Industrial Relations Amendment Bill 2006

Industrial Relations Amendment
Bill 2006

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
The Public Sector Employment Legislation Amendment Bill 2006 is cognate with this
Bill.

Overview of Bill
The object of this Bill is to amend the Industrial Relations Act 1996 (the principal
Act):
(a) to enable the Industrial Relations Commission (the Commission) to resolve
certain disputes in circumstances where the parties to the dispute have agreed
in writing for the Commission to do so, and
(b) to remove the requirement that a Full Bench of the Commission (other than in
Court Session) be constituted with at least one of its members being a
Commissioner, and
(c) to confirm that the power of the President of the Commission to direct the
business of the Commission includes the power to make a direction in relation
to particular proceedings or classes of proceedings, and
(d) to provide that certain awards made by the Commission to give effect to an
agreement of the parties to such awards are to have effect as enterprise
agreements under the principal Act.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on the date of assent
to the proposed Act.
Clause 3 is a formal provision that gives effect to the amendments to the principal
Act set out in Schedule 1.
Schedule 1 Amendments
Schedule 1 [1] inserts section 146A in the principal Act. The new section will enable
the Commission to resolve disputes where the parties to the dispute have agreed in
writing (a referral agreement) for the Commission to do so if the dispute is:
(a) a dispute about any conditions of employment or industrial matter between an
industrial organisation of employees and one or more employers (or industrial
organisations of employers), or
(b) a dispute of the kind referred to in section 332 (2) or (3) of the principal Act
or a dispute about a claim for compensation of the kind referred to in section
346 of that Act between:
(i) an industrial organisation of employees and one or more employers (or
industrial organisations of employers), or
(ii) an association of contract carriers and one or more principal contractors
(or associations of employing contractors), or
(iii) an association of contract drivers and one or more bailors (or
associations of employing contractors).
The functions of the Commission in respect of any such dispute referred to the
Commission by a referral agreement will be limited to the functions specified in the
agreement. Also, the enforceability of any order, determination or other decision
made by the Commission in exercise of such functions will be entirely dependant on
whether the referral agreement itself makes it legally binding on the parties. Finally,
no appeal will lie against a decision of the Commission under Part 7 of Chapter 4 of
the principal Act unless the referral agreement provides that the decision may be
appealed.
Schedule 1 [2] amends section 156 of the principal Act to remove the requirement
that a Full Bench of the Commission (other than in Court Session) be constituted with
at least one of its members being a Commissioner. Under the amended section, a
Commissioner may (but need not) be included in a Full Bench.
Schedule 1 [3] amends section 159 of the principal Act to confirm that the power of
the President of the Commission to direct the business of the Commission conferred
by that section includes the power to make a direction in relation to particular
proceedings or classes of proceedings.
Schedule 1 [4] amends clause 2 of Schedule 4 to the principal Act to enable the
Governor to make regulations of a savings or transitional nature consequent on the
enactment of the proposed Act.
Schedule 1 [5] inserts a new Part 8A in Schedule 4 to the principal Act, which
contains provisions of a savings or transitional nature.
The new Part will also contain a provision that treats certain awards made by the
Commission with the agreement of the parties as enterprise agreements.
The provision will operate by reference to the beginning of the day (the relevant
time) that occurs immediately before the day on which Part 2 of Schedule 4
(Transitional and other provisions) to the Workplace Relations Amendment (Work
Choices) Act 2005 of the Commonwealth commences.
The provision will apply only to an award in force immediately before the relevant
time that has the following features:
(a) the award applies to a group of employees that is constituted wholly or partly
by employees of any constitutional corporation and in respect of which an
enterprise agreement could have been made (as referred to in section 30 of the
principal Act),
(b) the parties to the award are limited to the kinds of persons or bodies that could
have been parties to an enterprise agreement (as referred to in section 31 of the
principal Act) in respect of those employees,
(c) the award binds only the parties to the award and the employees for whom the
award was made,
(d) the award was made by the Commission so as to give effect to an agreement
of the parties to the award.
However, the provision will create an enterprise agreement that supersedes the award
only to the extent that the award applies to employees of a constitutional corporation.
The award will continue to apply to any other kinds of employees (including
employees that are employed by the Government in the service of the Crown).
For the purposes of the provision, a constitutional corporation is defined to mean a
corporation to which paragraph 51 (xx) of the Commonwealth Constitution applies.
That paragraph of the Commonwealth Constitution applies to foreign corporations,
and trading or financial corporations formed within the limits of the Commonwealth.
Examples of awards that give effect to an agreement of the parties include awards
made by consent of the parties and awards that substantially give effect to conditions
of employment agreed to, or jointly proposed to the Commission, by the parties.
An enterprise agreement that results from the operation of the provision will have the
same conditions of employment, bind the same parties and have the same nominal
term as the award. The enterprise agreement will be able to be varied and terminated
in the same way as any other enterprise agreement.
The new Part also makes provision for a party to an award to apply to the
Commission for a ruling as to whether the provision described above operates to treat
the party’s award as an enterprise agreement.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.