2002

THE PARLIAMENT OF AUSTRALIA

HOUSE OF REPRESENTATIVES

WORKPLACE RELATIONS LEGISLATION AMENDMENT BILL 2002

SUPPLEMENTARY EXPLANATORY MEMORANDUM

Amendments to be moved on behalf of the Government

(Circulated by the authority of the Minister for Employment and Workplace Relations, the Honourable Tony Abbott, MP)

Workplace Relations Legislation Amendment Bill 2002

(Amendments to be moved on behalf of the Government)

OUTLINE

The amendments will

(a)	modernise the National Labour Consultative Council Act 1977 to ensure its relevance and durability by renaming the National Labour Consultative Council the National Workplace Relations Consultative Council, updating the purpose and membership provisions, clarifying the travelling allowance provisions and enabling regulations to be made for the purposes of the Act;
(b)	clarify the intention that an ex-Australian Defence Force (ex-ADF) member be able to be appointed to the Defence Force Remuneration Tribunal while being a member of the Reserves, clarify the scope of the acting member provisions, and remove sexist language from Division 2 of Part IIIA of the Defence Act 1903;
(c)	correct unintended and unforeseen consequences arising from the enactment of the Employment, Workplace Relations and Small Business Legislation Amendment (Application of Criminal Code) Act 2001;
(d)	insert a new definition of ‘responsible Minister’ in the Equal Employment Opportunity (Commonwealth Authorities) Act 1987;
(e)	insert a new definition of ‘higher education institution’ in the Equal Opportunity for Women in the Workplace Act 1999;
(f)	amend the Remuneration Tribunal Act 1973 and the Workplace Relations Act 1996 (the WR Act) to transfer power to the Remuneration Tribunal to determine the rates of travelling allowance for travel within Australia by presidential members and Commissioners of the Australian Industrial Relations Commission (the Commission) – the rates are currently prescribed in the AIRC (Allowances) Regulations 2001 under the Workplace Relations Act 1996 (the WR Act);
(g)	insert additional objects for the WR Act to require the Commission to take into account the circumstances of employers and employees in small business in the exercise of its powers, including through appropriate changes to its principles, procedures and rules;
(h)	allow the Commission to deal with applications for orders for equal remuneration during a bargaining period; 
(i)	allow the Full Bench or the President of the Commission to deal with certain applications arising outside the context of an industrial dispute; 
(j)	clarify that public sector employment includes employment of, or service by, a person under the Parliamentary Service Act 1999;
(k)	require the Rules of the Commission to allow for electronic lodgement of applications under Part VIB of the WR Act, including applications for certification of agreements;
(l)	require the President of the Commission to provide information and documents, as specified in the Regulations, to the Minister;
(m)	make the Industrial Relations Court of South Australia a court of competent jurisdiction for the purposes of Division 1 of Part VIII of the WR Act;
(n)	clarify imprecise references in the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002; and
(o)	correct a number of minor typographical or drafting errors.

FINANCIAL IMPACT STATEMENT

The amendments proposed to the Bill are not expected to have any impact on Commonwealth expenditure.

REGULATION IMPACT STATEMENT

Amend the Objects of the Workplace Relations Act 1996 to Take Account of the Circumstances of Small Business Employers

Problem:

Time for Business, the 1996 report of the Small Business Deregulation Task Force, identified that small business found that the Australian Industrial Relations Commission (the Commission) was not user friendly and that its rules and procedures were not responsive to its needs.  The formal nature of the Commission’s practices, proceedings and documentation made it difficult for small business to participate in the Commission’s processes.  In addition, little or no account was taken of the circumstances in which small businesses found themselves as employers.  Unlike large employers, they did not generally have regular access to legal expertise in fields ranging from common law to workers’ compensation when dealing with employment related matters in the workplace.

This lack of access is partly because many small businesses are not members of registered employer organisations.  Thus, they are not represented in the Commission’s hearings and cases.  They also do not receive the assistance that employer organisations provide, for example, assistance with the requirements for agreement-making, advising of award variations and assistance in interpreting awards.  As a result, many small businesses do not have the knowledge or opportunity to adapt award provisions to the circumstances of their business and are not able to influence Commission proceedings.

Current Situation:

The Commission is not required to specifically take into account the needs and circumstances of small business in its hearings or in establishing its rules and procedures.  This situation is compounded by the absence of an organisation representing the specific views/interests of small business in Commission cases which are of particular importance to small business such as award Safety Net Adjustment (SNA) cases, other test cases and certain roping-in cases.

Objectives:

The Government’s objective is to increase the extent to which the Commission takes into account the circumstances of small business in its decisions and in its rules and procedures.

The proposed amended objects address the widespread recognition that the Commission needs to be more widely accessible and easier to use by all participants, especially in the small business sector.  

Option:

Amend the principal object of the Workplace Relations Act 1996 (the WR Act) and the objects of particular parts of the Act, for example Part VI ‘Dispute Prevention and Settlement’, to include references to the special circumstances of small business, and in particular:

•	require the Australian Industrial Relations Commission to take into account the circumstances of employers and employees in small business in performing its functions and in exercising its powers under the Act (including through appropriate changes to its principles, procedures and rules).
Impact analysis (cost and benefits) of the option:

The principal object of the WR Act and the objects of particular parts of the Act embody the overarching policy principles on which the statutory framework for workplace relations in the federal jurisdiction is based.  

While reflecting the refocused role for the Commission in a decentralised workplace relations system, the objects, because they are not detailed and prescriptive in form, allow the Commission discretion in performing its statutory role in relation to the individual matters coming before it.  They do not impose detailed requirements which must be precisely applied in specific cases.  

The objects, as proposed to be amended, would encourage the Commission to take account of the circumstances of small business employers and employees in the exercise of its powers (including where appropriate modifying its practices and procedures to make them less burdensome and complex for small business employers) but how best this objective is to be fulfilled in particular instances and in relation to particular issues, such as  measures  to make  small businesses more aware of Commission decisions and procedures, would primarily be a matter for the Commission’s own judgment.

(a)	Effect on employers

The proposal is targeted at small businesses in the federal jurisdiction.  It is estimated that this constitutes approximately 180 000 small businesses.

The proposal should assist small business as a result of the Commission’s taking more account of small business circumstances in its decisions, rules and procedures.  The Commission would also need to review its rules and procedures where appropriate to assist small businesses involved in Commission proceedings.  They would also require the Commission to take more account of small business needs in test cases and Safety Net Adjustment Cases.  This may assist in gaining small business exemptions such as occurred in the Termination, Change and Redundancy test case in 1984 or in gaining Commission acceptance of arguments to amend the Incapacity to Pay Principle in Safety Net Adjustment Cases.  This should have indirect, beneficial effects on small business activity.  

For example, at present the only formal mechanism available to ameliorate the adverse labour cost effects of arbitrated Safety Net Adjustments on small businesses is the Australian Industrial Relations Commission’s economic Incapacity to Pay wage fixing principle.  Since the introduction of this principle in 1986 employers have had only very limited success in gaining relief from arbitrated labour cost increases, causing the Government to support the modification of the principle in three successive Safety Net Review submissions after 1996.  For the 1999 Safety Net Review decision, the Commonwealth indicated that some 21.2 per cent of firms employing fewer than twenty persons were operating at a loss and that safety net adjustments impacted heavily on businesses in this category.  The Commonwealth proposed modifications to the incapacity to pay principle for respondents or groups of respondents who were experiencing hardship but who in the past had considered the tests specified in the principle to be set at a level which did not warrant the considerable expense associated with mounting a case.

In its decision (Print R1999) the Commission decided not to modify the Incapacity to Pay principle as suggested by the Commonwealth.  However, the Commission amended the principle to recognize that the impact of an increase in labour costs on employment at the enterprise level is a significant factor to be taken into account in assessing the merit of any application.  However, it is the understanding of the Department of Employment and Workplace Relations (DEWR) that there has not been an economic incapacity case pursued in the federal jurisdiction since this decision.  In the Safety Net Review 2002 (PR 002002), the Commonwealth again made submissions supporting amendments to the Incapacity to Pay principle but the Commission decided not to modify the principle.

The Commonwealth remains of the view that the hurdles set by the Commission in considering incapacity to pay applications are set too high.  Amending the objects of the WR Act to encourage the Commission to take account of the circumstances of small business employers would serve a useful purpose if it made the Commission more likely to consider modifying the Incapacity to Pay principle to make it more accessible to applications from small businesses.  

(b)	Effect on employees 

This proposal would potentially impact on the employees of small businesses in the federal jurisdiction.  It is estimated that around 35 per cent of employees in businesses with less than 20 employees are covered by the federal system (around 770 000 employees in 1999-2000).

For employees, there are some possible consequences of the Commission taking more account of the circumstances of small business.  There might be an increase in exemptions such as occurred in the Termination, Change and Redundancy test case or there might be more successful use of incapacity to pay arguments in Safety Net Adjustment cases.  To that extent, employees in financially vulnerable small businesses may find it harder to access standard redundancy pay provisions and safety net wage increases provided for other employees.  The overriding intent of such exemptions, however, would be to protect the employment of the workers concerned.

As indicated above, the Commission’s wage principles now formally recognise that the impact of an increase in labour costs on employment at the enterprise level is a significant factor to be taken into account in assessing the merit of an incapacity to pay application in relation to Safety Net Adjustment cases.  The Commission’s Termination, Change and Redundancy Test Case standard was framed with a view to minimising any differential  cost impact on individual enterprises with consequent adverse effects on employment and the viability of vulnerable companies.  In relation to redundancy pay, the Commission in 1984 provided scope for employers to apply for exemption on the grounds of their employing less than 15 employees.  Employers who employed more than 15 employees could gain a variation in the general severance pay prescription provided they fulfilled an incapacity to pay test.   

(c) Effect on consumers and Australian economy

No direct effects on consumers.  Any indirect beneficial effects on small business activity would also be beneficial to the Australian economy.

Consultation:

No specific consultation on the above option has occurred.

Implementation and Review:

The option would require amendments to the WR Act.  DEWR and the Australian Industrial Registry would monitor and evaluate the effect of such legislative change.

NOTES ON AMENDMENTS

Amendment No. 1 – clause 2, page 2 (at the end of the table)

Clause 2 of the Bill sets out a table that provides for the commencement of the proposed provisions.  Amendment no. 1 adds provision number 6 to the table which provides that the amendments at proposed Schedule 2 to the Bill, concerning the National Labour Consultative Council, will commence on the day on which the Act receives Royal Assent.

Amendment No. 2 – clause 2, page 2 (at the end of the table, after proposed item 6)

This amendment adds extra items to the table dealing with commencement of the provisions proposed by the amendments.

The amendments at Schedule 3, items 15 to 17, dealing with the amendments to the Employment, Workplace Relations and Small Business Legislation Amendment (Application of Criminal Code) Act 2001 and at Schedule 3, items 53 to 55, dealing with the amendments to the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 are proposed to have a retrospective or possible retrospective commencement.  Further explanation for these commencement provisions can be found at items 15, 16 and 17 of Schedule 3 and items 53, 54 and 55 of Schedule 3 below.

The commencements for other new items are routine.

Amendment No. 3 – clause 2, page 2 (line 7)

Subclause 2(3) provides that for items in the table due to commence on a day fixed by Proclamation, if they have not commenced within 6 months of Royal Assent, they then commence.  This amendment adds references into subclause 2(3) to the new items proposed for insertion in the commencement table, which would be commenced by Proclamation, and thus be covered by subclause 2(3).

Amendment No. 4 – page 6, after line 3, at the end of the Bill.  This amendment inserts a new Schedule containing 18 new items.

New Schedule 2 — Changing the name of the National Labour Consultative Council, and other matters relating to the Council

Part 1 — Main amendments

National Labour Consultative Council Act 1977

The purpose of the amendments in Part 1 of this Schedule is to modernise the Act to ensure its relevance and durability by renaming the National Labour Consultative Council the National Workplace Relations Consultative Council, updating the purpose and membership provisions, clarifying the travelling allowance provisions, and enabling regulations to be made for the purposes of the Act.

Item 1 - Title

The short title is to be amended to omit “Labour” and substitute “Workplace Relations”.

Item 2 - Section 1

Section 1 providing the short title is to be amended from the National Labour Consultative Council Act 1977 to the National Workplace Relations Consultative Council Act 2002.  The short title is to incorporate the year in which these amendments are proposed to be made notwithstanding that the Act was made in 1977.  This is a drafting decision.  If the Bill does not pass until 2003 the title will be amended, as a matter of drafting practice, to reflect that.

Item - 3 Section 3 (definition of Council)

Section 3 is to be amended to omit “Labour” and substitute “Workplace Relations”.  The intention is to update this provision to reflect the Government’s workplace relations policies.

Item - 4 Section 4

Section 4 is to be amended to omit “Labour” and substitute “Workplace Relations”.  A Note is to be added to the effect that this same change is to be made to the heading to section 4.  The intention is to update this provision to reflect the Government’s workplace relations policies.

Item 5 - Subsection 5(1)

Subsection 5(1) sets out the purpose of the Council.  The proposed amendments to this provision, to refer to consultations on “workplace relations matters” of national concern and to omit the reference to “manpower matters”, also reflect the Government’s workplace relations policies.

Item 6 - Paragraph 6(1)(d)

The proposed amendment of paragraph 6(1)(d) is to delete the reference to “the Australian Chamber of Manufactures” as this organisation no longer exists.  The Business Council of Australia is to be the replacement organisation.

Item 7 - Paragraph 6(1)(e)

The proposed amendment of paragraph 6(1)(e) is to delete the reference to “the Metal Trades Industry Association of Australia” and substitute “the Australian Industry Group” to reflect the fact that the latter organisation is the legal successor to the MTIA, which no longer exists. 

Item 8 - After subsection 6(1)

Proposed new subsections (1A), (1B) and (1C) to be inserted after subsection 6(1), which deals with the membership of the Council, are intended to provide greater flexibility in accommodating changes in member organisations without the need to amend the Act in each case.

Proposed subsection (1A) is to enable regulations to be made to specify another member organisation if the Minister is satisfied that an organisation has changed its name or merged with another organisation or been succeeded by another organisation.  

Proposed subsection (1B) is to enable regulations to be made to specify a new member organisation if the Minister is satisfied, after consulting members of the Council, that a member organisation has ceased to exist and has not merged with or been succeeded by another organisation and there is another organisation that performs a broadly similar role.  

Proposed subsection (1C) requires the Minister to consult members of the Council before deciding there is another organisation that performs a broadly similar role for the purposes of proposed subsection (1B).  This requirement is intended to ensure that consideration by the Minister in these circumstances is undertaken in full collaboration with all Council members.

A Note is to be added after proposed subsection (1C) to explain that it is not intended to limit by implication the matters the Minister may take into account for the purposes of subsection (1A) or (1B).

Item 9 - Subsection 6(4)

Subsection 6(4) of the Act is to be repealed as it has ceased to operate and is now obsolete.  Section 6, which deals with membership, was repealed and remade in 1995 so subsection 6(4) operated at that time to terminate the appointments of existing Council members while confirming their eligibility to be re-appointed to the newly revamped Council.

Item 10 - Section 7

The proposed amendment of section 7 is for the purpose of removing sexist language.  This is a drafting decision.

Item 11 - At the end of section 8

Proposed subsection (2) is to be added at the end of section 8 to require the Minister to terminate the appointment of any member nominated by an organisation under subsection 6(1) that has ceased to exist and has not merged with or been succeeded by another organisation.  This provision is intended to facilitate the replacement of such a member without the need for the member to resign in writing, as this technical requirement has resulted in delay in the past.

Item 12 – Section 9

New section 9 – Travelling allowance for members

The proposed repeal of section 9 and the substitution of a new provision is intended to simplify the approach to the setting of travelling allowance rates for members by providing a regulation-making power to enable an appropriate rate of travelling allowance to be prescribed by regulation.

The current reference in section 9 to payment of travelling allowance to members “at a rate equal to the highest rate of travelling allowance payable to persons engaged under the Public Service Act 1999” is no longer appropriate given the removal of the setting of service-wide rates of travelling allowance and the devolution of this function to agencies.  Accordingly proposed section 9 will enable regulations to be made for the payment of travelling allowance to a member that could, for example, incorporate by reference the rate of travelling allowance determined by the Remuneration Tribunal for comparable office holders as in force from time to time.  The current rate set by the Tribunal is Tier 2, which may be considered an appropriate benchmark.  The intention is therefore to provide greater flexibility and certainty in the application of this provision.

A Note is to be added at the end of proposed subsection 9(2) to explain that it is not intended to be an exhaustive statement of the ways in which a rate could be identified. 

Item 13 - Subsection 11(4)

The proposed amendment of subsection 11(4) is for the purpose of removing sexist language.  This is a drafting decision.

Item 14 - Subsection 11(4)

The proposed amendment of subsection 11(4) is for the purpose of removing sexist language.  This is a drafting decision.

Item 15 - Subsection 12(2)

The proposed repeal of subsection 12(2) and proposed subsections (2), (3) and (4) mirror the above changes to section 9 (which applies to a member) as they apply to a member of a committee.  

A Note is to be added at the end of proposed subsection 12(3) to explain that it is not intended to be an exhaustive statement of the ways in which a rate could be identified.

Item 16 - At the end of the Act

New section 13 - Regulations

The proposed addition of section 13 at the end of the Act is to enable the Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient for carrying out or giving effect to the Act.  This is a standard provision that would have been included in the Act were it being drafted today, and is intended to make the Act more contemporary and flexible.  

Part 2 — Consequential amendments

Administrative Decisions (Judicial Review) Act 1977

Item 17 - Paragraph (l) of Schedule 1

The renaming of the Council will require the consequential amendment of paragraph (l) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 to omit “National Labour Consultative Council” and substitute “National Workplace Relations Consultative Council”.

Freedom of Information Act 1982

Item 18 - Part 1 of Schedule 2

The renaming of the Council will require the consequential amendment of Part 1 of Schedule 2 to the Freedom of Information Act 1982 to omit “National Labour Consultative Council” and substitute “National Workplace Relations Consultative Council”.

Amendment No. 5 – page 6. at the end of the Bill (after proposed Schedule 2)

This amendment inserts a new schedule containing 61 items.

New Schedule 3 — Other amendments

Part 1 — Amendments

Defence Act 1903 

The purposes of these amendments are to clarify the intention that an ex-ADF member is able to be appointed to the Defence Force Remuneration Tribunal while being a member of the Reserves, to clarify the scope of the acting member provisions, and to remove sexist language from Division 2 of Part IIIA of the Act. 

Item 1 - Section 58F (paragraph (d) of the definition of relevant allowances)

The proposed amendment of paragraph (d) of the definition of relevant allowances is for the purpose of removing sexist language.  This is a drafting decision.

Item 2 - Paragraph 58G(2)(c)

The proposed repeal of paragraph 58G(2)(c) and the substitution of a new paragraph is to make it clear that the Tribunal must include a person who has been formerly, but is no longer, a member of the Permanent Forces although the person may be a member of the Reserves.  

A Note is to be added at the end of the new paragraph to explain that the Permanent Forces are made up of the Permanent Navy, the Regular Army and the Permanent Air Force as established respectively by the Naval Defence Act 1910, the Defence Act 1903 and the Air Force Act 1923.  Those Acts also establish the Naval Reserve, the Army Reserve and the Air Force Reserve, which together make up the Reserves.  The explicit inclusion of reference to membership of the Reserves in proposed paragraph 58G(2)(c) is to reflect Government policy that such members not be precluded from other forms of government service where there is no real or perceived conflict of interest involved.  

Item 3 - Subsection 58G(5) 

Relatedly, the proposed repeal of subsection 58G(5) and the substitution of a new subsection is to make it clear that a person must not be appointed as a member of the Tribunal if he or she has at any time during the year preceding the appointment been a member of the Permanent Forces.  

The above two proposed amendments are in tandem intended to preserve the existing prohibition on the appointment of a person as a member of the Tribunal if he or she has at any time during the year preceding the appointment been a member of the Permanent Forces, while at the same time clearly distinguishing between non-membership of the Permanent Forces in that year and ongoing membership of the Reserves in the consideration of a person for appointment to the Tribunal.

The proposed amendment of subsection 58G(5) is also for the purpose of removing sexist language.  This is a drafting decision.

Item 4 - Subsection 58H(13)
Item 5 - Subsections 58K(1) and (3)

The proposed amendments of subsections 558H(13), 58K(1) and (3) are for the purpose of removing sexist language.  This is a drafting decision.

Item 6 - Subsection 58L(2)

As a corollary to the proposed changes to section 58G, subsection 58L(2) is to be repealed and a new subsection substituted to clarify that a person must not continue to hold office as a member of the Tribunal if he or she becomes a member of the Permanent Forces although he or she may become a member of the Reserves.

At the end of proposed subsection 58L(2), the same Note is to be added as at the end of proposed paragraph 58G(2)(c) to explain the composition of the Permanent Forces and the Reserves.

The proposed amendments to paragraphs 58L(2)(b) and (c) are also for the purposes of removing sexist language.  This is a drafting decision.

Item 7 - Section 58M
Item 8 - Paragraph 58P(1)(b)
Item 9 - Subsection 58P(2)
Item 10 - Subsection 58P(6)
Item 11 - Subsection 58P(7)
Item 12 - Subsection 58P(7)

These proposed amendments are for the purpose of removing sexist language.  This is a drafting decision.

Item 13 - Subsection 58P(8)

The proposed amendments to subsection 58P(8) are to clarify that a reference in sections 58KA, 58KC and 58U to the President or a member of the Tribunal includes a reference to an acting President or acting member of the Tribunal.  The addition of references to sections 58KA and 58KC is to ensure the inclusion of proceedings and review proceedings respectively conducted by a single Tribunal member.  The additional reference to section 58U is to clarify that a person who becomes an acting member of the Tribunal is no longer able to hold the office of Defence Force Advocate.  

Item 14 - Subsection 58Q(2)

The proposed amendment of subsection 58Q(2) is for the purpose of removing sexist language.  This is a drafting decision.

Employment, Workplace Relations and Small Business Legislation Amendment (Application of Criminal Code) Act 2001

Certain clauses of the Employment, Workplace Relations and Small Business Legislation Amendment (Application of Criminal Code) Act 2001 (the Criminal Code Application Act) used the term ‘….omit all the words after ….’.  It was the intention of these words to omit all the words within the section or subsection after the particular named words but not to omit any words after the section or subsection.  In particular, it was not the intention to omit any penalty at the foot of the section or subsection.  If a penalty at the foot of a section or subsection is omitted then the relevant provision is no longer a criminal offence – it is the presence of the penalty that creates the offence.  This is expressly provided for in subsection 4D(1) of the Crimes Act 1914.

It appears that the use of the term ‘… omit all the words after…’ may, however, have had the effect of repealing any and all words that follow, including penalties and notes found at the feet subsection 21(1), section 56 and section 80B of the Industrial Chemicals (Notification and Assessment) Act 1989, which was amended by the Criminal Code Application Act. 

Item 15 - At the end of item 17 of Schedule 1
Item 16 - At the end of item 28 of Schedule 1
Item 17 - At the end of item 41 of Schedule 1

These items will insert the words ‘(but not the penalty)’ or ‘(but not the penalty or the note)’ into the relevant amendments that were made in Schedule 1 to the Criminal Code Application Act, to negate any interpretation that the penalties were meant to be repealed.

This revised wording in the amending provisions will ensure that the provisions remain as offence creating provisions.  It will also provide certainty of interpretation.

The amendments at items 15, 16 and 17 of Schedule 3 are proposed to commence immediately before the commencement of the relevant provisions of the Criminal Code Application Act (which commenced on 2 October 2001) – in other words retrospectively.  The reason that retrospectivity is proposed in this case is because it was never intended that the amendments would decriminalise the provisions – they were always meant to operate as criminal offences.  This is clearly demonstrated by the restatement of the words omitted as an exception to the offence in a separate subsection.  The possible deletions of the penalties (and decriminalisation of the provisions) arose from a drafting error and it is proposed that this error be corrected to ensure an outcome which was clearly intended from the time that the original amendments were made.

Equal Employment Opportunity (Commonwealth Authorities) Act 1987

Item 18 - Subsection 3(1) (definition of responsible Minister)

This item proposes to insert a new definition of ‘responsible Minister’ in the Equal Employment Opportunity (Commonwealth Authorities) Act 1987.  The Act requires relevant authorities to report to the responsible Minister with respect to development and implementation of equal opportunity programs.  The new definition will allow authorities established under the Corporations Act to report to an appropriate Minister. 

Equal Opportunity for Women in the Workplace Act 1999

Item 19 - Subsection 3(1) (definition of higher education institution)

This item proposes to repeal the existing definition of higher education institution and insert a new definition, removing a reference to repealed legislation.  The new definition is not intended to alter the effect and coverage of the legislation.  

Remuneration Tribunal Act 1973

Item 20 - After subsection 7(4A)

The purpose of the amendments to the Act proposed in items 20, 21 and 22 is to the transfer power to the Remuneration Tribunal for determining the rates of travelling allowance for travel within Australia by presidential members and Commissioners of the Australian Industrial Relations Commission (the Commission).  These rates are currently prescribed in the AIRC (Allowances) Regulations 2001 under the Workplace Relations Act 1996.  

Changes are also required to the Workplace Relations Act (see items 25 to 27 of this Schedule).

The proposed addition of paragraph 7(4B) is to expressly empower the Tribunal to inquire into and determine the rates of travelling allowances to be paid to members of the Commission established under section 8 of the Workplace Relations Act, namely, the President, Vice Presidents, Senior Deputy Presidents, Deputy Presidents and Commissioners of the Commission.

Item 21 - At the end of paragraphs 7(9)(a) to (ad)

The proposed addition of “and” at the end of paragraphs 7(9)(a) to (ad) is to clarify that these provisions are cumulative in effect and to accommodate the insertion of proposed paragraph 7(9)(af).  

Item 22 - After paragraph 7(9)(ae)

The proposed insertion of paragraph 7(9)(af) is to provide, in relation to travelling allowances payable to a member of the Commission, that such allowances are be paid in accordance with the determination out of funds that are lawfully available under section 358 of the Workplace Relations Act (see item 52 of this Schedule).  

Workplace Relations Act 1996

Item 23 - After paragraph 3(h)

The proposed amendment will insert a new paragraph 3(h)(a) in the principal object of the Workplace Relations Act 1996 (the Act), requiring the Australian Industrial Relations Commission (the Commission) to take into account the circumstances of employers and employees in small business in performing its functions and in exercising its powers under the Act, including through making appropriate changes to its principles, procedures and rules.  It is anticipated that a review of the Rules would occur at the same time as the Rules are being reviewed pursuant to the proposed amendments in items 29 and 30 of this Schedule.

Item 24 - Subsection 4(1) (paragraph(a) of the definition of public sector employment)

The proposed amendment will clarify that public sector employment includes employment of, or service by, a person under the Parliamentary Service Act 1999.  This corrects an oversight that occurred when references to the Public Service Act 1922 (the 1922 Act) were replaced with references to the Public Service Act 1999.  The Parliamentary Departments had been covered by the 1922 Act prior to its repeal and replacement with the Public Service Act 1999 and the Parliamentary Service Act 1999.

While a reference to the Parliamentary Service Act 1999 is not currently contained in the definition of public sector employment, persons engaged under that Act are still considered to be in public sector employment by virtue of section 84 of the Parliamentary Service Act 1999.  Consequently, the proposed amendment will not extend the definition of public sector employment but will rather make it clear to a reader of the WR Act that it extends to employment under the Parliamentary Service Act 1999.

Item 25 - Paragraph 12(2C)(b)

The purpose of the amendments to the Act proposed in items 25, 26 and 27 is to transfer to the Remuneration Tribunal the power to determine the rates of travelling allowance for travel within Australia by presidential members and Commissioners of the Commission.  Changes are also required to the Remuneration Tribunal Act 1973 (see items 20 to 22 of this Schedule).

The amendments will empower the Tribunal to determine the rates of travelling allowance from time to time for travel within Australia by presidential members of the Commission (namely, the President, Vice Presidents, Senior Deputy Presidents and Deputy Presidents) and Commissioners.  Regulations will be able to prescribe other allowances for presidential members and Commissioners.

These rates are currently prescribed in the AIRC (Allowances) Regulations 2001 under the Act.  

The intention in transferring this power directly to the Tribunal is to enable it to determine the appropriate rates of travelling allowance for presidential members and Commissioners without the need to amend the AIRC (Allowances) Regulations each time the Tribunal determines an increase for comparable statutory office holders in order to flow on the increase to presidential members and Commissioners.

Accordingly, the proposed repeal of paragraph 12(2C)(b) and the substitution of a new paragraph is to transfer to the Remuneration Tribunal the power to determine the rates of travelling allowances from time to time for travel within Australia by a member of the Commission performing duties on a part-time basis. 

Item 26 - Paragraphs 21(1)(b), (2)(b), (2A)(b) and (2B)(b)

The proposed repeal of paragraphs 21(1)(b), (2)(b), (2A)(b) and (2B)(b) and the substitution of new paragraphs are mirror changes to that proposed in item 25 to enable the Tribunal to determine the rate of travelling allowances from time to time for travel within Australia in relation to the offices respectively of the President, Vice President, Senior Deputy President and Deputy President of the Commission.  

Regulations will continue to prescribe other allowances for presidential members.

Item 27 - Paragraph 23(1)(b)

The proposed amendment of paragraph 23(1)(b) in relation to the office of Commissioner is a mirror change to those proposed in item 26.

Regulations will continue to prescribe other allowances for Commissioners.

Item 28 - Paragraph 45(1)(ed)

Paragraph 45(1)(ed) currently provides that an appeal lies to a Full Bench of the Commission, subject to the leave of the Full Bench, against a decision to vary, or not to vary, an award that has been referred to the Commission under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986.  The paragraph should refer to referral of awards and to referral of certified agreements, in accordance with processes set out in s46PW of the Human Rights and Equal Opportunity Commission Act 1986.  The proposed amendment is made for the removal of doubt and to correct this oversight.  

Item 29 - After subsection 48(1)

Proposed item 29 inserts new subsections 48(1A) and 48(1B) after subsection 48(1) of the Act.  Section 48 of the Act relates to the rules of the Commission.

New subsection 48(1A) would require the Commission’s rules to allow applications under Part VIB of the Act, and any ancillary documents relating to those applications, to be made or given to the Commission in electronic form.  Part VIB of the Act relates to certified agreements.

If a document cannot be ‘made’ in electronic form, a copy of the document can be given to the Commission in electronic form.

New subsection 48(1B) would enable the Commission’s rules to allow the Commission to require the original paper application or ancillary document to be produced to the Commission, if that document has previously been given to the Commission in electronic form.

Item 30 - After section 48

Proposed item 30 inserts new section 48A

New section 48A – President must provide certain information etc. to the Minister

New subsection 48A(1) would require the President of the Commission to provide certain information and copies of documents relating to the Commission’s proceedings and actions to the Minister as prescribed by regulations.

New subsection 48A(2) would require the President to provide the information or the copies by the time, and in the form, for example electronic form, prescribed by the regulations.

This provision would ensure the provision of appropriate information to the Minister, generally of an aggregate or like nature, concerning matters within the jurisdiction of the Commission to assist in the Government’s on-going oversight of the operation of the workplace relations system.

Item 31 - Subsection 83BE(3)

The proposed amendment will correct a drafting error in subsection 83BE(3) by fixing an incorrect cross-reference.  The subsection currently refers to non-existent paragraphs 83BB(a), (b) or (c).  This will be replaced by the correct reference to paragraphs 83BB(1)(a), (b) or (c).

Item 32 - At the end of paragraph 88A(d)

This proposed amendment inserts a new object for Part VI of the Act, which deals with Dispute Prevention and Settlement.  It will require the Commission, in performing and exercising its functions and powers in relation to making and varying awards, to take into account the circumstances of employers and employees in small business. 

Item 33 - After subsection 170BI(2)

Division 2 of Part VIA, which provides for the making of equal remuneration orders in appropriate cases, is expressed as giving effect to a number of international instruments.

Section 170BI provides for the additional operation of this Division, based on the conciliation and arbitration power under the Constitution.

This item proposes to insert a subsection allowing the Commission to deal with an application for an order for equal remuneration notwithstanding section 170N of the Act.  

Section 170N prevents the Commission from exercising arbitration powers under Part VI of the Act during a bargaining period.

Section 170N would limit the power of the Commission to deal with an application for an equal remuneration order to the extent it is being dealt with under subsection 170BI(2) (that is as an exercise of the conciliation and arbitration power).

This amendment removes this limitation. 

Item 34 - At the end of section 170CA

This proposed amendment inserts a new subsection in section 170CA to require that the Commission take into account the circumstances of employers and employees in small business in performing its functions, and in exercising its powers, under Division 3 of Part VIA (termination of employment) of the Act.

Item 35 - Subsection 170CD (paragraph (a) of the definition of Commonwealth public sector employee)

As with item 24, this amendment clarifies that a ‘Commonwealth public sector employee’ includes a person in employment under the Parliamentary Service Act 1999.

Item 36 - Section 170FD 
This item inserts references to section 108 in section 170FD – specifying that sections 107 and 108 do not apply to orders for application under section 170FA. 

Section 108 allows the President to deal with industrial disputes or refer matters to a Full Bench on his or her own motion.  Section 170FD provides that section 108 applies to certain applications, even though they are not industrial disputes. 

This will become unnecessary, as a  result of amendments proposed by item 40 – inserting new sections 170JAB and 170JEC – to provide an equivalent though broader mechanism. 

Item 37 - At the end of section 170FD 
This item proposes to add a Note after section 170FD, referring to the fact that the Full Bench and the President may deal with certain applications under sections 170JEB and 170JEC. 

Item 38 - Section 170GD
This item inserts reference to section 108 in section 170GD.  Refer to the explanation at item 36 above.

Item 39 - At the end of section 170GD
This item proposes to add a Note after section 170GD, to the same effect as referred to in item 37 above. 

Item 40 - After section 170JEA

This item proposes to insert new sections 170JEB and 170JEC into the Act, which will allow applications for orders under Division 2 and Subdivisions D and E of Division 3 of Part VIA to be referred to a Full Bench or be handled by the President of the Commission on his or her own motion.  These new sections are modelled on sections 107 and 108 respectively, but refer to matters arising outside of the context of an industrial dispute. 

New section 170JEB – Reference of applications to Full Bench 

This new section would provide for the reference to a Full Bench of applications for orders under Division 2 and Subdivisions D and E of Division 3 of Part VIA.  This new section has been modelled on section 107 (which provides for reference of industrial disputes to a Full Bench), but has been adapted to take account of the differences between applications under Part VIA and industrial disputes.

It is intended that the process for handling references under proposed section 170JEB should be broadly the same as that for industrial disputes under section 107.

New section 170JEC – President may deal with certain applications

This new section provides for the President, on his or her own initiative, to deal with applications for orders under Division 2 and Subdivisions D and E of Division 3 of Part VIA. The new section has been modelled on section 108 (which allows the President to deal with dispute matters on his or her own motion).  However, the provision has been adapted to take into account the differing constitutional bases of applications under Part VIA and industrial disputes which are handled by the Commission under the conciliation and arbitration power. 

It is intended that the manner in which the President can deal with applications under proposed section 170JEC should be broadly the same as that for industrial disputes under section 108 (except in relation to the reference of agreements to a Full Bench under subsection 108(7)).

Item 41 - After subsection 170LA(1)

This item inserts a new subsection 170LA(1A), which requires the Commission, when performing its functions under Part VIB of the Act (Certified Agreements), to take into account the circumstances of employers and employees in small business.

Item 42 - Paragraph 170LU(2)(c)

Paragraph 170LU(2)(c) provides that the Commission must refuse to certify an agreement if the Commission thinks that a provision of the agreement is inconsistent with ‘an injunction granted, or any other order made, by the Court under that Division’.  This reference to ‘the Court’ is limited, by virtue of the definition in section 4 of the Act, to the Federal Court.  The proposed amendment will replace this with a reference to ‘a court’, to reflect the fact that orders with respect to unlawful termination may be made by courts other than the Federal Court.

Item 43 - At the end of section 170N

This item proposes to add a Note after section 170N, referring to proposed subsection 170BI(2A) (see item 33 above) which will allow the Commission to arbitrate an application for an order for equal remuneration notwithstanding section 170N. 

Item 44 - At the end of section 170WK

This amendment makes clear that a Secretary of a Department (within the meaning of the Parliamentary Service Act 1999) may act on behalf of the Commonwealth in relation to AWAs with persons in the Department who are engaged under the Parliamentary Service Act 1999.  While a Secretary of a Department may already act on behalf of the Commonwealth in relation to AWAs, by virtue of section 21 of the Parliamentary Service Act 1999, the amendment will make this clear to a reader of the WR Act.

Item 45 - Section 177A (at the end of the definition of court of competent jurisdiction)

The proposed amendment would include the Industrial Relations Court of South Australia in the definition of court of competent jurisdiction in section 177A.  This will enable employers or employees to take action under the provisions of Division 1 of Part VII of the Act in that Court such as seeking the imposition and recovery of penalties for breaches of an award or certified agreement or for an employee to take action for underpayment of wages under an award, order or certified agreement.  The amendment would also provide for any other State or Territory court to be prescribed by the regulations as a court of competent jurisdiction.  It is anticipated that this regulation making power would only be used in circumstances where a State or Territory requests that this occur.

Item 46 - Subsection 178(1)

The Workplace Relations and Other Legislation Amendment Act 1996 was supposed to remove all references to ‘ban clauses’.  However, the reference in subsection 178(1) was overlooked.  The proposed amendment will correct this oversight.  As ‘bans clauses’ no longer exist under the Act, it will have no practical effect.

Item 47 - Paragraph 298G(2)(a)

The proposed amendment will correct a typographical error by replacing ‘this’ with ‘the’.

Item 48 - Paragraph 298R(d)

The proposed amendment will correct the grammar of the provision.  At present the provision reads that, ‘[a] n industrial association … must not impose … a penalty … on a member of the association:. …(d) has participated in … a secret ballot ordered by an industrial body under an industrial law.’  The amendment would make clear that the industrial association must not impose a penalty on the member of the association ‘because the member has participated in’ a secret ballot.

Item 49 - Paragraph 317(2)(c)
Item 50 - At the end of paragraph 317(2)(g)
Item 51 - Paragraph 317(2)(h)

Proposed items 49 to 51 would amend section 317 of the Act.  These amendments address unforseen consequences of the Criminal Code Application Act.  

The Criminal Code Application Act deleted the proviso 'without lawful authority or excuse' from section 317 of the Act, which deals with offences in relation to ballots involving registered organisations.  Instead, the general defence of ‘lawful authority’ now applies to all offence provisions under Commonwealth law.  Section 10.5 of the Criminal Code provides that:

A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.

With a general defence in place, words in legislation to the same effect became redundant and thus references to ‘lawful authority’ and ‘lawful excuse’ were deleted from each provision in portfolio legislation by the Criminal Code Application Act.

Most of the provisions of subsection 317(2) relate to unlawful conduct, such as impersonating a voter or recording a vote the person is not entitled to record.  However the removal of the proviso, and reliance on the relevant defence in the Criminal Code, has the unintended consequence of prima facie criminalising certain conduct that is meant to be lawful, such as putting a ballot paper in a ballot box.  Proposed items 49 to 51 would clarify the relevant elements of these offences.

Unlike the amendments proposed at item 15, 16 and 17, to the Criminal Code Application Act, no element of retrospectivity is proposed for these amendments – they will commence the day after the present Bill receives Royal Assent.  These proposed amendments do not correct a drafting error – they will, rather, ensure that the provisions operate logically and appropriately.

Item 52 - Section 358 

Section 358 provides for the appropriation for payment of certain salaries and allowances and is proposed to be amended to include a reference to ‘travelling allowance’.  

This amendment is a corollary to the amendments proposed in items 20 to 22 and 25 to 27 of this Schedule to transfer to the Remuneration Tribunal the power to determine the rates of travelling allowance for travel within Australia by presidential members and Commissioners of the Commission.  These rates are currently prescribed in the AIRC (Allowances) Regulations 2001 under the Act, and will continue to be paid in accordance with funds that are lawfully available under section 358 so that the funding of costs (if any) arising from this transfer of power to the Tribunal will be provided from existing Commission appropriations. 

Workplace Relations Legislation Amendment (Registration and Accountability of Organisations)(Consequential Provisions) Act 2002

Item 53 - Item 38 of Schedule 3
Item 54 - Item 39 of Schedule 3
Item 55 - Item 40 of Schedule 3

Proposed items 53 to 55 would amend items 38 to 40 of Schedule 3 to the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (the RAOCP Act) to clarify imprecise cross references in that Act.  Items 38 to 40 of Schedule 3 to the RAOCP Act make consequential amendments to the Criminal Code Act 1995 arising from the amendment of the Workplace Relations Act 1996 (WR Act) by the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002.

Items 53 to 55 would commence immediately before the commencement of items 38 to 40 of Schedule 3 to the RAOCP Act so that the references in the Criminal Code Act 1995 are correct from the commencement of those items of the RAOCP Act.  This may mean that the amendments proposed at items 53 to 55  commence retrospectively, depending on the date on which the RAOCP Act commences.

Part 2 – Application provisions

Item 56 - Application of items 23, 32, 34 and 41

This item provides that the amendments made by items 23, 32, 34 and 41, which amend the principal object of the WR Act and additional objects in particular parts of the WR Act, will apply in relation to any proceedings before the Commission, whether instituted before, on or after the commencement of those items.  

Item 57 - Application of item 28

This item provides that the amendment made by item 28 will apply in relation to any decisions of the Commission whether made before, on or after the commencement of item 28, to vary or not to vary an agreement referred to it under section 46PW of the  Human Rights and Equal Opportunity Commission Act 1986.

Item 58 - Application of items 33 and 43

This item provides that the amendments made by items 33 and 43 will apply in relation to applications for orders for equal remuneration made before, on or after the commencement of those items.

Item 59 - Application of items 36 to 40

This item provides that the amendments made by items 36 to 40 will apply in relation to applications for orders under Division 2 and Subdivision D and E of Division 3 of Part VIA made before, on or after the commencement of those items. 

Item 60 - Application of item 42

This item provides that the amendment made by item 42 will apply in relation to applications for certification of an agreement made before, on or after the commencement of item 42.

Item 61 - Application of item 45

This item provides that the amendment made by item 45, making the Industrial Relations Court of South Australia a court of competent jurisdiction for the purposes of Division 1 of Part VII of the WR Act, will apply in relation to any breach of a term of an award, order or agreement, whether committed before, on or after the commencement of that item.