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This is a Bill, not an Act. For current law, see the Acts databases.


INDUSTRIAL RELATIONS LEGISLATION AMENDMENT BILL 2021

                     Western Australia


Industrial Relations Legislation Amendment
                  Bill 2021

                         Contents

       Part 1 -- Preliminary
 1.    Short title                                               2
 2.    Commencement                                              2
       Part 2 -- Industrial Relations
            Act 1979 amended
 3.    Act amended                                               3
 4.    Section 6 amended                                         3
 5.    Section 7 amended                                         3
 6.    Section 10 amended                                        8
 7.    Section 16 amended                                        9
 8.    Section 20 amended                                       11
 9.    Section 22 amended                                       11
 10.   Section 23 amended                                       12
 11.   Section 23A amended                                      12
 12.   Section 26 amended                                       12
 13.   Section 29 amended                                       13
 14.   Section 31 amended                                       14
 15.   Section 37 amended                                       14
 16.   Sections 37A to 37D inserted                             14
       37A.     Public sector awards and enterprise
                awards                                     14
       37B.     Private sector awards: general             15
       37C.     Private sector awards: limitations on
                making and varying                         16
       37D.     Private sector awards: variations of the
                Commission's own motion                    16
 17.   Section 38 amended                                       18
 18.   Section 40 amended                                       19


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Industrial Relations Legislation Amendment Bill 2021



Contents



      19.     Part II Division 2F heading amended                       20
      20.     Section 49D amended                                       20
      21.     Section 49DA inserted                                     24
              49DA.     Employer obligations in relation to pay
                        slips                                      24
      22.     Section 49E amended                                       26
      23.     Section 49F amended                                       27
      24.     Section 49I amended                                       27
      25.     Section 49K replaced                                      28
              49K.      No entry to premises used for habitation   28
      26.     Section 50 amended                                        29
      27.     Section 50A amended                                       30
      28.     Section 50B amended                                       32
      29.     Part II Division 3AA inserted                             32
              Division 3AA -- Workers bullied or sexually
                     harassed at work
              51BF.     Terms used                                 32
              51BG.     Person conducting a business or
                        undertaking                                33
              51BH.     Worker                                     34
              51BI.     Worker bullied or sexually harassed at
                        work                                       35
              51BJ.     Stop bullying or sexual harassment
                        application                                36
              51BK.     Dealing with a stop bullying or sexual
                        harassment application                     36
              51BL.     Power to dismiss stop bullying or sexual
                        harassment applications involving covert
                        operations                                 37
              51BM.     Commission may make stop bullying or
                        sexual harassment orders                   37
              51BN.     Contravening stop bullying or sexual
                        harassment order                           38
      30.     Section 51BJ amended                                      39
      31.     Part II Division 3B replaced                              39
              Division 3B -- Equal remuneration
              51O.      Equal remuneration orders                  39
              51P.      Employer not to reduce remuneration        41
              51Q.      Alternative remedies                       41
              51R.      Remuneration-related action                42
      32.     Section 52 amended                                        42
      33.     Section 52A inserted                                      43
              52A.      Counterpart federal body                   43
      34.     Section 55 amended                                        45
      35.     Section 59 amended                                        45

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                                                                   Contents



36.   Section 71 amended                                              45
37.   Section 71A amended                                             47
38.   Part 2AA inserted                                               48
      Part 2AA -- Employers declared not to be national
             system employers
      Division 1 -- Declarations
      80A.      Employers declared not to be national
                system employers                              48
      Division 2 -- Change from federal to State system
      80B.      Terms used                                    48
      80BA.     Operation of awards, industrial
                agreements or orders                          49
      80BB.     New State instruments                         50
      80BC.     Amendment of new State instruments            51
      80BD.     Ability to carry over matters                 52
      80BE.     References in new State instruments to
                federal industrial authority and General
                Manager                                       52
      80BF.     References in new State instruments to
                provisions of Commonwealth laws               53
      80BG.     References in new State instruments to
                federal organisations                         53
      80BH.     Named parties to new State instruments        54
      80BI.     Employment under old federal instrument       54
      80BJ.     Leave accrued immediately before
                relevant day                                  55
      80BK.     Leave taken under old federal instrument      55
39.   Section 80E amended                                             56
40.   Section 80I amended                                             56
41.   Section 80R amended                                             56
42.   Part III Division 1 heading inserted                            56
      Division 1 -- Industrial magistrate's court
43.   Section 81B amended                                             56
44.   Section 81CA amended                                            57
45.   Section 81G inserted                                            58
      81G.      Industrial inspectors may assist industrial
                magistrate's court                            58
46.   Part III Division 2 heading inserted                            58
      Division 2 -- Enforcement generally
47.   Section 83 amended                                              58
48.   Section 83A amended                                             61
49.   Section 83B amended                                             62
50.   Section 83C amended                                             63
51.   Section 83E amended                                             64

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Industrial Relations Legislation Amendment Bill 2021



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      52.     Sections 83EA and 83EB inserted                              66
              83EA.     Serious contravention of entitlement
                        provision or civil penalty provision          66
              83EB.     Employer to have burden of disproving
                        certain allegations by applicant under
                        s. 83                                         68
      53.     Section 84 amended                                           68
      54.     Section 84AA inserted                                        69
              84AA.     Illegal contracts of employment may be
                        treated as valid                              69
      55.     Section 84A amended                                          70
      56.     Part III Divisions 3 to 5 inserted                           70
              Division 3 -- Civil infringement notices
              84B.      Terms used                                    70
              84C.      Giving civil infringement notice              71
              84D.      Content of civil infringement notice          71
              84E.      Amount of civil infringement notice penalty   73
              84F.      Time for payment of civil infringement
                        notice penalty                                73
              84G.      Extension of time to pay civil infringement
                        notice penalty                                73
              84H.      Withdrawal of civil infringement notice       74
              84I.      Effect of payment of civil infringement
                        notice penalty                                75
              84J.      Refund of civil infringement notice penalty   75
              Division 4 -- Enforceable undertakings
              84K.      Terms used                                    75
              84L.      Application of Division                       76
              84M.      Enforceable undertaking                       76
              84N.      Enforcement of enforceable undertakings       76
              Division 5 -- Compliance notices
              84O.      Terms used                                    77
              84P.      Application of Division                       77
              84Q.      Giving compliance notice                      77
              84R.      Relationship with enforceable
                        undertakings                                  78
              84S.      Relationship with proceedings under s. 83     79
              84T.      Person must comply with compliance
                        notice                                        79
              84U.      Review of compliance notices                  80
              84V.      Withdrawal of compliance notice               80
      57.     Section 86 amended                                           81
      58.     Section 91A inserted                                         81
              91A.      Court's power to order costs and
                        expenses                                      81
      59.     Section 93 amended                                           82

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60.   Section 96 amended                                            82
61.   Part 6B inserted                                              82
      Part 6B -- Protection of employee rights
      Division 1 -- Preliminary
      97.       Terms used                                   82
      Division 2 -- Damaging action
      97A.      Damaging action because of inquiry or
                complaint                                    83
      97B.      Court orders to employers                    84
      97C.      Court orders to third parties                85
      Division 3 -- Sham contracts for services
      97D.      Misrepresenting contract of employment
                as contract for services                     85
      97E.      Dismissing to engage under contract for
                services                                     86
      97F.      False statement to engage under contract
                for services                                 86
      97G.      Court orders to employers                    87
      Division 4 -- Miscellaneous
      97H.      Certain advertising prohibited               88
62.   Section 97U amended                                           88
63.   Section 97UF amended                                          89
64.   Section 97YA amended                                          89
65.   Section 98 amended                                            89
66.   Section 98A inserted                                          93
      98A.      Information obtained under s. 98 not to be
                disclosed                                    93
67.   Section 102 amended                                           94
68.   Section 103 amended                                           95
69.   Section 112A amended                                          95
70.   Section 117 inserted                                          96
      117.      Savings and transitional provisions for
                Industrial Relations Legislation
                Amendment Act 2021                           96
71.   Schedule 4 amended                                            97
72.   Various penalties amended                                     97
73.   Various references to "prescribed" amended                   100
74.   Various references to "Federal" amended                      101
75.   Various references to titles amended                         101
76.   Various references to "shall" replaced                       105
77.   Various references to gender removed                         116
78.   Various other modernisations                                 129


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Industrial Relations Legislation Amendment Bill 2021



Contents



              Part 3 -- Courts and Tribunals
                   (Electronic Processes
                   Facilitation) Act 2013 amended
      79.     Act amended                                                 137
      80.     Section 6 amended                                           137
              Part 4 -- Long Service Leave Act 1958
                   amended
      81.     Act amended                                                 138
      82.     Part II Division 1 heading inserted                         138
              Division 1 -- General
      83.     Section 4 amended                                           138
      84.     Sections 5 and 6 replaced                                   140
              4A.       Employees with equivalent separate LSL
                        entitlements                                140
              5.        Cashing out of accrued long service leave   141
              6.        Continuous employment                       142
              6A.       Calculating length of continuous
                        employment                                  145
      85.     Part II Division 2 heading inserted                         146
              Division 2 -- Ordinary pay
      86.     Section 7 replaced                                          146
              7.        Ordinary pay: general                       146
              7A.       Ordinary pay: shift premiums, overtime,
                        penalty rates or allowances                 148
              7B.       Ordinary pay: casual employees' loading     148
              7C.       Ordinary pay: board and lodging             149
      87.     Part II Division 3 inserted                                 149
              Division 3 -- Transfer of business
              7D.       Terms used                                  149
              7E.       Transfer of business, old employer, new
                        employer, transferring work                 150
              7F.       Transferring employee                       150
              7G.       Connection between old employer and
                        new employer                                150
              7H.       Status of transferring employees on
                        transfer of business                        152
              7I.       Transfer of employment records              152
      88.     Part III heading amended                                    152
      89.     Section 8 amended                                           153
      90.     Section 9 amended                                           153
      91.     Section 11 amended                                          155

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                                                                  Contents



92.    Section 26 amended                                          156
93.    Section 26A amended                                         158
94.    Section 39 amended                                          159
95.    Part 8 inserted                                             159
       Part 8 -- Savings provisions for Industrial Relations
              Legislation Amendment Act 2021
       40.       Terms used                                 159
       41.       Business transmitted before
                 commencement day                           159
96.    Various references to "shall" replaced                      160
97.    Various references to gender removed                        160
98.    Various other modernisations                                161
       Part 5 -- Minimum Conditions of
            Employment Act 1993 amended
99.    Act amended                                                 163
100.   Section 3 amended                                           163
101.   Section 5 amended                                           164
102.   Section 7 replaced                                          164
       7.        Enforcement of minimum conditions          164
103.   Section 8 amended                                           165
104.   Section 9 deleted                                           165
105.   Section 9A amended                                          165
106.   Section 9B amended                                          165
107.   Part 3 Division 1 heading inserted                          165
       Division 1 -- General
108.   Section 10 amended                                          166
109.   Part 3 Division 2 inserted                                  166
       Division 2 -- Employees with disabilities
       15.       Terms used                                 166
       16.       Application of Act to employee with
                 disability                                 168
       17.       Minimum pay for employee with disability   168
110.   Section 17A amended                                         169
111.   Section 17B replaced                                        170
       17B.      Employee not to be compelled to accept
                 other than money for pay                   170
112.   Section 17BA inserted                                       171
       17BA.     Employees and prospective employees
                 not to be unreasonably compelled to
                 spend or pay amount                        171
113.   Section 17C amended                                         173

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      114.    Section 17E inserted                                        174
              17E.      Certain terms of no effect                  174
      115.    Section 18 amended                                          175
      116.    Part 4 Division 2 replaced                                  177
              Division 2 -- Personal leave
              19.       Personal leave                              177
              20.       Entitlement to paid personal leave          177
              21.       Entitlement to unpaid personal leave        178
              22.       Certain matters as to personal leave not
                        minimum conditions                          179
              22A.      Employee to prove entitlements to
                        personal leave                              179
      117.    Part 4 Division 7 inserted                                  179
              Division 7 -- Unpaid family and domestic violence
                     leave
              39A.      Terms used                                  179
              39B.      Entitlement to unpaid family and domestic
                        violence leave                              180
              39C.      Taking unpaid family and domestic
                        violence leave                              181
              39D.      Employee to prove entitlements to unpaid
                        family and domestic violence leave          181
              39E.      Confidentiality                             181
      118.    Part 6 deleted                                              182
      119.    Part 8 inserted                                             182
              Part 8 -- Transitional provisions for Industrial
                     Relations Legislation Amendment Act 2021
              48.       Term used: commencement day                 182
              49.       Employees with disabilities                 182
              50.       "Under rate employee" provisions in
                        awards                                      183
      120.    Schedule 1 amended                                          185
      121.    Various references to gender removed                        185
              Part 6 -- Public and Bank Holidays
                   Act 1972 amended
      122.    Act amended                                                 187
      123.    Section 3 amended                                           187
      124.    Second Schedule amended                                     188




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                                                          Contents



       Part 7 -- Consequential amendments
            to Work Health and Safety
            Act 2020
       Division 1 -- Work Health and Safety Act 2020
             amended
       Subdivision 1 -- Preliminary
125.   Act amended                                         189
       Subdivision 2 -- Amendments if this Act commences
             before Work Health and Safety Act 2020
126.   Section 360 amended                                 189
127.   Section 361 amended                                 189
       Subdivision 3 -- Other amendments linked to
             commencement of this Act
128.   Schedule 1 amended                                  190
       Division 2 -- Provisions that do not commence
             and are deleted in certain circumstances
129.   Non-commencement and deletion of Division 1
       Subdivision 2                                       191




                                                           page ix
                           Western Australia


                     LEGISLATIVE ASSEMBLY


   Industrial Relations Legislation Amendment
                     Bill 2021

                               A Bill for


An Act --
•  to amend the Industrial Relations Act 1979, the Courts and
   Tribunals (Electronic Processes Facilitation) Act 2013, the Long
   Service Leave Act 1958, the Minimum Conditions of Employment
   Act 1993 and the Public and Bank Holidays Act 1972; and
•  to make consequential amendments to the Work Health and
   Safety Act 2020.



The Parliament of Western Australia enacts as follows:




                                                              page 1
     Industrial Relations Legislation Amendment Bill 2021
     Part 1           Preliminary

     s. 1



1                             Part 1 -- Preliminary
2    1.         Short title
3               This is the Industrial Relations Legislation Amendment
4               Act 2021.

5    2.         Commencement
6         (1)   This Act comes into operation as follows --
7                (a) Part 1 -- on the day on which this Act receives the
8                      Royal Assent;
9                (b) the rest of the Act -- on a day fixed by proclamation,
10                     and different days may be fixed for different provisions.
11        (2)   Subsection (1)(b) is subject to sections 5(3), 30 and 128.




     page 2
                            Industrial Relations Legislation Amendment Bill 2021
                             Industrial Relations Act 1979 amended        Part 2

                                                                            s. 3



1          Part 2 -- Industrial Relations Act 1979 amended
2    3.         Act amended
3               This Part amends the Industrial Relations Act 1979.

4    4.         Section 6 amended
5               In section 6(ac) delete "remuneration for men and women for
6               work of equal value; and" and insert:
7

8               remuneration; and
9


10   5.         Section 7 amended
11        (1)   In section 7(1) delete the definitions of:
12              award
13              canvasser
14              Commonwealth Act
15              employee
16              employer
17              Fair Work Commission
18        (2)   In section 7(1) insert in alphabetical order:
19

20                    approved form means a form approved by the Chief
21                    Commissioner for the purposes of the provision in
22                    which the term is used;
23                    award --
24                      (a) means an award made by the Commission
25                           under this Act; and
26                     (b) for the purposes of section 37C(1), includes an
27                           award made under a law of the Commonwealth,



                                                                         page 3
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 5



1                           another State or a Territory extending to and
2                           binding employees;
3                   employee means --
4                     (a) a person who is employed by an employer to do
5                           work for hire or reward, including as an
6                           apprentice; or
7                     (b) a person whose usual status is that of an
8                           employee;
9                   employer means --
10                    (a) a person or public authority employing 1 or
11                          more employees; or
12                    (b) except as provided in the Foreign States
13                          Immunities Act 1985 (Commonwealth)
14                          section 12, a foreign state or consulate
15                          employing 1 or more employees; or
16                    (c) a labour hire agency or group training
17                          organisation that arranges for an employee
18                          (being a person who is a party to a contract of
19                          service with the agency or organisation) to do
20                          work for another person, even though the
21                          employee is working for the other person under
22                          an arrangement between the agency or
23                          organisation and the other person;
24                  enterprise award means an award that extends to and
25                  binds a single employer who is not a body or entity
26                  referred to in the definition of public sector award;
27                  entitlement provision means --
28                    (a) a provision of any of the following --
29                             (i) an award;
30                            (ii) an industrial agreement;
31                           (iii) an employer-employee agreement;



     page 4
           Industrial Relations Legislation Amendment Bill 2021
            Industrial Relations Act 1979 amended        Part 2

                                                               s. 5



1            (iv)   an order made by the Commission,
2                   other than an order made under
3                   section 23A, 32(8), 44(6) or 66;
4            or
5      (b) a provision of the LSL Act Part III; or
6      (c) a minimum condition of employment as
7            defined in the MCE Act section 3(1);
8    equal remuneration means equal remuneration for
9    men and women for work of equal or comparable
10   value;
11   equal remuneration order has the meaning given in
12   section 51O(2);
13   federal organisation means an organisation of
14   employees registered under the FW (Registered
15   Organisations) Act;
16   FW Act means the Fair Work Act 2009
17   (Commonwealth);
18   FW Commission means the body established by the
19   FW Act section 575;
20   FW (Registered Organisations) Act means the Fair
21   Work (Registered Organisations) Act 2009
22   (Commonwealth);
23   FW (Transitional) Act means the Fair Work
24   (Transitional Provisions and Consequential
25   Amendments) Act 2009 (Commonwealth);
26   industrial instrument means --
27     (a) an award; or
28     (b) an order of the Commission under this Act; or
29     (c) an industrial agreement; or
30     (d) for the purposes of section 49D or in relation to
31           a SWIIP -- an employer-employee agreement;



                                                        page 5
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 5



1                   LSL Act means the Long Service Leave Act 1958;
2                   MSI Act means the Mines Safety and Inspection
3                   Act 1994;
4                   OSH Act means the Occupational Safety and Health
5                   Act 1984;
6                   private sector award means an award other than a
7                   public sector award or enterprise award;
8                   produce includes exhibit, send or deliver;
9                   public sector award means an award that only extends
10                  to and binds the following --
11                    (a) a public sector body as defined in the Public
12                          Sector Management Act 1994 section 3(1);
13                    (b) an entity specified in the Public Sector
14                          Management Act 1994 Schedule 1 column 2;
15                  record-related civil penalty provision means the
16                  following --
17                    (a) section 49D(1), (6) or (8);
18                    (b) section 49DA(1) or (3);
19                    (c) section 49E(1);
20                    (d) section 102(1)(a);
21                    (e) the LSL Act section 7I(2), 26(1) or (2)
22                          or 26A(1);
23                  serious contravention has the meaning given in
24                  section 83EA(2);
25                  supported wage industrial instrument provision or
26                  SWIIP means a provision of an industrial instrument
27                  that --
28                    (a) applies to an employee with a disability; and
29                    (b) provides a means (a wage assessment tool) for
30                          the assessment of whether, and the extent to
31                          which, the employee's productive capacity is
32                          reduced because of the disability; and

     page 6
                          Industrial Relations Legislation Amendment Bill 2021
                           Industrial Relations Act 1979 amended        Part 2

                                                                                    s. 5



1                   (c)   provides that the employer may pay a wage
2                         that --
3                            (i) relates to the employee's productive
4                                capacity as assessed using the wage
5                                assessment tool; and
6                           (ii) may be less than the applicable
7                                minimum wage in the industrial
8                                instrument;
9                 Supported Wage System or SWS means the scheme
10                known by that name established by the Commonwealth
11                Government to enable the assessment of whether, and
12                the extent to which, a person's productive capacity is
13                reduced because of a disability;
14

15   (3)   In section 7(1) delete the definitions of:
16         MSI Act
17         OSH Act
18         Notes for this subsection:
19         1.    If the Work Health and Safety Act 2020 Part 15 Division 4
20               Subdivision 5 comes into operation on or before the day on which
21               subsection (2) comes into operation, this subsection will be proclaimed
22               to come into operation on the same day as subsection (2).
23         2.    If the Work Health and Safety Act 2020 Part 15 Division 4
24               Subdivision 5 comes into operation after the day on which
25               subsection (2) comes into operation, this subsection will be proclaimed
26               to come into operation on the day on which Part 15 Division 4
27               Subdivision 5 of that Act comes into operation.

28   (4)   In section 7(1) in the definition of industry delete paragraph (b)
29         and insert:
30

31                  (b)    the performance of the functions of any public
32                         authority;
33




                                                                                page 7
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 6



1         (5)    In section 7(1) in the definition of public authority after
2                "means" insert:
3

4                the Crown,
5

6         (6)    After section 7(1a) insert:
7

8                (2)     In subsection (2A) --
9                        bullying or sexual harassment means behaviour to
10                       which section 51BI(1) or (3) applies;
11                       worker has the meaning given in section 51BH.
12              (2A)     A matter relating or pertaining to the bullying or sexual
13                       harassment of a worker is an industrial matter.
14

15        (7)    Delete section 7(5).
16        (8)    In section 7(7) delete "section 29(1)(b)(ii)" and insert:
17

18               section 29(1)(d)
19


20   6.          Section 10 amended
21               In section 10:
22                 (a) delete "attained the age of 65 years" and insert:
23

24                        reached 70 years of age
25

26                 (b)    delete "attaining the age of 65 years." and insert:
27

28                        reaching 70 years of age.
29




     page 8
                              Industrial Relations Legislation Amendment Bill 2021
                               Industrial Relations Act 1979 amended        Part 2

                                                                              s. 7



1    7.           Section 16 amended
2         (1)     In section 16(1) delete "(1aa)" and insert:
3

4                 (1AA)
5

6         (2)     Delete section 16(1aa) and insert:
7

8               (1AA) The Chief Commissioner is responsible for matters of
9                     an administrative nature relating to the Commission
10                    and commissioners, including the following --
11                      (a) giving directions about the practices and
12                           procedures to be followed by the Commission;
13                      (b) developing and implementing performance
14                           standards and setting benchmarks for the
15                           Commission;
16                      (c) overseeing the proper use of the resources of
17                           the Commission;
18                      (d) managing the business of the Commission,
19                           including by ensuring that the Commission
20                           operates efficiently and effectively and
21                           continually improves the way in which it
22                           carries out its functions;
23                      (e) providing leadership and guidance to the
24                           Commission and engendering cohesiveness and
25                           collaboration amongst commissioners;
26                       (f) being responsible for promoting the training,
27                           education and professional development of
28                           commissioners.
29




                                                                           page 9
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 7



1       (3)     After section 16(1ac) insert:
2

3             (1AD) Except as provided in subsection (1AE),
4                   subsections (1AA) to (1ac) apply, with the necessary
5                   modifications, to commissioners appointed under
6                   section 81B(2A) as industrial magistrates.
7             (1AE)    Directions under subsection (1AA)(a) cannot limit the
8                      judicial independence of commissioners appointed as
9                      industrial magistrates.
10

11      (4)     Delete section 16(2D) and (2E).
12      (5)     If the Work Health and Safety Act 2020 Part 15 Division 4
13              Subdivision 5 comes into operation on or before the day on
14              which section 5(2) of this Act comes into operation,
15              subsection (4) --
16                (a) does not come into operation; and
17                (b) is deleted when section 5(2) of this Act comes into
18                      operation.
19              Notes for this subsection:
20              1.    If the Work Health and Safety Act 2020 Part 15 Division 4
21                    Subdivision 5 comes into operation after the day on which section 5(2)
22                    of this Act comes into operation, see Part 7 Division 1 Subdivision 2.
23              2.    See also section 129.

24      (6)     After section 16(3) insert:
25

26              (4)    The Chief Commissioner may do all things necessary
27                     or convenient to be done in the performance of the
28                     Chief Commissioner's functions.
29




     page 10
                      Industrial Relations Legislation Amendment Bill 2021
                       Industrial Relations Act 1979 amended        Part 2

                                                                           s. 8



1    8.   Section 20 amended
2         After section 20(2) insert:
3

4         (3)   If a commissioner has, under section 81B(2A), been
5               appointed as an industrial magistrate, the
6               commissioner's remuneration must be the higher of
7               that provided under --
8                 (a) subsection (2); or
9                 (b) the Magistrates Court Act 2004 Schedule 1
10                      clause 5(2).
11        (4)   The Chief Commissioner may, in exceptional
12              circumstances, approve the taking by a commissioner
13              appointed as an industrial magistrate of paid sick leave
14              in addition to any paid sick leave that the
15              commissioner's conditions of service may have entitled
16              the commissioner to take.
17        (5)   A commissioner appointed as an industrial magistrate
18              may, subject to section 22(3), at the same time hold the
19              office of commissioner and industrial magistrate but
20              not otherwise.
21


22   9.   Section 22 amended
23        After section 22(2) insert:
24

25        (3)   A commissioner appointed as an industrial magistrate
26              must not work as a legal practitioner (whether for
27              financial reward or not), or engage in other work for
28              financial reward, outside the functions of a
29              commissioner and industrial magistrate, unless
30              permitted to do so by the Governor.
31




                                                                   page 11
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     s. 10



1    10.       Section 23 amended
2              In section 23(3)(c) before "make" insert:
3

4              except as provided in section 49K(3),
5


6    11.       Section 23A amended
7              Delete section 23A(2) and insert:
8

9              (2)   In determining whether the dismissal of an employee
10                   was harsh, oppressive or unfair the Commission must
11                   have regard to the following --
12                     (a) whether, at the time of the dismissal, the
13                           employee --
14                             (i) was employed for a probationary period
15                                  agreed between the employer and
16                                  employee; and
17                            (ii) had been employed on that basis for a
18                                  period of less than 3 months;
19                     (b) whether, at the time of the dismissal, the
20                           employee was employed in a private home to
21                           provide services directly to the employer or a
22                           member of the employer's family or household.
23


24   12.       Section 26 amended
25             In section 26(2B) in the definition of public sector decision
26             paragraph (c) delete "decision that" and insert:
27

28             decision (except an equal remuneration order) that
29




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                                Industrial Relations Act 1979 amended        Part 2

                                                                              s. 13



1    13.         Section 29 amended
2          (1)   Delete section 29(1)(b) and insert:
3

4                       (b)     except as provided in section 51Q(2), in the
5                               case of an equal remuneration order -- by an
6                               application made by any of the following --
7                                  (i) an employee to be covered by the order;
8                                 (ii) an organisation in which employees to
9                                       be covered by the order are eligible to
10                                      be enrolled as members;
11                               (iii) an organisation in which employers of
12                                      employees to be covered by the order
13                                      are eligible to be enrolled as members;
14                               (iv) UnionsWA;
15                                (v) the Chamber;
16                               (vi) the Minister;
17                              (vii) the Commissioner for Equal
18                                      Opportunity;
19                              and
20                       (c)    in the case of a claim by an employee that the
21                              employee has been harshly, oppressively or
22                              unfairly dismissed from the employee's
23                              employment -- by the employee; and
24                      (d)     in the case of a claim by an employee that the
25                              employer has not allowed the employee a
26                              benefit, other than a benefit under an award or
27                              order, to which the employee is entitled under
28                              the contract of employment -- by the
29                              employee; and
30                       (e)    in the case of an industrial matter mentioned in
31                              section 7(2A) -- by the worker.
32




                                                                           page 13
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     Part 2           Industrial Relations Act 1979 amended

     s. 14



1          (2)   In section 29(2) and (3) delete "subsection (1)(b)(i)" and insert:
2

3                subsection (1)(c)
4


5    14.         Section 31 amended
6                In section 31(1)(c)(ii) delete "section 29(1)(b)" and insert:
7

8                section 29(1)(c) or (d)
9


10   15.         Section 37 amended
11               Delete section 37(1) and insert:
12

13               (1)   An award has effect according to its terms.
14               (2)   Except as provided in its terms, an award operates
15                     throughout the State, other than in the areas to which
16                     section 3(1) applies.
17

18               Note: The heading to amended section 37 is to read:
19                     Effect, area of operation and duration of award

20   16.         Sections 37A to 37D inserted
21               After section 37 insert:
22


23           37A.      Public sector awards and enterprise awards
24                     Except as provided in its terms, a public sector award
25                     or enterprise award extends to and binds --
26                       (a) employees employed in a calling specified in
27                             the award in the industry or industries to which
28                             the award applies; and

     page 14
                    Industrial Relations Legislation Amendment Bill 2021
                     Industrial Relations Act 1979 amended        Part 2

                                                                       s. 16



1             (b)    employers employing those employees.

2    37B.    Private sector awards: general
3      (1)   Except as provided in its terms, a private sector award
4            extends to and binds --
5              (a) employers --
6                      (i) of a class or classes specified in the
7                           award; or
8                     (ii) specified by name in the award;
9                   and
10             (b) employees --
11                     (i) of employers referred to in
12                          paragraph (a); and
13                    (ii) of a class or classes specified in the
14                          award.
15     (2)   For the purposes of subsection (1)(a)(i) and (b)(ii), the
16           class may be described by reference to --
17             (a) a particular industry or part of an industry; or
18             (b) a particular kind of work.
19     (3)   A private sector award may be made or varied to --
20            (a) prevent any overlap with another award; and
21            (b) extend to and bind a labour hire agency, and
22                  any employees of a labour hire agency,
23                  conducting business --
24                     (i) in an industry to which the award
25                          relates; and
26                    (ii) in relation to employees to whom a
27                          classification in the award applies.




                                                                  page 15
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 16



1            37C.    Private sector awards: limitations on making and
2                    varying
3              (1)   A private sector award must not be made or varied to
4                    extend to and bind a class of employees --
5                      (a) who, because of the seniority of their role, have
6                            traditionally not been covered by awards
7                            (whether made under laws of the State, the
8                            Commonwealth, another State or a Territory);
9                            or
10                     (b) who perform work that is not of a similar nature
11                           to work that has traditionally been regulated by
12                           such awards.
13                   Example for this subsection:
14                          In some industries, managerial employees have traditionally
15                          not been covered by awards.

16             (2)   The scope of a private sector award must not be fixed
17                   by reference to an industry or part of an industry
18                   carried on by an employer if the Commission makes or
19                   varies the private sector award to extend to and bind an
20                   employer specified by name in the award.
21             (3)   A private sector award must not be made or varied to
22                   extend to and bind an employee and employer if a
23                   public sector award or enterprise award extends to and
24                   binds the employee and employer.

25           37D.    Private sector awards: variations of the
26                   Commission's own motion
27             (1)   Except as provided in this section, the Commission
28                   may vary the scope of a private sector award of its own
29                   motion.




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                  Industrial Relations Act 1979 amended        Part 2

                                                                    s. 16



1    (2)   A variation must not be made in relation to --
2           (a) an application under section 50(2) that does not
3                 seek the variation of the scope of the private
4                 sector award; or
5           (b) a State Wage order under section 50A.
6    (3)   A variation must specify that the scope of the private
7          sector award extends to and binds --
8            (a) employers of a class or classes specified in the
9                  award, whether or not the employers are also
10                 specified by name in the award; and
11           (b) employees --
12                   (i) of employers referred to in
13                         paragraph (a); and
14                  (ii) of a class or classes specified in the
15                         award.
16   (4)   For the purposes of subsection (3)(a) and (b)(ii), the
17         class may be described by reference to --
18           (a) a particular industry or part of an industry; or
19           (b) a particular kind of work.
20   (5)   A variation that stops the private sector award from
21         extending to and binding particular employers or
22         employees must not be made unless the Commission is
23         satisfied that another appropriate award will extend to
24         and bind them.
25   (6)   The Commission must not make a variation under this
26         section until it has --
27           (a) published the proposed variation in the required
28                 manner; and




                                                              page 17
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     Part 2           Industrial Relations Act 1979 amended

     s. 17



1                       (b)   given notice of the proposed variation to --
2                                (i) UnionsWA, the Chamber, the Mines
3                                     and Metals Association and the
4                                     Minister; and
5                               (ii) any organisations, associations and
6                                     employers as the Commission may
7                                     direct (being, in the case of employers,
8                                     employers constituting, in the opinion of
9                                     the Commission, a sufficient number of
10                                    employers reasonably representative of
11                                    the employers who would be bound by
12                                    the proposed variation);
13                            and
14                      (c)   afforded the persons or bodies referred to in
15                            paragraph (b) an opportunity to be heard in
16                            relation to the proposed variation.
17


18   17.         Section 38 amended
19         (1)   In section 38(3):
20                 (a) delete "an award" and insert:
21

22                      a public sector award or enterprise award
23

24                (b)   delete "shall for the purposes of section 37(1) be
25                      expressly limited to that industry." and insert:
26

27                      is expressly limited to that industry for the purposes of
28                      section 37A.
29




     page 18
                               Industrial Relations Legislation Amendment Bill 2021
                                Industrial Relations Act 1979 amended        Part 2

                                                                                  s. 18



1          (2)    In section 38(4) delete "an award" and insert:
2

3                 a public sector award or enterprise award
4


5    18.          Section 40 amended
6          (1)    In section 40(1) delete "sections 29A" and insert:
7

8                 sections 29A, 37C, 37D(5)
9

10         (2)    After section 40(2) insert:
11

12               (2A)   A variation to the scope of a private sector award must
13                      specify that it extends to and binds --
14                        (a) employers of a class or classes specified in the
15                              award, whether or not the employers are also
16                              specified by name in the award; and
17                        (b) employees --
18                                (i) of employers referred to in
19                                       paragraph (a); and
20                               (ii) of a class or classes specified in the
21                                       award.
22               (2B)   For the purposes of subsection (2A)(a) and (b)(ii), the
23                      class may be described by reference to --
24                        (a) a particular industry or part of an industry; or
25                        (b) a particular kind of work.
26

27                Note: The heading to amended section 40 is to read:
28                      Varying and cancelling awards generally




                                                                            page 19
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 19



1    19.         Part II Division 2F heading amended
2                In the heading to Part II Division 2F after "records" insert:
3

4                and pay slips
5


6    20.         Section 49D amended
7          (1)   Delete section 49D(1) and insert:
8

9                (1)    Employment records relating to an employee must be
10                      kept in accordance with this section.
11

12         (2)   In section 49D(2):
13                 (a) delete "details are recorded of --" and insert:
14

15                       the following employment records are kept --
16

17                (b)    in paragraph (a) delete "birth; and" and insert:
18

19                       birth;
20

21                (c)    after paragraph (a) insert:
22

23                      (aa)      the employer's name and Australian Business
24                                Number (if any);
25

26                (d)    in paragraph (b) delete "applies; and" and insert:
27

28                       applies;
29




     page 20
                   Industrial Relations Legislation Amendment Bill 2021
                    Industrial Relations Act 1979 amended        Part 2

                                                                  s. 20



1    (e)    in paragraph (c) delete "employer; and" and insert:
2

3           employer;
4

5     (f)   after paragraph (d)(iii) delete "and";
6    (g)    in paragraph (e)(ii) delete "the industrial instrument;
7           and" and insert:
8

9           an industrial instrument or the MCE Act and any
10          amount withheld as tax; and
11

12   (h)    after paragraph (e)(iii) delete "and";
13    (i)   after paragraph (e) insert:
14

15          (ea)    any incentive based payment, bonus, loading,
16                  penalty rates or another monetary allowance or
17                  separately identifiable entitlement;
18

19   (j)    in paragraph (f) delete "unpaid; and" and insert:
20

21          unpaid;
22

23   (k)    delete paragraph (g) and insert:
24

25          (fa)    any agreement under the MCE Act section 8(1),
26                  including details of --
27                     (i) the benefit for, and the amount of,
28                         annual leave that was foregone; and
29                    (ii) when the benefit was paid;




                                                                page 21
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 20



1                      (g)   the information necessary for the calculation of,
2                            and payment for, long service leave under the
3                            LSL Act, the Construction Industry Portable
4                            Paid Long Service Leave Act 1985 or an
5                            industrial instrument;
6

7                (l)   in paragraph (h) delete "the industrial instrument to be
8                      recorded; and" and insert:
9

10                     an industrial instrument to be recorded;
11

12             (m)     in paragraph (i) delete "the industrial instrument." and
13                     insert:
14

15                     an industrial instrument or other entitlement provision;
16

17              (n)    after paragraph (i) insert:
18

19                     (j)   the following matters relating to
20                           superannuation --
21                              (i) the amount of the superannuation
22                                   contributions made;
23                             (ii) the period over which the
24                                   superannuation contributions were
25                                   made;
26                            (iii) the date on which each superannuation
27                                   contribution was made;
28                            (iv) the name of any fund to which a
29                                   superannuation contribution was made;
30                             (v) how the employer worked out the
31                                   amount of superannuation owed;




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                          Industrial Relations Act 1979 amended        Part 2

                                                                        s. 20



1                          (vi)  any election made by the employee as to
2                                the fund to which the contributions are
3                                to be made and the date the election was
4                                made;
5                  (k)    termination-related matters, including --
6                            (i) whether the employee's employment
7                                was terminated by consent, notice,
8                                summarily or in some other specified
9                                manner; and
10                          (ii) the name of the person who terminated
11                               the employee's employment.
12

13   (3)   In section 49D(3):
14           (a) in paragraph (b) after "to" insert:
15

16                 annual and
17

18          (b)    in paragraph (c) delete "entry" and insert:
19

20                 employment record
21

22   (4)   Delete section 49D(4) and insert:
23

24         (4)    An employer who enters into an agreement under the
25                MCE Act section 8(1) must ensure that a copy of the
26                agreement is kept as an employment record.
27         (5)    If the SWS or a SWIIP applies to an employee with a
28                disability, an employer must ensure that the following
29                are kept as employment records in relation to the
30                employee --
31                  (a) any agreement entered into under the SWS or a
32                        SWIIP by the employer and the employee;

                                                                     page 23
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     Part 2           Industrial Relations Act 1979 amended

     s. 21



1                     (b)   any other document required to be kept by the
2                           SWS or a SWIIP relating to the determination
3                           of a wage for the employee.
4              (6)   The employer must, as soon as practicable, lodge with
5                    the Registrar a copy of an agreement entered into under
6                    the SWS that is required to be kept under
7                    subsection (5)(a).
8              (7)   If an employer makes a payment to an employee in
9                    cash, the employer must provide a record of payment
10                   to the employee and ensure that a copy of the record of
11                   payment is kept as an employment record.
12             (8)   An employer must not make or keep an employment
13                   record for the purposes of this section that the
14                   employer knows, or could reasonably be expected to
15                   know, is false or misleading.
16             (9)   Subsection (8) does not apply if the employment record
17                   is not false or misleading in a material particular.
18


19   21.       Section 49DA inserted
20             After section 49D insert:
21


22           49DA. Employer obligations in relation to pay slips
23             (1)   An employer must, in accordance with this section,
24                   give a pay slip (in hard copy or electronic form) to each
25                   employee within 1 working day after paying an amount
26                   to the employee in relation to the performance of work.
27             (2)   The pay slip must include the following information --
28                    (a) the employer's name and Australian Business
29                          Number (if any);



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            Industrial Relations Act 1979 amended        Part 2

                                                           s. 21



1    (b)    the employee's name;
2    (c)    the period to which the pay slip relates;
3    (d)    the date on which the payment referred to in the
4           pay slip was made;
5    (e)    the gross and net amounts of the payment and
6           any amount withheld as tax;
7    (f)    any incentive based payment, or payment of a
8           bonus, loading, penalty rates or another
9           monetary allowance or separately identifiable
10          entitlement;
11   (g)    if an amount is deducted from the gross amount
12          of the payment --
13             (i) the name of the person in relation to
14                  whom or which the deduction was
15                  made; and
16            (ii) if the deduction was paid into a fund or
17                  account -- the name, or the name and
18                  number, of the fund or account; and
19           (iii) the purpose of the deduction;
20   (h)    if the employee is paid at an hourly rate of
21          pay --
22             (i) the rate of pay for the employee's
23                  ordinary hours; and
24            (ii) the number of hours worked during the
25                  period to which the pay slip relates; and
26           (iii) the amount of the payment made at that
27                  rate;
28   (i)    if the employee is paid at a weekly or an annual
29          rate of pay -- the rate as at the latest date to
30          which the payment relates;




                                                        page 25
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 22



1                      (j)   if the employer is required to make
2                            superannuation contributions for the benefit of
3                            the employee --
4                               (i) the amount of each contribution that the
5                                    employer made during the period to
6                                    which the pay slip relates and the name,
7                                    or the name and number, of any fund to
8                                    which the contribution was made; or
9                              (ii) the amounts of contributions that the
10                                   employer is liable to make in relation to
11                                   the period to which the pay slip relates,
12                                   and the name, or the name and number,
13                                   of any fund to which the contributions
14                                   will be made.
15             (3)   An employer must not give a pay slip for the purposes
16                   of this section if the pay slip is false or misleading.
17             (4)   Subsection (3) does not apply if --
18                    (a) the employer gives the pay slip without
19                          knowing, or being reasonably expected to
20                          know, that it is false or misleading; or
21                    (b) the pay slip is not false or misleading in a
22                          material particular.
23


24   22.       Section 49E amended
25             In section 49E(2)(a):
26               (a) after "the" insert:
27

28                    employment
29




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                             Industrial Relations Legislation Amendment Bill 2021
                              Industrial Relations Act 1979 amended        Part 2

                                                                              s. 23



1                 (b)   delete "section 49D(3); and" and insert:
2

3                       section 49D; and
4


5    23.         Section 49F amended
6                In section 49F delete "section 49D(2), 49D(3)" and insert:
7

8                section 49D(1), (6) or (8), 49DA(1) or (3)
9


10   24.         Section 49I amended
11         (1)   In section 49I(1) delete "Long Service Leave Act 1958, the MCE
12               Act, the Occupational Safety and Health Act 1984, the Mines
13               Safety and Inspection Act 1994" and insert:
14

15               LSL Act, the MCE Act, the OSH Act, the MSI Act, the
16               Construction Industry Portable Paid Long Service Leave
17               Act 1985
18

19         (2)   If the Work Health and Safety Act 2020 Part 15 Division 4
20               Subdivision 5 comes into operation on or before the day on
21               which section 5(2) of this Act comes into operation,
22               subsection (1) --
23                 (a) does not come into operation; and
24                 (b) is deleted when section 5(2) of this Act comes into
25                       operation.




                                                                         page 27
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 25



1          (3)   In section 49I(1) delete "Long Service Leave Act 1958, the MCE
2                Act, the Work Health and Safety Act 2020" and insert:
3

4                LSL Act, the MCE Act, the Work Health and Safety Act 2020,
5                the Construction Industry Portable Paid Long Service Leave
6                Act 1985
7

8          (4)   If the Work Health and Safety Act 2020 Part 15 Division 4
9                Subdivision 5 comes into operation after the day on which
10               section 5(2) of this Act comes into operation, subsection (3) --
11                 (a) does not come into operation; and
12                 (b) is deleted when section 5(2) of this Act comes into
13                       operation.
14               Notes for subsections (2) to (4):
15               1.     If the Work Health and Safety Act 2020 Part 15 Division 4
16                      Subdivision 5 comes into operation after the day on which section 5(2)
17                      of this Act comes into operation, see also Part 7 Division 1
18                      Subdivision 2.
19               2.     See also section 129.

20         (5)   In section 49I(2)(c) delete "view" and insert:
21

22               view, and take photographs, films and audio, video or other
23               recordings of,
24


25   25.         Section 49K replaced
26               Delete section 49K and insert:
27


28           49K.       No entry to premises used for habitation
29               (1)    Except as provided in subsection (3), an authorised
30                      representative does not have authority under this
31                      Division to enter any part of premises principally used


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                        Industrial Relations Act 1979 amended        Part 2

                                                                          s. 26



1                for habitation by an employer or a member of the
2                employer's household (habitation premises).
3          (2)   An authorised representative may apply to the
4                Commission for an order permitting the authorised
5                representative to enter habitation premises under
6                section 49I(1).
7          (3)   The Commission may make the order only if it is
8                satisfied that exceptional circumstances exist
9                warranting the making of the order.
10


11   26.   Section 50 amended
12         After section 50(4) insert:
13

14         (5)   A General Order that varies the scope of a private
15               sector award must specify that it extends to and
16               binds --
17                 (a) employers of a class or classes specified in the
18                       award, whether or not the employers are also
19                       specified by name in the award; and
20                 (b) employees --
21                         (i) of employers referred to in
22                               paragraph (a); and
23                        (ii) of a class or classes specified in the
24                               award.
25         (6)   For the purposes of subsection (5)(a) and (b)(ii), the
26               class may be described by reference to --
27                 (a) a particular industry or part of an industry; or
28                 (b) a particular kind of work.
29




                                                                     page 29
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 27



1    27.           Section 50A amended
2          (1)     Before section 50A(1) insert:
3

4                (1AA) In this section --
5                      instrument-governed employee with a disability means
6                      an employee --
7                        (a) whose contract of employment is governed by
8                               an industrial instrument that includes a SWIIP
9                               that incorporates the SWS; and
10                       (b) whose productive capacity has been assessed
11                              under the SWS as being reduced because of a
12                              disability; and
13                       (c) who is not employed by a supported
14                              employment service as defined in the Disability
15                              Services Act 1986 (Commonwealth) section 7;
16                              and
17                       (d) who is being paid a weekly rate of pay
18                              determined by the SWS under the SWIIP.
19

20         (2)     In section 50A(1):
21                   (a) in paragraph (a) delete "setting --" and insert:
22

23                         setting the following --
24

25                   (b)   after paragraph (a)(ii) insert:
26

27                                (iii)   the minimum amount payable under the
28                                        MCE Act section 17(2);
29




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                                                                           s. 27



1             (c)    delete paragraph (d) and insert:
2

3                    (d)    setting out a statement of principles to be
4                           applied and followed in relation to the exercise
5                           of jurisdiction under this Act to --
6                             (i) set the wages, salaries, allowances or
7                                   other remuneration of employees or the
8                                   prices to be paid in respect of their
9                                   employment; and
10                           (ii) ensure employees receive equal
11                                  remuneration.
12

13   (3)    After section 50A(1) insert:
14

15         (1A)     The amount set by the Commission under
16                  subsection (1)(a)(iii) must be the same as that set by
17                  the FW Commission in the national minimum wage
18                  order under the FW Act section 285(2)(c) for an
19                  eligible employee whose productive capacity is, under
20                  the SWS, assessed as reduced because of a disability.
21         (1B)     For the purposes of subsection (1)(b), the Commission
22                  must, in relation to an instrument-governed employee
23                  with a disability, order the highest of the following --
24                   (a) that the minimum amount payable is to be the
25                          same as in the previous State Wage order;
26                   (b) that the minimum amount payable is to be the
27                          same as that set by the FW Commission in the
28                          national minimum wage order under the
29                          FW Act section 285(2)(c) for an eligible
30                          employee whose productive capacity is, under
31                          the SWS, assessed as reduced because of a
32                          disability.
33



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     Part 2           Industrial Relations Act 1979 amended

     s. 28



1          (4)    In section 50A(3)(a)(vii) delete "remuneration for men and
2                 women for work of equal or comparable value;" and insert:
3

4                 remuneration;
5


6    28.          Section 50B amended
7                 In section 50B(1) delete "section 50A(1)(a)(ii) and (iii)," and
8                 insert:
9

10                section 50A(1)(a)(ii),
11


12   29.          Part II Division 3AA inserted
13                After Part II Division 3 insert:
14


15               Division 3AA -- Workers bullied or sexually harassed
16                                  at work
17           51BF.      Terms used
18                      In this Division --
19                      bullied, at work, has the meaning given in
20                      section 51BI(1);
21                      person conducting a business or undertaking includes a
22                      public authority conducting the business or
23                      undertaking;
24                      sexually harassed, at work, has the meaning given in
25                      section 51BI(3);
26                      stop bullying or sexual harassment application has the
27                      meaning given in section 51BJ(1);




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1            stop bullying or sexual harassment order has the
2            meaning given in section 51BM(1);
3            volunteer means a person who is acting on a voluntary
4            basis (irrespective of whether the person receives
5            out-of-pocket expenses);
6            WA Police means the Police Force of Western
7            Australia provided for by the Police Act 1892;
8            worker has the meaning given in section 51BH.

9    51BG. Person conducting a business or undertaking
10     (1)   A reference in section 51BH to a person conducting a
11           business or undertaking includes a reference to the
12           following --
13             (a) a person conducting the business or
14                  undertaking --
15                     (i) whether alone or with others; and
16                    (ii) whether or not for profit or gain;
17             (b) a partnership, or an unincorporated association,
18                  conducting the business or undertaking;
19             (c) in the case of a partnership (other than an
20                  incorporated partnership) referred to in
21                  paragraph (b) -- each partner in the
22                  partnership.
23     (2)   A reference in section 51BH to a person conducting a
24           business or undertaking does not include a reference to
25           the following --
26             (a) an individual engaged solely as a worker in the
27                   business or undertaking;
28             (b) in the case of a business or undertaking
29                   conducted by a local government or a regional
30                   local government -- a member of the council
31                   of the local government or regional local
32                   government;

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1                     (c)    a volunteer association;
2                     (d)    a person of a prescribed class.
3              (3)   In subsection (2)(c) --
4                    volunteer association means a group of volunteers
5                    working together for 1 or more community purposes
6                    where none of the volunteers, whether alone or jointly
7                    with any other volunteers, employs any person to carry
8                    out work for the volunteer association.

9            51BH. Worker
10             (1)   A person is a worker if the person carries out work in
11                   any capacity for a person conducting a business or
12                   undertaking, including work as any of the following --
13                     (a) an employee;
14                     (b) a contractor or subcontractor;
15                     (c) an employee of a contractor or subcontractor;
16                     (d) an employee of a labour hire agency who has
17                          been assigned to work in the person's business
18                          or undertaking;
19                     (e) an outworker;
20                      (f) an apprentice or trainee;
21                     (g) a student gaining work experience;
22                     (h) a volunteer;
23                      (i) a person of a prescribed class.
24             (2)   A police officer is --
25                    (a) a worker of WA Police; and
26                    (b) at work throughout the time when the officer is
27                          on duty or lawfully performing the functions of
28                          a police officer, but not otherwise.
29             (3)   A person conducting the business or undertaking
30                   referred to in subsection (1) is also a worker if the

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1            person is an individual who carries out work in that
2            business or undertaking.

3    51BI.   Worker bullied or sexually harassed at work
4      (1)   A worker is bullied at work if, while the worker is at
5            work --
6             (a) an individual, or group of individuals,
7                  repeatedly behaves unreasonably towards --
8                    (i) the worker; or
9                   (ii) a group of workers of which the worker
10                         is a member;
11                 and
12            (b) that behaviour creates a risk to the safety or
13                 health of the worker.
14     (2)   Subsection (1) does not apply to reasonable
15           management action carried out in a reasonable manner.
16     (3)   A worker is sexually harassed at work if, while the
17           worker is at work, an individual, or group of
18           individuals --
19             (a) makes an unwelcome sexual advance, or an
20                  unwelcome request for sexual favours, to the
21                  worker in circumstances a reasonable person,
22                  having regard to all the circumstances, would
23                  have anticipated the possibility that the worker
24                  would be offended, humiliated or intimidated;
25                  or
26             (b) engages in other unwelcome conduct of a
27                  sexual nature in relation to the worker in
28                  circumstances a reasonable person, having
29                  regard to all the circumstances, would have
30                  anticipated the possibility that the worker
31                  would be offended, humiliated or intimidated.



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1              (4)   In subsection (3)(b) --
2                    conduct of a sexual nature, in relation to a worker,
3                    includes the following --
4                      (a) making to, or in the presence of, the worker or
5                           another person a statement of a sexual nature
6                           concerning the worker, whether by visual, oral,
7                           written or electronic communication;
8                      (b) publishing a statement of a sexual nature
9                           concerning the worker on the Internet or any
10                          other form of communication.

11           51BJ.   Stop bullying or sexual harassment application
12             (1)   A worker who reasonably believes that the worker has
13                   been bullied or sexually harassed at work may make an
14                   application (a stop bullying or sexual harassment
15                   application) to the Commission for a stop bullying or
16                   sexual harassment order.
17             (2)   The application must be accompanied by any fee
18                   prescribed by the regulations.

19           51BK. Dealing with a stop bullying or sexual harassment
20                 application
21             (1)   The Commission must start to deal with a stop bullying
22                   or sexual harassment application within 14 days after
23                   the application is made.
24             (2)   Section 44 does not apply to a stop bullying or sexual
25                   harassment application.
26             (3)   Section 48A(2) or any other enactment providing for
27                   the resolution of grievances or disputes by workers
28                   does not limit the power of the Commission to deal
29                   with a stop bullying or sexual harassment application
30                   under this Division.



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1    51BL.   Power to dismiss stop bullying or sexual harassment
2            applications involving covert operations
3      (1)   In this section --
4            exercise of a power includes the performance of a
5            function.
6      (2)   The Commission may dismiss a stop bullying or sexual
7            harassment application if the Commission considers
8            that the application might involve matters that relate to
9            the exercise of a power of a police officer in
10           circumstances where --
11             (a) a covert operation is undertaken by WA Police
12                   for the purpose of obtaining information about
13                   criminal activity; and
14             (b) unless the exercise of the power is secret or
15                   confidential, it would be likely that --
16                      (i) the effectiveness of the exercise of the
17                           power is reduced; or
18                     (ii) a person is exposed to the danger of
19                           physical harm arising from the actions
20                           of another person.

21   51BM. Commission may make stop bullying or sexual
22         harassment orders
23     (1)   The Commission may make any order it considers
24           appropriate (other than an order requiring payment of a
25           pecuniary amount by way of compensation to a
26           worker) to prevent a worker from being bullied or
27           sexually harassed at work by an individual or group of
28           individuals (a stop bullying or sexual harassment
29           order) if --
30             (a) the worker has made a stop bullying or sexual
31                   harassment application; and



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1                     (b)   the Commission is satisfied that --
2                              (i) the worker has been bullied or sexually
3                                  harassed at work by an individual or
4                                  group of individuals; and
5                             (ii) there is a risk that the worker will
6                                  continue to be bullied or sexually
7                                  harassed at work by the individual or
8                                  group of individuals.
9              (2)   In considering the terms of the order, the Commission
10                   must take into account --
11                     (a) if the Commission is aware of any final or
12                           interim outcomes arising out of an investigation
13                           into the matter that is being, or has been,
14                           undertaken by another person or body -- those
15                           outcomes; and
16                     (b) if the Commission is aware of any procedure
17                           available to the worker to resolve grievances or
18                           disputes -- that procedure; and
19                     (c) if the Commission is aware of any final or
20                           interim outcomes arising out of any procedure
21                           available to the worker to resolve grievances or
22                           disputes -- those outcomes; and
23                     (d) any matters that the Commission considers
24                           relevant.

25           51BN.   Contravening stop bullying or sexual harassment
26                   order
27             (1)   A person to whom a stop bullying or sexual harassment
28                   order applies must not contravene a term of the order.
29             (2)   A contravention of subsection (1) is not an offence but
30                   the subsection is a civil penalty provision for the
31                   purposes of section 83E.
32



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1    30.     Section 51BJ amended
2            After section 51BJ(2) insert:
3

4            (3)    The Work Health and Safety Act 2020 section 115 does
5                   not apply in relation to a stop bullying or sexual
6                   harassment application.
7

8            Notes for this section:
 9           1.     If the Work Health and Safety Act 2020 section 115 comes into
10                  operation on or before the day on which section 29 of this Act comes
11                  into operation, this section will be proclaimed to come into operation on
12                  the same day as section 29.
13           2.     If the Work Health and Safety Act 2020 section 115 comes into
14                  operation after the day on which section 29 of this Act comes into
15                  operation, this section will be proclaimed to come into operation on the
16                  day on which section 115 comes into operation.

17   31.     Part II Division 3B replaced
18           Delete Part II Division 3B and insert:
19


20                      Division 3B -- Equal remuneration
21         51O.     Equal remuneration orders
22           (1)    In this section --
23                  statement of principles means the statement of
24                  principles referred to in section 50A(1)(d)(ii).
25           (2)    On an application under section 29(1)(b), the
26                  Commission must make an order (an equal
27                  remuneration order) to ensure that an employee
28                  receives equal remuneration if the Commission is
29                  satisfied that the employee does not receive that
30                  remuneration.




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1              (3)   The equal remuneration order may relate to any matter
2                    the Commission considers appropriate, including (but
3                    not limited to) the following --
4                      (a) reclassifying work;
5                      (b) establishing new career paths;
6                      (c) implementing changes to incremental pay
7                            scales;
8                      (d) providing for increases in remuneration rates,
9                            including --
10                              (i) minimum rates of pay in awards,
11                                   industrial agreements and enterprise
12                                   orders; and
13                             (ii) new allowances;
14                     (e) reassessing definitions and descriptions of work
15                           to properly reflect the value of the work.
16             (4)   The Commission must apply the statement of
17                   principles, with any necessary modifications, in --
18                     (a) determining whether an employee receives
19                           equal remuneration; and
20                     (b) deciding the terms of an equal remuneration
21                           order.
22             (5)   For the purposes of subsection (3), this Division
23                   prevails over the statement of principles to the extent of
24                   any inconsistency.
25             (6)   An equal remuneration order may introduce measures
26                   to ensure equal remuneration --
27                     (a) immediately; or
28                     (b) progressively, in stages specified in the order.




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1    51P.    Employer not to reduce remuneration
2      (1)   An employer must not reduce an employee's
3            remuneration because an equal remuneration order, or
4            an application for the order, has been made in relation
5            to the employee.
6      (2)   The purported reduction is of no effect.

7    51Q.    Alternative remedies
8      (1)   Except as provided in subsection (3), this Division does
9            not limit a right a person might otherwise have to a
10           remedy (an alternative remedy) to secure equal
11           remuneration under another provision of this Act or
12           another enactment.
13     (2)   A person who has applied for an alternative remedy in
14           relation to an employee cannot apply for an equal
15           remuneration order in relation to the employee unless
16           the proceedings for the alternative remedy have been
17           withdrawn or determined.
18     (3)   A person who has applied for an equal remuneration
19           order in relation to an employee cannot commence
20           proceedings for an alternative remedy in relation to the
21           employee unless the application for the equal
22           remuneration order has been withdrawn or determined.
23     (4)   Subsection (3) does not prevent an organisation from
24           commencing proceedings --
25             (a) that relate, in part or as a whole, to the securing
26                  of equal remuneration for the employee; and
27             (b) that comprise any of the following --
28                    (i) an application to vary an award under
29                          section 40;
30                   (ii) an application for the registration of an
31                          industrial agreement under section 41;


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1                              (iii)   an initiation of bargaining under
2                                      section 42(1);
3                               (iv)   an application under section 42G for an
4                                      order regarding provisions of an
5                                      industrial agreement;
6                               (v)    an application under section 42I for an
7                                      enterprise order.

8            51R.      Remuneration-related action
9                (1)   In this section --
10                     remuneration-related action means --
11                       (a) the registration of an industrial agreement
12                              under section 41; or
13                       (b) the making of an award under this Act; or
14                       (c) the making of an order under this Act.
15               (2)   The Commission must not take remuneration-related
16                     action that --
17                       (a) prohibits or restricts the making of an
18                             application for an equal remuneration order; or
19                       (b) is inconsistent with, or prohibits or restricts the
20                             application of, an equal remuneration order.
21


22   32.         Section 52 amended
23         (1)   In section 52 insert in alphabetical order:
24

25                     counterpart federal body has the meaning given in
26                     section 52A;
27                     State organisation means an organisation that is
28                     registered under this Division.
29




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1          (2)   In section 52 in the definition of postal ballot delete "him." and
2                insert:
3

4                the person;
5


6    33.         Section 52A inserted
7                After section 52 insert:
8


9            52A.      Counterpart federal body
10               (1)   In this section --
11                     rules, of a branch of a federal organisation, means --
12                       (a) rules relating to the qualifications of persons for
13                              membership; and
14                       (b) rules prescribing the offices that exist within
15                              the branch.
16               (2)   A Western Australian branch of a federal organisation
17                     is a counterpart federal body in relation to a State
18                     organisation if the rules of the branch are, or in
19                     accordance with section 71(2) or (4) are taken to be,
20                     the same as the rules of the State organisation relating
21                     to the corresponding subject matter.
22               (3)   A federal organisation is a counterpart federal body of
23                     a State organisation even though the body does not
24                     have or comprise a Western Australian branch of the
25                     federal organisation if the Commission in Court
26                     Session is of the opinion that the federal organisation is
27                     a counterpart federal body in relation to a State
28                     organisation.




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1              (4)   The Commission in Court Session may form the
2                    opinion referred to in subsection (3) only if --
3                      (a) a substantial number of members of the State
4                           organisation are --
5                              (i) members or eligible to be members of
6                                   the federal organisation; or
7                             (ii) engaged in the same work, in aspects of
8                                   the same work or in similar work as
9                                   members of the federal organisation; or
10                           (iii) employed in the same or similar work
11                                  by employers engaged in the same
12                                  industry as members of the federal
13                                  organisation; or
14                           (iv) engaged in work or in industries for
15                                  which there is a community of interest
16                                  between the federal organisation and the
17                                  State organisation;
18                          or
19                    (b) there is an agreement in force under the FW
20                          (Registered Organisations) Act section 151
21                          between the federal organisation and the State
22                          organisation.
23             (5)   The Commission in Court Session may form the
24                   opinion referred to in subsection (3) despite the fact
25                   that a person who is eligible to be a member of the
26                   State organisation is, by reason of being a member of a
27                   particular class of persons, ineligible to be a member of
28                   that State organisation's counterpart federal body.
29             (6)   The Commission in Court Session may form the
30                   opinion referred to in subsection (3) despite the fact
31                   that a person who is eligible to be a member of the
32                   counterpart federal body is, by reason of being a
33                   member of a particular class of persons, ineligible to be
34                   a member of the State organisation.

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1                (7)   A State organisation may apply to the Commission in
2                      Court Session for a declaration that, for the purposes of
3                      subsection (2) or (3), a Western Australian branch of a
4                      federal organisation, or a federal organisation, is a
5                      counterpart federal body in relation to the State
6                      organisation.
7


8    34.         Section 55 amended
9                In section 55(1)(b) delete "3 copies" and insert:
10

11               a copy
12


13   35.         Section 59 amended
14               In section 59(3) delete "Federal body under that section." and
15               insert:
16

17               federal body.
18


19   36.         Section 71 amended
20         (1)   Delete section 71(1) and (2) and insert:
21

22               (2)   The rules of a State organisation and a counterpart
23                     federal body described in section 52A(2) are taken to
24                     be the same if the rules of the organisation and the
25                     body --
26                       (a) relate to the qualifications of persons for
27                             membership; and
28                       (b) are, in the opinion of the Commission in Court
29                             Session, substantially the same.
30



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1       (2)    Delete section 71(4) and insert:
2

3              (4)   The rules of a State organisation and a counterpart
4                    federal body described in section 52A(2) are taken to
5                    be the same if --
6                      (a) the rules prescribe the offices existing in the
7                            body; and
8                      (b) for every office in the organisation there is a
9                            corresponding office in the body.
10

11      (3)    In section 71(5)(a) delete "Federal body, holds the
12             corresponding office in that body; and" and insert:
13

14             federal body, holds an office described in subsection (5A) in
15             that body; and
16

17      (4)    After section 71(5) insert:
18

19            (5A)   The office referred to in subsection (5)(a) is --
20                    (a) in the case of a counterpart federal body
21                          referred to in section 52A(2) -- the
22                          corresponding office in the body;
23                    (b) in the case of a counterpart federal body
24                          referred to in section 52A(3) -- an office that is
25                          specified in the rules of the State organisation
26                          for the purposes of this subsection and in
27                          relation to which the members of the State
28                          organisation are, under the rules of the
29                          counterpart federal body, entitled to --
30                            (i) nominate a person to be the office
31                                  holder; and



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1                                  (ii)   vote for a person to be the office holder.
2

3          (5)   In section 71(6):
4                  (a) after "State organisation" insert:
5

6                          referred to in section 52A(2) or (3)
7

8                  (b)     delete "organisation of which the State organisation's
9                          counterpart Federal body is the Branch," and insert:
10

11                         branch or organisation that is the State organisation's
12                         counterpart federal body,
13

14               Note: The heading to amended section 71 is to read:
15                       Rules of State and federal organisations as to membership and
16                       offices

17   37.         Section 71A amended
18         (1)   Delete section 71A(1).
19         (2)   After section 71A(2)(b) insert:
20

21                        (ba)    a rule described in section 71(5)(a) relating to
22                                an office described in section 71(5A)(b); and
23                       (bb)     a rule described in section 71(5A)(b); and
24

25               Note: The heading to amended section 71A is to read:
26               State organisation may adopt rules of federal organisation




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1    38.       Part 2AA inserted
2              After section 80 insert:
3


4               Part 2AA -- Employers declared not to be
5                      national system employers
6                            Division 1 -- Declarations
7            80A.    Employers declared not to be national system
8                    employers
9              (1)   This section applies to an employer who, under the
10                   FW Act section 14(2), may be declared by or under a
11                   law of the State not to be a national system employer.
12             (2)   The regulations may --
13                    (a) declare the employer not to be a national
14                          system employer for the purposes of the
15                          FW Act; and
16                    (b) fix a day (the relevant day) for the purposes of
17                          that declaration.

18              Division 2 -- Change from federal to State system
19           80B.    Terms used
20                   In this Division --
21                   declared employee means a person employed by a
22                   declared employer;
23                   declared employer means an employer declared not to
24                   be a national system employer in regulations under
25                   section 80A(2)(a);




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1            federal award means --
2              (a) a modern award under the FW Act; or
3              (b) an award under the repealed Workplace Act
4                    continued in existence under the FW
5                    (Transitional) Act;
6            federal industrial authority means --
7              (a) the Australian Industrial Relations Commission
8                    under the repealed Workplace Act; or
9              (b) the FW Commission;
10           federal industrial instrument means a fair work
11           instrument under the FW Act;
12           national fair work legislation means --
13             (a) the FW Act; or
14             (b) the FW (Transitional) Act;
15           new State instrument has the meaning given in
16           section 80BB(2);
17           old federal instrument has the meaning given in
18           section 80BB(1)(b);
19           relevant day has the meaning given in
20           section 80A(2)(b);
21           repealed Workplace Act means the Workplace
22           Relations Act 1996 (Commonwealth);
23           terms includes conditions, restrictions and other
24           provisions.

25   80BA.   Operation of awards, industrial agreements or
26           orders
27     (1)   The regulations may provide that, on and from the
28           relevant day, an award, industrial agreement or order
29           specified in the regulations applies to the employees of
30           a declared employer specified in the regulations.



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1              (2)   If regulations are made under subsection (1), on and
2                    from the relevant day the award, industrial agreement
3                    or order applies to each of the following --
4                      (a) the declared employer;
5                      (b) the declared employees of the declared
6                            employer;
7                      (c) an organisation that is a party to the award or
8                            industrial agreement or that is bound by the
9                            order.

10           80BB.   New State instruments
11             (1)   This section applies --
12                    (a) to the extent section 80BA does not provide for
13                          a declared employee of a declared employer;
14                          and
15                    (b) if, immediately before the relevant day, a
16                          federal industrial instrument (the old federal
17                          instrument) applies to, or purports to apply to,
18                          the declared employee.
19             (2)   On the relevant day, an industrial agreement (the new
20                   State instrument) applies to the declared employer and
21                   declared employees.
22             (3)   The new State instrument is taken --
23                    (a) to have been registered under this Act on the
24                         relevant day; and
25                    (b) except as provided in this section or
26                         section 80BC, to have the same terms as the old
27                         federal instrument including those terms as
28                         added to or modified by any of the following --
29                           (i) terms of a federal award incorporated by
30                                 the old federal instrument;



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1                       (ii)   orders of a federal industrial authority;
2                      (iii)   another instrument under the national
3                              fair work legislation or the repealed
4                              Workplace Act;
5                     and
6              (c)    to have a nominal expiry date that is the earlier
7                     of the following --
8                        (i) a day that is 2 years after the relevant
9                             day;
10                      (ii) the day that, immediately before the
11                            relevant day, was the nominal expiry
12                            day of the old federal instrument.
13     (4)   This Act applies in relation to the new State instrument
14           subject to any modifications or exclusions prescribed
15           by regulations for this subsection.
16     (5)   The new State instrument applies except as provided in
17           the MCE Act.

18   80BC.   Amendment of new State instruments
19     (1)   A declared employer, a declared employee or an
20           organisation may apply to the Commission to amend a
21           new State instrument.
22     (2)   On the application, the Commission may make the
23           amendment if it is satisfied it is fair and reasonable to
24           do so in the circumstances.
25     (3)   The amendment may be provided to take effect --
26            (a) immediately; or
27            (b) progressively, in stages specified in the
28                 amendment.




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1            80BD.   Ability to carry over matters
2                    The Commission may, in connection with the operation
3                    of this Part, or any matter arising directly or indirectly
4                    out of the operation of this Part --
5                      (a) accept, recognise, adopt or rely on any step
6                             taken under, or for, the national fair work
7                             legislation; and
8                      (b) accept or rely on anything (including in the
9                             nature of evidence presented for the purpose of
10                            any proceedings) that has been presented, filed
11                            or provided under, or for, the national fair work
12                            legislation; and
13                     (c) give effect in any other way to any other thing
14                            done under, or for, the national fair work
15                            legislation.

16           80BE.   References in new State instruments to federal
17                   industrial authority and General Manager
18             (1)   In this section --
19                   General Manager means the General Manager under
20                   the FW Act.
21             (2)   On and from the relevant day, a term of a new State
22                   instrument expressed to confer a power or function on
23                   a federal industrial authority has effect as if it conferred
24                   the power or function on the Commission.
25             (3)   On and from the relevant day, a term of a new State
26                   instrument expressed to confer a power or function on
27                   the General Manager has effect as if it conferred the
28                   power or function on the Registrar.




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                                                                      s. 38



1    80BF.   References in new State instruments to provisions of
2            Commonwealth laws
3      (1)   In this section --
4            corresponding provision of this Act, to a provision of
5            the FW Act, means --
6              (a) if paragraph (b) does not apply -- a provision
7                     of this Act that is of similar effect to the
8                     provision of the FW Act; or
9              (b) a provision of this Act declared by regulations
10                    to be a corresponding provision.
11     (2)   On and from the relevant day, a term of a new State
12           instrument expressed to refer to a provision of the
13           FW Act is taken to refer to the corresponding provision
14           of this Act.

15   80BG. References in new State instruments to federal
16         organisations
17     (1)   In this section --
18           federal counterpart has the meaning given in the FW
19           (Registered Organisations) Act section 9A.
20     (2)   On and from the relevant day, a term of a new State
21           instrument expressed to refer to a federal organisation
22           is taken to refer to an organisation under this Act of
23           which the federal organisation is a federal counterpart.
24     (3)   If the federal organisation is not a federal counterpart
25           of an organisation under this Act, the federal
26           organisation is taken to be an organisation under this
27           Act representing the declared employees of the relevant
28           declared employer in proceedings or other matters
29           arising under this Act.




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1              (4)   Subsection (3) ceases to apply to the federal
2                    organisation when the new State instrument ceases to
3                    apply to the relevant declared employer and declared
4                    employees.

5            80BH. Named parties to new State instruments
6              (1)   An organisation of employees, or an industrial
7                    association of employees registered under section 67,
8                    may apply to the Commission to make an order naming
9                    the organisation or association as a party to a new State
10                   instrument.
11             (2)   On the application, the Commission must grant the
12                   order if, in the opinion of the Commission, the
13                   instrument applies to an employee who is eligible to be
14                   a member of the organisation or industrial association.

15           80BI.   Employment under old federal instrument
16             (1)   Subsection (2) applies in relation to deciding the
17                   entitlements of a declared employee under a new State
18                   instrument.
19             (2)   Employment of the declared employee with a declared
20                   employer before the relevant day that counted under
21                   the old federal instrument also counts as employment
22                   of the declared employee with the declared employer
23                   under the new State instrument.
24             (3)   If, before the relevant day, the declared employee has
25                   already had the benefit of an entitlement determined by
26                   reference to a period of service, the period of service
27                   cannot be counted again under subsection (2) for
28                   calculating the declared employee's entitlements of
29                   that type under the new State instrument.




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                                                                     s. 38



1    80BJ.   Leave accrued immediately before relevant day
2      (1)   This section applies to any paid or unpaid leave
3            accrued under an old federal instrument, the national
4            fair work legislation or a law of this State.
5      (2)   Leave accrued immediately before the relevant day by
6            a declared employee to whom a new State instrument
7            applies is taken to have accrued under the new State
8            instrument.

9    80BK. Leave taken under old federal instrument
10     (1)   A declared employee who was, immediately before the
11           relevant day, taking a period of leave under the old
12           federal instrument or under the FW Act is entitled to
13           continue on that leave under the new State instrument
14           or a law of this State for the remainder of the period.
15     (2)   A declared employee who has, before the relevant day,
16           taken a step under the old federal instrument or the
17           FW Act that the employee is required to take so the
18           employee can, on and from the relevant day, take a
19           period of leave under the old federal instrument or the
20           FW Act, is taken to have taken the step under the new
21           State instrument or a law of this State.
22     (3)   The regulations may deal with other matters relating to
23           how a new State instrument applies to leave that,
24           immediately before the relevant day, is being, or is to
25           be, taken by a declared employee under the old federal
26           instrument or the FW Act.
27




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1    39.          Section 80E amended
2                 In section 80E(1) delete "Subject to Division 3 of Part II" and
3                 insert:
4

5                 Except as provided in Part II Divisions 3, 3AA and 3B
6


7    40.          Section 80I amended
8                 In section 80I(1)(c) delete "subsection (1)(b)" and insert:
9

10                subsection (1)
11


12   41.          Section 80R amended
13                In section 80R(1) delete "Subject to Division 3 of Part II" and
14                insert:
15

16                Except as provided in Part II Divisions 3, 3AA and 3B
17


18   42.          Part III Division 1 heading inserted
19                At the beginning of Part III insert:
20


21                      Division 1 -- Industrial magistrate's court
22


23   43.          Section 81B amended
24         (1)    After section 81B(2) insert:
25

26               (2A)    The Governor may appoint a commissioner who meets
27                       the qualifications referred to in the Magistrates Court


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1                         Act 2004 Schedule 1 clause 2 (a qualified
2                         commissioner) to be an industrial magistrate.
3

4          (2)    In section 81B(3)(a) delete "magistrate; or" and insert:
5

6                 magistrate or commissioner; or
7

8          (3)    In section 81B(4):
9                   (a) delete "may, on the recommendation of the Chief
10                        Magistrate," and insert:
11

12                         may
13

14                  (b)    after "a magistrate" insert:
15

16                         or a qualified commissioner
17

18         (4)    After section 81B(4) insert:
19

20               (4A)     Subsections (2) and (2A) apply, with the necessary
21                        modifications, to an appointment of an acting industrial
22                        magistrate.
23


24   44.          Section 81CA amended
25                Delete section 81CA(2) and (3).




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1    45.          Section 81G inserted
2                 After section 81F insert:
3


4            81G.       Industrial inspectors may assist industrial
5                       magistrate's court
6                 (1)   An industrial inspector may, with the leave of the
7                       industrial magistrate's court, assist the court.
8                 (2)   The industrial magistrate's court may grant the leave in
9                       respect of --
10                        (a) proceedings that, in the opinion of the court,
11                              have significant implications for the
12                              administration of this Act, the LSL Act or the
13                              MCE Act; or
14                        (b) proceedings that involve special circumstances
15                              that satisfy the court that it would be in the
16                              public interest for the industrial inspector to
17                              assist the court.
18


19   46.          Part III Division 2 heading inserted
20                Before section 82 insert:
21


22                        Division 2 -- Enforcement generally
23


24   47.          Section 83 amended
25         (1)    Before section 83(1) insert:
26

27               (1A)   In this section --
28                      contravene, in relation to an entitlement provision,
29                      includes fail to comply with that provision.
30


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                                                                           s. 47



1    (2)    In section 83(1):
2             (a) delete "where a person contravenes or fails to comply
3                   with a provision of an instrument to which this section
4                   applies" and insert:
5

6                    if a person contravenes an entitlement provision,
7

8             (b)    delete paragraph (e) and insert:
9

10                   (e)    a person --
11                            (i) who is a party to the award, agreement
12                                 or order or to whom the award,
13                                 agreement or order applies; or
14                           (ii) to whom the entitlement provision
15                                 applies under the LSL Act or MCE Act;
16

17   (3)    Delete section 83(2) and insert:
18

19          (2)     A person who is involved in a contravention of an
20                  entitlement provision is taken to contravene that
21                  provision.
22         (2A)     A person is involved in a contravention of an
23                  entitlement provision if, and only if, the person --
24                    (a) aids, abets, counsels or procures the
25                          contravention; or
26                    (b) induces the contravention, whether by threats or
27                          promises or otherwise; or
28                    (c) is in any way, by act or omission, directly or
29                          indirectly, knowingly concerned in or party to
30                          the contravention; or




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1                      (d)   conspires with others to effect the
2                            contravention.
3

4       (4)    In section 83(3) delete "instrument to which this section applies
5              shall" and insert:
6

7              entitlement provision must
8

9       (5)    In section 83(4):
10               (a) in paragraph (a) delete "or failure to comply";
11               (b) delete paragraph (a)(ii) and insert:
12

13                            (ii)   impose a pecuniary penalty in
14                                   accordance with subsection (4A);
15

16      (6)    After section 83(4) insert:
17

18            (4A)   The pecuniary penalty may be an amount not
19                   exceeding --
20                     (a) in the case of a body corporate --
21                            (i) if the contravention is a serious
22                                 contravention -- $650 000; or
23                           (ii) if the contravention is not a serious
24                                 contravention -- $65 000;
25                          and
26                     (b) in the case of an individual --
27                            (i) if the contravention is a serious
28                                 contravention -- $130 000; or
29                           (ii) if the contravention is not a serious
30                                 contravention -- $13 000.
31


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                                                                                 s. 48



1          (7)   In section 83(5):
2                  (a) delete "or failure to comply with a provision of an
3                        instrument to which this section applies" and insert:
4

5                        of an entitlement provision
6

7                 (b)    delete "or failure to comply with" (second occurrence)
8                        and insert:
9

10                       of
11

12         (8)   In section 83(8) delete the Penalty and insert:
13

14                      Penalty for this subsection:
15                          (a) a fine of $13 000;
16                          (b) a daily penalty of a fine of $1 000 for each
17                                day or part of a day during which the offence
18                                continues.
19

20         (9)   After section 83(8) insert:
21

22               (9)    A contravention of an entitlement provision is not an
23                      offence and section 83E(8) applies to the contravention
24                      as if it were a contravention of a civil penalty
25                      provision.
26


27   48.         Section 83A amended
28         (1)   In section 83A(1):
29                 (a) delete "an employer" and insert:
30

31                       a person
32


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1                 (b)   delete "of that employer has not been paid by that
2                       employer" and insert:
3

4                       has not been paid
5

6                 (c)   delete "instrument to which that section applies" and
7                       insert:
8

9                       entitlement provision,
10

11                (d)   delete "employer to" and insert:
12

13                      person to
14

15         (2)   In section 83A(2):
16                 (a) in paragraph (b) delete "employer" and insert:
17

18                      person
19

20                (b)   in paragraph (b)(iii) delete "employer's" and insert:
21

22                      person's
23


24   49.         Section 83B amended
25         (1)   In section 83B(3) and (4) after "contravention" (1st occurrence)
26               insert:
27

28               of
29




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                                                                              s. 50



1          (2)   In section 83B(5):
2                  (a) in paragraph (a) delete "$5 000; and" and insert:
3

4                        $13 000; and
5

6                 (b)    in paragraph (b) after "contravention" insert:
7

8                        of
9

10         (3)   In section 83B(10) delete the Penalty and insert:
11

12                      Penalty for this subsection:
13                          (a) a fine of $13 000;
14                          (b) a daily penalty of a fine of $1 000 for each
15                                day or part of a day during which the offence
16                                continues.
17


18   50.         Section 83C amended
19               Delete section 83C(2) and insert:
20

21               (2)    In proceedings under section 83 or 83B costs must not
22                      be given to any party to the proceedings for the
23                      services of a legal practitioner or agent of that party
24                      unless --
25                        (a) the industrial magistrate's court finds that the
26                              other party has committed a serious
27                              contravention; or
28                        (b) in the opinion of the industrial magistrate's
29                              court, the proceedings have been frivolously or
30                              vexatiously instituted or defended, as the case
31                              requires, by the other party.
32


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     s. 51



1    51.          Section 83E amended
2          (1)    Delete section 83E(1) and insert:
3

4                 (1)   If a person contravenes a civil penalty provision, the
5                       industrial magistrate's court may, on an application to
6                       the court, make an order imposing a pecuniary penalty
7                       on the person, not exceeding --
8                         (a) in the case of a body corporate --
9                                  (i) if the contravention is a serious
10                                     contravention -- $650 000; or
11                                (ii) if the contravention is not a serious
12                                     contravention -- $65 000;
13                        (b) in the case of an individual --
14                                 (i) if the contravention is a serious
15                                     contravention -- $130 000; or
16                                (ii) if the contravention is not a serious
17                                     contravention -- $13 000.
18               (1A)   A person who is involved in a contravention of a civil
19                      penalty provision is taken to contravene that provision.
20               (1B)   A person is involved in a contravention of a civil
21                      penalty provision if, and only if, the person --
22                        (a) aids, abets, counsels or procures the
23                              contravention; or
24                       (b) induces the contravention, whether by threats or
25                              promises or otherwise; or
26                        (c) is in any way, by act or omission, directly or
27                              indirectly, knowingly concerned in or party to
28                              the contravention; or
29                       (d) conspires with others to effect the
30                              contravention.
31



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                                                                            s. 51



1    (2)    In section 83E(3) delete "section 49D(2) or (3)," and insert:
2

3           section 49D(1) or (8) or section 49DA(1) or (3), or the LSL Act
4           section 26(1) or (2),
5

6    (3)    In section 83E(6a) delete "section 8(3), 44(3) or 45(1) of the
7           MCE Act or of section 26(2) or 26A(1) of the Long Service
8           Leave Act 1958." and insert:
9

10          the MCE Act section 8(3) or the LSL Act section 7I(2), 26(1)
11          or (2) or 26A(1).
12

13   (4)    In section 83E(9) delete the Penalty and insert:
14

15                Penalty for this subsection:
16                    (a) a fine of $13 000;
17                    (b) a daily penalty of a fine of $1 000 for each
18                          day or part of a day during which the offence
19                          continues.
20

21   (5)    Delete section 83E(12) and insert:
22

23         (12)   In proceedings under this section costs must not be
24                given to any party to the proceedings for the services of
25                a legal practitioner or agent of that party unless --
26                  (a) the industrial magistrate's court finds that the
27                        other party has committed a serious
28                        contravention; or
29                  (b) in the opinion of the industrial magistrate's
30                        court, the proceedings have been frivolously or



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1                           vexatiously instituted or defended, as the case
2                           requires, by the other party.
3


4    52.       Sections 83EA and 83EB inserted
5              After section 83E insert:
6


7            83EA.   Serious contravention of entitlement provision or
8                    civil penalty provision
9              (1)   In this section --
10                   contravention means a contravention of or failure to
11                   comply with --
12                     (a) a civil penalty provision; or
13                     (b) an entitlement provision.
14             (2)   A contravention by a person is a serious contravention
15                   if --
16                      (a) the person knowingly commits the
17                          contravention; and
18                     (b) the person's conduct constituting the
19                          contravention is part of a systematic pattern of
20                          conduct relating to 1 or more other persons.
21             (3)   For the purposes of subsection (2), a body corporate
22                   knowingly commits a contravention if the body
23                   corporate expressly, tacitly or impliedly authorises the
24                   contravention.
25             (4)   In determining whether the person's conduct
26                   constituting the contravention was part of a systematic
27                   pattern of conduct, the industrial magistrate's court
28                   may have regard to all or any of the following --
29                     (a) the number of contraventions (the relevant
30                           contraventions) committed by the person;


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1           (b)    the period over which the relevant
2                  contraventions were committed;
3           (c)    the number of other persons affected by the
4                  relevant contraventions;
5           (d)    the person's response, or failure to respond, to
6                  any complaints made about the relevant
7                  contraventions;
8           (e)    unless the provision contravened is a
9                  record-related civil penalty provision --
10                 whether the person also failed to comply with a
11                 record-related civil penalty provision relating to
12                 the conduct constituting the relevant
13                 contraventions.
14   (5)   Subsection (4) does not limit the matters to which the
15         industrial magistrate's court may have regard.
16   (6)   A person (the involved person) who is involved in a
17         contravention by another person (the principal)
18         commits a serious contravention only if --
19           (a) the principal's contravention is a serious
20                contravention; and
21           (b) the involved person knows that the principal's
22                contravention is a serious contravention.
23   (7)   Subsection (8) applies in proceedings for an order in
24         relation to a serious contravention.
25   (8)   The industrial magistrate's court may, instead of
26         imposing a pecuniary penalty on a person for the
27         serious contravention, impose a pecuniary penalty on
28         the person for the contravention if the court --
29           (a) is not satisfied that the person has committed a
30                 serious contravention; but
31           (b) is satisfied that the person has committed a
32                 contravention.


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1            83EB.   Employer to have burden of disproving certain
2                    allegations by applicant under s. 83
3              (1)   In proceedings under section 83, the employer has the
4                    burden of disproving an allegation by an applicant in
5                    relation to a matter if the employer --
6                      (a) was required under this Act or the LSL Act
7                            to --
8                               (i) make or keep a record in relation to the
9                                    matter; or
10                             (ii) give a pay slip in relation to the matter;
11                                   or
12                            (iii) make available for inspection a record
13                                   in relation to the matter;
14                           and
15                     (b) failed to comply with the requirement.
16             (2)   Subsection (1) does not apply if the employer provides
17                   a reasonable excuse for the failure to comply with the
18                   requirement.
19


20   53.       Section 84 amended
21             Delete section 84(5) and insert:
22

23             (5)   In proceedings under this section costs must not be
24                   given to any party to the proceedings for the services of
25                   a legal practitioner or agent of that party except --
26                     (a) in respect of an appeal from proceedings under
27                           section 83 or 83E -- to the party that was the
28                           applicant in those proceedings, if the Full
29                           Bench finds, or upholds a finding, that the other
30                           party has committed a serious contravention; or



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1                    (b)    if, in the opinion of the Full Bench, the
2                           proceedings have been frivolously or
3                           vexatiously instituted or defended, as the case
4                           requires, by the other party.
5            (6)   At any time after an appeal to the Full Bench has been
6                  instituted under this section, a party to the proceedings
7                  may apply to the Commission for an order that the
8                  operation of the decision appealed against be stayed,
9                  wholly or in part, pending the hearing and
10                 determination of the appeal.
11           (7)   For the purposes of hearing and determining an
12                 application under subsection (6) for an order in respect
13                 of a decision, the Commission must be constituted by
14                 the presiding commissioner of the Full Bench allocated
15                 the appeal against the decision.
16


17   54.     Section 84AA inserted
18           After section 84 insert:
19


20         84AA. Illegal contracts of employment may be treated as
21               valid
22           (1)   In this section --
23                 contravention means a contravention of or failure to
24                 comply with --
25                   (a) a civil penalty provision; or
26                   (b) an entitlement provision.
27           (2)   If in any proceedings under section 83 or 83E the
28                 industrial magistrate's court finds that an employee
29                 was employed or engaged under an illegal contract at
30                 the time a contravention occurred, the court may



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1                        nonetheless deal with the matter as if the contract was
2                        valid.
3


4    55.         Section 84A amended
5          (1)   In section 84A(1) delete "44(3), 51S" and insert:
6

7                44(3)
8

9          (2)   In section 84A(5)(a)(ii) delete "$2 000 in the case of an
10               employer, organisation, or association and $500 in any other
11               case; or" and insert:
12

13               $10 000; or
14


15   56.         Part III Divisions 3 to 5 inserted
16               At the end of Part III insert:
17


18                       Division 3 -- Civil infringement notices
19           84B.        Terms used
20                       In this Division --
21                       civil infringement notice has the meaning given in
22                       section 84C(2);
23                       civil infringement notice penalty has the meaning
24                       given in section 84C(2);
25                       nominated person means the person to whom a
26                       recipient can apply --
27                         (a) to have a civil infringement notice withdrawn;
28                                or


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1             (b)    to be allowed more time to pay a civil
2                    infringement notice penalty;
3            recipient means a person to whom a civil infringement
4            notice is given under section 84C(2).

5    84C.    Giving civil infringement notice
6      (1)   This section applies if an industrial inspector
7            reasonably believes that a person has committed 1 or
8            more contraventions of a record-related civil penalty
9            provision other than section 49D(8) or 49DA(3).
10     (2)   The industrial inspector may give to the person a notice
11           (a civil infringement notice) relating to the alleged
12           contravention or contraventions inviting the person, as
13           an alternative to proceedings under section 83E, to pay
14           to the Treasurer a penalty specified in the notice (a civil
15           infringement notice penalty).
16     (3)   The civil infringement notice must be given within
17           12 months after the day on which the contravention or
18           contraventions are alleged to have taken place.
19     (4)   This section does not authorise the giving of 2 or more
20           civil infringement notices to a person in relation to
21           contraventions of a record-related civil penalty
22           provision that allegedly --
23             (a) took place on the same day; and
24             (b) relate to the same action or conduct by the
25                    person.

26   84D.    Content of civil infringement notice
27     (1)   A civil infringement notice must --
28            (a) specify the recipient's full name; and
29            (b) specify the recipient's address; and



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1                     (c)    specify the name of the industrial inspector who
2                            issued it; and
3                     (d)    specify its date of issue; and
4                     (e)    set out brief details of the alleged contravention
5                            or contraventions, including the record-related
6                            civil penalty provision that has been allegedly
7                            contravened; and
8                      (f)   specify the civil infringement notice penalty;
9                            and
10                    (g)    state how the civil infringement notice penalty
11                           can be paid; and
12                    (h)    specify the maximum penalty that the industrial
13                           magistrate's court could impose on the
14                           recipient for the alleged contravention or
15                           contraventions; and
16                     (i)   identify the nominated person; and
17                     (j)   explain how the recipient can apply to the
18                           nominated person --
19                               (i) to have the civil infringement notice
20                                   withdrawn; or
21                             (ii) to be allowed more time to pay the civil
22                                   infringement notice penalty;
23                           and
24                    (k)    state the effect of the recipient paying the civil
25                           infringement notice penalty within the required
26                           time, as explained in section 84I; and
27                     (l)   be signed by the industrial inspector who issued
28                           it.
29             (2)   The civil infringement notice may contain any other
30                   information that the industrial inspector who issues it
31                   thinks necessary.



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1    84E.    Amount of civil infringement notice penalty
2            A civil infringement notice penalty must not exceed
3            one-tenth of the statutory penalty that the industrial
4            magistrate's court could have ordered the recipient to
5            pay under section 83E(1) for contravening the
6            record-related civil penalty provision specified in the
7            civil infringement notice.

8    84F.    Time for payment of civil infringement notice
9            penalty
10     (1)   A civil infringement notice penalty must be paid within
11           28 days after the day on which the notice is served on
12           the recipient unless subsection (2), (3) or (4) applies.
13     (2)   If the recipient applies for a further period of time in
14           which to pay the civil infringement notice penalty and
15           the application is granted, the penalty must be paid
16           within the further period allowed.
17     (3)   If the recipient applies for a further period of time in
18           which to pay the civil infringement notice penalty and
19           the application is refused, the penalty must be paid
20           within 7 days after the notice of the refusal is served on
21           the recipient.
22     (4)   If the recipient applies for the notice to be withdrawn
23           and the application is refused, the civil infringement
24           notice penalty must be paid within 28 days after the
25           notice of the refusal is served on the recipient.

26   84G.    Extension of time to pay civil infringement notice
27           penalty
28     (1)   Before the end of 28 days after receiving a civil
29           infringement notice, the recipient may apply, in
30           writing, to the nominated person for a further period of
31           up to 28 days in which to pay the civil infringement
32           notice penalty.

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1              (2)   Within 14 days after receiving the application, the
2                    nominated person must --
3                      (a) grant or refuse a further period not longer than
4                           the period sought (but less than 28 days); and
5                     (b) notify the recipient in writing of the decision
6                           and, if the decision is a refusal, the reasons for
7                           the decision.

8            84H.    Withdrawal of civil infringement notice
9              (1)   Before the end of 28 days after receiving the civil
10                   infringement notice, the recipient may apply, in
11                   writing, to the nominated person for the civil
12                   infringement notice to be withdrawn.
13             (2)   Within 14 days after receiving the application, the
14                   nominated person must --
15                     (a) withdraw or refuse to withdraw the civil
16                          infringement notice; and
17                    (b) notify the recipient in writing of the decision
18                          and, if the decision is a refusal, the reasons for
19                          the decision.
20             (3)   If the nominated person has not approved the
21                   withdrawal of the civil infringement notice within the
22                   period allowed by subsection (2), the application is
23                   taken to have been refused.
24             (4)   The inspector who issued it may also withdraw the
25                   civil infringement notice at any time by serving a
26                   notice of withdrawal on the recipient.
27             (5)   A notice of the withdrawal of a civil infringement
28                   notice under subsection (4) must --
29                     (a) specify the recipient's full name; and
30                    (b) specify the recipient's address; and
31                     (c) specify its date of issue; and

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1            (d)    state that the civil infringement notice is
2                   withdrawn.

3    84I.   Effect of payment of civil infringement notice
4           penalty
5           If a civil infringement notice is not withdrawn and the
6           recipient pays the civil infringement notice penalty --
7             (a) any liability of the recipient for the alleged
8                    contravention is discharged; and
9             (b) no proceedings may be brought against the
10                   recipient, by any person, for the alleged
11                   contravention; and
12            (c) the recipient is not taken to have admitted to
13                   having contravened the record-related civil
14                   penalty provision; and
15            (d) the recipient is not taken to have committed a
16                   contravention of the provision in relation to
17                   which the civil infringement notice was issued.

18   84J.   Refund of civil infringement notice penalty
19          If a civil infringement notice is withdrawn after the
20          civil infringement notice penalty has been paid, the
21          Treasurer must refund the amount of the penalty to the
22          person who paid it.

23          Division 4 -- Enforceable undertakings
24   84K.   Terms used
25          In this Division --
26          contravention means a contravention of or failure to
27          comply with --
28            (a) a civil penalty provision; or
29            (b) an entitlement provision.


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1                    enforceable undertaking means a written undertaking
2                    accepted under section 84M(1).

3            84L.    Application of Division
4                    This Division applies if an industrial inspector
5                    reasonably believes that a person has committed a
6                    contravention.

7            84M.    Enforceable undertaking
8              (1)   Except as provided by subsection (4), an industrial
9                    inspector may accept a written undertaking given by a
10                   person in relation to a contravention.
11             (2)   The person may withdraw or vary the enforceable
12                   undertaking at any time, but only with the industrial
13                   inspector's consent.
14             (3)   An industrial inspector must not apply for an order
15                   under section 83 or 83E in relation to the contravention
16                   unless the enforceable undertaking has been --
17                     (a) withdrawn; or
18                    (b) cancelled under section 84N(2)(c).
19             (4)   The industrial inspector must not accept an enforceable
20                   undertaking in relation to a contravention if the person
21                   has been given a compliance notice as defined in
22                   section 84Q in relation to the contravention.

23           84N.    Enforcement of enforceable undertakings
24             (1)   If an industrial inspector considers that a person who
25                   gave an enforceable undertaking has contravened any
26                   of its terms, the industrial inspector may apply to the
27                   industrial magistrate's court for an order under
28                   subsection (2).
29             (2)   If the industrial magistrate's court is satisfied that the
30                   person has contravened a term of the enforceable

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1            undertaking, the court may make 1 or more of the
2            following orders --
3              (a) an order directing the person to comply with
4                   the term of the undertaking;
5              (b) an order awarding compensation for loss that a
6                   person has suffered because of the
7                   contravention;
8              (c) an order varying or cancelling the enforceable
9                   undertaking;
10             (d) any other order that the court considers
11                  appropriate.

12               Division 5 -- Compliance notices
13   84O.    Terms used
14           In this Division --
15           compliance notice has the meaning given in
16           section 84Q;
17           contravention means a contravention of or failure to
18           comply with an entitlement provision.

19   84P.    Application of Division
20           This Division applies if an industrial inspector (the
21           industrial inspector) reasonably believes that a person
22           has contravened an entitlement provision.

23   84Q.    Giving compliance notice
24     (1)   Except as provided in section 84R, the industrial
25           inspector may give the person a notice (a compliance
26           notice) requiring the person to do either or both of the
27           following within a reasonable time specified in the
28           notice --
29             (a) take specified action to remedy the direct
30                   effects of the contravention;

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1                     (b)   produce reasonable evidence of the person's
2                           compliance with the notice.
3              (2)   The compliance notice must also set out all of the
4                    following --
5                      (a) the name of the person to whom the notice is
6                           given;
7                      (b) the name of the industrial inspector who gave
8                           the notice;
9                      (c) brief details of the contravention;
10                     (d) an explanation that a failure to comply with the
11                          notice may contravene a civil penalty
12                          provision;
13                     (e) an explanation that the person may apply to the
14                          industrial magistrate's court for a review of the
15                          notice on either or both of the following
16                          grounds --
17                             (i) the person has not committed a
18                                  contravention set out in the notice;
19                            (ii) the notice does not comply with
20                                  subsection (1) or this subsection;
21                      (f) any other matters prescribed by the regulations.

22           84R.    Relationship with enforceable undertakings
23                   The industrial inspector must not give a person a
24                   compliance notice in relation to a contravention if --
25                     (a) the person has given an enforceable
26                          undertaking as defined in section 84M(1) in
27                          relation to the contravention; and
28                     (b) the undertaking has not been withdrawn under
29                          section 84M(2) or cancelled under
30                          section 84N(2)(c).



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1    84S.    Relationship with proceedings under s. 83
2      (1)   The industrial inspector must not apply for an order
3            under section 83 in relation to a contravention by a
4            person if --
5              (a) the inspector has given the person a compliance
6                    notice in relation to the contravention; and
7             (b) the compliance notice has not been withdrawn;
8                    and
9              (c) either of the following applies --
10                     (i) the person has complied with the notice;
11                    (ii) the person has made an application
12                           under section 84U(1) in relation to the
13                           compliance notice and that application
14                           has not been completely dealt with.
15     (2)   A person who complies with a compliance notice is not
16           taken to have --
17             (a) admitted to contravening an entitlement
18                   provision to which the compliance notice
19                   relates; or
20             (b) been found to have contravened an entitlement
21                   provision to which the compliance notice
22                   relates.

23   84T.    Person must comply with compliance notice
24     (1)   A person must comply with a compliance notice.
25     (2)   A contravention of subsection (1) is not an offence but
26           the subsection is a civil penalty provision for the
27           purposes of section 83E, except that the pecuniary
28           penalty cannot exceed --
29             (a) in the case of a body corporate -- $30 000;
30             (b) in the case of an individual -- $6 000.


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1              (3)   Subsection (1) does not apply if the person has a
2                    reasonable excuse.

3            84U.    Review of compliance notices
4              (1)   A person who has been given a compliance notice may
5                    apply to the industrial magistrate's court for a review
6                    of the notice on either or both of the following
7                    grounds --
8                      (a) the person has not committed a contravention
9                            set out in the notice;
10                     (b) the notice does not comply with section 84Q.
11             (2)   At any time after the application has been made, the
12                   industrial magistrate's court may stay the operation of
13                   the notice on the terms and conditions that the court
14                   considers appropriate.
15             (3)   In an application made on the ground referred to in
16                   subsection (1)(a), the person making the application
17                   has the burden of proving that the person has not
18                   committed the contravention.
19             (4)   The industrial magistrate's court may confirm, cancel
20                   or vary the notice after reviewing it.

21           84V.    Withdrawal of compliance notice
22             (1)   The industrial inspector may withdraw the compliance
23                   notice at any time by serving a notice of withdrawal on
24                   the person (the recipient) who has been given the
25                   compliance notice.
26             (2)   The notice of withdrawal must --
27                    (a) specify the full name of the recipient; and
28                    (b) specify the recipient's address; and




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1                    (c)    specify its date of issue; and
2                    (d)    state that the compliance notice is withdrawn.
3


4    57.     Section 86 amended
5            Delete section 86(2).

6    58.     Section 91A inserted
7            After section 91 insert:
8


9          91A.    Court's power to order costs and expenses
10           (1)   Except as provided in subsection (2), in the exercise of
11                 its jurisdiction under this Act the Court may make such
12                 orders as it thinks just as to the costs and expenses
13                 (including the expenses of witnesses) of proceedings
14                 before the Court, including proceedings dismissed for
15                 want of jurisdiction.
16           (2)   Costs for the services of any legal practitioner or agent
17                 of any party to the proceedings must not be given to
18                 that party except as follows --
19                   (a) costs can be given to that party if, in the
20                         opinion of the Court, the proceedings have been
21                         frivolously or vexatiously instituted or
22                         defended, as the case requires, by the other
23                         party;
24                   (b) in respect of an appeal from proceedings under
25                         section 83 or 83E -- costs can be given to the
26                         party that was the applicant in those
27                         proceedings, if the Court finds, or upholds a
28                         finding, that the other party has committed a
29                         serious contravention.
30




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1    59.           Section 93 amended
2          (1)     In section 93(6) delete "Subject to subsection (6a), the" and
3                  insert:
4

5                  The
6

7          (2)     Delete section 93(6a).

8    60.           Section 96 amended
9                  In section 96(2)(a) delete "section 29(1)(b);" and insert:
10

11                 section 29(1)(c) or (d);
12


13   61.           Part 6B inserted
14                 After section 96L insert:
15


16                   Part 6B -- Protection of employee rights
17                                Division 1 -- Preliminary
18           97.         Terms used
19                       In this Part --
20                       damaging action, against an employee, means --
21                         (a) in the case of an employee --
22                                  (i) dismissing the employee; or
23                                 (ii) altering the employee's position to the
24                                      employee's disadvantage; or
25                                (iii) refusing to promote or transfer the
26                                      employee; or


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1                    (iv)   otherwise injuring the employee in
2                           relation to the employee's employment
3                           with the employer or another person; or
4                     (v)   threatening to do anything referred to in
5                           subparagraphs (i) to (iv);
6                  and
7             (b) in the case of a prospective employee --
8                     (i) refusing to employ the prospective
9                          employee; or
10                   (ii) discriminating against the prospective
11                         employee in the terms or conditions on
12                         which the employer offers to employ the
13                         prospective employee; or
14                  (iii) threatening to do anything referred to in
15                         subparagraphs (i) and (ii);
16           employee includes a prospective employee;
17           employer includes a former employer or prospective
18           employer.

19                Division 2 -- Damaging action
20   97A.    Damaging action because of inquiry or complaint
21     (1)   An employer must not take damaging action against an
22           employee for the reason, or for reasons that include,
23           that the employee is able to make an
24           employment-related inquiry or complaint to the
25           employer or another person.
26     (2)   In any proceedings for a contravention of
27           subsection (1), if it is proved that an employer took the
28           damaging action against the employee, it is for the
29           employer to prove that the employer did not do so
30           because the employee made the inquiry or complaint or
31           proposed to make the inquiry or complaint.


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1              (3)   A contravention of subsection (1) is not an offence but
2                    that subsection is a civil penalty provision for the
3                    purposes of section 83E.

4            97B.    Court orders to employers
5              (1)   This section applies if the industrial magistrate's court
6                    determines that an employer has contravened
7                    section 97A(1) in respect of an employee.
8              (2)   Except as provided in subsection (5), the industrial
9                    magistrate's court may order the employer to do 1 or
10                   more of the following --
11                    (a) if the employee was dismissed from
12                          employment -- to reinstate the employee;
13                    (b) if the employee was refused employment -- to
14                          employ the employee;
15                    (c) to pay to the employee compensation for any
16                          loss or injury suffered as a result of the
17                          contravention.
18             (3)   The employer must comply with the order.
19                   Penalty for this subsection:
20                       (a) a fine of $13 000;
21                       (b) a daily penalty of a fine of $1 000 for each
22                             day or part of a day during which the offence
23                             continues.
24             (4)   The industrial magistrate's court may make the order in
25                   addition to imposing a penalty under section 83E.
26             (5)   The industrial magistrate's court must not make the
27                   order if the employee has applied under another
28                   provision of this Act or any other written law for relief
29                   in relation to the same damaging action unless the
30                   proceedings for that relief have been withdrawn or
31                   failed for want of jurisdiction.


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1      (6)   The employee is not entitled to compensation for the
2            same damaging action under both subsection (2)(c) and
3            another provision of this Act or any other written law.

4    97C.    Court orders to third parties
5      (1)   In this section --
6            third party, in relation to proceedings for a
7            contravention of section 97A(1), means a person, other
8            than the employer, on whom a copy of the application
9            under section 83E(1) has been served.
10     (2)   This section applies if the industrial magistrate's court
11           determines that an employer has contravened
12           section 97A(1) in respect of an employee.
13     (3)   The industrial magistrate's court may order a third
14           party --
15             (a) to refrain from taking any damaging action
16                  against the employee; and
17            (b) to take any action necessary or desirable to give
18                  effect to an order under section 97B(2).
19     (4)   The third party must comply with the order.
20           Penalty for this subsection:
21               (a) a fine of $13 000;
22               (b) a daily penalty of a fine of $1 000 for each
23                     day or part of a day during which the offence
24                     continues.

25           Division 3 -- Sham contracts for services
26   97D.    Misrepresenting contract of employment as
27           contract for services
28     (1)   An employer must not represent to an employee that a
29           contract of employment is a contract for services.


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1              (2)   Subsection (1) does not apply if the employer proves
2                    that, when the representation was made, the employer
3                    did not know, and could not reasonably be expected to
4                    have known, that the contract was a contract of
5                    employment rather than a contract for services.
6              (3)   A contravention of subsection (1) is not an offence but
7                    that subsection is a civil penalty provision for the
8                    purposes of section 83E.

9            97E.    Dismissing to engage under contract for services
10             (1)   An employer must not dismiss or threaten to dismiss an
11                   employee performing particular work for the employer
12                   in order to engage the employee to perform the same,
13                   or substantially the same, work under a contract for
14                   services.
15             (2)   In any proceedings for a contravention of
16                   subsection (1), if it is proved that an employer
17                   dismissed, or threatened to dismiss, the employee, it is
18                   for the employer to prove that the employer did not do
19                   so in order to engage the employee under the contract
20                   for services.
21             (3)   A contravention of subsection (1) is not an offence but
22                   that subsection is a civil penalty provision for the
23                   purposes of section 83E.

24           97F.    False statement to engage under contract for
25                   services
26             (1)   An employer must not make a statement that the
27                   employer knows, or could reasonably be expected to
28                   know, is false in order to persuade or influence an
29                   employee performing particular work for the employer
30                   to enter into a contract for services under which the
31                   employee will perform the same, or substantially the
32                   same, work.

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1      (2)   In any proceedings for a contravention of
2            subsection (1), if it is proved that an employer made
3            the statement, it is for the employer to prove that the
4            employer did not do so in order to persuade or
5            influence the employee to enter into the contract for
6            services.
7      (3)   A contravention of subsection (1) is not an offence but
8            that subsection is a civil penalty provision for the
9            purposes of section 83E.

10   97G.    Court orders to employers
11     (1)   This section applies if an industrial magistrate's court
12           determines that an employer has contravened
13           section 97D(1), 97E(1) or 97F(1) in respect of an
14           employee.
15     (2)   Except as provided in subsection (5), the industrial
16           magistrate's court may order the employer to do 1 or
17           more of the following --
18            (a) if the employee was dismissed from
19                  employment -- to reinstate the employee;
20            (b) if the employee was refused employment -- to
21                  employ the employee;
22            (c) to pay to the employee compensation for any
23                  loss or injury suffered as a result of the
24                  contravention.
25     (3)   The employer must comply with the order.
26           Penalty for this subsection:
27               (a) a fine of $13 000;
28               (b) a daily penalty of a fine of $1 000 for each
29                     day or part of a day during which the offence
30                     continues.



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1                (4)   The court may make the order in addition to imposing
2                      a penalty under section 83E.
3                (5)   The industrial magistrate's court must not make the
4                      order if the employee has applied under another
5                      provision of this Act or any other written law for relief
6                      in relation to the same act or omission unless the
7                      proceedings for that relief have been withdrawn or
8                      failed for want of jurisdiction.
9                (6)   The employee is not entitled to compensation for the
10                     same act or omission under both subsection (2)(c) and
11                     another provision of this Act or any other written law.

12                            Division 4 -- Miscellaneous
13           97H.      Certain advertising prohibited
14               (1)   A person must not advertise the availability of
15                     employment at a rate of pay that is less than the
16                     minimum wage applicable to the position under the
17                     MCE Act or an award, order of the Commission or an
18                     industrial agreement.
19               (2)   A contravention of subsection (1) is not an offence but
20                     that subsection is a civil penalty provision for the
21                     purposes of section 83E.
22


23   62.         Section 97U amended
24         (1)   In section 97U(1) delete the definitions of:
25               supported wage provisions
26               Supported Wage System




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1          (2)   In section 97U(1) in the definition of section 97UM signatory
2                delete "97UM(2);" and insert:
3

4                97UM(2).
5


6    63.         Section 97UF amended
7                In section 97UF(3)(a) delete "supported wage provisions; and"
8                and insert:
9

10               a SWIIP; and
11


12   64.         Section 97YA amended
13               In section 97YA(1)(a) delete "supported wage provisions" and
14               insert:
15

16               a SWIIP
17


18   65.         Section 98 amended
19         (1)   In section 98(3):
20                 (a) delete paragraph (a) and insert:
21

22                      (a)     with or without giving notice to the owner or
23                              occupier, enter --
24                                (i) a place (industrial location) at which
25                                     there are reasonable grounds to suspect
26                                     that an industry is being or has been
27                                     carried on or any work is being done or
28                                     has been done or commenced in relation
29                                     to an industry; or


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1                            (ii)   a place (business premises) at which
2                                   there are reasonable grounds to suspect
3                                   that records relevant to an industry are
4                                   kept or can be accessed;
5                           and
6

7               (b)   in paragraph (b) delete "location; and" and insert:
8

9                     location or business premises, or any record accessible
10                    from a computer kept at the industrial location or
11                    business premises; and
12

13              (c)   delete paragraphs (c) to (f) and insert:
14

15                    (c)   take with the inspector into an industrial
16                          location or business premises any person or
17                          persons the inspector considers necessary to
18                          provide assistance to the inspector; and
19                    (d)   require (either alone or in the presence, or with
20                          the assistance, of some other person) any
21                          person the inspector finds in an industrial
22                          location or business premises to answer
23                          questions by the inspector --
24                             (i) orally; or
25                            (ii) if the inspector thinks fit -- in writing;
26                          and
27                    (e)   by notice in writing or orally require a person
28                          having the control of, or access to, a record to
29                          produce the record for inspection by the
30                          inspector; and




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1           (f)    in relation to a record referred to in
2                  paragraph (b) or (e), do all or any of the
3                  following --
4                     (i) seize the record;
5                    (ii) retain the record for as long as is
6                           necessary for the purposes of carrying
7                           out the function to which the record is
8                           relevant;
9                   (iii) take extracts from or copies of the
10                          record;
11                 and
12         (fa)    post at an industrial location, in a place where it
13                 may be viewed by employees at the location, a
14                 notice containing information regarding any of
15                 the following --
16                    (i) the rights and obligations under any law
17                          of the State or Commonwealth relating
18                          to employment (an employment law) of
19                          the employees or their employer;
20                   (ii) a conviction of the employer of an
21                          offence under an employment law;
22                  (iii) a finding that the employer has
23                          contravened an entitlement provision or
24                          civil penalty provision under this Act or
25                          a civil remedy provision under the
26                          FW Act;
27                 and
28

29   (d)   In paragraph (h) delete "(f)" and insert:
30

31         (f), (fa)
32




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     Part 2           Industrial Relations Act 1979 amended

     s. 65



1       (2)     After section 98(3) insert:
2

3             (3A)    If an industrial inspector proposes to exercise the
4                     power under subsection (3)(a) to enter an industrial
5                     location or business premises that also comprises
6                     premises principally used for habitation, the inspector
7                     must give the owner or occupier of the location or
8                     premises at least 24 hours' written notice of the
9                     proposed entry unless --
10                      (a) the owner or occupier is carrying on an industry
11                            at the location or premises; or
12                      (b) the Commission has made an order waiving the
13                            requirement under this subsection to give the
14                            notice.
15             (3B)   An industrial inspector may apply to the Commission
16                    for an order under subsection (3A)(b).
17             (3C)   The application may be heard in the absence of the
18                    owner or occupier of the industrial location or business
19                    premises.
20            (3D)    The Commission may make the order if it is satisfied
21                    that a notice under subsection (3A) would defeat the
22                    purpose for which the power in subsection (3)(a) is
23                    intended to be exercised.
24

25      (3)     Delete section 98(5) and insert:
26

27              (5)   The power of an industrial inspector under
28                    subsection (3)(e) may be exercised --
29                      (a) whether or not the industrial inspector has
30                           entered, or proposes to enter, an industrial
31                           location or business premises; and



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                                                                                 s. 66



1                         (b)    if exercised when the industrial inspector has
2                                entered an industrial location or business
3                                premises -- in relation to any record whether or
4                                not it is kept at the location or premises.
5                (5A)   The regulations may prescribe the form and manner in
6                       which records may be produced for inspection under
7                       subsection (3)(e).
8

9          (4)    In section 98(6) delete the definition of conveyance.
10         (5)    In section 98(7) delete "subsection (2), (3) or (5)" and insert:
11

12                subsection (2) or (3)
13


14   66.          Section 98A inserted
15                After section 98 insert:
16


17           98A.       Information obtained under s. 98 not to be disclosed
18                (1)   This section applies to a person who is --
19                       (a) an industrial inspector; or
20                       (b) a person assisting an industrial inspector under
21                             section 98(3)(c) or (d).
22                (2)   The person must not, directly or indirectly, record,
23                      disclose or make use of information obtained in the
24                      course of performing functions under section 98
25                      except --
26                        (a) in the course of performing those functions; or
27                        (b) as required or allowed by this Act or any other
28                              written law or a law of the Commonwealth,
29                              another State or a Territory; or


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1                         (c)  to assist in the administration or enforcement of
2                              a written law or a law of the Commonwealth,
3                              another State or a Territory; or
4                        (d) for the purpose of proceedings in a court; or
5                        (e) with the written authority of each person to
6                              whom the information relates; or
7                         (f) in other circumstances prescribed by the
8                              regulations.
9                       Penalty for this subsection: a fine of $5 000.
10


11   67.          Section 102 amended
12         (1)    After section 102(2) insert:
13

14               (2A)   For the purposes of subsection (2)(a), a person who
15                      destroys, defaces, alters, takes, or otherwise interferes
16                      with a notice posted at an industrial location by an
17                      industrial inspector under section 98(3)(fa) is taken to
18                      obstruct the industrial inspector in the performance of
19                      the inspector's function under that section.
20

21         (2)    After section 102(3) insert:
22

23                (4)   If in proceedings under section 83E an industrial
24                      magistrate's court is required to consider whether a
25                      contravention of subsection (1)(a) has occurred it may,
26                      as an alternative, determine that a contravention of a
27                      record-related civil penalty provision has occurred.
28                (5)   If in proceedings under section 83E an industrial
29                      magistrate's court is required to consider whether a
30                      contravention of a record-related civil penalty
31                      provision has occurred it may, as an alternative,


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                                                                           s. 68



1                 determine that a contravention of subsection (1)(a) has
2                 occurred.
3


4    68.    Section 103 amended
5           In section 103(3) in the definition of breach after
6           "contravention" (first occurrence) insert:
7

8           of
9


10   69.    Section 112A amended
11          After section 112A(3) insert:
12

13         (3A)   Subsection (3) does not apply to a disqualified person.
14         (3B)   In subsection (3A) --
15                disqualified person means a disqualified person as
16                defined in the Legal Profession Act 2008 section 3
17                except that --
18                  (a) it includes --
19                          (i) a person whose name has been removed
20                                from a foreign roll as defined in
21                                section 3 of that Act; and
22                         (ii) a person in relation to whom the grant
23                                or renewal of a local practising
24                                certificate as defined in section 3 of that
25                                Act has been refused;
26                        but
27                  (b) it does not include --
28                          (i) a person whose name has, for reasons
29                                other than or in connection with
30                                disciplinary action, been removed from

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1                                    an Australian roll or foreign roll as
2                                    those terms are defined in section 3 of
3                                    that Act; or
4                             (ii)   a person whose local practising
5                                    certificate as defined in section 3 of that
6                                    Act has, for reasons other than or in
7                                    connection with disciplinary action,
8                                    been suspended or cancelled.
9


10   70.       Section 117 inserted
11             At the end of Part VII insert:
12


13           117.    Savings and transitional provisions for Industrial
14                   Relations Legislation Amendment Act 2021
15             (1)   In this section --
16                   commencement day means the day on which the
17                   Industrial Relations Legislation Amendment Act 2021
18                   section 15 comes into operation;
19                   former section means a section of this Act as in
20                   operation immediately before the commencement day;
21                   transitioned private sector award means a private
22                   sector award that was in force immediately before the
23                   commencement day.
24             (2)   On and after the commencement day, former
25                   section 37(1) continues in operation in relation to a
26                   transitioned private sector award until the award is --
27                     (a) cancelled; or
28                     (b) varied under section 37D, 40(2A) or 50(5).
29             (3)   Sections 37B and 37C do not apply to a transitioned
30                   private sector award until it is varied under
31                   section 37D, 40(2A) or 50(5).

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                                                                                  s. 71



1                (4)   This section does not affect the operation of the
2                      Interpretation Act 1984 Part V.
3


4    71.         Schedule 4 amended
5                Delete Schedule 4 clause 1(2)(a) and insert:
6

7                        (a)    there is no industrial instrument containing a SWIIP
8                               that extends to the employee; and
9


10   72.         Various penalties amended
11         (1)   Amend the provisions listed in the Table as set out in the Table.
12                                           Table
                 Provision                 Delete                    Insert

       s. 48B(4)                   Penalty                   Penalty for this
                                                             subsection
                                   individual, $1 000        individual -- a fine
                                                             of $1 000
                                   case, $5 000              case -- a fine of
                                                             $5 000

       s. 73(14)                   Penalty:                  Penalty for this
                                                             subsection: a fine of
       s. 97WF(1)
       s. 97XV(1)
       s. 111(2)
       s. 112A(2)

       s. 99A(3)                   Penalty                   Penalty for this
                                                             subsection



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     s. 72




               Provision                 Delete                  Insert

       Sch. 5 cl. 2             $2 000                   a fine of $2 000
       Sch. 5 cl. 3

       Sch. 5 cl. 4(1) and      Penalty:                 Penalty for this
       (2)                                               subclause: a fine of

1       (2)    In section 78 delete "is guilty of an offence and liable to a
2              penalty of $5 000 and a daily penalty of $500." and insert:
3

4              commits an offence.
5

6       (3)    At the end of section 78 insert:
7

8                     Penalty:
9                         (a) a fine of $5 000;
10                        (b) a daily penalty of a fine of $500 for each day
11                             or part of a day during which the offence
12                             continues.
13

14      (4)    At the end of the provisions listed in the Table insert:
15

16                    Penalty for this subsection:
17                        (a) in the case of an individual -- a fine of not
18                              less than $400 or more than $5 000;
19                        (b) in any other case --
20                             (i)   a fine of not less than $1 000 or more
21                                   than $10 000;




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                                                                           s. 72



1                          (ii)   a daily penalty of a fine of $500 for
2                                 each day or part of a day during which
3                                 the offence continues.
4

5                                    Table
     s. 96C(1) and (2)                    s. 96D(1) and (2)

     s. 96E(1) and (2)

6    (5)   In section 96C(3) delete the Penalty.
7    (6)   In section 96D(3) delete the Penalty and insert:
8

9                Penalty for this subsection:
10                   (a) in the case of an individual -- a fine of not
11                         less than $400 or more than $5 000;
12                   (b) in any other case --
13                          (i)   a fine of not less than $1 000 or more
14                                than $10 000;
15                         (ii)   a daily penalty of a fine of $500 for
16                                each day or part of a day during which
17                                the offence continues.
18

19   (7)   In section 96E(3) delete the Penalty and insert:
20

21               Penalty for this subsection:
22                   (a) in the case of an individual -- a fine of not
23                         less than $400 or more than $5 000;
24                   (b) in any other case --
25                          (i)   a fine of not less than $1 000 or more
26                                than $10 000;


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     s. 73



1                               (ii)   a daily penalty of a fine of $500 for
2                                      each day or part of a day during which
3                                      the offence continues.
4

5          (8)   In section 97YC(4) delete the Penalty and insert:
6

7                      Penalty for this subsection:
8                          (a) a fine of $5 000;
9                          (b) a daily penalty of a fine of $500 for each day
10                               or part of a day during which the offence
11                               continues.
12

13         (9)   In section 97YG(7) delete the Penalty and insert:
14

15                     Penalty for this subsection:
16                         (a) a fine of $5 000;
17                         (b) a daily penalty of a fine of $500 for each day
18                               or part of a day during which the offence
19                               continues.
20


21   73.         Various references to "prescribed" amended
22               In the provisions listed in the Table delete "prescribed" and
23               insert:
24

25               approved
26

27                                        Table
       s. 33(1)(a)                            s. 41(7)

       s. 55(1)(c)                            s. 58(1) (first occurrence)


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                                                                                        s. 74



1    74.         Various references to "Federal" amended
2                In the provisions listed in the Table delete "Federal" (each
3                occurrence) and insert:
4

5                federal
6

7                                             Table
       s. 71(3)(a) and (b)                         s. 71(7)

       s. 71(9)(b) and (c)                         s. 71A(2)

       s. 71A(4)(b)

8                Note: The heading to the amended sections listed in the Table are to read as
9                      set out in the Table.

10                                            Table
                    Amended section                       Section heading
                   s. 14A                 Dual federal and State appointments
                   s. 14B                 Performance of duties by dual federal and
                                          State appointees


11   75.         Various references to titles amended
12         (1)   Amend the provisions listed in the Table as set out in the Table.
13                                            Table
                 Provision                   Delete                      Insert

       s. 31(1)(c)(i)                Fair Work Act 2009          FW Act
                                     (Commonwealth)
       s. 73(3)(a)(ii) and
       (7b)
       s. 80ZJ(1)
       s. 97VS(5)(a)

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s. 75




        Provision                 Delete                  Insert

  s. 73(3)(a)(ii) and      Fair Work               FW (Transitional)
  (7b)                     (Transitional           Act
                           Provisions and
  s. 97VS(5)(a)
                           Consequential
                           Amendments)
                           Act 2009
                           (Commonwealth)

  s. 7(1) def. of          Fair Work               FW Commission
  secondary office         Commission (each
                           occurrence)
  s. 14A
  s. 14B(1)
  s. 22(2)(c)
  s. 29AA(1) and (2)
  s. 80ZF def. of Fair
  Work Commission
  s. 80ZG(1)(a), (b)
  and (c), (2) and (3)
  s. 80ZH(1), (2) and
  (4)
  s. 80ZI(2) and (3)

  s. 80ZF def. of Fair     Fair Work               FW Commission
  Work Commission          Commission

  s. 80H(6)                Fair Work               FW (Registered
                           (Registered             Organisations) Act
                           Organisations)
                           Act 2009
                           (Commonwealth)



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                                                                                     s. 75



              Provision                   Delete                      Insert

     s. 81AA(ba)                  Part IV of the Long         the LSL Act Part IV
                                  Service Leave
     s. 81CA(1)(b)
                                  Act 1958

     s. 97VS note                 Minimum Conditions MCE Act
                                  of Employment
     Sch. 4 cl. 1(1)(f)
                                  Act 1993
     note

1             Note: The heading to the amended sections listed in the Table are to read as
2                   set out in the Table.

3                                          Table
                 Amended section                       Section heading
                s. 80ZF                Term used: FW Commission
                s. 80ZG                Joint proceedings of Commission and FW
                                       Commission
                s. 80ZH                Referring matters to FW Commission for
                                       determination under this Act
                s. 80ZJ                Commission may exercise powers conferred
                                       by FW Act or prescribed enactments

4     (2)     Amend the provisions listed in the Table as set out in the Table.
5                                          Table
              Provision                     Delete                      Insert

    s. 7(3)                        Occupational Safety         OSH Act
                                   and Health Act 1984
    s. 8(3A)(b)
    s. 16(2A) and (2C)
    s. 113(1)(d)(ii)(I)




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     s. 75




      s. 7(3)(b)                      section 102(1) of the      the MSI Act
                                      Mines Safety and           section 102(1)
                                      Inspection Act 1994

      s. 7(3)(c)                      clause 69(1) of            the Petroleum and
                                      Schedule 1 to the          Geothermal Energy
                                      Petroleum and              Resources Act 1967
                                      Geothermal Energy          Schedule 1
                                      Resources Act 1967,        clause 69(1), the
                                      clause 69(1) of            Petroleum Pipelines
                                      Schedule 1 to the          Act 1969 Schedule 1
                                      Petroleum Pipelines        clause 69(1), or the
                                      Act 1969, or               Petroleum
                                      clause 70(1) of            (Submerged Lands)
                                      Schedule 5 to the          Act 1982 Schedule 5
                                      Petroleum                  clause 70(1)
                                      (Submerged Lands)
                                      Act 1982

      s. 8(3A)(b)                     Mines Safety and           MSI Act
                                      Inspection Act 1994
      s. 113(1)(d)(ii)(II)

1       (3)     If the Work Health and Safety Act 2020 Part 15 Division 4
2               Subdivision 5 comes into operation on or before the day on
3               which section 5(2) of this Act comes into operation,
4               subsection (2) --
5                 (a) does not come into operation; and
6                 (b) is deleted when section 5(2) of this Act comes into
7                       operation.
8               Notes for this subsection:
 9              1.    If the Work Health and Safety Act 2020 Part 15 Division 4
10                    Subdivision 5 comes into operation after the day on which section 5(2)
11                    of this Act comes into operation, see Part 7 Division 1 Subdivision 2.
12              2.    See also section 129.




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                                                                               s. 76



1   76.         Various references to "shall" replaced
2         (1)   In the provisions listed in the Table delete "shall".
3                                          Table
      s. 67(3)                                s. 72(3)

      s. 80G(1)                               s. 80L(1)

      s. 80W(1)

4         (2)   In the provisions listed in the Table delete "shall" and insert:
5

6               must
7

8                                          Table
      s. 3(5)                                 s. 9(2)

      s. 12(1) and (2) (each                  s. 14B(2), (3) and (4)
      occurrence)                             (each occurrence)

      s. 15(2)                                s. 16(2)(b)

      s. 20(9)                                s. 23(3)

      s. 26(1)(a), (b), (c) and (d) and       s. 27(1a)
      (3)

      s. 29A(1), (2), (3) and (4)             s. 32(1), (2), (4) and (7)

      s. 33(1)(a), (c) and (e), (3), (4)      s. 38(1)
      and (5) (each occurrence)

      s. 40(3)(b)                             s. 40A(1) (each occurrence)




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s. 76




  s. 40B(2) and (3)                    s. 41(2) and (4)

  s. 41A(1) and (2)                    s. 42B(1)

  s. 42C(2) and (5)                    s. 44(3), (5), (5a), (11) and (12d)
                                       (each occurrence)

  s. 46(2)                             s. 47(3) and (5)

  s. 48(2), (8), (9) and (12)          s. 48A(1) and (1a)
  (each occurrence)

  s. 48B(2) and (4)                    s. 49(3), (4)(a) and (b) and (6)
  (each occurrence)

  s. 50(7)                             s. 50A(1), (3), (4) and (7)

  s. 50B(3)                            s. 51A(4) and (5)

  s. 51BA(1)                           s. 51BB

  s. 51BE                              s. 51J

  s. 51K                               s. 51L

  s. 51M                               s. 55(1), (2), (3) and (4)(e)(i)

  s. 56(1) (each occurrence)           s. 56(3) (1st occurrence)

  s. 56A(3)                            s. 57(1)

  s. 59(2)                             s. 62(2) and (3)

  s. 63(1), (2), (3), (6) and (7)      s. 64(2)

  s. 64A(2)                            s. 64D




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                                                                     s. 76



s. 65                               s. 66(2)(f)(ii) and (4)
                                    (each occurrence)

s. 69(3), (4), (6), (8), (9) and    s. 70(1) and (2)
(11) (each occurrence)

s. 71(5) (1st occurrence)           s. 71(9)(a)

s. 71A(5)(a)                        s. 72(2) (each occurrence)

s. 72B(4), (5) and (6)              s. 73(3)(a) and (b), (4), (5),
                                    (7)(a), (7b)(a), (11), (12a), (13)
                                    and (14) (each occurrence)

s. 77(6) and (7)                    s. 80C(2) and (4)

s. 80J(a)                           s. 80K(3) (each occurrence)

s. 80M(3) (1st and 3rd              s. 80N(3), (4) and (5)(a)
occurrences)

s. 80U(3)                           s. 80V(2) (each occurrence)

s. 80ZE(1)                          s. 81(2) and (4) (each
                                    occurrence)

s. 81C(2)                           s. 81D(1) (1st occurrence)

s. 82(2)                            s. 82A

s. 83(8)                            s. 83A(1)

s. 83A(3) (2nd occurrence)          s. 83B(6)(a) and (10)

s. 83F(1)                           s. 84(3)




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      s. 84A(4)(a) and (b) and (7)             s. 85(4) and (5) (each
                                               occurrence)

      s. 87(1)                                 s. 90(2) and (3a)

      s. 93(3), (4), (5) and (6) (each         s. 95(2) (2nd occurrence)
      occurrence)

      s. 96F(4)(b) and (c)                     s. 96J(2)(a)

      s. 98(2) (each occurrence)               s. 102(1) and (2)

      s. 103(2)                                s. 106

      s. 109                                   s. 110(1)

      s. 111(1) and (2)                        s. 112(2)

      s. 112A(4)                               s. 113(2)

      s. 113(3b) (2nd occurrence)              s. 114(2) (2nd occurrence)

1              Note: The heading to amended section 41A is to read:
2                    Which industrial agreements must not be registered under s. 41

3      (3)     In the provisions listed in the Table delete "shall be" and insert:
4

5              is
6

7                                          Table
      s. 8(3)(c)                               s. 31(2)

      s. 33(1)(b)                              s. 34(4)

      s. 56A(5)                                s. 80H(1)



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    s. 80H(4) (2nd occurrence)          s. 80M(2)

    s. 80N(1) and (2)(a), (b) and (c)   s. 80ZG(3)
    (each occurrence)

    s. 80ZH(3)                          s. 81B(1)

    s. 81CA(8)                          s. 81D(1)

    s. 83A(3) (1st occurrence)          s. 84A(8)

    s. 85(2)(a) and (b) and (3a)        s. 92(2)

    s. 96I(1) and (2)                   s. 114(2) (1st occurrence)

1   (4)   In the provisions listed in the Table delete "shall be" and insert:
2

3         are
4

5                                   Table
    s. 27(1)(c)                         s. 29B

    s. 56(3)                            s. 61 (each occurrence)

    s. 72(5)(b)                         s. 80H(4) (1st occurrence)

    s. 80M(3)                           s. 85(2)(c) and (3) (each
                                        occurrence)

    s. 93(2)                            s. 96F(4)(d)

    s. 114(1)




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     s. 76



1       (5)     In the provisions listed in the Table delete "shall not" and insert:
2

3               cannot
4

5                                         Table
       s. 34(3)                               s. 51N(2)

       s. 83D(3)                              s. 84A(6)

6       (6)     In the provisions listed in the Table delete "shall" and insert:
7

8               can
9

10                                        Table
       s. 83C(1)                              s. 83E(11)

       s. 84A(5)                              s. 107

11      (7)     In the provisions listed in the Table delete "shall" and insert:
12

13              is
14

15                                        Table
       s. 71(9)(c)                            s. 80ZH(4)

       s. 80ZJ(2)                             s. 105




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                                                                             s. 76



1   (8)       Amend the provisions listed in the Table as set out in the Table.
2                                        Table
          Provision                   Delete                   Insert

    s. 3(2)                    An employer shall,      For the purposes of
                               for the purposes of     subsection (1), an
                               subsection (1), be      employer is

    s. 3(4)                    process                 process is, in the
                                                       absence of proof to
                                                       the contrary, taken to
                                                       be proved if it is
                                                       either of the
                                                       following

    s. 3(4)(b)                 (3),                    (3).

    s. 3(4)                    shall, in the absence
                               of proof to the
                               contrary, be deemed
                               to be proved.

    s. 3(6)                    Effect shall be given   Subsections (1), (2),
                               to subsections (1),     and (3) have effect
                               (2), and (3)

    s. 7(4)                    no regard shall         regard must not

    s. 20(8)                   shall, while he holds   holding office is
                               his office, be          taken
                               deemed

    s. 20(8a)                  1938 the duration of    1938, the following
                                                       are taken to be
                                                       increased by 100%



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s. 76




        Provision                    Delete                   Insert

  s. 20(8a)(a)             any                      the period of any

  s. 20(8a)(c)(ii)         duties,                  duties.

  s. 20(8a)                shall be deemed to
                           be increased by
                           100%.

  s. 20(10)                shall be not             cannot be

  s. 29A(1b)               (2A)                     (2A), the following
                                                    must be published in
                                                    the required manner

  s. 29A(1b)(b)            agreement,               agreement.

  s. 29A(1b)               shall be published in
                           the required manner.

  s. 33(1)(d)              whenever it shall        if the Commission
                           appear                   considers it

  s. 34(3)                 shall they               can they

  s. 35(3)                 shall, at a time fixed   are, at a time fixed
                           by the Commission,       by the Commission,
                           be




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                    Industrial Relations Legislation Amendment Bill 2021
                     Industrial Relations Act 1979 amended        Part 2

                                                                       s. 76



        Provision               Delete                    Insert

s. 37(4)                An award, and any        Subject to any
                        provision of an          variation made under
                        award, whether or        this Act, an award,
                        not it has been made     and any provision of
                        for a specified term,    an award, whether or
                        shall, subject to any    not it has been made
                        variation made under     for a specified term,
                        this Act, remain         remains

s. 37(4)                shall cease              ceases

s. 41(5)                shall operate            operates

s. 41(6)                shall, subject to this   continues
                        Act, continue

s. 41(7)                such filing, and such    the filing, and, on
                        party shall on the       the expiration of that
                        expiration of that       period, the party
                        period cease             ceases

s. 44(12c)              no appeal shall          an appeal does not

s. 48(1)                shall be                 is established

s. 50(3)                shall                    does
s. 80G(2)
s. 99

s. 60(1)                shall, upon and          is, upon and during
                        during registration,     registration,
                        become and be,




                                                                   page 113
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Part 2           Industrial Relations Act 1979 amended

s. 76




        Provision                  Delete                    Insert

  s. 62(1)                 shall not be or         is not
                           become
  s. 71A(5)(b)

  s. 71(5)(d)              shall, for all          are, for all purposes,
                           purposes, be

  s. 73(9)                 shall                   will

  s. 80D(4)                shall hold              holds
  s. 80O(1)(a) and (b)

  s. 80E(5)                shall affect or         affects or interferes
                           interfere

  s. 80H(2)                shall consist           consists
  s. 80N(2)
  s. 85(2)

  s. 80L(2)                shall apply             applies

  s. 80M(2)                shall have and enjoy    has and enjoys

  s. 80O(5)                shall become            becomes

  s. 80R(2)(c)             shall be advanced       advance

  s. 80U(2)                shall not be            is not
  s. 87(2)
  s. 114(1)




page 114
                   Industrial Relations Legislation Amendment Bill 2021
                    Industrial Relations Act 1979 amended        Part 2

                                                                         s. 76



     Provision                 Delete                       Insert

s. 81B(5)              An industrial              If an industrial
                       magistrate or acting       magistrate's court
                       industrial magistrate      constituted by an
                       shall, if the industrial   industrial magistrate
                       magistrate's court         or acting industrial
                       constituted by him         magistrate

s. 85(3)               shall nominate             nominates

s. 85(3)               such judges as the         judges the Chief
                       Chief Justice of           Justice of Western
                       Western Australia          Australia from time
                       shall from time to         to time nominates
                       time nominate

s. 85(3b)              shall                      is to

s. 93(1a)              shall appoint              may appoint

s. 93(1a)              shall not be               are not

s. 93(7)               shall forthwith            must immediately

s. 95(1) and (2)       shall have                 has

s. 98(4)               shall for all purposes     is taken
                       be deemed (each
                       occurrence)

s. 102A(1)             his own motion, and        the Registrar's or
                       shall, if he is            deputy registrar's
s. 104(4)
                                                  own motion, and
                                                  must, if




                                                                     page 115
    Industrial Relations Legislation Amendment Bill 2021
    Part 2           Industrial Relations Act 1979 amended

    s. 77




                Provision                 Delete                     Insert

      s. 108                      shall not, on and          is not, on and from
                                  from the date of its       the date of its
                                  registration, and          registration, and
                                  while so registered,       while so registered,
                                  be

      s. 113(3b)                  what fees shall            the fees to

      s. 114(1)                   shall, to that extent,     is, to that extent,
                                  be null and void           void

1   77.         Various references to gender removed
2         (1)   In the provisions listed in the Table delete "chairman" and
3               insert:
4

5               chairperson
6

7                                         Table
      s. 7(1) def. of principal                s. 44(6)(a) (each occurrence)
      executive officer

      s. 48(2), (5), (8) and (9)               s. 80H(4)(a)

      s. 80K(1) and (2)                        s. 80M(1) def. of member

      s. 80N(2)(a)                             s. 80O(1)(a), (2), (3), (7) and
                                               (8)(a)

      s. 80V(1) and (3)                        Sch 1 it. 5




    page 116
                          Industrial Relations Legislation Amendment Bill 2021
                           Industrial Relations Act 1979 amended        Part 2

                                                                            s. 77



1    (2)   In the provisions listed in the Table delete "he" and insert:
2

3          the person
4

5                                     Table
     s. 9(2)(a) and (b)                   s. 33(1)(b) and (c) and (2)

     s. 44(2)(b)                          s. 69(5)

     s. 70(1)(d)                          s. 80O(9)

     s. 80P(1)                            s. 102(1)(d)

6    (3)   In the provisions listed in the Table delete "his".
7                                     Table
     s. 16(3)                             s. 20(8a)(b)

     s. 44(11)(a)                         s. 80D(4)

     s. 80M(1) def. of head of            s. 80O(1)(a)
     branch and sub-head of branch

     s. 91(1)(a)                          s. 93(10)

     s. 111(1)

8    (4)   In the provisions listed in the Table delete "his" and insert:
9

10         the person's
11




                                                                        page 117
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 77



1                                         Table
       s. 20(8a)(c) (each occurrence)         s. 33(1)(a) (each occurrence)

       s. 70(1)(h)                            s. 102(1)(b)

       s. 114(1)

2       (5)     In the provisions listed in the Table delete "him" and insert:
3

4               the person
5

6                                         Table
       s. 33(1)(c) and (2)                    s. 44(3)

       s. 56(1)(b)                            s. 69(5)(c)

       s. 80P(1)                              s. 114(1)

7       (6)     In the provisions listed in the Table delete "his" and insert:
8

9               the Registrar's
10

11                                        Table
       s. 48(9)                               s. 56(2) and (3)

       s. 57(3)                               s. 73(11)

       s. 93(3)




     page 118
                          Industrial Relations Legislation Amendment Bill 2021
                           Industrial Relations Act 1979 amended        Part 2

                                                                            s. 77



1    (7)    In the provisions listed in the Table delete "his or her" and
2           insert:
3

4           the employee's
5

6                                     Table
     s. 49D(2)(a)                         s. 49E(4) def. of relevant person
                                          para. (b)

     s. 83(1)(f)                          s. 97U def. of party para. (b)

     s. 97UF(2)(b)                        s. 97UG(1)(b) and (4)(a)

     s. 97UH(b)(i)                        s. 97UL(1)(d)(ii) and (3)(b)

     s. 97UU(1)(b)                        s. 97UY(6) def. of day of
                                          execution para. (a)(ii)

     s. 97VA(1)(b)                        s. 97VK(1)(b)

     s. 97VS(1) and (6)                   s. 97VV

     s. 97YF(b) and (d)

7    (8)    In the provisions listed in the Table delete "he or she" and
8           insert:
9

10          the person
11

12                                    Table
     s. 49L(1)                            s. 97WY(1)

     s. 97XI(2)(b)                        s. 97XZ(1)(b)

     s. 97YG(2)(a)


                                                                      page 119
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 77



1       (9)     In the provisions listed in the Table delete "his or her" and
2               insert:
3

4               the person's
5

6                                        Table
       s. 49L(1)(b)                           s. 83E(6)(a)

       s. 97WV(2)

7      (10)     In the provisions listed in the Table delete "he" and insert:
8

9               the Registrar
10

11                                       Table
       s. 56(2)                               s. 57(3)

       s. 64(1) (each occurrence)             s. 69(3), (4) and (11)

       s. 93(6) and (7)

12     (11)     In the provisions listed in the Table delete "him or her" and
13              insert:
14

15              the person
16

17                                       Table
       s. 83(8)                               s. 83E(9)

       s. 97YC(4)                             s. 97YG(7)



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                       Industrial Relations Legislation Amendment Bill 2021
                        Industrial Relations Act 1979 amended        Part 2

                                                                          s. 77



1   (12)   In the provisions listed in the Table delete "he or she" and
2          insert:
3

4          the Registrar
5

6                                      Table
    s. 97WZ(1)                             s. 97XA

    s. 97XN(1)                             s. 97XP

7   (13)   Amend the provisions listed in the Table as set out in the Table.
8                                      Table
           Provision                Delete                  Insert

    s. 7(1) def. of public   his or her              the Governor's
    authority

    s. 7(1a)(b)              his                     the employee's

    s. 11(2)                 he (each occurrence)    the commissioner
    s. 14(2)
    s. 44(11)

    s. 16(3)                 himself

    s. 18(2)                 him                     the Governor
                             he                      the Governor

    s. 20(9)                 his appointment         being appointed
                             he retains his          the commissioner
                             existing                retains any existing
                             his service             the service


                                                                     page 121
Industrial Relations Legislation Amendment Bill 2021
Part 2           Industrial Relations Act 1979 amended

s. 77




        Provision                 Delete                  Insert

  s. 23(3)(c)(i)           his                     the employer's
  s. 80E(5) (1st
  occurrence)

  s. 25(1)(c)              he (each occurrence)    the Chief
                                                   Commissioner
  s. 44(12)
  s. 93(1a)

  s. 27(1)(i)              his                     the expert's

  s. 29AA(4)               his or her              an

  s. 30(1)                 his                     the Minister's
  s. 73(3)(a)

  s. 41(7)                 his                     the party's

  s. 44(3)                 his                     that

  s. 44(7)(a)(iii)         his                     an

  s. 44(11)                his (1st occurrence)    the commissioner's

  s. 44(11)(b)             him                     the commissioner

  s. 48(9)                 him                     the chairperson
  s. 80K(1)
  s. 80V(1)

  s. 49E(2)(b)             him or her              the employee




page 122
                    Industrial Relations Legislation Amendment Bill 2021
                     Industrial Relations Act 1979 amended        Part 2

                                                                      s. 77



        Provision               Delete                  Insert

s. 56(1)(b)             he                      the officer
s. 80C(3)

s. 56(1)(b)             his being so            the person is

s. 56(2) and (3)        him                     the Registrar
s. 63(7)

s. 63(1)(a)             financial status of     status of each
                        each member in          member in respect of
                        respect of his          the financial
                                                requirements for

s. 73(3)(a)             him                     the Minister
s. 80N(3)

s. 73(12a)              him or her              the Registrar

s. 80D(5)(a)            he                      the arbitrator

s. 80D(5)(b)            his appointment         the appointment of
                                                the commissioner

s. 80E(2)(a)            him (each               the officer
                        occurrence)
s. 94

s. 80E(5)               by him of his           of the Arbitrator's

s. 80F(2)               his (each occurrence) the officer's
s. 80J(b)

s. 80G(1)               his                     the Arbitrator's



                                                                 page 123
Industrial Relations Legislation Amendment Bill 2021
Part 2           Industrial Relations Act 1979 amended

s. 77




        Provision                  Delete                 Insert

  s. 80N(4)                him                     the Electoral
                                                   Commissioner

  s. 80N(5)(b)             he                      the Minister

  s. 80O(2)(a)             he                      the chairperson

  s. 80O(2)(b)             his                     the chairperson's

  s. 80O(5)(b), (c) and    he                      the member
  (e)
  s. 87(3)

  s. 80O(5)(d), (6) and    his                     the member's
  (9)(a)
  s. 85(6)

  s. 80O(6)                him                     the member
  s. 80ZH(4)

  s. 80O(9)                his (1st occurrence)    the person's

  s. 80P(1)                member (1st             person as a member
                           occurrence)

  s. 80P(2)                him                     the Chief
                                                   Commissioner or
                                                   Governor
                           he                      the Chief
                                                   Commissioner or
                                                   Governor

  s. 80R(2)(d)             his or their            of the relevant


page 124
                      Industrial Relations Legislation Amendment Bill 2021
                       Industrial Relations Act 1979 amended        Part 2

                                                                         s. 77



     Provision                    Delete                  Insert

s. 80R(2)(f)              his or their position    of the relevant
                                                   position or positions

s. 80S(2)                 on his or their behalf

s. 80ZH(1)                where in his opinion     if

s. 80ZH(3)                him under                the member of the
                          subsection (2), the      FW Commission
                          member of the Fair       under subsection (2),
                          Work Commission          the member

s. 81B(3)                 when                     when the industrial
                                                   magistrate

s. 81B(3)(a)              he

s. 81B(3)(b)              he resigns his           in the case of a
                                                   person appointed
                                                   under subsection (2),
                                                   resigns from

s. 81B(4)                 his

s. 81B(5)                 he                       the magistrate

s. 85(6)                  him                      the judge
                          he (each occurrence)     the judge

s. 95(1)(a) and (b)       him                      the deputy registrar

s. 96(3)(b)               his or her               an
                          (1st occurrence)




                                                                    page 125
Industrial Relations Legislation Amendment Bill 2021
Part 2           Industrial Relations Act 1979 amended

s. 77




        Provision                 Delete                  Insert

  s. 96(3)(b)              he or she               the employee
  s. 97UM(4)

  s. 96(3)(b)              his or her              a
                           (2nd occurrence)

  s. 96(11)                his or her              the Chief
                                                   Commissioner's

  s. 96L(1)(a)(i)          he or she               the complainant

  s. 96L(1)(a)(iii)        him or her              the complainant

  s. 97UD(2)               his or her              the represented
                                                   person's
  s. 97XJ(2)

  s. 97UG(1)               he or she               the employer
  s. 97YH

  s. 97UH                  him or her              the employer

  s. 97UJ(1)               his or her              a

  s. 97UJ(1)(d)            him or her              the employer or
                                                   employee

  s. 97V(1)                he or she               the party
  s. 97VJ(1)

  s. 97VB                  satisfy himself or      consider whether
                           herself that

  s. 97VC(3)               his or her              the party's


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                     Industrial Relations Legislation Amendment Bill 2021
                      Industrial Relations Act 1979 amended        Part 2

                                                                       s. 77



      Provision                  Delete                  Insert

s. 97VD(2)(a)            his or her              the Registrar's
s. 97WZ(2)

s. 97WJ                  his or her              a

s. 97WN(3)(b) and        he or she               the arbitrator
(4)(c)

s. 97WS(3)               he or she               the representative
s. 97XF(2)

s. 97WU(1)               he or she               the Public Advocate

s. 97WX(2)               his or her
s. 97XM(7)
Sch. 4 it. 1(h)(i)

s. 97WZ(3)(a)            he or she               the applicant
s, 97XN(2)(a)

s. 97XB(1)               his or her              that person's

s. 97XD(1)               his or her              performing

s. 97XF(1)               his or her              the representative's

s. 97XH(1)               of his or her wish      that the
                                                 representative
                                                 wishes

s. 97XI(2)(a)            his or her behalf       behalf of the
and (3)(c)                                       represented person
s. 97XK(1)(b)

                                                                   page 127
Industrial Relations Legislation Amendment Bill 2021
Part 2           Industrial Relations Act 1979 amended

s. 77




        Provision                   Delete                 Insert

  s. 98(3)                 his (each occurrence) the inspector's
  s. 102A(2)
  s. 104(3)

  s. 98(3)(g)              he                      the inspector

  s. 98(3)(h)              him                     the inspector

  s. 102(1)(c)             his                     the returning
                                                   officer's

  s. 103(2)                he                      the applicant

  s. 107                   by him

  s. 112(1)                his                     a

  s. 112A(2)               holds himself out as    represents that the
                                                   person is

  s. 114(2)                his (1st occurrence)    the employee's
                           his (2nd occurrence)    the
                           him                     the employee
                           he                      the employee

  Sch. 4 it. 1(g)          he or she (each         the employee
                           occurrence)
  Sch. 4 it. 1(h)

  Sch. 4 it. 1(i)          his or her              that party's

  Sch. 5 it. 1(c)          he or she               the authorised person




page 128
                             Industrial Relations Legislation Amendment Bill 2021
                              Industrial Relations Act 1979 amended        Part 2

                                                                               s. 78



1    78.         Various other modernisations
2          (1)   In the provisions listed in the Table delete "of the
3                Commonwealth" and insert:
4

5                (Commonwealth)
6

7                                         Table
       s. 3(2)(c)(iii)                         s. 48B(1) def. of complying
                                               superannuation fund or scheme
                                               para. (a)

       s. 65(a)                                s. 96H(3) def. of corporation

       s. 97U(1) def. of employment
       services for persons with
       disabilities

8          (2)   In the provisions listed in the Table delete "hereby".
9                                         Table
       s. 4                                    s. 8(1)

       s. 85(1)                                s. 114(2)

10         (3)   In the provisions listed in the Table delete "deemed" and insert:
11

12               taken
13

14                                        Table
       s. 20(8a)(b)                            s. 31(2)

       s. 44(2)(b)                             s. 56(3)


                                                                          page 129
     Industrial Relations Legislation Amendment Bill 2021
     Part 2           Industrial Relations Act 1979 amended

     s. 78




       s. 66(2)(f)(ii)                        s. 71A(3)

       s. 80M(2) and (3)                      s. 80ZH(3)

       s. 92(2)                               s. 96F(4)(d)

1       (4)     In the provisions listed in the Table delete "thereto".
2                                        Table
       s. 27(1)(d)                            s. 41(3)

       s. 43(1)                               s. 44(8)(a) and (11)

3       (5)     In the provisions listed in the Table delete "any matter or thing"
4               and insert:
5

6               anything
7

8                                        Table
       s. 27(1)(p)                            s. 48(6)(a) and (b) and (15)

       s. 112A(5)(e)

9       (6)     In the provisions listed in the Table delete "be deemed" and
10              insert:
11

12              taken
13

14                                       Table
       s. 71(9)(c)                            s. 80ZH(4)

       s. 80ZJ(2)                             s. 96F(4)(c)


     page 130
                          Industrial Relations Legislation Amendment Bill 2021
                           Industrial Relations Act 1979 amended        Part 2

                                                                              s. 78



1   (7)       Amend the provisions listed in the Table as set out in the Table.
2                                        Table
          Provision                      Delete                Insert

    s. 3(1)                    industrial matter or    related industrial
                               industrial action       matter or industrial
                               related thereto         action
                               extends thereto         extends to the matter
                                                       or action

    s. 6(b)                    agreement, thereby      agreement and

    s. 7(1) def. of            therein (each
    industrial matter          occurrence)
    para. (c)
    s. 73(9)

    s. 7(1) def. of            therein                 in the industry
    industrial matter

    s. 7(1) def. of            thereof                 of an organisation or
    industrial matter                                  association
    para. (e)

    s. 27(1)(a)                thereof (1st and 3rd    of it
                               occurrence)
                               thereof (2nd
                               occurrence)

    s. 27(1)(d)                thereof                 of the matter
    s. 80E(6)
    s. 80R(3)




                                                                         page 131
Industrial Relations Legislation Amendment Bill 2021
Part 2           Industrial Relations Act 1979 amended

s. 78




        Provision                    Delete                Insert

  s. 27(1)(h)              wherein                 in which
  s. 49(3)(a)
  s. 84(3)
  s. 90(2)(a)

  s. 27(1)(p)              whatsoever, wherein     in,
                           of a matter before   of, or related to, a
                           the Commission or is matter before the
                           related thereto      Commission

  s. 27(1)(q)              thing whatsoever        other thing

  s. 32(4)(a)              thereafter
  s. 47(5)

  s. 32(4)(c)              (8) and of the          (8), and of any
                           preamble thereto        preamble to it,

  s. 33(5)                 therefrom               from the documents

  s. 35(4)                 therein prescribed      prescribed in this
                                                   section

  s. 40(3)                 thereof                 of it

  s. 41(1)                 disputes,               any related disputes,
                           disagreements, or       disagreements, or
                           questions relating      questions
                           thereto

  s. 41(5)(a) and (b)      therein                 in the agreement




page 132
                   Industrial Relations Legislation Amendment Bill 2021
                    Industrial Relations Act 1979 amended        Part 2

                                                                      s. 78



      Provision                  Delete                Insert

s. 41(6) and (7)       thereto                 to the agreement
                       therefrom               from the agreement

s. 44(2)(b)            shall, in any           is, in any
                       proceedings under       proceedings under
                       this Act relating       this Act relating to
                       thereto, be             the summons,

s. 44(3)               thereat

s. 44(6)               the foregoing           this subsection,

s. 44(11)              thereupon
s. 56(3)

s. 46(1)(b)            therein or of giving    in, or giving fuller
                       fuller effect thereto   effect to, the
                                               provision

s. 48(10)              as prescribed therein   in accordance with
                                               that subsection

s. 51A(1)(a)           matter related          related matter
                       thereto

s. 55(2)(b)            thereof                 of this paragraph

s. 55(4)(d)            therefor                for the alteration
s. 62(3)(b)(i)

s. 63(2)               therein                 in the records

s. 64(2)               therewith               with the direction



                                                                page 133
Industrial Relations Legislation Amendment Bill 2021
Part 2           Industrial Relations Act 1979 amended

s. 78




        Provision                    Delete                   Insert

  s. 65(a)                 in this section called

  s. 66(2)                 the foregoing            this subsection
  s. 87(3)

  s. 66(2)(ca)             any act, matter or       anything
                           thing
  s. 80E(5)

  s. 66(2)(e)(ii)          thereof                  of the irregularity

  s. 69(9)                 therefrom                from it

  s. 69(10)                therein                  in the register

  s. 71(7)                 howsoever                however

  s. 73(4)                 therewith                with the summons

  s. 80M(3)                Forthwith                Immediately
                           under the hands of       by
                           thereafter

  s. 80ZE(1)               thereon

  s. 80ZI(3)               of the
                           Commonwealth

  s. 81B(5)                be deemed                the magistrate is,
                           notwithstanding that     despite the cessation,
                           cessation                taken

  s. 85(3)                 such of those            members
                           members as


page 134
                    Industrial Relations Legislation Amendment Bill 2021
                     Industrial Relations Act 1979 amended        Part 2

                                                                     s. 78



        Provision                 Delete                Insert

s. 93(7)                Industrial

s. 93(8)                deems                   considers

s. 94                   any act or thing        anything
                        act or

s. 96C(3)               whereby                 by which

s. 96F(2)               forthwith               immediately

s. 96F(4)(d)            thereunder              under this Act
s. 98(3)(h)

s. 98(3)(b)             thing whatsoever        other thing

s. 105                  be evidence             evidence
                        therein                 in it

s. 109                  thereof (each
                        occurrence)

s. 109                  represented therein
s. 110(1) and (2)

s. 113(1)(c)            the generality          this paragraph
                        thereof

s. 113(1)(e)            any act or thing        anything

s. 113(2)               thereto of such         of

s. 113(3)               in respect thereof



                                                                 page 135
Industrial Relations Legislation Amendment Bill 2021
Part 2           Industrial Relations Act 1979 amended

s. 78




        Provision                 Delete                  Insert

  s. 114(1)                deemed to be            taken to be severable
                           severable from any      from any voided
                           provisions hereby       provisions
                           annulled




page 136
                          Industrial Relations Legislation Amendment Bill 2021
           Courts and Tribunals (Electronic Processes Facilitation)     Part 3
                                               Act 2013 amended

                                                                         s. 79


1      Part 3 -- Courts and Tribunals (Electronic Processes
2                Facilitation) Act 2013 amended
3    79.     Act amended
4            This Part amends the Courts and Tribunals (Electronic
5            Processes Facilitation) Act 2013.

6    80.     Section 6 amended
7            After section 6(1)(k) insert:
8

9                  (kaa)   the Industrial Relations Act 1979;
10




                                                                     page 137
     Industrial Relations Legislation Amendment Bill 2021
     Part 4           Long Service Leave Act 1958 amended

     s. 81



1            Part 4 -- Long Service Leave Act 1958 amended
2    81.         Act amended
3                This Part amends the Long Service Leave Act 1958.

4    82.         Part II Division 1 heading inserted
5                At the beginning of Part II insert:
6


7                                 Division 1 -- General
8


9    83.         Section 4 amended
10         (1)   In section 4(1) delete the definitions of:
11               employee
12               employer
13               industrial inspector
14               ordinary pay
15         (2)   In section 4(1) insert in alphabetical order:
16

17                     continuous employment has the meaning given in
18                     section 6;
19                     employee --
20                       (a) means --
21                                (i) a person who is employed by an
22                                    employer to do work for hire or reward,
23                                    including as an apprentice; or
24                              (ii) a person whose usual status is that of an
25                                    employee;
26                             and
27                       (b) includes a casual or seasonal employee;


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1                employer includes any of the following employing 1 or
2                more employees --
3                  (a) a person or public authority as defined in the
4                        IR Act;
5                  (b) except as provided in the Foreign States
6                        Immunities Act 1985 (Commonwealth)
7                        section 12, a foreign state or consulate;
8                  (c) a related body corporate of the employer if the
9                        employer is itself a body corporate;
10               employer-employee agreement has the meaning given
11               in the IR Act section 7(1);
12               industrial inspector has the meaning given in the
13               IR Act section 7(1);
14               IR Act means the Industrial Relations Act 1979;
15               MCE Act means the Minimum Conditions of
16               Employment Act 1993;
17               ordinary pay has the meaning given in Division 2;
18               related body corporate, of an employer that is a body
19               corporate, has the meaning given in the Corporations
20               Act 2001 (Commonwealth) section 9.
21

22   (3)   In section 4(1) in the definitions of award, industrial agreement
23         and industrial magistrate's court delete "Industrial Relations
24         Act 1979;" and insert:
25

26         IR Act;
27

28   (4)   Delete section 4(2) and (3).
29         Note: The heading to amended section 4 is to read:
30               Terms used




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1    84.        Sections 5 and 6 replaced
2               Delete sections 5 and 6 and insert:
3


4            4A.      Employees with equivalent separate LSL
5                     entitlements
6               (1)   In this section --
7                     award, agreement or enactment means --
8                       (a) an award or industrial agreement; or
9                       (b) an agreement between an employer and
10                             employee (including an employer-employee
11                             agreement); or
12                      (c) an enactment of the State, the Commonwealth,
13                             another State or a Territory;
14                    entitlement, in relation to long service leave or
15                    payment on termination instead of long service leave,
16                    includes an eligibility to become entitled to the long
17                    service leave or payment on termination instead of long
18                    service leave;
19                    WA LSL means long service leave, or payment on
20                    termination instead of long service leave, under
21                    Part III.
22              (2)   For the purposes of this section, a separate LSL
23                    entitlement is an entitlement to long service leave, and
24                    a payment on termination instead of long service leave,
25                    under an award, agreement or enactment.
26              (3)   For the purposes of this section, a payment (whether in
27                    the form of a loading, other additional incremental
28                    payment or otherwise) instead of an entitlement under
29                    subsection (2) is not a separate LSL entitlement.
30              (4)   This Act does not apply to an employee who has a
31                    separate LSL entitlement to take long service leave and


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1               to be paid on termination instead of long service leave
2               that is at least equivalent to the entitlement to WA LSL
3               to take long service leave and to be paid on termination
4               instead of long service leave.
5         (5)   Subsection (6) applies to an employee --
6                (a) who becomes entitled to WA LSL in relation to
7                      employment with an employer; and
8                (b) who, immediately before becoming entitled to
9                      WA LSL, had a separate LSL entitlement in
10                     relation to employment with the employer.
11        (6)   Any long service leave taken by, or payment on
12              termination instead of long service leave made to, the
13              employee under the separate LSL entitlement must be
14              taken into account in the calculation of the employee's
15              entitlement to WA LSL as if it were taken, or paid on
16              termination, as WA LSL.

17   5.         Cashing out of accrued long service leave
18        (1)   An employer and an employee may agree that the
19              employee may forgo the employee's entitlement, or
20              part of the employee's entitlement, to long service
21              leave under section 8(2)(a) or (b) if --
22                (a) the employee is given an adequate benefit
23                       instead of the entitlement; and
24                (b) the agreement is in writing, signed by the
25                       employer and employee.
26        (2)   For the purposes of subsection (1), a benefit is not
27              adequate unless the employee is paid at least the
28              amount of ordinary pay the employee would have
29              received had the employee taken the long service leave
30              or part of the leave.
31        (3)   Nothing in this section enables the employer and
32              employee to reach the agreement before the

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1                       employee's entitlement to long service leave has
2                       accrued.

3            6.         Continuous employment
4                 (1)   An employee's continuous employment with an
5                       employer includes an absence from work by the
6                       employee comprising any of the following, whether
7                       paid or unpaid and irrespective of the duration --
8                         (a) annual leave;
9                        (b) leave for illness or injury, or carer's leave;
10                        (c) long service leave;
11                       (d) parental leave;
12                        (e) compassionate leave;
13                        (f) bereavement leave;
14                       (g) family and domestic violence leave;
15                       (h) public holidays;
16                         (i) any other form of leave provided as part of the
17                              employee's employment.
18                (2)   An employee's continuous employment with an
19                      employer also includes any of the following absences
20                      from work, whether paid or unpaid and irrespective of
21                      the duration --
22                        (a) a period following the termination of the
23                              employee's employment by the employer if the
24                              termination has been made with the intention of
25                              avoiding --
26                                 (i) obligations under this Act in respect of
27                                     long service leave; or
28                                (ii) obligations in respect of annual leave
29                                     under an award, industrial agreement,
30                                     employer-employee agreement, order of



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1                          the Commission, the MCE Act or any
2                          other enactment;
3           (b)    if the employee resumes employment with the
4                  employer as soon as practicable after the
5                  absence -- a period during which the
6                  employment is interrupted by service as a
7                  member of the naval, military or air forces of
8                  the Commonwealth other than as a member of
9                  the Permanent Forces of the Commonwealth of
10                 Australia.
11   (3)   An employee has continuous employment with an
12         employer despite an absence from work comprising
13         any of the following, whether paid or unpaid and
14         irrespective of the duration --
15           (a) an absence other than that referred to in
16                 subsection (1) or (2) which is authorised by the
17                 employer;
18           (b) a standing-down of the employee in accordance
19                 with the provisions of --
20                    (i) an award, agreement, order or
21                         determination in force under the IR Act;
22                         or
23                   (ii) the Fair Work Act 2009
24                         (Commonwealth) or an enterprise
25                         agreement under that Act; or
26                  (iii) any other enactment;
27           (c) an absence arising directly or indirectly from an
28                 industrial dispute if the employee returns to
29                 work in accordance with the terms of settlement
30                 of the dispute;
31           (d) a reasonable absence from work on legitimate
32                 union business in respect of which the
33                 employee has requested and been refused leave;


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1                      (e)   an absence for a reason not specified in
2                            subsection (1) or (2) or in this subsection unless
3                            the employer gives, during or within 14 days
4                            after the absence, written notice to the
5                            employee that the continuity of the employment
6                            has been broken by the absence.
7               (4)   An employee has continuous employment with an
8                     employer despite a termination of the employment by
9                     the employer --
10                      (a) on any ground other than slackness of trade --
11                           if the employee is re-employed by the employer
12                           within a period not exceeding 2 months from
13                           the date of the termination;
14                      (b) on the ground of slackness of trade -- if the
15                           employee is re-employed by the employer
16                           within a period not exceeding 6 months from
17                           the date of the termination.
18              (5)   A casual or seasonal employee has continuous
19                    employment with an employer despite an absence from
20                    work comprising any of the following, irrespective of
21                    the duration --
22                      (a) an absence under the terms of the employment;
23                      (b) an absence caused by seasonal factors;
24                      (c) any other absence after which the employee
25                            has, due to the regular and systematic nature of
26                            the employment, a reasonable expectation of
27                            returning to work for the employer.
28              (6)   In addition, a casual or seasonal employee has
29                    continuous employment with an employer despite the
30                    fact that the employee --
31                      (a) is employed by the employer under 2 or more
32                            contracts of employment; or



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1             (b)    is also employed by another person during the
2                    period of employment with the employer.
3      (7)   If an employee enters into a contract of employment
4            with an employer within 52 weeks after completing an
5            apprenticeship with the employer, the period of
6            apprenticeship is taken to be a part of the employee's
7            continuous employment with the employer.

8    6A.     Calculating length of continuous employment
9      (1)   When calculating the length of continuous employment
10           for the purposes of this Act, a period is counted if it is
11           any of the following --
12             (a) leave referred to in section 6(1) for which the
13                   employee has received payment;
14             (b) an absence referred to in section 6(2);
15             (c) an absence referred to in section 6(5).
16     (2)   When calculating the length of continuous employment
17           for the purposes of this Act, a period is not counted if it
18           is any of the following --
19             (a) leave referred to in section 6(1) for which the
20                   employee has not received payment;
21             (b) an absence referred to in section 6(3);
22             (c) a period between a termination and
23                   re-employment referred to in section 6(4);
24             (d) in respect of an employee to whom section 6(7)
25                   applies, any period between --
26                      (i) the completion of the employee's
27                           apprenticeship; and
28                     (ii) the employment of the employee by the
29                           employer;




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1                         (e)   a period during the transfer of business as
2                               defined in section 7D where --
3                                 (i) the employment of an employee of the
4                                      old employer as defined in section 7D
5                                      has terminated; and
6                                (ii) the employee has not yet been employed
7                                      by the new employer as defined in
8                                      section 7D.
9


10   85.          Part II Division 2 heading inserted
11                Before section 7 insert:
12


13                              Division 2 -- Ordinary pay
14


15   86.          Section 7 replaced
16                Delete section 7 and insert:
17


18           7.         Ordinary pay: general
19                (1)   Except as provided in subsection (4), an employee's
20                      ordinary pay is the employee's remuneration for the
21                      employee's normal weekly number of hours of work
22                      calculated on the ordinary time rate of pay applicable
23                      to the employee as at the time when any period of long
24                      service leave granted to the employee under this Act
25                      commences, or is taken to commence.
26                (2)   For the purposes of subsection (1), the normal weekly
27                      number of hours of work of an employee whose hours
28                      have varied during a period of employment is the
29                      average weekly hours worked by the employee during
30                      the period, calculated by reference to ascertainable


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1          hours worked by the employee during the period,
2          excluding any period referred to in section 6A(2).
3    (3)   For the purposes of subsection (1), the rate of pay of an
4          employee whose leave, or any portion of it, is
5          postponed to meet the convenience of the employee by
6          agreement between the employer and employee is the
7          rate of pay applicable to the employee --
8            (a) on the day on which the leave accrues; or
9            (b) if the employer and employee agree -- on the
10                 day on which the employee commences the
11                 leave.
12   (4)   The ordinary pay of an employee employed on
13         piecework, commission, bonus work, percentage
14         reward, or any other system of payment, wholly or
15         partly by results, is the employee's average weekly rate
16         of pay earned over a period totalling 365 days ending
17         on --
18           (a) if the employee is in employment and --
19                   (i) takes long service leave -- the day
20                         immediately before the day on which
21                         the employee commences the long
22                         service leave; or
23                  (ii) takes payment instead of long service
24                         leave under section 5 -- the day
25                         immediately before the day on which an
26                         agreement under section 5 is reached in
27                         relation to the payment;
28                 or
29           (b) if the employee is not in employment -- the
30                 day immediately before the day on which the
31                 employee was last in employment; or
32           (c) if the employee is dead -- the day immediately
33                 before the day on which the employee died.


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1               (5)   For the purposes of subsection (4), the following
2                     periods must be disregarded --
3                       (a) any period of unpaid leave;
4                      (b) any period during which there is a
5                             standing-down of the employee in accordance
6                             with the provisions of --
7                                (i) an award, agreement, order or
8                                    determination in force under the IR Act;
9                                    or
10                              (ii) the Fair Work Act 2009
11                                   (Commonwealth) or an enterprise
12                                   agreement under that Act; or
13                             (iii) any other enactment.

14           7A.      Ordinary pay: shift premiums, overtime, penalty
15                    rates or allowances
16                    Except as provided in section 7B, an employee's
17                    ordinary pay does not include shift premiums,
18                    overtime, penalty rates, allowances or any similar
19                    payments.

20           7B.      Ordinary pay: casual employees' loading
21                    A casual employee's ordinary pay includes any casual
22                    loading payable under any of the following --
23                      (a) an award, industrial agreement,
24                           employer-employee agreement or order of the
25                           Commission;
26                      (b) a modern award, enterprise agreement or
27                           national minimum wage order made by the Fair
28                           Work Commission under the Fair Work
29                           Act 2009 (Commonwealth);
30                      (c) a contract of employment;
31                      (d) an enactment.


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1          7C.     Ordinary pay: board and lodging
2            (1)   An employee's ordinary pay includes the cash value of
3                  board and lodging during a period of long service leave
4                  if the board and lodging --
5                     (a) is provided to the employee by the employer;
6                          but
7                    (b) is not provided to, and taken by, the employee
8                          during the period of long service leave.
9            (2)   For the purposes of subsection (1), the cash value of
10                 board and lodging provided to an employee is --
11                   (a) if the value is fixed by or under the conditions
12                         of the employee's employment -- that value; or
13                  (b) if the value is not fixed by or under the
14                         conditions of the employee's employment -- a
15                         value calculated by reference to a rate
16                         prescribed in the regulations.
17


18   87.     Part II Division 3 inserted
19           At the end of Part II insert:
20


21                     Division 3 -- Transfer of business
22         7D.     Terms used
23                 In this Division --
24                 connection between the old employer and the new
25                 employer has the meaning given in section 7G;
26                 new employer has the meaning given in section 7E;
27                 old employer has the meaning given in section 7E;




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1                     transfer of business has the meaning given in
2                     section 7E;
3                     transferring employee has the meaning given in
4                     section 7F;
5                     transferring work has the meaning given in section 7E.

6            7E.      Transfer of business, old employer, new employer,
7                     transferring work
8                     There is a transfer of business from an employer (the
9                     old employer) to another employer (the new employer)
10                    if the following requirements are satisfied --
11                       (a) the employment of an employee of the old
12                             employer has terminated;
13                      (b) within 3 months after the termination, the
14                             employee becomes employed by the new
15                             employer;
16                       (c) the work (the transferring work) the employee
17                             performs for the new employer is the same, or
18                             substantially the same, as the work the
19                             employee performed for the old employer;
20                      (d) there is a connection between the old employer
21                             and the new employer.

22           7F.      Transferring employee
23                    An employee in relation to whom the requirements in
24                    section 7E(a), (b) and (c) are satisfied is a transferring
25                    employee.

26           7G.      Connection between old employer and new
27                    employer
28              (1)   There is a connection between the old employer and
29                    the new employer if, in accordance with an
30                    arrangement between them, the new employer owns or


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1          has the beneficial use of some or all of the assets
2          (whether tangible or intangible) that --
3            (a) the old employer owned or had the beneficial
4                  use of; and
5            (b) relate to, or are used in connection with, the
6                  transferring work.
7    (2)   There is a connection between the old employer and
8          the new employer if, because the old employer has
9          outsourced the transferring work to the new employer,
10         the transferring work is performed by 1 or more
11         transferring employees as employees of the new
12         employer.
13   (3)   There is a connection between the old employer and
14         the new employer if --
15           (a) because the new employer had outsourced the
16                 transferring work to the old employer, the
17                 transferring work had been performed by 1 or
18                 more transferring employees, as employees of
19                 the old employer; and
20           (b) because the new employer has ceased to
21                 outsource the work to the old employer, the
22                 transferring work is performed by those
23                 transferring employees, as employees of the
24                 new employer.
25   (4)   There is a connection between the old employer and
26         the new employer if the new employer is a related
27         body corporate of the old employer when the
28         transferring employee becomes employed by the new
29         employer.




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1            7H.         Status of transferring employees on transfer of
2                        business
3                        For the purposes of this Act, on a transfer of
4                        business --
5                          (a) a transferring employee's employment before
6                                and after the transfer is taken to be a single
7                                period of continuous employment; and
8                         (b) the new employer is taken to have been the
9                                transferring employee's sole employer for the
10                               entire period.

11           7I.         Transfer of employment records
12                 (1)   In this section --
13                       employment records means employment records
14                       required to be kept by an employer under section 26(1).
15                 (2)   On the transfer of a business, the old employer must
16                       transfer copies of all transferring employees'
17                       employment records to the new employer.
18                 (3)   A contravention of subsection (2) is not an offence but
19                       that subsection is a civil penalty provision for the
20                       purposes of the IR Act section 83E.
21                 (4)   In proceedings under the IR Act section 83E for a
22                       contravention of subsection (2), an industrial
23                       magistrate's court may, as an alternative, determine
24                       that a contravention of section 26(1) or (2) has
25                       occurred.
26


27   88.           Part III heading amended

28                 In the heading to Part III delete "in   lieu thereof " and insert:
29

30                 on termination instead
31


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1    89.           Section 8 amended
2          (1)     In section 8(1) delete the passage that begins with "continuous
3                  employment" and continues to the end of the subsection and
4                  insert:
5

6                  the length of continuous employment calculated under
7                  section 6A with the same employer.
8

9          (2)     Delete section 8(3)(b) and insert:
10

11                         (b)    in any circumstances other than by the
12                                employer for serious misconduct,
13


14   90.           Section 9 amended
15         (1)     In section 9(1):
16                   (a) in paragraph (a) delete "subject to any agreement
17                         between the employer and the employee," and insert:
18

19                         except as provided in subsection (1AA),
20

21                   (b)   in paragraph (b) delete "periods of not less than one
22                         week." and insert:
23

24                         periods.
25

26         (2)     After section 9(1) insert:
27

28               (1AA) The employee and employer may agree when the
29                     employee will take long service leave.
30




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1       (3)     After section 9(1b) insert:
2

3             (1C)    The employee may request the employer to grant the
4                     employee a period of long service leave --
5                      (a) twice as long as the period to which the
6                           employee would otherwise be entitled; and
7                      (b) at a rate of pay equal to half the employee's
8                           ordinary pay.
9             (1D)    The employee may request the employer to grant the
10                    employee a period of long service leave --
11                     (a) half as long as the period to which the
12                          employee would otherwise be entitled; and
13                     (b) at a rate of pay equal to twice the employee's
14                          ordinary pay.
15

16      (4)     Delete section 9(2) and insert:
17

18              (2)   An employee whose employment is terminated is taken
19                    to have commenced long service leave on the day of
20                    termination if --
21                      (a) the employee is entitled to long service leave
22                            under section 8(2) or (3); and
23                      (b) the employment is terminated before the
24                            employee has taken all the long service leave to
25                            which the employee is entitled.
26            (2A)    On the day the employee commences long service
27                    leave under subsection (2), the employer must pay the
28                    full amount to which the employee is entitled in respect
29                    of the leave to --
30                      (a) the employee; or



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1                          (b)    if the employee has died -- on request, to the
2                                 employee's personal representative.
3

4          (5)   In section 9(3) after "a period of " insert:
5

6                accrued
7

8                Note: The heading to amended section 9 is to read:
9                        Taking long service leave and payment on termination

10   91.         Section 11 amended
11         (1)   In section 11(1):
12                 (a) in paragraph (b) delete "payment in lieu of long service
13                       leave;" and insert:
14

15                         payment on termination instead of long service leave;
16

17                 (b)     in paragraph (c) delete "rate of " ;
18                 (c)     in paragraph (d) delete "in order to avoid or to attempt"
19                         and insert:
20

21                         with the intention of avoiding or attempting
22

23                 (d)     in paragraph (e) delete "in lieu of " and insert:
24

25                         instead of
26




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1          (2)   After section 11(2) insert:
2

3                (3)     Jurisdiction granted under subsection (1) is in addition
4                        to jurisdiction an industrial magistrate's court has --
5                          (a) under the IR Act section 83(1)(e) to enforce a
6                                 provision of Part III as an entitlement provision
7                                 as defined in the IR Act section 7(1); and
8                          (b) under the IR Act section 83E to enforce a
9                                 provision of this Act that is a civil penalty
10                                provision as defined in the IR Act section 7(1).
11


12   92.         Section 26 amended
13         (1)   In section 26(1):
14                 (a) delete "details are recorded of --" and insert:
15

16                        the following employment records are kept --
17

18                (b)     after paragraph (a) insert:
19

20                       (aa)    the employer's name and Australian Business
21                               Number (if any);
22                       (ab)    the date of any transfer of business as defined
23                               in section 7D during the employment of the
24                               employee;
25

26                 (c)    after paragraph (b) insert:
27

28                       (ba)    the weekly hours worked by the employee;
29




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1           (d)    delete paragraph (e) and insert:
2

3                  (e)     any agreement made under section 5, including
4                          details of --
5                            (i) the benefit for, and the amount of, long
6                                  service leave that was foregone; and
7                           (ii) when the benefit was paid;
8

9           (e)    in paragraph (f) delete "Act; and" and insert:
10

11                 Act;
12

13   (2)   In section 26(2):
14           (a) in paragraph (a) before "records" insert:
15

16                 employment
17

18          (b)    in paragraph (b) delete "entry" and insert:
19

20                 employment record
21

22   (3)   Delete section 26(3) and (4) and insert:
23

24         (3)    A contravention of subsection (1) or (2) is not an
25                offence but those subsections are civil penalty
26                provisions for the purposes of the IR Act section 83E.
27




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1    93.         Section 26A amended
2          (1)   In section 26A(1):
3                  (a) in paragraph (a) before "records" insert:
4

5                          employment
6

7                  (b)     in paragraph (b) before "records." insert:
8

9                          employment
10

11         (2)   In section 26A(1a) delete "Industrial Relations Act 1979" and
12               insert:
13

14               IR Act
15

16         (3)   Delete section 26A(1b).
17         (4)   In section 26A(3):
18                 (a) in paragraph (a) before "record" insert:
19

20                         employment
21

22                 (b)     in paragraph (c)(i) and (ii) before "records;" insert:
23

24                         employment
25

26               Note: The heading to amended section 26A is to read:
27                       Access to employment records kept by employer




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                              Long Service Leave Act 1958 amended           Part 4

                                                                                    s. 94



1    94.         Section 39 amended
2                In section 39 delete "Industrial Relations Act 1979" and insert:
3

4                IR Act
5

6                Note: The heading to amended section 39 is to read:
7                      Application to this Act of certain regulations made under the IR
8                      Act

9    95.         Part 8 inserted
10               After section 39 insert:
11


12                Part 8 -- Savings provisions for Industrial
13                Relations Legislation Amendment Act 2021
14         40.         Terms used
15                     In this Part --
16                     commencement day means the day on which the
17                     Industrial Relations Legislation Amendment Act 2021
18                     section 84 comes into operation;
19                     former section means a section of this Act as in
20                     operation immediately before the commencement day.

21         41.         Business transmitted before commencement day
22               (1)   This section applies in relation to the transmission, as
23                     defined in former section 6(5), of a business before the
24                     commencement day.
25               (2)   For the purposes of determining whether an employee
26                     in the business has had continuous employment with an
27                     employer, on and after the commencement day --
28                       (a) former sections 6 and 8 continue in operation;
29                             and

                                                                               page 159
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    s. 96



1                      (b)   Part II Division 3 does not apply.
2


3   96.         Various references to "shall" replaced
4               Amend the provisions listed in the Table as set out in the Table.
5                                        Table
              Provision                  Delete                   Insert

      s. 8(3)                    shall be                is
      s. 27(2)

      s. 10(1)                   shall not become        is not

      s. 27(1)                   shall                   must

      s. 27(2)                   shall thereupon         forfeits the
                                 forfeit his

      s. 27(3)                   shall                   do

      s. 39                      shall

6   97.         Various references to gender removed
7               Amend the provisions listed in the Table as set out in the Table.
8                                        Table
              Provision                  Delete                   Insert

      s. 8(2)(c)(i)              his                     the employee's
      s. 8(3)(a)

      s. 8(2)(c)(ii)             his                     the

      s. 8(5)                    his or her

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                            Long Service Leave Act 1958 amended           Part 4

                                                                                s. 98



              Provision                    Delete                 Insert

      s. 8(9)                    his or her               the employee's

      s. 27(3)                   his

      s. 10(2)                   he (each occurrence)     the employee
      s. 27(1) and (2)

      s. 12                      his or her               the inspector's

      s. 38(1)                   him to

1   98.         Various other modernisations
2               Amend the provisions listed in the Table as set out in the Table.
3                                          Table
              Provision                    Delete                 Insert

      s. 4(1) def. of            thereof                  of it
      business

      s. 8(2)                    such continuous          continuous
                                 employment, as is        employment
                                 referred to in
                                 subsection (1),

      s. 8(3)                    of such continuous       but less than
                                 employment since         10 years of
                                 the commencement         continuous
                                 thereof, but less than   employment
                                 10 years

      s. 27(3)                   deemed                   taken

      s. 10(1)                   thereto

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s. 98




          Provision              Delete                   Insert

  s. 10(1)                hereunder

  s. 10(2)                thereto
                          (1st occurrence)

  s. 10(2)                prior thereto          before

  s. 11(1)                the foregoing          this subsection

  s. 26(2)(b)             7 years thereafter     7 years after that

  s. 27(2)                hereunder

  s. 39                   deemed




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                               Industrial Relations Legislation Amendment Bill 2021
                 Minimum Conditions of Employment Act 1993 amended           Part 5

                                                                               s. 99



1    Part 5 -- Minimum Conditions of Employment Act 1993
2                       amended
3    99.           Act amended
4                  This Part amends the Minimum Conditions of Employment
5                  Act 1993.

6    100.          Section 3 amended
7          (1)     In section 3(1) delete the definitions of:
8                  carer's leave
9                  employee
10         (2)     In section 3(1) insert in alphabetical order:
11

12                       employee means --
13                         (a) a person who is employed by an employer to do
14                              work for hire or reward, including as an
15                              apprentice; or
16                         (b) a person whose usual status is that of an
17                              employee;
18                       industrial instrument means an award or
19                       employer-employee agreement;
20

21         (3)     In section 3(1) in the definition of minimum condition of
22                 employment:
23                   (a) in paragraph (e) delete "5;" and insert:
24

25                         5; or
26




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     s. 101



1                   (b)    after paragraph (e) insert:
2

3                           (f)   the requirement as to confidentiality prescribed
4                                 by section 39E(1);
5


6    101.          Section 5 amended
7       (1)        Delete section 5(1) and insert:
8

9                  (1)    The minimum conditions of employment extend to and
10                        bind all employees and employers and are taken to be
11                        implied --
12                          (a) in an industrial instrument; or
13                          (b) if a contract of employment is not governed by
14                                an industrial instrument -- in that contract.
15

16      (2)        In section 5(5) delete "sections 8 and 9(1)." and insert:
17

18                 section 8.
19


20   102.          Section 7 replaced
21                 Delete section 7 and insert:
22


23            7.          Enforcement of minimum conditions
24                        A minimum condition of employment may be enforced
25                        under the IR Act section 83 --
26                          (a) as an entitlement provision; or
27                         (b) if the condition is implied in an industrial
28                                instrument -- as a provision of the instrument.
29



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             Minimum Conditions of Employment Act 1993 amended           Part 5

                                                                            s. 103



1    103.      Section 8 amended
2              In section 8(1)(c) delete "writing." and insert:
3

4              writing, signed by the employer and the employee.
5

6              Note: The heading to amended section 8 is to read:
7                    Cashing out of accrued annual leave

8    104.      Section 9 deleted
9              Delete section 9.

10   105.      Section 9A amended
11     (1)     In section 9A(4) delete the definition of industrial instrument.
12     (2)     In section 9A(4) in the definition of authorised leave
13             paragraph (c) delete "Commonwealth;" and insert:
14

15             Commonwealth.
16


17   106.      Section 9B amended
18             In section 9B(2)(a) delete "health and safety" and insert:
19

20             safety and health
21


22   107.      Part 3 Division 1 heading inserted
23             At the beginning of Part 3 insert:
24


25                                 Division 1 -- General
26




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     Part 5           Minimum Conditions of Employment Act 1993 amended

     s. 108



1    108.           Section 10 amended
2       (1)         In section 10:
3                     (a) delete "An" and insert:
4

5                   (1)    Except as provided in section 16, an
6

7                    (b)    delete "13, 14 or 15," and insert:
8

9                           13 or 14,
10

11      (2)         At the end of section 10 insert:
12

13                  (2)    Nothing in this section prevents an industrial
14                         instrument from providing for minimum rates of pay
15                         for an employee with a disability.
16


17   109.           Part 3 Division 2 inserted
18                  At the end of Part 3 insert:
19


20                         Division 2 -- Employees with disabilities
21            15.          Terms used
22                         In this Division --
23                         employee with a disability means an employee whose
24                         productive capacity --
25                           (a) has been assessed under --
26                                   (i) the SWS; or




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                                                                  s. 109



1                     (ii)   a supported wage industrial instrument
2                            provision;
3                   and
4              (b) is assessed as being reduced because of a
5                   disability;
6            instrument-free employee with a disability means an
7            employee --
8              (a) whose contract of employment is not governed
9                   by an industrial instrument; and
10             (b) whose productive capacity has been assessed
11                  under the SWS as being reduced because of a
12                  disability;
13           instrument-governed employee with a disability means
14           an employee --
15             (a) whose contract of employment is governed by
16                  an industrial instrument that includes a SWIIP
17                  that incorporates the SWS; and
18             (b) whose productive capacity has been assessed
19                  under the SWS as being reduced because of a
20                  disability; and
21             (c) who is not employed by a supported
22                  employment service as defined in the Disability
23                  Services Act 1986 (Commonwealth) section 7;
24                  and
25             (d) who is being paid a weekly rate of pay
26                  determined by the SWS under the SWIIP;
27           supported wage industrial instrument provision or
28           SWIIP means a provision of an industrial instrument
29           that --
30             (a) applies to an employee with a disability; and
31             (b) provides a means (a wage assessment tool) for
32                  the assessment of whether, and the extent to


                                                              page 167
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     Part 5           Minimum Conditions of Employment Act 1993 amended

     s. 109



1                                 which, the employee's productive capacity is
2                                 reduced because of the disability; and
3                           (c) provides that the employer may pay a wage
4                                 that --
5                                    (i) relates to the employee's productive
6                                        capacity as assessed using the wage
7                                        assessment tool; and
8                                   (ii) may be less than the applicable
9                                        minimum wage in the industrial
10                                       instrument;
11                        Supported Wage System or SWS means the scheme
12                        known by that name established by the Commonwealth
13                        Government to enable the assessment of whether, and
14                        the extent to which, a person's productive capacity is
15                        reduced because of a disability.

16            16.         Application of Act to employee with disability
17                  (1)   Section 10 does not apply to an employee with a
18                        disability who has been assessed under the SWS or a
19                        SWIIP and is being paid a rate of pay in accordance
20                        with that assessment.
21                  (2)   A person eligible to be employed under the SWS may
22                        be employed under its provisions for the purposes of
23                        this Act.

24            17.         Minimum pay for employee with disability
25                  (1)   This section applies to the following --
26                         (a) an instrument-free employee with a disability;
27                         (b) an instrument-governed employee with a
28                               disability;
29                         (c) an employee who is employed for a trial period
30                               for the purpose of an assessment under the



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                                                                          s. 110



1                          SWS as to whether the employee will become
2                          an employee referred to in paragraph (a) or (b).
3             (2)   Except as provided in subsection (3), the minimum
4                   amount payable for each week worked by the
5                   employee is an amount not less than the amount
6                   in effect at that time under the IR Act
7                   section 50A(1)(a)(iii), regardless of the number of
8                   hours worked by the employee during the relevant
9                   week.
10            (3)   An instrument-free employee with a disability is
11                  entitled to be paid the higher of the following
12                  amounts --
13                    (a) for each hour worked by the employee in a
14                          week, an amount calculated by --
15                             (i) determining the weekly rate of pay
16                                  applicable to the employee by reference
17                                  to the percentage of the rate referred to
18                                  in section 12 that corresponds to the
19                                  employee's assessed productive
20                                  capacity under the SWS, rounded up to
21                                  the nearest 10 cents; and
22                            (ii) dividing that weekly rate by 38;
23                    (b) the amount referred to in subsection (2).
24


25   110.     Section 17A amended
26            Before section 17A(1) insert:
27

28          (1A)    In this Part --
29                  party related, to an employer or prospective employer,
30                  means a relative of the employer or prospective
31                  employer;



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     s. 111



1                     relative, of an employer, means --
2                       (a) each of the following people, whether the
3                             relationship is established by, or traced through,
4                             consanguinity, marriage, a de facto
5                             relationship, a written law or a natural
6                             relationship --
7                                (i) a parent, grandparent or other ancestor;
8                               (ii) a step-parent;
9                              (iii) a sibling;
10                             (iv) an uncle or aunt;
11                              (v) a cousin;
12                             (vi) a spouse or de facto partner;
13                            or
14                      (b) in the case of an employer who is an Aboriginal
15                            person or Torres Strait Islander -- a person
16                            regarded under the customary law or tradition
17                            of the employer's community as the equivalent
18                            of a person mentioned in paragraph (a).
19


20   111.       Section 17B replaced
21              Delete section 17B and insert:
22


23            17B.    Employee not to be compelled to accept other than
24                    money for pay
25              (1)   An employee is not to be directly or indirectly
26                    compelled by an employer to accept, instead of money
27                    as any part of the employee's pay --
28                      (a) goods of any kind; or
29                      (b) accommodation or other services of any kind.



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                                                                        s. 112



1             (2)   In proceedings under the IR Act section 83 to enforce
2                   an entitlement provision, anything given or provided
3                   by the employer contrary to subsection (1) is to be
4                   treated as if it had never been given or provided.
5


6    112.     Section 17BA inserted
7             After section 17B insert:
8


9           17BA.   Employees and prospective employees not to be
10                  unreasonably compelled to spend or pay amount
11            (1)   An employer must not directly or indirectly require an
12                  employee to spend, or pay to the employer or another
13                  person, an amount of the employee's money or the
14                  whole or any part of an amount payable to the
15                  employee in relation to the performance of work, if --
16                    (a) the requirement is unreasonable in the
17                          circumstances; and
18                   (b) in the case of a payment -- the payment is
19                          directly or indirectly for the benefit of the
20                          employer or a party related to the employer.
21            (2)   An employer (the prospective employer) must not
22                  directly or indirectly require another person (the
23                  prospective employee) to spend, or pay to the
24                  prospective employer or any other person, an amount
25                  of the prospective employee's money if --
26                    (a) the requirement is in connection with
27                          employment or potential employment of the
28                          prospective employee by the prospective
29                          employer; and
30                    (b) the requirement is unreasonable in the
31                          circumstances; and



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     s. 112



1                       (c)   in the case of a payment -- the payment is
2                             directly or indirectly for the benefit of the
3                             prospective employer or a party related to the
4                             prospective employer.
5               (3)   The regulations may prescribe circumstances in which
6                     a requirement referred to in subsection (1) or (2) is or is
7                     not reasonable.
8               (4)   A contravention of subsection (1) or (2) is not an
9                     offence but that subsection is a civil penalty provision
10                    for the purposes of the IR Act section 83E.
11              (5)   In proceedings under the IR Act section 83E for a
12                    contravention of subsection (1), an industrial
13                    magistrate's court may, as an alternative, determine
14                    that a contravention of an entitlement provision has
15                    occurred for the purposes of the IR Act section 83.
16              (6)   If the industrial magistrate's court determines that an
17                    employer has contravened subsection (1) or (2) in
18                    respect of an employee or prospective employee, the
19                    industrial magistrate's court may order the employer to
20                    pay to the employee or prospective employee
21                    compensation for any loss or injury suffered as a result
22                    of the contravention.
23              (7)   The industrial magistrate's court may make an order
24                    under subsection (6) in addition to imposing a penalty
25                    under section 83E.
26              (8)   A term of an award, employer-employee agreement or
27                    contract of employment has no effect to the extent that
28                    the term --
29                      (a) permits, or has the effect of permitting, an
30                            employer to make a requirement that would
31                            contravene subsection (1); or



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                                                                            s. 113



1                      (b)   directly or indirectly requires an employee to
2                            spend or pay an amount, if the requirement
3                            would contravene subsection (1) if it had been
4                            made by an employer.
5              (9)   In proceedings under the IR Act section 83 to enforce
6                    an entitlement provision, any amount that the employee
7                    has been required to spend or pay contrary to
8                    subsection (1), or in accordance with a term to which
9                    subsection (8) applies, is taken to be a deduction, from
10                   an amount payable to the employee, made by the
11                   employer otherwise than in accordance with
12                   section 17D.
13


14   113.      Section 17C amended
15     (1)     In section 17C(1) delete "To the extent that an employee
16             receives his or her pay in money the" and insert:
17

18             An
19

20     (2)     After section 17C(2) insert:
21

22             (3)   A contravention of subsection (1) is not an offence but
23                   that subsection is a civil penalty provision for the
24                   purposes of the IR Act section 83E.
25             (4)   In proceedings under the IR Act section 83E for a
26                   contravention of subsection (1), an industrial
27                   magistrate's court may, as an alternative, determine
28                   that a contravention of an entitlement provision has
29                   occurred for the purposes of the IR Act section 83.




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     Part 5           Minimum Conditions of Employment Act 1993 amended

     s. 114



1               (5)   In proceedings under the IR Act section 83 to enforce
2                     an entitlement provision, anything given or provided
3                     by the employer contrary to subsection (1) is taken
4                     never to have been given or provided to the employee.
5


6    114.       Section 17E inserted
7               After section 17D insert:
8


9             17E.    Certain terms of no effect
10              (1)   A term of an award, employer-employee agreement or
11                    contract of employment has no effect to the extent that
12                    the term permits, or has the effect of permitting, an
13                    employer to deduct an amount from an amount that is
14                    payable to an employee in relation to the performance
15                    of work, if the deduction is --
16                      (a) directly or indirectly for the benefit of the
17                            employer or a party related to the employer;
18                            and
19                      (b) unreasonable in the circumstances.
20              (2)   The regulations may prescribe circumstances in which
21                    a deduction referred to in subsection (1)(b) is or is not
22                    reasonable.
23              (3)   A term of an award, employer-employee agreement or
24                    contract of employment has no effect to the extent that
25                    the term permits, or has the effect of permitting, an
26                    employer to deduct an amount from an amount that is
27                    payable to an employee who has not reached 18 years
28                    of age in relation to the performance of work by the
29                    employee, unless the deduction is agreed to in writing
30                    by a parent or guardian of the employee.




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                                                                            s. 115



1              (4)     A term of an award, employer-employee agreement or
2                      contract of employment has no effect to the extent that
3                      the term requires, or has the effect of requiring, an
4                      employee who has not reached 18 years of age to make
5                      a payment to an employer or another person, unless the
6                      payment is agreed to in writing by a parent or guardian
7                      of the employee.
8


9    115.      Section 18 amended
10     (1)     In section 18(1) delete "Where" and insert:
11

12             Except as provided in subsection (3B), where
13

14     (2)     In section 18(2):
15               (a) delete "cannot be determined under subsection (1)," and
16                     insert:
17

18                      cannot be determined,
19

20               (b)    delete "in the 52 weeks" and insert:
21

22                      during the period prescribed in subsection (2A)
23

24     (3)     After section 18(2) insert:
25

26           (2A)      For the purposes of subsection (2), the period
27                     prescribed is the shorter of the following --
28                       (a) a period totalling 365 days;
29                       (b) the period of employment.
30




                                                                          page 175
     Industrial Relations Legislation Amendment Bill 2021
     Part 5           Minimum Conditions of Employment Act 1993 amended

     s. 115



1       (4)     After section 18(3) insert:
2

3             (3A)    Subsection (3) does not apply to prevent casual loading
4                     payable under an employer-employee agreement,
5                     award or contract of employment from being taken into
6                     account in determining the rate of pay for bereavement
7                     leave under section 27.
8             (3B)    An employee paid wholly by commission or
9                     percentage reward or at piece rates is entitled to be paid
10                    the highest of the following for a period of leave --
11                      (a) a rate payable under an employer-employee
12                            agreement, award or contract of employment
13                            for a period of leave;
14                      (b) a rate calculated according to the employee's
15                            average weekly earnings over a period totalling
16                            365 days immediately before the time the leave
17                            is taken;
18                      (c) the applicable minimum rate of pay under
19                            section 10.
20            (3C)    For the purposes of subsection (2) and (3B)(b), the
21                    following periods must be disregarded --
22                      (a) any period of unpaid leave;
23                      (b) any period during which there is a
24                            standing-down of the employee in accordance
25                            with the provisions of --
26                               (i) an award or a determination under the
27                                   IR Act; or
28                              (ii) the Fair Work Act 2009
29                                   (Commonwealth) or an enterprise
30                                   agreement under that Act; or
31                             (iii) any other enactment.
32




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            Minimum Conditions of Employment Act 1993 amended           Part 5

                                                                              s. 116



1    116.         Part 4 Division 2 replaced
2                 Delete Part 4 Division 2 and insert:
3


4                              Division 2 -- Personal leave
5           19.         Personal leave
6                       In this Part --
7                       personal circumstances, in relation to an employee,
8                       means --
9                         (a) personal illness or injury affecting --
10                                 (i) the employee; or
11                                (ii) a member of the employee's family or
12                                       household;
13                        (b) an unexpected emergency affecting a member
14                               of the employee's family or household;
15                      personal leave, in relation to an employee, means leave
16                      taken by the employee --
17                        (a) because of personal circumstances affecting the
18                               employee; or
19                        (b) to provide care or support to a member of the
20                               employee's family or household because of
21                               personal circumstances affecting the member.

22          20.         Entitlement to paid personal leave
23                (1)   In this section --
24                      year does not include any period of unpaid leave.
25                (2)   An employee, other than a casual employee, is entitled
26                      for each year of service to paid personal leave for the
27                      number of hours the employee is required ordinarily to
28                      work in a 2 week period during that year, up to
29                      76 hours.


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     s. 116



1                   (3)   Paid personal leave accrues pro rata on a weekly basis.
2                   (4)   Entitlements to paid personal leave are cumulative.
3                   (5)   Except as provided in subsection (6), the employee
4                         may take paid personal leave if the employee is unable
5                         to work as a result of personal circumstances.
6                   (6)   The employee is not entitled to be paid for any period
7                         of absence from work resulting from personal
8                         circumstances involving personal illness or injury
9                         affecting the employee if the circumstances are
10                        attributable to either of the following in the course of
11                        the employee's employment --
12                          (a) the employee's serious and wilful misconduct;
13                                or
14                          (b) the employee's gross and wilful neglect.

15            21.         Entitlement to unpaid personal leave
16                  (1)   An employee is entitled to unpaid personal leave of up
17                        to 2 days for each occasion (a permissible occasion) in
18                        which personal circumstances arise.
19                  (2)   An employee is entitled to unpaid personal leave for a
20                        particular permissible occasion only if --
21                          (a) the permissible occasion comprises a
22                                circumstance referred to in paragraphs (a)(ii)
23                                and (b) of the definition of personal
24                                circumstances in section 19; and
25                         (b) the employee cannot take paid personal leave
26                                during the period under section 20.




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                                                                            s. 117



1           22.         Certain matters as to personal leave not minimum
2                       conditions
3                       Nothing in this Division requires --
4                        (a) personal leave to be taken as a whole working
5                              day; or
6                        (b) an employer to pay an employee instead of the
7                              employee's untaken entitlement under
8                              section 20, on the termination of the
9                              employee's employment.

10          22A.        Employee to prove entitlements to personal leave
11                      An employee who claims to be entitled to paid personal
12                      leave or unpaid personal leave under this Division must
13                      provide to the employer evidence that would satisfy a
14                      reasonable person of the entitlement.
15


16   117.         Part 4 Division 7 inserted
17                At the end of Part 4 insert:
18


19          Division 7 -- Unpaid family and domestic violence leave
20          39A.        Terms used
21                      In this Division --
22                      family and domestic violence means family violence as
23                      defined in the Restraining Orders Act 1997
24                      section 5A(1);
25                      family and domestic violence leave means leave
26                      required for reasons relating to family and domestic
27                      violence.




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     s. 117



1             39B.    Entitlement to unpaid family and domestic violence
2                     leave
3               (1)   An employee is entitled to 5 days of unpaid family and
4                     domestic violence leave in a 12-month period.
5               (2)   Unpaid family and domestic violence leave --
6                      (a) is available in full at the start of each 12-month
7                            period of the employee's employment; and
8                      (b) does not accumulate from year to year; and
9                      (c) is available in full to part-time and casual
10                           employees.
11              (3)   For the purposes of subsection (2), the start of an
12                    employee's employment is taken to be the start of the
13                    employee's first employment with that employer if the
14                    employee is employed by a particular employer --
15                     (a) as a casual employee; or
16                     (b) for a specified period of time, for a specified
17                            task or for the duration of a specified season.
18              (4)   The employee may take unpaid family and domestic
19                    violence leave as --
20                      (a) a single continuous 5 day period; or
21                      (b) separate periods of 1 or more days each; or
22                      (c) any separate periods to which the employee and
23                           the employer agree, including periods of less
24                           than 1 day.
25              (5)   Unpaid family and domestic violence leave can only be
26                    taken in accordance with section 39C.
27              (6)   Nothing in this section prevents the employee and the
28                    employer agreeing that the employee may take more
29                    than 5 days of unpaid leave to deal with the impact of
30                    family and domestic violence.


     page 180
                   Industrial Relations Legislation Amendment Bill 2021
     Minimum Conditions of Employment Act 1993 amended           Part 5

                                                                   s. 117



1    39C.    Taking unpaid family and domestic violence leave
2            The employee may take unpaid family and domestic
3            violence leave if --
4              (a) the employee is experiencing family and
5                   domestic violence; and
6              (b) the employee needs to do something to deal
7                   with the impact of the family and domestic
8                   violence; and
9              (c) it is impractical for the employee to do that
10                  thing outside the employee's ordinary hours of
11                  work.

12   39D.    Employee to prove entitlements to unpaid family
13           and domestic violence leave
14           An employee who claims to be entitled to unpaid
15           family and domestic violence leave under this Division
16           must, if required by the employer, provide to the
17           employer evidence that would satisfy a reasonable
18           person of the entitlement.

19   39E.    Confidentiality
20     (1)   Employers must take steps to ensure information
21           concerning any notice or evidence an employee has
22           given of the employee taking leave under this Division
23           is treated confidentially, as far as it is reasonably
24           practicable to do so.
25     (2)   Nothing in this Division prevents an employer from
26           disclosing information provided by an employee if the
27           disclosure is required by a written law or is necessary
28           to protect the life, health or safety of the employee or
29           another person.
30




                                                                page 181
     Industrial Relations Legislation Amendment Bill 2021
     Part 5           Minimum Conditions of Employment Act 1993 amended

     s. 118



1    118.           Part 6 deleted
2                   Delete Part 6.

3    119.           Part 8 inserted
4                   After section 47 insert:
5


6              Part 8 -- Transitional provisions for Industrial
7                Relations Legislation Amendment Act 2021
8             48.         Term used: commencement day
9                         In this Part --
10                        commencement day means the day on which the
11                        Industrial Relations Legislation Amendment Act 2021
12                        section 100 comes into operation.

13            49.         Employees with disabilities
14                  (1)   In this section --
15                        assessment means assessment of an employee's
16                        productive capacity under the SWS as defined in
17                        section 15;
18                        assessment period means a period starting on the
19                        commencement day and ending on the earlier of the
20                        following --
21                          (a) the day on which an assessment of the
22                                 employee's productive capacity is completed
23                                 for the purposes of determining the employee's
24                                 minimum rate of pay under section 17(3)(a);
25                          (b) the day that is 6 months after the
26                                 commencement day.




     page 182
                   Industrial Relations Legislation Amendment Bill 2021
     Minimum Conditions of Employment Act 1993 amended           Part 5

                                                                      s. 119



1          (2)   This section applies to a person who, immediately
2                before the commencement day, was an employee with
3                a disability whose contract of employment was not
4                governed by an industrial instrument.
5          (3)   During the assessment period the employee is entitled
6                to be paid, for each week worked by the employee, the
7                higher of the following --
8                  (a) the employee's weekly wage immediately
9                        before the commencement day;
10                 (b) the amount referred to in section 17(2).
11         (4)   If the employee's assessment is completed, and the
12               employee's wage is determined, within the assessment
13               period, subsection (3) ceases to apply to the employee
14               on the day of completion.
15         (5)   If the employee is not assessed, or the employee's
16               assessment is not completed, within the assessment
17               period, then on and after the expiry of the assessment
18               period the employee is entitled to be paid in accordance
19               with section 10(1) until such time as the employee's
20               productive capacity is determined, on an assessment, to
21               be reduced by a disability.

22   50.         "Under rate employee" provisions in awards
23         (1)   In this section --
24               assessment means assessment of an employee's
25               productive capacity under the SWS or a SWIIP, as
26               those terms are defined in section 15;
27               assessment period means the period ending 6 months
28               after the commencement day;
29               pre-commencement day wage means the weekly wage
30               that an under rate employee was entitled to be paid
31               immediately before the commencement day;



                                                                   page 183
     Industrial Relations Legislation Amendment Bill 2021
     Part 5           Minimum Conditions of Employment Act 1993 amended

     s. 119



1                     under rate employee means an employee who was,
2                     immediately before the commencement day, entitled to
3                     be paid under an under rate employee provision by
4                     reason of infirmity;
5                     under rate employee provision means a provision in an
6                     award to the effect that an employee who by reason of
7                     old age or infirmity is unable to earn the minimum
8                     wage may be paid a lesser wage as is agreed in writing
9                     between a union and the employer.
10              (2)   On and from the commencement day each under rate
11                    employee provision is of no effect to the extent to
12                    which it applies to an employee who by reason of
13                    infirmity or old age is unable to earn the minimum
14                    wage.
15              (3)   During the assessment period, an under rate employee
16                    is entitled to be paid, for each week worked by the
17                    employee, the higher of the following amounts --
18                      (a) the employee's pre-commencement day wage;
19                      (b) the amount referred to in section 17(2).
20              (4)   If an employee's assessment is completed, and the
21                    employee's wage is determined, within the assessment
22                    period, subsection (3) ceases to apply to the employee
23                    on the day of completion.
24              (5)   If an employee is not assessed, or the employee's
25                    assessment is not completed, within the assessment
26                    period, then on and after the expiry of the assessment
27                    period the employee is entitled to be paid in accordance
28                    with the rate of pay applicable under the award until
29                    such time as the employee's productive capacity is
30                    determined, on an assessment, to be reduced by a
31                    disability.
32




     page 184
                           Industrial Relations Legislation Amendment Bill 2021
             Minimum Conditions of Employment Act 1993 amended           Part 5

                                                                               s. 120



1    120.      Schedule 1 amended
2              In Schedule 1 after "Good Friday." insert:
3

4              Easter Sunday.
5


6    121.      Various references to gender removed
7      (1)     In the provisions listed in the Table delete "his or her" and
8              insert:
9

10             the employee's
11

12                                      Table
       s. 3(3)(a)                            s. 33(2)(b)

       s. 35                                 s. 36(1)

       s. 37(1)                              s. 38(2)

13     (2)     In the provisions listed in the Table delete "he or she" and
14             insert:
15

16             the employee
17

18                                      Table
       s. 11(1)                              s. 24(1), (2) and (3)

       s. 30                                 s. 33(2)

       s. 38(1)                              s. 43(1)




                                                                         page 185
    Industrial Relations Legislation Amendment Bill 2021
    Part 5           Minimum Conditions of Employment Act 1993 amended

    s. 121



1      (3)     In the provisions listed in the Table delete "his or her".
2                                        Table
      s. 18(1)                               s. 24(2)(a) and (3)(a)

      s. 25(1) and (2)




    page 186
                          Industrial Relations Legislation Amendment Bill 2021
                     Public and Bank Holidays Act 1972 amended          Part 6

                                                                            s. 122



1    Part 6 -- Public and Bank Holidays Act 1972 amended
2    122.    Act amended
3            This Part amends the Public and Bank Holidays Act 1972.

4    123.    Section 3 amended
5      (1)   In section 3:
6              (a) delete "Unless" and insert:
7

8            (1)    Unless
9

10            (b)    delete "1979, prevails over any provision of or under
11                   this Act, to the extent of any inconsistency therewith."
12                   and insert:
13

14                   1979 (an industrial instrument) prevails over a
15                   provision of or under this Act to the extent of any
16                   inconsistency with the industrial instrument.
17

18     (2)   At the end of section 3 insert:
19

20           (2)    A provision of an industrial instrument relating to
21                  public holidays applies to Easter Sunday regardless of
22                  whether the instrument makes reference to Easter
23                  Sunday.
24           (3)    However, a provision of an industrial instrument is of
25                  no effect to the extent that it substitutes another day for
26                  the Easter Sunday public holiday solely because Easter
27                  Sunday falls on a weekend.
28




                                                                         page 187
    Industrial Relations Legislation Amendment Bill 2021
    Part 6           Public and Bank Holidays Act 1972 amended

    s. 124



1   124.       Second Schedule amended
2              In the Second Schedule after "Good Friday." insert:
3

4              Easter Sunday.
5




    page 188
                           Industrial Relations Legislation Amendment Bill 2021
             Consequential amendments to Work Health and Safety          Part 7
                                                         Act 2020
                      Work Health and Safety Act 2020 amended       Division 1
                                                                         s. 125


1     Part 7 -- Consequential amendments to Work Health
2                    and Safety Act 2020
3           Division 1 -- Work Health and Safety Act 2020 amended
4                          Subdivision 1 -- Preliminary

5    125.      Act amended
6              This Division amends the Work Health and Safety Act 2020.

7     Subdivision 2 -- Amendments if this Act commences before Work
8                      Health and Safety Act 2020

9    126.      Section 360 amended
10     (1)     In section 360(2) delete " "Occupational Safety and Health
11             Act 1984" and insert:
12

13             "OSH Act
14

15     (2)     Delete section 360(3).

16   127.      Section 361 amended
17             In section 361:
18               (a) delete " "Occupational Safety and Health Act 1984, the
19                     Mines Safety and Inspection Act 1994" " and insert:
20

21                    "OSH Act, the MSI Act,"
22




                                                                      page 189
     Industrial Relations Legislation Amendment Bill 2021
     Part 7           Consequential amendments to Work Health and Safety
                      Act 2020
     Division 1       Work Health and Safety Act 2020 amended
     s. 128


1                    (b)     delete "Act 2020" and insert:
2

3                            Act 2020,
4

5               Notes for this Subdivision:
6               1.         If the Work Health and Safety Act 2020 Part 15 Division 4
7                          Subdivision 5 comes into operation on or before the day on which
8                          section 5(2) of this Act comes into operation, see section 129.
9               2.         See also sections 5(3), 7(5), 24(2) and (4) and 75(3).

10     Subdivision 3 -- Other amendments linked to commencement of
11                              this Act

12   128.       Schedule 1 amended
13      (1)     In Schedule 1 clause 27(2) delete "instrument to which the
14              Industrial Relations Act 1979 section 83 applies." and insert:
15

16              entitlement provision as defined in the Industrial Relations Act 1979
17              section 7(1).
18

19      (2)     In Schedule 1 clause 31(5)(a) delete "29(1)(b)(ii); and" and
20              insert:
21

22              29(1)(d); and
23

24              Note for this Subdivision:
25                         This Subdivision will be proclaimed to come into operation on the day
26                         on which section 5(2) of this Act comes into operation.




     page 190
                           Industrial Relations Legislation Amendment Bill 2021
           Consequential amendments to Work Health and Safety            Part 7
                                                         Act 2020
       Provisions that do not commence and are deleted in certain   Division 2
                                                   circumstances
                                                                         s. 129

1    Division 2 -- Provisions that do not commence and are deleted
2                      in certain circumstances
3    129.    Non-commencement and deletion of Division 1 Subdivision 2
4            If the Work Health and Safety Act 2020 Part 15 Division 4
5            Subdivision 5 comes into operation on or before the day on
6            which section 5(2) of this Act comes into operation, Division 1
7            Subdivision 2 --
8              (a) does not come into operation; and
9              (b) is deleted when section 5(2) of this Act comes into
10                   operation.




 


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