Further amendments to Fair Work legislation

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Further amendments to Fair Work legislation

Amendments to the Government’s Fair Work legislation package were introduced into Parliament last week — aimed at smoothing the referral of IR powers from the States to the Commonwealth.

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Amendments to the Government’s Fair Work legislation package were introduced into Parliament last week — aimed at smoothing the referral of IR powers from the States to the Commonwealth.
 
The supplementary explanatory memorandum — extracted below — explains the amendments.
 
The Fair Work Amendment (State Referrals and Other Measures) Bill 2009 (the Bill) was introduced into the House of Representatives on 21 October 2009.
 
The Bill amends the Fair Work Act 2009 (the FW Act) to enable States to refer workplace relations matters to the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution.
 
The Bill also amends the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the T&C Act) to establish arrangements for employees and employers transitioning from referring State systems to the national workplace relations system, and consequential amendments to other Commonwealth legislation required as a result of these arrangements.
 
Some amendments to be moved to the Bill would amend the T&C Act.
 
The proposed amendments would:
  • amend Schedules 5 and 6A to clarify that local government and State public sector employers and employees that are national system employers and employees (because of a State referral) can be covered by a modern award;
  • amend proposed subitem 16(5) of Schedule 4 to disapply for 12 months from the Division 2B referral commencement paragraph 121(1)(b) of the FW Act, with the effect that a Division 2B State reference employee of a small business may be entitled to redundancy pay under section 119 of the FW Act during that 12 month period;
  • amend proposed item 8 of new Schedule 3A to make clear that the Bill does not impose a duty on a State industrial body in relation to resolution of a dispute arising under a Division 2B State employment agreement;
  • preserve pay equity orders made by a State industrial body as transitional pay equity orders of Fair Work Australia (FWA) for Division 2B referral employees and existing federal system employees bound by a transitional award (but only for a specified class of employers and affected employees to whom a transitional award applies as prescribed by the regulations); and
  • • extend the compliance and enforcement provisions that apply to Division 2B State instruments to any long service leave or transitional pay equity orders made by FWA.
Fair Work Act
 
The amendments to be moved to the Bill that amend the FW Act would:
  • amend subsection 30B(1) of the FW Act so that it is expressed to operate in relation to a State that has referred to the Commonwealth matters relating to workplace relations before 1 July 2009;
  • insert a reference to the Industrial Court of New South Wales (which is currently prescribed as an eligible State or Territory court in the Fair Work Regulations 2009) into the definition of eligible State or Territory court in section 12 of the FW Act;
  • make technical changes to ensure that sections 423, 424 and 426 of the FW Act dealing with industrial action correctly refer to the definition of a referring State as contained in Divisions 2A and 2B of Part 1-3 of the FW Act; and
  • ensure that provisions relating to outworkers in Part 10A of the Workplace Relations Act 1996 (WR Act) (as continued by Schedule 5 to the T&C Act) are aligned with the corresponding provisions of the FW Act.

The supplementary explanatory memorandum can be found here.

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