Industrial Relations (Commonwealth Powers) Act 2009 (NSW)

Industrial Relations (Commonwealth Powers) Act 2009 No 115

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.

1 Name of Act This Act is the Industrial Relations (Commonwealth Powers) Act 2009.

2 Commencement This Act commences on a day to be appointed by proclamation.

3 Definitions (1) In this Act: amendment reference means the reference under section 5 (1) (b). Commonwealth Fair Work Act means the Fair Work Act 2009 of the Commonwealth (as amended from time to time). excluded subject matter means any of the following matters: (a) a matter dealt with in the Anti-Discrimination Act 1977, (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 the 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in a preceding paragraph of this definition, except to the extent that the Fair Work Act 2009 of the Commonwealth, as originally enacted, deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under the Commonwealth Fair Work Act so to deal with the matter. 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. fundamental workplace relations principles—see section 4. initial reference means the reference under section 5 (1) (a). initial referred provisions means the scheduled text, to the extent to which that text deals with matters that are included in the legislative powers of the Parliament of the State. law enforcement officer means: (a) a member of the NSW Police Force, or (b) a police cadet or special constable. local government sector employee means an employee of any of the following: (a) a local council or county council under the Local Government Act 1993, (b) a wholly-owned subsidiary of, or a body wholly controlled by, any such local or county council, (c) the Local Government Association of NSW or the Shires Association of NSW. reference means: (a) the initial reference, or (b) the amendment reference, or (c) the transition reference. 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, the Commonwealth Fair Work Act, (e) the administration of the Commonwealth Fair Work Act, (f) the application of the Commonwealth Fair Work Act, (g) matters incidental or ancillary to the operation of the Commonwealth Fair Work Act or of instruments made or given effect under the Commonwealth Fair Work Act, but does not include any excluded subject matter. referred transition matters means the matters of the making of laws with respect to the transition from the regime provided for by: (a) the Workplace Relations Act 1996 of the Commonwealth (as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth), or (b) a law of this State relating to workplace relations or industrial relations, to the regime provided for by the Commonwealth Fair Work Act. scheduled text means the text set out in Schedule 1. State public sector employee means the following: (a) a member of the Government Service of New South Wales, the NSW Health Service, the Teaching Service of New South Wales or any other service of the Crown in right of the State (including an employee of any New South Wales government agency), (b) an employee of a body established for a public purpose that is subject to control or direction by a Minister of the State or in which the State has a controlling interest, but does not include an employee of the following: (c) a State owned corporation or a subsidiary of a State owned corporation, (d) a person or body declared by or under an Act not to be or not to represent the Crown in right of the State or not to be a New South Wales government agency. transition reference means the reference under section 5 (1) (c). (2) Words or phrases in the definition of excluded subject matter or the definition of referred subject matters that are defined in the Commonwealth Fair Work Act (other than in Division 2B of Part 1-3 of that Act) have the meanings set out in that Act as in force on 1 July 2009. (3) Section 9A of the Industrial Relations Act 1996 makes provision for the declaration of employers that are not national system employers under the Commonwealth Fair Work Act.