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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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FAIR WORK (COMMONWEALTH POWERS) BILL

Committee Stage

In committee (resumed on motion).

(Continued from page 4186.)

Clause 2 passed.

Clause 3.

The Hon. P. CAICA: I move:

Page 5, line 25 [clause 3(a)]—After 'freedom of association' insert:

in the context of workplace relations,

The Hon. I.F. EVANS: The opposition received all the government amendments at 6.10 last night. We have not had an opportunity to get any feedback from any business organisations that may be impacted by them. The opposition will not be making comment on any of the amendments. We will consult between houses and deal with them in the upper house. It is obvious in this house we will not defeat any amendments, due to the numbers, so, rather than waste the house's time, the opposition will let the amendments flow and deal with them on their merits in the upper house. That is the position in relation to the amendments, at least.

Amendment carried.

The Hon. P. CAICA: I move:

Page 5, line 32 [clause 3(1)]—Before 'rights of entry' insert: 'union'

Page 6—

Line 6 [clause 3(1)]–After 'workplace relations' insert: 'or industrial relations'

Lines 11 and 12 [clause 3(2)]—Delete 'have the meaning that is set out in that Act' and substitute:

(other than in Division 2B of Part 1-3 of the Commonwealth Fair Work Act) have the meaning set out in that Act as in force on 1 July 2009

Lines 13 and 14 [clause 3(3)]—Delete subclause (3)

Amendments carried.

The Hon. I.F. EVANS: I have a question in relation to clause 3, which deals with the definitions and interpretations. Under the words 'express amendment' at the bottom of page 3, it says:

express amendment of the Commonwealth Fair Work Act means the direct amendment of the text of that Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of the Commonwealth Fair Work Act;

To me, as a lay lawyer and humble builder, I think that means that if another act not called the Commonwealth Fair Work Act is amended that has an impact on the commonwealth Fair Work Act, then this act does not apply.

The Hon. P. CAICA: Of course, technically, what the honourable member said is correct, but the simple fact is that it would be outside of the framework and, in fact, it would not apply to the referral and would defeat the very purpose of the referral exercise.

The Hon. I.F. EVANS: Would the minister explain how this works? Is it then possible for a commonwealth government to introduce another piece of legislation, not called the commonwealth fair work act, that deals with industrial relations, and can it have an impact on the commonwealth Fair Work Act? In other words, what is the hierarchy? Can the commonwealth government introduce a bill that in the legislative hierarchy is higher than the commonwealth Fair Work Act, and therefore override any or all of the provisions of the commonwealth Fair Work Act? If that is not the case, what is the purpose of the definition that allows for other acts to be amended to deal with matters that might impact on the commonwealth Fair Work Act?

The Hon. P. CAICA: Of course, the commonwealth parliament has the powers to change and alter our legislation but, with respect, it can pass any bill that it wants. With respect to this particular matter, it refers and relates to the referring parties and, to that extent, it does not have an impact upon this legislation in regard to the agreement between the commonwealth and the referring parties.

The Hon. I.F. EVANS: I am sorry to ask questions about the power of the commonwealth government, but this is the only forum we have available to us to do this. Can the minister confirm to the house that it is not possible for the commonwealth to introduce legislation that affects industrial relations and simply puts a clause into the new bill (unnamed, but certainly not called the commonwealth fair work bill) that overrides the Fair Work Bill and therefore takes away the limited powers of the states under the Fair Work Bill? Is there any way the commonwealth can legislate out of its obligation by calling legislation something different? For instance, could it have a bill called commonwealth industrial relations bill, for want of a better name, and in that bill say that, 'For the referring states under the Fair Work Bill we are now going to do X'? So it is not in the Fair Work Bill, which is where we have our powers, but in another act. I am asking whether they can legislate through another act to rob us of our powers. I am not convinced that they cannot do that.

The Hon. P. CAICA: The specific answer to this question is no. It will not apply to the referring parties unless it occurs through this mechanism, that is, the referral bill. The concerns that the member has expressed are unfounded.

The Hon. I.F. EVANS: Can the minister put it in plainer English for me? I only went to a public school. Can the minister say it is not possible for the commonwealth to do that?

The Hon. P. CAICA: I will make it as clear as I possibly can—I am happy to answer a fourth question on this clause. It will not apply to the referring parties in the context of the scenario that the member has put to us unless it is done through this particular mechanism, that mechanism being the referring party. Again, the answer is no, it cannot occur.

The Hon. I.F. EVANS: I am sorry to ask the minister more than three questions on this very long clause, but—

The Hon. P. Caica: You had enough time to ask questions previously and so did your party members. The whole idea is for you to be able to ask questions; I am not offended at all.

The Hon. I.F. EVANS: Okay. No, we will get this on the record.

The CHAIR: I am offended by standing orders, though, so we need to be careful.

The Hon. I.F. EVANS: You can do it by standing orders if you wish; it is all right. The minister raised the issue that the opposition was offered briefings and some people did not attend. That is quite true. However, this forum is public, not private, so I am going to take the opportunity, as the rules allow, to get on the public record as much as I can, just as the minister's party did in opposition, because there are business groups and other people out there who want to see the answers to a whole range of questions about how this will work, regardless of the private versions offered and the information given to us in private briefings. That is the reason for some of the questions.

Clause 3 on page 4 refers to 'local government' and 'local government sector employer', and it states:

Local government sector employer means an employer that is—

(c) any other entity established under the Local Government Act 1999; or...

(e) any other entity established by a body referred to in a preceding paragraph;

I just want to understand, if a council wants to start a proprietary limited business, is it covered by the state scheme or the commonwealth scheme, given that local government comes under the state scheme and Pty Ltd businesses go under the federal scheme?

The Hon. P. CAICA: That matter will be addressed in an amendment to the government's statute amendments act that we will be dealing with after this matter. Yes, they would in fact be excluded. Again, we have gone through an extensive level of consultation with the Local Government Association, and we received only this morning correspondence from the Local Government Association that expressed the view that the bills provide for fair and reasonable transitional arrangements for councils and it supports the bills in their amended form. So, in answer to the member's question, the simple fact is that there will be an amendment that will deal with that in the next bill that we consider.

The Hon. I.F. EVANS: When the minister said that they will be excluded, does he mean excluded from the national scheme or the state scheme?

The Hon. P. CAICA: They would be excluded from the national scheme through regulation.

Clause as amended passed.

Clauses 4 to 7 passed.

Clause 8.

The Hon. I.F. EVANS: I just want make sure that my understanding of how this termination provision works is correct. Clause 8 talks about the effect of termination of amendment reference or transition reference before the initial reference. Clause 8(1)(a) states that it does not affect 'laws that were made under that reference before that termination (whether or not they have come into operation before that termination)'. I think it means that, if the federal government moves amendments to the commonwealth Fair Work Act and the state government decides it wishes to withdraw that reference in relation to the provision that is being amended, the amendments still stay in place and it is only future amendments to that reference that the withdrawal affects.

So, if the commonwealth moves to change unfair dismissal provisions that the state government does not like and the state government gives notice that it wants to withdraw its referral powers just on unfair dismissals, the law that applies is still the law that the state government did not like, but the withdrawal prevents the federal government from moving future amendments because the reference in relation to unfair dismissals has been withdrawn. I just want to check that my understanding is right; that the law that you do not like still stays on the statute and still applies?

The Hon. P. CAICA: I thank the honourable member for his question in relation to effective termination. It would depend on the timing of the commonwealth amendment. It would certainly be our expectation that, with the three months' notice and then the notice applying to the commonwealth to deal with that, we would have entered into dialogue with the commonwealth on this matter. It allows the opportunity for dialogue between the state and the commonwealth to occur before they implement that change.

That is the very nature of what we have been trying to do, that is, to put these measures in place to make sure that the very concerns that have been expressed—not only by the opposition but by us—with respect to the preservation of the integrity of the referral remain in place.

The Hon. I.F. EVANS: Put aside the government's wish to use the mechanism to create dialogue and try to resolve the difference by conciliation or agreement between the parties. Explain to the committee a worst case scenario. Let us say that the state and commonwealth governments cannot agree. If they cannot agree, is my reading of the legislation right that the provision for which the state government does not agree remains in place? I draw the attention of the minister to clause 8(1)(a) and 8(1)(b). Clause 8(1)(b) provides:

the continued operation in the State of the Commonwealth Fair Work Act as in operation immediately before the termination—

so, just before you terminate the reference—

—or as subsequently amended...

So, post the suspension. The way in which I read it is that the commonwealth gets its way and therefore the law that you do not like remains in place. All you have done by withdrawing that reference is preserve a position for future amendments.

The Hon. P. CAICA: It depends on whether or not the law has been passed by the commonwealth and, if that is the case, we would say that, through engagement, we have the opportunity of stopping that. The amendment reference and termination provisions of this bill restrict future changes from removing agreed fundamental elements, including the scope of the national system. It is these provisions that expressly exclude the power to make amendments based on our referral with respect to continuing state law matters that are saved by section 27 of the Fair Work Act 2009, including, importantly, occupational health and safety, training and skills development, child labour, and so on with respect to the public sector, local government and any other excluded sectors.

This is achieved by including these matters in the definition of 'excluded subject matter' in the bill. The bill also links the amendment reference limitations to the statutory-based governance principles unanimously agreed to by the Workplace Relations Ministers Council on 23 May 2009. A translation of these principles is set out in the definition of the fundamental workplace relation principles as provided in clause 4 of the bill. The significance of these principles is that it will permit the amendment reference to be terminated in circumstances by South Australia whilst retaining our status as a referring state, and this is achieved as follows.

The bill allows for the termination of references by a proclamation of the South Australian Governor. This is a standard provision in referral legislation. In general terms, a period of six months notice is normally required to be given to the commonwealth if the state intends to terminate any of its references. Should South Australia do this in isolation from another referring state or states and where agreed national system principles have not been breached, South Australia would no longer be considered to be a referring state under the terms of the Fair Work Act 2009.

An example of the use of the termination reference, although unlikely ever to occur, could be if a future federal government sought in a hostile manner to expand the scope of the commonwealth laws to take over all or most of the continuing state's laws. The proposed provisions would enable the South Australian government to provide six months' notice to the commonwealth government of its intention to terminate. The reference would result in South Australia no longer being considered to be a referring state. Referring states, of course, have specific rights within the national system.

It would also involve recreating an industrial relations system for those returning to the state system. Of course, this step would not be considered lightly and would be considered only as an absolute last resort. However, the bill also provides for a termination of the amendment reference if the Governor in the proclamation giving effect to the termination declares that, in his or her opinion, the Fair Work Act 2009 has been or indeed will be amended in a manner that is inconsistent in one or more of the relevant fundamental workplace relations principles.

The termination of the amendment reference in this context would require three months' notice and have the effect that the commonwealth would not, after the date of effect of the proclamation, be able to rely on South Australia's referral to enact amendments to the Fair Work Act 2009. Future amendments would not apply to non-constitutional employers and employees in South Australia pending the resolution of the issues by the parliament.

I make that point because I think it was an issue the honourable member raised this morning—'pending the resolution of the issues by the parliament'. For example, the termination of the amendment reference may be considered if a future commonwealth government chose to abolish the unfair dismissal system, as was used as an example in its entirety. In that situation, South Australia, where feasible, could issue a proclamation giving at least three months' notice to the commonwealth of the intention to suspend the amendment reference so that the termination was effective prior to the commonwealth amended provisions coming into force. If it were not possible for the termination of the amendment reference to be in place before the proposed amendment is enacted, the commonwealth could not rely on South Australia's amendment reference to make further amendments to the Fair Work Act 2009 affecting unincorporated employers and employees in this state.

In these circumstances, South Australia continues to be a referring state. The use of this termination provision would then be reported to parliament, and it would be for parliament to determine whether to remove or amend the amendment reference. The bill also enables the Governor to give notice of the termination of the amendment reference and later revoke the termination. This would permit the withdrawal of the termination should an alternative be agreed in the intervening period. The objective is for these provisions never to be utilised, but they are a necessary option as a discipline so that changes to the fundamental principles do not occur in the first place or can be resolved by the parties before they are operational.

The Hon. I.F. EVANS: I think I got that; that was very quick. In the last section of your contribution, you said that it would prevent further amendments. My understanding of the position is that it is when the government seeks to give three months' notice in regard to one of the principles that might be amended rather than the six months' notice withdrawing out of the whole system. So, put the six months' notice aside for a minute: we are talking about the three months' notice.

The three months' notice provision is a withdrawal provision that can be used where the federal government seeks to amend one of the key principles. The minister uses the example of unfair dismissals. The minister says, 'Well, we've got this provision in so it creates dialogue.' I accept that. At the end of the dialogue, at the end of the three months, there is no agreement between the commonwealth and state. When there is no agreement between the commonwealth and state, the state then withdraws.

The minister mentions that it might come to parliament. I do not see in the bill that it has to come to parliament so I assume that is at the discretion of the minister or the cabinet but nowhere in the bill can I see that that matter has to come to the parliament. If that is the minister's intention, he might want to move an amendment between the houses, because a future minister may not have the same goodwill towards that principle as this minister.

To come back to the point: three months' notice is given and the two parties cannot agree. Suppose it is to do with unfair dismissal. The commonwealth already amends the legislation. My understanding of the way this legislation is drafted is that the clause that you do not agree with remains in the commonwealth legislation and still applies to all of the state's private sector. The only position the government is preserving by using the three month withdrawal provision is to stop future amendments. That is the way the briefing was given to me.

If that is right, then there is nothing stopping a federal government, over a period of 15 to 20 years, simply picking them off one at a time: unfair dismissals, today; training, three years' time; occupational health and safety, five years' time. There is nothing to stop that because the individual state government has to make the decision: is it worth withdrawing? Is it then worth withdrawing using the six month provision—withdrawing out of the whole system—on the basis of one of the principles?

As I mentioned in my second reading contribution, this bill is nothing more than a 'slowly, slowly, catchee monkey' approach by those who seek to centralise everything in Canberra, so I need a clear answer in relation to the issue. If the commonwealth and state cannot agree after the three months' notice has been given and the three months has ended, and the commonwealth has already enacted amendments to its bill, my understanding is that those amendments stay in place and still apply to all of the private sector in South Australia. The only thing that the state government has preserved is that future amendments that it may not like are prevented from occurring and the non-corporations in South Australia then come under a state system just for that reference that has been withdrawn. That is my understanding of the briefing that was given to me.

The Hon. P. CAICA: I thank the member for his question. We need to clarify something to start off with and that was the member's reference to training and occupational health and safety for example. They have not been referred, so they stay within the state jurisdiction. If we go back to the unfair dismissal example that you provided, that is probably a more logical example to give than the others you did because they are not affected by this because they are not referred matters and are retained by the state jurisdiction.

Certainly, our state's expectation would be that, providing that notice has been given under the IGA—that is, through the agreement that we have reached with the commonwealth—we would be able to stop any amendment that is being contemplated which we disagree with or which we believe is in conflict with the spirit and the nature of the agreement that we have.

If, indeed, the matter has been introduced, if you like, or notice has been given, under the agreements of the IGA, we are able to prevent that proceeding and, of course, in regard to the other issue, we would say, 'Well, that won't proceed because that is being done under the notice.' If in fact it is not done under the notice and the relationship has broken down to that extent, it would be our intention to report that matter to parliament. That is what this provides for—to report it to parliament—because, at the end of the day, only parliament can change the law if it is our intention to change the law as it relates to the IR system in which we have agreed to participate. I hope that makes some type of semblance of sense to you, with respect to the way I have responded to that, and I am happy to clarify any aspect of it if I have not done a good job.

Clause passed.

Clause 9.

The Hon. I.F. EVANS: This deals with the period for termination of references. We have touched on the six-month provision, which is the total withdrawal provision, and earlier we touched on the three-month provision, so I will not go into great detail about this. I note that this termination of references is specifically restricted to the commonwealth Fair Work Act. If other legislation imposes great costs on businesses associated with the act—for instance, penalties or something in a stand-alone bill—then we cannot complain about that. I also note that the commonwealth Fair Work Act as provided by clause 9(2)(b)(i):

is proposed to be amended (by an amendment introduced into the Parliament of the Commonwealth by a Commonwealth Minister);

Pray tell, what happens to a private member's amendment, an opposition amendment or a government backbencher's amendment that gets passed? What powers do we have, given that this is restricted only to those amendments moved by a commonwealth minister? It is not unknown for parliaments to be hung parliaments. What would happen, for instance, if the commonwealth found itself in a hung parliament situation and the Independent member holding the balance of power said that they want to introduce amendments to change the act. Do I read it correctly in saying that this does not then apply because they are not amendments moved by a commonwealth minister?

The Hon. P. CAICA: You are correct in reading it that the proposed amendment would be introduced to parliament by a commonwealth minister. We can only deal with the referral of the powers here. With respect to your specific example, the commonwealth has a requirement to engage and consult with us with respect to any circumstances that may evolve in regard to a commonwealth parliament that might look significantly different than the one that occurs today, and those provisions are embedded within the agreement.

The Hon. I.F. EVANS: In relation to the three-month notice provision, that provision deals with whether something is inconsistent with one or more of the fundamental workplace relations principles. Every business organisation I have managed to speak to in relation to this bill is opposed to this clause. They say it is a mess and that it would be unworkable. If you believe the government's rhetoric, it says it wants to go to a national system to make it easier for business, to give everyone certainty and make things more efficient. Then it says it does not want that nasty federal government setting policies that it does not like, so in case it does we will have a clawback provision on a set of fundamental workplace relations principles which are outlined in the act.

If the federal government moves to change one of those to a position that the state government of the day does not like, we can give three months' notice and withdraw if the negotiations do not go as the minister suggests they might. Let's say it is a Brumby-Howard example with the River Murray. Even though Mr Howard offered $10 billion, Mr Brumby just could not agree. So, let's say it is that sort of circumstance.

The easiest example to use here is unfair dismissal. The government's proposal is that then it withdraws its reference with three months' notice for unfair dismissal and then it has to set up a whole state system for the 30 per cent of businesses and non-corporations just to deal with unfair dismissal, and everything else is still under the federal system under the three-month withdrawal provision.

Every single business association has read the legislation that way; that is how I read the legislation. That was the briefing to me. If the state government believes in flicking it to the commonwealth to make it easier, why would you want to set up a system where for only 30 per cent you will deal with one provision of the act? The business community would argue that this complicates it further. For instance, retailers (excluding non-corporation retailers) would be under the federal system for everything except unfair dismissal. How confusing would that be for a retailer or a business because you would be under two systems? At least currently you are under one system or the other. I am asking the minister why they have designed the system that way. Every business association I have dealt with has raised this as an issue. They say it is unworkable and say that, if you are going to refer it, why not just refer it?

The Hon. P. CAICA: The first point is that the business sector has expressed some reservations about this clause but none of the members of the business community I have dealt with have opposed it. They have expressed reservations about it. In fact, none we have spoken to would hold the same views as the member for Davenport because it has been explained to them, and I will explain it in a very clear way. We use the example that was provided by the member for Davenport with respect to unfair dismissal or any other matter that is dealt with through the referral system. The simple fact is that it preserves the law that is in place at that time. That applies, that day will apply the next day. I hope that clarifies that situation.

The Hon. I.F. EVANS: So, let me understand this, because I think you have just given me the answer to the question I asked 10 minutes ago. So it preserves the commonwealth law in place. That is the law that we do not like and the law we are withdrawing from; yes?

The Hon. P. CAICA: If we have a chance we can cut it off, to stop that proceeding before it applies.

The Hon. I.F. EVANS: What is the mechanism to stop it proceeding? It is not clear to me from the briefing. The way it was explained to me in the briefing, because I remember that I was quite surprised when I was informed of this, was that, once the amendment was moved, even if it had not passed at the time of the withdrawal, it still applied. I argued at the time that that seemed unusual, because it locked in the bad law. So, with the three months referral, if it is the Brumby Howard example and you cannot agree, what law is locked in: the law that was in place at the time of the notification or the law that is amended? If you withdraw proposed amendments that you are upset about and are not yet passed, is it that amendment that is locked in or the law at the time of the notification of withdrawal?

At what point, what law is locked in? Then, given that that law is locked in, whichever model it is, what powers does the state then have, given that you have withdrawn that reference? Can the state then override the commonwealth law, or are we simply stuck with the law, and all we have done is say the commonwealth can no longer amend it? Can we amend it to something we like, or are we just stuck with the bad law that we did not like?

The Hon. P. CAICA: I think the question asked earlier was about seeking guarantees to be able to stop it. Should we have given notice to withdraw the amendment before it applies, it would be the law that existed. Should the amendment be passed, it will be the law that applies with respect to that amendment. What we would be saying here too is that, if the relationship between the state and commonwealth had got to this extent that these were the shenanigans that were going on, I and I expect you if you are ever in this position again will be coming to the parliament to report the matter to make sure that changes are made to rectify it. Just to clarify that, it is the law at the time of the termination when that termination takes effect.

Clause passed.

Schedule 1.

The CHAIR: If the minister moves his amendment in total I will manage the debate section by section.

The Hon. P. CAICA: I move:

Schedule 1—Delete Schedule 1 and substitute:

Schedule 1—Text to be included in the provisions of the Commonwealth Fair Work Act

Division 2B—Application of this Act in States that refer matters after 1 July 2009 but on or before 1 January 2010

30K—Meaning of terms used in this Division

(1) In this Division:

amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(4).

excluded subject matter means any of the following matters:

(a) a matter dealt with in a law referred to in subsection 27(1A) of this Act;

(b) superannuation;

(c) workers compensation;

(d) occupational health and safety;

(e) matters relating to outworkers (within the ordinary meaning of the term);

(f) child labour;

(g) training arrangements;

(h) long service leave;

(i) leave for victims of crime;

(j) attendance for service on a jury, or for emergency service duties;

(k) declaration, prescription or substitution of public holidays;

(l) the following matters relating to provision of essential services or to situations of emergency:

(i) directions to perform work (including to perform work at a particular time or place, or in a particular way);

(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);

(m) regulation of any of the following:

(i) employee associations;

(ii) employer associations;

(iii) members of employee associations or of employer associations;

(n) workplace surveillance;

(o) business trading hours;

(p) claims for enforcement of contracts of employment, except so far as a law of a State provides for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;

(q) rights or remedies incidental to a matter referred to in a preceding paragraph of this definition;

except to the extent that this Act as originally enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter.

express amendment means the direct amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter), but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act.

fundamental workplace relations principles: see subsection 30L(9).

initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(3).

law enforcement officer means:

(a) a member of a police force or police service; or

(b) a person appointed to a position for the purpose of being trained as a member of a police force or police service; or

(c) a person who has the powers and duties of a member of a police force or police service;

and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer.

local government employee, of a State, means:

(a) an employee of a local government employer of the State; or

(b) any other employee in the State of a kind specified in the regulations.

local government employer, of a State, means an employer that is:

(a) a body corporate that is established for a local government purpose by or under a law of a State; or

(b) a body corporate in which a body to which paragraph (a) applies has, or 2 or more such bodies together have, a controlling interest; or

(c) a person who employs individuals for the purposes of an unincorporated body that is established for a local government purpose by or under a law of a State; or

(d) any other body corporate that is a local government body in the State of a kind specified in the regulations; or

(e) any other person who employs individuals for the purposes of an unincorporated body that is a local government body in the State of a kind specified in the regulations.

referral law, of a State, means the law of the State that refers matters, as mentioned in subsection 30L(1), to the Parliament of the Commonwealth.

referred provisions means the provisions of this Division to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.

referred subject matters means any of the following:

(a) terms and conditions of employment, including any of the following:

(i) minimum terms and conditions of employment, (including employment standards and minimum wages);

(ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise-level agreements);

(iii) bargaining in relation to terms and conditions of employment;

(iv) the effect of a transfer of business on terms and conditions of employment;

(b) terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers;

(c) rights and responsibilities of persons, including employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following:

(i) freedom of association in the context of workplace relations, and related protections;

(ii) protection from discrimination relating to employment;

(iii) termination of employment;

(iv) industrial action;

(v) protection from payment of fees for services related to bargaining;

(vi) sham independent contractor arrangements;

(vii) standing down employees without pay;

(viii) union rights of entry and rights of access to records;

(d) compliance with, and enforcement of, this Act;

(e) the administration of this Act;

(f) the application of this Act;

(g) matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act;

but does not include any excluded subject matter.

referring State: see section 30L.

State public sector employee, of a State, means:

(a) an employee of a State public sector employer of the State; or

(b) any other employee in the State of a kind specified in the regulations;

and includes a law enforcement officer of the State.

State public sector employer, of a State, means an employer that is:

(a) the State, the Governor of the State or a Minister of the State; or

(b) a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or

(c) a body corporate in which the State has a controlling interest; or

(d) a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or

(e) any other employer in the State of a kind specified in the regulations;

and includes a holder of an office of the State whom the State’s referral law provides is to be taken, for the purposes of this Act, to be an employer of law enforcement officers of the State.

transition reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(5).

(2) Words or phrases in the definition of excluded subject matter in subsection (1), or in the definition of referred subject matters in subsection (1), that are defined in this Act (other than in this Division) have, in that definition, the meanings set out in this Act as in force on 1 July 2009.

30L—Meaning of referring State

Reference of matters by State Parliament to Commonwealth Parliament

(1) A State is a referring State if the Parliament of the State has, after 1 July 2009 but on or before 1 January 2010, referred the matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:

(a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and

(b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State.

This subsection has effect subject to subsection (6).

(2) A State is a referring State even if:

(a) the State’s referral law provides that the reference to the Parliament of the Commonwealth of any or all of the matters covered by subsections (3), (4) and (5) is to terminate in particular circumstances; or

(b) the State’s referral law provides that particular matters, or all matters, relating to State public sector employees, or State public sector employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5); or

(c) the State’s referral law provides that particular matters, or all matters, relating to local government employees, or local government employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5).

Reference covering referred provisions

(3) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by amending this Act, as originally enacted, and as subsequently amended by amendments enacted at any time before the State’s referral law commenced, to include the referred provisions.

Reference covering amendments

(4) This subsection covers the referred subject matters to the extent of making laws with respect to those matters by making express amendments of this Act.

Reference covering transitional matters

(5) This subsection covers making laws with respect to the transition from the regime provided for by:

(a) the Workplace Relations Act 1996 (as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); or

(b) a law of a State relating to workplace relations or industrial relations;

to the regime provided for by this Act.

Effect of termination of reference

(6) Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs:

(a) the State’s initial reference terminates;

(b) the State’s amendment reference terminates, and neither of subsections (7) and (8) apply to the termination;

(c) the State’s transition reference terminates.

(7) A State does not cease to be a referring State because of the termination of its amendment reference if:

(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and

(b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and

(c) that State’s amendment reference, and the amendment reference of every other referring State (other than a referring State that has terminated its amendment reference in the circumstances referred to in subsection (8)), terminate on the same day.

(8) A State does not cease to be a referring State because of the termination of its amendment reference if:

(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and

(b) the day fixed is no earlier than the first day after the end of the period of 3 months beginning on the day on which the proclamation is published; and

(c) the Governor of that State, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor, this Act:

(i) is proposed to be amended (by an amendment introduced into the Parliament by a Minister); or

(ii) has been amended;

in a manner that is inconsistent with one or more of the fundamental workplace relations principles.

(9) The following are the fundamental workplace relations principles:

(a) that this Act should provide for, and continue to provide for, the following:

(i) a strong, simple and enforceable safety net of minimum employment standards;

(ii) genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities;

(iii) collective bargaining at the enterprise level with no provision for individual statutory agreements;

(iv) fair and effective remedies available through an independent umpire;

(v) protection from unfair dismissal;

(b) that there should be, and continue to be, in connection with the operation of this Act, the following:

(i) an independent tribunal system;

(ii) an independent authority able to assist employers and employees within a national workplace relations system.

30M—Extended meaning of national system employee

(1) A national system employee includes:

(a) any individual in a State that is a referring State because of this Division so far as he or she is employed, or usually employed, as described in paragraph 30N(1)(a), except on a vocational placement; and

(b) a law enforcement officer of the State to whom subsection 30P(1) applies.

(2) This section does not limit the operation of section 13 (which defines a national system employee).

Note—

Section 30S may limit the extent to which this section extends the meaning of national system employee.

30N—Extended meaning of national system employer

(1) A national system employer includes:

(a) any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual; and

(b) a holder of an office to whom subsection 30P(2) applies.

(2) This section does not limit the operation of section 14 (which defines a national system employer).

Note—

Section 30S may limit the extent to which this section extends the meaning of national system employer.

30P—Extended ordinary meanings of employee and employer

(1) A reference in this Act to an employee with its ordinary meaning includes a reference to a law enforcement officer of a referring State if the State’s referral law so provides for the purposes of that law.

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a holder of an office of a State if the State’s referral law provides, for the purposes of that law, that the holder of the office is taken to be the employer of a law enforcement officer of the State.

(3) This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings).

Note—

Section 30S may limit the extent to which this section extends the meanings of employee and employer.

30Q—Extended meaning of outworker entity

(1) An outworker entity includes a person, other than in the person’s capacity as a national system employer, so far as:

(a) the person arranges for work to be performed for the person (either directly or indirectly); and

(b) the work is of a kind that is often performed by outworkers; and

(c) one or more of the following applies:

(i) at the time the arrangement is made, one or more parties to the arrangement is in a State that is a referring State because of this Division;

(ii) the work is to be performed in a State that is a referring State because of this Division;

(iii) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is reasonably likely to be performed in that State;

(iv) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is to be performed in connection with that activity.

(2) This section does not limit the operation of the definition of outworker entity in section 12.

Note—

Section 30S may limit the extent to which this section extends the meaning of outworker entity.

30R—General protections

(1) Part 3-1 (which deals with general protections) applies to action taken in a State that is a referring State because of this Division.

(2) This section applies despite section 337 (which limits the application of Part 3-1), and does not limit the operation of sections 338 and 339 (which set out the application of that Part).

Note—

Section 30S may limit the extent to which this section extends the application of Part 3-1.

30S—Division only has effect if supported by reference

A provision of this Division has effect in relation to a State that is a referring State because of this Division only to the extent that the State’s referral law refers to the Parliament of the Commonwealth the matters mentioned in subsection 30L(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect.

The amendments to the bill all arise from continuing consultation between South Australia, the commonwealth and other referring governments. In order to accommodate the marginally different statutory starting points of all the referring jurisdictions, including Victoria, which is already in the system, it has become necessary to adjust the agreed referral text, schedule 1 in this bill, and to make some consequential changes.

The amendments are technical and do not change any of the scope or substance of the existing referral bill in any way. It is also important to note that, as part of this process, the other states referring at this time are proposing to adopt the approach to the amendment reference and termination arrangements as originally agreed between South Australia and the commonwealth and as set out in the bill presently before the house.

Amendment No. 6, which are dealing with now, seeks to insert a revised schedule 1, as now agreed between South Australia and the commonwealth. As previously advised, the amendments are technical and do not change any of the scope or substance of the existing referral bill in any way.

I have discussed most of the changes to the schedule as part of the consideration of amendments Nos. 1 to 5. Without repeating those explanations, the other changes in schedule 1 relate to the following:

confirmation of the schedule will apply to all states referring between 1 July 2009 or on or before 1 January 2010—this is to distinguish from the earlier (original) Victorian referral and confirm that any jurisdiction not taking this window of opportunity to complete their referral will be required to establish a separate referral arrangement;

consolidation of the definitions of amendment and express amendment into a new definition of the term express amendment;

amendments to the definition of local government employer and statute public sector employer to confirm that they also include unincorporated bodies—this is already covered by our existing definitions; and

consequential changes to the inclusion of law enforcement officers within the schedule including so as to confirm that they need not be referred by a (referring) state, which is the approach being taken by South Australia.

The Hon. I.F. EVANS: I have one question on section 30M, which provides:

A national system employee includes any individual in a State that is a referring State because of this Division so far as he or she is employed, or usually employed, as described in subsection 30N(1), except on a vocational placement.

Does that mean that someone on a vocational placement is not part of the national system?

The Hon. P. CAICA: As I have expressed, this has taken a great degree of dialogue between the commonwealth and the referring states. This was incorporated to accommodate Queensland, so it will have different referring matters in respect of this particular schedule, and it is certainly, as we mentioned earlier, not our intention to refer matters in respect of vocational placement as they occur in South Australia.

Amendment carried; schedule as amended passed.

Title passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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