Industrial Relations (Commonwealth Powers) Act 2009 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 [Royal Assent 17 December 2009] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: 1. Short title This Act may be cited as the Industrial Relations (Commonwealth Powers) Act 2009 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – 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: (a) a matter dealt with in the Anti-Discrimination Act 1998 ; (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 the 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 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 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 any paragraph from paragraph (a) to paragraph (p) – except to the extent that the Fair Work Act 2009 of the Commonwealth, as originally enacted, deals with the matter (directly or indirectly) or requires or permits instruments made or given effect under the Commonwealth Fair Work Act so to deal with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 has the meaning it has in 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; public sector employee means a person employed by a public sector employer; public sector employer means – (a) a Minister; or (b) the Governor; or (c) the Crown; 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 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) 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 industrial relations – to the regime provided for by the Commonwealth Fair Work Act; scheduled text means the text set out in Schedule 1 ; 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 have the same meaning as in that Act. 4. Fundamental workplace relations principles The following are the fundamental workplace relations principles under this Act: (a) that the Commonwealth Fair Work 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 the Commonwealth Fair Work Act, the following: (i) an independent tribunal system; (ii) an independent authority able to assist employers and employees within a national workplace relations system. 5. Reference of matters (1) Subject to the other provisions of this Act, the following matters are referred to the Parliament of the Commonwealth: (a) the matters to which the initial referred provisions relate, but only to the extent of the making of laws with respect to those matters by including the initial referred provisions in the Commonwealth Fair Work Act, as originally enacted, and as subsequently amended by amendments enacted at any time before this Act commences, in the terms, or substantially in the terms, set out in the scheduled text; (b) the referred subject matters, but only to the extent of making laws with respect to any such matter by making express amendments of the Commonwealth Fair Work Act; (c) the referred transition matters. (2) The reference of a matter under subsection (1) has effect only – (a) if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth); and (b) if and to the extent that the matter is included in the legislative powers of the Parliament of the State. (3) The operation of each paragraph of subsection (1) is not affected by any other paragraph. (4) For the avoidance of doubt, it is the intention of the Parliament of the State that the Commonwealth Fair Work Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts whose operation is based on legislative powers that the Parliament of the Commonwealth has apart from under the references under subsection (1) . (5) Despite any other provision of this section, a reference under subsection (1) has effect for a period – (a) beginning when this section commences; and (b) ending at the end of the day fixed under section 7 as the day on which the reference is to terminate – but no longer. 6. Matters excluded from reference A matter referred by section 5 does not include – (a) matters relating to Ministers, Members of Parliament, judicial officers or members of tribunals established by or under a law of the State; or (b) matters relating to public sector employees, or officers within the meaning of the State Service Act 2000 ; or (c) matters relating to persons engaged as a member of the personal staff of a Minister or Member of Parliament; or (d) matters relating to officers appointed under section 3 , or sessional or temporary employees appointed under section 4 , of the Parliamentary Privilege Act 1898 ; or (e) matters relating to persons appointed under the Governor of Tasmania Act 1982 ; or (f) matters relating to – (i) police officers; or (ii) ancillary constables, or trainees, or junior constables, within the meaning of the Police Service Act 2003 . 7. Termination of reference (1) The Governor may, at any time, by proclamation published in the Gazette, fix a day as the day on which – (a) the references are to terminate; or (b) the amendment reference is to terminate; or (c) the transition reference is to terminate. (2) The Governor may, by proclamation published in the Gazette, revoke a proclamation published under subsection (1) , in which case the revoked proclamation is taken (for the purposes of section 5 ) never to have been published. (3) A revoking proclamation has effect only if published before the day fixed under subsection (1) . (4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection. (5) If the amendment reference and the transition reference have been terminated, the expression "the references" in subsection (1) refers only to the initial reference. 8. Effect of termination of amendment reference or transition reference before initial reference (1) If the amendment reference or the transition reference terminates before the initial reference, the termination of the amendment reference or transition reference does not affect – (a) laws that were made under that reference before that termination (whether or not they have come into operation before that termination); or (b) the continued operation in the State of the Commonwealth Fair Work Act as in operation immediately before that termination or as subsequently amended or affected by – (i) laws referred to in paragraph (a) that come into operation after that termination; or (ii) provisions referred to in section 5(4) . (2) Accordingly, the amendment reference or transition reference continues to have effect for the purposes of subsection (1) unless the initial reference is terminated. 9. Period for termination of references (1) Subject to subsection (2) , a day fixed by proclamation under section 7(1) must be 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. (2) If – (a) a proclamation under section 7(1) only provides for the termination of the amendment reference; and (b) the Governor, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor, the Commonwealth Fair Work Act – (i) is proposed to be amended (by an amendment introduced into the Parliament of the Commonwealth by a Commonwealth Minister); or (ii) has been amended – in a manner that is inconsistent with one or more of the fundamental workplace relations principles – the day fixed by the proclamation under section 7(1)(b) may be earlier than the day that applies under subsection (1) but must be 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. (3) If the Governor terminates the amendment reference and fixes a day under subsection (2) , the Minister must, as soon as practicable after the publication of the relevant proclamation, prepare a report on the matter and cause copies of that report to be laid before both Houses of Parliament. 10. Administration of Act Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 – (a) the administration of this Act is assigned to the Minister for Workplace Relations; and (b) the department responsible to the Minister for Workplace Relations in relation to the administration of this Act is the Department of Justice. SCHEDULE 1 - Scheduled Text Section 3