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Workplace Relations Amendment _Transmission of Business_ Act 2004

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					Workplace Relations Amendment
(Transmission of Business) Act 2004

No. 10, 2004




An Act to amend the Workplace Relations Act 1996,
and for related purposes




Note: An electronic version of this Act is available in SCALEplus
(http://scaleplus.law.gov.au/html/comact/browse/TOCN.htm)
Contents
                 1        Short title .......................................................................................... 1
                 2        Commencement ................................................................................ 2
                 3        Schedule(s) ....................................................................................... 2

Schedule 1—Transmission of business                                                                                             3

          Workplace Relations Act 1996                                                                                          3




i   Workplace Relations Amendment (Transmission of Business) Act 2004                                 No. 10, 2004
Workplace Relations Amendment
(Transmission of Business) Act 2004

No. 10, 2004




An Act to amend the Workplace Relations Act 1996,
and for related purposes
[Assented to 11 March 2004]

The Parliament of Australia enacts:
1 Short title

             This Act may be cited as the Workplace Relations Amendment
             (Transmission of Business) Act 2004.




   Workplace Relations Amendment (Transmission of Business) Act 2004   No. 10, 2004   1
2 Commencement

           (1) Each provision of this Act specified in column 1 of the table
               commences, or is taken to have commenced, on the day or at the
               time specified in column 2 of the table.

    Commencement information
    Column 1               Column 2                                            Column 3
    Provision(s)           Commencement                                        Date/Details
    1. Sections 1 to 3     The day on which this Act receives the              11 March 2004
    and anything in        Royal Assent
    this Act not
    elsewhere covered
    by this table
    2. Schedule 1          A single day to be fixed by Proclamation,
                           subject to subsection (3)
                   Note:     This table relates only to the provisions of this Act as originally
                             passed by the Parliament and assented to. It will not be expanded to
                             deal with provisions inserted in this Act after assent.

           (2) Column 3 of the table is for additional information that is not part
               of this Act. This information may be included in any published
               version of this Act.
           (3) If a provision covered by item 2 of the table does not commence
               within the period of 6 months beginning on the day on which this
               Act receives the Royal Assent, it commences on the first day after
               the end of that period.

3 Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or
                   repealed as set out in the applicable items in the Schedule
                   concerned, and any other item in a Schedule to this Act has effect
                   according to its terms.




2         Workplace Relations Amendment (Transmission of Business) Act 2004          No. 10, 2004
                                                    Transmission of business Schedule 1




Schedule 1—Transmission of business

Workplace Relations Act 1996

1 Paragraph 45(3)(a)
        Repeal the paragraph, substitute:
             (a) in the case of an appeal under paragraph (1)(b) that is not
                  covered by paragraph (aa) or (ab) of this subsection—by an
                  organisation or person bound by the award or order;

2 After paragraph 45(3)(aa)
        Insert:
             (ab) in the case of an appeal under paragraph (1)(b) against an
                   order that was made under subsection 170MBA(2)—by the
                   organisation or person who applied for the order or any
                   organisation or person who made submissions to the
                   Commission on whether the order should be made;
              (ac) in the case of an appeal under paragraph (1)(c) against a
                   decision not to make an order under subsection
                   170MBA(2)—by the organisation or person who applied for
                   the order;

3 Paragraph 45(3)(ba)
        Omit “(eea)”, substitute “(eaa)”.

4 At the end of subsection 45(3)
        Add:
             Note:      Because of the reference in subsection 494(3) to “the related
                        provisions of this Act”, the operation of paragraphs (3)(ab) and (ac)
                        extends to orders, and decisions not to make orders, under subsection
                        170MBA(2) as applied and modified by section 494.

5 Paragraph 170LX(4)(b)
        Omit “section 170MB (which deals”, substitute “sections 170MB and
        170MBA (which deal”.




 Workplace Relations Amendment (Transmission of Business) Act 2004      No. 10, 2004            3
Schedule 1 Transmission of business




6 Paragraph 170MB(1)(d)
        Before “the new employer”, insert “subject to any order of the
        Commission made under subsection 170MBA(2),”.

7 Paragraph 170MB(1)(f)
        Before “a reference”, insert “subject to any order of the Commission
        made under subsection 170MBA(2),”.

8 Paragraph 170MB(2)(d)
        Before “the new employer”, insert “subject to any order of the
        Commission made under subsection 170MBA(2),”.

9 Paragraph 170MB(2)(f)
        Before “a reference”, insert “subject to any order of the Commission
        made under subsection 170MBA(2),”.

10 At the end of Division 6 of Part VIB
        Add:

170MBA Commission may make order about extent to which
        successor employer bound by certified agreement

             Application and terminology
        (1) If:
              (a) an employer is bound by a certified agreement; and
              (b) another employer becomes at a later time, or is likely to
                  become at a later time, the successor, transmittee or assignee
                  (whether immediate or not) of the whole or a part of the
                  business of the employer referred to in paragraph (a);
            then, for the purposes of this section:
              (c) the outgoing employer is the employer referred to in
                  paragraph (a); and
              (d) the incoming employer is the employer first referred to in
                  paragraph (b); and
              (e) the business concerned is the whole or that part of the
                  business; and




4      Workplace Relations Amendment (Transmission of Business) Act 2004   No. 10, 2004
                                                  Transmission of business Schedule 1




               (f) the transfer time is the time at which the incoming employer
                   becomes the successor, transmittee or assignee of the
                   business concerned.

            Commission may make order that certified agreement does not
            bind incoming employer
        (2) The Commission may make an order that the incoming employer:
             (a) is not, or will not be, bound by the certified agreement; or
             (b) is, or will be, bound by the certified agreement, but only to
                 the extent specified in the order.
            The order must specify the day from which the order takes effect.
            That day must not be before the day on which the order is made or
            before the transfer time.

      (2A) The Commission shall not make an order under subsection (2)
           unless:
             (a) the parties to the certified agreement and the incoming
                  employer agree to the proposed order; or
             (b) the Commission is satisfied that the majority of employees
                  who are covered by the certified agreement and who would
                  be affected by the proposed order agree to the proposed
                  order; or
             (c) the Commission is satisfied that either:
                    (i) the proposed order does not disadvantage employees in
                        relation to their terms and conditions of employment; or
                   (ii) the proposed order is part of a reasonable strategy to
                        deal with a short-term crisis in, and to assist in the
                        revival of, the transmitted business.
           In this subsection, a proposed order disadvantages an employee or
           employees in relation to their terms and conditions of employment,
           if, on balance, its approval would result in a reduction in the
           overall terms and conditions of employment of that employee or
           those employees.
      (2B) In making an order the Commission must take into account:
             (a) the proposed new terms and conditions that the employee
                 would be subject to and the effect of any loss of conditions;
                 and
             (b) the length of time remaining on the certified agreement.



Workplace Relations Amendment (Transmission of Business) Act 2004   No. 10, 2004   5
Schedule 1 Transmission of business




        (3) Without limiting paragraph (2)(b), the Commission may make an
            order under that paragraph that the incoming employer is, or will
            be, bound by the certified agreement but only for the period
            specified in the order.

             When application for order can be made
        (4) An application for an order under subsection (2) may be made
            before, at or after the transfer time.

             Who may apply for order
        (5) Before the transfer time, an application for an order under
            subsection (2) may be made only by the outgoing employer.
      (5A) In determining an application made by an outgoing employer under
           subsection (5), the Commission must take into account the terms
           and conditions of employment that apply, or will apply, to
           employees of the incoming employer.
        (6) At or after the transfer time, an application for an order under
            subsection (2) may be made only by:
              (a) the incoming employer; or
              (b) an employee of the incoming employer whose employment is
                  subject to the certified agreement; or
              (c) an organisation that:
                    (i) is bound by the certified agreement; and
                   (ii) is entitled to represent the industrial interests of
                        employees referred to in paragraph (b) in relation to
                        work that is subject to the agreement.
            Paragraph (c) has effect subject to subsection (7) (which makes
            special provision for organisations bound by section 170LK
            agreements).
        (7) An organisation that is bound by a certified agreement made in
            accordance with section 170LK may only apply under
            paragraph (6)(c) for an order under subsection (2) if the
            organisation has at least one member:
              (a) who is an employee of the incoming employer and whose
                  employment is subject to the agreement; and




6      Workplace Relations Amendment (Transmission of Business) Act 2004   No. 10, 2004
                                                  Transmission of business Schedule 1




              (b) whose industrial interests the organisation is entitled to
                  represent in relation to work that is subject to the agreement;
                  and
              (c) who requested the organisation to apply for an order under
                  that subsection.

            Applicant to give notice of application
        (8) The applicant for an order under subsection (2) must take
            reasonable steps to give written notice of the application to the
            persons who, and organisations that, may make submissions in
            relation to the application (see subsections (9) to (13)).

            Submissions in relation to application for order
        (9) Before deciding whether to make an order under subsection (2) in
            relation to the certified agreement, the Commission must give the
            following an opportunity to make submissions:
              (a) the applicant;
              (b) before the transfer time—the persons and organisations
                   covered by subsection (10);
              (c) at and after the transfer time—the persons and organisations
                   covered by subsection (12).

            Submissions—before transfer time
      (10) For the purposes of paragraph (9)(b), this subsection covers:
            (a) an employee of the outgoing employer:
                   (i) whose employment is subject to the certified agreement;
                       and
                  (ii) who is employed in the business concerned; and
            (b) the incoming employer; and
            (c) an employee of the incoming employer whose employment
                 may become subject to the certified agreement at or after the
                 transfer time if the order is not made; and
            (d) an organisation that:
                   (i) is bound by the certified agreement; and
                  (ii) is entitled to represent the industrial interests of
                       employees referred to in paragraph (a) or (c) in relation
                       to work that is subject to the agreement.



Workplace Relations Amendment (Transmission of Business) Act 2004   No. 10, 2004    7
Schedule 1 Transmission of business




             Paragraph (d) has effect subject to subsection (11) (which makes
             special provision for organisations bound by section 170LK
             agreements).
       (11) An organisation that is bound by a certified agreement made in
            accordance with section 170LK is covered by subsection (10) only
            if the organisation has at least one member:
              (a) who is an employee referred to in paragraph (10)(a) or (c);
                   and
              (b) whose industrial interests the organisation is entitled to
                   represent in relation to work that is subject to the agreement;
                   and
              (c) who requested the organisation to make submissions in
                   relation to the application.

             Submissions—at and after transfer time
       (12) For the purposes of paragraph (9)(c), this subsection covers:
              (a) the incoming employer; and
              (b) an employee of the incoming employer whose employment is
                  subject to the certified agreement; and
              (c) an organisation that:
                    (i) is bound by the certified agreement; and
                   (ii) is entitled to represent the industrial interests of
                        employees referred to in paragraph (b) in relation to
                        work that is subject to the certified agreement.
            Paragraph (c) has effect subject to subsection (13) (which makes
            special provision for organisations bound by section 170LK
            agreements).
       (13) An organisation that is bound by a certified agreement made in
            accordance with section 170LK is covered by subsection (12) only
            if the organisation has at least one member:
              (a) who is an employee referred to in paragraph (12)(b); and
              (b) whose industrial interests the organisation is entitled to
                   represent in relation to work that is subject to the agreement;
                   and
              (c) who requested the organisation to make submissions in
                   relation to the application.




8      Workplace Relations Amendment (Transmission of Business) Act 2004   No. 10, 2004
                                                  Transmission of business Schedule 1




11 Subsection 494(3)
       Repeal the subsection, substitute:
        (3) Division 2 of Part VIB and related provisions of this Act also have
            effect as if subsection 170MB(2) were omitted and the following
            provision substituted:
        (2) If:
              (a) an employer is bound by a certified agreement; and
              (b) the application for certification of the agreement stated that it
                   was made under Division 2 or under Division 2 as it operates
                   because of section 494; and
              (c) at a later time, a new employer that is a constitutional
                   corporation, or the Commonwealth, or an employer (within
                   the meaning of Part XV) in Victoria, becomes the successor,
                   transmittee or assignee (whether immediate or not) of the
                   whole or a part of the business concerned;
            then, from the later time:
              (d) subject to any order of the Commission made under
                   subsection 170MBA(2), the new employer is bound by the
                   certified agreement, to the extent that it relates:
                     (i) to the whole or the part of the business; and
                    (ii) in the case of a new employer (within the meaning of
                         Part XV) in Victoria—to employees (within the
                         meaning of Part XV) in Victoria; and
              (e) the previous employer ceases to be bound by the certified
                   agreement, to the extent that it relates:
                     (i) to the whole or the part of the business; and
                    (ii) in the case of a new employer (within the meaning of
                         Part XV) in Victoria—to employees (within the
                         meaning of Part XV) in Victoria; and
               (f) subject to any order of the Commission made under
                   subsection 170MBA(2), a reference in this Part to the
                   employer includes a reference to the new employer, and
                   ceases to refer to the previous employer, to the extent that the
                   context relates:
                     (i) to the whole or the part of the business; and




Workplace Relations Amendment (Transmission of Business) Act 2004   No. 10, 2004   9
Schedule 1 Transmission of business




                     (ii) in the case of a new employer (within the meaning of
                          Part XV) in Victoria—to employees (within the
                          meaning of Part XV) in Victoria.
           (4) Division 2 of Part VIB and related provisions of this Act also have
               effect as if the following provisions were added at the end of
               section 170MBA:

       (14) In applying this section to an incoming employer who is an
            employer (within the meaning of Part XV) in Victoria, references
            in this section to an employee are taken to be references to an
            employee who is an employee (within the meaning of Part XV) in
            Victoria.
       (15) A reference in section 170MB or this section to a provision of one
            of those sections includes a reference to that provision as applied
            under subsection 494(3).



[Minister’s second reading speech made in—
House of Representatives on 21 March 2002
Senate on 26 June 2003]




 (91/02)
10      Workplace Relations Amendment (Transmission of Business) Act 2004   No. 10, 2004

				
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