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This is a Bill, not an Act. For current law, see the Acts databases.
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 53--1 page i 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 page ii Industrial Relations Legislation Amendment Bill 2021 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 page iii Industrial Relations Legislation Amendment Bill 2021 Contents 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 page iv Industrial Relations Legislation Amendment Bill 2021 Contents 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 page v 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 page vi Industrial Relations Legislation Amendment Bill 2021 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 page vii Industrial Relations Legislation Amendment Bill 2021 Contents 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 page viii Industrial Relations Legislation Amendment Bill 2021 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 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended 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 page 12 Industrial Relations Legislation Amendment Bill 2021 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 Industrial Relations Legislation Amendment Bill 2021 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. page 16 Industrial Relations Legislation Amendment Bill 2021 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 Industrial Relations Legislation Amendment Bill 2021 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; page 22 Industrial Relations Legislation Amendment Bill 2021 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 Industrial Relations Legislation Amendment Bill 2021 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); page 24 Industrial Relations Legislation Amendment Bill 2021 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 page 26 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 page 28 Industrial Relations Legislation Amendment Bill 2021 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 page 30 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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 page 31 Industrial Relations Legislation Amendment Bill 2021 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); page 32 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 29 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; page 33 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 29 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 page 34 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 29 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. page 35 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 29 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. page 36 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 29 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 page 37 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 29 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 page 38 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 30 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. page 39 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 31 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. page 40 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 31 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; page 41 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 32 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 page 42 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 33 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. page 43 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 33 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. page 44 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 34 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 page 45 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 36 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 page 46 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 37 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 page 47 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 38 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); page 48 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 38 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. page 49 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 38 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; page 50 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 38 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. page 51 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 38 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. page 52 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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. page 53 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 38 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. page 54 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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 page 55 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 39 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 page 56 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 44 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). page 57 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 45 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 page 58 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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 page 59 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 47 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 page 60 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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 page 61 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 49 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 page 62 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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 page 63 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended 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 page 64 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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 page 65 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 52 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; page 66 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 52 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. page 67 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 53 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 page 68 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 54 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 page 69 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 55 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 page 70 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 56 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 page 71 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 56 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. page 72 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 56 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. page 73 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 56 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 page 74 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 56 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. page 75 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 56 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 page 76 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 56 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; page 77 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 56 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). page 78 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 56 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. page 79 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 56 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 page 80 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 57 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 page 81 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 59 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 page 82 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 61 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. page 83 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 61 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. page 84 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 61 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. page 85 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 61 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. page 86 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 61 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. page 87 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 62 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 page 88 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 63 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 page 89 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 65 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 page 90 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 65 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 page 91 Industrial Relations Legislation Amendment Bill 2021 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 page 92 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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 page 93 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 67 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, page 94 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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 page 95 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 70 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). page 96 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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 page 97 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended 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; page 98 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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; page 99 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended 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) page 100 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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) page 101 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended 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) page 102 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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) page 103 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended 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. page 104 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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) page 105 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended 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 page 106 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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) page 107 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended s. 76 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) page 108 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 s. 76 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) page 109 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended 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 page 110 Industrial Relations Legislation Amendment Bill 2021 Industrial Relations Act 1979 amended Part 2 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% page 111 Industrial Relations Legislation Amendment Bill 2021 Part 2 Industrial Relations Act 1979 amended 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 page 112 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 Industrial Relations Legislation Amendment Bill 2021 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) page 120 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 page 126 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; page 138 Industrial Relations Legislation Amendment Bill 2021 Long Service Leave Act 1958 amended Part 4 s. 83 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 page 139 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended s. 84 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 page 140 Industrial Relations Legislation Amendment Bill 2021 Long Service Leave Act 1958 amended Part 4 s. 84 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 page 141 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended s. 84 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 page 142 Industrial Relations Legislation Amendment Bill 2021 Long Service Leave Act 1958 amended Part 4 s. 84 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; page 143 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended s. 84 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 page 144 Industrial Relations Legislation Amendment Bill 2021 Long Service Leave Act 1958 amended Part 4 s. 84 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; page 145 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended s. 85 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 page 146 Industrial Relations Legislation Amendment Bill 2021 Long Service Leave Act 1958 amended Part 4 s. 86 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. page 147 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended s. 86 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. page 148 Industrial Relations Legislation Amendment Bill 2021 Long Service Leave Act 1958 amended Part 4 s. 87 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; page 149 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended s. 87 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 page 150 Industrial Relations Legislation Amendment Bill 2021 Long Service Leave Act 1958 amended Part 4 s. 87 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. page 151 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended s. 88 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 page 152 Industrial Relations Legislation Amendment Bill 2021 Long Service Leave Act 1958 amended Part 4 s. 89 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 page 153 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended s. 90 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 page 154 Industrial Relations Legislation Amendment Bill 2021 Long Service Leave Act 1958 amended Part 4 s. 91 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 page 155 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended s. 92 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 page 156 Industrial Relations Legislation Amendment Bill 2021 Long Service Leave Act 1958 amended Part 4 s. 92 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 page 157 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended s. 93 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 page 158 Industrial Relations Legislation Amendment Bill 2021 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 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended 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 page 160 Industrial Relations Legislation Amendment Bill 2021 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 page 161 Industrial Relations Legislation Amendment Bill 2021 Part 4 Long Service Leave Act 1958 amended 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 page 162 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 page 163 Industrial Relations Legislation Amendment Bill 2021 Part 5 Minimum Conditions of Employment Act 1993 amended 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 page 164 Industrial Relations Legislation Amendment Bill 2021 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 page 165 Industrial Relations Legislation Amendment Bill 2021 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 page 166 Industrial Relations Legislation Amendment Bill 2021 Minimum Conditions of Employment Act 1993 amended Part 5 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 Industrial Relations Legislation Amendment Bill 2021 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 page 168 Industrial Relations Legislation Amendment Bill 2021 Minimum Conditions of Employment Act 1993 amended Part 5 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; page 169 Industrial Relations Legislation Amendment Bill 2021 Part 5 Minimum Conditions of Employment Act 1993 amended 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. page 170 Industrial Relations Legislation Amendment Bill 2021 Minimum Conditions of Employment Act 1993 amended Part 5 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 page 171 Industrial Relations Legislation Amendment Bill 2021 Part 5 Minimum Conditions of Employment Act 1993 amended 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 page 172 Industrial Relations Legislation Amendment Bill 2021 Minimum Conditions of Employment Act 1993 amended Part 5 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. page 173 Industrial Relations Legislation Amendment Bill 2021 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. page 174 Industrial Relations Legislation Amendment Bill 2021 Minimum Conditions of Employment Act 1993 amended Part 5 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 page 176 Industrial Relations Legislation Amendment Bill 2021 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. page 177 Industrial Relations Legislation Amendment Bill 2021 Part 5 Minimum Conditions of Employment Act 1993 amended 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. page 178 Industrial Relations Legislation Amendment Bill 2021 Minimum Conditions of Employment Act 1993 amended Part 5 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. page 179 Industrial Relations Legislation Amendment Bill 2021 Part 5 Minimum Conditions of Employment Act 1993 amended 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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