees and employers who will be 8 bound by the proposed arbitration 9 determination; 10 (iii) the extent to which the negotiating 11 parties have negotiated in good faith; 12 (iv) the public interest. 13 (2) In considering the public interest under 14 subsection (1)(b)(iv), the full bench must 15 consider-- 16 (a) the objects of this Act; and 17 (b) the likely effect of the proposed arbitration 18 determination on the economy and the 19 community or a part of the economy or 20 community; and 21 (c) the employer's efforts to improve 22 productivity in the enterprise or industry 23 concerned; and 24 (d) the flexibility of work practices to meet the 25 operational requirements of the enterprise or 26 industry concerned; and 27 (e) the employer's ability to enter into high 28 income guarantee contracts with individual 29 employees; and 30 (f) for a matter involving a public sector 31 entity-- 32 (i) the State's financial position and fiscal 33 strategy; and 34 Page 156
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 28] (ii) the financial position of the public 1 sector entity; and 2 (iii) the likely effect of the proposed 3 arbitration determination on the 4 matters mentioned in subparagraphs (i) 5 and (ii); and 6 (g) for a matter other than a matter involving a 7 public sector entity--the employer's 8 financial position and the likely effect of the 9 proposed arbitration determination on it. 10 (3) In this section-- 11 high-income guarantee contract see section 12 188. 13 public sector entity-- 14 (a) includes an entity, or a part of an entity, that 15 is-- 16 (i) a department; or 17 (ii) a public service office; or 18 (iii) an agency, authority, commission, 19 corporation, instrumentality, office, or 20 other entity, established under an Act 21 or under State authorisation for a 22 public or State purpose; but 23 (b) does not include-- 24 (i) a local government; or 25 (ii) a local government owned corporation, 26 or a subsidiary of a local government 27 owned corporation, under the Local 28 Government Act 2009; or 29 (iii) a parents and citizens association 30 formed under the Education (General 31 Provisions) Act 2006. 32 Page 157
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 29] 149E Full bench must publish reasons 1 (1) The full bench must publish its reasons when it 2 makes an arbitration determination for a matter 3 under this subdivision. 4 (2) The published reasons must address each of the 5 things mentioned in section 149D(1) and (2) and, 6 for each thing, must-- 7 (a) set out the full bench's findings on material 8 questions of fact; and 9 (b) refer to the evidence or other material on 10 which those findings were based. 11 Clause 29 Amendment of s 150 (Determinations made under s 149) 12 (1) Section 150, heading-- 13 omit, insert-- 14 150 Arbitration determinations 15 (2) Section 150(1)-- 16 omit, insert-- 17 (1) An arbitration determination made under this 18 subdivision must specify a date, no later than 4 19 years after the date on which the determination is 20 made, as its nominal expiry date. 21 (3) Section 150(2), `The determination'-- 22 omit, insert-- 23 Subject to subsection (2A), the arbitration 24 determination 25 (4) Section 150-- 26 insert-- 27 (2A) A wage increase, other entitlement or benefit 28 under the arbitration determination can not-- 29 Page 158
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 30] (a) take effect on a day earlier than the day the 1 arbitration period for the matter started; or 2 (b) relate to a period before the day the 3 arbitration period for the matter started. 4 (5) Section 150(3)(a) and (b)(ii), (4), (5) and (6), `commission'-- 5 omit, insert-- 6 full bench 7 (6) Section 150(7), `commission's'-- 8 omit, insert-- 9 full bench's 10 Clause 30 Insertion of new ch 6, div 1, sdivs 4 and 5 11 After section 150-- 12 insert-- 13 Subdivision 4 Industrial action during 14 conciliation and arbitration 15 periods 16 150A No protected industrial action during 17 conciliation and arbitration periods 18 Industrial action is not protected industrial action 19 under section 174 if it is organised, or engaged in, by 20 or on behalf of a negotiating party for a matter-- 21 (a) during the conciliation period for the matter; 22 and 23 (b) if the matter is determined by arbitration 24 under subdivision 3--between the end of 25 the conciliation period and the end of the 26 arbitration period for the matter. 27 Page 159
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 31] Subdivision 5 Other matters 1 Clause 31 Replacement of s 155 (Right of employee organisation to 2 be heard) 3 Section 155-- 4 omit, insert-- 5 155 Entities that may be heard on application 6 (1) An employee organisation that will be a party to 7 an agreement if it is certified is entitled be heard 8 on an application for the certification of the 9 agreement. 10 (2) As soon as practicable after the application is 11 made, the commission must notify each 12 employee organisation mentioned in subsection 13 (1) that the application has been made and that 14 the organisation is entitled to be heard on it. 15 (3) An employee organisation that will not be party 16 to the agreement if it is certified may be heard on 17 the application only by leave of the commission. 18 (4) The commission may give leave to an employee 19 organisation mentioned in subsection (3) only if 20 the commission is satisfied there is a reasonable 21 possibility that, if leave is not given, it will not be 22 informed of an issue relevant to its decision to 23 certify, or not to certify, the agreement. 24 (5) This section does not affect another right of an 25 employee organisation, or anyone else, to be 26 heard on, or to intervene in, an application. 27 Clause 32 Amendment of s 156 (Certifying an agreement) 28 (1) Section 156(1)(d)-- 29 omit, insert-- 30 Page 160
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 33] (d) the agreement complies with chapter 2A, 1 part 3, division 2, subdivisions 1 and 3; and 2 (2) Section 156(1)(e) and (f)-- 3 omit. 4 (3) Section 156(1)(j), all words after `a new business--'-- 5 omit, insert-- 6 each relevant employee organisation is a party to the 7 agreement; and 8 (4) Section 156(1)(l) and (m)-- 9 omit. 10 (5) Section 156(1)(g) to (k)-- 11 renumber as section 156(1)(e) to (i). 12 (6) Section 156-- 13 insert-- 14 (1AA) Subject to section 158, the commission must also 15 refuse to certify an agreement if it is satisfied that 16 the agreement includes non-allowable content 17 under chapter 2A, part 3, division 4, subdivisions 18 1 and 3. 19 (7) Section 156(2), from `Subsection (1)(j)' to `organisation 20 mentioned in subsection (1)(j)'-- 21 omit, insert-- 22 Subsection (1)(h) does not apply if the commission is 23 satisfied a relevant employee organisation 24 (8) Section 156(3)-- 25 omit. 26 Clause 33 Amendment of s 157 (When commission to refuse to 27 certify an agreement) 28 Section 157(1)(a)(i) and (5), `chapter 2, part 5'-- 29 Page 161
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 34] omit, insert-- 1 chapter 2A, part 4 2 Clause 34 Amendment of s 158 (Other options open to the 3 commission instead of refusing to certify agreement) 4 Section 158-- 5 insert-- 6 (4) If after doing the things required or allowed by 7 subsection (1), the commission is still required to 8 refuse to certify the agreement only under section 9 156(1AA), the commission may-- 10 (a) conciliate the issue with a view to helping 11 the persons concerned to take the action 12 necessary to enable the commission to 13 certify the agreement; or 14 (b) certify the agreement subject to an order 15 identifying the non-allowable provisions it 16 includes. 17 (5) To remove any doubt, if the commission certifies 18 an agreement under subsection (4)(b)-- 19 (a) the non-allowable provisions stated in the 20 commission's order have no effect; but 21 (b) each other term of the agreement starts 22 operating when the agreement is certified. 23 (6) In this section-- 24 non-allowable provision means a provision 25 about a non-allowable matter under chapter 2A, 26 part 3, division 4, subdivisions 1 and 3. 27 Clause 35 Amendment of s 166 (Persons bound) 28 Section 166(2)(b)-- 29 omit, insert-- 30 Page 162
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 36] (b) the organisation satisfies the commission 1 that it-- 2 (i) is a relevant employee organisation; 3 and 4 (ii) has at least 1 member whose 5 employment will be subject to the 6 agreement and who asked the 7 organisation to give the notice. 8 Clause 36 Amendment of s 168 (Extending a certified agreement) 9 Section 168(2)(b), `3 years'-- 10 omit, insert-- 11 4 years 12 Clause 37 Amendment of s 176 (Requirements for other industrial 13 action by an employee organisation or employees) 14 (1) Section 176-- 15 insert-- 16 (3A) Subsection (3) applies subject to section 176A. 17 (2) Section 176(4), `, within the meaning of section 147,'-- 18 omit. 19 Clause 38 Insertion of new s 176A 20 After section 176-- 21 insert-- 22 176A Claims including non-allowable content 23 (1) Industrial action is not authorised by a protected 24 action ballot if-- 25 (a) a protected action ballot order has been 26 made by the commission in relation to the 27 proposed action; but 28 Page 163
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 39] (b) since the order was made, the current claims 1 have been added to, or varied, to include a 2 claim relating to non-allowable content. 3 (2) In this section-- 4 current claims means the claims in support of 5 which it is proposed the industrial action will be 6 organised or engaged in. 7 non-allowable content means non-allowable 8 content under chapter 2A, part 3, division 4, 9 subdivisions 1 and 3. 10 Clause 39 Amendment of s 177A (Provision about notice of 11 industrial action) 12 Section 177A(4)-- 13 omit. 14 Clause 40 Amendment of s 181E (Conciliation of matter during 15 post-industrial action negotiation period) 16 Section 181E(2), `section 148'-- 17 omit, insert-- 18 division 1, subdivision 2 19 Clause 41 Amendment of s 181F (Determination of matter by 20 commission after post-industrial action negotiation 21 period) 22 (1) Section 181F(3)-- 23 omit, insert-- 24 (3) For subsection (2), sections 149C to 149E and 25 150A are taken to apply. 26 Note-- 27 See also section 149B(4)(b). 28 (2) Section 181F(4), `section 149'-- 29 Page 164
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 42] omit, insert-- 1 division 1, subdivision 3 2 Clause 42 Insertion of new ch 6A 3 After section 187-- 4 insert-- 5 Chapter 6A Arrangements for 6 high-income senior 7 employees 8 Part 1 Preliminary 9 188 Definitions for ch 6A 10 In this chapter-- 11 employee includes-- 12 (a) a person who proposes to become an 13 employee; and 14 (b) a person whom another person proposes to 15 engage as an employee. 16 excluded provisions see section 194(2). 17 high-income guarantee contract see section 18 193. 19 high-income position see section 190. 20 high-income senior employee see section 189. 21 high-income threshold see section 191. 22 industrial instrument see the Public Service Act 23 2008, schedule 4. 24 remuneration, of an employee, see section 192. 25 Page 165
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 42] 189 Who is a high-income senior employee 1 A high-income senior employee is a person engaged 2 as an employee in a high-income position. 3 190 What is a high-income position 4 A high-income position is a position or class of 5 position under which the remuneration of an employee 6 engaged in the position, or a position in the class, is 7 more than the high-income threshold and the position 8 or class of position-- 9 (a) is prescribed under a regulation as a 10 high-income position; or 11 (b) is not covered by an award; or 12 (c) is a position, or a position in the class, in 13 which a senior health service employee is 14 engaged under the Hospital and Health 15 Boards Act 2011. 16 191 What is the high-income threshold 17 The high-income threshold is-- 18 (a) $129,300; or 19 (b) if a regulation prescribes an amount greater 20 than $129,300 for this section--that 21 amount. 22 192 What is an employee's remuneration 23 (1) An employee's remuneration is-- 24 (a) the employee's annual wages; and 25 (b) annual superannuation contributions made 26 by the employer for the employee; and 27 Page 166
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 42] (c) any other amount the employee is entitled to 1 receive from the employer on an annual 2 basis; and 3 Example-- 4 an amount to be paid to the employee in lieu of 5 payment for working overtime or on a public 6 holiday 7 (d) the value of any non-cash benefit the 8 employee is entitled to receive from the 9 employer on an annual basis. 10 (2) An employee's remuneration does not include-- 11 (a) reimbursement for work-related expenses; 12 or 13 (b) superannuation contributions made by the 14 employee but facilitated or paid by the 15 employer on the employee's behalf. 16 Example-- 17 voluntary superannuation contributions made by 18 the employee 19 (3) If an employee is engaged by an employer for 20 less than a year, the employee's remuneration is 21 taken to be the remuneration the employee would 22 be entitled to receive if the employee were 23 employed by the employer for a whole year at the 24 same rate of remuneration. 25 (4) If an employee is engaged by an employer on 26 other than a full-time basis, the employee's 27 remuneration is taken to be the remuneration the 28 employee would be entitled to receive if the 29 employee were employed by the employer on a 30 full-time basis at the same rate of remuneration. 31 (5) For working out an employee's remuneration if 32 there is no full-time equivalent for the 33 employee's position, an employee working on a 34 full-time basis in the position is taken to work 38 35 hours each week. 36 Page 167
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 42] (6) In this section-- 1 non-cash benefit means-- 2 (a) property or services in any form other than 3 money; but 4 (b) does not include-- 5 (i) a motor vehicle, computer, mobile 6 phone or other electronic device used 7 only or mainly for work purposes; or 8 (ii) subsidised or free accommodation and 9 payment of any expenses relating to the 10 accommodation. 11 Example of expenses-- 12 rates, water and sewerage, electricity 13 193 What is a high-income guarantee contract 14 (1) A high-income guarantee contract is a contract 15 of service-- 16 (a) between an employer and an employee 17 whose position, the subject of the contract, 18 is a high-income position; and 19 (b) that takes effect on or after 1 December 20 2013. 21 (2) A regulation may prescribe the form of a 22 high-income guarantee contract. 23 Page 168
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 42] Part 2 High-income guarantee 1 contracts and 2 high-income positions 3 194 Effect of engagement under high-income 4 guarantee contract 5 (1) This section applies if an employee is engaged 6 under a high-income guarantee contract. 7 (2) The following provisions (the excluded 8 provisions) do not apply in relation to the 9 employee from the contract day-- 10 (a) section 73(1)(a); 11 (b) chapters 5, 5A, 6 and 7; 12 (c) sections 274A and 276. 13 (3) An industrial instrument that applied to the 14 employee immediately before the contract day 15 ceases to apply to the employee from the contract 16 day. 17 (4) If the industrial instrument is a pre-modernisation 18 industrial instrument, it can never apply to the 19 employee from the contract day. 20 (5) In this section-- 21 contract day means the beginning of the day the 22 high-income guarantee contract takes effect. 23 195 Effect of high-income position 24 (1) This section applies to an employee if-- 25 (a) either-- 26 (i) the employee is engaged by an 27 employer in a high-income position; or 28 Page 169
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 42] (ii) the position in which the employee is 1 engaged by an employer becomes a 2 high-income position; and 3 (b) the employee is not engaged by the 4 employer under a high-income guarantee 5 contract. 6 (2) The excluded provisions do not apply in relation 7 to the employee from the high-income position 8 day. 9 (3) However, subject to subsections (4) to (6), if an 10 industrial instrument applied to the employee 11 immediately before the high-income position 12 day-- 13 (a) the industrial instrument continues to apply 14 to the employee; and 15 (b) any excluded provision necessary to give 16 effect to the industrial instrument continues 17 to apply. 18 (4) The industrial instrument continues to apply to 19 the employee only until the sooner of the 20 following happens-- 21 (a) a relevant directive is made that states it 22 regulates the conditions of the employee's 23 employment to the exclusion of the 24 industrial instrument; 25 (b) the commission orders that the industrial 26 instrument no longer applies. 27 (5) If the industrial instrument is a pre-modernisation 28 industrial instrument that no longer applies under 29 subsection (4), it can never apply to the employee 30 after it ceases to apply. 31 (6) A term in the industrial instrument that requires 32 the parties to negotiate a replacement industrial 33 instrument is of no effect from the high-income 34 position day. 35 Page 170
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 42] (7) A directive under the Public Service Act 2008 1 made by the chief executive of the Public Service 2 Commission prevails over the industrial 3 instrument, unless a regulation provides 4 otherwise. 5 (8) The industrial instrument prevails over a 6 directive under the Public Service Act 2008 made 7 by the Minister administering this Act, unless the 8 directive provides otherwise. 9 (9) A health employment directive under the 10 Hospital and Health Boards Act 2011 prevails 11 over the industrial instrument, unless a regulation 12 provides otherwise. 13 (10) In this section-- 14 high-income position day means the beginning 15 of the day-- 16 (a) the employee is engaged in the high-income 17 position; or 18 (b) the position in which the employee is 19 engaged becomes a high-income position. 20 relevant directive means any of the following-- 21 (a) a directive under the Public Service Act 22 2008 made by the chief executive of the 23 Public Service Commission; 24 (b) a directive under the Public Service Act 25 2008 made by the Minister administering 26 this Act; 27 (c) a health employment directive under the 28 Hospital and Health Boards Act 2011. 29 196 Effect of position ceasing to be high-income 30 position 31 (1) This section applies if-- 32 Page 171
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 42] (a) a position or class of position was 1 prescribed under a regulation as a 2 high-income position; and 3 (b) the position or class of position is no longer 4 prescribed under a regulation as a 5 high-income position; and 6 (c) a pre-modernisation industrial instrument 7 applied to the position or class of position 8 immediately before the position or class 9 ceased to be a high-income position; and 10 (d) a modern industrial instrument applies to the 11 position or class of position after the 12 position or class ceased to be a high-income 13 position. 14 (2) The pre-modernisation industrial instrument no 15 longer applies to the position or class of position, 16 and can never apply to the position or class. 17 Part 3 Other matters for 18 high-income senior 19 employees 20 197 Offering high-income guarantee contract not 21 prohibited conduct 22 (1) This section applies to the following conduct-- 23 (a) conduct by a person to offer, or not to offer, 24 another person (a proposed employee) 25 employment under a high-income guarantee 26 contract; or 27 (b) conduct by a person to make, or leading up 28 to or forming part of the process of making, 29 a position a high-income position. 30 Page 172
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 42] (2) The conduct by the person does not constitute 1 engagement in conduct of the type mentioned in 2 section 105(2)(a), (c) or (d). 3 198 Inconsistency between awards and 4 high-income guarantee contracts 5 (1) This section applies if-- 6 (a) an employee enters into a high-income 7 guarantee contract with an employer; and 8 (b) an award is in force that otherwise would 9 have applied to the position the subject of 10 the high-income guarantee contract. 11 (2) To remove any doubt, it is declared that sections 12 135 and 140ED do not prevent the employee and 13 employer entering into the high-income 14 guarantee contract. 15 199 Private practice provision in industrial 16 instrument 17 (1) This section applies if an industrial instrument 18 applying to a medical practitioner includes a 19 private practice provision within the meaning of 20 section 691C(2). 21 (2) The operation of section 691C(1)(f) does not-- 22 (a) constitute a termination of the medical 23 practitioner's employment; or 24 (b) affect other conditions of the medical 25 practitioner's employment; or 26 (c) entitle the medical practitioner to a payment 27 of money or other compensation. 28 Page 173
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 42] 200 Medical practitioner's private practice 1 arrangements in contract of service 2 (1) This section applies if a medical practitioner's 3 contract of service contains a term (a private 4 practice term) that entitles the medical 5 practitioner to a private practice arrangement or 6 requires the employer to offer, negotiate, 7 renegotiate, provide or continue to provide a 8 private practice arrangement. 9 (2) If the contract of service is in force immediately 10 before the end of 30 June 2014, the private 11 practice term of the contract is of no effect from 12 the beginning of 1 July 2014. 13 (3) The operation of subsection (2) does not-- 14 (a) constitute a termination of the medical 15 practitioner's employment; or 16 (b) affect other conditions of the medical 17 practitioner's employment; or 18 (c) entitle the medical practitioner to a payment 19 of money or other compensation. 20 (4) In this section-- 21 contract includes an arrangement or 22 understanding. 23 private practice arrangement-- 24 (a) means an arrangement about the rights of a 25 medical practitioner to engage in private 26 practice and receive a supplementary benefit 27 allowance relating to the engagement; and 28 (b) includes an arrangement referred to as 29 option A, B, E, P or R, offered under clause 30 4.11 of the Medical Officers' (Queensland 31 Health) Certified Agreement (No. 3) 2012 32 and in force immediately before the end of 33 30 June 2014. 34 Page 174
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 43] 201 Medical practitioner's refusal to accept 1 high-income guarantee contract 2 (1) This section applies if a medical practitioner 3 refuses an offer by an employer of employment 4 under a high-income guarantee contract that-- 5 (a) is made under a health employment 6 directive under the Hospital and Health 7 Boards Act 2011 that regulates the 8 conditions on which a medical practitioner 9 is to be offered employment; and 10 (b) recognises the continuous service of the 11 medical practitioner. 12 (2) The refusal to accept the high-income guarantee 13 contract does not entitle the medical practitioner 14 to any redundancy payment, severance allowance 15 or other separation benefits (however described) 16 in relation to the termination of the medical 17 practitioner's employment. 18 (3) In this section-- 19 continuous service see section 18(6). 20 Clause 43 Amendment of s 242D (Appointment of members on 21 full-time or part-time basis) 22 (1) Section 242D(1)(a)-- 23 omit. 24 (2) Section 242D(1)(b) and (c)-- 25 renumber as section 242D(1)(a) and (b). 26 Clause 44 Amendment of s 242E (Functions of the president) 27 Section 242E(2), from `include'-- 28 omit, insert-- 29 include-- 30 Page 175
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 45] (a) managing the administration of the business 1 of the court and the registry under section 2 242G; and 3 (b) preparing, and giving the Minister, the 4 annual report under section 252. 5 Clause 45 Amendment of s 242F (Functions of the vice-president) 6 Section 242F(2), `, other than the function mentioned in section 7 242G'-- 8 omit. 9 Clause 46 Amendment of s 242G (Administration of the court) 10 Section 242G, `vice-president'-- 11 omit, insert-- 12 president 13 Clause 47 Amendment of s 243 (Appointment of president) 14 (1) Section 243(1), from `may appoint'-- 15 omit, insert-- 16 may, by gazette notice, appoint a person who is a 17 Supreme Court judge as president of the court. 18 (2) Section 243(2) to (8)-- 19 omit, insert-- 20 (2) The person is appointed on a full-time basis 21 unless the gazette notice appointing the president 22 states the appointment is to be on a part-time 23 basis. 24 Clause 48 Amendment of s 244 (When a Supreme Court judge is 25 appointed as president) 26 (1) Section 244, heading-- 27 Page 176
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 49] omit, insert-- 1 244 Effect of appointment as president 2 (2) Section 244(2) to (5)-- 3 renumber as section 244(3) to (6). 4 (3) Section 244-- 5 insert-- 6 (2) The president may perform the functions of 7 office of both president and a Supreme Court 8 judge. 9 Clause 49 Amendment of s 245 (When president holds office) 10 (1) Section 245(1)(a) and (b)-- 11 omit, insert-- 12 (a) the term stated in the gazette notice 13 appointing the president ends; or 14 (b) the president resigns by signed notice given 15 to the Governor; or 16 (c) the president stops being a Supreme Court 17 judge. 18 (2) Section 245(2)-- 19 omit. 20 (3) Section 245(3), `because of subsection (1)(a) or (b)(i) or 21 (ii)'-- 22 omit. 23 (4) Section 245(4), `subsection (3)'-- 24 omit, insert-- 25 subsection (2) 26 (5) Section 245(5), `(i)'-- 27 omit. 28 (6) Section 245(3) to (5)-- 29 Page 177
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 50] renumber as section 245(2) to (4). 1 Clause 50 Amendment of s 246 (Acting president) 2 (1) Section 246(2), from `appoint'-- 3 omit, insert-- 4 appoint a person who is a Supreme Court judge to act 5 as the president. 6 (2) Section 246(6) to (9)-- 7 renumber as section 246(7) to (10). 8 (3) Section 246-- 9 insert-- 10 (6) The acting president may perform the functions 11 of office of both president and a Supreme Court 12 judge. 13 (4) Section 246(10), as renumbered, `(8)'-- 14 omit, insert-- 15 (9) 16 Clause 51 Amendment of s 248 (Court's jurisdiction) 17 Section 248(1)(c)-- 18 omit, insert-- 19 (c) hear and decide an offence against this Act, 20 unless the offence is one for which this Act 21 makes other provision; and 22 Clause 52 Amendment of s 256 (Composition) 23 Section 256(1) and (2)-- 24 omit, insert-- 25 (1) The commission consists of the following 26 members-- 27 Page 178
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 53] (a) the president; and 1 (b) the following persons (each a 2 commissioner)-- 3 (i) a person holding office as the vice 4 president; 5 (ii) a person holding office as a deputy 6 president; 7 (iii) a person holding office as an industrial 8 commissioner. 9 (2) The full bench of the commission (the full 10 bench) is constituted by-- 11 (a) for chapter 12, part 16 or for the hearing of 12 an appeal--the president and 2 or more 13 other members; or 14 (b) otherwise--3 or more members. 15 Clause 53 Amendment of s 258A (Appointment of other deputy 16 presidents of the commission) 17 (1) Section 258A(3) to (7)-- 18 renumber as section 258A(5) to (9). 19 (2) Section 258A-- 20 insert-- 21 (3) The person is taken to be appointed on tenure 22 unless the appointment is stated, in the 23 instrument of appointment, to be for a fixed term. 24 (4) A person appointed for a fixed term is appointed 25 for the term, of at least 1 year, stated in the 26 instrument of appointment. 27 Clause 54 Amendment of s 259 (Industrial commissioners) 28 (1) Section 259(3) to (7)-- 29 renumber as section 259(5) to (9). 30 Page 179
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 55] (2) Section 259-- 1 insert-- 2 (3) The person is taken to be appointed on tenure 3 unless the appointment is stated, in the 4 instrument of appointment, to be for a fixed term. 5 (4) A person appointed for a fixed term is appointed 6 for the term, of at least 1 year, stated in the 7 instrument of appointment. 8 Clause 55 Amendment of s 260 (When deputy president or 9 industrial commissioner holds office) 10 (1) Section 260(1)(c) to (e)-- 11 renumber as section 260(1)(d) to (f). 12 (2) Section 260(1)-- 13 insert-- 14 (c) if the relevant commissioner is appointed for 15 a fixed term--the term stated in the 16 commissioner's instrument of appointment 17 ends; or 18 Clause 56 Amendment of s 273 (Commission's functions) 19 Section 273(1)(a), from `that'-- 20 omit, insert-- 21 that, together with the Queensland Employment 22 Standards, provide for a fair minimum safety net of 23 enforceable conditions of employment for employees; 24 Clause 57 Amendment of s 287 (General rulings) 25 (1) Section 287(1)(a), `an industrial instrument'-- 26 omit, insert-- 27 a pre-modernisation industrial instrument 28 Page 180
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 58] (2) Section 287(1)(b)-- 1 omit. 2 Clause 58 Omission of s 288 (Statement of policy) 3 Section 288-- 4 omit. 5 Clause 59 Amendment of s 292 (Magistrate's jurisdiction) 6 Section 292(1)(b)(i), from `for which'-- 7 omit, insert-- 8 , unless the offence is one for which this Act makes 9 other provision; 10 Clause 60 Amendment of s 319 (Representation of parties) 11 (1) Section 319(2)(b)(ii), `section 149'-- 12 omit, insert-- 13 chapter 6, division 1, subdivision 3 14 (2) Section 319-- 15 insert-- 16 (3A) For subsection (2)(b)(ii), a reference to the 17 commission includes the commission constituted 18 by the full bench. 19 Clause 61 Amendment of s 320 (Basis of decisions of the 20 commission and magistrates) 21 (1) Section 320(5), `section 149'-- 22 omit, insert-- 23 chapter 6, division 1, subdivision 3 24 (2) Section 320(5), note-- 25 Page 181
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 62] omit, insert-- 1 Note-- 2 For a determination made under chapter 6, division 1, 3 subdivision 3, section 149D(1)(b)(iv) and (2) provide 4 for the matters the full bench must consider in relation 5 to the public interest. 6 Clause 62 Amendment of s 341 (Appeal from commission, 7 magistrate or registrar) 8 Section 341(1), `under section 149'-- 9 omit, insert-- 10 under chapter 6, division 1, subdivision 3 11 Clause 63 Amendment of s 342 (Appeal from commission, 12 magistrate or registrar) 13 Section 342(1), `under section 149'-- 14 omit, insert-- 15 under chapter 6, division 1, subdivision 3 16 Clause 64 Amendment of s 391 (Wages etc. to be paid without 17 deduction) 18 Section 391-- 19 insert-- 20 (6) This section is subject to section 391A. 21 Clause 65 Insertion of new s 391A 22 After section 391-- 23 insert-- 24 Page 182
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 66] 391A Deduction for industrial association 1 membership prohibited 2 (1) An employer must not deduct from an 3 employee's wages an amount for paying the 4 employee's membership subscription for an 5 industrial association. 6 Maximum penalty--16 penalty units. 7 (2) For subsection (1), it does not matter whether the 8 employee has authorised the amount to be paid to 9 the industrial association or to another person. 10 (3) A contract or other instrument is void to the 11 extent it provides for a deduction to be made 12 from wages in contravention of this section. 13 (4) In this section-- 14 industrial association see section 102. 15 membership subscription, for an industrial 16 association, means a subscription, due or other 17 amount payable under the association's rules for 18 membership, or renewal of membership, of the 19 association. 20 Clause 66 Amendment of s 459 (Powers of court) 21 Section 459, `court'-- 22 omit, insert-- 23 commission 24 Clause 67 Amendment of s 462 (Interim orders) 25 Section 462, `court'-- 26 omit, insert-- 27 commission 28 Page 183
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 68] Clause 68 Amendment of s 463 (Hearing application) 1 Section 463, `court'-- 2 omit, insert-- 3 commission 4 Clause 69 Amendment of s 464 (Effect of declaration) 5 Section 464, `court'-- 6 omit, insert-- 7 commission 8 Clause 70 Amendment of s 465 (Direction must be complied with) 9 Section 465, `court'-- 10 omit, insert-- 11 commission 12 Clause 71 Amendment of s 535 (Court may decide) 13 (1) Section 535, heading, `Court'-- 14 omit, insert-- 15 Commission 16 (2) Section 535, `court'-- 17 omit, insert-- 18 commission 19 Clause 72 Amendment of s 536 (Deciding application) 20 Section 536, `court'-- 21 omit, insert-- 22 commission 23 Page 184
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 73] Clause 73 Amendment of s 691B (Industrial instruments to which 1 this part applies) 2 Section 691B-- 3 insert-- 4 (1A) However, this part does not apply to a modern 5 industrial instrument. 6 Clause 74 Amendment of s 691C (Particular provisions are of no 7 effect) 8 (1) Section 691C(1)-- 9 insert-- 10 (f) a private practice provision; 11 (g) a resource allocation provision. 12 (2) Section 691C(2)-- 13 insert-- 14 private practice provision means a provision 15 about a private practice arrangement for a 16 medical practitioner. 17 Example-- 18 Clause 4.11 of the Medical Officers' (Queensland 19 Health) Certified Agreement (No. 3) 2012 is an example 20 of a private practice provision. 21 resource allocation provision means a provision 22 that requires an employer to allocate funding to a 23 program or scheme not directly related to 24 entitlements of, or benefits for, the employer's 25 employees. 26 Example-- 27 Clause 2.9.7 of the Queensland Health Building, 28 Engineering & Maintenance Services Certified 29 Agreement (No. 5) 2011 is an example of a resource 30 allocation provision. 31 Page 185
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] Clause 75 Insertion of new ch 20, pt 18 1 Chapter 20-- 2 insert-- 3 Part 18 Transitional provisions 4 for Industrial Relations 5 (Fair Work Act 6 Harmonisation No. 2) 7 and Other Legislation 8 Amendment Act 2013 9 Division 1 Preliminary 10 807 Definitions for pt 18 11 In this part-- 12 amended Act means this Act as amended by the 13 amending Act. 14 amending Act means the Industrial Relations 15 (Fair Work Act Harmonisation No. 2) and Other 16 Legislation Amendment Act 2013. 17 application day, in relation to an employee to 18 whom division 2 applies, means the day on which 19 chapter 2A starts applying to the employee. 20 commencement means the day on which the 21 provision in which the term is used commences. 22 introduction day means the day of introduction 23 into the Legislative Assembly of the Bill for the 24 amending Act. 25 new, for a provision of this Act, means the 26 provision as in force on or after the 27 commencement. 28 pre-amended Act means this Act as in force 29 before the commencement. 30 Page 186
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] Division 2 Provisions about 1 conditions of employment 2 Subdivision 1 General provisions 3 808 Application of div 2 4 This division applies to an employee if chapter 2A 5 starts applying to the employee in relation to particular 6 employment. 7 809 Leave accrued or approved before application 8 day 9 (1) The employee retains all leave entitlements 10 accrued before the application day under chapter 11 2 or a pre-modernisation industrial instrument. 12 (2) Subsection (3) applies if, before the application 13 day, the employer approved leave relating to a 14 period on or after the application day. 15 (3) The leave is taken to have been approved for the 16 purposes of the Queensland Employment 17 Standards or a modern industrial instrument 18 applicable to the employee. 19 810 Working out leave entitlements 20 (1) This section applies if-- 21 (a) a provision of chapter 2A confers an 22 entitlement on the employee in relation to a 23 particular type of leave; and 24 (b) under the provision the entitlement is 25 worked out-- 26 (i) for a completed year of employment; 27 or 28 (ii) in relation to a year. 29 Page 187
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] (2) For working out the employee's entitlement to 1 the leave during the transitional year, regard must 2 be had to the leave of that type taken during the 3 year under chapter 2 or a pre-modernisation 4 industrial instrument. 5 (3) Also, for working out the employee's entitlement 6 to leave, regard must be had to the employee's 7 period of employment with the employer before 8 the application day. 9 (4) In this section-- 10 transitional year means the year in which the 11 application day falls. 12 811 Notices etc. given before application day 13 (1) This section applies if-- 14 (a) before the application day, the employee or 15 his or her employer gives a notice or 16 document in compliance with a 17 pre-modernisation notice requirement; and 18 (b) the notice or document is relevant to a 19 matter or circumstance occurring on or after 20 the application day; and 21 (c) there is an modern requirement that has 22 substantially the same effect as the 23 pre-modernisation requirement. 24 (2) If the context permits, the employee or employer 25 is taken to have complied with the modern 26 requirement. 27 (3) In this section-- 28 modern requirement means a requirement under 29 the Queensland Employment Standards or a 30 modern industrial instrument applicable to the 31 employee. 32 Page 188
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] pre-modernisation notice requirement means a 1 requirement, under chapter 2 or a 2 pre-modernisation industrial instrument, to give a 3 notice or other document in relation to a matter. 4 Example of a pre-modernisation notice requirement-- 5 a requirement to give a notice or document about 6 parental leave under section 19, 20, 21 or 21A 7 Subdivision 2 Annual leave 8 812 Order about payment for commission 9 (1) This section applies if, before the application day, 10 the commission made an order in relation to the 11 employee on an application made under section 12 13(4). 13 (2) On and from the application day, the order 14 continues to have effect as if it had been made 15 under section 71EE(4). 16 (3) Subsection (2) does not apply if a modern 17 industrial instrument provides that the employee 18 is not entitled to receive an amount representing 19 commission in the employee's annual leave 20 payment. 21 813 Leave loading payments made before 22 application day 23 An amount, however described, paid to the employee 24 before the application day in addition to the 25 employee's annual leave entitlement under chapter 2, 26 part 1, division 3 is taken to be an additional leave 27 amount for section 71EF(2). 28 Page 189
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] Subdivision 3 Parental leave 1 814 Parental leave started under ch 2 2 (1) This section applies if, on the application day, the 3 employee is on ch 2 parental leave. 4 (2) On and from the application day, the employee is 5 taken to be on the corresponding ch 2A parental 6 leave. 7 (3) A reference in chapter 2A to a type of parental 8 leave includes, if the context permits, a reference 9 to the corresponding type of ch 2 parental leave. 10 (4) Section 71GM does not apply to the employee in 11 relation to the parental leave. 12 (5) The employee may apply under chapter 2A, part 13 2, division 5, subdivision 4 even if the person 14 started parental leave before the commencement 15 of the subdivision. 16 (6) On and from the application day-- 17 (a) an extension of the ch 2 parental leave under 18 section 29(1) is taken to be an extension 19 under section 71GZ(1); and 20 (b) if an application was made under section 21 29A or 29B, but not decided by the 22 employer, before the application day--the 23 application is taken to have been made 24 under chapter 2A, part 2, division 5, 25 subdivision 4; and 26 (c) a notice given to the employee under section 27 31(2) is taken to have been given to the 28 employee under section 71GZB(2); and 29 (d) if the employee was transferred to a safe job 30 under section 36 before starting maternity 31 leave--for section 71GZF, the employee is 32 Page 190
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] taken to have been transferred to a safe job 1 under section 71GZG. 2 (7) In this section-- 3 ch 2 parental leave means parental leave under 4 chapter 2 or a pre-modernisation industrial 5 instrument. 6 corresponding ch 2A parental leave, in relation 7 to ch 2 parental leave, means-- 8 (a) for ch 2 parental leave that is maternity 9 leave, adoption leave or surrogacy 10 leave--leave of the same name; or 11 (b) for ch 2 parental leave that is long parental 12 leave other than maternity leave--long 13 birth-related leave; or 14 (c) for ch 2 parental leave that is short parental 15 leave--short birth-related leave. 16 815 Application of obligation to advise about 17 significant change 18 Section 71GQ applies whether or not the decision was 19 made before the commencement of the section if the 20 decision had not been implemented at the 21 commencement. 22 816 Spouses not to take long parental leave at 23 same time 24 A reference in section 71GV to the employee's spouse 25 being on parental leave includes a reference to the 26 employee's spouse being on parental leave under 27 chapter 2 or a pre-modernisation industrial instrument. 28 Page 191
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] Subdivision 4 Long service leave 1 817 Agreement or notice under s 45 2 (1) This section applies if, before the application 3 day-- 4 (a) the employer and employee made an 5 agreement under section 45(2) in relation to 6 long service leave all or part of which was to 7 be taken on or after the application day; or 8 (b) the employer gave the employee a notice 9 under section 45(3) relating to long service 10 leave all or part of which was required to be 11 taken on or after the application day. 12 (2) The agreement or notice is taken to have been 13 made or given under section 71HD. 14 818 Order about payment for commission 15 (1) This section applies if, before the application day, 16 the commission made an order in relation to the 17 employee on an application made under section 18 46(7). 19 (2) On and from the application day, the order 20 continues to have effect as if it had been made 21 under section 71HF(3). 22 (3) Subsection (2) does not apply if a modern 23 industrial instrument provides that the employee 24 is not entitled to receive an amount representing 25 commission in the employee's long service leave 26 payment. 27 819 Decision by commission about piecework 28 rates 29 (1) This section applies if the employee is paid 30 piecework rates and, before the application day, 31 Page 192
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] the commission decided under section 46(8) the 1 rate the employee should be paid for long service 2 leave. 3 (2) On and from the application day, the decision 4 continues to have effect as if it had been made 5 under section 71HG. 6 820 Existing decisions or agreements about 7 entitlement to, payment for, or taking of, long 8 service leave 9 (1) This section applies to any of the following in 10 effect immediately before the application day-- 11 (a) an agreement made by an employee and 12 employer, or a decision made by the 13 commission, under section 46(9), (10) or 14 (11); 15 (b) an agreement made under section 48; 16 (c) a decision made by the commission under 17 section 52; 18 (d) an agreement made by an employee and 19 employer, or an order made by the 20 commission, under section 53(2) or (3). 21 (2) On and from the application day, the agreement, 22 decision or ruling continues to have effect as if it 23 had been made under the following provision of 24 chapter 2A-- 25 (a) if subsection (1)(a) applies--section 71HH; 26 (b) if subsection (1)(b) applies--section 71HK; 27 (c) if subsection (1)(c) applies--section 71HP; 28 (d) if subsection (1)(d) applies--section 71HQ. 29 (3) Subsection (2) applies subject to a provision in a 30 modern industrial instrument about the payment 31 for, or taking of, the employee's long service 32 leave. 33 Page 193
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] Division 3 Provisions about awards 1 Subdivision 1 Provisions for 2 pre-modernisation awards 3 821 Application of new ch 5, pt 2 4 (1) New chapter 5, part 2 is taken to have applied on 5 and from the introduction day. 6 (2) An award, or an amendment of an award, made 7 under section 125 on or after the introduction day 8 and before the commencement is of no effect. 9 (3) An application made on or after the introduction 10 day under section 125(2) for the making or 11 amendment of an award is, on the 12 commencement, taken to have been withdrawn. 13 822 Existing matters being heard under s 125 or 14 130 15 (1) This section applies to either of the following 16 matters being heard by the commission 17 immediately before the commencement-- 18 (a) a matter relating to the making or 19 amendment of an award under section 125; 20 (b) a review of an award under section 130. 21 (2) The commission must-- 22 (a) on commencement, stop dealing with the 23 matter under chapter 5, part 2; and 24 (b) if the commission later receives an award 25 modernisation request under chapter 5, part 26 8 to which the matter is relevant--consider 27 the matter as part of the award 28 modernisation process. 29 Page 194
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] 823 Continuation of exemptions under ch 5, pt 3 1 (1) This section applies if an exemption given under 2 chapter 5, part 3 of the pre-amended Act was in 3 effect immediately before the commencement. 4 (2) The employer, employee, class of employer or 5 employee, or person who was the subject of the 6 exemption continues, on and after the 7 commencement, not to be bound by the award. 8 Subdivision 2 Provisions for modern 9 awards 10 824 Modern award does not apply to employee 11 covered by pre-modernisation certified 12 agreement 13 (1) A modern award does not apply to an employee, 14 or to an employer or employee organisation in 15 relation to the employee, at any time when the 16 employee is covered by a pre-modernisation 17 certified agreement. 18 (2) If a modern award starts applying to an employee 19 because the employee stops being covered by a 20 pre-modernisation certified agreement, the award 21 takes effect in relation to the employee at the start 22 of the employee's first pay period starting on or 23 after the employee stops being covered by the 24 pre-modernisation certified agreement. 25 (3) Subsection (2) applies despite section 140EB. 26 (4) In this section-- 27 pre-modernisation certified agreement means a 28 certified agreement certified under chapter 6 as in 29 force before its amendment by the amending Act. 30 Page 195
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] Division 4 Provisions about certified 1 agreements 2 825 Retrospective operation 3 This division is taken to have had effect on and from 4 the introduction day. 5 826 Certified agreements and determinations 6 continue 7 (1) A certified agreement or determination, in force 8 immediately before the introduction day, 9 continues in force as a certified agreement or 10 determination under this Act. 11 (2) In this section-- 12 determination means an arbitration 13 determination under chapter 6. 14 827 Continuing agreements and determinations 15 (1) A certified agreement is a continuing agreement 16 for this division if its nominal expiry date was a 17 day before the introduction day. 18 (2) Also, a certified agreement becomes a 19 continuing agreement for this division if-- 20 (a) the agreement reaches its nominal expiry 21 date; and 22 (b) the relevant pre-modernisation award for the 23 agreement (or, if there is more than one, 24 each of the relevant pre-modernisation 25 awards for the agreement) has not been 26 modernised under chapter 5 by that time. 27 (3) However, subsections (1) and (2) do not apply to 28 a certified agreement to which section 831 or 832 29 applies. 30 Page 196
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] (4) If, before the introduction day, a certified 1 agreement reached its nominal expiry date but the 2 parties to the agreement administratively agreed 3 to extend the nominal expiry date to a later day 4 that is after the introduction day, then, for this 5 section, the nominal expiry date is taken to be the 6 later day. 7 (5) In this section-- 8 certified agreement includes a determination. 9 pre-modernisation award see section 140B. 10 828 Extension of nominal expiry date by up to 1 11 year 12 (1) On the introduction day, the nominal expiry date 13 of a continuing agreement mentioned in section 14 827(1) becomes-- 15 (a) the day that is 1 year after the introduction 16 day; or 17 (b) if an earlier day is prescribed for the 18 agreement under a regulation, the prescribed 19 day. 20 (2) On the day that a certified agreement becomes a 21 continuing agreement under section 827(2), its 22 nominal expiry date becomes-- 23 (a) the day that is 1 year after that day; or 24 (b) if an earlier day is prescribed for the 25 agreement under a regulation, the prescribed 26 day. 27 829 Continuing agreements can not be dealt with 28 (1) The parties to a continuing agreement can not-- 29 (a) apply under section 168 to extend the 30 agreement; or 31 Page 197
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] (b) apply under section 169 or 170 to amend the 1 agreement; or 2 (c) terminate the agreement. 3 (2) Any of the following things done, or purportedly 4 done, on or after the introduction day is, and 5 always was, of no effect-- 6 (a) a thing that, under subsection (1), can not be 7 done; 8 (b) the making of an order by the commission 9 on an application that, under subsection (1), 10 can not be made. 11 830 Regulation may prescribe a wage increase 12 (1) A regulation may provide that, from a stated day, 13 a stated increase in wages applies to employees 14 covered by a continuing agreement. 15 (2) An increase mentioned in subsection (1) does not 16 stop applying to the employees only because the 17 continuing agreement reaches its nominal expiry 18 date under section 828. 19 831 Existing arbitrations 20 (1) This section applies if, before the introduction 21 day-- 22 (a) the commission's jurisdiction to determine a 23 matter by arbitration was engaged under 24 section 149 of the pre-amended Act; and 25 (b) the commission had not made a 26 determination for the matter under that 27 section. 28 (2) For subsection (1), it does not matter whether or 29 not the commission has starting hearing the 30 matter. 31 Page 198
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] (3) The commission must determine the matter by 1 arbitration under section 149 of the pre-amended 2 Act. 3 (4) However, if the employer and 1 or more parties 4 reach agreement on the terms of a proposed 5 certified agreement to be made between them 6 before the commission makes the arbitration 7 determination for the matter-- 8 (a) the parties must take the steps under chapter 9 6 of the pre-amended Act necessary to have 10 the agreement certified; and 11 (b) if an application is made under section 156 12 of the pre-amended Act--the commission 13 must deal with the application under that 14 section; and 15 (c) the arbitration ends when the agreement is 16 certified. 17 832 Existing applications for certification 18 (1) This section applies if-- 19 (a) before the introduction day, an application 20 had been made to the commission under 21 section 153 of the pre-amended Act to 22 certify an agreement; and 23 (b) immediately before the introduction day, the 24 commission had not-- 25 (i) certified the agreement under section 26 156 of the pre-amended Act; or 27 (ii) refused to certify the agreement under 28 section 157 of the pre-amended Act; or 29 (iii) otherwise finally dealt with the 30 application. 31 Page 199
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 75] (2) The commission must decide the application 1 under the provisions of chapter 6, division 2 of 2 the pre-amended Act. 3 Division 5 Other provisions 4 833 Wage deductions for industrial association 5 membership 6 (1) This section applies if-- 7 (a) an authority given by an employee before 8 the commencement provides for a deduction 9 to be made from the employee's wages in 10 contravention of section 391A(1); and 11 (b) before 1 July 2014 an employer makes a 12 deduction from the employee's wages under 13 the authority. 14 (2) The employer does not commit an offence under 15 section 391A. 16 834 Continued protection from liability for 17 ombudsman and official of QWRO 18 Section 702 applies from the commencement as if 19 section 702(3), definition official included a reference 20 to the ombudsman and an officer of QWRO. 21 835 Transitional regulation-making power 22 (1) A regulation (a transitional regulation) may 23 make provision of a saving or transitional nature 24 for which-- 25 (a) it is necessary to make provision to allow or 26 facilitate the doing of anything to achieve 27 the transition from the operation of the 28 Page 200
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 76] pre-amended Act to the operation of the 1 amended Act; and 2 (b) this Act does not make provision or 3 sufficient provision. 4 (2) Without limiting subsection (1), a transitional 5 regulation may continue the operation of a 6 repealed provision. 7 (3) A transitional regulation may have retrospective 8 operation to a day that is not earlier than the day 9 of the commencement. 10 (4) A transitional regulation must declare it is a 11 transitional regulation. 12 (5) This section and any transitional regulation 13 expire 2 years after the day of commencement. 14 Clause 76 Amendment of sch 2 (Appointments) 15 (1) Schedule 2, section 3(1)(b)-- 16 insert-- 17 (iii) the member is appointed for a fixed 18 term. 19 (2) Schedule 2, section 4(3)(a), `or a member holding 20 appointment as ombudsman'-- 21 omit. 22 (3) Schedule 2, section 4A(1), `president, the vice president or a 23 member of the commission holding appointment as 24 ombudsman'-- 25 omit, insert-- 26 president or the vice-president 27 Clause 77 Amendment of sch 3 (Minimum redundancy payment) 28 Schedule 3, heading, after `payment'-- 29 Page 201
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 78] insert-- 1 under ch 3, pt 4, div 1AA 2 Clause 78 Amendment of sch 4 (Provisions for protected action 3 ballots) 4 (1) Schedule 4, section 4-- 5 insert-- 6 (3) A reference in subsection (2) to an existing 7 certified agreement includes a determination 8 relating to an existing certified agreement. 9 (2) Schedule 4, section 8(1)-- 10 omit, insert-- 11 (d) the applicant satisfies the commission that 12 the claims in support of which the proposed 13 action will be organised or engaged in do 14 not include any claim relating to a 15 non-allowable content under chapter 2A, 16 part 3, division 4, subdivisions 1 and 3. 17 (3) Schedule 4, part 2-- 18 insert-- 19 12A Revocation of protected action ballot order on 20 basis of claim relating to non-allowable 21 content 22 (1) An applicant for a protected action ballot order or 23 a relevant employer for the order may apply to 24 the commission for a declaration as to whether 25 the current claims include a claim relating to 26 non-allowable content. 27 Note-- 28 See section 176A for a consequence of the current 29 claims including a claim relating to non-allowable 30 content. 31 (2) If the commission declares that the current claims 32 include a claim relating to non-allowable content, 33 Page 202
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 79] the commission must revoke the protected action 1 ballot order. 2 (3) In this section-- 3 current claims see section 176A(2). 4 non-allowable content see section 176A(2). 5 relevant employer means an employer of 6 employees who were balloted in relation to the 7 industrial action. 8 Clause 79 Amendment of sch 4A (Application of this Act to 9 prescribed Hospital and Health Services and their 10 employees) 11 (1) Schedule 4A, part 3, section 6-- 12 omit. 13 (2) Schedule 4A, part 4, section 13(2), `148(5)'-- 14 omit, insert-- 15 148A(3) 16 Clause 80 Amendment of sch 5 (Dictionary) 17 (1) Schedule 5, definitions adoption leave, certified agreement, 18 child, employee, equal remuneration for work of equal or 19 comparable value, intended parent, long adoption leave, long 20 parental leave, long surrogacy leave, long term casual 21 employee, maternity leave, negotiating party, owner, 22 non-judicial appointee, parental leave entitlement, period 23 between seasons, relevant industrial instrument, 24 remuneration, season, service, short adoption leave, short 25 parental leave, short surrogacy leave, short term casual 26 employee, surrogacy arrangement and surrogacy leave-- 27 omit. 28 (2) Schedule 5-- 29 insert-- 30 Page 203
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 80] adoption leave-- 1 (a) for chapter 2, part 2, see section 17; or 2 (b) for chapter 2A, part 2, division 5, see section 3 71GB. 4 applies to, in relation to a modern award, see 5 section 140E. 6 arbitration period, for chapter 6, see section 7 140K. 8 award modernisation process see section 9 140BB(1). 10 award modernisation request, for chapter 5, part 11 8, see section 140C(1). 12 binds, in relation to an industrial instrument, 13 includes applies to or covers. 14 birth-related leave, for chapter 2A, part 2, 15 division 5, see section 71GB. 16 carer's leave, for chapter 2A, see sections 17 71FC(2), 71FD(2) and 71FE(2). 18 casual employee, for chapter 2A, part 2, division 19 6, subdivision 4, see section 71HI. 20 certified agreement see section 141(1). 21 child-- 22 (a) for chapter 2, part 2, see section 17; or 23 (b) for chapter 2A, part 2, division 5, see section 24 71GB. 25 conciliating member, for chapter 6, see section 26 140K. 27 conciliation report, for chapter 6, see section 28 140K. 29 conciliation period, for chapter 6, see section 30 140K. 31 Page 204
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 80] employee-- 1 (a) generally, see section 5; and 2 (b) for chapter 6A, see section 188. 3 employee with a disability, for chapter 5A, see 4 section 140DA. 5 equal remuneration for work of equal or 6 comparable value-- 7 (a) for chapter 2, part 5, see section 59; or 8 (b) for chapter 2A, part 4, see section 71P. 9 excluded provisions, for chapter 6A, see section 10 194(2). 11 expected placement date see section 71GJ(2)(a). 12 expected residence date see section 71GK(2)(a). 13 high-income guarantee contract, for chapter 6A, 14 see section 188. 15 high-income position, for chapter 6A, see 16 section 188. 17 high-income senior employee, for chapter 6A, 18 see section 188. 19 high-income threshold, for chapter 6A, see 20 section 188. 21 industrial agreement, for chapter 6A, see section 22 188. 23 intended parent-- 24 (a) for chapter 2, part 2, see section 17; or 25 (b) for chapter 2A, part 2, division 5, see section 26 71GB. 27 long adoption leave-- 28 (a) for chapter 2, part 2, see section 17; or 29 (b) for chapter 2A, part 2, division 5, see section 30 71GB. 31 Page 205
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 80] long birth-related leave, for chapter 2A, part 2, 1 division 5, see section 71GB. 2 long parental leave-- 3 (a) for chapter 2, part 2, see section 17; or 4 (b) for chapter 2A, part 2, division 5, see section 5 71GB. 6 long surrogacy leave-- 7 (a) for chapter 2, part 2, see section 17; or 8 (b) for chapter 2A, part 2, division 5, see section 9 71GB. 10 long term casual employee-- 11 (a) for chapter 2, part 2, see section 15A; or 12 (b) for chapter 2A, see section 71BB. 13 maternity leave-- 14 (a) for chapter 2, part 2, see section 17; or 15 (b) for chapter 2A, part 2, division 5, see section 16 71GB. 17 modern award means an award made under 18 chapter 5A. 19 modern awards objectives, for chapter 5A, see 20 section 140D. 21 modern industrial instrument-- 22 (a) generally, see section 71BA; or 23 (b) for chapter 2A, part 3, see section 71L. 24 modernising Act for chapter 2A, see section 25 71BA. 26 multi-employer agreement, for chapter 6, see 27 section 140K. 28 negotiating party, for chapter 6, see section 29 148(1). 30 Page 206
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 80] ordinary hours of work for chapter 2A, see 1 section 71BA. 2 ordinary working day, for chapter 2A, part 2, 3 division 7, see section 71I. 4 owner-- 5 (a) for chapter 2, part 3, see section 42; or 6 (b) for chapter 2A, part 2, division 6, see section 7 71H. 8 non-allowable provisions, in relation to a 9 modern industrial instrument, see section 71LB. 10 parental leave-- 11 (a) for chapter 2, part 2, see section 17; or 12 (b) for chapter 2A, part 2, division 5, see section 13 71GB. 14 parental leave entitlement-- 15 (a) for chapter 2, part 2, see section 17; or 16 (b) for chapter 2A, part 2, division 5, see section 17 71GB. 18 peace obligation period, for chapter 6, see 19 section 140K. 20 period between seasons-- 21 (a) for chapter 2, part 3, see section 42; or 22 (b) for chapter 2A, part 2, division 6, see section 23 71H. 24 periodic review see section 140F. 25 pre-modernisation award, for chapter 5, part 8, 26 see section 140B. 27 pre-modernisation industrial instrument see 28 section 71BA. 29 Queensland Employment Standards see section 30 71C. 31 Page 207
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 80] redundancy pay see section 71KF(1). 1 relevant employee organisation, for chapter 6, 2 see section 140K. 3 relevant industrial instrument-- 4 (a) for chapter 2A, see section 71BA; or 5 (b) for chapter 15, part 2, see section 691A. 6 relevant instrument, for chapter 5A, part 4, see 7 section 140I. 8 remuneration-- 9 (a) for a provision relating to work of equal or 10 comparable value, includes-- 11 (i) the wage or salary payable to an 12 employee; and 13 (ii) amounts payable or other benefits 14 made available to an employee under a 15 contract of service; and 16 (b) of an employee, for chapter 6A, see section 17 192; and 18 (c) of a person, for chapter 12, part 12, see 19 section 551. 20 season-- 21 (a) for chapter 2, part 3, see section 42; or 22 (b) for chapter 2A, part 2, division 6, see section 23 71H. 24 service-- 25 (a) for chapter 2, part 6, see section 67; or 26 (b) for chapter 2A, part 5, see section 71Q. 27 short adoption leave-- 28 (a) for chapter 2, part 2, see section 17; or 29 (b) for chapter 2A, part 2, division 5, see section 30 71GB. 31 Page 208
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 80] short birth-related leave, for chapter 2A, part 2, 1 division 5, see section 71GB. 2 short parental leave-- 3 (a) for chapter 2, part 2, see section 17; or 4 (b) for chapter 2A, part 2, division 5, see section 5 71GB. 6 short surrogacy leave-- 7 (a) for chapter 2, part 2, see section 17; or 8 (b) for chapter 2A, part 2, division 5, see section 9 71GB. 10 short term casual employee-- 11 (a) for chapter 2, part 2, see section 17; or 12 (b) for chapter 2A, part 2, division 5, see section 13 71GB. 14 show holiday, for chapter 2A, part 2, division 7, 15 see section 71I. 16 special maternity leave, for chapter 2A, part 2, 17 division 5, see section 71GZC. 18 surrogacy arrangement-- 19 (a) for chapter 2, part 2, see section 17; or 20 (b) for chapter 2A, part 2, division 5, see section 21 71GB. 22 surrogacy leave-- 23 (a) for chapter 2, part 2, see section 17; or 24 (b) for chapter 2A, part 2, division 5, see section 25 71GB. 26 transferred employee, for chapter 2A, part 5, see 27 section 71QB(1). 28 variation notice, for chapter 5, part 8, see section 29 140CA(1). 30 Page 209
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 81] work value reasons, for chapter 5A, see section 1 140DA. 2 (3) Schedule 5, definition award, paragraph (a)-- 3 omit, insert-- 4 (a) generally, means-- 5 (i) a modern award; or 6 (ii) an award made under chapter 5 or 7 continued in force under this Act, 8 including an award as amended under 9 chapter 5; and 10 (4) Schedule 5, definition continuous service-- 11 insert-- 12 (c) for chapter 2A, part 2, division 6, see 13 section 71H. 14 (5) Schedule 5, definition regular part-time employee, paragraph 15 (c), `award'-- 16 omit, insert-- 17 industrial instrument 18 Division 2 Amendment of Hospital and Health 19 Boards Act 2011 20 Clause 81 Act amended 21 This division amends the Hospital and Health Boards Act 22 2011. 23 Clause 82 Amendment of s 10 (Statewide employment and 24 industrial relations arrangements) 25 Section 10-- 26 insert-- 27 Page 210
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 83] (4) Under this Act, the chief executive may issue 1 health employment directives to support 2 employment and industrial relations 3 arrangements in the public sector health system. 4 Clause 83 Amendment of s 19 (Functions of Services) 5 Section 19(2)(c), after `directives'-- 6 insert-- 7 and health employment directives 8 Clause 84 Amendment of s 20 (Powers of Services) 9 (1) Section 20(3), after `executives'-- 10 insert-- 11 and contracted senior health service employees 12 (2) Section 20(4), note-- 13 omit. 14 Clause 85 Amendment of s 45 (Functions of chief executive) 15 Section 45(g)-- 16 omit, insert-- 17 (g) to establish the conditions of employment 18 for health service employees, including 19 issuing health employment directives; 20 Clause 86 Amendment of s 46 (Delegation by chief executive) 21 Section 46(2)(c), after `directive'-- 22 insert-- 23 or health employment directive 24 Page 211
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 87] Clause 87 Amendment of s 47 (Health service directives) 1 (1) Section 47(1)(d), `, employment'-- 2 omit. 3 (2) Section 47(2)(c)-- 4 omit. 5 (3) Section 47(2)(d) to (i)-- 6 renumber as section 47(2)(c) to (h). 7 (4) Section 47(4) and (5)-- 8 omit. 9 (5) Section 47(6), definition delivery, paragraph (a)(ii)-- 10 omit, insert-- 11 (ii) the provision of training to health 12 professionals or students in public 13 sector health service facilities; and 14 (6) Section 47(6)-- 15 renumber as section 47(4). 16 Clause 88 Insertion of new pt 3, div 2A 17 Part 3-- 18 insert-- 19 Division 2A Chief executive may issue 20 health employment 21 directives 22 51A Health employment directives 23 (1) The chief executive may issue health 24 employment directives about the conditions of 25 employment for health service employees. 26 (2) Without limiting subsection (1), a health 27 employment directive may be about the 28 following-- 29 Page 212
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 88] (a) the minimum remuneration for health 1 executives and senior health service 2 employees; 3 (b) the classification levels at which health 4 executives and senior health service 5 employees are to be employed; 6 (c) the terms of contracts for health executives 7 and contracted senior health service 8 employees; 9 (d) the conditions of employment for senior 10 health service employees, other than 11 contracted senior health service employees; 12 (e) the professional development and training of 13 health service employees in accordance with 14 the conditions of their employment. 15 (3) A health employment directive may apply to any 16 or all of the following-- 17 (a) the department, a Service or all Services; 18 (b) health service employees, or a stated type of 19 health service employee. 20 51B Relationship with legislation 21 If a health employment directive is inconsistent with 22 an Act or subordinate legislation, the Act or 23 subordinate legislation prevails over the health 24 employment directive. 25 51C Relationship between health employment 26 directives and other instruments 27 (1) If a health employment directive is inconsistent 28 with an industrial instrument, the health 29 employment directive prevails over the industrial 30 instrument, unless a regulation provides 31 otherwise. 32 Page 213
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 88] (2) If a health employment directive is inconsistent 1 with a ruling made under the Public Service Act 2 1958, section 53, the health employment 3 directive prevails over the ruling. 4 (3) If a health employment directive is inconsistent 5 with a health service employee's contract of 6 employment, the health employment directive 7 prevails over the contract. 8 (4) In this section-- 9 health employment directive includes a decision 10 made in the exercise of a discretion under the 11 directive. 12 51D Publication of health employment directives 13 A health employment directive must be published in a 14 way that allows the directive to be accessed by health 15 service employees and members of the public, 16 including, for example, on the internet. 17 51E Health employment directives binding 18 (1) A health employment directive that applies to an 19 employee of the department is binding on the 20 employee and the department. 21 (2) A health employment directive that applies to an 22 employee of a Service is binding on the 23 employee and the Service. 24 Note-- 25 A health employment directive may apply to both 26 employees of a department and a Service. See section 27 51A(3). 28 51F Review of health employment directives 29 (1) The chief executive must complete a review of a 30 health employment directive within 3 years after 31 Page 214
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 89] it is made and afterwards within 3 years after the 1 previous review. 2 (2) If a directive is amended as a result of the review, 3 the chief executive must publish the amended 4 directive in a way that allows it to be accessed by 5 members of the public, including, for example, 6 on the internet. 7 Clause 89 Amendment of s 66 (Conditions of employment) 8 (1) Section 66(1), after `executive'-- 9 insert-- 10 or a senior health service employee 11 (2) Section 66(1)-- 12 insert-- 13 (ab) the Industrial Relations Act 1999; and 14 (3) Section 66(1)(d), `service'-- 15 omit, insert-- 16 employment 17 (4) Section 66(1)(ab) to (e)-- 18 renumber as section 66(1)(b) to (f). 19 (5) Section 66(2)-- 20 insert-- 21 (ab) the Industrial Relations Act 1999; and 22 (6) Section 66(2)(c), `service'-- 23 omit, insert-- 24 employment 25 (7) Section 66(2)(ab) to (d)-- 26 renumber as section 66(2)(b) to (e). 27 (8) Section 66-- 28 Page 215
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 90] insert-- 1 (2A) A senior health service employee's conditions of 2 employment are governed by-- 3 (a) this Act; and 4 (b) the Industrial Relations Act 1999; and 5 (c) the applied Public Service law; and 6 (d) health employment directives; and 7 (e) an industrial instrument that applies to the 8 employee; and 9 (f) if the employee is a contracted senior health 10 service employee--the employee's contract. 11 (9) Section 66(3), after `in'-- 12 insert-- 13 a health employment directive or 14 (10) Section 66(2A) and (3)-- 15 renumber as section 66(3) and (4). 16 Clause 90 Amendment of s 67 (Appointment of health service 17 employees) 18 (1) Section 67(2), after `executive'-- 19 insert-- 20 or a contracted senior health service employee 21 (2) Section 67(4)(b), after `executive'-- 22 insert-- 23 or a senior health service employee 24 (3) Section 67(4)-- 25 insert-- 26 Page 216
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 91] (e) for an employee who is a senior health 1 service employee--on contract for an 2 indefinite term. 3 Clause 91 Amendment of s 68 (Contracted health service 4 employees other than health executives) 5 (1) Section 68, heading, after `executives'-- 6 insert-- 7 or senior health service employees 8 (2) Section 68(1), after `executive'-- 9 insert-- 10 or a senior health service employee 11 Clause 92 Amendment of pt 5, div 2, hdg (Health executive service) 12 Part 5, division 2, heading, after `service'-- 13 insert-- 14 and senior health service employees 15 Clause 93 Insertion of new pt 5, div 2, sdiv 1, hdg 16 Part 5, division 2, before section 70-- 17 insert-- 18 Subdivision 1 Health executive service 19 Clause 94 Insertion of new pt 5, div 2, sdiv 2 and sdiv 3, hdg 20 After section 74-- 21 insert-- 22 Page 217
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 94] Subdivision 2 Senior health service 1 employees 2 74A Meaning of senior health service employee 3 (1) A senior health service employee is a health 4 service employee appointed at the classification 5 level prescribed by a regulation. 6 (2) However, a regulation may prescribe a 7 classification level for subsection (1) only if the 8 remuneration of all employees at the 9 classification level is more than the high-income 10 threshold. 11 (3) Without limiting the matters to which the 12 Minister may have regard in deciding whether to 13 recommend the making of a regulation under 14 subsection (1), the Minister may have regard to 15 the role, responsibilities and functions performed 16 at the classification level. 17 (4) In this section-- 18 high-income threshold see the Industrial 19 Relations Act 1999, section 191. 20 remuneration, of an employee, see the Industrial 21 Relations Act 1999, section 192. 22 74B Terms of contract for contracted senior health 23 service employees 24 (1) This section applies to a contracted senior health 25 service employee. 26 (2) The employee's contract of employment must be 27 entered into with-- 28 (a) for an employee of the department--the 29 chief executive; or 30 (b) for an employee of a Service--the health 31 service chief executive. 32 Page 218
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 95] (3) The employee's contract of employment must be 1 in writing and state each of the following-- 2 (a) whether the contract is for a fixed term or an 3 indefinite term; 4 (b) if the contract is for a fixed term--the length 5 of the term; 6 (c) the employee's functions; 7 (d) that the employee must meet any 8 performance criteria stated in the contract; 9 (e) the employee's classification level, and the 10 remuneration to which the employee is 11 entitled; 12 (f) the period of notice of resignation or 13 termination that is required to be given 14 before the notice takes effect. 15 Subdivision 3 Excluded matters 16 Clause 95 Amendment of s 75 (Exclusion of certain matters from 17 review under other Acts) 18 (1) Section 75(2)-- 19 omit. 20 (2) Section 75(5), definition excluded matter, after `executive'-- 21 insert-- 22 or a senior health service employee 23 (3) Section 75(3) to (5)-- 24 renumber as section 75(2) to (4). 25 Clause 96 Omission of s 76 (Fixing of remuneration packages and 26 classification levels for health executives) 27 Section 76-- 28 Page 219
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 97] omit. 1 Clause 97 Amendment of s 78 (Transfer of health service 2 employees) 3 Section 78(4), `for a fixed term'-- 4 omit. 5 Clause 98 Amendment of s 79 (Entitlement on ending of particular 6 employment contracts) 7 Section 79(1), after `executive'-- 8 insert-- 9 or a senior health service employee 10 Clause 99 Amendment of s 80 (Departmental health service 11 employees to be employed by Services) 12 Section 80(1), after `that Service'-- 13 insert-- 14 , other than a person to whom section 80AA applies 15 Clause 100 Insertion of new s 80AA 16 After section 80-- 17 insert-- 18 80AA High-income senior employees to be 19 employed by Services 20 (1) This section applies to a person-- 21 (a) employed in the department who is working 22 for a Service immediately before the 23 prescribed day for that Service; and 24 (b) who becomes a high-income senior 25 employee on the same day as the prescribed 26 day. 27 Page 220
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 100] (2) From the prescribed day, the person is taken to be 1 employed by the Service on the conditions that 2 apply to the person under section 66. 3 Note-- 4 See also the Industrial Relations Act 1999, sections 194 5 and 195 regarding the person's conditions of 6 employment. 7 (3) The following apply for the person-- 8 (a) the person's accruing rights, including to 9 superannuation or recreation, sick, long 10 service or other leave are not affected; 11 (b) continuity of service is not interrupted, 12 except that the person is not entitled to claim 13 the benefit of a right or entitlement more 14 than once in relation to the same period of 15 service; 16 (c) the employment does not constitute a 17 termination of employment or a 18 retrenchment or redundancy; 19 (d) the person is not entitled to a payment or 20 other benefit because the person is no longer 21 employed in the department. 22 (4) Subject to this section, the chief executive may 23 issue a direction to a person to facilitate the 24 transition of employees from the department to a 25 Service. 26 (5) A person given a direction must comply with the 27 direction. 28 (6) In this section-- 29 high-income senior employee see the Industrial 30 Relations Act 1999, section 189. 31 Page 221
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 101] Clause 101 Amendment of s 80B (Matters and proceedings not 1 affected by persons becoming employees of prescribed 2 Service) 3 Section 80B(1)(a), after `80'-- 4 insert-- 5 or 80AA 6 Clause 102 Insertion of new s 80C 7 Part 5-- 8 insert-- 9 80C Matters and proceedings not affected by 10 persons becoming contracted senior health 11 service employees in Service 12 (1) This section applies if-- 13 (a) a person appointed as a contracted senior 14 health service employee in a Service was, 15 immediately before the appointment, 16 employed in the department; and 17 (b) before the person was appointed in the 18 Service, a proceeding was taken by or 19 against the person or anything else was done 20 in relation to the person as an employee of 21 the department; and 22 (c) the proceeding or other thing had not been 23 completed immediately before the person 24 was appointed in the Service. 25 (2) The proceeding may be continued and completed 26 after the day the person becomes an employee in 27 the Service by or against the Service instead of 28 the department. 29 (3) For anything other than a proceeding, the thing 30 may be continued unaffected by the person 31 becoming an employee of the Service. 32 Page 222
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 103] Examples for subsection (3)-- 1 A recruitment and selection process involving a 2 person employed in the department, started before the 3 day the person becomes an employee in the Service, 4 may continue after the day. 5 The approval of the annual leave for a person 6 employed in the department before the day the person 7 becomes an employee in the Service is effective after 8 that day. 9 Clause 103 Insertion of new pt 13, div 4 10 Part 13-- 11 insert-- 12 Division 4 Transitional provision for 13 the Industrial Relations 14 (Fair Work Act 15 Harmonisation No. 2) and 16 Other Legislation 17 Amendment Act 2013 18 320 Senior health service employees 19 Section 74A applies to a person appointed as a health 20 service employee, whether the appointment was made 21 before or after the commencement of the section. 22 Clause 104 Amendment of sch 2 (Dictionary) 23 (1) Schedule 2-- 24 insert-- 25 contracted senior health service employee 26 means a senior health service employee 27 appointed on contract under section 67. 28 health employment directive means a health 29 employment directive issued by the chief 30 executive under section 51A. 31 Page 223
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 105] senior health service employee see section 74A. 1 (2) Schedule 2, definition appoint, paragraph (a), after `second'-- 2 insert-- 3 , enter into a contract with 4 Division 3 Amendment of Trading 5 (Allowable Hours) Act 1990 6 Clause 105 Act amended 7 This division amends the Trading (Allowable Hours) Act 8 1990. 9 Clause 106 Amendment of s 4 (Meaning of terms) 10 (1) Section 4, heading-- 11 omit, insert-- 12 4 Dictionary 13 (2) Section 4, definition commissioner-- 14 omit. 15 (3) Section 4-- 16 insert-- 17 full bench, of the industrial commission, see the 18 Industrial Relations Act 1999, section 256(2). 19 vice-president means the vice-president of the 20 industrial commission under the Industrial 21 Relations Act 1999. 22 (4) Section 4, definitions-- 23 relocate to schedule 1, as inserted by this Act. 24 (5) Section 4, `In this Act--'-- 25 omit, insert-- 26 Page 224
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 107] The dictionary in schedule 1 defines particular words 1 used in this Act. 2 Clause 107 Amendment of pt 5, hdg (Orders concerning non-exempt 3 shops, exhibitions and special displays) 4 Part 5, heading, `, exhibitions and special displays'-- 5 omit, insert-- 6 and special exhibitions 7 Clause 108 Amendment of s 21 (Trading hours orders on non-exempt 8 shops) 9 (1) Section 21(1), `A full bench of the'-- 10 omit, insert-- 11 The 12 (2) Section 21(1A) and (2), `full bench'-- 13 omit, insert-- 14 industrial commission 15 (3) Section 21(3)-- 16 omit, insert-- 17 (3) In this section-- 18 public holiday includes, if another day is 19 substituted for a public holiday under the 20 Holidays Act 1983, section 3, the day that would 21 have been the public holiday if the substitution 22 had not happened. 23 (4) Section 21(1A) to (3)-- 24 renumber as section 21(2) to (4). 25 Clause 109 Replacement of s 22 (Orders on exhibitions etc.) 26 Section 22-- 27 Page 225
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 110] omit, insert-- 1 22 Approval of special exhibitions 2 (1) The industrial commission may, by order-- 3 (a) approve the holding of a special exhibition 4 of goods, other than goods that a reasonable 5 person would expect to be sold in an exempt 6 shop; and 7 (b) impose conditions on the holding of the 8 exhibition. 9 (2) The order may provide for the holding of the 10 special exhibition-- 11 (a) on a permanent or temporary basis; or 12 (b) in a shop or elsewhere. 13 (3) Without limiting subsection (1)(b), a condition 14 may, for example-- 15 (a) fix the following for any day on which a 16 special exhibition may be held-- 17 (i) the earliest time the exhibition may 18 open; 19 (ii) the latest time by which the exhibition 20 must close; or 21 (b) permit, prohibit, or impose conditions on, 22 selling, and taking orders for the sale of, 23 goods-- 24 (i) exhibited or displayed; or 25 (ii) of a description of the goods exhibited 26 or displayed. 27 Clause 110 Amendment of s 23 (Powers and procedures relevant to 28 proceedings under ss 21 and 22) 29 Section 23, `22(1)'-- 30 omit, insert-- 31 Page 226
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 111] 22 1 Clause 111 Insertion of new s 23A 2 After section 23-- 3 insert-- 4 23A Reference to full bench 5 (1) This section applies to the matter of an order 6 under section 21 or 22. 7 (2) The vice-president may refer the matter to the 8 full bench of the industrial commission. 9 (3) The referral may be made-- 10 (a) at any stage of the proceedings for the 11 matter, including before the hearing of the 12 matter starts; and 13 (b) on the terms the vice-president considers 14 appropriate. 15 (4) The full bench may hear and decide the matter 16 referred to it and make the decision it considers 17 appropriate. 18 (5) This section does not limit the Industrial 19 Relations Act 1999, section 281. 20 Clause 112 Amendment of s 25 (Leave may be granted by full bench) 21 (1) Section 25, heading, `full bench'-- 22 omit, insert-- 23 industrial commission 24 (2) Section 25(1), `a full bench of'-- 25 omit. 26 (3) Section 25(3), `A full bench of the'-- 27 omit, insert-- 28 Page 227
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 113] The 1 Clause 113 Amendment of s 27 (Summary dismissal of application) 2 Section 27, `a full bench of'-- 3 omit. 4 Clause 114 Replacement of s 29 (Compliance with conditions for 5 exhibitions etc.) 6 Section 29-- 7 omit, insert-- 8 29 Compliance with conditions of special 9 exhibitions order 10 (1) This section applies if an order of the industrial 11 commission made under section 22 imposes 12 conditions on the holding of a special exhibition. 13 (2) Each of the following persons must comply with 14 the conditions of the order-- 15 (a) a person who holds or organises the special 16 exhibition; 17 (b) a person who occupies an exhibit or display 18 in the special exhibition. 19 Clause 115 Insertion of new pt 8, div 3 20 After section 49-- 21 insert-- 22 Page 228
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 115] Division 3 Transitional provisions for 1 Industrial Relations (Fair 2 Work Act Harmonisation 3 No. 2) and Other 4 Legislation Amendment 5 Act 2013 6 50 Definitions for div 3 7 In this division-- 8 commencement means the commencement of 9 this section. 10 commissioner see the Industrial Relations Act 11 1999, section 256(1)(b). 12 new, for a provision of this Act, means the 13 provision as in force from the commencement. 14 previous, for a provision of this Act, means the 15 provision as in force immediately before the 16 commencement. 17 51 Proceedings started before commencement 18 (1) This section applies to the matter of an order 19 under previous section 21 or 22(1) if, before the 20 commencement, a proceeding for the matter had 21 been started but not decided or otherwise ended. 22 (2) The full bench of the industrial commission must 23 hear and decide, or continue to hear and decide, 24 the matter under this Act as in force immediately 25 before the commencement. 26 (3) However, if immediately before the 27 commencement the hearing of the matter had not 28 started-- 29 Page 229
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 2 Amendments relating to industrial relations [s 116] (a) the vice-president may reallocate the matter 1 to an industrial commission constituted by a 2 commissioner sitting alone; and 3 (b) the industrial commission must hear and 4 decide the matter under this Act as in force 5 immediately before the commencement. 6 52 Special exhibition orders 7 (1) This section applies to an order made under 8 previous section 22 by the industrial commission 9 constituted by the full bench or a commissioner 10 sitting alone. 11 (2) From the commencement, the order is taken to be 12 an order of the industrial commission made under 13 new section 22. 14 Clause 116 Insertion of new sch 1 15 After section 52, as inserted by this Act-- 16 insert-- 17 Schedule 1 Dictionary 18 section 4 19 Division 4 Minor and consequential 20 amendments 21 Clause 117 Legislation amended 22 Schedule 1 amends the legislation it mentions. 23 Page 230
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 118] Part 3 Other amendments 1 Division 1 Amendment of Superannuation 2 (State Public Sector) Act 1990 3 Clause 118 Act amended 4 This division amends the Superannuation (State Public 5 Sector) Act 1990. 6 Clause 119 Amendment of s 2 (Interpretation) 7 (1) Section 2, definitions appropriately qualified, AWUQ, 8 chairperson, disqualified person, employer trustee, 9 independent director, member entity trustee, QCU and 10 quorum-- 11 omit. 12 (2) Section 2, definition alternate trustee, `section 6C'-- 13 omit, insert-- 14 this Act 15 Clause 120 Amendment of s 3 (Establishment of board) 16 Section 3(6), `Superannuation Industry (Supervision) Act 1993 17 (Cwlth)'-- 18 omit, insert-- 19 SIS Act 20 Clause 121 Replacement of ss 5-6AA 21 Sections 5 to 6AA-- 22 omit, insert-- 23 Page 231
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 122] 5 Membership of the board 1 (1) The board consists of the number of trustees 2 prescribed under a regulation. 3 (2) The trustees are to be appointed by the Minister 4 in the way prescribed under a regulation. 5 Clause 122 Renumbering of s 6B (Appointment not affected by other 6 laws restricting employment) 7 Section 6B-- 8 renumber as section 6. 9 Clause 123 Omission of ss 6C-6DAA 10 Sections 6C to 6DAA-- 11 omit. 12 Clause 124 Renumbering of ss 6DA-6F 13 Sections 6DA to 6F-- 14 renumber as sections 6A to 6C. 15 Clause 125 Omission of ss 6G-6J 16 Sections 6G to 6J-- 17 omit. 18 Clause 126 Replacement of s 31 (Regulations) 19 Section 31-- 20 omit, insert-- 21 31 Regulation-making power 22 (1) The Governor in Council may make regulations 23 under this Act. 24 Page 232
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 127] (2) Without limiting subsection (1), a regulation may 1 be made about any of the following-- 2 (a) the membership of the board; 3 (b) the eligibility requirements for trustees and 4 alternate trustees; 5 (c) the appointment of trustees by the Minister; 6 (d) the appointment of alternate trustees by the 7 board and the functions and powers of 8 trustees that may be performed and 9 exercised by alternate trustees; 10 (e) revoking the appointment of trustees or 11 alternate trustees; 12 (f) filling vacancies in the office of a trustee or 13 an alternate trustee; 14 (g) matters relating to the chairperson and 15 deputy chairperson of the board including-- 16 (i) the appointment of a trustee as 17 chairperson; and 18 (ii) the election of a trustee as deputy 19 chairperson; 20 (h) the conduct of the board's business, 21 including providing for the holding of, and 22 attendance and voting at, board meetings. 23 Clause 127 Insertion of new pt 6, div 5 24 Part 6-- 25 insert-- 26 Page 233
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 128] Division 5 Transitional provision for 1 Industrial Relations (Fair 2 Work Act Harmonisation 3 No. 2) and Other 4 Legislation Amendment 5 Act 2013 6 44 Appointments of existing trustees end 7 (1) This section applies to a trustee holding office 8 immediately before the commencement of this 9 section. 10 (2) On the commencement, the trustee's appointment 11 ends and the office is vacated. 12 Division 2 Amendment of Superannuation 13 (State Public Sector) Regulation 14 2006 15 Clause 128 Regulation amended 16 This division amends the Superannuation (State Public 17 Sector) Regulation 2006. 18 Clause 129 Insertion of new pt 1 hdg 19 Before section 1-- 20 insert-- 21 Part 1 Preliminary 22 Clause 130 Insertion of new s 2A 23 After section 2-- 24 insert-- 25 Page 234
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 131] 2A Interpretation 1 The dictionary in schedule 2 defines particular words 2 used in this regulation. 3 Clause 131 Insertion of new pt 2 4 After new section 2A-- 5 insert-- 6 Part 2 Board of trustees 7 2B Membership of the board 8 (1) The Minister must, under section 5 of the Act, 9 appoint-- 10 (a) 4 trustees as representing employers 11 (employer trustees); and 12 (b) 4 member representative trustees, of whom 13 1 is to be nominated by-- 14 (i) the Queensland Police Union; and 15 (ii) the Queensland Nurses' Union; and 16 (iii) the Queensland Teachers' Union; and 17 (iv) Together Queensland. 18 (2) With the board's written consent, the Minister 19 may also appoint 1 other trustee if, when 20 appointed, the person will be an independent 21 director of the board. 22 2C Appointment of trustees 23 (1) A person may be appointed as a trustee only if 24 the person-- 25 (a) is eligible to be a trustee; and 26 Page 235
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 131] Note-- 1 See section 2D. 2 (b) gives written consent for the appointment. 3 (2) An appointment of a trustee must be made by 4 gazette notice. 5 2D Eligibility 6 (1) A person is eligible to be a trustee if the person 7 is-- 8 (a) an adult; and 9 (b) not a disqualified person; and 10 (c) appropriately qualified to perform the 11 functions, and exercise the powers, of a 12 trustee. 13 (2) If a person holding the office of trustee becomes 14 a disqualified person, the person must 15 immediately give written notice to the board that 16 the person is a disqualified person. 17 (3) In this section-- 18 trustee includes an alternate trustee. 19 2E Term of appointment 20 (1) A trustee is appointed for the term, of not more 21 than 3 years, stated in the gazette notice. 22 (2) A trustee may be reappointed. 23 (3) However, a person must not be appointed if the 24 total of the person's terms of appointment would 25 be more than 9 years. 26 2F Vacancy in the office of trustee 27 (1) The office of a trustee becomes vacant if-- 28 Page 236
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 131] (a) the Minister revokes the trustee's 1 appointment; or 2 (b) the trustee-- 3 (i) resigns by signed notice given to the 4 Minister; or 5 (ii) becomes a disqualified person. 6 (2) The Minister must not revoke the appointment of 7 a member representative trustee other than on a 8 request by the board under section 2G. 9 2G Board may ask Minister to revoke trustee's 10 appointment 11 (1) The board may ask the Minister to revoke a 12 trustee's appointment-- 13 (a) if the trustee is absent from 3 board 14 meetings in a financial year, of which the 15 trustee has been given notice under 16 procedures approved by the board, without 17 the board's leave and without reasonable 18 excuse; or 19 (b) if the board is satisfied the trustee is unable 20 to perform the trustee's functions because of 21 a physical or mental incapacity; or 22 (c) if the board is satisfied that, if the trustee 23 remains as a trustee, it is likely the board 24 will not meet the prudential standards under 25 the SIS Act, part 3A that apply to it; or 26 (d) in the circumstances prescribed under the 27 SIS Act, section 107(2)(a)(ii)(G). 28 (2) Before asking the Minister to revoke a trustee's 29 appointment, the board must-- 30 (a) give the trustee a written notice stating-- 31 Page 237
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 131] (i) that the board proposes to ask the 1 Minister to revoke the trustee's 2 appointment; and 3 (ii) the reason for making the request; and 4 (iii) that the trustee may, within a stated 5 reasonable time of not less than 14 6 days, give the board a written 7 submission about why the board should 8 not make the request; and 9 (b) have regard to any submissions received 10 from the trustee within the stated time. 11 (3) Also, before asking the Minister to revoke a 12 member representative trustee's appointment 13 under subsection (1)(a), (b) or (d), the board must 14 obtain the written approval of the entity that 15 nominated the trustee for appointment. 16 (4) The Minister must comply with a request from 17 the board under this section. 18 2H Filling a vacancy in the office of a trustee 19 (1) This section applies if the office of a trustee 20 becomes vacant before the end of the term of the 21 trustee's appointment (the original term). 22 (2) The Minister must-- 23 (a) for an employer trustee--appoint another 24 person to the office; or 25 (b) for a member representative 26 trustee--appoint a person nominated by the 27 entity that nominated the trustee whose 28 office has become vacant. 29 (3) Subject to subsection (4), the Minister must 30 appoint a trustee to fill a vacancy within 90 days 31 after it happens. 32 Page 238
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 131] (4) If the Minister does not receive a nomination for 1 a vacancy in the office of a member 2 representative trustee from the relevant 3 nominating entity in time to fill the vacancy 4 within 90 days after it happens, the Minister must 5 appoint a trustee to fill the vacancy as soon as 6 practicable after receiving the nomination. 7 (5) An appointment to fill the vacancy must be for a 8 term ending at the end of the original term. 9 2I Alternate trustees 10 (1) The board may appoint alternate trustees to-- 11 (a) act in the office of a trustee during a vacancy 12 in the office; and 13 (b) attend board meetings in the place of 14 trustees who are unable to attend the 15 meetings; and 16 (c) exercise the absent trustees' powers at the 17 meetings. 18 (2) However, at any time there must not be more than 19 2 alternate trustees. 20 (3) The board must, if it decides to appoint alternate 21 trustees, publish a policy about the role of 22 alternate trustees. 23 2J Appointment of alternate trustees 24 (1) The board may appoint a person as alternate 25 trustee only if the person-- 26 (a) is eligible to be appointed as a trustee; and 27 Note-- 28 See section 2D. 29 (b) gives written consent to the appointment. 30 Page 239
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 131] (2) An alternate trustee must be appointed for a 1 stated term of not more than 3 years. 2 (3) The office of an alternate trustee becomes vacant 3 if the trustee-- 4 (a) resigns by signed notice given to the 5 chairperson; or 6 (b) becomes a disqualified person. 7 2K Chairperson 8 (1) The Minister must appoint 1 of the trustees as 9 chairperson of the board. 10 (2) The Minister may appoint a trustee as 11 chairperson only with the trustee's written 12 consent. 13 (3) The Minister must consult with the board before 14 making or revoking an appointment of a 15 chairperson. 16 (4) An appointment under this section must-- 17 (a) be signed by the Minister; and 18 (b) be for a stated term of not more than 3 years. 19 (5) The office of chairperson becomes vacant if-- 20 (a) the chairperson's term of appointment as 21 trustee ends; or 22 (b) the chairperson resigns the office of 23 chairperson by signed notice given to the 24 Minister; or 25 (c) the chairperson stops being a trustee. 26 2L Deputy chairperson 27 (1) The trustees may elect one of their number as 28 deputy chairperson of the board if the person 29 consents to the election. 30 Page 240
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 131] (2) The person elected must be-- 1 (a) if the chairperson is an employer trustee--a 2 member representative trustee; or 3 (b) if the chairperson is a member 4 representative trustee--an employer trustee. 5 (3) A person is elected deputy chairperson if at least 6 a quorum of trustees vote for the person to be 7 deputy chairperson. 8 (4) The office of deputy chairperson becomes vacant 9 if-- 10 (a) the deputy chairperson's term of 11 appointment as trustee ends; or 12 (b) the deputy chairperson resigns the office of 13 deputy chairperson by signed notice given to 14 the board; or 15 (c) the deputy chairperson stops being a trustee; 16 or 17 (d) the deputy chairperson stops being a person 18 who may be elected under subsection (2). 19 2M Conduct of business 20 Subject to the Act and this regulation, the board may 21 conduct its business, including its meetings, in the 22 way it considers appropriate. 23 2N Time and place of meetings 24 (1) Board meetings are to be held at the times and 25 places the board decides. 26 (2) The chairperson-- 27 (a) may call a meeting at any time; and 28 (b) must call a meeting on the written request of 29 at least a quorum of trustees. 30 Page 241
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 131] 2O Conduct of meetings 1 (1) Board meetings are to be presided over by-- 2 (a) if the chairperson is present--the 3 chairperson; or 4 (b) if the chairperson is not present--the deputy 5 chairperson; or 6 (c) if neither the chairperson nor the deputy 7 chairperson is present--another trustee 8 chosen by the trustees who are present. 9 (2) A resolution is passed at a board meeting only if 10 at least a quorum of trustees vote in favour of it. 11 (3) A trustee present at a meeting who abstains from 12 voting is taken to have voted for the negative. 13 (4) The board may hold meetings, or permit trustees 14 to take part in meetings, by telephone, video link, 15 or another form of communication that allows 16 reasonably contemporaneous and continuous 17 communication between the trustees taking part 18 in the meeting. 19 (5) A trustee who takes part in a meeting under 20 subsection (4) is taken to be present at the 21 meeting. 22 2P Resolutions other than at meetings 23 (1) A resolution may be made by the board other 24 than at a board meeting if-- 25 (a) at least a quorum of trustees give written 26 agreement to the resolution; and 27 (b) notice of the resolution is given under 28 procedures approved by the board. 29 (2) The resolution is taken to have been made as 30 soon as the number of trustees who have given 31 written agreement to the resolution is at least a 32 quorum. 33 Page 242
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 132] Part 3 Miscellaneous 1 Clause 132 Amendment of s 3 (Units of the State public sector--Act, 2 s 2(1)) 3 Section 3, `the schedule'-- 4 omit, insert-- 5 schedule 1 6 Clause 133 Omission of s 5 (Prescribed number--Act, s 5) 7 Section 5-- 8 omit. 9 Clause 134 Insertion of new pt 4 10 After section 6-- 11 insert-- 12 Part 4 Transitional provision 13 for Industrial Relations 14 (Fair Work Act 15 Harmonisation No. 2) 16 and Other Legislation 17 Amendment Act 2013 18 7 Particular persons may hold office as trustee 19 for more than 9 years 20 (1) This section applies to a person who held office 21 as a trustee immediately before the 22 commencement of this section. 23 (2) Despite section 2E(3), the Minister may 24 reappoint the person as a trustee even if-- 25 Page 243
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Part 3 Other amendments [s 135] (a) the total of the person's terms of 1 appointment as trustee is more than 9 years; 2 or 3 (b) the appointment will mean the total of the 4 person's term of appointment will be more 5 than 9 years. 6 Clause 135 Amendment of schedule (Units of the State public sector) 7 Schedule-- 8 number as schedule 1. 9 Clause 136 Insertion of new sch 2 10 After schedule 1, as numbered-- 11 insert-- 12 Schedule 2 Dictionary 13 section 2A 14 chairperson means the trustee holding office as 15 the chairperson under section 2K. 16 employer trustee means a trustee mentioned in 17 section 2B(1)(a). 18 disqualified person has the meaning given under 19 the SIS Act, section 120. 20 independent director has the meaning given 21 under the SIS Act, section 10(1) and (2). 22 member representative trustee means a trustee 23 mentioned in section 2B(1)(b). 24 quorum, of trustees, means, at any particular 25 time, the number that is two-thirds of the total 26 number of trustees holding office at the time. 27 Page 244
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Schedule 1 Schedule 1 Minor and consequential 1 amendments 2 section 117 3 Part 1 Amendments commencing on 4 assent 5 Industrial Relations Act 1999 6 1 Section 164(2)-- 7 insert-- 8 (c) it expires under subsection (3). 9 2 Section 164-- 10 insert-- 11 (3) A certified agreement expires at the end of the 12 day that is 3 years after the nominal expiry date 13 for the agreement unless it is sooner replaced by 14 another certified agreement or terminated. 15 3 Section 259A-- 16 omit. 17 4 Section 259AA(1)-- 18 insert-- 19 Note-- 20 Chapter 8A provided for the appointment of the 21 ombudsman. That chapter was repealed by the 22 Industrial Relations (Fair Work Act Harmonisation No. 23 2) and Other Legislation Amendment Act 2013. 24 Page 245
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Schedule 1 5 Section 264(4)-- 1 insert-- 2 Note-- 3 Chapter 8A provided for the appointment of the 4 ombudsman. That chapter was repealed by the 5 Industrial Relations (Fair Work Act Harmonisation No. 6 2) and Other Legislation Amendment Act 2013. 7 6 Section 264(5), `An industrial commissioner'-- 8 omit, insert-- 9 A commissioner 10 7 Chapter 8A-- 11 omit. 12 8 Section 353(4), definition workplace-- 13 omit. 14 9 Section 353(4)-- 15 insert-- 16 branch, of an organisation, see section 409. 17 workplace-- 18 (a) means a place in or on which the inspector 19 reasonably suspects a calling is, has been, or 20 is about to be carried on; and 21 (b) includes a place of business used or 22 occupied by an organisation, a branch of an 23 organisation or an associated entity of an 24 organisation. 25 10 Section 356(1)(a), `instrument--'-- 26 omit, insert-- 27 Page 246
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Schedule 1 instrument any of the following persons (each a 1 relevant person)-- 2 11 Section 356(1)(a)(i), `or'-- 3 omit. 4 12 Section 356(1)(a)(ii), `and'-- 5 omit. 6 13 Section 356(1)(a)-- 7 insert-- 8 (iii) an officer of an organisation or a 9 branch of an organisation; 10 (iv) a person who-- 11 (A) is at a place of business used or 12 occupied by an associated entity 13 of an organisation; and 14 (B) is in control, or appears to the 15 inspector to be in control, of the 16 place; and 17 14 Section 356(1)(b) and (2), `employer or person'-- 18 omit, insert-- 19 relevant person 20 15 Section 356(3), `The person'-- 21 omit, insert-- 22 The relevant person 23 16 Section 356(5), `an employee'-- 24 omit, insert-- 25 Page 247
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Schedule 1 a relevant person who is an employee 1 17 Section 662(4), definition official-- 2 omit, insert-- 3 official means-- 4 (a) an inspector; or 5 (b) the registrar. 6 18 Section 663(6), definition official, paragraphs (d) and 7 (e)-- 8 omit. 9 19 Section 702(3), definition official, paragraphs (g) and 10 (h)-- 11 omit. 12 20 Schedule 5, definitions ombudsman and QWRO-- 13 omit. 14 Integrity Act 2009 15 1 Schedule 1, entry for Industrial Relations Act 1999, `the 16 Queensland workplace rights ombudsman'-- 17 omit. 18 Page 248
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Schedule 1 Public Service Act 2008 1 1 Schedule 1, entry for Queensland Workplace Rights 2 Office-- 3 omit. 4 Part 2 Amendments commencing on 5 1 December 2013 6 Industrial Relations Act 1999 7 1 Section 72(2), after `69'-- 8 insert-- 9 or 71GZH 10 2 Section 73(2)(k), after `parental leave'-- 11 insert-- 12 under chapter 2 or 2A 13 3 Section 73(2)(ka), `or 40(7)'-- 14 omit, insert-- 15 , 40(7), 71FE or 71FI 16 4 Section 160(6), definition entitlements or protections, 17 paragraph (b), `, including as reviewed by a general ruling 18 of the full bench,'-- 19 omit, insert-- 20 , chapter 2A 21 Page 249
Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 Schedule 1 5 Section 311A(2), `, or a statement of policy under section 1 288,'-- 2 omit. 3 6 Section 311A(3), `or statement of policy'-- 4 omit. 5 7 Sections 366(1)(d), 367(1)(d) and 665(1)(b), after `47'-- 6 insert-- 7 or 71HJ 8 8 Section 692D(5), after `chapter 2'-- 9 insert-- 10 or 2A 11 � State of Queensland 2013 Authorised by the Parliamentary Counsel Page 250
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