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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-13 Daily Xml
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STATUTES AMENDMENT (NATIONAL INDUSTRIAL RELATIONS SYSTEM) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (20:49): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Statutes Amendment (National Industrial Relations System) Bill 2009 is the second part of the legislative package that will refer power to the Commonwealth to facilitate South Australia's participation in a national system of industrial relations for the private sector from January 2010. It deals with transitional and consequential amendments of State laws arising out of South Australia's participation in the national system.

Earlier today, when I introduced the Fair Work (Commonwealth Powers) Bill 2009 (the Referral Bill) into this House, I provided members with the background to South Australia's participation in the national Industrial Relations system. To effectively implement the referral of powers to the Commonwealth, amendments to other South Australian legislation will be required. The Statutes Amendment (National Industrial Relations System) Bill 2009 (the Bill) provides for:

transitional arrangements for those employers and employees returning to the state system to be facilitated;

the implementation of certain consequential changes to State law; and

the updating of references to Commonwealth legislation and industrial instruments in South Australian statutes given the changes to the Commonwealth law that have already occurred.

In relation to the Referral Bill, I outlined that the State public sector and the local government sector were not included as part of the national system. These parties will be subject to the continuing State industrial law and so be afforded jurisdictional certainty for the first time in many years. In relation to the local government sector, the Bill provides for the recognition under the Fair Work Act 1994 (SA) of all collective industrial instruments made by local government parties pursuant to the Workplace Relations Act 1996 (Cth) and the Fair Work Act 2009 (Cth). This will include recognising relevant federal awards and agreements.

The Bill also formally recognises any formal collective agreements made by local government parties in the state jurisdiction during the 2006-2009 period. This will include recognising collective agreements made under Chapter 3, Part 2 of the Fair Work Act 1994 (SA) and referral agreements made pursuant to Schedule 1 of the Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA).

This provision is required as the status of agreements made by local government in the State jurisdiction between 2006-2009 is not beyond doubt. This is because if the council was a constitutional corporation between 2006-2009 it could only make valid agreements in the federal industrial relations jurisdiction. The same issue applies if a council made a federal agreement when it was not, in law, a constitutional corporation.

The effect of providing this recognition is to ensure that all transitioning agreements made during the 2006-09 period are legally valid irrespective of the constitutional status of the individual council at that time.

Although the Bill does not recognise unregistered administrative agreements and Memorandums of Understanding as transitioning instruments, there will be scope for the parties to legitimise these arrangements in the state system as part of any variation and renegotiation processes.

Under this Bill provision is made for transitioning agreements to be varied by the Industrial Relations Commission of South Australia to resolve any ambiguities or uncertainty caused by recognition of these instruments under the State system. This can be achieved either by consent of the parties or by a determination of the State Commission.

The State Commission will also be given jurisdiction to vary or revoke (upon application) any term or provision of a transitioning award or enterprise agreement if it is satisfied that it is fair and reasonable to do so in the circumstances. This is a similar approach to that taken in the Statutes Amendment (Public Sector Employment) Act 2006 which dealt with the transition of certain elements of the public sector into the state system in 2006.

All agreements transitioning into the state jurisdiction from 1 January 2010 will operate subject to the minimum standards in the Fair Work Act 1994 (SA). The Bill further provides for these transitioning agreements to have a sunset clause of two years, or the nominal life of the agreement, whichever is the earlier, at which time they must be renegotiated.

Relevant federal awards applying to the local government sector are also to be recognised under State law by regulation from 1 January 2010.

These provisions ensure that all relevant agreements and awards are immediately recognised and validated within the state industrial relations jurisdiction, without any further action by the parties. They also ensure that the State Commission has jurisdiction to deal with any immediate issues of ambiguity and uncertainty arising from the transition.

The legislation also takes account of bargaining processes commenced by the parties. If a Council has engaged in enterprise bargaining in the federal system and the process has been concluded (including a vote by employees to accept the agreement and lodgement with the federal tribunal for approval), but the agreement has not been approved by Fair Work Australia by 31 December 2009, it is intended that the approval process will be concluded by Fair Work Australia and the agreement subsequently recognised in the State system.

In the situation when a Council has engaged in enterprise bargaining in the federal system and agreement was not reached by 31 December 2009, the bargaining process will need to recommence in the state system from 1 January 2010. However, the Bill ensures that the Commission may take conduct of the parties prior to 1 January 2010 into account when it considers enterprise agreement matters after that date.

In relation to the public sector, most Government Business Enterprises will have their coverage confirmed under the State Industrial Relations system. This is achieved by amending the various South Australian statutes that establish Government Business Enterprises to declare that they are not national system employers for the purposes of the Fair Work Act 2009. These provisions are designed to operate in conjunction with the Fair Work Act 2009 so as to exclude these entities from the national system.

The Bill provides for transitional arrangements for those Government Business Enterprises ‘returning' to the state system and these are similar to those I described for the local government sector.

The aim of this Bill is to ensure that the transition for the parties in these sectors to operate as simply and smoothly as possible, whilst acknowledging existing industrial arrangements.

Some consequential amendments to the Fair Work Act 1994 (SA) are also necessary as a result of South Australia's participation in the national system. In the context of establishing the national system on the foundation of cooperative federalism, this Bill will insert statutory encouragement provisions for the full utilisation of dual appointments in Fair Work Australia and the State Commission.

These include:-

the insertion of a provision in the objects clause of the Fair Work Act 1994 (SA) to reflect the aim of establishing a national industrial relations system based on co-operative federalism particularly through the use of dual appointments to Commonwealth and State tribunals; and

the insertion of operational provisions to encourage the actual use of dual appointments.

The Industrial Relations Court of South Australia (the Court) will be an eligible Court under the national Industrial Relations system and be accessible to all parties in this State. As such it is appropriate to confirm elements of its operations. In particular, the Bill re-establishes the discretionary approach to the awarding of costs as historically taken by the Court.

Following the removal of the special treatment for employer members of the Exclusive Brethren in the Fair Work Act 2009, this Bill also removes the special right of entry restrictions in section 140(5) of the Fair Work Act 1994 (SA) as they relate to that group.

Provisions have been made for any references in the various State Acts mentioned in the Bill to the repealed Commonwealth Workplace Relations Act 1996 and any references to federal awards and enterprise agreements to be amended to ensure that they are consistent with the Fair Work Act 2009 and relevant fair work industrial instruments.

The concepts outlined in the Bill have been subject to detailed consultation with the Industrial Relations Advisory Committee and other interested parties.

The package of Bills I have introduced today are necessary to implement South Australia's participation in the national Industrial Relations system from 1 January 2010. After the new arrangements have been in place for a period, the Government also intends to undertake a further review of the State industrial relations legislation to further fine tune its operation and address any other consequences of the national system changes.

I commend this Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

Operation of the measure is to commence on a day to be fixed by proclamation. Section 7(5) of the Acts Interpretation Act 1915 will not apply to the Act (in case it is necessary to delay the commencement of certain amendments beyond the second anniversary of assent).

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Construction Industry Long Service Leave Act 1987

4—Amendment of section 4—Interpretation

This clause substitutes a new definition of agreement and amends the definition of award. In both cases, the changes are made for the purpose of updating obsolete references to Commonwealth legislation.

Part 3—Amendment of Equal Opportunity Act 1984

5—Amendment of section 85F—Exemptions

6—Amendment of section 100—Proceedings under Fair Work Act 1994

The purpose of the amendments made by these clauses is to replace obsolete references to State and Commonwealth legislation.

Part 4—Amendment of Fair Work Act 1994

7—Amendment of section 3—Objects of Act

As a consequence of this amendment to the objects section of the Fair Work Act 1994, an additional object of the Act will be facilitation of the establishment and operation of a national industrial relations system through co-operative federalism.

8—Amendment of section 4—Interpretation

This clause amends the interpretation provision of the Fair Work Act 1994 for the purpose of updating obsolete references and inserting new definitions. For example, a new definition of Commonwealth Act is substituted so that reference is made to the Fair Work Act 2009 of the Commonwealth. The Commonwealth (Registered Organisations) Act is the Commonwealth Fair Work (Registered Organisations) Act 2009. Fair Work Australia is Fair Work Australia established under the Commonwealth Act.

9—Amendment of section 29—The President

Section 29 is amended by this clause so as to require the President of the Industrial Relations Commission to perform his or her functions and exercise his or her powers in a manner that facilitates and encourages co-operation between the Commission and Fair Work Australia.

10—Amendment of section 37—Concurrent appointments

Section 37(3) provides that a member of an industrial authority constituted under the law of the Commonwealth or another State may be appointed as a member of the Commission. This clause amends the section by inserting a new subsection that makes it clear that section 34(2), which requires consultation in relation to proposed appointments, does not apply to the making of concurrent appointments under section 37(3). Also, a member of the Commission appointed under section 37(3) will not be taken into account for the purposes of section 34(3), which imposes a requirement for the number of Commissioners with experience in industrial affairs through association with the interests of employees to be equal (or almost equal) to the number of Commissioners with experience in industrial affairs through association with the interests of employers.

11—Amendment of section 79—Approval of enterprise agreement

This clause amends section 79 to remove references to the Commonwealth Act.

12—Amendment of section 92—Retrospectivity

This clause amends section 92 by removing a reference to awards or agreements under the Commonwealth Act. The section as amended will instead refer to fair work instruments under the Commonwealth Act.

13—Amendment of section 100—Adoption of principles affecting determination of remuneration and working conditions

Section 100 currently makes reference to a declaration of the Commonwealth Commission. The section as amended by this clause will refer instead to a determination of Fair Work Australia.

14—Amendment of section 119—Eligibility for registration

15—Amendment of section 122—Registration of associations

16—Amendment of section 125—Alteration of rules of registered association

17—Amendment of section 131—Eligibility for registration

18—Amendment of section 135—De-registration

19—Amendment of section 136—Federation

The amendments made by these clauses remove references to the Commonwealth Act (which is the Fair Work Act 2009) and substitute references to the Commonwealth (Registered Organisations) Act (that is, the Fair Work (Registered Associations) Act 2009 of the Commonwealth).

20—Amendment of section 140—Powers of officials of employee associations

Subsection (5) of section 140 provides that, despite other provisions of the section providing for entry into workplaces in certain circumstances by officials of employee associations, an official may not enter a workplace if the employer is a member of the Christian fellowship known as Brethren and certain other conditions are satisfied. This clause repeals that subsection.

21—Amendment of section 141—Register of members and officers of associations

The amendment made by this clause removes a reference to the Commonwealth Act (which is the Fair Work ACT 2009) and substitutes a reference to the Commonwealth (Registered Organisations) Act (that is, the Fair Work (Registered Associations) Act 2009 of the Commonwealth).

22—Amendment of section 167—Extension of time

This clause replaces a reference to the Commonwealth Commission with a reference to Fair Work Australia.

23—Amendment of section 185—Costs

Section 185 provides that the Industrial Court of South Australia may award costs in proceedings based in a monetary claim on an appeal. The section as amended by this clause will further provide that an award of costs on an appeal need not follow the event. Further, in making a determination in relation to costs on an appeal, the Court may take into account any matter it thinks fit but is required to take into account the following:

the conduct of the parties;

the relative positions and circumstances of the appellant and the respondent (and of the successful and unsuccessful parties);

the nature of the question in dispute and the impact of the proceedings.

24—Amendment of section 210—Powers on appeal

The amendment made by this clause to section 210 relates to the awarding of costs on appeal and has substantially the same effect as the amendment made by clause 23 to section 185, except that section 210 is concerned with appeals to the Full Commission whereas section 185 deals with appeals to the Court.

25—Amendment of section 215—Co-operation between industrial authorities

26—Amendment of section 216—Reference of industrial matters to Fair Work Australia

These clauses amend various references to, or related to, the Commonwealth Commission by substituting appropriate references to Fair Work Australia.

27—Repeal of section 222

This clause repeals section 222, which provides for certain provisions of the Commonwealth Workplace Relations Act 1996 relating to secondary boycotts to apply (subject to certain modifications) as laws of South Australia.

28—Amendment of section 237—Regulations

Section 237 as amended by this clause will provide for the making of regulations contemplated by or necessary or expedient for the purposes of the Act. The section will provide that the regulations may make provision for any matter relevant to the interaction between the Act and a Commonwealth Act, including matters of a saving or transitional nature.

29—Amendment of Schedule 1—Transitional provisions

This clause inserts a new transitional provision.

18—National industrial relations system

Clause 18 provides that the Fair Work Act 1994 will operate in relation to a matter arising under that Act before the designated day, as well as a matter arising directly or indirectly out of such a matter, if the matter is not dealt with under the Commonwealth Fair Work Act 2009 on or after the designated day. The designated day is the day on which a Commonwealth Act in the terms, or substantially in the terms, set out in the tabled text under the Fair Work (Commonwealth Powers) Act 2009 comes into operation.

30—Insertion of Schedules 2 and 2A

This clause inserts two new Schedules into the Fair Work Act 1994.

Schedule 2—Continuity of industrial arrangements—government business enterprises

This Schedule provides for a scheme under which federal industrial instruments that relate to the employees of certain government business enterprises (GBE) can be "converted" to awards or enterprise agreements (as may be appropriate) under the State Act. The scheme is similar to the scheme under the transitional provisions enacted in 2006 under the Statutes Amendment (Public Sector Employment) Act 2006.

Schedule 2A—Continuity of industrial arrangements—local government sector

This Schedule relates to the local government sector. Clause 2 will ensure the operation of various enterprise or industrial agreements. Other clauses will facilitate the transition of federal industrial agreements relating to the local government sector to the State scheme. This is connected with the exclusion of this sector from the Commonwealth Fair Work Act under the new scheme that is to be put in place.

Part 5—Amendment of Housing and Urban Development (Administrative Arrangements) Act 1995

31—Amendment of section 17—Staff

This clause amends section 17 of the Housing and Urban Development (Administrative Arrangements) Act 1995 so that the section includes a declaration that HomeStart Finance is not to be a national system employer for the purposes of the Commonwealth Fair Work Act 2009.

Part 6—Amendment of Local Government Act 1999

32—Insertion of section 302A

Under new section 302A of the Local Government Act 1999, inserted by this clause, the following local government sector employers are to be declared not to be national system employers for the purposes of the Commonwealth Fair Work Act 2009:

a council;

a subsidiary or a regional subsidiary;

any other entity established under the Local Government Act 1999;

the Local Government Association;

any other entity established by a body referred to above.

Part 7—Amendment of Long Service Leave Act 1987

33—Amendment of section 3—Interpretation

34—Amendment of section 13—Failure to grant leave

35—Amendment of section 16—Act not to apply to certain workers

The amendments made by these clauses correct obsolete references to State and Commonwealth legislation in the Long Service Leave Act 1987.

Part 8—Amendment of Motor Accident Commission Act 1992

36—Amendment of section 29A—Staff

Under section 29A of the Motor Accident Commission Act 1992 as amended by this clause, the Motor Accident Commission will be declared not to be a national system employer for the purposes of the Commonwealth Fair Work Act 2009.

Part 9—Amendment of Occupational Health, Safety and Welfare Act 1986

37—Amendment of section 4—Interpretation

This clause amends the definition of registered association in the Occupational Health, Safety and Welfare Act 1986 for the purpose of removing a reference to associations registered under Commonwealth legislation that is no longer in operation and substituting a reference to organisations registered under the Fair Work (Registered Associations) Act 2009 of the Commonwealth.

Part 10—Amendment of Petroleum (Submerged Lands) Act 1982

38—Amendment of Schedule 7—Occupational health and safety

This clause amends the interpretation provision for Schedule 7 of the Petroleum (Submerged Lands) Act 1982 by substituting new definitions of registered organisation and reviewing authority. The existing definitions include obsolete references.

Part 11—Amendment of Public Corporations Act 1993

39—Insertion of section 38B

Under new section 38B of the Public Corporations Act 1993, the following entities will be declared not to be national system employers for the purposes of the Commonwealth Fair Work Act 2009:

the Adelaide Convention Centre Corporation;

the Adelaide Entertainments Corporation;

the Land Management Corporation.

Part 12—Amendment of Rail Safety Act 2007

40—Amendment of section 4—Interpretation

The definition of registered association in section 4 of the Rail Safety Act currently refers to associations registered under the Industrial Relations Act 1988 of the Commonwealth. This clause amends that definition by substituting a reference to an organisation registered under the Commonwealth Fair Work (Registered Organisations) Act 2009.

Part 13—Amendment of South Australian Forestry Corporation Act 2000

41—Amendment of section 15—Staff

Under section 15 of the South Australian Forestry Corporation Act 2000 as amended by this clause, the South Australian Forestry Corporation will be declared not to be a national system employer for the purposes of the Commonwealth Fair Work Act 2009.

Part 14—Amendment of Stamp Duties Act 1923

42—Amendment of Schedule 2—Stamp duties and exemptions

This clause amends Schedule 2 of the Stamp Duties Act 1923 by removing references to the Workplace Relations Act 1996 and substituting references to the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.

Part 15—Amendment of State Lotteries Act 1966

43—Amendment of section 13—Powers and functions of Commission

Under section 13 of the State Lotteries Act 1966 as amended by this clause, the Lotteries Commission of South Australia will be declared not to be a national system employer for the purposes of the Commonwealth Fair Work Act 2009.

Part 16—Amendment of Superannuation Funds Management Corporation of South Australia Act 1995

44—Amendment of section 31—Staff of Corporation

Under section 31 of the Superannuation Funds Management Corporation of South Australia Act 1995 as amended by this clause, the Superannuation Funds Management Corporation of South Australia will be declared not to be a national system employer for the purposes of the Commonwealth Fair Work Act 2009.

Part 17—Amendment of West Beach Recreation Reserve Act 1987

45—Amendment of section 15—Officers and employees

Under section 15 of the West Beach Recreation Reserve Act 1987 as amended by this clause, the West Beach Trust will be declared not to be a national system employer for the purposes of the Commonwealth Fair Work Act 2009.

Part 18—Amendment of WorkCover Corporation Act 1994

46—Insertion of section 22A

This clause inserts a new section into the WorkCover Corporation Act 1994. Under section 22A, the WorkCover Corporation will be declared not to be a national system employer for the purposes of the Commonwealth Fair Work Act 2009.

Part 19—Amendment of Workers Rehabilitation and Compensation Act 1986

47—Amendment of section 3—Interpretation

The definition of industrial association in the Workers Rehabilitation and Compensation Act 1986 is amended by this clause to substitute a reference to organisations registered under the Commonwealth Fair Work (Registered Organisations) Act 2009 for a reference to associations registered under the Industrial Relations Act 1988.

Schedule 1—Transitional provisions

1—Transitional provisions

The transitional provisions deal with any remaining references to the Australian Industrial Relations Commission or references in respect of organisations registered under the Workplace Relations Act 1996 of the Commonwealth by providing that—

a reference in an Act or statutory instrument to the Australian Industrial Relations Commission will be taken to be a reference to Fair Work Australia; and

a reference in an Act or statutory instrument to the Workplace Relations Act 1996 will, to the extent that it that relates to organisations registered under that Act, be construed as a reference to the Fair Work (Registered Organisations) Act 2009.

Debate adjourned on motion of Hon. S.G. Wade.

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