Bills Digest No. 111,
2017–18
PDF version [619KB]
Liz Wakerly
Economics Section
23 May 2018
Contents
Purpose of the Bill
Structure of
the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Date introduced: 28
March 2018
House: House of
Representatives
Portfolio: Treasury
Commencement: Schedule
1, the day after Royal Assent; Schedule 2, 1 July 2019.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
May 2018.
Purpose of the Bill
The purpose of the Treasury Laws Amendment (Enhancing
ASIC’s Capabilities) Bill 2018 (the Bill) is to amend the Australian
Securities and Investments Commission Act 2001 (the ASIC Act) to:
- require
the Australian Securities and Investments Commission (ASIC) to consider the
effects that the performance of its functions and the exercise of its powers
will have on competition in the financial system and
- allow
ASIC to employ staff outside of the Public Service Act
1999 (PSA).
Structure
of the Bill
The Bill is comprised of two schedules:
- Schedule
1 contains amendments relating to competition in the financial system and
- Schedule
2 contains amendments relating to the engagement of ASIC staff.
Background
Schedule 1 – competition in the
financial system
Regulation in the financial system
The level of competition in the financial system is
influenced by regulatory interventions. The Productivity Commission (PC) has
argued that competition in Australia’s financial system is ‘without a champion’
among the existing regulators:[1]
- the
Australian Competition and Consumer Commission (ACCC) is an independent
statutory authority which promotes competition and fair trade in markets to
benefit consumers, businesses and the community (ensuring that individuals and
businesses comply with Australian competition, fair trading and consumer
protection laws, in particular the Competition and
Consumer Act 2010)[2]
- the
Australian Prudential Regulation Authority (APRA) oversees banks, credit
unions, building societies, general insurance and reinsurance companies, life
insurance, private health insurance, friendly societies and most of the
superannuation industry with responsibility for prudential supervision (including
capital requirements)[3]
- ASIC
regulates Australian companies, financial markets, financial services
organisations and professionals who deal in and advise on investments,
superannuation, insurance, deposit taking and credit, with responsibility for
consumer protection (applying to financial products and services) and conduct
regulation[4]
- the
Reserve Bank of Australia (RBA) is responsible for monetary and banking policy,
including stability of the financial system. The Reserve Bank Board and the
Payments Systems Board are required to direct their policy to maximise the advantages
to the people of Australia.[5]
The Council of Financial Regulators acts as a coordinating
body for the RBA, APRA, ASIC and the Treasury. It advises the government on the
adequacy of Australia’s financial system regulatory arrangements, but is a
non-statutory body with no legal functions or powers separate from those of its
members.[6]
Current state of competition in the
financial system
There is limited publicly available information on how the
financial system regulators make their decisions and, in particular, how they
consider the effects of their decisions on competition.[7]
The ACCC has responsibility for policing actions that may substantially
lessen competition but has no formal role in reviewing or providing proactive
input into the actions of regulators that may impede competition.[8]
APRA has financial system stability as its primary
objective, but is required to also consider the effects of its interventions on
financial system safety and efficiency, contestability, competition and
competitive neutrality.[9]
ASIC is currently required (among other things) to:
- maintain,
facilitate and improve the performance of the financial system in the interests
of commercial certainty, reducing business costs, and the efficiency and
development of the economy and
- promote
the confident and informed participation of investors and consumers in the
financial system.[10]
There is no explicit mention of consideration of
competition. In the UK, the regulator for financial firms and financial
markets, the Financial Conduct Authority
(FCA),[11]
is required under the Financial
Services and Markets Act 2000 to promote effective competition in the
interests of consumers of regulated financial services.[12]
The RBA Payments System Board is required to act in a way
which best contributes to ‘promoting competition in the market for payment
services, consistent with the overall stability of the financial system’.[13]
The current regulatory system appears to emphasise
stability over competition, with APRA arguing that competition is a possible risk
to financial stability:
... competition can also lead to instability in the financial
system and there are times where it is important for APRA to actively temper
competitive forces.[14]
Financial System Inquiry
recommendations
The 2014 Financial
System Inquiry (FSI) was charged with ‘examining how the
financial system could be positioned to best meet Australia's evolving needs
and support Australia's economic growth’.[15]
Recommendations would be made to foster an ‘efficient, competitive and flexible
financial system’.[16]
The Financial
System Inquiry: Final Report (the Final Report) was
released on 7 December 2014.[17]
In its response to the FSI,
the Government accepted Recommendation 30 of the Final Report to strengthen the
focus on competition in the financial system, and specifically, to include
consideration of competition in ASIC’s mandate by the end of 2016.[18]
The amendment in Schedule 1 of the Bill implements this commitment.
The FSI also recommended that:
- policy makers and regulators should take increased account of
competition when making regulatory decisions and
- periodic external reviews of the state of competition should be
undertaken, including assessing whether Australia can reduce barriers to market
entry for new domestic and international competitors.[19]
The Government planned to address the first
issue in updated Statements of Expectations; the second issue was not addressed
in the Government response.[20]
Statements of Expectations have yet to be revised.[21]
In its 2018 Competition
in the Australian Financial System – Draft Report, the PC called for a
central government body—the ACCC or ASIC—to be tasked with promoting
competition in the financial system. The aim would be to create a transparent
regulatory system which would ‘recognise its potential to inhibit competition
and actively work towards minimising any damage to competition and innovation
that may otherwise result from regulator actions’.[22]
The Explanatory
Memorandum to the Bill notes that competition should not be considered in
isolation, but that ASIC should consider competition in conjunction with its
other requirements at subsection 1(2) of the ASIC Act.[23]
Schedule 2 – the engagement of ASIC
staff
Engagement under the PSA
ASIC staff can currently be employed through the PSA,
the ASIC Act and using Individual Flexibility Arrangements (IFAs):
- the
PSA is the primary form of employment of ASIC’s staff. Employment
contracts are subject to terms and conditions agreed in Enterprise Agreements
(EAs). The PSA also contains provisions dealing with recruitment
- the
ASIC Chairperson has the option to hire staff ‘as the Chairperson thinks
necessary for the performance or exercise of any of its functions and powers’.[24]
Terms and conditions of employment are determined by the Chairperson with the
Minister’s written approval.[25]
This option may provide the potential for more competitive remuneration and
flexibility in employment contracts.[26]
As at 30 June 2015, ASIC employed 67 people under the ASIC Act (22 were
at the Senior Executive Service (SES) level)[27]
- IFAs
enable variations of EA terms and conditions.[28]
These are not common (27 instances, outside SES level, as at 30 June 2015).[29]
In Fit
for the future – a capability review of the Australian Securities and Investments
Commission (the ASIC Capability Review), the review panel found that operating
under the PSA imposes a number of restrictions on ASIC:
- a
cap on the number of SES to 25
- a
remuneration cap on those SES employed under the PSA
- salary
increases, terms and conditions for all non-SES staff are subject to the Government’s
Workplace Bargaining policy
- the
Government’s Workplace Bargaining policy does not allow ASIC to lift salary
bands to meet the market and
- recruitment
and management of staff appointments are subject to Australian Public Service Commissioner
regulations.[30]
PSA requirements mean that ASIC has complex employment
arrangements at the SES level. The ASIC Capability Review identified a number
of disadvantages, including:
- impacting
ASIC’s ability to attract and retain suitability qualified employees (peer
agencies, APRA and RBA – which are not bound by the PSA – can offer more
attractive remuneration packages)
- slowing
down the ability to promote internally
- limiting
opportunities for career advancement
- no
formal delegations powers for SES-equivalent staff employed under the ASIC
Act and
- increasing
reliance on IFAs.[31]
Recommendation 24 of the ASIC Capability Review stated that
the Government should remove ASIC from the PSA as a matter of priority,
‘to support more effective recruitment and retention strategies’.[32]
Part 1 of Schedule 2 to the Bill amends the ASIC Act
to cease the requirement for ASIC staff to be engaged under the PSA.
Governance
Once ASIC is no longer required to engage staff under the PSA,
existing governance provisions under the PSA will no longer apply. In
particular, ASIC staff will no longer be bound by the APS Code of Conduct
(section 13, PSA) and APS Values (section 10, PSA).
Amendments in Schedule 2 provide for the Chairperson of ASIC
to determine an ASIC Code of Conduct and ASIC Values.
Committee
consideration
The Senate Selection of Bills Committee recommended that the
Bill not be referred to a committee for inquiry.[33]
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
had no comment on the Bill.[34]
Policy
position of non-government parties/independents
At the time of writing this Bills Digest, there were no
public statements on the Bill from non‑government parties or
independents.
Position of
major interest groups
Representatives and delegates from the Community and
Public Sector Union (CPSU) met ASIC in February 2018 to discuss ASIC’s proposed
exit from the Australian Public Service.[35]
At the time, ASIC committed to provide the draft legislation to the CPSU for
further discussion.
Financial
implications
According to the Explanatory Memorandum, there are no
financial implications.[36]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[37]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights expressed
concern over whether the proposal to remove the requirement for ASIC staff to
be employed under the PSA is compatible with the right to just and
favourable conditions of work.[38]
In particular, the Committee raised questions about the proportionality of the
measure and whether the proposed approach was the least rights restrictive way
of achieving the stated aim of reducing barriers to recruitment and retention
of staff.[39]
Accordingly, the Committee sought the Minister’s advice as to:
-
whether there is reasoning or
evidence that establishes that the stated objective addresses a pressing or
substantial concern or whether the proposed changes are otherwise aimed at
achieving a legitimate objective;
-
how the measure is effective to
achieve (that is, rationally connected to) that objective;
-
whether the limitation is a
reasonable and proportionate measure to achieve the stated objective, including
whether less rights restrictive measures may be reasonably available and the
sufficiency of any relevant safeguards; and
-
whether the measure is compatible
with Australia's obligations not to take any backwards steps (retrogressive
measures) in relation to the right to just and favourable conditions of work.[40]
At the time of writing, the Committee had not received a
response from the Minister.[41]
Key issues
and provisions
Schedule 1
Section 1 of the ASIC Act sets out the
objects of the Act. Subsection 1(2) sets out outcomes that ASIC must strive to achieve
when performing its functions and exercising its powers. Item 1 of
Schedule 1 inserts proposed subsection 1(2A) into the ASIC Act to
require ASIC (without limiting subsection 1(2)) to consider the effects that
the performance of its functions and the exercise of its powers will have on
competition in the financial system. ASIC will be required to consider
competition in conjunction with the elements in subsection 1(2), including to:
(a) maintain, facilitate and improve the performance of
the financial system and the entities within that system in the interests of
commercial certainty, reducing business costs, and the efficiency and
development of the economy.[42]
ASIC is required to determine the weight it will give to
competition based on the relevant circumstances. The measure is not designed to
limit or expand the scope of ASIC’s regulatory responsibilities.[43]
Schedule 1 will commence the day after Royal Assent.
Schedule 2
The amendments in Part 1 of Schedule 2 to the Bill remove
the requirement for ASIC staff to be engaged under the PSA.
Part 2 of Schedule 2 makes consequential amendments to the
Corporations Act
2001, Business
Names Registration Act 2011 and Mutual Assistance
in Business Regulation Act 1992.
Staff engagement
Item 1 inserts a new definition in subsection 5(1) for
‘senior staff member’ as identified by the ASIC Chairperson. Item 2
repeals the definition of ‘staff member’ under subsection 5(1) and substitutes
a definition which includes staff employed by the ASIC Chairperson rather than
staff employed under the PSA.
Section 10A of the ASIC Act currently provides that
the ASIC Chairperson is not subject to direction by ASIC in relation to the
Chairperson’s performance of functions, or exercise of powers in relation to
ASIC, under the Public
Governance, Performance and Accountability Act 2013 or the PSA. Item
3 amends section 10A to remove reference to the PSA, substituting
reference to Parts 6 and 7 of the ASIC Act which deal with staff and
preventing conflicts of interest.
Several items amend provisions in the ASIC Act (items
4 and 5),[44]
Corporations Act 2001 (items 16 and 17),[45]
Business Names Registration Act 2011 (items 14 and 15)[46]
and Mutual Assistance in Business Regulation Act 1992 (items 18 and
19)[47]
to allow functions to be delegated to ‘senior staff members’ of ASIC as
determined by the ASIC Chairperson instead of SES or acting SES employees.
The functions and powers of the ASIC Chairperson or Deputy
Chairperson may only be delegated to another ASIC member or senior staff member
of ASIC (item 6).[48]
Item 7 repeals the requirement for ASIC to engage
staff under the PSA and provides for the ASIC Chairperson to engage
permanent, temporary or casual staff under a written agreement ‘as the
Chairperson considers necessary for the performance or exercise of any of
ASIC’s functions or powers’.[49]
The ASIC Chairperson must determine the terms and conditions of employment.[50]
Once ASIC ceases to employ staff under the PSA, the
ASIC Chairperson will employ staff and consultants ‘on behalf of ASIC’ rather
than ‘on behalf of the Commonwealth’ (items 7 and 8).[51]
Item 9 provides that the ASIC Chairperson’s
determination to identify which staff members are senior staff members must be
a written instrument.[52]
The determination may identify a staff member who holds or acts in a specified
position as a senior staff member.[53]
The determination is a legislative instrument and will therefore be subject to ‘appropriate’
Parliamentary scrutiny.[54]
The requirement for consultants to notify ASIC of direct
or indirect pecuniary or other interests that could result in a conflict of
interest is maintained.[55]
Item 10 repeals paragraph 125(1)(a) and substitutes provisions to
exclude staff seconded to ASIC who are employed under the PSA (who are
subject to the APS Code of Conduct)[56]
and staff employed by ASIC (who will be subject to the ASIC Code of Conduct)[57]
from these notification requirements.
Governance of staff
Item 11 deals with governance arrangements. The
Chairperson of ASIC is required to:
- take
reasonable steps to ensure that there are adequate disclosure of interest
requirements applying to all staff employed by ASIC[58]
- determine,
in writing, the ASIC Code of Conduct which will apply to all ASIC members and
staff employed under section 120[59]
and
- determine,
in writing, the ASIC Values which must be upheld by the Chairperson, ASIC
members and staff employed under section 120.[60]
The ASIC Code of Conduct and ASIC Values are not legislative
instruments.[61]
Application and transitional
provisions
The amendments in Schedule 2 of the Bill apply from 1 July
2019.
Transitional provisions (item 12) are required to
ensure that existing conditions, rights and contracts continue to apply to ASIC
staff as they transition from engagement under the PSA to engagement
under the ASIC Act.
Under subsection 72(1) of the PSA (machinery of
government changes), the Public Service Commissioner may:
(b) determine
in writing that APS employees cease to be APS employees and become non-APS
employees of a specified Commonwealth body or Commonwealth authority.
Further, section 72 of the PSA provides:
(3) If an APS
employee (the transferred employee) becomes a non-APS employee of
a Commonwealth body or Commonwealth authority under paragraph (1)(b), the
employee is entitled to remuneration and other conditions of employment that
are not less favourable than the terms and conditions to which the employee was
entitled as an APS employee, immediately before ceasing to be an APS employee,
under:
(a) a
fair work instrument;[62]
or
(b)
a WR Act transitional instrument;[63]
or
(c)
a determination under this Act; or
(d) a written contract of employment.
(4) Subsection
(3) ceases to have effect on the next occasion when there is a relevant change
in the terms and conditions of employment applicable to the transferred
employee or a class of employees that includes the transferred employee. For
this purpose, relevant change means a change that results from:
(a) the
making, variation or termination of a modern award, an enterprise agreement, a
workplace determination or a written contract of employment; or
(b)
the variation, termination or replacement of a WR Act transitional instrument.
ASIC staff employed under a written agreement immediately
prior to the commencement of the Bill will continue to be employed under the
written agreement.[64]
Staff employed under the PSA immediately before commencement of the Bill
will, on and from commencement day:
- cease
to be engaged under the PSA
- be
employed by ASIC under a written agreement under section 120
- be
employed on the same terms and conditions, and with the same accrued
entitlement to benefits and
- maintain
their continuity of service with ASIC.[65]
These changes to ASIC’s engagement of staff will not
affect any promotions, performance management or disciplinary actions commenced
before 1 July 2019; and will not give rise to any entitlements or benefits
because an ASIC staff member is no longer employed under the PSA.[66]
The ASIC
Enterprise Agreement (ASIC EA) will continue to be in effect and will apply
to the ASIC Chairperson, to all staff who were employed under the ASIC Act
and covered by the ASIC EA immediately before commencement, and to new staff
employed by ASIC after commencement, until a new enterprise agreement is made.[67]
Under section 58 of the Fair Work Act 2009,
only one enterprise agreement can apply to an employee at a particular time.
Proposed section 313 relates to the variation of terms
and conditions of employment: the transitional provisions do not prevent the
terms and conditions of a staff member’s employment after 1 July 2019 from
being varied in accordance with those terms and conditions or by law, award,
determination or agreement.
The Minister may make transitional rules prescribing
matters of a transitional nature for 12 months after the Bill commences. The
transitional rule will remain in effect for a maximum of 12 months from
the day it takes effect and may apply either in relation to a particular person
or to a class of persons. Transitional rules that apply to a class of persons
will be legislative instruments.[68]
Transitional rules cannot create an offence or civil
penalty, provide powers of arrest or detention or entry, search or seizure,
impose a tax, set an amount to be appropriated from the Consolidated Revenue
Fund, or directly amend the text of the ASIC Act.[69]
Whether ASIC staff, currently employed under the PSA,
will be no worse off under the ASIC Act, will depend upon agreements
made after the 12 month transitional period following commencement of Schedule
2 on 1 July 2019. For example, the PSA provides for APS employees to
transfer between APS agencies, specifies a minimum retirement age of 55 years
and requires SES employees to provide APS-wide strategic leadership, including
cooperation within and between agencies. Some of these provisions will no
longer be relevant in relation to ASIC.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Productivity
Commission (PC), Competition
in the Australian Financial System, draft report, PC, January 2018, p.
17.
[2]. Australian
Competition and Consumer Commission (ACCC), ‘About
us’, ACCC website.
[3]. Australian
Prudential Regulation Authority (APRA), ‘Australian Prudential
Regulation Authority’, APRA website.
[4]. Australian
Securities and Investments Commission (ASIC), ‘Our role’, ASIC
website.
[5]. Subsections
10(2) and 10B(3), Reserve
Bank Act 1959; Reserve Bank of Australia (RBA), ‘Our role’, RBA
website.
[6]. Council
of Financial Regulators (CFR), ‘About the CFR’, CFR
website.
[7]. PC,
Competition
in the Australian Financial System, op. cit., p. 426.
[8]. The
ACCC recently received additional funding to establish a Financial Services
Unit to monitor competition in Australia’s financial services sector (PC, Competition
in the Australian Financial System, op. cit., p. 93).
[9]. Section
8, Australian
Prudential Regulation Authority Act 1998.
[10]. Subsection
1(2), ASIC Act.
[11]. Financial
Conduct Authority (FCA), ‘FCA homepage’,
FCA website.
[12]. Section
1E of Part 1A, Financial
Services and Markets Act 2000.
[13]. Subparagraph
10B(3)(b)(iii), Reserve
Bank Act 1959.
[14]. PC,
Competition
in the Australian Financial System, op. cit., p. 416.
[15]. Financial
System Inquiry (FSI), ‘The
inquiry’s terms of reference’, FSI website.
[16]. Ibid.
[17]. D
Murray, K Davis, C Dunn, C Hewson and B McNamee, Financial
system inquiry: final report, The Treasury, Canberra, November 2014.
[18]. Australian
Government, Improving
Australia’s financial system – Government response to the financial system
inquiry, The Treasury, Canberra, 2015, p. 24.
[19]. D
Murray et al, Financial
system inquiry: final report, op. cit., pp. 237 and 254.
[20]. Australian
Government, Improving
Australia’s financial system – Government response to the financial system
inquiry, op. cit., p. 24.
[21]. Both
the ASIC
Statement of Expectations and the APRA
Statement of Expectations were set in 2014.
[22]. PC,
Competition
in the Australian Financial System, op. cit., p. 418.
[23]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Bill
2018, p. 6.
[24]. Subsection
120(3), ASIC Act.
[25]. Subsection
120(4), ASIC Act.
[26]. ASIC
Capability Review Panel, Fit
for the future – a capability review of the Australian Securities and
Investments Commission, The Treasury, Canberra, December 2015, p. 107.
[27]. Ibid.
[28]. PricewaterhouseCoopers,
ASIC
capability review – evidence report: volume 1, November 2015, p. 52.
IFAs are typically used to advance EL2s to ‘substantive EL2s’ acting in an SES
role, when they cannot be promoted to SES level due to the SES cap restriction.
[29]. ASIC
Capability Review Panel, Fit
for the future – a capability review of the Australian Securities and
Investments Commission, op. cit., p. 107.
[30]. Ibid.,
pp. 107–8.
[31]. Ibid.,
p. 108.
[32]. Ibid.,
p. 21.
[33]. Senate
Standing Committee for the Selection of Bills, Report,
5, 2018, The Senate, Canberra, 10 May 2018.
[34]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2018, The Senate, Canberra, 9 May 2018, p. 65.
[35]. Community
and Public Sector Union, ASIC moving out of
the APS, media release, 15 February 2018.
[36]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Bill 2018,
p. 3.
[37]. The
Statement of Compatibility with Human Rights can be found at pages 15 to 16 of
the Explanatory
Memorandum to the Bill.
[38]. Parliamentary
Joint Committee on Human Rights, Report,
4 2018, Australian Parliament, Canberra, 8 May 2018, p. 26.
[39]. Ibid.,
p. 27.
[40]. Ibid.,
pp. 28–29.
[41]. Parliamentary
Joint Committee on Human Rights, Correspondence
register, Australian Parliament website.
[42]. Paragraph
1(2)(a), ASIC
Act.
[43]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Bill
2018, pp. 6–7.
[44]. Proposed
paragraph 102(2C)(b) and the proposed note at the end of subsection
102(2C), ASIC
Act.
[45]. Proposed
paragraph 1101J(c) and proposed paragraph 50-10(4)(c) of Schedule 2,
Corporations Act
2001.
[46]. Amended
subsection 79(1) and proposed paragraph 80(1)(b), Business Names
Registration Act 2011.
[47]. Proposed
paragraph 22(2)(aa) and amended paragraph 22(2)(b), Mutual Assistance
in Business Regulation Act 1992.
[48]. Proposed
paragraph 119A(2)(c), ASIC Act.
[49]. Proposed
subsection 120(1), ASIC Act.
[50]. Proposed
subsection 120(2), ASIC Act.
[51]. Proposed
subsection 120(1) and proposed amendment to subsection 121(1), ASIC Act.
[52]. Proposed
subsection 122A(1), ASIC Act.
[53]. Proposed
subsection 122A(2), ASIC Act.
[54]. Proposed
subsection 122A(3), ASIC Act; Explanatory
Memorandum, Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Bill 2018,
p. 11.
[55]. Proposed
paragraph 125(1)(a), ASIC Act.
[56]. Proposed
subparagraph 125(1)(a)(ii), ASIC Act.
[57]. Proposed
subparagraph 125(1)(a)(i), ASIC Act.
[58]. Proposed
section 126A, ASIC
Act.
[59]. Proposed
subsections 126B(1) and 126B(2), ASIC Act.
[60]. Proposed
subsections 126C (1), 126C(2) and 126C(3), ASIC Act.
[61]. Proposed
subsections 126B(3) and 126C(4), ASIC Act.
[62]. A
‘fair work instrument’ is a modern award, enterprise agreement, workplace
determination or Fair Work Commission order. See section 12 of the Fair Work Act 2009
and section 7 of the PSA.
[63]. Where
‘WR Act transitional instrument’ means an award, workplace agreement, a
pre-reform certified agreement, an AWA (Australian Workplace Agreement) or a
pre-reform AWA.
[64]. Proposed
section 310, ASIC
Act.
[65]. Proposed
section 311, ASIC
Act.
[66]. Ibid.
[67]. Proposed
section 312, ASIC
Act; Australian Securities and Investments Commission, Enterprise
Agreement 2016–19,
20 May 2016.
[68]. Proposed
section 314, ASIC
Act.
[69]. Proposed
subsection 314(7), ASIC Act.
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