30ZReturn to work after adoption leave

30Z Return to work after adoption leave (1) This regulation applies when an employee returns to work after a period of Division 2 adoption leave. (2) The employer must employ the employee in the position that the employee held immediately before that period. (3) If that position no longer exists but the employee is qualified for, and can perform the duties of, other positions in the employer’s employment, the employer must employ the employee in whichever of those positions is nearest in status and remuneration to the position referred to in subregulation (2). 30ZA Employee’s duty if excessive leave granted or if periods of long adoption leave overlap (1) This regulation applies if the total of the following exceeds 52 weeks: (a) each period of adoption leave granted to the employee in respect of the placement of a child; (b) each period of annual leave or long service leave granted by the employer to the employee instead of, or in conjunction with, such adoption leave; (c) each period of adoption leave granted to the employee’s spouse in respect of the placement of the child; (d) each period of annual leave or long service leave, granted by the employer referred to in paragraph (c), to the employee’s spouse instead of, or in conjunction with, such adoption leave. (2) This regulation also applies if a period of leave of a kind referred to in paragraph (1) (a) (other than short adoption leave) or paragraph (1) (b) overlaps with a period of leave of a kind referred to in paragraph (1) (c) (other than short adoption leave) or paragraph (1) (d). (3) The employee must give to the employer notice in writing that: (a) if subregulation (1) applies — states that the total exceeds 52 weeks and specifies the amount of the excess; and (b) if subregulation (2) applies — specifies the period of the overlap; and (c) sets out how the employee suggests that the employer vary or cancel leave granted to the employee (except in so far as the employee has already taken the leave) so as to reduce or remove the excess or overlap; and (d) unless the variations and cancellations suggested under paragraph (c) will remove the excess or overlap — sets out the suggestions that the employee’s spouse has made or proposes to make under this paragraph. (4) The variations and cancellations suggested under this regulation must be such that, if they are all made, the excess or overlap will be removed. (5) An employer who receives a notice under subregulation (3) may vary or cancel periods of leave as suggested in the notice, or as agreed with the employee or the employee’s spouse, as the case may be. 30ZB Employer to warn replacement employee that employment is only temporary An employer must not employ a person: (a) to replace an employee while the employee is on adoption leave; or (b) to replace an employee who, while another employee is on adoption leave, is to perform the duties of the position held by the other employee; unless the employer has informed the person: (c) that the person’s employment is only temporary; and (d) about the rights of the employee who is on adoption leave. 30ZC Adoption leave and continuity of service A period of adoption leave does not break an employee’s continuity of service, but does not otherwise count as service except: (a) for the purpose of determining the employee’s entitlement to a later period of: (i) adoption leave; or (ii) other parental leave within the meaning of clause 2 of Schedule 14 to the Act; or (b) as expressly provided in a law of the Commonwealth or of a State or Territory, or in an award, order, agreement or instrument. 30ZD Effect of Division on other laws To avoid doubt, this Division has effect despite: (a) a law of a State or Territory; or (b) an award, order, agreement or instrument; but is not intended to exclude or limit the operation of such a law, or of an award, order, agreement or instrument, in so far as that law, award, order, agreement or instrument can operate concurrently with this Division. Part 5B Certified agreements 30ZE Prescribed conditions of employment specified in prescribed Commonwealth laws (Act, s. 170LZ) (1) For the purposes of subsection 170LZ (4) of the Act: (a) the following laws are prescribed: (i) all determinations made by an Agency Head under subsection 24 (1) of the Public Service Act 1999 (except a determination made under that subsection in accordance with regulations made for the purpose of subsection 72 (5) of that Act); (ii) all determinations made by a Secretary under subsection 24 (1) of the Parliamentary Service Act 1999; (iv) Determination No. 1 (Determination of Remuneration and Allowances and Terms and Conditions of Service of Deputy Commissioners of Police), made under sections 17 and 20 of the Australian Federal Police Act 1979, to the extent that it relates to an entitlement to an adjustment payment; (v) all determinations made under subsection 26E (1) or (1A) of the Australian Federal Police Act 1979; (vi) Determination No. 5 (Determination of Adjustment Payment for Members and Staff Members), made under section 30 of the Australian Federal Police Act 1979, to the extent that it relates to an entitlement to an adjustment payment; (vii) Determination No. 2 (Determination of Terms and Conditions of Service of the Senior Executive Service), made under section 30 of the Australian Federal Police Act 1979, to the extent that it relates to an entitlement to an adjustment payment; and (b) the following conditions of employment are prescribed: (i) each condition of employment specified in a determination mentioned in subparagraph (a) (i) (except a condition of employment specified in a determination made under subsection 24 (1) of the Public Service Act 1999 in accordance with regulations made for the purpose of subsection 72 (5) of that Act); (ii) each condition of employment specified in a determination mentioned in subparagraph (a) (ii); (iii) each condition of employment specified in the determinations mentioned in subparagraphs (a) (iv) to (vii) (inclusive). > adjustment payment has the meaning given by subsection 4 (1) of the Australian Federal Police Act 1979. > Agency Head has the meaning given by section 7 of the Public Service Act 1999. > Secretary has the meaning given by section 7 of the Parliamentary Service Act 1999. 30ZF Modification of certified agreement provisions applied as State law (1) For the purposes of paragraph (a) of the definition of complementary State law in subsection 170NI (2) of the Act, the modifications in Part 1 of Schedule 6 are required in relation to the application, as a law of a State, of the certified agreement provisions of the Act. (2) For the purposes of paragraph (b) of the definition of complementary State law in subsection 170NI (2) of the Act, the modifications in Part 2 of Schedule 6 are permitted in relation to the application, as a law of a State, of the certified agreement provisions of the Act. 30ZG Protected action — continuity of employment not affected (1) For the purposes of subsection 170ML (6) of the Act, prescribed purposes are the assessment of eligibility for, or the calculation of, any benefit or entitlement arising from the employees’ employment by the employer, including, in particular: (a) superannuation entitlements; and (b) authorised leave entitlements; and (c) remuneration and promotion as affected by seniority; and (d) entitlement (if any) to notice on termination of employment. (2) In paragraph (1) (b), authorised leave means leave authorised: (b) by an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment; or (c) by a certified agreement, an AWA, a State employment agreement or an old IR agreement; or (d) by the employee’s contract of employment; or (e) by a law of the Commonwealth, or of a State or Territory. 30ZGA Prescribed person — section 170NF of the Act For paragraph 170NF (4) (d) of the Act, an inspector is prescribed. > Note Under subsection 170NF (4) of the Act, an application for an order under subsection 170NF (1) that: > Note:  imposes a penalty on a person who contravenes a penalty provision; and > Note:  relates to a contravention of section 170MN; > Note: may be made by a prescribed person. Part 5C Australian Workplace Agreements 30ZH Interpretation Expressions that are used in this Part and in Part VID of the Act have, in this Part, the same respective meanings as in that Part of the Act. 30ZI Content of AWA (1) For subsection 170VG (1) of the Act, the provisions relating to discrimination set out in Schedule 8 are prescribed. (2) For subsection 170VG (3) of the Act, the model procedure set out in Schedule 9 is prescribed. 30ZJ Prescribed conditions of employment specified in prescribed Commonwealth laws (Act, s. 170VR (4)) (1) For subsection 170VR (4) of the Act: (a) the following laws are prescribed: (i) all determinations made by an Agency Head under subsection 24 (1) of the Public Service Act 1999 (except a determination made under that subsection in accordance with regulations made for the purpose of subsection 72 (5) of that Act); (ii) all determinations made by a Secretary under subsection 24 (1) of the Parliamentary Service Act 1999; (iv) Determination No. 1 (Determination of Remuneration and Allowances and Terms and Conditions of Service of Deputy Commissioners of Police), made under sections 17 and 20 of the Australian Federal Police Act 1979, to the extent that it relates to an entitlement to an adjustment payment; (v) all determinations made under subsection 26E (1) or (1A) of the Australian Federal Police Act 1979; (vi) Determination No. 5 (Determination of Adjustment Payment for Members and Staff Members), made under section 30 of the Australian Federal Police Act 1979, to the extent that it relates to an entitlement to an adjustment payment; (vii) Determination No. 2 (Determination of Terms and Conditions of Service of the Senior Executive Service), made under section 30 of the Australian Federal Police Act 1979, to the extent that it relates to an entitlement to an adjustment payment; and (b) the following conditions of employment are prescribed: (i) each condition of employment specified in a determination mentioned in subparagraph (a) (i) (except a condition of employment specified in a determination made under subsection 24 (1) of the Public Service Act 1999 in accordance with regulations made for the purpose of subsection 72 (5) of that Act); (ii) each condition of employment specified in a determination mentioned in subparagraph (a) (ii); (iii) each condition of employment specified in the determinations mentioned in subparagraphs (a) (iv) to (vii) (inclusive). > adjustment payment has the meaning given by subsection 4 (1) of the Australian Federal Police Act 1979. > Agency Head has the meaning given by section 7 of the Public Service Act 1999. > Secretary has the meaning given by section 7 of the Parliamentary Service Act 1999. 30ZK AWA industrial action — continuity of employment not affected (1) For subsection 170WC (4) of the Act, prescribed purposes are the assessment of eligibility for, or the calculation of, any benefit or entitlement arising from the employees’ employment by the employer, including, in particular: (a) superannuation entitlements; and (b) authorised leave entitlements; and (c) remuneration and promotion as affected by seniority; and (d) entitlement (if any) to notice on termination of employment. (2) In paragraph (1) (b), authorised leave means leave authorised: (b) by an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment; or (c) by a certified agreement, an AWA, a State employment agreement or an old IR agreement; or (d) by the employee’s contract of employment; or (e) by a law of the Commonwealth, or of a State or Territory. 30ZL Immunity conditional on giving notice For subsection 170WD (1) of the Act, a notice must be in writing and must include, or be accompanied by, particulars of: (a) any matter that the party intending to take the action proposes as a matter that should be dealt with by the AWA; and (b) the proposed nominal expiry date of the AWA; and (c) the proposed date or dates on which the action will take place; and (d) the proposed duration of the action; and (e) the proposed nature and form of the action. 30ZM Exception to prohibition on disclosure of identity of AWA parties (1) For paragraph 170WHB (2) (b) of the Act, a disclosure by a person (the entrusted person) to an authorised person of protected information that the entrusted person knows, or has reasonable grounds to believe, will identify another person as being, or having been, a party to an AWA is authorised if the disclosure of the protected information is for the purpose of: (a) providing analyses of trends in agreement making; or (b) preparing reports on enterprise bargaining for the purposes of section 358A of the Act. > authorised person means: (a) for the purposes of paragraph (1) (a): (b) for the purposes of paragraph (1) (b): (iii) a person authorised in writing by the Workplace Relations Minister. > protected information has the same meaning as in subsection 170WHB (4) of the Act. 30ZN Modification of AWA provisions applied as State law (1) For paragraph (a) of the definition of complementary State law in subsection 170WKA (2) of the Act, the modifications in Part 1 of Schedule 11 are required in relation to the application, as a law of a State, of the AWA provisions of the Act. (2) For paragraph (b) of the definition of complementary State law in subsection 170WKA (2) of the Act, the modifications in Part 2 of Schedule 11 are permitted in relation to the application, as a law of a State, of the AWA provisions of the Act. 30ZO Qualifications and appointment of bargaining agents (1) For paragraph 170WL (b) of the Act, a person is excluded from being appointed or holding an appointment as a bargaining agent if the person: (a) has been appointed as the bargaining agent for the other party to the AWA; or (b) is bankrupt or is applying to take the benefit of any law for the relief of a bankrupt or insolvent debtor; or (c) has not attained the age of 18 years. (2) For paragraph 170WL (b) of the Act, if, before or after the commencement of this regulation, a person has been convicted of: (a) an offence against a Commonwealth, State or Territory law punishable by imprisonment for 1 year or longer; or (b) an offence against a Commonwealth, State or Territory law that involves dishonesty and is punishable by imprisonment for 6 months or longer; or (c) an offence in connection with the negotiation of a certified agreement, an old IR agreement, an AWA or ancillary document (whether or not as a bargaining agent), or a State agreement under a State law; or (d) an offence under the Act; that person is excluded from being appointed or holding an appointment as a bargaining agent within the period of 5 years after the date of conviction or, if the person was sentenced to imprisonment, after release from prison. (3) A person who is excluded from being appointed or holding an appointment as a bargaining agent under subregulation (1) or (2) may apply to the Court for leave to hold an appointment as a bargaining agent. (4) When granting leave under this regulation, the Court may impose any conditions or restrictions that it thinks fit. (5) The Court may at any time, on the application of the Employment Advocate, revoke leave granted by the Court under this regulation. (6) It is a condition of the appointment of an organisation, or any other incorporated body, as a bargaining agent that each individual who carries out the functions of a bargaining agent on its behalf is, at all material times, a person who is not excluded by the preceding provisions of this regulation from being a bargaining agent. 30ZP Required form of AWAs and ancillary documents For paragraph 170WL (c) of the Act, every AWA and ancillary document must: (a) be in the English language; and (b) be printed in legible typescript; and (c) include the full name and address of each party who signs the document. 30ZQ Witnessing of signatures on AWAs and ancillary documents (1) For paragraph 170WL (d) of the Act, a person who signs an AWA or an ancillary document as a witness must also include his or her full name and address. (2) For paragraph 170WL (d) of the Act, the following persons cannot witness a party’s signature on an AWA or an ancillary document: (a) the other party to the AWA or ancillary document; (b) the bargaining agent of the other party to the AWA or ancillary document; (c) where the other party to the AWA or ancillary document is a corporation — a person who is a director of the corporation or a person involved in the day to day management of the corporation. Part VI Co-operation with the States 31 Prescribed State laws — section 173 of the Act For the purposes of subsections 173 (1) and (2) of the Act, each of the following State Acts is a prescribed law of the State by whose Parliament it was passed: (a) the Industrial Arbitration Act, 1940 of New South Wales; (b) the Industrial Relations Act 1979 of Victoria; (c) the Industrial Relations Act 1990 of Queensland; (d) the Industrial Relations Act 1979 of Western Australia; (e) the Industrial Conciliation and Arbitration Act, 1972 of South Australia; (f) the Industrial Relations Act 1984 of Tasmania. Part 6A Compliance 32AA Recovery of wages etc — small claims procedure (1) For the purposes of paragraph 179C (b) of the Act, the manner in which a person indicates that he or she wants a small claims procedure to apply to an action that the person starts in a magistrate’s court is: (a) by: (i) endorsing the papers initiating the action with a statement that the person wants a small claims procedure to apply to the action; or (ii) lodging with the magistrate’s court a paper that identifies the action and states that the person wants a small claims procedure to apply to the action; and (b) by giving a copy of the papers initiating the action, together with a copy of the paper (if any) mentioned in subparagraph (a) (ii), to every other party to the action. (2) Subregulation (1) does not apply to an action that a person starts in a magistrate’s court if rules of court relating to that court prescribe the manner in which the person indicates that he or she wants a small claims procedure to apply to the action. 32A Recovery of small claims under award, order, AWA or certified agreement — maximum amount The prescribed amount for the purposes of paragraph 179D (2) (a) of the Act is $10,000. 32AB Recovery of pay by contract outworkers in Victoria in textile, clothing and footwear industry — small claims procedure (1) For subsection 547 (1) of the Act, the manner in which a person indicates that he or she wants a small claims procedure to apply to an action that the person starts in a magistrates court is: (a) by: (i) endorsing the papers initiating the action with a statement that the person wants a small claims procedure to apply to the action; or (ii) lodging with the court a paper that identifies the action and states that the person wants a small claims procedure to apply to the action; and (b) by giving a copy of the papers initiating the action, together with a copy of the paper (if any) mentioned in subparagraph (a) (ii), to every other party to the action. (2) Subregulation (1) does not apply to an action that a person starts in a magistrates court if rules of court relating to that court prescribe the manner in which the person indicates that he or she wants a small claims procedure to apply to the action. 32AC Recovery of small claims by contract outworkers in Victoria in textile, clothing and footwear industry — maximum amount For paragraph 547 (2) (a) of the Act, the prescribed amount is $10 000. Part 6B Payments in relation to periods of industrial action 32B Applications to the Court (Act, s 187AC) For paragraph 187AC (2) (c) of the Act, an inspector is prescribed. > Note Under subsection 187AC (2) of the Act, an application to the Court for orders under section 187AD of the Act in respect of contraventions of section 187AA or 187AB of the Act may be made by various persons, including a person prescribed by the regulations. Part VII Entry and inspections by organisations