Fair Work Act. Australia
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, this Act;
(e) the administration of this Act;
(f) the application of this Act;
(g) matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act;
but does not include any excluded subject matter.
referring State: see section 30L.
State public sector employee, of a State, means:
(a) an employee of a State public sector employer of the State; or
(b) any other employee in the State of a kind specified in the regulations;
and includes a law enforcement officer of the State.
State public sector employer, of a State, means an employer that is:
(a) the State, the Governor of the State or a Minister of the State; or
(b) a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or
(c) a body corporate in which the State has a controlling interest; or
(d) a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or
(e) any other employer in the State of a kind specified in the regulations;
and includes a holder of an office of the State whom the State’s referral law provides is to be taken, for the purposes of this Act, to be an employer of law enforcement officers of the State.
transition reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(5).
(2) Words or phrases in the definition of excluded subject matter in subsection (1), or in the definition of referred subject matters in subsection (1), that are defined in this Act (other than in this Division) have, in that definition, the meanings set out in this Act as in force on 1 July 2009.
30L Meaning of referring State
Reference of matters by State Parliament to Commonwealth Parliament
(1) A State is a referring State if the Parliament of the State has, after 1 July 2009 but on or before 1 January 2010, referred the matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:
(a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and
(b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State.
This subsection has effect subject to subsection (6).
(2) A State is a referring State even if:
(a) the State’s referral law provides that the reference to the Parliament of the Commonwealth of any or all of the matters covered by subsections (3), (4) and (5) is to terminate in particular circumstances; or
(b) the State’s referral law provides that particular matters, or all matters, relating to State public sector employees, or State public sector employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5); or
(c) the State’s referral law provides that particular matters, or all matters, relating to local government employees, or local government employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5).
Reference covering referred provisions
(3) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by amending this Act, as originally enacted, and as subsequently amended by amendments enacted at any time before the State’s referral law commenced, to include the referred provisions.
Reference covering amendments
(4) This subsection covers the referred subject matters to the extent of making laws with respect to those matters by making express amendments of this Act.
Reference covering transitional matters
(5) This subsection covers making laws with respect to the transition from the regime provided for by:
(a) the Workplace Relations Act 1996 (as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); or
(b) a law of a State relating to workplace relations or industrial relations;
to the regime provided for by this Act.
Effect of termination of reference
(6) Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs:
(a) the State’s initial reference terminates;
(b) the State’s amendment reference terminates, and neither of subsections (7) and (8) apply to the termination;
(c) the State’s transition reference terminates.
(7) A State does not cease to be a referring State because of the termination of its amendment reference if:
(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and
(b) the day fixed is 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; and
(c) that State’s amendment reference, and the amendment reference of every other referring State (other than a referring State that has terminated its amendment reference in the circumstances referred to in subsection (8)), terminate on the same day.
(8) A State does not cease to be a referring State because of the termination of its amendment reference if:
(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and
(b) the day fixed is 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; and
(c) the Governor of that State, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor, this Act:
(i) is proposed to be amended (by an amendment introduced into the Parliament by a Minister); or
(ii) has been amended;
in a manner that is inconsistent with one or more of the fundamental workplace relations principles.
(9) The following are the fundamental workplace