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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Industrial Relations (Commonwealth
Powers) Bill 2009
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Fundamental workplace relations principles 6
5 Reference of matters 6
6 Matters excluded from the reference 7
7 Termination of references 7
8 Effect of termination of amendment reference or transition
reference before initial reference 8
9 Period for termination of references 8
Schedule 1 Text to be included in the provisions of the Commonwealth
Fair Work Act 10
Schedule 2 Amendment of Industrial Relations Act 1996 No 17 20
b2009-153-33.d08
New South Wales
Industrial Relations (Commonwealth
Powers) Bill 2009
No , 2009
A Bill for
An Act to refer certain matters relating to workplace relations to the Parliament of
the Commonwealth for the purposes of section 51 (xxxvii) of the Constitution of the
Commonwealth; and to amend the Industrial Relations Act 1996.
Clause 1 Industrial Relations (Commonwealth Powers) Bill 2009
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Industrial Relations (Commonwealth Powers) Act 2009. 3
2 Commencement 4
This Act commences on a day to be appointed by proclamation. 5
3 Definitions 6
(1) In this Act: 7
amendment reference means the reference under section 5 (1) (b). 8
Commonwealth Fair Work Act means the Fair Work Act 2009 of the 9
Commonwealth (as amended from time to time). 10
excluded subject matter means any of the following matters: 11
(a) a matter dealt with in the Anti-Discrimination Act 1977, 12
(b) superannuation, 13
(c) workers compensation, 14
(d) occupational health and safety, 15
(e) matters relating to outworkers (within the ordinary meaning of 16
the term), 17
(f) child labour, 18
(g) training arrangements, 19
(h) long service leave, 20
(i) leave for victims of crime, 21
(j) attendance for service on a jury, or for emergency service duties, 22
(k) declaration, prescription or substitution of public holidays, 23
(l) the following matters relating to provision of essential services or 24
to situations of emergency: 25
(i) directions to perform work (including to perform work at 26
a particular time or place, or in a particular way), 27
(ii) directions not to perform work (including not to perform 28
work at a particular time or place, or in a particular way), 29
(m) regulation of any of the following: 30
(i) employee associations, 31
(ii) employer associations, 32
(iii) members of employee associations or of employer 33
associations, 34
(n) workplace surveillance, 35
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Industrial Relations (Commonwealth Powers) Bill 2009 Clause 3
(o) business trading hours, 1
(p) claims for enforcement of contracts of employment, except so far 2
as a law of the State provides for the variation or setting aside of 3
rights and obligations arising under a contract of employment, or 4
another arrangement for employment, that a court or tribunal 5
finds is unfair, 6
(q) rights or remedies incidental to a matter referred to in a preceding 7
paragraph of this definition, 8
except to the extent that the Fair Work Act 2009 of the Commonwealth, 9
as originally enacted, deals with the matter (directly or indirectly), or 10
requires or permits instruments made or given effect under the 11
Commonwealth Fair Work Act so to deal with the matter. 12
express amendment of the Commonwealth Fair Work Act means the 13
direct amendment of the text of that Act (whether by the insertion, 14
omission, repeal, substitution or relocation of words or matter), but does 15
not include the enactment by a Commonwealth Act of a provision that 16
has, or will have, substantive effect otherwise than as part of the text of 17
the Commonwealth Fair Work Act. 18
fundamental workplace relations principles--see section 4. 19
initial reference means the reference under section 5 (1) (a). 20
initial referred provisions means the scheduled text, to the extent to 21
which that text deals with matters that are included in the legislative 22
powers of the Parliament of the State. 23
law enforcement officer means: 24
(a) a member of the NSW Police Force, or 25
(b) a police cadet or special constable. 26
local government sector employee means an employee of any of the 27
following: 28
(a) a local council or county council under the Local Government Act 29
1993, 30
(b) a wholly-owned subsidiary of, or a body wholly controlled by, 31
any such local or county council, 32
(c) the Local Government Association of NSW or the Shires 33
Association of NSW. 34
reference means: 35
(a) the initial reference, or 36
(b) the amendment reference, or 37
(c) the transition reference. 38
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Clause 3 Industrial Relations (Commonwealth Powers) Bill 2009
referred subject matters means any of the following: 1
(a) terms and conditions of employment, including any of the 2
following: 3
(i) minimum terms and conditions of employment (including 4
employment standards and minimum wages), 5
(ii) terms and conditions of employment contained in 6
instruments (including instruments such as awards, 7
determinations and enterprise-level agreements), 8
(iii) bargaining in relation to terms and conditions of 9
employment, 10
(iv) the effect of a transfer of business on terms and conditions 11
of employment, 12
(b) terms and conditions under which an outworker entity may 13
arrange for work to be performed for the entity (directly or 14
indirectly), if the work is of a kind that is often performed by 15
outworkers, 16
(c) rights and responsibilities of persons, including employees, 17
employers, independent contractors, outworkers, outworker 18
entities, associations of employees or associations of employers, 19
being rights and responsibilities relating to any of the following: 20
(i) freedom of association in the context of workplace 21
relations, and related protections, 22
(ii) protection from discrimination relating to employment, 23
(iii) termination of employment, 24
(iv) industrial action, 25
(v) protection from payment of fees for services related to 26
bargaining, 27
(vi) sham independent contractor arrangements, 28
(vii) standing down employees without pay, 29
(viii) union rights of entry and rights of access to records, 30
(d) compliance with, and enforcement of, the Commonwealth Fair 31
Work Act, 32
(e) the administration of the Commonwealth Fair Work Act, 33
(f) the application of the Commonwealth Fair Work Act, 34
(g) matters incidental or ancillary to the operation of the 35
Commonwealth Fair Work Act or of instruments made or given 36
effect under the Commonwealth Fair Work Act, 37
but does not include any excluded subject matter. 38
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Industrial Relations (Commonwealth Powers) Bill 2009 Clause 3
referred transition matters means the matters of the making of laws 1
with respect to the transition from the regime provided for by: 2
(a) the Workplace Relations Act 1996 of the Commonwealth (as it 3
continues to apply because of the Fair Work (Transitional 4
Provisions and Consequential Amendments) Act 2009 of the 5
Commonwealth), or 6
(b) a law of this State relating to workplace relations or industrial 7
relations, 8
to the regime provided for by the Commonwealth Fair Work Act. 9
scheduled text means the text set out in Schedule 1. 10
State public sector employee means the following: 11
(a) a member of the Government Service of New South Wales, the 12
NSW Health Service, the Teaching Service of New South Wales 13
or any other service of the Crown in right of the State (including 14
an employee of any New South Wales government agency), 15
(b) an employee of a body established for a public purpose that is 16
subject to control or direction by a Minister of the State or in 17
which the State has a controlling interest, 18
but does not include an employee of the following: 19
(c) a State owned corporation or a subsidiary of a State owned 20
corporation, 21
(d) a person or body declared by or under an Act not to be or not to 22
represent the Crown in right of the State or not to be a New South 23
Wales government agency. 24
transition reference means the reference under section 5 (1) (c). 25
(2) Words or phrases in the definition of excluded subject matter or the 26
definition of referred subject matters that are defined in the 27
Commonwealth Fair Work Act (other than in Division 2B of Part 1-3 of 28
that Act) have the meanings set out in that Act as in force on 29
1 July 2009. 30
(3) Section 9A of the Industrial Relations Act 1996 makes provision for the 31
declaration of employers that are not national system employers under 32
the Commonwealth Fair Work Act. 33
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Clause 4 Industrial Relations (Commonwealth Powers) Bill 2009
4 Fundamental workplace relations principles 1
The following are the fundamental workplace relations principles under 2
this Act: 3
(a) that the Commonwealth Fair Work Act should provide for, and 4
continue to provide for, the following: 5
(i) a strong, simple and enforceable safety net of minimum 6
employment standards, 7
(ii) genuine rights and responsibilities to ensure fairness, 8
choice and representation at work, including the freedom 9
to choose whether or not to join and be represented by a 10
union or participate in collective activities, 11
(iii) collective bargaining at the enterprise level with no 12
provision for individual statutory agreements, 13
(iv) fair and effective remedies available through an 14
independent umpire, 15
(v) protection from unfair dismissal, 16
(b) that there should be, and continue to be, in connection with the 17
operation of the Commonwealth Fair Work Act, the following: 18
(i) an independent tribunal system, 19
(ii) an independent authority able to assist employers and 20
employees within a national workplace relations system. 21
5 Reference of matters 22
(1) Subject to the other provisions of this Act, the following matters are 23
referred to the Parliament of the Commonwealth: 24
(a) the matters to which the initial referred provisions relate, but only 25
to the extent of the making of laws with respect to those matters 26
by including the initial referred provisions in the Commonwealth 27
Fair Work Act, as originally enacted, and as subsequently 28
amended by amendments enacted at any time before this Act 29
commences, in the terms, or substantially in the terms, set out in 30
the scheduled text, 31
(b) the referred subject matters, but only to the extent of making laws 32
with respect to any such matter by making express amendments 33
of the Commonwealth Fair Work Act, 34
(c) the referred transition matters. 35
(2) The reference of a matter under subsection (1) has effect only: 36
(a) if and to the extent that the matter is not included in the legislative 37
powers of the Parliament of the Commonwealth (otherwise than 38
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Industrial Relations (Commonwealth Powers) Bill 2009 Clause 6
by a reference for the purposes of section 51 (xxxvii) of the 1
Constitution of the Commonwealth), and 2
(b) if and to the extent that the matter is included in the legislative 3
powers of the Parliament of the State. 4
(3) The operation of each paragraph of subsection (1) is not affected by any 5
other paragraph. 6
(4) For the avoidance of doubt, it is the intention of the Parliament of the 7
State that the Commonwealth Fair Work Act may be expressly 8
amended, or have its operation otherwise affected, at any time after the 9
commencement of this Act by provisions of Commonwealth Acts 10
whose operation is based on legislative powers that the Parliament of 11
the Commonwealth has apart from under the references under 12
subsection (1). 13
(5) Despite any other provision of this section, a reference under 14
subsection (1) has effect for a period: 15
(a) beginning when this section commences, and 16
(b) ending at the end of the day fixed under section 7 as the day on 17
which the reference is to terminate, 18
but no longer. 19
6 Matters excluded from the reference 20
A matter referred by section 5 does not include: 21
(a) matters relating to Ministers, Members of Parliament, judicial 22
officers or members of administrative tribunals, or 23
(b) matters relating to persons in the service of either House of 24
Parliament, or of the President or Speaker, or of the President and 25
Speaker jointly, or 26
(c) matters relating to State public sector employees, or 27
(d) matters relating to persons appointed or engaged by the Governor 28
or a Minister under any Act, law or authority, or 29
(e) matters relating to law enforcement officers, or 30
(f) matters relating to local government sector employees, 31
or matters relating to the employer of any of the above. 32
7 Termination of references 33
(1) The Governor may, at any time, by proclamation published on the NSW 34
legislation website, fix a day as the day on which: 35
(a) the references are to terminate, or 36
Page 7
Clause 8 Industrial Relations (Commonwealth Powers) Bill 2009
(b) the amendment reference is to terminate, or 1
(c) the transition reference is to terminate. 2
(2) The Governor may, by proclamation published on the NSW legislation 3
website, revoke a proclamation published under subsection (1), in 4
which case the revoked proclamation is taken (for the purposes of 5
section 5) never to have been published. 6
(3) A revoking proclamation has effect only if published before the day 7
fixed under subsection (1). 8
(4) The revocation of a proclamation published under subsection (1) does 9
not prevent publication of a further proclamation under that subsection. 10
(5) If the amendment reference and the transition reference have been 11
terminated, the expression the references in subsection (1) refers only 12
to the initial reference. 13
8 Effect of termination of amendment reference or transition reference 14
before initial reference 15
(1) If the amendment reference or the transition reference terminates before 16
the initial reference, the termination of the amendment reference or 17
transition reference does not affect: 18
(a) laws that were made under that reference before that termination 19
(whether or not they have come into operation before that 20
termination), or 21
(b) the continued operation in the State of the Commonwealth Fair 22
Work Act as in operation immediately before that termination or 23
as subsequently amended or affected by: 24
(i) laws referred to in paragraph (a) that come into operation 25
after that termination, or 26
(ii) provisions referred to in section 5 (4). 27
(2) Accordingly, the amendment reference or transition reference continues 28
to have effect for the purposes of subsection (1) unless the initial 29
reference is terminated. 30
9 Period for termination of references 31
(1) Subject to subsection (2), a day fixed by a proclamation under 32
section 7 (1) must be no earlier than the first day after the end of the 33
period of 6 months beginning on the day on which the proclamation is 34
published. 35
(2) If: 36
(a) a proclamation under section 7 (1) only provides for the 37
termination of the amendment reference, and 38
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Industrial Relations (Commonwealth Powers) Bill 2009 Clause 9
(b) the Governor, as part of the proclamation by which the 1
termination is to be effected, declares that, in the opinion of the 2
Governor, the Commonwealth Fair Work Act: 3
(i) is proposed to be amended (by an amendment introduced 4
into the Parliament of the Commonwealth by a 5
Commonwealth Minister), or 6
(ii) has been amended, 7
in a manner that is inconsistent with one or more of the 8
fundamental workplace relations principles, 9
the day fixed by the proclamation under section 7 (1) (b) may be earlier 10
than the day that applies under subsection (1) but must be no earlier than 11
the first day after the end of the period of 3 months beginning on the day 12
on which the proclamation is published. 13
(3) If the Governor terminates the amendment reference and fixes a day 14
under subsection (2), the Minister must, as soon as practicable after the 15
publication of the relevant proclamation, prepare a report on the matter 16
and cause copies of that report to be laid before both Houses of 17
Parliament. 18
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Industrial Relations (Commonwealth Powers) Bill 2009
Schedule 1 Text to be included in the provisions of the Commonwealth Fair Work Act
Schedule 1 Text to be included in the provisions of 1
the Commonwealth Fair Work Act 2
Division 2B Application of this Act in States that refer 3
matters after 1 July 2009 but on or before 4
1 January 2010 5
30K Meaning of terms used in this Division 6
(1) In this Division: 7
amendment reference of a State means the reference by the 8
Parliament of the State to the Parliament of the Commonwealth 9
of the matters covered by subsection 30L(4). 10
excluded subject matter means any of the following matters: 11
(a) a matter dealt with in a law referred to in subsection 12
27(1A) of this Act; 13
(b) superannuation; 14
(c) workers compensation; 15
(d) occupational health and safety; 16
(e) matters relating to outworkers (within the ordinary 17
meaning of the term); 18
(f) child labour; 19
(g) training arrangements; 20
(h) long service leave; 21
(i) leave for victims of crime; 22
(j) attendance for service on a jury, or for emergency service 23
duties; 24
(k) declaration, prescription or substitution of public holidays; 25
(l) the following matters relating to provision of essential 26
services or to situations of emergency: 27
(i) directions to perform work (including to perform 28
work at a particular time or place, or in a particular 29
way); 30
(ii) directions not to perform work (including not to 31
perform work at a particular time or place, or in a 32
particular way); 33
(m) regulation of any of the following: 34
(i) employee associations; 35
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Industrial Relations (Commonwealth Powers) Bill 2009
Text to be included in the provisions of the Commonwealth Fair Work Act Schedule 1
(ii) employer associations; 1
(iii) members of employee associations or of employer 2
associations; 3
(n) workplace surveillance; 4
(o) business trading hours; 5
(p) claims for enforcement of contracts of employment, 6
except so far as a law of a State provides for the variation 7
or setting aside of rights and obligations arising under a 8
contract of employment, or another arrangement for 9
employment, that a court or tribunal finds is unfair; 10
(q) rights or remedies incidental to a matter referred to in a 11
preceding paragraph of this definition; 12
except to the extent that this Act as originally enacted deals with 13
the matter (directly or indirectly), or requires or permits 14
instruments made or given effect under this Act so to deal with 15
the matter. 16
express amendment means the direct amendment of the text of 17
this Act (whether by the insertion, omission, repeal, substitution 18
or relocation of words or matter), but does not include the 19
enactment by a Commonwealth Act of a provision that has, or 20
will have, substantive effect otherwise than as part of the text of 21
this Act. 22
fundamental workplace relations principles: see subsection 23
30L(9). 24
initial reference of a State means the reference by the Parliament 25
of the State to the Parliament of the Commonwealth of the 26
matters covered by subsection 30L(3). 27
law enforcement officer means: 28
(a) a member of a police force or police service; or 29
(b) a person appointed to a position for the purpose of being 30
trained as a member of a police force or police service; or 31
(c) a person who has the powers and duties of a member of a 32
police force or police service; 33
and, without limiting paragraphs (a), (b) and (c), includes a police 34
reservist, a police recruit, a police cadet, a junior constable, a 35
police medical officer, a special constable, an ancillary constable 36
or a protective services officer. 37
local government employee, of a State, means: 38
(a) an employee of a local government employer of the State; 39
or 40
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Industrial Relations (Commonwealth Powers) Bill 2009
Schedule 1 Text to be included in the provisions of the Commonwealth Fair Work Act
(b) any other employee in the State of a kind specified in the 1
regulations. 2
local government employer, of a State, means an employer that 3
is: 4
(a) a body corporate that is established for a local government 5
purpose by or under a law of a State; or 6
(b) a body corporate in which a body to which paragraph (a) 7
applies has, or 2 or more such bodies together have, a 8
controlling interest; or 9
(c) a person who employs individuals for the purposes of an 10
unincorporated body that is established for a local 11
government purpose by or under a law of a State; or 12
(d) any other body corporate that is a local government body 13
in the State of a kind specified in the regulations; or 14
(e) any other person who employs individuals for the purposes 15
of an unincorporated body that is a local government body 16
in the State of a kind specified in the regulations. 17
referral law, of a State, means the law of the State that refers 18
matters, as mentioned in subsection 30L(1), to the Parliament of 19
the Commonwealth. 20
referred provisions means the provisions of this Division to the 21
extent to which they deal with matters that are included in the 22
legislative powers of the Parliaments of the States. 23
referred subject matters means any of the following: 24
(a) terms and conditions of employment, including any of the 25
following: 26
(i) minimum terms and conditions of employment, 27
(including employment standards and minimum 28
wages); 29
(ii) terms and conditions of employment contained in 30
instruments (including instruments such as awards, 31
determinations and enterprise-level agreements); 32
(iii) bargaining in relation to terms and conditions of 33
employment; 34
(iv) the effect of a transfer of business on terms and 35
conditions of employment; 36
(b) terms and conditions under which an outworker entity may 37
arrange for work to be performed for the entity (directly or 38
indirectly), if the work is of a kind that is often performed 39
by outworkers; 40
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Industrial Relations (Commonwealth Powers) Bill 2009
Text to be included in the provisions of the Commonwealth Fair Work Act Schedule 1
(c) rights and responsibilities of persons, including 1
employees, employers, independent contractors, 2
outworkers, outworker entities, associations of employees 3
or associations of employers, being rights and 4
responsibilities relating to any of the following: 5
(i) freedom of association in the context of workplace 6
relations, and related protections; 7
(ii) protection from discrimination relating to 8
employment; 9
(iii) termination of employment; 10
(iv) industrial action; 11
(v) protection from payment of fees for services related 12
to bargaining; 13
(vi) sham independent contractor arrangements; 14
(vii) standing down employees without pay; 15
(viii) union rights of entry and rights of access to records; 16
(d) compliance with, and enforcement of, this Act; 17
(e) the administration of this Act; 18
(f) the application of this Act; 19
(g) matters incidental or ancillary to the operation of this Act 20
or of instruments made or given effect under this Act; 21
but does not include any excluded subject matter. 22
referring State: see section 30L. 23
State public sector employee, of a State, means: 24
(a) an employee of a State public sector employer of the State; 25
or 26
(b) any other employee in the State of a kind specified in the 27
regulations; 28
and includes a law enforcement officer of the State. 29
State public sector employer, of a State, means an employer that 30
is: 31
(a) the State, the Governor of the State or a Minister of the 32
State; or 33
(b) a body corporate that is established for a public purpose by 34
or under a law of the State, by the Governor of the State or 35
by a Minister of the State; or 36
(c) a body corporate in which the State has a controlling 37
interest; or 38
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Industrial Relations (Commonwealth Powers) Bill 2009
Schedule 1 Text to be included in the provisions of the Commonwealth Fair Work Act
(d) a person who employs individuals for the purposes of an 1
unincorporated body that is established for a public 2
purpose by or under a law of the State, by the Governor of 3
the State or by a Minister of the State; or 4
(e) any other employer in the State of a kind specified in the 5
regulations; 6
and includes a holder of an office of the State whom the State's 7
referral law provides is to be taken, for the purposes of this Act, 8
to be an employer of law enforcement officers of the State. 9
transition reference of a State means the reference by the 10
Parliament of the State to the Parliament of the Commonwealth 11
of the matters covered by subsection 30L(5). 12
(2) Words or phrases in the definition of excluded subject matter in 13
subsection (1), or in the definition of referred subject matters in 14
subsection (1), that are defined in this Act (other than in this 15
Division) have, in that definition, the meanings set out in this Act 16
as in force on 1 July 2009. 17
30L Meaning of referring State 18
Reference of matters by State Parliament to Commonwealth 19
Parliament 20
(1) A State is a referring State if the Parliament of the State has, after 21
1 July 2009 but on or before 1 January 2010, referred the matters 22
covered by subsections (3), (4) and (5) in relation to the State to 23
the Parliament of the Commonwealth for the purposes of 24
paragraph 51(xxxvii) of the Constitution: 25
(a) if and to the extent that the matters are not otherwise 26
included in the legislative powers of the Parliament of the 27
Commonwealth (otherwise than by a reference under 28
paragraph 51(xxxvii) of the Constitution); and 29
(b) if and to the extent that the matters are included in the 30
legislative powers of the Parliament of the State. 31
This subsection has effect subject to subsection (6). 32
(2) A State is a referring State even if: 33
(a) the State's referral law provides that the reference to the 34
Parliament of the Commonwealth of any or all of the 35
matters covered by subsections (3), (4) and (5) is to 36
terminate in particular circumstances; or 37
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Industrial Relations (Commonwealth Powers) Bill 2009
Text to be included in the provisions of the Commonwealth Fair Work Act Schedule 1
(b) the State's referral law provides that particular matters, or 1
all matters, relating to State public sector employees, or 2
State public sector employers, of the State are not included 3
in any or all of the matters covered by subsections (3), (4) 4
and (5); or 5
(c) the State's referral law provides that particular matters, or 6
all matters, relating to local government employees, or 7
local government employers, of the State are not included 8
in any or all of the matters covered by subsections (3), (4) 9
and (5). 10
Reference covering referred provisions 11
(3) This subsection covers the matters to which the referred 12
provisions relate to the extent of making laws with respect to 13
those matters by amending this Act, as originally enacted, and as 14
subsequently amended by amendments enacted at any time 15
before the State's referral law commenced, to include the referred 16
provisions. 17
Reference covering amendments 18
(4) This subsection covers the referred subject matters to the extent 19
of making laws with respect to those matters by making express 20
amendments of this Act. 21
Reference covering transitional matters 22
(5) This subsection covers making laws with respect to the transition 23
from the regime provided for by: 24
(a) the Workplace Relations Act 1996 (as it continues to apply 25
because of the Fair Work (Transitional Provisions and 26
Consequential Amendments) Act 2009); or 27
(b) a law of a State relating to workplace relations or industrial 28
relations; 29
to the regime provided for by this Act. 30
Effect of termination of reference 31
(6) Despite anything to the contrary in a referral law of a State, a 32
State ceases to be a referring State if any or all of the following 33
occurs: 34
(a) the State's initial reference terminates; 35
(b) the State's amendment reference terminates, and neither of 36
subsections (7) and (8) apply to the termination; 37
(c) the State's transition reference terminates. 38
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Industrial Relations (Commonwealth Powers) Bill 2009
Schedule 1 Text to be included in the provisions of the Commonwealth Fair Work Act
(7) A State does not cease to be a referring State because of the 1
termination of its amendment reference if: 2
(a) the termination is effected by the Governor of that State 3
fixing a day by proclamation as the day on which the 4
reference terminates; and 5
(b) the day fixed is no earlier than the first day after the end of 6
the period of 6 months beginning on the day on which the 7
proclamation is published; and 8
(c) that State's amendment reference, and the amendment 9
reference of every other referring State (other than a 10
referring State that has terminated its amendment 11
reference in the circumstances referred to in 12
subsection (8)), terminate on the same day. 13
(8) A State does not cease to be a referring State because of the 14
termination of its amendment reference if: 15
(a) the termination is effected by the Governor of that State 16
fixing a day by proclamation as the day on which the 17
reference terminates; and 18
(b) the day fixed is no earlier than the first day after the end of 19
the period of 3 months beginning on the day on which the 20
proclamation is published; and 21
(c) the Governor of that State, as part of the proclamation by 22
which the termination is to be effected, declares that, in the 23
opinion of the Governor, this Act: 24
(i) is proposed to be amended (by an amendment 25
introduced into the Parliament by a Minister); or 26
(ii) has been amended; 27
in a manner that is inconsistent with one or more of the 28
fundamental workplace relations principles. 29
(9) The following are the fundamental workplace relations 30
principles: 31
(a) that this Act should provide for, and continue to provide 32
for, the following: 33
(i) a strong, simple and enforceable safety net of 34
minimum employment standards; 35
(ii) genuine rights and responsibilities to ensure 36
fairness, choice and representation at work, 37
including the freedom to choose whether or not to 38
join and be represented by a union or participate in 39
collective activities; 40
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Industrial Relations (Commonwealth Powers) Bill 2009
Text to be included in the provisions of the Commonwealth Fair Work Act Schedule 1
(iii) collective bargaining at the enterprise level with no 1
provision for individual statutory agreements; 2
(iv) fair and effective remedies available through an 3
independent umpire; 4
(v) protection from unfair dismissal; 5
(b) that there should be, and continue to be, in connection with 6
the operation of this Act, the following: 7
(i) an independent tribunal system; 8
(ii) an independent authority able to assist employers 9
and employees within a national workplace 10
relations system. 11
30M Extended meaning of national system employee 12
(1) A national system employee includes: 13
(a) any individual in a State that is a referring State because of 14
this Division so far as he or she is employed, or usually 15
employed, as described in paragraph 30N(1)(a), except on 16
a vocational placement; and 17
(b) a law enforcement officer of the State to whom subsection 18
30P(1) applies. 19
(2) This section does not limit the operation of section 13 (which 20
defines a national system employee). 21
Note: Section 30S may limit the extent to which this section extends the 22
meaning of national system employee. 23
30N Extended meaning of national system employer 24
(1) A national system employer includes: 25
(a) any person in a State that is a referring State because of this 26
Division so far as the person employs, or usually employs, 27
an individual; and 28
(b) a holder of an office to whom subsection 30P(2) applies. 29
(2) This section does not limit the operation of section 14 (which 30
defines a national system employer). 31
Note: Section 30S may limit the extent to which this section extends the 32
meaning of national system employer. 33
30P Extended ordinary meanings of employee and employer 34
(1) A reference in this Act to an employee with its ordinary meaning 35
includes a reference to a law enforcement officer of a referring 36
State if the State's referral law so provides for the purposes of that 37
law. 38
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Industrial Relations (Commonwealth Powers) Bill 2009
Schedule 1 Text to be included in the provisions of the Commonwealth Fair Work Act
(2) A reference in this Act to an employer with its ordinary meaning 1
includes a reference to a holder of an office of a State if the 2
State's referral law provides, for the purposes of that law, that the 3
holder of the office is taken to be the employer of a law 4
enforcement officer of the State. 5
(3) This section does not limit the operation of section 15 (which 6
deals with references to employee and employer with their 7
ordinary meanings). 8
Note: Section 30S may limit the extent to which this section extends the 9
meanings of employee and employer. 10
30Q Extended meaning of outworker entity 11
(1) An outworker entity includes a person, other than in the person's 12
capacity as a national system employer, so far as: 13
(a) the person arranges for work to be performed for the 14
person (either directly or indirectly); and 15
(b) the work is of a kind that is often performed by 16
outworkers; and 17
(c) one or more of the following applies: 18
(i) at the time the arrangement is made, one or more 19
parties to the arrangement is in a State that is a 20
referring State because of this Division; 21
(ii) the work is to be performed in a State that is a 22
referring State because of this Division; 23
(iii) the person referred to in paragraph (a) carries on an 24
activity (whether of a commercial, governmental or 25
other nature) in a State that is a referring State 26
because of this Division, and the work is reasonably 27
likely to be performed in that State; 28
(iv) the person referred to in paragraph (a) carries on an 29
activity (whether of a commercial, governmental or 30
other nature) in a State that is a referring State 31
because of this Division, and the work is to be 32
performed in connection with that activity. 33
(2) This section does not limit the operation of the definition of 34
outworker entity in section 12. 35
Note: Section 30S may limit the extent to which this section extends the 36
meaning of outworker entity. 37
30R General protections 38
(1) Part 3-1 (which deals with general protections) applies to action 39
taken in a State that is a referring State because of this Division. 40
Page 18
Industrial Relations (Commonwealth Powers) Bill 2009
Text to be included in the provisions of the Commonwealth Fair Work Act Schedule 1
(2) This section applies despite section 337 (which limits the 1
application of Part 3-1), and does not limit the operation of 2
sections 338 and 339 (which set out the application of that Part). 3
Note: Section 30S may limit the extent to which this section extends the 4
application of Part 3-1. 5
30S Division only has effect if supported by reference 6
A provision of this Division has effect in relation to a State that 7
is a referring State because of this Division only to the extent that 8
the State's referral law refers to the Parliament of the 9
Commonwealth the matters mentioned in subsection 30L(1) that 10
result in the Parliament of the Commonwealth having sufficient 11
legislative power for the provision so to have effect. 12
Page 19
Industrial Relations (Commonwealth Powers) Bill 2009
Schedule 2 Amendment of Industrial Relations Act 1996 No 17
Schedule 2 Amendment of Industrial Relations Act 1
1996 No 17 2
[1] Sections 9A and 9B 3
Insert after section 9: 4
9A Employers declared not to be national system employers 5
(1) An eligible employer is declared not to be a national system 6
employer for the purposes of the Fair Work Act 2009 of the 7
Commonwealth if the Minister, by order published on the NSW 8
legislation website, declares the employer not to be a national 9
system employer. 10
(2) An eligible employer is an employer that, under section 14 of the 11
Fair Work Act 2009 of the Commonwealth, is eligible to be 12
declared not to be a national system employer for the purposes of 13
that Act. 14
9B Referral of workplace relations matters to Commonwealth 15
(1) This Act is subject to the Fair Work Act 2009 of the 16
Commonwealth, including provisions of that Act that have effect 17
in this State because of the referral of matters relating to 18
workplace relations to the Commonwealth Parliament by the 19
Industrial Relations (Commonwealth Powers) Act 2009. 20
(2) A reference in any Act or instrument to an industrial instrument 21
or agreement (however described) includes a reference to a 22
relevant federal industrial instrument or agreement if the context 23
permits and it is necessary to do so to take account of the 24
reference of those matters to the Commonwealth Parliament. 25
[2] Section 146A Commission may exercise certain functions conferred on 26
it by agreement 27
Omit the section. 28
[3] Section 146B Commission may exercise certain dispute resolution 29
functions under federal enterprise agreements 30
Omit section 146B (1) (a) and (b). Insert instead: 31
(a) the parties to the dispute are bound by a federal enterprise 32
agreement, and 33
(b) the Commission is authorised or permitted to conduct the 34
dispute resolution process under procedures set out in the 35
agreement. 36
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Industrial Relations (Commonwealth Powers) Bill 2009
Amendment of Industrial Relations Act 1996 No 17 Schedule 2
[4] Section 146B (2) (a) 1
Omit the paragraph. Insert instead: 2
(a) the federal enterprise agreement concerned, and 3
[5] Section 146B (3) 4
Omit "the federal workplace agreement concerned, federal model dispute 5
resolution process". 6
Insert instead "the federal enterprise agreement". 7
[6] Section 146B (7) and (8) 8
Omit the subsections. Insert instead: 9
(7) Nothing in this section makes any order, determination or other 10
decision of the Commission in respect of the dispute binding on 11
other parties to the dispute unless the federal enterprise 12
agreement concerned or federal Act operate to make it binding on 13
the parties. 14
(8) In this section: 15
federal Act means the Fair Work Act 2009 of the 16
Commonwealth. 17
federal enterprise agreement means an enterprise agreement 18
within the meaning of the federal Act (and includes any 19
workplace agreement within the meaning of the former 20
Workplace Relations Act 1996 of the Commonwealth that 21
continues in force under the law of the Commonwealth). 22
modification includes addition, exception, omission or 23
substitution. 24
[7] Section 202 Definitions 25
Omit the definitions of Federal Act and Federal Commission. Insert instead: 26
Federal Act means the Fair Work Act 2009 of the 27
Commonwealth. 28
Federal Commission means Fair Work Australia under the 29
Federal Act. 30
Page 21
Industrial Relations (Commonwealth Powers) Bill 2009
Schedule 2 Amendment of Industrial Relations Act 1996 No 17
[8] Schedule 4 Savings, transitional and other provisions 1
Insert at the end of clause 2 (1): 2
Industrial Relations (Commonwealth Powers) Act 2009 3
Page 22
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