354Coverage by particular instruments

354 Coverage by particular instruments

Discrimination against an employer

(1) A person must not discriminate against an employer because:

(a) employees of the employer are covered, or not covered, by:

(i) provisions of the National Employment Standards; or

(ii) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or

(iii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation; or

(b) it is proposed that employees of the employer be covered, or not be covered, by:

(i) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or

(ii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation.

Note: This subsection is a civil remedy provision (see Part 4‑1).

Exceptions

(2) Subsection (1) does not apply to protected industrial action.

(2A) Paragraph (1)(a) does not apply if the discrimination:

(a) is because employees of the employer:

(i) are not covered by an enterprise agreement or a kind of enterprise agreement; or

(ii) are covered by an enterprise agreement that does not cover an employee organisation; and

(b) is by:

(i) a Commonwealth entity; or

(ii) a person acting as required or authorised under a contractual arrangement with a Commonwealth entity; or

(iii) a person acting as required or authorised under a contractual arrangement in a Commonwealth contractual arrangement chain; and

(c) is for the purposes of:

(i) making or administering a grant of financial assistance; or

(ii) procuring or providing goods or services; or

(iii) entering into, or fulfilling the terms and conditions of, a contractual arrangement of a type determined under subsection (2C).

Note: Commonwealth entity is defined in section 335A.

(2B) Paragraph (1)(b) does not apply if the discrimination:

(a) is because it is proposed that employees of the employer:

(i) not be covered by an enterprise agreement or a kind of enterprise agreement; or

(ii) be covered by an enterprise agreement that does not cover an employee organisation; and

(b) is by:

(i) a Commonwealth entity; or

(ii) a person acting as required or authorised under a contractual arrangement with a Commonwealth entity; or