An Act to amend laws, and deal with transitional matters, in connection with the Fair Work Act 2009, and for other purposes
1 Short title
This Act may be cited as the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 25 June 2009 |
2. Schedules 1 to 5 | The day on which Part 2‑4 of the Fair Work Act 2009 commences. | 1 July 2009 |
3. Schedule 6, Parts 1 and 2 | At the same time as the provision(s) covered by table item 2. | 1 July 2009 |
4. Schedule 6, Part 3 | Immediately after the commencement of Part 2‑3 of the Fair Work Act 2009. | 1 January 2010 |
4A. Schedule 6A | At the same time as the provision(s) covered by table item 2. | 1 July 2009 |
5. Schedules 7 to 21 | At the same time as the provision(s) covered by table item 2. | 1 July 2009 |
6. Schedule 22, items 1 to 90 | At the same time as the provision(s) covered by table item 2. | 1 July 2009 |
7. Schedule 22, item 91 | Immediately after the commencement of the provisions covered by table item 8. | 1 July 2009 |
8. Schedule 22, items 92 to 627 | At the same time as the provision(s) covered by table item 2. | 1 July 2009 |
9. Schedule 23, items 1 to 2E | Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. | 1 July 2009 |
10. Schedule 23, items 3 to 6 | Immediately after the commencement of Part 2‑2 of the Fair Work Act 2009. | 1 January 2010 |
11. Schedule 23, item 7 | Immediately after the commencement of Part 2‑3 of the Fair Work Act 2009. | 1 January 2010 |
12. Schedule 23, item 8 | Immediately after the commencement of Part 2‑8 of the Fair Work Act 2009. | 1 July 2009 |
13. Schedule 23, item 9 | Immediately after the commencement of Division 1 of Part 2‑9 of the Fair Work Act 2009. | 1 July 2009 |
13A. Schedule 23, items 9A and 9B | Immediately after the commencement of Part 3‑1 of the Fair Work Act 2009. | 1 July 2009 |
14. Schedule 23, items 10 to 12 | Immediately after the commencement of Part 3‑3 of the Fair Work Act 2009. | 1 July 2009 |
15. Schedule 23, items 13 to 21 | Immediately after the commencement of Part 4‑1 of the Fair Work Act 2009. | 1 July 2009 |
15A. Schedule 23, item 21A | Immediately after the commencement of Part 6‑1 of the Fair Work Act 2009. | 1 July 2009 |
15B. Schedule 23, items 21B and 21C | Immediately after the commencement of Part 6‑4 of the Fair Work Act 2009. | 1 July 2009 |
16. Schedule 23, item 22 | Immediately after the commencement of section 799 of the Fair Work Act 2009. | 1 July 2009 |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of 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 contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
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.
4 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Schedule 1—Repeals
Workplace Relations Act 1996
1 Sections 3 to 18
Repeal the sections.
2 Parts 2 to 23
Repeal the Parts.
3 Schedules 2 to 9
Repeal the Schedules.
Schedule 2—Overarching Schedule about transitional matters
Part 1—Interpretation of the transitional Schedules
1 What are the transitional Schedules?
The transitional Schedules are the following (including any regulations made for the purposes of any of the following):
(a) this Schedule; and
(b) Schedules 2 to 22, other than:
(i) Part 3 of Schedule 6; and
(ii) Parts 1, 2 and 3 of Schedule 17; and
(iii) items 21 to 22 of Schedule 18; and
(iv) Parts 1 to 8 of Schedule 22.
2 The dictionary
In the transitional Schedules:
affected employee of an employer: see subitem 43(6) of Schedule 3 and subitem 30A(4) of Schedule 3A.
AFPCS interaction rules: see subitem 22(4) of Schedule 3.
agreement‑based transitional instrument: see subitem 2(5) of Schedule 3.
applies:
(a) in relation to a transitional instrument: see subitem 3(2) of Schedule 3; and
(b) in relation to a Division 2B State award: see item 4 of Schedule 3A; and
(c) in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A.
award‑based transitional instrument: see subitem 2(5) of Schedule 3.
bridging period means the period:
(a) starting on the WR Act repeal day; and
(b) ending immediately before the FW (safety net provisions) commencement day.
collective agreement‑based transitional instrument: see subitem 2(5) of Schedule 3.
collective Division 2B State employment agreement: see subitem 5(5) of Schedule 3A.
collective State employment agreement: see subitem 2(6) of Schedule 3A.
common rule means a common rule within the meaning of clauses 82 to 87 of Schedule 6 to the WR Act (including those clauses as they continue to apply because of item 8A of Schedule 3).
conditional termination:
(a) in relation to an individual agreement‑based transitional instrument: see subitem 18(1) of Schedule 3; and
(b) in relation to an individual Division 2B State employment agreement: see subitem 25(1) of Schedule 3A.
continued AFPCS wages provisions: see subitem 5(1) of Schedule 9.
continued Schedule 6: see subitem 1(1) of Schedule 20.
continuing Schedule 6 instruments: see subitem 1(2) of Schedule 20.
covers:
(a) in relation to a transitional instrument: see subitem 3(1) of Schedule 3; and
(b) in relation to a transitional minimum wage instrument: see item 6 of Schedule 9; and
(c) in relation to a Division 2B State award: see item 4 of Schedule 3A; and
(d) in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A.
Division 2A referring State: see subitem 2A(7) of Schedule 3.
Division 2A State reference employee: see subitem 2A(3A) of Schedule 3.
Division 2A State reference employer: see subitem 2A(4A) of Schedule 3.
Division 2A State reference transitional award: see subitem 2A(1A) of Schedule 3.
Division 2B enterprise award: see subitem 2(4) of Schedule 6.
Division 2B referral commencement: see subitem 2(4A) of Schedule 3.
Division 2B referring State: see subitem 2A(7) of Schedule 3.
Division 2B State award: see item 3 of Schedule 3A.
Division 2B State employment agreement: see item 5 of Schedule 3A.
Division 2B State instrument: see item 2 of Schedule 3A.
Division 2B State reference employee: see subitem 2A(3A) of Schedule 3.
Division 2B State reference employer: see subitem 2A(4A) of Schedule 3.
Division 2B State reference outworker entity: see subitem 4(3) of Schedule 3A.
Division 2B State reference transitional award: see subitem 2A(1A) of Schedule 3.
enterprise award‑based instrument: see subitem 2(2) of Schedule 6.
enterprise instrument: see subitem 2(1) of Schedule 6.
enterprise instrument modernisation process: see subitem 4(1) of Schedule 6.
enterprise preserved collective State agreement: see subitem 2(3) of Schedule 6.
Fair Work Australia or FWA means the body referred to in section 575 of the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012.
FWA: see Fair Work Australia.
FW Act: see item 3 of this Schedule.
FWA member has the same meaning as in the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012.
FW (safety net provisions) commencement day means the day on which Parts 2‑2, 2‑3 and 2‑6 of the FW Act commence.
individual agreement‑based transitional instrument: see subitem 2(5) of Schedule 3.
individual Division 2B State employment agreement: see subitem 5(6) of Schedule 3A.
individual State employment agreement: see subitem 2(7) of Schedule 3A.
instrument content rules:
(a) in Schedule 3: see subitem 4(2) of Schedule 3; and
(b) in Schedule 3A: see subitem 10(2) of Schedule 3A.
instrument interaction rules:
(a) in Schedule 3: see subitem 5(2) of Schedule 3; and
(b) in Schedule 3A: see subitem 11(2) of Schedule 3A.
lodged:
(a) in relation to a workplace agreement—means lodged with the Workplace Authority Director under section 344 of the WR Act; and
(b) in relation to a variation of a workplace agreement—means lodged with the Workplace Authority Director under section 346N or 377 of the WR Act, as the case may be; and
(c) in relation to a termination of a workplace agreement—means lodged with the Workplace Authority Director under section 389 of the WR Act.
made:
(a) in relation to a workplace agreement—has the meaning given by section 333 of the WR Act; and
(b) in relation to a variation of a workplace agreement—has the meaning given by section 368 of the WR Act.
modern enterprise award: see subitem 4(2) of Schedule 6.
modern enterprise awards objective: see subitem 6(2) of Schedule 6.
modernisation‑related reduction in take‑home pay:
(a) in relation to the Part 10A award modernisation process—see subitems 8(3) and (4) of Schedule 5; and
(b) in relation to the enterprise instrument modernisation process—see subitem 11(3) of Schedule 6; and
(c) in relation to the State reference public sector transitional award modernisation process—has the meaning given by subitem 13(3) of Schedule 6A.
modify includes make additions, omissions and substitutions.
nominal expiry date, in relation to a Division 2B State employment agreement: see item 27 of Schedule 3A.
outworker interaction rules: see subitem 12(2) of Schedule 3A.
Part 10A award modernisation process: see subitem 2(1) of Schedule 5.
part of a single enterprise: see subitem 3(4) of Schedule 6.
referring State: see subitem 2A(7) of Schedule 3.
single enterprise: see item 3 of Schedule 6.
source agreement, in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A.
source award, in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A.
source State:
(a) in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A; and
(b) in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A.
State and Territory interaction rules: see subitem 5A(2) of Schedule 3.
State award: see item 2 of Schedule 3A.
State employment agreement: see item 2 of Schedule 3A.
State industrial body means a commission performing or exercising functions under a State industrial law, and includes a member of such a commission and a registrar or deputy registrar of such a commission.
State industrial law means a law of a State that is a State or Territory industrial law as defined in section 26 of the FW Act.
State minimum wages instruments: see item 19 of Schedule 9.
State reference common rule: see subitem 2A(2) of Schedule 3.
State reference employee: see subitem 2A(3) of Schedule 3.
State reference employer: see subitem 2A(4) of Schedule 3.
State reference public sector employee: see subitem 2(2) of Schedule 6A.
State reference public sector employer: see subitem 2(3) of Schedule 6A.
State reference public sector modern award: see subitem 3(2) of Schedule 6A.
State reference public sector modern awards objective: see subitem 7(2) of Schedule 6A.
State reference public sector transitional award: see subitem 2(1) of Schedule 6A.
State reference public sector transitional award modernisation process: see subitem 3(1) of Schedule 6A.
State reference transitional award: see subitem 2A(1) of Schedule 3.
State reference transitional award or common rule means a State reference transitional award or a State reference common rule.
take‑home pay: see subitem 31(2) of Schedule 3A, subitem 8(2) of Schedule 5, subitem 11(2) of Schedule 6 and subitem 13(2) of Schedule 6A.
take‑home pay order: see subitems 32(1) and (2) of Schedule 3A, subitems 9(1) and (2) of Schedule 5, subitem 12(1) of Schedule 6 and subitem 14(1) of Schedule 6A.
this Act includes the regulations.
transitional APCS: see subitem 5(3) of Schedule 9.
transitional default casual loading: see subitem 5(3) of Schedule 9.
transitional instrument: see subitems 2(3) and (4) of Schedule 3.
transitional minimum wage instrument: see subitem 5(3) of Schedule 9.
transitional national minimum wage order: see subitem 12(2) of Schedule 9.
transitional pay equity order: see subitem 43(1) of Schedule 3 and subitem 30A(1) of Schedule 3A.
transitional Schedules: see item 1 of this Schedule.
transitional special FMW: see subitem 5(3) of Schedule 9.
transitional standard FMW: see subitem 5(3) of Schedule 9.
unlodged collective agreement means a collective agreement that, as at the WR Act repeal day, has not been lodged.
unlodged termination, in relation to a workplace agreement, means a termination of a workplace agreement approved in accordance with section 386 of the WR Act, but not lodged as at the WR Act repeal day.
unlodged variation, in relation to a workplace agreement, means a variation of the workplace agreement under Division 8 of Part 8 of the WR Act approved in accordance with section 373 of the WR Act, but not lodged as at the WR Act repeal day.
Victorian employment agreement: see item 41 of Schedule 3.
workplace agreement that operates from approval means a workplace agreement to which Subdivision C of Division 5A of Part 8 of the WR Act applies (see subsection 346K(1) of that Act).
WR Act: see item 3 of this Schedule.
WR Act instrument: see subitem 2(2) of Schedule 3.
WR Act repeal means the commencement of Schedule 1.
WR Act repeal day means the day on which the WR Act repeal commences.
3 Meaning of WR Act and FW Act
Meaning of WR Act
(1) WR Act means the Workplace Relations Act 1996 and, unless the contrary intention appears, means that Act as in force immediately before the WR Act repeal day.
(2) Unless a contrary intention appears, a reference to the WR Act, or to a provision or provisions of the WR Act, includes a reference to regulations made for the purposes of the WR Act, or for the purposes of the provision or provisions of the WR Act.
(3) If an item of the transitional Schedules provides for the WR Act, or a provision or provisions of the WR Act, to continue to apply on and after the WR Act repeal day (or during the bridging period), the WR Act, or the provision or provisions, continue to so apply despite the WR Act repeal.
Meaning of FW Act
(4) FW Act means the Fair Work Act 2009.
(5) Unless a contrary intention appears, a reference to the FW Act, or to a provision or provisions of the FW Act, includes a reference to regulations made for the purposes of the FW Act, or for the purposes of the provision or provisions of the FW Act.
4 Expressions defined in the WR Act or the FW Act
(1) Unless a contrary intention appears:
(a) expressions used in a transitional Schedule that were defined in the WR Act (other than Schedule 1 to that Act) have the same meanings in that transitional Schedule as they had in that Act; and
(b) expressions used in a transitional Schedule that are defined in the FW Act have the same meanings in that transitional Schedule as they have in that Act.
(2) If:
(a) a provision of a transitional Schedule uses an expression defined in both the WR Act and the FW Act; and
(b) it is clear from the context of the provision which of those meanings is intended to apply in that provision;
the expression has that meaning.
(3) The regulations may define, or clarify the meaning of, an expression used in a transitional Schedule.
(4) This item does not apply to expressions defined in item 2.
5 Provisions that apply repealed provisions of the WR Act
(1) If a provision of a transitional Schedule provides for provisions (the applied WR Act provisions) of the WR Act to apply on and after the WR Act repeal day, any other provisions of the WR Act, and any regulations or other instruments made under that Act, that are necessary for the effectual operation of the applied WR Act provisions also apply on and after that day.
(2) This item has effect:
(a) subject to a contrary intention in a provision of a transitional Schedule; and
(b) subject to the regulations.
6 Effect of Part 21 of the WR Act to be taken into account
(1) To avoid doubt, in interpreting provisions of the transitional Schedules, the effect on the WR Act of Part 21 of that Act (which deals with matters referred by Victoria) before the WR Act repeal day is to be taken into account.
Note: For example, a reference in Schedule 3 to a workplace agreement includes a reference to a workplace agreement made under Part 8 of the WR Act, as that Part had effect because of Part 21.
(2) If a provision of the transitional Schedules provides for the application or continued application of provisions of the WR Act on and after the WR Act repeal day, those provisions also have the effect they would have if Part 21 of that Act were still in force.
Note: For example, item 2 of Schedule 4 provides for the continued application during the bridging period of Divisions 3, 4, 5 and 6 of Part 7 of the WR Act. The continued application of those Divisions also includes the extended effect those Divisions would have if Part 21 were still in force.
(3) This item has effect:
(a) subject to a contrary intention; and
(b) subject to the regulations.
Part 2—Regulations about transitional matters
7 General power for regulations to deal with transitional matters
(1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following:
(a) the transition from the regime provided for by the WR Act (and any Acts that amended that Act) to the regime provided for by the FW Act;
(b) the amendments and repeals made by the Schedules to this Act;
(c) the transition from the regime provided for by State industrial laws of Division 2B referring States to the regime provided for by this Act and the FW Act, including:
(i) the transition from State awards and State employment agreements to Division 2B State instruments; and
(ii) the transition from Division 2B State instruments to modern awards and enterprise agreements;
(d) the amendments and repeals made by the Fair Work Amendment (State Referrals and Other Measures Act) 2009.
(2) Without limiting subitem (1), regulations made for the purpose of that subitem may do any of the following:
(a) modify provisions of the FW Act, or provide for the application (with or without modifications) of provisions of the FW Act to matters to which they would otherwise not apply;
(b) provide for the application (with or without modifications) of provisions of the WR Act on and after the WR Act repeal day;
(c) provide for the application (with or without modifications), as laws of the Commonwealth, of provisions of State industrial laws of Division 2B referring States on and after the Division 2B referral commencement.
8 Regulations relating to matters dealt with in the transitional Schedules
(1) The regulations may modify provisions of the transitional Schedules.
(2) If a provision of a transitional Schedule provides for repealed provisions of the WR Act to apply on and after the WR Act repeal day, the regulations may:
(a) modify the provisions; or
(b) make other provision relating to the application of the provisions.
(3) If a provision of a transitional Schedule provides for provisions of the FW Act to apply in relation to matters to which they would otherwise not apply, the regulations may:
(a) modify the provisions; or
(b) make other provision relating to the application of the provisions.
(4) The regulations may make other provision in relation to the matters dealt with in the transitional Schedules.
(5) The transitional Schedules have effect subject to regulations made for any of the purposes of this item.
9 Limitation on power to make regulations
(1) The regulations must not:
(a) modify provisions of Part 3‑4 of the FW Act (which deals with right of entry); or
(b) modify provisions of the transitional Schedules that deal with right of entry.
(2) The regulations must not confer compliance powers on an inspector that are additional to the compliance powers under Part 5‑2 of the FW Act.
(3) This item has effect despite items 7 and 8.
10 Other general provisions about regulations
(1) This item applies to regulations made for the purpose of any of the provisions of the transitional Schedules (including this Part).
(2) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to the regulations.
(3) If:
(a) regulations are expressed to commence from a date (the registration date) before the regulations are registered under the Legislation Act 2003; and
(b) a person engaged in conduct before the registration date; and
(c) but for the retrospective effect of the regulations, the conduct would not have contravened a provision of:
(i) the WR Act (as it continues to apply because of this Act); or
(ii) this Act; or
(iii) the FW Act;
then a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of any of those Acts.
(4) The provisions of the transitional Schedules (including this Part) that provide for regulations to deal with matters do not limit each other.
Part 3—Conduct before WR Act repeal day etc.
11 Conduct before repeal—WR Act continues to apply
Conduct before repeal
(1) The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day.
Note: For continuation and cessation of WR Act bodies and offices on and after the WR Act repeal day, see item 7 of Schedule 18.
Processes begun before repeal to vary or terminate WR Act instruments
(1A) If:
(a) a process to vary or terminate a WR Act instrument is begun under the WR Act before the WR Act repeal day; and
(b) the WR Act instrument becomes a transitional instrument because of the operation of Part 2 of Schedule 3;
the WR Act continues to apply, on and after the WR Act repeal day, for the purposes of completing the process.
Orders made before repeal
(2) To avoid doubt, the WR Act continues to apply, on and after the WR Act repeal day, in relation to orders made under that Act, including as it continues to apply under subitem (1).
Item subject to this Act
(3) This item applies subject to this Act.
Note: For the purposes of transition from the WR Act to the FW Act, other provisions of this Act:
(a) modify or exclude the operation of the WR Act as it continues to apply under subitem (1); and
(b) provide for the continued operation of the WR Act (including in modified form) in relation to conduct that occurs on or after the WR Act repeal day.
12 FWC to take over some processes
(1) On and after the WR Act repeal day:
(a) an application, other than an interim application, that could have been made to any of the following because of item 11 may be made only to the FWC:
(i) the Commission;
(ii) the President;
(iii) a member of the Commission;
(iv) a Registrar; and
(b) an appeal to the Commission that could have been instituted because of item 11 may be instituted only as an appeal to the FWC; and
(c) a process (however described), other than an interim process, that could have been initiated by the Commission on its own motion because of item 11 may be initiated only by the FWC; and
(d) a matter that could have been referred to the Commission under section 46PW of the Australian Human Rights Commission Act 1986 because of item 11 is to be referred only to the FWC.
(2) For the purposes of subitem (1), a law of the Commonwealth that relates to an application, appeal, process or matter referred to in that subitem is to be read:
(a) as if a reference to a WR Act body or WR Act office were a reference to the FWC, as necessary; and
(b) with any other necessary modifications.
Note: For WR Act body and WR Act office: see subitem 7(1) of Schedule 18.
(3) Subitems (1) and (2) apply subject to this Act.
(4) In this item:
interim application means an application that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.
interim process means a process (however described) that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.
13 Regulations—conduct before repeal
The regulations may do one or more of the following:
(a) modify the operation of the WR Act as it applies under item 11;
(aa) provide that subitem 11(1A) does not apply in relation to specified processes;
(b) provide for any other matter that, because of item 11, could have been dealt with by a WR Act body or a person holding a WR Act office to be dealt with by the FWC, or by the FWC only.
Schedule 3—Continued existence of awards, workplace agreements and certain other WR Act instruments
Part 1—Preliminary
1 Meanings of employee and employer
In this Schedule, employee and employer have their ordinary meanings.
Part 2—Continued existence of WR Act instruments as transitional instruments
2 WR Act instruments that continue in existence as transitional instruments
(1) Each WR Act instrument (see subitem (2)) that becomes a transitional instrument (see subitems (3) to (4A)) continues in existence in accordance with this Schedule from when it becomes a transitional instrument, despite the WR Act repeal.
Note: In addition to provisions of this Schedule, the following other provisions affect the continued existence of transitional instruments:
(a) Part 2 of Schedule 5 (which deals with the WR Act award modernisation process);
(b) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);
(c) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act, including the making of ITEAs during the bridging period);
(d) Schedule 11 (which deals with transfer of business);
(e) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).
(2) Each of the following instruments is a WR Act instrument:
(a) an award;
(aa) a State reference transitional award or common rule;
(b) a notional agreement preserving State awards;
(c) a workplace agreement;
(d) a workplace determination;
(e) a preserved State agreement;
(f) an AWA;
(g) a pre‑reform certified agreement;
(h) a pre‑reform AWA;
(i) an old IR agreement;
(j) a section 170MX award.
Note 1: Workplace agreements are either collective agreements or ITEAs.
Note 2: Preserved State agreements are either preserved collective State agreements or preserved individual State agreements.
Note 3: For transitional provisions relating to Division 2 of Part 7 of the WR Act (which deals with wages), see Schedule 9.
Note 4: For transitional provisions relating to other transitional awards, see Schedule 20.
(3) The following WR Act instruments become transitional instruments on the WR Act repeal day:
(a) each WR Act instrument (other than a Division 2B State reference transitional award) that was in operation immediately before the WR Act repeal day;
(b) each workplace agreement or workplace determination made before the WR Act repeal day but that had not yet come into operation by that day;
(c) any other WR Act instrument that, although not in operation immediately before the WR Act repeal day, could come into operation after that day because of an instrument interaction rule.
Note: Victorian employment agreements are not continued as transitional instruments. For provisions relating to these agreements, see Part 7 of this Schedule.
(3A) If a State reference common rule comes into effect on or after the WR Act repeal day under the provisions that continue to apply because of item 8A, the State reference common rule becomes a transitional instrument when the common rule comes into effect.
(4) If an ITEA is made during the bridging period under Division 7 of Part 2 of Schedule 8, the ITEA becomes a transitional instrument when it is made.
(4A) A Division 2B State reference transitional award becomes a transitional instrument on the Division 2B referral commencement. The Division 2B referral commencement is the time when Division 2B of Part 1‑3 of the FW Act commences.
(5) Transitional instruments are classified as follows:
(a) awards, State reference transitional awards or common rules, and notional agreements preserving State awards, are award‑based transitional instruments;
(b) all other kinds of transitional instruments are agreement‑based transitional instruments;
(c) agreement‑based transitional instruments of the following kinds are collective agreement‑based transitional instruments:
(i) collective agreements;
(ii) workplace determinations;
(iii) preserved collective State agreements;
(iv) pre‑reform certified agreements;
(v) old IR agreements;
(vi) section 170MX awards;
(d) agreement‑based transitional instruments of the following kinds are individual agreement‑based transitional instruments:
(i) ITEAs;
(ii) preserved individual State agreements;
(iii) AWAs;
(iv) pre‑reform AWAs.
2A Meaning of State reference transitional award and various other expressions associated with State references
(1) A State reference transitional award is a transitional award that covers:
(a) one or more specified State reference employers; and
(b) specified State reference employees of those employers.
Note: A transitional award includes a transitional Victorian reference award.
(1A) State reference transitional awards are classified as follows:
(a) if the employers and employees covered are Division 2A State reference employers and Division 2A State reference employees—the State reference transitional award is a Division 2A State reference transitional award;
(b) if the employers and employees covered are Division 2B State reference employers and Division 2B State reference employees—the State reference transitional award is a Division 2B State reference transitional award.
(2) A State reference common rule is a common rule that covers:
(a) specified State reference employers; and
(b) specified State reference employees of those employers.
(3) A State reference employee is an employee who is a national system employee only because of section 30C or 30M of the FW Act.
(3A) State reference employees are classified as follows:
(a) employees who are national system employees because of section 30C of the FW Act are Division 2A State reference employees;
(b) employees who are national system employees because of section 30M of the FW Act are Division 2B State reference employees.
(4) A State reference employer is an employer that is a national system employer only because of section 30D or 30N of the FW Act.
(4A) State reference employers are classified as follows:
(a) employers that are national system employers because of section 30D of the FW Act are Division 2A State reference employers;
(b) employers that are national system employers because of section 30N of the FW Act are Division 2B State reference employers.
(5) If:
(a) a transitional award (the current award), as in force on the WR Act repeal day, covers one or more Division 2A State reference employers, and Division 2A State reference employees of those employers; and
(b) the current award also covers:
(i) other employees of those employers; or
(ii) other employers, and employees of those other employers;
then, for the purposes of this Act, the current award is taken instead, on and after that day (subject to subitem (6)), to constitute 2 separate transitional awards as follows:
(c) a Division 2A State reference transitional award covering:
(i) the employers, and the employees of those employers, referred to in paragraph (a); and
(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; and
(d) a transitional award covering:
(i) the employers, and the employees of those employers, referred to in paragraph (b); and
(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.
(6) If:
(a) a transitional award (the current award), as in force on the Division 2B referral commencement, covers one or more Division 2B State reference employers, and Division 2B State reference employees of those employers; and
(b) the current award also covers:
(i) other employees of those employers; or
(ii) other employers, and employees of those other employers;
then, for the purposes of this Act, the current award is taken instead, on and after the Division 2B referral commencement, to constitute 2 separate transitional awards as follows:
(c) a Division 2B State reference transitional award covering:
(i) the employers, and the employees of those employers, referred to in paragraph (a); and
(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees;
(d) a transitional award covering:
(i) the employers, and the employees of those employers, referred to in paragraph (b); and
(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.
(7) A referring State is:
(a) a State (a Division 2A referring State) that is a referring State as defined in section 30B of the FW Act; or
(b) a State (a Division 2B referring State) that is a referring State as defined in section 30L of the FW Act.
3 The employees, employers etc. who are covered by a transitional instrument and to whom it applies
(1) A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation.
Note 1: The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act.
Note 2: Depending on the terms of a transitional instrument and any relevant provisions of the WR Act, the instrument’s coverage may extend to people who become employees after the instrument becomes a transitional instrument.
(2) A transitional instrument applies to the same employees, employers and any other persons the instrument covers as would, if the WR Act had continued in operation, have been:
(a) required by the WR Act to comply with terms of the instrument; or
(b) entitled under the WR Act to enforce terms of the instrument.
Note: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of a transitional instrument.
(3) However, an award‑based transitional instrument does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).
Note: Item 35 deals with the application of section 329 of the FW Act to award‑based transitional instruments.
(4) This item has effect subject to:
(a) the instrument interaction rules (see item 5); and
(b) the variation or termination of transitional instruments as referred to in item 9;
(c) Division 2 of Part 5 (which deals with interaction between transitional instruments and FW Act modern awards, workplace determinations and enterprise agreements); and
(d) Schedule 11 (which deals with transfer of business); and
(e) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).
4 Transitional instruments continue to be subject to the same instrument content rules
(1) The same instrument content rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.
Note: Certain instrument content rules relating to the standing down of employees do not continue to apply in relation to WR Act instruments that become transitional instruments (see item 3 of Schedule 15).
(2) Instrument content rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, of any of the following kinds:
(a) provisions about what may, must or must not be included in an instrument;
(b) provisions to the effect that a particular term of an instrument is of no effect (however described):
(i) either completely or to a limited extent; and
(ii) either permanently or for a limited period;
(c) provisions to the effect that a particular term is taken to be included in an instrument.
Note: Most of the instrument content rules were in the WR Act.
5 Transitional instruments continue to be subject to the same instrument interaction rules
(1) The same instrument interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.
(2) Instrument interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:
(a) one instrument has priority over, or excludes, another instrument:
(i) either completely or to a particular extent; and
(ii) either permanently or for a particular period; or
(b) one instrument ceases to operate because of another instrument:
(i) either completely or to a particular extent; and
(ii) either permanently or for a particular period.
Note: Most of the instrument interaction rules were in the WR Act.
5A Transitional instruments continue to be subject to the same State and Territory interaction rules
(1) The same State and Territory interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.
(2) State and Territory interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:
(a) an instrument prevails over, or excludes, a law of a State or Territory; or
(b) an instrument has effect subject to a law of a State or Territory.
Note: Most of the State and Territory interaction rules were in the WR Act.
6 References in transitional instruments to the Australian Industrial Relations Commission etc.
(1) If a provision of a transitional instrument confers a power or function on the Australian Industrial Relations Commission, that provision has effect on and after the WR Act repeal day as if references in it to the Commission were instead references to the FWC.
(2) If a provision of a transitional instrument confers a power or function on the Industrial Registrar or a Deputy Industrial Registrar, that provision has effect on and after the WR Act repeal day as if references in it to the Industrial Registrar or a Deputy Industrial Registrar were instead references to the General Manager of the FWC.
(3) This item has effect subject to:
(a) a contrary intention in this Act; and
(b) the regulations.
7 No loss of accrued rights or liabilities when transitional instrument terminates or ceases to apply
(1) If a transitional instrument terminates, or ceases to apply in relation to a person, that does not affect:
(a) any right or liability that a person acquired, accrued or incurred before the transitional instrument terminated or ceased to apply; or
(b) any investigation, legal proceeding or remedy in respect of any such right or liability.
(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional instrument had not terminated or ceased to apply.
(3) This item has effect subject to a contrary intention in this Act or in the FW Act.
8 Certain transitional instruments displace certain Commonwealth laws
(1) To the extent of any inconsistency, the following transitional instruments displace prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations:
(a) a workplace agreement;
(b) a pre‑reform certified agreement;
(c) an AWA;
(d) a pre‑reform AWA.
(2) In subitem (1):
Commonwealth law means an Act or any regulations or other instrument made under an Act.
prescribed conditions means conditions that are identified by the regulations.
(3) If, immediately before the WR Act repeal day, regulations made under section 350 of the WR Act, or that continued to apply under subclause 2(2) or 17(2) of Schedule 7 to the WR Act:
(a) identified a condition as a prescribed condition in relation to an instrument referred to in paragraph (1)(a), (b), (c) or (d); or
(b) prescribed an Act or any regulations or other instrument made under an Act as a Commonwealth law in relation to such an instrument;
those regulations continue to have effect on and after that day as if made for the purposes of this item.
(4) Subitem (3) has effect subject to any regulations made for the purposes of subitem (1) or (2).
8A Continuing application of provisions of the WR Act about common rules
(1) Subject to this item, clauses 82 to 87 of Schedule 6 to the WR Act continue to apply on and after the WR Act repeal day in relation to State reference common rules.
(2) Clauses 82 to 87 continue to apply as if:
(a) references in the clauses to the transitional period (including references to the end of the transitional period) were omitted; and
(b) a reference in the clauses to the Commission were instead a reference to the FWC; and
(c) a reference in the clauses to a Registrar were instead a reference to the General Manager of the FWC; and
(d) a reference in the clauses to the Rules of the Commission were instead a reference to the procedural rules of the FWC.
(3) Subitem (2) has effect unless the context otherwise requires and subject to the regulations.
Note: For example, paragraph (2)(a) does not apply if the reference is to something that the Commission did before the WR Act repeal day (or before the reform commencement).
Part 3—Variation and termination of transitional instruments
9 Transitional instruments can only be varied or terminated in limited circumstances
(1) A transitional instrument cannot be varied except under:
(a) a provision of this Part or the regulations; or
(b) item 26 (which deals with resolving difficulties with the interaction between transitional instruments and the National Employment Standards); or
(c) Part 2 of Schedule 5 (which deals with the WR Act award modernisation process); or
(d) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or
(e) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act); or
(f) Schedule 11 (which deals with transfer of business); or
(g) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).
(2) A transitional instrument cannot be terminated (or otherwise brought to an end) except under:
(a) a provision of this Part or the regulations; or
(b) Part 2 of Schedule 5; or
(c) Division 2 of Part 2 of Schedule 6; or
(d) Schedule 8; or
(e) Schedule 11; or
(f) Part 3 of Schedule 2.
Note: The references in paragraphs (1)(a) and (2)(a) to a provision of this Part or the regulations includes a reference to a provision of the WR Act or the FW Act as it applies because of a provision of this Part.
10 All kinds of transitional instrument: variation to remove ambiguities etc.
(1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the instrument:
(a) to remove an ambiguity or uncertainty in the instrument; or
(b) to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or
(c) to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.
Note: For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26.
(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.
11 All kinds of transitional instrument: variation on referral by AHRC
(1) This item applies if a transitional instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).
(2) If the instrument is an award‑based transitional instrument, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.
(3) If the transitional instrument is an agreement‑based transitional instrument, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.
12 Awards: continued application of WR Act provisions about variation and revocation
(1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act continue to apply on and after the WR Act repeal day in relation to transitional instruments that are awards as if references to the Commission were instead references to the FWC.
Note: Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act.
(2) The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.
(3) An award cannot be varied or revoked under Division 5 or 6 after the end of the bridging period, except as follows:
(a) an award can be varied after the end of the bridging period under section 553 of the WR Act;
(b) an award can be varied or revoked after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period.
12A State reference transitional awards: variation and revocation
General provisions
(1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act apply on and after the WR Act repeal day in relation to transitional instruments that are State reference transitional awards as if:
(a) references to the Commission were instead references to the FWC; and
(b) references to an award included references to a State reference transitional award.
Note 1: Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act.
Note 2: For variation of State reference common rules, see the provisions continued in effect by item 8A.
(2) To avoid doubt, for the purpose of sections 552 and 553 of the WR Act, as applied by subitem (1) in relation to State reference transitional awards, “minimum safety net entitlements” includes minimum safety net entitlements relating to wages.
Note: For variation of terms relating to wages after the end of the bridging period, see subitems (4) to (6).
(3) The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.
Special provisions about variation or revocation after the end of the bridging period
(4) A State reference transitional award cannot be varied or revoked after the end of the bridging period except as follows:
(a) a State reference transitional award, other than terms relating to wages, can be varied after the end of the bridging period under section 553 of the WR Act;
(b) terms of a State reference transitional award relating to wages can be varied after the end of the bridging period in an annual wage review under the FW Act as provided for in subitem (5);
(c) a State reference transitional award can be varied after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period.
(5) In an annual wage review, the FWC may make a determination varying terms of a State reference transitional award relating to wages.
(6) For the purpose of subitem (5), Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to terms of a State reference transitional award relating to wages in the same way as it applies to a modern award.
13 Pre‑reform certified agreements: continued application of WR Act provisions about variation
(1) Subject to this item, clause 2A of Schedule 7 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are pre‑reform certified agreements as if references to the Commission were instead references to FWA.
Note: This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).
(2) An application under clause 2A cannot be made after the end of the bridging period.
14 Preserved collective State agreements: continued application of WR Act provisions about variation
(1) Subject to this item, clause 16A of Schedule 8 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are preserved State agreements as if references to the Commission were instead references to FWA.
Note: This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).
(2) An application under clause 16A cannot be made after the end of the bridging period.
15 Collective agreement‑based transitional instruments: termination by agreement
Subdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.
16 Collective agreement‑based transitional instruments: termination by the FWC
(1) Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.
(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.
(3) To avoid doubt, subsection 615A(3) of the FW Act does not apply in relation to a collective agreement‑based transitional instrument.
17 Individual agreement‑based transitional instruments: termination by agreement
(1) The employee and employer covered by an individual agreement‑based transitional instrument may make a written agreement (a termination agreement) to terminate the agreement in accordance with the following requirements:
(a) the termination agreement must be signed by the employee and the employer;
(b) if the employee is under 18, it must also be signed by a parent or guardian of the employee;
(c) the signatures must be witnessed.
(2) The termination has no effect unless it has been approved by the FWC.
(3) The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:
(a) within 14 days after the termination agreement was made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the instrument if:
(a) the FWC is satisfied that the requirements of subitem (1) have been complied with; and
(b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.
(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.
18 Individual agreement‑based transitional instruments: termination conditional on enterprise agreement
(1) This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual agreement‑based transitional instrument if:
(a) an enterprise agreement (the proposed enterprise agreement) is made that covers the employee and the employer; and
(b) the proposed enterprise agreement comes into operation.
(2) If the transitional instrument has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.
(3) If the transitional instrument has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.
(4) If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.
(5) Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.
(6) The employer must give the employee a copy of the conditional termination if:
(a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or
(b) the conditional termination is signed by the employer in the circumstances covered by subitem (3).
Note 1: For compliance with this obligation, see subitem 3(1) of Schedule 16.
Note 2: Failure to comply with this obligation does not affect the operation of subitem (8).
(7) The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act.
Note 1: For compliance with this obligation, see subitem 3(2) of Schedule 16.
Note 2: Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement.
(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the transitional instrument terminates when the proposed enterprise agreement comes into operation.
19 Individual agreement‑based transitional instruments: unilateral termination with the FWC’s approval
(1) This item applies to an employer or employee:
(a) to whom an individual agreement‑based transitional instrument that has passed its nominal expiry date applies; and
(b) who wants to terminate the transitional instrument.
(2) The employer or employee may:
(a) make a written declaration that identifies the transitional instrument and that states that the employer or employee wants to terminate the transitional instrument; and
(b) apply to the FWC for the approval of the termination.
(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:
(a) the notice must identify the transitional instrument;
(b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the instrument;
(c) the notice must state that, if the FWC approves the termination, the transitional instrument will terminate on the 90th day after the day on which the FWC makes the approval decision;
(d) if the notice is given by the employer:
(i) the notice must state whether, if the instrument terminates during the bridging period, one or more redundancy provisions in the instrument will continue to apply to the employee as provided for by item 38; and
(ii) if one or more redundancy provisions in the instrument will so continue to apply to the employee—the notice must include or be accompanied by a copy of the provision or provisions;
(e) the notice must comply with any other requirements of the regulations.
(4) The FWC must approve the termination if the FWC is satisfied that:
(a) the transitional instrument applies to the employer and the employee; and
(b) the requirements of subitems (2) and (3) have been complied with.
(5) If the FWC approves the termination, the transitional instrument terminates on the 90th day after the day on which the FWC makes the approval decision.
20 Initial sunsetting rules for particular transitional instruments
Notional agreements preserving State awards
(1) A notional agreement preserving State awards (other than a notional agreement that is an enterprise instrument) terminates:
(a) on the 4th anniversary of the FW (safety net provisions) commencement day; or
(b) if the regulations prescribe a later day—on that later day.
Division 3 pre‑reform certified agreements
(2) If the employer in relation to a Division 3 pre‑reform certified agreement is not a national system employer, the agreement terminates on the earlier of the following:
(a) 27 March 2011;
(b) when both of the following conditions are satisfied:
(i) the agreement has passed its nominal expiry date;
(ii) it has been replaced by a State employment agreement (within the meaning of the WR Act).
(3) However, if the employer becomes a national system employer before 27 March 2011, subitem (2) does not apply after that time.
Old IR agreements
(4) If the employer in relation to an old IR agreement is not a national system employer, the agreement terminates on the earlier of the following:
(a) 27 March 2011;
(b) when it has been replaced by a State employment agreement (within the meaning of the WR Act).
(5) However, if the employer becomes a national system employer before 27 March 2011, subitem (4) does not apply after that time.
Section 170MX awards
(6) If:
(a) the employer in relation to a section 170MX award is not a national system employer; and
(b) the section 170MX award:
(i) was in force just before 27 March 2006; or
(ii) was made on or after that day because of Part 8 of Schedule 7 to the WR Act;
the award terminates on the earlier of the following:
(c) 27 March 2011;
(d) when it has been replaced by a State employment agreement (within the meaning of the WR Act).
(7) However, if the employer becomes a national system employer before 27 March 2011, subitem (6) does not apply after that time.
20A Automatic sunsetting of all remaining agreement‑based transitional instruments
Automatic sunsetting
(1) An agreement‑based transitional instrument terminates at the end of the grace period for the instrument if the instrument has not already terminated before that time.
(2) The grace period for an agreement‑based transitional instrument is:
(a) subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or
(b) if the default period is extended for the instrument on one or more occasions under subitem (6) or paragraph (11)(e)—the default period as so extended.
Employer to give notice to employees
(3) An employer covered by an agreement‑based transitional instrument must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the instrument and employed by the employer at the end of that period written notice advising the employee:
(a) that the employee is covered by an agreement‑based transitional instrument; and
(b) that the instrument will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the instrument; and
(c) of the day on which that Part commences.
Note: For compliance with this obligation, see item 4C of Schedule 16.
Application to FWC for extension of default period
(4) Any of the following may apply to the FWC, before the end of the grace period for an agreement‑based transitional instrument, for the FWC to extend the default period for the instrument for a period of no more than 4 years:
(a) an employer covered by the instrument;
(b) an employee covered by the instrument;
(c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the instrument.
(5) An application under subitem (4) must be accompanied by:
(a) a copy of the instrument; and
(b) any declarations that are required by the procedural rules of the FWC to accompany the application.
Extension of default period
(6) If an application is made under subitem (4), the FWC must extend the default period for the agreement‑based transitional instrument for a period of no more than 4 years if the FWC is satisfied that:
(a) subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances to do so; or
(b) it is reasonable in the circumstances to do so.
(7) This subitem applies if:
(a) the application is made at or after the notification time for a proposed enterprise agreement; and
(b) the proposed enterprise agreement will cover:
(i) if the application relates to an individual agreement‑based transitional instrument—the employee covered by the individual agreement‑based transitional instrument; or
(ii) if the application relates to a collective agreement‑based transitional instrument—the same, or substantially the same, group of employees as the collective agreement‑based transitional instrument; and
(c) bargaining for the proposed enterprise agreement is occurring.
(8) This subitem applies if:
(a) the application relates to an individual agreement‑based transitional instrument; and
(b) the employee covered by the instrument would be an award covered employee for the instrument under subitem (10) if the instrument were a collective agreement‑based transitional instrument; and
(c) it is likely that, as at the time the application is made, the employee would be better off overall if the instrument applied to the employee than if the relevant modern award referred to in that subitem applied to the employee.
(9) This subitem applies if:
(a) the application relates to a collective agreement‑based transitional instrument; and
(b) it is likely that, as at the time the application is made, the award covered employees for the instrument under subitem (10), viewed as a group, would be better off overall if the instrument applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.
(10) For the purposes of subitems (8) and (9), the award covered employees for a collective agreement‑based transitional instrument are the employees who:
(a) are covered by the instrument; and
(b) at the time an application is made under subitem (4) in relation to the instrument, are covered by one or more modern awards (the relevant modern awards) that:
(i) are in operation; and
(ii) cover the employees in relation to the work that the employees are to perform under the instrument; and
(c) are employed at that time by an employer who is covered by the instrument and by one or more of the relevant modern awards.
Publication of decisions etc.
(10A) The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:
(a) a decision under subitem (6);
(b) any written reasons that the FWC gives in relation to such a decision;
(c) if the decision is to extend the default period for a collective agreement‑based transitional instrument—the instrument.
The FWC must do so as soon as practicable after making the decision.
(10B) Paragraph (10A)(b) applies subject to any order made under section 594 of the FW Act.
(10C) The FWC must not publish an individual agreement‑based transitional instrument in relation to which an application under subitem (4) is made.
Pending applications
(a) an application is made under subitem (4) in relation to an agreement‑based transitional instrument; and
(b) the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the instrument;
then:
(c) the FWC must make the decision on the application after the critical time; and
(d) the decision on the application is taken to have been made at the critical time; and
(e) if the FWC’s decision on the application is to refuse to extend the default period for the instrument under subitem (6)—the FWC must extend the default period until the end of:
(i) subject to subparagraph (ii), the day the refusal decision is made; or
(ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.
21 Effect of termination
If a transitional instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.
Part 4—Transitional instruments and the Australian Fair Pay and Conditions Standard
22 Same AFPCS interaction rules continue to apply
(1) Subject to this item, the same AFPCS interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.
Note 1: Schedule 4 provides for the continued application of the Australian Fair Pay and Conditions Standard (other than minimum wages provisions) during the bridging period.
Note 2: Schedule 9 provides for the continued application of the minimum wages provisions of the Australian Fair Pay and Conditions Standard on and after the WR Act repeal day.
(2) AFPCS interaction rules of the kind referred to in paragraph (4)(b) do not continue to apply after the end of the bridging period.
Note: This may result in an employee becoming entitled to a rate of pay under a transitional APCS that is higher than was required to be paid to the employee under a transitional instrument during the bridging period. If that occurs, the employer may apply to the FWC for a determination to phase‑in the effect of the increase (see item 14 of Schedule 9).
(3) If, immediately before the end of the bridging period, an AFPCS interaction rule of the kind referred to in paragraph (4)(b) produced the result that an employee to whom a transitional instrument applied was not covered by the obligation in subsection 182(1) or (2) of the WR Act in relation to a transitional APCS, the employee becomes covered by that obligation in relation to that transitional APCS from the end of the bridging period.
(4) AFPCS interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:
(a) the Australian Fair Pay and Conditions Standard prevails over an instrument (or an instrument is of no effect because of the Standard) either completely or to a particular extent; or
(b) an instrument prevails over the Australian Fair Pay and Conditions Standard (or the Standard does not apply because of the instrument) either completely or to a particular extent.
Note: Most of the AFPCS interaction rules were in the WR Act.
Part 5—Transitional instruments and the FW Act
Division 1—Interaction between transitional instruments and the National Employment Standards
23 The no detriment rule
(1) To the extent that a term of a transitional instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the transitional instrument is of no effect.
Note 1: A term of a transitional instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.
Note 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to transitional instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom transitional instruments apply.
Note 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).
(1A) If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 26, the FWC may compare the entitlements which are in dispute:
(a) on a ‘line‑by‑line’ basis, comparing individual terms; or
(b) on a ‘like‑by‑like’ basis, comparing entitlements according to particular subject areas; or
(c) using any combination of the above approaches the FWC sees fit.
(2) Subitem (1) does not affect a term of a transitional instrument that is permitted by a provision of the National Employment Standards as it has effect under item 24.
(3) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a transitional instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.
24 Provisions of the NES that allow instruments to contain particular kinds of terms
(1) The following provisions of the National Employment Standards have effect, on and after the FW (safety net provisions) commencement day, as if a reference to a modern award or an enterprise agreement included a reference to a transitional instrument:
(a) section 63 (which allows terms dealing with averaging of hours of work);
(b) section 93 (which allows terms dealing with cashing out and taking paid annual leave);
(c) section 101 (which allows terms dealing with cashing out paid personal/carer’s leave);
(d) subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer’s leave etc.);
(e) subsection 115(3) (which allows terms dealing with substitution of public holidays);
(f) section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment);
(g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);
(h) section 126 (which allows terms providing for school‑based apprentices and trainees to be paid loadings in lieu).
(2) If:
(a) a transitional instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but
(b) the terms do not include the requirements referred to in subsection (2) of that section;
the instrument is taken to include terms that include the requirements.
25 Shiftworker annual leave entitlement
(1) If:
(a) a transitional instrument applies to an employee; and
(b) the employee is a shift worker as defined in section 228 of the WR Act;
the employee is taken to qualify for the shiftworker annual leave entitlement for the purposes of section 87 of the FW Act.
(2) This item has effect subject to subsection 87(4) of the FW Act.
26 Resolving difficulties about application of this Division
(1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the transitional instrument:
(a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or
(b) to make the instrument operate effectively with the National Employment Standards.
(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.
27 Division does not affect transitional instruments before NES commencement
This Division (including determinations under item 26) does not affect the operation of a transitional instrument at any time before the FW (safety net provisions) commencement day.
Division 2—Interaction between transitional instruments and FW Act modern awards, enterprise agreements and workplace determinations
28 Modern awards and agreement‑based transitional instruments
(1) While an agreement‑based transitional instrument of any of the following kinds applies to an employee, or to an employer or other person in relation to the employee:
(a) a workplace agreement;
(b) a workplace determination;
(c) a preserved State agreement;
(d) an AWA;
(e) a pre‑reform AWA;
a modern award does not apply to the employee, or to the employer or other person in relation to the employee.
Note 1: However, a modern award can continue to cover the employee while the agreement‑based transitional instrument continues to apply.
Note 2: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate).
(2) If:
(a) an agreement‑based transitional instrument of any of the following kinds:
(i) a pre‑reform certified agreement;
(ii) an old IR agreement;
(iii) a section 170MX award; and
(b) a modern award;
both apply to an employee, or to an employer or other person in relation to the employee, the agreement‑based transitional instrument prevails over the modern award, to the extent of any inconsistency.
Note: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate).
28A Terms of modern awards about outworker conditions continue to apply
(1) This item applies if, at a particular time:
(a) an agreement‑based transitional instrument applies to an employee; and
(b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the transitional instrument, apply to the employee.
(2) Despite item 28 and despite any terms of the agreement‑based transitional instrument that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:
(a) the employee;
(b) the employer;
(c) each employee organisation to which the modern award applies.
(3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.
29 Modern awards and award‑based transitional instruments
Modern awards other than the miscellaneous modern award
(1) If a modern award (other than the miscellaneous modern award) that covers an employee, or an employer or other person in relation to the employee, comes into operation, then an award‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.
Note: A modern award cannot be expressed to cover an employee who is covered by a transitional instrument that is an enterprise instrument or a State reference public sector transitional award (see subsections 143(8) and (10) of the FW Act).
The miscellaneous modern award
(2) While an award‑based transitional instrument that covers an employee, or an employer or other person in relation to the employee, is in operation, the miscellaneous modern award does not cover the employee, or the employer or other person in relation to the employee.
Outworker entities
(3) If a modern award (other than the miscellaneous modern award) that contains outworker terms that cover an outworker entity comes into operation, then outworker terms in an award‑based transitional instrument cease to cover (and can never again cover) the outworker entity.
(4) While outworker terms in an award‑based transitional instrument that is in operation cover an outworker entity, any outworker terms in the miscellaneous modern award do not cover the outworker entity.
(5) Outworker terms in an award‑based transitional instrument are terms that would be outworker terms as defined in the FW Act if they were in a modern award.
30 FW Act enterprise agreements and workplace determinations, and agreement‑based transitional instruments
Individual agreement‑based transitional instruments
(1) While an individual agreement‑based transitional instrument applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.
Collective agreement‑based transitional instruments
(2) If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective agreement‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.
Note 1: The fact that a collective agreement‑based transitional instrument applies to employees does not prevent those employees and their employer from replacing that transitional instrument at any time with an enterprise agreement, regardless of whether the transitional instrument has passed its nominal expiry date.
Note 2: Industrial action must not be taken before the nominal expiry date of an agreement‑based transitional instrument, even if it is being replaced by an enterprise agreement (see item 4 of Schedule 13).
31 FW Act enterprise agreements and workplace determinations, and award‑based transitional instruments
If an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then:
(a) an award‑based transitional instrument ceases to apply to the employee, and the employer or other person in relation to the employee; but
(b) the award‑based transitional instrument can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.
Note: Subject to the other provisions of this Part, the award‑based transitional instrument can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.
31A Designated outworker terms of award‑based transitional instrument continue to apply
(1) This item applies if, at a particular time:
(a) an enterprise agreement or workplace determination (under the FW Act) applies to an employer; and
(b) an award‑based transitional instrument covers the employer (whether the transitional instrument covers the employer in the employer’s capacity as an employer or an outworker entity); and
(c) the transitional instrument includes one or more designated outworker terms.
(2) Despite item 31, the designated outworker terms of the award‑based transitional instrument apply at that time to the following:
(a) the employer;
(b) each employee who is both:
(i) a person to whom the enterprise agreement or workplace determination applies; and
(ii) a person who is covered by the transitional instrument;
(c) each employee organisation that is covered by the transitional instrument.
(3) To avoid doubt:
(a) award‑based transitional instruments are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and
(b) designated outworker terms of an award‑based transitional instrument can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and
(c) to the extent to which designated outworker terms of an award‑based transitional instrument apply to an employer, an employee or an employee organisation because of subitem (2), the transitional instrument applies to the employer, employee or organisation.
Division 3—Other general provisions about how the FW Act applies in relation to transitional instruments
32 Employee not award/agreement free if transitional instrument applies
(1) An employee is not an award/agreement free employee for the purposes of the FW Act if a transitional instrument applies to the employee.
(2) The regulations may make provision in relation to any of the following in relation to employees to whom transitional instruments apply:
(a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);
(b) what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);
(c) whether such an employee is a pieceworker for the purposes of the FW Act.
33 Employee’s ordinary hours of work
Item applies for purpose of determining employee’s ordinary hours of work for the FW Act
(1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a transitional instrument applies are to be determined in accordance with this item.
Ordinary hours as specified in transitional instrument
(2) If a transitional instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument.
If subitem (2) does not apply and there is agreement
(3) If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.
If subitem (2) does not apply and there is no agreement
(4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:
(a) if the employee is a full time employee—38 hours; or
(b) if the employee is not a full‑time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s usual weekly hours of work.
If subitem (2) does not apply: agreed hours are less than usual weekly hours
(5) If:
(a) subitem (2) does not apply; and
(b) the employee is not a full‑time employee; and
(c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work;
the ordinary hours of work of the employee in a week are the lesser of:
(d) 38 hours; and
(e) the employee’s usual weekly hours of work.
Regulations may prescribe usual weekly hours
(6) For an employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5).
34 Payment of wages
Division 2 of Part 2‑9 of the FW Act (which deals with payment of wages) applies, on and after the WR Act repeal day, in relation to a transitional instrument as if:
(a) a reference to an enterprise agreement included a reference to an agreement‑based transitional instrument; and
(b) a reference to a modern award included a reference to an award‑based transitional instrument.
35 Guarantee of annual earnings
Division 3 of Part 2‑9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the FW (safety net provisions) commencement day, as if:
(a) a reference to an enterprise agreement included a reference to an agreement‑based transitional instrument; and
(b) a reference to a modern award included a reference to an award‑based transitional instrument and a transitional APCS.
Note: For provisions about transitional APCSs, see Schedule 9.
36 Application of unfair dismissal provisions
Part 3‑2 of the FW Act (which deals with unfair dismissal) applies, on and after the WR Act repeal day, as if:
(a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to an award‑based transitional instrument; and
(b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to an agreement‑based transitional instrument.
37 Regulations may deal with other matters
The regulations may deal with other matters relating to how the FW Act applies in relation to transitional instruments.
Part 6—Preservation of redundancy provisions in agreements etc.
38 Preservation of redundancy provisions when agreement‑based transitional instrument terminates
When this item applies
(1) This item applies if a termination of an agreement‑based transitional instrument (the terminated instrument) takes effect during the bridging period in either of the following circumstances:
(a) the instrument is a preserved collective State agreement or a pre‑reform certified agreement that is terminated by FWA as provided for by item 16 because of an application made by an employer covered by the agreement;
(b) the instrument is an individual agreement‑based transitional instrument that terminates under item 19 because FWA approves a termination of the instrument by an employer covered by the instrument.
Continuation of redundancy provisions
(2) Any redundancy provision that was in the terminated instrument continues to apply to any person to whom the terminated instrument applied immediately before the termination took effect, as if the terminated instrument had continued operating.
Note: For how long the redundancy provision continues to apply, see subitem (6).
(3) A redundancy provision that continues to apply to a person under subitem (2) is taken, for the purpose of this Act, to be a transitional instrument of the same kind as the terminated instrument. However, this does not apply for the purpose of:
(a) the provisions of Parts 2, 3, 4 and 5 of this Schedule, other than subitems 20(2) and (3) and item 23; or
(b) any other provisions prescribed by the regulations.
Continued redundancy provisions generally prevail over other instruments
(4) Subject to subitem (5), a redundancy provision that continues to apply to a person under subitem (2) prevails over any other redundancy provision included in any other instrument that would otherwise apply (even if the provisions in that other instrument might be more beneficial to the employee).
Note: For how long the redundancy provision continues to apply, see subitem (6).
(5) However, if:
(a) an industry‑specific redundancy scheme in a modern award applies to an employee; and
(b) a redundancy provision that continues to apply to an employee under subitem (2) is detrimental to the employee, in any respect, when compared to the scheme in the modern award;
then the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the employee.
Period for which redundancy provisions are continued
(6) A redundancy provision continues under subitem (2) to apply to a person, in relation to an employee to whom the provision applies, until the earliest of the following:
(a) the end of the period of 24 months from the time the termination took effect;
(b) the time when the employee ceases to be employed by the employer (otherwise than in circumstances covered by the provision);
(c) the time when an enterprise agreement, workplace determination or ITEA starts to apply to the employee.
Definitions
(7) In this item:
instrument means:
(a) an award‑based transitional instrument; or
(b) a collective agreement; or
(c) a collective preserved State agreement; or
(d) a pre‑reform certified agreement; or
(e) an old IR agreement.
redundancy provision means any of the following kinds of provisions:
(a) a provision relating to redundancy pay in relation to a termination of employment;
(b) a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;
(c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;
where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.
39 Notification of preservation of redundancy provisions
When this item applies
(1) This item applies if:
(a) FWA makes a decision (a termination decision) of either of the following kinds:
(i) a decision to terminate a transitional instrument as referred to in paragraph 38(1)(a);
(ii) a decision to approve a termination of a transitional instrument as referred to in paragraph 38(1)(b); and
(b) when the termination takes effect, one or more redundancy provisions in the instrument will continue to apply to persons (affected persons) in accordance with item 38.
Notification requirements if the transitional instrument is a preserved collective State agreement or a pre‑reform certified agreement
(2) If the transitional instrument is a preserved collective State agreement or a pre‑reform certified agreement:
(a) the termination decision must:
(i) identify the redundancy provision or the redundancy provisions; and
(ii) state that the provision or provisions will continue to apply to the affected persons; and
(iii) specify the date that is 24 months after the time when the termination takes effect; and
(iv) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6); and
(b) FWA must give a copy of the termination decision to each affected person that is:
(i) an employer; or
(ii) an employee organisation.
(3) An employer that has, under subitem (2), received a copy of a termination decision must take reasonable steps to ensure that all employees to whom the instrument applied immediately before the termination takes effect are given a copy of the decision within 21 days of the employer receiving a copy of the decision.
Note: For compliance with this obligation, see item 4 of Schedule 16.
Notification requirements if the transitional instrument is an individual agreement‑based transitional instrument
(4) If the transitional instrument is an individual agreement‑based transitional instrument, the termination decision must:
(a) identify the redundancy provision or the redundancy provisions; and
(b) state that the provision or provisions will continue to apply to the affected persons; and
(c) specify the date that is 24 months after the time when the termination takes effect; and
(d) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6).
40 Redundancy provisions that were already preserved as at the WR Act repeal day
(1) This item applies if, immediately before the WR Act repeal day, redundancy provisions that were in a WR Act instrument (the terminated instrument) that was terminated before that day (the actual termination) were continuing to bind persons under any of the following provisions:
(a) section 399A of the WR Act;
(b) section 399A of the pre‑transition Act (within the meaning of Schedule 7A to the WR Act);
(c) clause 6A of Schedule 7 to the WR Act;
(d) clause 20A of Schedule 7 to the WR Act;
(e) clause 21A of Schedule 8 to the WR Act;
(f) clause 21D of Schedule 8 to the WR Act.
(2) Item 38 applies as if:
(a) the redundancy provisions were a transitional instrument of the same kind as the terminated instrument; and
(b) a termination of that transitional instrument took effect on the WR Act repeal day as referred to in subitem 38(1); and
(c) the reference in paragraph 38(6)(a) to 24 months were instead a reference to the unexpired part of the period of 24 months that started on the actual termination.
(3) Item 39 does not apply to the termination referred to in paragraph (2)(b).
Part 7—Victorian employment agreements
41 Part applies to Victorian employment agreements
This Part applies to a Victorian employment agreement that was in force in relation to an employer and an employee (the parties) under Division 12 of Part 21 of the WR Act immediately before the WR Act repeal. A Victorian employment agreement is an employment agreement within the meaning of that Division.
42 Victorian employment agreement enforceable as a contract
On and after the WR Act repeal day the Victorian employment agreement is enforceable by one of the parties against the other party as if it were a contract. The provisions of Division 12 of Part 21 of the WR Act do not continue to apply in relation to the agreement.
Part 8—Transitional pay equity order taken to have been made by FWA—Division 2B State reference transitional awards
43 FWA taken to have made a transitional pay equity order to continue the effect of State pay equity orders
(1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.
(2) The transitional pay equity order applies to an employer if:
(a) a modern award applies to the employer on or after the Division 2B referral commencement; and
(b) the employer is prescribed by the regulations for the purposes of this paragraph, or is included in a class of employers prescribed by the regulations for the purposes of this paragraph; and
(c) immediately before the Division 2B referral commencement, a transitional award (the relevant transitional award) applied to the employer.
Note: Transitional award has the same meaning as in Schedule 6 to the WR Act. Schedule 6 is continued in operation by Schedule 20 to this Act.
(3) An employer must not be prescribed by regulations for the purposes of paragraph (2)(b) unless:
(a) an order, decision or determination of a State industrial body (the source pay equity order) would have applied to the employer if the relevant transitional award had not applied to the employer; and
(b) the source pay equity order satisfies subitem (4).
(4) A source pay equity order satisfies this subitem if it:
(a) was made before 15 September 2009; and
(b) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and
(c) was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and
(d) is prescribed by the regulations for the purposes of this paragraph.
(5) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid if the source pay equity order had applied to the employer in respect of the period.
(6) An employee of an employer to which this item applies is an affected employee of the employer if the employee performs work of a kind, at a classification level (however described), in relation to which the source pay equity order determines a base rate of pay.
(7) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.
(8) A term of a modern award is of no effect to the extent that:
(a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and
(b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).
(9) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (8)(a).
Schedule 3A—Treatment of State awards and State employment agreements of Division 2B referring States
Part 1—Preliminary
1 Meanings of employer and employee
In this Schedule, employer and employee have their ordinary meanings.
Part 2—Division 2B State instruments
2 What are Division 2B State instruments?
(1) A Division 2B State instrument is a Division 2B State award (see item 3) or a Division 2B State employment agreement (see item 5).
(2) Subject to subitem (3), a State award is an instrument in relation to which the following conditions are satisfied:
(a) the instrument regulates terms and conditions of employment;
(b) the instrument was made under a State industrial law by a State industrial body;
(c) the instrument is referred to in that law as an award.
Note: This definition does not apply to a reference in a provision of this Act to a State award if the provision expressly refers to the meaning that was given by the WR Act.
(3) The regulations may provide that an instrument of a specified kind:
(a) is a State award; or
(b) is not a State award.
(4) Subject to subitem (5), a State employment agreement is:
(a) an agreement in relation to which the following conditions are satisfied:
(i) the agreement is between an employer and one or more employees of the employer, or between an employer and an association of employees registered under a State industrial law;
(ii) the agreement determines terms and conditions of employment of one or more employees of the employer;
(iii) the agreement was made under a State industrial law; or
(b) a determination in relation to which the following conditions are satisfied:
(i) the determination determines terms and conditions of employment;
(ii) the determination was made under a State industrial law by a State industrial body;
(iii) the determination was made in a situation in which parties who were negotiating for the making of an agreement of a kind described in paragraph (a) had not been able to reach an agreement;
(iv) the purpose of the determination was to resolve the matters that were at issue in those negotiations.
Note: This definition does not apply to a reference in a provision of this Act to a State employment agreement if the provision expressly refers to the meaning that was given by the WR Act.
(5) The regulations may provide that an instrument of a specified kind:
(a) is a State employment agreement; or
(b) is not a State employment agreement.
(6) A State employment agreement is a collective State employment agreement unless:
(a) it is an agreement of a kind that, under the relevant State industrial law, could only be entered into by a single employee and a single employer; or
(b) the agreement is of a kind prescribed by the regulations for the purpose of this paragraph.
(7) A State employment agreement referred to in paragraph (6)(a) or (b) is an individual State employment agreement.
3 Division 2B State awards
(1) If, immediately before the Division 2B referral commencement:
(a) a State award (the source award) was in operation under a State industrial law of a Division 2B referring State (the source State); and
(b) the source award covered (however described in the source award or a relevant law of the source State) employers and employees who become Division 2B State reference employers and Division 2B State reference employees on the Division 2B referral commencement (whether or not the source award also covered other persons);
a Division 2B State award is taken to come into operation immediately after the Division 2B referral commencement.
Note 1: A Division 2B State award is a notional federal instrument derived from the source award.
Note 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State awards:
(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);
(b) Schedule 11 (which deals with transfer of business).
(2) Subject to this Schedule, the Division 2B State award is taken to include the same terms as were in the source award immediately before the Division 2B referral commencement.
Note: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.
(3) If the terms of the source award were affected by an order, decision or determination of a State industrial body or a court of the source State that was in operation immediately before the Division 2B referral commencement, the terms of the Division 2B State award are taken to be similarly affected by the terms of that order, decision or determination.
4 The employees, employers etc. who are covered by a Division 2B State award and to whom it applies
Meaning of covers
(1) A Division 2B State award covers the same employees, employers, outworker entities and any other persons that the source award covered (however described in the award or a relevant law of the source State) immediately before the Division 2B referral commencement.
Note: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State award potentially applies (see subitem (5)). The employees, employers etc. who are within this range will depend on the terms of the award, and on any relevant provisions of the law of the source State.
(2) The Division 2B State award also covers any employees who become employed by an employer on or after the Division 2B referral commencement, and who would have been covered by the source award if they had become so employed immediately before that commencement.
(3) However, the Division 2B State award does not cover:
(a) any employees, employers or outworker entities that are not Division 2B State reference employees, Division 2B State reference employers or Division 2B State reference outworker entities; or
(b) any employees, employers or outworker entities that are covered by an award‑based transitional instrument.
A Division 2B State reference outworker entity is an entity that is an outworker entity only because of section 30Q of the FW Act.
(4) If:
(a) after the Division 2B referral commencement, a person (the employer) starts to employ employees to do work of a kind that was regulated by the source award immediately before that commencement; and
(b) the employer did not employ employees to do that kind of work immediately before that commencement;
then the Division 2B State award also does not cover any of the following, in relation to that kind of work:
(c) the employer;
(d) employees of the employer;
(e) any other persons, in relation to the employer or employees of the employer.
Meaning of applies
(5) A Division 2B State award applies to the same employees, employers, outworker entities and any other persons that the Division 2B State award covers as would have been required by the law of the source State to comply with terms of the source award, or entitled under the law of the source State to enforce terms of the source award, if:
(a) the State had not been a referring State; and
(b) the law of the source State had continued to apply.
Note 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State award.
Note 2: The Division 2B State award does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or (4) or otherwise.
(6) However, a Division 2B State award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).
Note: Item 50 deals with the application of section 329 of the FW Act to Division 2B State awards.
Item has effect subject to other provisions
(7) This item has effect subject to:
(a) the instrument interaction rules (see item 11); and
(b) the termination of Division 2B State instruments as referred to in item 18; and
(c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and
(d) Schedule 11 (which deals with transfer of business).
References to laws of States
(8) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.
5 Division 2B State employment agreements
State employment agreements that were in operation immediately before the Division 2B referral commencement
(1) If, immediately before the Division 2B referral commencement:
(a) a State employment agreement (the source agreement) was in operation under a State industrial law of a Division 2B referring State (the source State); and
(b) the source agreement covered (however described in the source agreement or a relevant law of the source State) employers and employees who become Division 2B State referral employers and Division 2B State referral employees on the Division 2B referral commencement (whether or not the source agreement also covered other persons);
a Division 2B State employment agreement is taken to come into operation immediately after the Division 2B referral commencement.
Note 1: A Division 2B State employment agreement is a notional federal instrument derived from the source agreement.
Note 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:
(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);
(b) Schedule 11 (which deals with transfer of business).
Note 3: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.
(2) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement immediately before the Division 2B referral commencement.
State employment agreements that come into operation on or after the Division 2B referral commencement
(3) If, on or after the Division 2B referral commencement:
(a) a State employment agreement (the source agreement) comes into operation under a State industrial law of a Division 2B referring State (the source State); and
(b) the source agreement covers (however described in the source agreement or a relevant law of the source State) employers and employees who are Division 2B State referral employers and Division 2B State referral employees when the source agreement comes into operation (whether or not the source agreement also covers other persons);
a Division 2B State employment agreement is taken to come into operation immediately after the source agreement comes into operation.
Note 1: A Division 2B State employment agreement is a notional federal instrument derived from the source agreement.
Note 2: There is limited scope for State employment agreements that cover Division 2B State referral employers and employees to come into operation on or after the Division 2B referral commencement: see Part 6 of this Schedule.
Note 3: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:
(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);
(b) Schedule 11 (which deals with transfer of business).
(4) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement when it came into operation.
Collective and individual Division 2B State employment agreements
(5) If the source agreement in relation to a Division 2B State employment agreement is a collective State employment agreement, the Division 2B State employment agreement is a collective Division 2B State employment agreement.
(6) If the source agreement in relation to a Division 2B State employment agreement is an individual State employment agreement, the Division 2B State employment agreement is an individual Division 2B State employment agreement.
6 The employees, employers etc. who are covered by a Division 2B State employment agreement and to whom it applies
Meaning of covers
(1) A Division 2B State employment agreement covers the same employees, employers and any other persons that the source agreement covered (however described in the agreement or a relevant law of the source State) immediately before the Division 2B State employment agreement came into operation.
Note: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State employment agreement potentially applies (see subitem (4)). The employees, employers etc. who are within this range will depend on the terms of the agreement, and on any relevant provisions of the law of the source State.
(2) The Division 2B State employment agreement also covers any employees who become employed by an employer on or after the time when the agreement came into operation, and who would have been covered by the source agreement if they had become so employed immediately before that time.
(3) However, the Division 2B State employment agreement does not cover:
(a) any employees or employers that are not Division 2B State reference employees or Division 2B State reference employers; or
(b) any employees or employers that are covered by an award‑based transitional instrument.
Meaning of applies
(4) A Division 2B State employment agreement applies to the same employees, employers and any other persons that the Division 2B State employment agreement covers as would have been required by the law of the source State to comply with terms of the source agreement, or entitled under the law of the source State to enforce terms of the source agreement, if:
(a) the source State had not been a referring State; and
(b) the law of the source State had continued to apply.
Note 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State employment agreement.
Note 2: The Division 2B State employment agreement does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or otherwise.
Item has effect subject to other provisions
(5) This item has effect subject to:
(a) the instrument interaction rules (see item 11); and
(b) the termination of Division 2B State instruments as referred to in item 18; and
(c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and
(d) Schedule 11 (which deals with transfer of business).
References to laws of States
(6) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.
7 Terms about disputes relating to matters arising under Division 2B State awards
(1) If the source award for a Division 2B State award includes a term that provides for disputes relating to matters arising under the award to be settled by:
(a) a State industrial body; or
(b) a person who is independent of the employers, employees or organisations covered by the source award;
the Division 2B State award is taken not to include that term.
(2) Each Division 2B State award is taken to include the model term that is prescribed by the regulations for dealing with disputes relating to matters arising under Division 2B State awards.
Note: This subitem applies whether or not the source award included a term as mentioned in subitem (1).
(3) The model term does not apply to disputes about matters arising under the source award before the Division 2B referral commencement.
(4) The model term, as taken to be included in a Division 2B State award:
(a) cannot be varied; and
(b) cannot be removed from the award.
8 Terms about disputes relating to matters arising under Division 2B State employment agreements
(1) This item applies if the source agreement for a Division 2B State employment agreement includes a term that provides for disputes relating to matters arising under the agreement to be settled by:
(a) a State industrial body; or
(b) a person who is independent of the employers, employees or organisations covered by the source agreement.
(2) Item 13 of this Schedule does not apply in relation to the term.
Note: Item 13 would otherwise result in references in the term to a State industrial body having effect as if they were references to the FWC.
(2A) However, if the term provides for disputes relating to matters arising under the source agreement to be settled by a State industrial body, then, despite anything in the source agreement or a law of the source State:
(a) the State industrial body may settle, or decline to settle, such a dispute; and
(b) the FWC may settle such a dispute if the State industrial body:
(i) ceases to exist; or
(ii) declines to settle the dispute.
(3) The FWC must, on application in accordance with subitem (4), vary the term in accordance with the application.
(4) For the purpose of subitem (3), an application must be made:
(a) by an employer to which the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employer, with the consent of:
(i) one or more employees to whom the agreement applies; or
(ii) an organisation that is entitled to represent the industrial interests of one or more such employees; or
(b) by an employee to whom the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employee, with the consent of:
(i) an employer to which the Division 2B State employment agreement applies; or
(ii) an organisation that is entitled to represent the industrial interests of such an employer.
9 Application to Division 2B State instruments of provisions of FW Act about dealing with disputes
(1) Subdivision B of Division 2 of Part 6‑2 of the FW Act applies (including for the purpose of section 595 of the FW Act) as follows:
(a) the Subdivision applies in relation to the model term that is taken by item 7 to be included in a Division 2B State award in the same way as the Subdivision applies in relation to a term in a modern award that provides a procedure for dealing with disputes;
(b) the Subdivision applies in relation to a term to which item 8 applies that is included in a Division 2B State employment agreement in the same way as the Subdivision applies in relation to a term in an enterprise agreement that provides a procedure for dealing with disputes.
(2) The reference in subsections 739(5) and 740(4) of the FW Act to a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties, is taken to include a reference to a decision that is inconsistent with a Division 2B State instrument that applies to the parties.
10 Division 2B State instruments continue to be subject to the same instrument content rules
(1) The instrument content rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:
(a) the rules were provisions of a law of the Commonwealth; and
(b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and
(c) any other modifications of those rules prescribed by the regulations were made.
(2) Instrument content rules, in relation to a State, are provisions of a law of the State of any of the following kinds:
(a) provisions about what may, or must, be included in an instrument;
(b) provisions to the effect that a particular term of an instrument is of no effect (however described):
(i) either completely or to a limited extent; and
(ii) either permanently or for a limited period;
(c) provisions to the effect that a particular term is taken to be included in an instrument.
11 Division 2B State instruments continue to be subject to the same instrument interaction rules
(1) The instrument interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:
(a) the rules were provisions of a law of the Commonwealth; and
(b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and
(c) any other modifications of those rules prescribed by the regulations were made.
(2) Instrument interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:
(a) one instrument has priority over, or excludes, another instrument:
(i) either completely or to a particular extent; and
(ii) either permanently or for a particular period; or
(b) one instrument ceases to operate because of another instrument:
(i) either completely or to a particular extent; and
(ii) either permanently or for a particular period.
12 Division 2B State awards continue to be subject to the same outworker interaction rules
(1) The outworker interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State award, as if:
(a) the rules were provisions of a law of the Commonwealth; and
(b) any references in the rules to State awards (however described in the rules) were instead references to Division 2B State awards; and
(c) any other modifications of those rules prescribed by the regulations were made.
(2) Outworker interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:
(a) a State award prevails over, or excludes, a law of the State relating to outworkers; or
(b) a State award has effect subject to a law of the State relating to outworkers.
13 References in Division 2B State instruments to State industrial bodies
(1) Subject to subitem (2), if a term of a Division 2B State instrument is expressed to confer a power or function on a State industrial body, that term has effect as if references in it to the body were instead references to the FWC.
(2) If a term of a Division 2B State instrument is expressed to confer a power or function on the registrar, or a deputy registrar, of a State industrial body, that term has effect on and after the Division 2B referral commencement as if references in it to the registrar or a deputy registrar were instead references to the General Manager of the FWC.
(3) This item has effect subject to:
(a) a contrary intention in this Act; and
(b) the regulations.
Note 1: A Division 2B State award will be taken not to include a term from the source award that provides for the settlement of disputes relating to matters arising under the award: see item 7.
Note 2: This item does not apply to a term of a Division 2B State employment agreement that provides for the settlement of disputes relating to matters arising under the agreement: see item 8.
14 Non‑accruing entitlements: counting service under the source award or source agreement
General rule
(1) Subitem (2) applies for the purpose of determining the entitlements of a Division 2B State reference employee under a Division 2B State instrument (other than an entitlement to leave of a kind to which item 15 applies).
(2) Service of the employee with an employer before the Division 2B referral commencement that counted for the purpose of the application to the employee of the source award or source agreement also counts as service of the employee with the employer for the purpose of the application to the employee of the Division 2B State instrument.
No double entitlement
(3) If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (2) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the Division 2B State instrument.
(4) To avoid doubt, subitem (3) does not require an employee to serve any initial qualifying period of service for long service leave again.
Note: For how the kinds of matters covered by this item and items 15 and 16 are dealt with in relation to entitlements under the National Employment Standards, see Division 2 of Part 3 of Schedule 4.
15 Accruing entitlements: leave accrued immediately before the Division 2B referral commencement
(1) This item applies to leave of the following kinds:
(a) annual leave (however described) that accrues to an employee;
(b) personal leave or carer’s leave (however described) that accrues to an employee.
(2) If a Division 2B referral employee to whom a Division 2B State instrument applies had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of leave to which this item applies (whether the leave accrued under the source award or source agreement, or under a State industrial law), the accrued leave is taken to have accrued under the Division 2B State instrument.
16 Leave that is being, or is to be, taken under the source award or source agreement
(1) If a Division 2B State reference employee was, immediately before the Division 2B referral commencement, taking a period of leave under the source award or source agreement, the employee is entitled to continue on that leave under the Division 2B State instrument for the remainder of the period.
(2) If a Division 2B State reference employee has, before the Division 2B referral commencement, taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a period of leave under the source award or source agreement, the employee is taken to have taken the step under the Division 2B State instrument.
(3) The regulations may deal with other matters relating to how a Division 2B State instrument applies to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken by a Division 2B State reference employee under the source award or source agreement.
17 No loss of accrued rights or liabilities when Division 2B State instrument terminates or ceases to apply
(1) If a Division 2B State instrument terminates, or ceases to apply in relation to a person, that does not affect:
(a) any right or liability that a person acquired, accrued or incurred before the instrument terminated or ceased to apply; or
(b) any investigation, legal proceeding or remedy in respect of any such right or liability.
(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the Division 2B State instrument had not terminated or ceased to apply.
(3) This item has effect subject to a contrary intention in this Act or in the FW Act.
Part 3—Variation and termination of Division 2B State instruments
18 Division 2B State instruments can only be varied or terminated in limited circumstances
(1) A Division 2B State instrument cannot be varied except under:
(a) a provision of this Part or the regulations; or
(b) item 8 (which deals with terms about disputes relating to matters arising under Division 2B State employment agreements); or
(c) item 40 (which deals with resolving difficulties with the interaction between Division 2B State instruments and the National Employment Standards); or
(d) Part 6 of this Schedule (which deals with ongoing operation of State laws for transitional purposes); or
(e) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or
(f) item 20 of Schedule 9 (which deals with variation of Division 2B State awards in annual wage reviews); or
(g) Schedule 11 (which deals with transfer of business).
(2) A Division 2B State instrument cannot be terminated (or otherwise brought to an end) except under:
(a) a provision of this Part or the regulations; or
(b) Part 6 of this Schedule; or
(c) Division 2 of Part 2 of Schedule 6; or
(d) Schedule 11.
19 Variation to remove ambiguities etc.
(1) On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument:
(a) to remove an ambiguity or uncertainty in the instrument; or
(b) if the instrument is a Division 2B State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or
(c) to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.
Note: For variation of a Division 2B State instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 40.
(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.
20 Variation on referral by Australian Human Rights Commission
(1) This item applies if a Division 2B State instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).
(2) If the instrument is a Division 2B State award, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.
(3) If the instrument is a Division 2B State employment agreement, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.
21 Division 2B State awards: automatic termination after 12 months
(1) A Division 2B State award terminates at the end of 12 months after the Division 2B referral commencement.
(2) A term of a Division 2B State award that provides for the award to terminate before the end of that 12 month period is of no effect.
(3) This item does not apply to a Division 2B enterprise award.
Note: Schedule 6 (modern enterprise awards) applies to Division 2B enterprise awards.
22 Collective Division 2B State employment agreements: termination by agreement
Subdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.
23 Collective Division 2B State employment agreements: termination by the FWC
(1) Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.
(2) To avoid doubt, subsection 615A(3) of the FW Act does not apply in relation to a collective Division 2B State employment agreement.
24 Individual Division 2B State employment agreements: termination by agreement
(1) The employee and employer covered by an individual Division 2B State employment agreement (the Division 2B agreement) may make a written agreement (a termination agreement) to terminate the Division 2B agreement in accordance with the following requirements:
(a) the termination agreement must be signed by the employee and the employer;
(b) if the employee is under 18, it must also be signed by a parent or guardian of the employee;
(c) the signatures must be witnessed.
(2) The termination has no effect unless it has been approved by the FWC.
(3) The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:
(a) within 14 days after the termination agreement was made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the Division 2B agreement if:
(a) the FWC is satisfied that the requirements of subitem (1) have been complied with; and
(b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.
(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.
25 Individual Division 2B State employment agreements: termination conditional on enterprise agreement
(1) This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual Division 2B State employment agreement (the Division 2B agreement) if:
(a) an enterprise agreement (the proposed enterprise agreement) is made that covers the employee and the employer; and
(b) the proposed enterprise agreement comes into operation.
(2) If the Division 2B agreement has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.
(3) If the Division 2B agreement has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.
(4) If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.
(5) Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.
(6) The employer must give the employee a copy of the conditional termination if:
(a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or
(b) the conditional termination is signed by the employer in the circumstances covered by subitem (3).
Note 1: For compliance with this obligation, see subitem 4B(1) of Schedule 16.
Note 2: Failure to comply with this obligation does not affect the operation of subitem (8).
(7) The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act.
Note 1: For compliance with this obligation, see subitem 4B(2) of Schedule 16.
Note 2: Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement.
(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the Division 2B agreement terminates when the proposed enterprise agreement comes into operation.
26 Individual Division 2B State employment agreements: unilateral termination with the FWC’s approval
(1) This item applies to an employer or employee:
(a) to whom an individual Division 2B State employment agreement (the Division 2B agreement) that has passed its nominal expiry date applies; and
(b) who wants to terminate the Division 2B agreement.
(2) The employer or employee may:
(a) make a written declaration that identifies the Division 2B agreement and that states that the employer or employee wants to terminate the agreement; and
(b) apply to the FWC for the approval of the termination.
(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:
(a) the notice must identify the Division 2B agreement;
(b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the agreement;
(c) the notice must state that, if the FWC approves the termination, the agreement will terminate on the 90th day after the day on which the FWC makes the approval decision;
(d) the notice must comply with any other requirements of the regulations.
(4) The FWC must approve the termination if the FWC is satisfied that:
(a) the Division 2B agreement applies to the employer and the employee; and
(b) the requirements of subitems (2) and (3) have been complied with.
(5) If the FWC approves the termination, the Division 2B agreement terminates on the 90th day after the day on which the FWC makes the approval decision.
26A Automatic sunsetting of all remaining Division 2B State employment agreements
Automatic sunsetting
(1) A Division 2B State employment agreement terminates at the end of the grace period for the agreement if the agreement has not already terminated before that time.
(2) The grace period for a Division 2B State employment agreement is:
(a) subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or
(b) if the default period is extended for the agreement on one or more occasions under subitem (6) or paragraph (11)(e)—the default period as so extended.
Employer to give notice to employees
(3) An employer covered by a Division 2B State employment agreement must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the agreement and employed by the employer at the end of that period written notice advising the employee:
(a) that the employee is covered by a Division 2B State employment agreement; and
(b) that the agreement will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the agreement; and
(c) of the day on which that Part commences.
Note: For compliance with this obligation, see item 4C of Schedule 16.
Application to FWC for extension of default period
(4) Any of the following may apply to the FWC, before the end of the grace period for a Division 2B State employment agreement, for the FWC to extend the default period for the agreement for a period of no more than 4 years:
(a) an employer covered by the agreement;
(b) an employee covered by the agreement;
(c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement.
(5) An application under subitem (4) must be accompanied by:
(a) a copy of the agreement; and
(b) any declarations that are required by the procedural rules of the FWC to accompany the application.
Extension of default period
(6) If an application is made under subitem (4), the FWC must extend the default period for the Division 2B State employment agreement for a period of no more than 4 years if the FWC is satisfied that:
(a) subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances to do so; or
(b) it is reasonable in the circumstances to do so.
(7) This subitem applies if:
(a) the application is made at or after the notification time for a proposed enterprise agreement; and
(b) the proposed enterprise agreement will cover:
(i) if the application relates to an individual Division 2B State employment agreement—the employee covered by the individual Division 2B State employment agreement; or
(ii) if the application relates to a collective Division 2B State employment agreement—the same, or substantially the same, group of employees as the Division 2B State employment agreement; and
(c) bargaining for the proposed enterprise agreement is occurring.
(8) This subitem applies if:
(a) the application relates to an individual Division 2B State employment agreement; and
(b) the employee covered by the agreement would be an award covered employee for the agreement under subitem (10) if the agreement were a collective Division 2B State employment agreement; and
(c) it is likely that, as at the time the application is made, the employee would be better off overall if the agreement applied to the employee than if the relevant modern award referred to in that subitem applied to the employee.
(9) This subitem applies if:
(a) the application relates to a collective Division 2B State employment agreement; and
(b) it is likely that, as at the time the application is made, the award covered employees for the agreement under subitem (10), viewed as a group, would be better off overall if the agreement applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.
(10) For the purposes of subitems (8) and (9), the award covered employees for a collective Division 2B State employment agreement are the employees who:
(a) are covered by the agreement; and
(b) at the time an application is made under subitem (4) in relation to the agreement, are covered by one or more modern awards (the relevant modern awards) that:
(i) are in operation; and
(ii) cover the employees in relation to the work that the employees are to perform under the agreement; and
(c) are employed at that time by an employer who is covered by the agreement and by one or more of the relevant modern awards.
Publication of decisions etc.
(10A) The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:
(a) a decision under subitem (6);
(b) any written reasons that the FWC gives in relation to such a decision;
(c) if the decision is to extend the default period for a collective Division 2B State employment agreement—the agreement.
The FWC must do so as soon as practicable after making the decision.
(10B) Paragraph (10A)(b) applies subject to any order made under section 594 of the FW Act.
(10C) The FWC must not publish an individual Division 2B State employment agreement in relation to which an application under subitem (4) is made.
Pending applications
(a) an application is made under subitem (4) in relation to a Division 2B State employment agreement; and
(b) the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the agreement;
then:
(c) the FWC must make the decision on the application after the critical time; and
(d) the decision on the application is taken to have been made at the critical time; and
(e) if the FWC’s decision on the application is to refuse to extend the default period for the agreement under subitem (6)—the FWC must extend the default period until the end of:
(i) subject to subparagraph (ii), the day the refusal decision is made; or
(ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.
27 Meaning of nominal expiry date of Division 2B State employment agreement
The nominal expiry date of a Division 2B State employment agreement is:
(a) the day on which the source agreement would nominally have expired under the relevant State industrial law of the source State; or
(b) if that day falls after the end of a period of 3 years beginning on the Division 2B referral commencement—the last day of that 3 year period.
28 Effect of termination
If a Division 2B State instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.
Part 4—Transition of employees from Division 2B State awards to FW Act modern awards
Division 1—FWA required to consider varying modern awards etc.
29 FWA to consider varying modern awards to continue effect of terms of Division 2B State awards
(1) During the period of 12 months starting on the Division 2B referral commencement, FWA:
(a) must consider whether any modern awards should be varied to include terms in relation to which the following conditions are satisfied:
(i) the purpose of including the terms is to continue (in whole or in part) the effect of terms that are contained in a Division 2B State award, other than a Division 2B enterprise award;
(ii) the terms only relate to employees, employers or other persons covered by the Division 2B State award;
(iii) the terms deal with matters of a kind that are permitted by section 136 of the FW Act to be included in modern awards; and
(b) may make one or more determinations varying modern awards to include such terms.
(2) Terms may be included in a modern award in accordance with this item despite section 154 of the FW Act.
(3) Terms included in a modern award in accordance with this item:
(a) take effect at the end of 12 months after the Division 2B referral commencement; and
(b) cease to have effect:
(i) at the end of 5 years after the Division 2B referral commencement; or
(ii) if the terms are expressed to cease to have effect at an earlier time—at that earlier time.
30 FWA to consider making orders to continue effect of long service leave terms of Division 2B State awards
(1) During the period of 12 months starting on the Division 2B referral commencement, FWA:
(a) must consider whether any orders should be made in relation to which the following conditions are satisfied:
(i) the purpose of making the order is to continue (in whole or in part) the effect of terms relating to long service leave that are contained in a Division 2B State award, other than a Division 2B enterprise award;
(ii) the order only relates to employees, employers or other persons covered by the Division 2B State award; and
(b) may make one or more such orders.
(2) An order under subitem (1):
(a) takes effect at the end of 12 months after the Division 2B referral commencement; and
(b) ceases to have effect:
(i) at the end of 5 years after the Division 2B referral commencement; or
(ii) if the order is expressed to cease to have effect at an earlier time—at that earlier time.
(3) Paragraph 675(1)(a) of the FW Act has effect as if it also included a reference to an order under subitem (1).
(4) To the extent that a term of a Division 2B State award, or of an enterprise agreement, is detrimental to an employee, in any respect, when compared to an order under subitem (1), the term of the award or agreement is of no effect.
Note: A term of a Division 2B State award, or of an enterprise agreement, that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the order will continue to have effect.
(5) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State award or an enterprise agreement are, or are not, detrimental in any respect when compared to an order under subitem (1).
Division 1A—Transitional pay equity order taken to have been made by FWA—Division 2B State awards
30A FWA taken to have made a transitional pay equity order to continue the effect of State pay equity orders
(1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.
(2) The transitional pay equity order applies to an employer if:
(a) a Division 2B State award that applies to the employer terminates at a time (the termination time) after the Division 2B referral commencement; and
(b) the base rate of pay payable immediately before the termination time to some or all of the employees to whom the Division 2B State award applied was determined in whole or part by, or in accordance with, an order, decision or determination (the source pay equity order) of a State industrial body that:
(i) was made before 15 September 2009; and
(ii) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and
(iii) was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and
(c) immediately after the termination time, a modern award applies to the employer.
Note: After the Division 2B referral commencement, a source pay equity order may have effect either because of subitem 3(3) of this Schedule, or because the terms of the source pay equity order had been incorporated in the source award from which the Division 2B State award was derived.
(3) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid under the Division 2B State award in respect of that period, assuming that:
(a) the Division 2B State award had not terminated; and
(b) the base rate of pay had continued to be determined in whole or part by, or in accordance with, the source pay equity order in respect of that period.
(4) An employee of an employer to which this item applies is an affected employee of the employer if:
(a) all of the following conditions are satisfied:
(i) the employee was employed by the employer at the termination time;
(ii) the Division 2B State award applied to the employee at the termination time;
(iii) the employee’s base rate of pay under the Division 2B State award was determined in whole or part by, or in accordance with, the source pay equity order at the termination time; or
(b) all of the following conditions are satisfied:
(i) the employee becomes employed by the employer after the termination time;
(ii) a Division 2B State award would have applied to the employee if he or she had been employed by the employer immediately before the termination time;
(iii) the employee’s base rate of pay under the Division 2B State award would have been determined in whole or part by, or in accordance with, the source pay equity order at the termination time.
(5) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.
(6) A term of a modern award is of no effect to the extent that:
(a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and
(b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).
(7) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (6)(a).
Division 2—Avoiding reductions in take‑home pay
31 Termination of Division 2B State awards is not intended to result in reduction in take‑home pay
(1) The termination of a Division 2B State award by item 21 is not intended to result in a reduction in the take‑home pay of employees or outworkers.
(2) An employee’s or outworker’s take‑home pay is the pay an employee or outworker actually receives:
(a) including wages and incentive‑based payments, and additional amounts such as allowances and overtime; but
(b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.
Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.
(3) An employee suffers a reduction in take‑home pay to which this item applies if, and only if:
(a) when a Division 2B State award terminates because of item 21, the employee becomes a person to whom a modern award applies; and
(b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the termination of the Division 2B State award; and
(c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the employee’s take‑home pay for those hours or that quantity of work immediately before the termination; and
(d) that reduction in the employee’s take‑home pay is attributable to the termination of the Division 2B State award.
(4) An outworker who is not an employee suffers a reduction in take‑home pay to which this item applies if, and only if:
(a) when a Division 2B State award terminates because of item 21, the outworker becomes a person to whom outworker terms in a modern award relate; and
(b) the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the termination of the Division 2B State award; and
(c) the amount of the outworker’s take‑home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the outworker’s take‑home pay for those hours or that quantity of work immediately before the termination; and
(d) that reduction in the outworker’s take‑home pay is attributable to the termination of the Division 2B State award.
32 Orders remedying reductions in take‑home pay
Employees
(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a reduction in take‑home pay to which item 31 applies, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.
Outworkers
(2) If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a reduction in take‑home pay to which item 31 applies, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation.
General provisions
(3) The FWC may make a take‑home pay order only on application by:
(a) an employee or outworker who has suffered a reduction in take‑home pay to which item 31 applies; or
(b) an organisation that is entitled to represent the industrial interests of such an employee or outworker; or
(c) a person acting on behalf of a class of such employees or outworkers.
(4) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.
33 Ensuring that take‑home pay orders are confined to the circumstances for which they are needed
(1) The FWC must not make a take‑home pay order under item 32 in relation to an employee or class of employees, or an outworker or a class of outworkers, if:
(a) the FWC considers that the reduction in take‑home pay is minor or insignificant; or
(b) the FWC is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.
(2) The FWC must ensure that a take‑home pay order is expressed so that:
(a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a reduction in take‑home pay to which item 31 applies; and
(b) if the take‑home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order.
34 Take‑home pay order continues to have effect so long as modern award continues to cover the employee or employees
A take‑home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.
35 Inconsistency with modern awards and enterprise agreements
A term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take‑home pay order that applies to the employee or outworker.
36 Application of provisions of FW Act to take‑home pay orders
The FW Act applies as if the following provisions of that Act included a reference to a take‑home pay order:
(a) subsection 675(2);
(b) subsection 706(2).
Note: For compliance with take‑home pay orders, see item 7 of Schedule 16 to this Act.
Part 5—Division 2B State instruments and the FW Act
Division 1—Interaction between Division 2B State instruments and the National Employment Standards
37 The no detriment rule
(1) To the extent that a term of a Division 2B State instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the instrument is of no effect.
Note 1: A term of a Division 2B State instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.
Note 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to Division 2B State instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom Division 2B State instruments apply.
Note 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).
(2) If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 40, the FWC may compare the entitlements which are in dispute:
(a) on a ‘line‑by‑line’ basis, comparing individual terms; or
(b) on a ‘like‑by‑like’ basis, comparing entitlements according to particular subject areas; or
(c) using any combination of the above approaches the FWC sees fit.
(3) Subitem (1) does not affect a term of a Division 2B State instrument that is permitted by a provision of the National Employment Standards as it has effect under item 38.
(4) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.
38 Provisions of the NES that allow instruments to contain particular kinds of terms
(1) The following provisions of the National Employment Standards have effect, on and after the Division 2B referral commencement, as if a reference to a modern award or an enterprise agreement included a reference to a Division 2B State instrument:
(a) section 63 (which allows terms dealing with averaging of hours of work);
(b) section 93 (which allows terms dealing with cashing out and taking paid annual leave);
(c) section 101 (which allows terms dealing with cashing out paid personal/carer’s leave);
(d) subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer’s leave etc.);
(e) subsection 115(3) (which allows terms dealing with substitution of public holidays);
(f) section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment);
(g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);
(h) section 126 (which allows terms providing for school‑based apprentices and trainees to be paid loadings in lieu).
(2) If:
(a) a Division 2B State instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but
(b) the terms do not include the requirements referred to in subsection (2) of that section;
the instrument is taken to include terms that include the requirements.
39 Shiftworker annual leave entitlement
Subsections 87(3) to (5) of the FW Act apply in relation to an employee to whom a Division 2B State instrument applies in the same way as they apply to an award/agreement free employee.
Note: If the employee qualifies for the shiftworker annual leave entitlement under those subsections, the employee will be entitled to 5 (rather than 4) weeks of paid annual leave.
40 Resolving difficulties about application of this Division
(1) On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument:
(a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or
(b) to make the instrument operate effectively with the National Employment Standards.
(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.
Division 2—Interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations
41 Modern awards and Division 2B State employment agreements
Collective Division 2B State employment agreements
(1) If a collective Division 2B State employment agreement and a modern award both apply to an employee, or to an employer or other person in relation to the employee, the Division 2B State employment agreement prevails over the modern award, to the extent of any inconsistency.
Note: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).
Individual Division 2B State employment agreements
(2) While an individual Division 2B State employment agreement applies to an employee, or to an employer or other person in relation to an employee, a modern award does not apply to the employee, or to the employer or other person in relation to the employee.
Note 1: However, a modern award can continue to cover the employee while the individual Division 2B State employment agreement continues to apply.
Note 2: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).
42 Terms of modern awards about outworker conditions continue to apply
(1) This item applies if, at a particular time:
(a) a Division 2B State employment agreement applies to an employee; and
(b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the Division 2B State employment agreement, apply to the employee.
(2) Despite item 41 and despite any terms of the Division 2B State employment agreement that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:
(a) the employee;
(b) the employer;
(c) each employee organisation to which the modern award applies.
(3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.
43 Modern awards and Division 2B State awards
Employees and employers
(1) While a Division 2B State award that covers an employee, or an employer or other person in relation to the employee, is in operation, a modern award does not cover the employee, or the employer or other person in relation to the employee.
Note: When the Division 2B State award terminates, a modern award will start to cover the employee, or the employer or other person in relation to the employee.
Outworker entities
(2) While a Division 2B State award that contains outworker terms that cover an outworker entity is in operation, outworker terms in a modern award do not cover the outworker entity.
Note: When the Division 2B State award terminates, a modern award will start to cover the outworker entity.
(3) Outworker terms in a Division 2B State award are terms that would be outworker terms as defined in the FW Act if they were in a modern award.
44 FW Act enterprise agreements and workplace determinations, and Division 2B State employment agreements
Collective Division 2B State employment agreements
(1) If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective Division 2B State employment agreement ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.
Note 1: The fact that a collective Division 2B State employment agreement applies to employees does not prevent those employees and their employer from replacing that agreement at any time with an enterprise agreement, regardless of whether the collective Division 2B State employment agreement has passed its nominal expiry date.
Note 2: Industrial action must not be taken before the nominal expiry date of a collective Division 2B State employment agreement (see item 4 of Schedule 13).
Individual Division 2B State employment agreements
(2) While an individual Division 2B State employment agreement applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.
45 FW Act enterprise agreements and workplace determinations, and Division 2B State awards
If an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then:
(a) a Division 2B State award ceases to apply to the employee, and the employer or other person in relation to the employee; but
(b) the Division 2B State award can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.
Note: Subject to the other provisions of this Part, the Division 2B State award can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.
46 Designated outworker terms of Division 2B State award continue to apply
(1) This item applies if, at a particular time:
(a) an enterprise agreement or workplace determination (under the FW Act) applies to an employer; and
(b) a Division 2B State award covers the employer (whether the award covers the employer in the employer’s capacity as an employer or an outworker entity); and
(c) the Division 2B State award includes one or more designated outworker terms.
(2) Despite item 45, the designated outworker terms of the Division 2B State award apply at that time to the following:
(a) the employer;
(b) each employee who is both:
(i) a person to whom the enterprise agreement or workplace determination applies; and
(ii) a person who is covered by the Division 2B State award;
(c) each employee organisation that is covered by the Division 2B State award.
(3) To avoid doubt:
(a) Division 2B State awards are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and
(b) designated outworker terms of a Division 2B State award can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and
(c) to the extent to which designated outworker terms of a Division 2B State award apply to an employer, an employee or an employee organisation because of subitem (2), the award applies to the employer, employee or organisation.
Division 3—Other general provisions about how the FW Act applies in relation to Division 2B State instruments
47 Employee not award/agreement free if Division 2B State instrument applies
(1) An employee is not an award/agreement free employee for the purposes of the FW Act if a Division 2B State instrument applies to the employee.
(2) The regulations may make provision in relation to any of the following in relation to employees to whom Division 2B State instruments apply:
(a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);
(b) what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);
(c) whether such an employee is a pieceworker for the purposes of the FW Act.
48 Employee’s ordinary hours of work
Item applies for purpose of determining employee’s ordinary hours of work for the FW Act
(1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a Division 2B State instrument applies are to be determined in accordance with this item.
Ordinary hours as specified in Division 2B State instrument
(2) If a Division 2B State instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument.
If subitem (2) does not apply and there is agreement
(3) If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.
If subitem (2) does not apply and there is no agreement
(4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:
(a) if the employee is a full time employee—38 hours; or
(b) if the employee is not a full‑time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s usual weekly hours of work.
If subitem (2) does not apply: agreed hours are less than usual weekly hours
(5) If:
(a) subitem (2) does not apply; and
(b) the employee is not a full‑time employee; and
(c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work;
the ordinary hours of work of the employee in a week are the lesser of:
(d) 38 hours; and
(e) the employee’s usual weekly hours of work.
Regulations may prescribe usual weekly hours
(6) For an employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5).
49 Payment of wages
Division 2 of Part 2‑9 of the FW Act (which deals with payment of wages) applies, on and after the Division 2B referral commencement, in relation to a Division 2B State instrument as if:
(a) a reference to an enterprise agreement included a reference to a Division 2B State employment agreement; and
(b) a reference to a modern award included a reference to a Division 2B State award.
50 Guarantee of annual earnings
Division 3 of Part 2‑9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the Division 2B referral commencement, as if:
(a) a reference to an enterprise agreement included a reference to a Division 2B State employment agreement; and
(b) a reference to a modern award included a reference to a Division 2B State award.
51 Application of unfair dismissal provisions
Part 3‑2 of the FW Act (which deals with unfair dismissal) applies, on and after the Division 2B referral commencement, as if:
(a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to a Division 2B State award; and
(b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to a Division 2B State employment agreement.
52 Regulations may deal with other matters
The regulations may deal with other matters relating to how the FW Act applies in relation to Division 2B State instruments.
Part 6—Ongoing operation of State laws for transitional purposes
53 Definitions
(1) Subject to subitem (2), in this Part:
agreement appeal means an appeal to a State industrial body against a decision made by a State industrial body in an agreement proceeding.
agreement proceeding means a proceeding (other than an agreement appeal) before a State industrial body for the body to:
(a) approve a State employment agreement; or
(b) approve a variation or termination of a State employment agreement; or
(c) vary or terminate a State employment agreement.
approve, in relation to a State employment agreement or a variation or termination of a State employment agreement, means:
(a) approve or certify (however described) the agreement, or the variation or termination, under a State industrial law; and
(b) do any other things (for example, register the agreement) that are required to be done under that law after approval or certification in order for the agreement, or the variation or termination, to come into operation.
award appeal means an appeal to a State industrial body against a decision made by a State industrial body in an award proceeding.
award proceeding means a proceeding (other than an award appeal) before a State industrial body for the body to:
(a) make a State award; or
(b) vary or terminate a State award.
coverage terms of a source award or source agreement are terms setting out the employees, employers, outworker entities or other persons that are covered (however described) by the award or agreement.
terminate, in relation to a State employment agreement, means terminate or rescind (however described) the agreement under a State industrial law.
vary, in relation to a State employment agreement, means vary or amend (however described) the agreement under a State industrial law.
(2) The regulations may provide that a certain proceeding:
(a) is, or is not, an agreement appeal as defined in subitem (1); or
(b) is, or is not, an agreement proceeding as defined in subitem (1); or
(c) is, or is not, an award appeal as defined in subitem (1); or
(d) is, or is not, an award proceeding as defined in subitem (1).
54 Part does not affect variations or terminations related to a proposed transfer of business
Nothing in this Part affects the application of section 26 of the FW Act to a law of a Division 2B referring State so far as the law provides for the variation or termination of a State award or a State employment agreement because of a proposed transfer of business (however described).
55 Commencement or completion of award appeals
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an award appeal in relation to which the following conditions are satisfied:
(a) the decision appealed against was made before the Division 2B referral commencement in an award proceeding;
(b) the decision was:
(i) to vary, or not to vary, an award; or
(ii) to terminate, or not to terminate, an award.
Note: The following (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced or completed on or after the Division 2B referral commencement:
(a) award proceedings;
(b) award appeals, if the appeal is against a decision to make, or not make, an award.
(2) Subitem (1):
(a) does not apply to the commencement of an award appeal more than 21 days after the day on which the decision appealed against was made; and
(b) ceases to apply to an award appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.
56 Completion of agreement proceedings
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the completion of an agreement proceeding that had commenced before the Division 2B referral commencement.
Note: Agreement proceedings (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced on or after the Division 2B referral commencement.
(2) Subitem (1) ceases to apply to an agreement proceeding if the proceeding has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.
57 Agreement appeals
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an agreement appeal (whether the decision appealed against is or was made before, on or after the Division 2B referral commencement).
(2) Subitem (1):
(a) does not apply to the commencement of an agreement appeal more than 21 days after the day on which the decision appealed against was made; and
(b) ceases to apply to an agreement appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.
58 Decisions made in award appeals, agreement proceedings and agreement appeals
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law provides for when any of the following decisions (a State decision) come into operation:
(a) a decision made in award appeal to which subitem 55(1) applies;
(b) a decision made in an agreement proceeding to which subitem 56(1) applies;
(c) a decision made in an agreement appeal to which subitem 57(1) applies.
Note: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.
(2) Subject to subitems (3) and (4), if a State decision affects the source award or source agreement for a Division 2B State instrument, the Division 2B State instrument is taken to be affected by the State decision in the same way, and from the same time, as the source award or source agreement is affected by the State decision.
(3) Subitem (2) does not apply to a State decision that affects the coverage terms of the source award or source agreement.
(4) Any resulting alteration of an entitlement under the Division 2B State instrument takes effect only from the later of the day on which the State decision is made and the day on which the decision comes into operation.
59 Agreements etc. that had not come into operation by the Division 2B referral commencement
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law provides:
(a) for when a State employment agreement comes into operation, if the State employment agreement was approved by a State industrial body before the Division 2B referral commencement, but the agreement had not yet come into operation by that commencement; or
(b) for when a variation or termination of a State employment agreement comes into operation, if the variation or termination was approved or made by a State industrial body before the Division 2B referral commencement, but the variation or termination had not yet come into operation by that commencement.
Note: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.
(2) Subject to subitem (3), if, at a time when a Division 2B State employment agreement is in operation, a variation or termination of the source agreement comes into operation as mentioned in subitem (1), the Division 2B State employment agreement is taken to have been varied in the same way, or to have been terminated, (as the case requires) immediately after that time.
(3) Subitem (2) does not apply to a variation that affects the coverage terms of the source agreement.
60 Proceedings relating to entitlements or obligations that arose before the Division 2B referral commencement etc.
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to compliance with an entitlement or obligation:
(a) that arose before the Division 2B referral commencement under a State industrial law; and
(b) that relates to an act or omission which occurred before that commencement.
(2) Subitem (1) does not apply to entitlements or obligations relating to any of the following:
(a) the making, variation or termination of State awards or State employment agreements;
(b) bargaining or industrial action.
Note: Orders and injunctions of State industrial bodies relating to industrial action that are in operation immediately before the Division 2B referral commencement can continue to have effect, and be enforced, under State law after the Division 2B referral commencement: see item 61.
(3) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to a termination of employment that occurred before the Division 2B referral commencement.
(4) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law:
(a) relates to proceedings that commenced before the Division 2B referral commencement; and
(b) provides for the variation or setting aside of entitlements and obligations arising under a contract of employment, or another arrangement for employment, that a court or a State industrial body of the State finds is unfair.
61 Continuation of orders and injunctions of State industrial bodies or courts
Despite section 26 of the FW Act:
(a) an order made, or an injunction granted, by a State industrial body or a court of a Division 2B referring State to prevent or stop industrial action (however described) that was in operation immediately before the Division 2B referral commencement may continue to have effect under the law of the State on and after that day; and
(b) the order or injunction may continue to be enforced under the law of the State on or after that day.
Schedule 4—National Employment Standards
Part 1—Preliminary
1 Meanings of employee and employer
In this Schedule, employee and employer have their ordinary meanings.
Part 2—Continued application of WR Act minimum entitlements provisions (other than wages) during bridging period
2 Continued application of the Australian Fair Pay and Conditions Standard leave and work hours provisions
Divisions 3, 4, 5 and 6 of Part 7 of the WR Act continue to apply during the bridging period.
Note 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Part 3 of Schedule 9 to this Act provides for the continued application of Division 2 of Part 7 (which deals with wages).
Note 2: Part 4 of Schedule 3 to this Act provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.
3 Continued application of entitlements to meal breaks, public holidays and parental leave
Divisions 1, 2 (other than sections 615 to 618) and 6 of Part 12 of the WR Act continue to apply during the bridging period.
4 Continued application of notice of termination provisions
The following provisions of the WR Act continue to apply in relation to terminations of employment that occur during the bridging period, or notice of which is given during the bridging period:
(a) section 661;
(b) the following other provisions, as they relate to section 661:
(i) subsections 637(3), (4) and (5);
(ii) section 638;
(iii) section 640;
(iv) section 642;
(v) section 662.
4A References to workplace agreements include references to enterprise agreements
(1) The provisions of the WR Act that continue to apply because of this Part have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.
(2) Subitem (1) has effect unless the context otherwise requires and subject to the regulations.
Part 3—Operation of the National Employment Standards
Division 1—Operation in relation to employees other than Division 2B State reference employees
5A Application of this Division
This Division applies in relation to employees other than Division 2B State reference employees.
5 Non‑accruing entitlements: counting service before the FW (safety net provisions) commencement day
General rule
(1) An employee’s service with an employer before the FW (safety net provisions) commencement day counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to:
(a) paid annual leave; and
(b) paid personal/carer’s leave.
Note 1: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).
Note 2: Interaction between the National Employment Standards and transitional instruments is dealt with in Division 1 of Part 5 of Schedule 3.
No double entitlement
(2) If, before the FW (safety net provisions) commencement day, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.
(3) To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.
Limitation on application of general rule to redundancy pay
(4) Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the FW (safety net provisions) commencement day did not provide for an entitlement to redundancy pay.
6 Accruing entitlements: leave accrued immediately before the FW (safety net provisions) commencement day
(1) This item applies if, immediately before the FW (safety net provisions) commencement day, an employee has an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under Part 7 of the WR Act, a transitional instrument or otherwise.
(2) The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing‑out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.
7 Leave that, immediately before the FW (safety net provisions) commencement day, is being, or is to be, taken under Part 7 of the WR Act
(1) If:
(a) immediately before the FW (safety net provisions) commencement day, an employee is taking a period of a type of leave under Part 7 of the WR Act; and
(b) there is an equivalent type of leave under the National Employment Standards;
the employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period.
Note: For example, if an employee is taking paid annual leave under Part 7 of the WR Act immediately before the FW (safety net provisions) commencement day, the employee is entitled to continue on paid annual leave under the National Employment Standards.
(2) If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave:
(a) the amount of leave the employee is taking or will take;
(b) the time at which the leave is taken;
(c) the arrangements for taking the leave.
Note: If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.
(3) If, before the FW (safety net provisions) commencement day:
(a) an employee has taken a step that the employee is required to take so that the employee can, on or after the FW (safety net provisions) commencement day, take a type of leave referred to in subitem (1); and
(b) an equivalent step is required under the National Employment Standards;
the employee is taken to have taken the step under the National Employment Standards.
Note: For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.
(4) If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave.
Note: For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.
(5) The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the FW (safety net provisions) commencement day, is being, or is to be, taken under Part 7 of the WR Act.
8 Community service leave
(1) An employee may, on or after the FW (safety net provisions) commencement day, be absent from his or her employment under Division 8 of the National Employment Standards even if the period of absence began before that day.
(2) If an employee is absent from his or her employment in accordance with subitem (1), subsection 111(5) of the National Employment Standards applies as if a reference to the first 10 days of absence were a reference to the first 10 days of absence occurring on or after the FW (safety net provisions) commencement day.
9 Notice of termination
(1) Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the FW (safety net provisions) commencement day.
(2) However, that Subdivision does not apply to a termination if notice of the termination was given before the FW (safety net provisions) commencement day.
10 Redundancy pay
Subdivision B of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the FW (safety net provisions) commencement day, even if notice of the termination was given before that day.
11 References to transfers of employment
References to a transfer of employment in:
(a) provisions of the National Employment Standards; and
(b) subsections 22(5) and (6) of the FW Act, as those provisions apply for the purposes of the National Employment Standards;
do not cover a situation where the employee became employed by the second employer (within the meaning of subsection 22(7) of the FW Act) at a time before the FW (safety net provisions) commencement day.
12 Recognised emergency management bodies
A body that was established, or continued in existence, for the purpose, or for purposes that include the purpose, of enabling one or more employees to obtain the protection of subsection 659(2) of the WR Act (which dealt with unlawful termination) is not a recognised emergency management body for the purposes of the FW Act.
13 Fair Work Information Statement
The obligation in section 125 of the National Employment Standards for an employer to give an employee the Fair Work Information Statement only applies to an employee who starts employment with the employer on or after the FW (safety net provisions) commencement day.
14 Regulations
The regulations may make provision in relation to how the National Employment Standards apply to, or are affected by, things done or matters occurring before the FW (safety net provisions) commencement day.
Division 2—Operation in relation to Division 2B State reference employees
15 Application of this Division
This Division applies in relation to Division 2B State reference employees.
16 Non‑accruing entitlements: counting service before the Division 2B referral commencement
General rule
(1) An employee’s service with an employer before the Division 2B referral commencement counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to:
(a) paid annual leave; and
(b) paid personal/carer’s leave.
Note 1: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).
Note 2: Interaction between the National Employment Standards and Division 2B State instruments is dealt with in Division 1 of Part 5 of Schedule 3A to this Act.
No double entitlement
(2) If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.
(3) To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.
Limitation on application of general rule to redundancy pay
(4) Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the Division 2B referral commencement did not provide for an entitlement to redundancy pay.
(5) If, had an employee’s employment been terminated for redundancy (however described) before the Division 2B referral commencement, a State industrial body could have made an order giving the employee an entitlement to redundancy pay (however described):
(a) the terms and conditions of the employee’s employment referred to in subitem (4) are taken to have provided for an entitlement to redundancy pay; and
(b) paragraph 121(1)(b) of the FW Act does not apply in relation to the employee during the period of 12 months starting on the Division 2B referral commencement.
Note: Because of paragraph (b), the employee may therefore be entitled to redundancy pay under section 119 of the FW Act if the employee’s employment is terminated during the 12 month period starting on the Division 2B referral commencement, even if the employer is a small business employer.
17 Accruing entitlements: leave accrued immediately before the Division 2B referral commencement
(1) This item applies if an employee had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under a State industrial law, the source award or source agreement for a Division 2B State instrument, or otherwise.
(2) The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing‑out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.
18 Leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or a State industrial law
(1) If:
(a) an employee was, immediately before the Division 2B referral commencement, taking a period of a type of leave under:
(i) Division 6 of Part 7 of the WR Act; or
(ii) a State industrial law; and
(b) there is an equivalent type of leave under the National Employment Standards;
the employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period.
Note: For example, if an employee was taking parental leave under Division 6 of Part 7 of the WR Act immediately before the Division 2B referral commencement, the employee is entitled to continue on unpaid parental leave under the National Employment Standards.
(2) If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave:
(a) the amount of leave the employee is taking or will take;
(b) the time at which the leave is taken;
(c) the arrangements for taking the leave.
Note: If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.
(3) If, before the Division 2B referral commencement:
(a) an employee has taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a type of leave referred to in subitem (1); and
(b) an equivalent step is required under the National Employment Standards;
the employee is taken to have taken the step under the National Employment Standards.
Note: For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.
(4) If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave.
Note: For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.
(5) The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or under a State industrial law of a Division 2B referring State.
19 Notice of termination
(1) Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement.
(2) However, that Subdivision does not apply to a termination if notice of the termination was given before the Division 2B referral commencement.
20 Redundancy pay
Subdivision B of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement, even if notice of the termination was given before that day.
21 Fair Work Information Statement
The obligation in section 125 of the National Employment Standards for an employer to give an employee the Fair Work Information Statement only applies to an employee who starts employment with the employer on or after the Division 2B referral commencement.
22 Regulations
The regulations may make provision in relation to how the National Employment Standards apply to, or are affected by, things done or matters occurring before the Division 2B referral commencement.
Schedule 5—Modern awards (other than modern enterprise awards and State reference public sector modern awards)
Part 1—Preliminary
1 Meanings of employee and employer
In this Schedule, employee means a national system employee and employer means a national system employer.
Part 2—The WR Act award modernisation process
2 AIRC to continue and complete the award modernisation process
(1) The Australian Industrial Relations Commission is to continue and complete the award modernisation process provided for by Part 10A of the WR Act (the Part 10A award modernisation process).
Note: Enterprise award etc. modernisation is provided for in Schedule 6.
(2) For that purpose, Part 10A of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part.
(3) Without limiting subitem (2), the request under section 576C of the WR Act continues to apply on and after the WR Act repeal day, and may be varied in accordance with that section.
(3A) Part 10A of the WR Act applies as if:
(a) a reference to an employee were a reference to a national system employee; and
(b) a reference to an employer were a reference to a national system employer; and
(c) all the words after “eligible entity” in paragraph 576K(2)(b) were omitted and the words “may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers” were substituted; and
(d) the definition of eligible entity in section 576U were omitted; and
(e) subsection 576Z(4) were omitted; and
(f) a reference to an eligible entity were a reference to an outworker entity within the meaning of the FW Act; and
(g) subsection 576K(1) were omitted; and
(h) a reference to an outworker in subsection 576K(2) were a reference to an outworker within the meaning of the FW Act; and
(i) the definition of outworker term in section 576U were omitted; and
(j) a reference to an outworker term in section 576V were a reference to an outworker term within the meaning of the FW Act.
(4) The Australian Industrial Relations Commission’s power under section 576H of the WR Act to vary a modern award cannot be exercised after the modern award has come into operation.
(5) In continuing and completing the Part 10A award modernisation process, the Australian Industrial Relations Commission must have regard to:
(a) the state of the national economy; and
(b) the likely effects on the national economy of any modern award that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation; and
(c) the likely effects on the relevant industry or industry sector of any modern award that the Commission is considering, or is proposing to make, including on productivity, labour costs and the regulatory burden on businesses.
3 Variation and termination of certain transitional instruments etc. to take account of Part 10A award modernisation process
(1) The FWC must, as soon as practicable after a modern award (other than the miscellaneous modern award) made in the Part 10A award modernisation process comes into operation (and subject to subitem (3)):
(a) terminate any of the following (modernisable instruments) that the FWC considers are completely replaced by the modern award:
(i) award‑based transitional instruments;
(ii) transitional APCSs; and
(b) if the FWC considers that the modern award only partly replaces a modernisable instrument—vary the coverage terms of the modernisable instrument accordingly.
Note 1: The main provisions about transitional instruments are in Schedule 3, and the main provisions about transitional APCSs are in Schedule 9.
Note 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.
(2) As soon as practicable after all modern awards made in the Part 10A modernisation process have come into operation, the FWC must (subject to subitem (3)) terminate any remaining modernisable instruments.
(3) However, the FWC must not, under this item:
(a) terminate a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award, or that covers employees who are also covered by an enterprise instrument or a State reference public sector transitional award; or
(b) vary a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award; or
(c) vary a modernisable instrument so that it ceases to cover employees who are also covered by an enterprise instrument or a State reference public sector transitional award.
Note 1: Item 9 of Schedule 6 deals with termination and variation of modernisable instruments to take account of the enterprise instrument or a State reference public sector transitional award modification process.
Note 2: Item 10 of Schedule 6A deals with termination and variation of State reference public sector transitional awards to take account of the State reference public sector transitional award modernisation process.
(4) The FWC may establish a process for making decisions under this item to terminate or vary one or more modernisable instruments.
(5) The FWC may advise persons or bodies about that process in any way the FWC considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5).
4 How the FW Act applies to modern awards made in the Part 10A award modernisation process
(1) A modern award made in the Part 10A award modernisation process is, for the purposes of the FW Act (and any other law), taken to be a modern award within the meaning of that Act from the later of the following days:
(a) the day on which the award is made;
(b) the FW (safety net provisions) commencement day.
(2) Section 49 of the FW Act does not apply for the purpose of determining when the modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence (in accordance with section 576Y of the WR Act).
(3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern awards made in the Part 10A award modernisation process.
5 Variations to deal with minor problems attributable to award modernisation starting before enactment of FW Act
(1) If the FWC considers that there is a minor or technical problem with a modern award that is attributable to the fact that the Part 10A award modernisation process started before the enactment of the FW Act, the FWC may make a determination varying the modern award to resolve the problem.
Note: Certain modern awards may, for example, contain references to concepts or provisions that are not consistent with the FW Act as enacted. This variation power allows the FWC to fix such references.
(2) The FWC may make the determination:
(a) on its own initiative; or
(b) on application by an employer, employee, organisation or outworker entity covered by the modern award; or
(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or
(d) if the variation is of outworker terms in the modern award—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the terms relate.
6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years
(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, the FWC must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that the FWC is required to conduct under the FW Act.
(2) In the review, the FWC must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.
(3) The FWC may make a determination varying any of the modern awards in any way that the FWC considers appropriate to remedy any issues identified in the review.
Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2‑3 of the FW Act).
(4) The modern awards objective applies to the FWC making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) The FWC may advise persons or bodies about the review in any way the FWC considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5).
7 Review of transitional arrangements included in modern awards
(1) If:
(a) a modern award includes terms (review terms) under which the FWC may review transitional arrangements included in the award; and
(b) the review terms, and the transitional arrangements, were included in the award in the Part 10A award modernisation process;
the FWC may:
(c) review the award in accordance with the review terms; and
(d) make a determination varying the award in any way it considers necessary, having regard to that review.
Note: Any variation of the modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2‑3 of the FW Act).
(2) The review terms are taken to be terms that are permitted to be included in the modern award by Subdivision B of Division 3 of Part 2‑3 of the FW Act.
Part 3—Avoiding reductions in take‑home pay
8 Part 10A award modernisation process is not intended to result in reduction in take‑home pay
(1) The Part 10A award modernisation process is not intended to result in a reduction in the take‑home pay of employees or outworkers.
(2) An employee’s or outworker’s take‑home pay is the pay an employee or outworker actually receives:
(a) including wages and incentive‑based payments, and additional amounts such as allowances and overtime; but
(b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.
Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.
(3) An employee suffers a modernisation‑related reduction in take‑home pay if, and only if:
(a) a modern award made in the Part 10A award modernisation process starts to apply to the employee when the award comes into operation; and
(b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the modern award came into operation; and
(c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the modern award comes into operation is less than what would have been the employee’s take‑home pay for those hours or that quantity of work immediately before the award came into operation; and
(d) that reduction in the employee’s take‑home pay is attributable to the Part 10A award modernisation process.
(4) An outworker who is not an employee suffers a modernisation‑related reduction in take‑home pay if, and only if:
(a) when a modern award that contains outworker terms comes into operation, the outworker is a person to whom outworker terms in the modern award relate; and
(b) the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the modern award came into operation; and
(c) the amount of the outworker’s take‑home pay for working particular hours or for a particular quantity of work after the modern award comes into operation is less than what would have been the outworker’s take‑home pay for those hours or that quantity of work immediately before the award came into operation; and
(d) that reduction in the outworker’s take‑home pay is attributable to the Part 10A award modernisation process.
9 Orders remedying reductions in take‑home pay
Employees
(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.
Outworkers
(2) If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation.
General provisions
(3) The FWC may make a take‑home pay order only on application by:
(a) an employee or outworker who has suffered a modernisation‑related reduction in take‑home pay; or
(b) an organisation that is entitled to represent the industrial interests of such an employee or outworker; or
(c) a person acting on behalf of a class of such employees or outworkers.
(4) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.
10 Ensuring that take‑home pay orders are confined to the circumstances for which they are needed
(1) The FWC must not make a take‑home pay order in relation to an employee or class of employees, or an outworker or a class of outworkers, if:
(a) the FWC considers that the modernisation‑related reduction in take‑home pay is minor or insignificant; or
(b) the FWC is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.
(2) The FWC must ensure that a take‑home pay order is expressed so that:
(a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a modernisation‑related reduction in take‑home pay; and
(b) if the take‑home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order.
11 Take‑home pay order continues to have effect so long as modern award continues to cover the employee or employees
A take‑home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.
12 Inconsistency with modern awards and enterprise agreements
A term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take‑home pay order that applies to the employee or outworker.
13 Application of provisions of FW Act to take‑home pay orders
The FW Act applies as if the following provisions of that Act included a reference to a take‑home pay order:
(a) subsection 675(2);
(b) subsection 706(2).
Note: For compliance with take‑home pay orders, see item 7 of Schedule 16.
Schedule 6—Modern enterprise awards
Part 1—Preliminary
1 Meanings of employee and employer
In this Schedule, employee means a national system employee and employer means a national system employer.
Part 2—The enterprise instrument modernisation process
Division 1—Enterprise instruments
2 Enterprise instruments
(1) Each of the following is an enterprise instrument:
(a) an enterprise award‑based instrument;
(b) an enterprise preserved collective State agreement;
(c) a Division 2B enterprise award.
(2) An enterprise award‑based instrument is an award‑based transitional instrument, other than a State reference public sector transitional award, to which subitem (2A) or (2B) applies.
(2A) This subitem applies to an award‑based transitional instrument that is an award or a State reference transitional award, if the award or State reference transitional award covers employees in:
(a) a single enterprise (or a part of a single enterprise) only; or
(b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
(2B) This subitem applies to an award‑based transitional instrument that is a notional agreement preserving State awards, if the notional agreement includes terms and conditions from a State award (within the meaning of the WR Act) that covered employees in:
(a) a single enterprise (or a part of a single enterprise) only; or
(b) one or more enterprises, if the employers all carried on similar business activities under the same franchise and were:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
(3) An enterprise preserved collective State agreement is a transitional instrument that is a preserved collective State agreement in relation to which the following paragraphs are satisfied:
(a) a State or Territory law had, on the day before the commencement of Part 2 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005, the effect (however described) of converting a State award (within the meaning of the WR Act) into the relevant State employment agreement (within the meaning of the WR Act);
(b) if the State award had continued to have effect in relation to employees, a notional agreement preserving State awards to which subitem (2B) applies would have been taken to come into operation in relation to those employees.
(4) A Division 2B enterprise award is a Division 2B State award that covers:
(a) a single enterprise (or a part of a single enterprise) only; or
(b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
3 Meaning of single enterprise and part of a single enterprise
(1) A single enterprise is:
(a) a business, project or undertaking that is carried on by an employer; or
(b) the activities carried on by:
(i) the Commonwealth, a State or a Territory; or
(ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest.
(2) For the purposes of subitem (1), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.
(3) For the purposes of subitem (1), if 2 or more related bodies corporate each carry on a single enterprise:
(a) the bodies corporate are taken to be one employer; and
(b) the single enterprises are taken to be one single enterprise.
Note: However, an enterprise instrument or a modern enterprise award could just relate to a part of that single enterprise.
(4) A part of a single enterprise includes, for example:
(a) a geographically distinct part of the single enterprise; or
(b) a distinct operational or organisational unit within the single enterprise.
Division 2—The enterprise instrument modernisation process
4 The enterprise instrument modernisation process
(1) The enterprise instrument modernisation process is the process of making modern awards under this Division to replace enterprise instruments.
(2) On application, the FWC may make a modern award (a modern enterprise award) to replace an enterprise instrument.
(3) The application may be made only:
(a) by a person covered by the enterprise instrument; and
(b) during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(4) A modern enterprise award must be made by a Full Bench.
(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:
(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
(e) the extent to which the enterprise instrument provides enterprise‑specific terms and conditions of employment;
(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.
Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.
(5A) If the FWC makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.
Note: For when a modern enterprise award is in operation, see item 17.
(6) The regulations may deal with other matters relating to the enterprise instrument modernisation process.
5 Enterprise instruments: termination by the FWC
(1) A person covered by an enterprise instrument may apply to the FWC for the FWC to terminate the instrument.
(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(3) If an application for the FWC to terminate the enterprise instrument is made under subitem (1), the FWC may:
(a) terminate the enterprise instrument; or
(b) decide that the enterprise instrument should not be terminated; or
(c) decide to treat the application as if it were an application under item 4.
(4) In making a decision under subitem (3), the FWC must take into account the following:
(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
(e) the extent to which the enterprise instrument provides enterprise‑specific terms and conditions of employment;
(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to terminate, or not terminate, the enterprise instrument, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.
Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.
(5) If the FWC terminates the enterprise instrument, the termination operates from the day specified in the decision to terminate the instrument, being a day that is not earlier than the FW (safety net provisions) commencement day.
6 The modern enterprise awards objective
(1) The modern awards objective and the minimum wages objective apply to the FWC making a modern enterprise award under this Division.
(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.
Note 1: See also item 11 (enterprise instrument modernisation process is not intended to result in reduction in take‑home pay).
Note 2: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).
7 Terms of modern enterprise awards
(1) Subject to this item and item 8, Division 3 of Part 2‑3 of the FW Act (which deals with terms of modern awards) applies in relation to a modern enterprise award made under this Division.
Note: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).
Increases in entitlements
(2) If the making of a modern enterprise award results in an increase in an employee’s entitlements, the modern enterprise award may provide for the increases to take effect in stages.
Industry‑specific redundancy schemes
(3) If a modern award includes an industry‑specific redundancy scheme in relation to a particular industry, and the FWC makes a modern enterprise award that covers persons who operate in that industry, the FWC may include the industry‑specific redundancy scheme in the modern enterprise award.
8 Coverage terms
Coverage terms must be included
(1) A modern enterprise award must include terms (coverage terms) setting out, in accordance with this item:
(a) the enterprise or enterprises to which the modern enterprise award relates; and
(b) the employer or employers, employees and organisations that are covered by the modern enterprise award.
Enterprises
(2) A modern enterprise award must be expressed to relate:
(a) to a single enterprise (or a part of a single enterprise) only; or
(b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
Employers and employees
(3) A modern enterprise award must be expressed to cover:
(a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subitem (2); and
(b) specified employees of the employer or employers covered by the modern enterprise award.
Organisations
(4) A modern enterprise award may be expressed to cover one or more specified organisations, in relation to:
(a) all or specified employees covered by the award; or
(b) the employer, or all or specified employers, covered by the award.
Outworker entities
(5) A modern enterprise award must not be expressed to cover outworker entities.
How coverage etc. is expressed
(6) For the purposes of subitem (2), an enterprise must be specified:
(a) if paragraph (2)(a) applies to the enterprise—by name; or
(b) if paragraph (2)(b) applies to the enterprise—by name, or by the name of the franchise.
(7) For the purposes of subitems (3) and (4):
(a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name.
Employees not traditionally covered by awards etc.
(8) A modern enterprise award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
Note: For example, in some industries, managerial employees have traditionally not been covered by awards.
9 Variation and termination of certain instruments to take account of enterprise instrument modernisation process
(1) If the FWC makes a modern enterprise award to replace an enterprise preserved collective State agreement, the agreement terminates when the modern award comes into operation.
(2) The FWC must, as soon as practicable after a modern enterprise award that is made to replace an enterprise instrument comes into operation:
(a) terminate the enterprise instrument (if it has not already terminated under subitem (1)); and
(b) vary or terminate (as appropriate) any of the following (modernisable instruments):
(i) other award‑based transitional instruments;
(ii) transitional APCSs;
(iii) other Division 2B State awards;
so that employees who were covered by the enterprise instrument are no longer covered by those modernisable instruments.
Note 1: The main provisions about transitional instruments are in Schedule 3, the main provisions about transitional APCSs are in Schedule 9, and the main provisions about Division 2B State awards are in Schedule 3A.
Note 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.
(3) If the FWC decides not to make a modern enterprise award to replace an enterprise instrument, the instrument terminates when that decision comes into operation.
(3A) Despite subitem (3), if, before the FW (safety net provisions) commencement day, the FWC makes a decision not to make a modern enterprise award to replace an enterprise instrument, the decision must not come into operation before the FW (safety net provisions) commencement day.
(4) If, by the end of the period specified in paragraph 4(3)(b), no application under item 4 or 5 has been made in relation to an enterprise instrument, the instrument terminates at the end of that period.
(5) As soon as practicable after all modern enterprise awards made in the enterprise instrument modernisation process have come into operation, the FWC must terminate any remaining modernisable instruments.
10 Notification of the cut‑off for the enterprise instrument modernisation process
(1) The FWC must, at least 6 months before the end of the period specified in paragraph 4(3)(b), advise any persons still covered by an enterprise instrument:
(a) that the period for making applications under items 4 and 5 ends on 31 December 2013; and
(b) of the consequences for the enterprise instrument if an application in relation to the instrument is not made.
(2) The FWC may give that advice by any means it considers appropriate.
(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item.
Division 3—Avoiding reductions in take‑home pay
11 Enterprise instrument modernisation process is not intended to result in reduction in take‑home pay
(1) The enterprise instrument modernisation process is not intended to result in a reduction in the take‑home pay of employees.
(2) An employee’s take‑home pay is the pay an employee actually receives:
(a) including wages and incentive‑based payments, and additional amounts such as allowances and overtime; but
(b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.
Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.
(3) An employee suffers a modernisation‑related reduction in take‑home pay if, and only if:
(a) a modern enterprise award made in the enterprise instrument modernisation process starts to apply to the employee when the award comes into operation; and
(b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the modern enterprise award came into operation; and
(c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the modern enterprise award comes into operation is less than what would have been the employee’s take‑home pay for those hours or that quantity of work immediately before the award came into operation; and
(d) that reduction in the employee’s take‑home pay is attributable to the enterprise instrument modernisation process.
12 Orders remedying reductions in take‑home pay
(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern enterprise award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.
(2) The FWC may make a take‑home pay order only on application by:
(a) an employee who has suffered a modernisation‑related reduction in take‑home pay; or
(b) an organisation that is entitled to represent the industrial interests of such an employee; or
(c) a person acting on behalf of a class of such employees.
(3) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees.
13 Ensuring that take‑home pay orders are confined to the circumstances for which they are needed
(1) The FWC must not make a take‑home pay order in relation to an employee or class of employees if:
(a) the FWC considers that the modernisation‑related reduction in take‑home pay is minor or insignificant; or
(b) the FWC is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.
(2) The FWC must ensure that a take‑home pay order is expressed so that:
(a) it does not apply to an employee unless the employee has actually suffered a modernisation‑related reduction in take‑home pay; and
(b) if the take‑home pay payable to the employee under the modern enterprise award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.
14 Take‑home pay order continues to have effect so long as modern enterprise award continues to cover the employee or employees
A take‑home pay order made in relation to an employee or class of employees to whom a particular modern enterprise award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern enterprise award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.
15 Inconsistency with modern enterprise awards and enterprise agreements
A term of a modern enterprise award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a take‑home pay order that applies to the employee.
16 Application of provisions of FW Act to take‑home pay orders
The FW Act applies as if the following provisions of that Act included a reference to a take‑home pay order:
(a) subsection 675(2);
(b) subsection 706(2).
Note: For compliance with take‑home pay orders, see item 7 of Schedule 16.
Division 4—Application of the FW Act
16A How the FW Act applies to the modernisation process before the FW (safety net provisions) commencement day
For the purposes of making a modern enterprise award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced:
(a) Part 2‑2 (which deals with the National Employment Standards);
(b) section 134 (which deals with the modern awards objective);
(c) Division 3 of Part 2‑3 (which deals with terms of modern awards);
(d) section 284 (which deals with the minimum wages objective);
(e) any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).
17 How the FW Act applies to modern awards made in the enterprise instrument modernisation process
(1) A modern enterprise award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a modern enterprise award) within the meaning of that Act from the day on which the modern enterprise award is made.
(2) Section 49 of the FW Act does not apply for the purpose of determining when the modern enterprise award comes into operation. Instead, the modern enterprise award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern enterprise award is made.
(3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern enterprise awards.
Part 3—Amendments
Fair Work Act 2009
18 Section 12 (definition of award modernisation process)
Repeal the definition, substitute:
award modernisation process means:
(a) the process of making modern awards under Part 10A of the Workplace Relations Act 1996, as continued by Part 2 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and
(b) the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
19 Section 12 (definition of coverage terms)
Repeal the definition, substitute:
coverage terms:
(a) in relation to a modern award (other than a modern enterprise award): see section 143; and
(b) in relation to a modern enterprise award: see section 143A.
20 Section 12
Insert:
modern enterprise award: see subsection 168A(2).
21 Section 12
Insert:
modern enterprise awards objective: see subsection 168B(1).
22 Section 12
Insert:
part of a single enterprise: see subsection 168A(6).
23 Section 12
Insert:
single enterprise: see section 168A.
24 Section 132 (after the paragraph relating to Division 6)
Insert:
Division 7 contains additional provisions relating to modern enterprise awards.
25 At the end of section 143
Add:
Modern enterprise awards
(8) A modern award (other than a modern enterprise award) must be expressed not to cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009), or employers in relation to those employees.
(9) This section does not apply to modern enterprise awards.
Note: The heading to section 143 is altered by adding at the end “of modern awards other than modern enterprise awards”.
26 After section 143
Insert:
143A Coverage terms of modern enterprise awards
Coverage terms must be included
(1) A modern enterprise award must include terms (coverage terms) setting out, in accordance with this section:
(a) the enterprise or enterprises to which the modern enterprise award relates; and
(b) the employers, employees and organisations that are covered by the modern enterprise award.
Enterprises
(2) A modern enterprise award must be expressed to relate:
(a) to a single enterprise (or a part of a single enterprise) only; or
(b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
Employers and employees
(3) A modern enterprise award must be expressed to cover:
(a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subsection (2); and
(b) specified employees of employers covered by the modern enterprise award.
Organisations
(4) A modern enterprise award may be expressed to cover one or more specified organisations, in relation to:
(a) all or specified employees covered by the award; or
(b) the employer, or all or specified employers, covered by the award.
Outworker entities
(5) A modern enterprise award must not be expressed to cover outworker entities.
How coverage etc. is expressed
(6) For the purposes of subsection (2), an enterprise must be specified:
(a) if paragraph (2)(a) applies to the enterprise—by name; or
(b) if paragraph (2)(b) applies to the enterprise—by name, or by the name of the franchise.
(7) For the purposes of subsections (3) and (4):
(a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name.
Employees not traditionally covered by awards etc.
(8) A modern enterprise award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
Note: For example, in some industries, managerial employees have traditionally not been covered by awards.
27 At the end of Part 2‑3
Add:
Division 7—Additional provisions relating to modern enterprise awards
168A Modern enterprise awards
(1) This Division contains additional provisions that relate to modern enterprise awards. The provisions in this Division have effect despite anything else in this Part.
(2) A modern enterprise award is a modern award that is expressed to relate to:
(a) a single enterprise (or a part of a single enterprise) only; or
(b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
(3) A single enterprise is:
(a) a business, project or undertaking that is carried on by an employer; or
(b) the activities carried on by:
(i) the Commonwealth, a State or a Territory; or
(ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest.
(4) For the purposes of subsection (3), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.
(5) For the purposes of subsection (3), if 2 or more related bodies corporate each carry on a single enterprise:
(a) the bodies corporate are taken to be one employer; and
(b) the single enterprises are taken to be one single enterprise.
Note: However, a modern enterprise award could just relate to a part of that single enterprise.
(6) A part of a single enterprise includes, for example:
(a) a geographically distinct part of the single enterprise; or
(b) a distinct operational or organisational unit within the single enterprise.
168B The modern enterprise awards objective
What is the modern enterprise awards objective?
(1) FWA must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.
When does the modern enterprise awards objective apply?
(2) The modern enterprise awards objective applies to the performance of FWA’s functions or powers under this Act, so far as they relate to modern enterprise awards.
References to the modern awards objective
(3) A reference to the modern awards objective in this Act, other than section 134, is taken to include a reference to the modern enterprise awards objective.
168C Rules about making and revoking modern enterprise awards
Making modern enterprise awards
(1) FWA must not, under this Part:
(a) make a modern enterprise award; or
(b) make a determination varying a modern award so that it becomes a modern enterprise award.
Note: Modern enterprise awards can be made only in accordance with the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Revoking modern enterprise awards
(2) FWA may make a determination revoking a modern enterprise award only on application under section 158.
(3) FWA must not make a determination revoking a modern enterprise award unless FWA is satisfied that:
(a) the award is obsolete or no longer capable of operating; or
(b) all the employees covered by the award will, when the revocation comes into operation, be covered by a different modern award (other than the miscellaneous modern award or a modern enterprise award) that is appropriate for them.
(4) In deciding whether to make a determination revoking a modern enterprise award FWA must take into account the following:
(a) the circumstances that led to the making of the modern enterprise award;
(b) the content of the modern award referred to in paragraph (3)(b);
(c) the terms and conditions of employment applying in the industry in which the persons covered by the modern enterprise award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;
(d) the extent to which the modern enterprise award provides enterprise‑specific terms and conditions of employment;
(e) the likely impact on the persons covered by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (3)(b), of a decision to revoke, or not revoke, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(f) the views of the persons covered by the modern enterprise award;
(g) any other matter prescribed by the regulations.
168D Rules about changing coverage of modern enterprise awards
(1) FWA must not make a determination varying a modern enterprise award so as to extend the coverage of the modern enterprise award so that it ceases to be a modern enterprise award.
(2) In deciding whether to make a determination varying the coverage of a modern enterprise award in some other way, FWA must take into account the following:
(a) the circumstances that led to the making of the modern enterprise award;
(b) whether there is a modern award (other than the miscellaneous modern award or a modern enterprise award) that would, but for the modern enterprise award, cover the persons covered, or proposed to be covered, by the modern enterprise award;
(c) the content of the modern award referred to in paragraph (b);
(d) the terms and conditions of employment applying in the industry in which the persons covered, or proposed to be covered, by the modern award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;
(e) the extent to which the modern enterprise award provides enterprise‑specific terms and conditions of employment;
(f) the likely impact on the persons covered, or proposed to be covered, by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the variation, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered, or proposed to be covered, by the modern enterprise award;
(h) any other matter prescribed by the regulations.
28 Subsection 292(1)
Repeal the subsection, substitute:
(1) If FWA makes one or more determinations varying modern award minimum wages in an annual wage review, FWA must publish the rates of those wages as so varied:
(a) for wages in a modern award (other than a modern enterprise award)—before 1 July in the next financial year; and
(b) for wages in a modern enterprise award—as soon as practicable.
Note: FWA must also publish the modern award as varied (see section 168).
Note: The heading to section 292 is altered by omitting “by 1 July”.
Schedule 6A—State reference public sector modern awards
Part 1—Preliminary
1 Meanings of employer and employee
In this Schedule, employer and employee have their ordinary meanings.
Part 2—The State reference public sector transitional award modernisation process
Division 1—State reference public sector transitional awards
2 State reference public sector transitional awards
(1) A State reference public sector transitional award is a State reference transitional award or common rule in relation to which the following conditions are satisfied:
(a) the only employers that are expressed to be covered by the award or common rule are one or more specified State reference public sector employers;
(b) the only employees who are expressed to be covered by the award or common rule are specified State reference public sector employees of those employers.
Note: State reference transitional awards and common rules are continued in existence as transitional instruments by Schedule 3.
(2) A State reference public sector employee is a State reference employee who is a State public sector employee as defined in section 30A or 30K of the FW Act.
(3) A State reference public sector employer is a State reference employer that is a State public sector employer as defined in section 30A or 30K of the FW Act.
(4) If:
(a) a State reference transitional award or common rule (the current award) covers one or more State reference public sector employers, and State reference public sector employees of those employers; and
(b) the current award also covers:
(i) other employees of those employers; or
(ii) other employers, and employees of those other employers;
then, for the purposes of this Act, the current award is taken instead to constitute 2 separate State reference transitional awards or common rules as follows:
(c) a State reference public sector transitional award covering:
(i) the employers, and the employees of those employers, referred to in paragraph (a); and
(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; and
(d) a State reference transitional award or a State reference common rule (as the case requires) covering:
(i) the employers, and the employees of those employers, referred to in paragraph (b); and
(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.
Division 2—The State reference public sector transitional award modernisation process
3 The State reference public sector transitional award modernisation process
(1) The State reference public sector transitional award modernisation process is the process of making State reference public sector modern awards under this Division covering employers, employees and organisations that are covered by State reference public sector transitional awards.
(2) A State reference public sector modern award is a modern award in relation to which the following conditions are satisfied:
(a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers;
(b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.
(3) A State reference public sector modern award must be made by a Full Bench.
4 Making State reference public sector modern awards on application
(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC for the making of a State reference public sector modern award (the proposed award).
(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(3) The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award.
(4) The FWC must consider the application, and must make a State reference public sector modern award covering the proposed parties if the FWC is satisfied that:
(a) the proposed parties are covered by State reference public sector transitional awards; and
(b) the employers and organisations that are proposed parties have agreed to the making of the application.
Note: The proposed parties will cease to be covered by State reference public sector transitional awards when the State reference public sector modern award comes into operation: see item 29 of Schedule 3.
5 Terminating State reference public sector transitional awards on application
(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC or the Commission to terminate the current award.
Note: The Commission ceased to exist on 31 December 2009: see item 7 of Schedule 18.
(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(3) The FWC or the Commission must not terminate the current award unless the FWC or the Commission is satisfied that the employees who are covered by the current award will, if the current award is terminated, be covered by a modern award (other than the miscellaneous modern award) that, at the time of the termination, is or is likely to be in operation and that is appropriate for them.
(4) In deciding whether to terminate the current award, the FWC or the Commission must take into account the following:
(a) the circumstances that led to the making of the current award;
(b) the terms and conditions of employment applying in the industry or occupation in which the persons covered by the current award operate, and the extent to which those terms and conditions are reflected in the current award;
(c) the extent to which the current award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 7(2)(a) and (b);
(d) the likely impact on the persons covered by the current award of a decision to terminate, or not to terminate, the current award;
(e) the views of the persons covered by the current award;
(f) any other matter prescribed by the regulations.
(5) If the FWC or the Commission terminates the current award, the termination operates from the day specified in the decision to terminate the current award, being a day that is not earlier than the FW (safety net provisions) commencement day.
(6) If the Commission terminates the current award, the termination is taken, after the Commission has ceased to exist, to have been made by the FWC.
6 Further obligation of the FWC to make or vary State reference public sector modern awards at end of application period
If, at the end of the period referred to in subitem 4(2), there are one or more State reference public sector transitional awards that still cover some employers and employees, the FWC must make, or (in accordance with section 168L of the FW Act) vary the coverage of, one or more State reference public sector modern awards so that all those employers and employees are covered by State reference public sector modern awards.
Note: The employers and employees will cease to be covered by the State reference public sector transitional awards when they start to be covered by a State reference public sector modern award that is in operation: see item 29 of Schedule 3.
7 The State reference public sector modern awards objective
(1) If the FWC is required by item 4 or 6 to make a State reference public sector modern award, the modern awards objective and the minimum wages objective apply to the making of the modern award.
(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise:
(a) the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and
(b) that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees.
This is the State reference public sector modern awards objective.
Note 1: See also item 13 (State reference public sector transitional award modernisation process is not intended to result in reduction in take‑home pay).
Note 2: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).
8 Terms of State reference public sector modern awards
(1) Division 3 (other than sections 143 and 154) of Part 2‑3 of the FW Act (which deals with terms of modern awards) applies in relation to a State reference public sector modern award made under this Division.
Note: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).
(2) If FWA makes a State reference public sector modern award before the FW (safety net provisions) commencement day, the State reference public sector modern award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.
9 Coverage terms
Coverage terms must be included
(1) A State reference public sector modern award must include terms (coverage terms) setting out, in accordance with this item, the employers, employees and organisations that are covered by the State reference public sector modern award.
Employers and employees
(2) The coverage terms must be such that:
(a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; and
(b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.
Organisations
(3) A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to:
(a) all or specified employees covered by the modern award; or
(b) the employer, or all or specified employers, covered by the modern award.
Outworker entities
(4) A State reference public sector modern award must not be expressed to cover outworker entities.
How coverage etc. is expressed
(5) For the purposes of this item:
(a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name.
10 Variation and termination of State reference public sector transitional awards to take account of the modernisation process
(1) If a State reference public sector modern award completely replaces a State reference public sector transitional award, the transitional award terminates when the modern award comes into operation.
(2) If a State reference public sector modern award partially replaces a State reference public sector transitional award, the FWC must, as soon as practicable after the modern award comes into operation, vary the transitional award so that employees who are covered by the modern award are no longer covered by the transitional award.
(3) For the purposes of this item:
(a) the modern award completely replaces the transitional award if all the employees who are covered by the transitional award become covered by the modern award when it comes into operation; and
(b) the modern award partially replaces the transitional award if only some of the employees who are covered by the transitional award become covered by the modern award when it comes into operation.
Note: This item does not limit the effect of any other provision of this Act under which a transitional instrument (a State reference public sector transitional award is a transitional instrument) ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.
11 Notification of the cut‑off for the State reference public sector transitional award modernisation process
(1) The FWC must, at least 6 months before the end of the period specified in subitem 4(2), advise any persons still covered by a State reference public sector transitional award:
(a) that the period for making applications under items 4 and 5 ends on 31 December 2013; and
(b) that the FWC will, at the end of that period, commence the State reference public sector transitional award modernisation process in relation to the transitional award for any employees and employers who are still covered by the transitional award at that time.
(2) The FWC may give that advice by any means it considers appropriate.
(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item.
12 Regulations dealing with other matters
The regulations may deal with other matters relating to the State reference public sector transitional award modernisation process.
Division 3—Avoiding reductions in take‑home pay
13 State reference public sector transitional award modernisation process is not intended to result in reduction in take‑home pay
(1) The State reference public sector transitional award modernisation process is not intended to result in a reduction in the take‑home pay of employees.
(2) An employee’s take‑home pay is the pay an employee actually receives:
(a) including wages and incentive‑based payments, and additional amounts such as allowances and overtime; but
(b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.
Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.
(3) An employee suffers a modernisation‑related reduction in take‑home pay if, and only if:
(a) a State reference public sector modern award made in the State reference public sector transitional award modernisation process starts to apply to the employee when the modern award comes into operation; and
(b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the State reference public sector modern award came into operation; and
(c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the State reference public sector modern award comes into operation is less than what would have been the employee’s take‑home pay for those hours or that quantity of work immediately before the modern award came into operation; and
(d) that reduction in the employee’s take‑home pay is attributable to the State reference public sector transitional award modernisation process.
14 Orders remedying reductions in take‑home pay
(1) If the FWC is satisfied that an employee, or a class of employees, to whom a State reference public sector modern award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.
(2) The FWC may make a take‑home pay order only on application by:
(a) an employee who has suffered a modernisation‑related reduction in take‑home pay; or
(b) an organisation that is entitled to represent the industrial interests of such an employee; or
(c) a person acting on behalf of a class of such employees.
(3) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees.
15 Ensuring that take‑home pay orders are confined to the circumstances for which they are needed
(1) The FWC must not make a take‑home pay order in relation to an employee or class of employees if:
(a) the FWC considers that the modernisation‑related reduction in take‑home pay is minor or insignificant; or
(b) the FWC is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.
(2) The FWC must ensure that a take‑home pay order is expressed so that:
(a) it does not apply to an employee unless the employee has actually suffered a modernisation‑related reduction in take‑home pay; and
(b) if the take‑home pay payable to the employee under the State reference public sector modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.
16 Take‑home pay order continues to have effect so long as State reference public sector modern award continues to cover the employee or employees
A take‑home pay order made in relation to an employee or class of employees to whom a particular State reference public sector modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the State reference public sector modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.
17 Inconsistency with State reference public sector modern awards and enterprise agreements
A term of a State reference public sector modern award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a take‑home pay order that applies to the employee.
18 Application of provisions of FW Act to take‑home pay orders
The FW Act applies as if the following provisions of that Act included a reference to a take‑home pay order:
(a) subsection 675(2);
(b) subsection 706(2).
Note: For compliance with take‑home pay orders, see item 7 of Schedule 16.
Division 4—Application of the FW Act
19 How the FW Act applies to the modernisation process before the FW (safety net provisions) commencement day
For the purposes of making a State reference public sector modern award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced:
(a) Part 2‑2 (which deals with the National Employment Standards);
(b) section 134 (which deals with the modern awards objective);
(c) Division 3 of Part 2‑3 (which deals with terms of modern awards);
(d) section 284 (which deals with the minimum wages objective);
(e) any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).
20 How the FW Act applies to modern awards made in the State reference public sector transitional award modernisation process
(1) A State reference public sector modern award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a State reference public sector modern award) within the meaning of that Act from the day on which the State reference public sector modern award is made.
(2) Section 49 of the FW Act does not apply for the purpose of determining when the State reference public sector modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern award is made.
(3) The regulations may deal with other matters relating to how the FW Act applies in relation to State reference public sector modern awards.
Schedule 7—Enterprise agreements and workplace determinations made under the FW Act
Part 1—Preliminary
1 Meanings of employer and employee
In this Schedule, employee means a national system employee, and employer means a national system employer.
Part 2—Transitional provisions relating to the application of the no‑disadvantage test to enterprise agreements made and varied during bridging period
Division 1—Enterprise agreements and variations made during bridging period must pass no‑disadvantage test
2 Approval of agreement or variation by FWA—passing the no‑disadvantage test
(1) Paragraph 186(2)(d) of the FW Act (including as that paragraph has effect under subsection 211(3) of that Act) and subsection 211(5) of that Act apply in relation to:
(a) an enterprise agreement made during the bridging period; and
(b) a variation of an enterprise agreement, if the variation was made during the bridging period;
as if the words “better off overall test” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.
(2) Paragraph 189(1)(b) of the FW Act applies in relation to an enterprise agreement made during the bridging period as if the words “better off overall test” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.
Note: This means that section 193 (which deals with passing the better off overall test) and subsections 211(4) and (5) (which deal with applying the better off overall test to agreements as proposed to be varied) of the FW Act will have no effect in relation to the approval by FWA of agreements and variations during the bridging period.
Division 2—The no‑disadvantage test
3 Definitions
(1) In this Division:
award includes a State reference transitional award or common rule.
designated award, for an employee or employees who are or may be covered by an enterprise agreement, means an award determined by the FWA under item 8, and includes an award taken to be so designated in relation to the employee or employees under item 7 (unless a different award has been designated in relation to the employee or employees under item 8).
industrial instrument means any of the following:
(a) an AWA;
(b) a workplace agreement;
(c) a pre‑reform AWA;
(d) a pre‑reform certified agreement;
(e) a workplace determination (within the meaning of the WR Act);
(f) a section 170MX award;
(g) an old IR agreement;
(h) a preserved State agreement.
reference instrument has the meaning given by subitem 5(1).
relevant general instrument has the meaning given by subitem 5(2).
Application of this Division to variations
(2) Unless the contrary intention appears, this Division applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement.
(3) For the purposes of subitem (2):
(a) a reference in a provision of this Division to an employee who is covered by the agreement is taken to be a reference to an employee who is one of the affected employees for the variation of the agreement (within the meaning of the FW Act); and
(b) a reference in a provision of this Division to the employees who are covered by the agreement is taken to be a reference to the affected employees for the variation; and
(c) a reference in a provision of this Division to an application for approval of the agreement under section 185 of the FW Act is taken to be a reference to an application for approval of a variation of the agreement under section 210 of that Act.
Application of this Division to prospective employees
(4) For the purposes of applying this Division to an enterprise agreement, a reference to an employee who is covered by the enterprise agreement is, so far as the context permits, taken to include a reference to a person who may at a future time be covered by the enterprise agreement.
4 When does an agreement pass the no‑disadvantage test?
(1) An enterprise agreement passes the no‑disadvantage test if FWA is satisfied that the agreement does not, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the agreement under any reference instrument relating to one or more of the employees.
(2) For the purposes of subitem (1):
(a) a law of a State or Territory that:
(i) relates to long service leave; and
(ii) applied, immediately before the application was made for approval of the agreement under section 185 of the FW Act, to an employee referred to in that subitem, or would have applied to such an employee if he or she had been employed by the employer at that time;
is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and
(b) if, apart from this subitem, the only reference instrument relating to the employee is a designated award for the employee—the designated award is to be disregarded to the extent (if any) that it provides for long service leave.
Note: An enterprise agreement made during the bridging period will prevail over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave (see item 17).
(3) An enterprise agreement or a variation of an enterprise agreement is taken to pass the no‑disadvantage test if there is no reference instrument in relation to any of the employees who are covered by the agreement.
(4) To avoid doubt, if there is a reference instrument in relation to one or more, but not all, of the employees referred to in subitem (1):
(a) if the agreement passes the no‑disadvantage test under subitem (1)—it passes the test in relation to all employees who are covered by the agreement; or
(b) if the agreement does not pass the no‑disadvantage test under subitem (1)—it does not pass the test in relation to any employees who are covered by the agreement.
Note 1: In addition to the no‑disadvantage test, during the bridging period, the Australian Fair Pay and Conditions Standard prevails over an enterprise agreement to the extent to which the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee or employees—see subitem 27(1).
Note 2: From the FW (safety net provisions) commencement day, a term of an enterprise agreement has no effect to the extent it excludes the National Employment Standards or any provision of the National Employment Standards (see sections 55 and 56 of the FW Act).
Note 3: This item applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement—see subitems 3(2) and (3).
Note 4: See item 10 for how FWA makes decisions under this item.
(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the no‑disadvantage test, FWA must disregard any individual flexibility arrangement that has been agreed to by an affected employee and his or her employer under the flexibility term in the agreement.
5 Reference instruments etc.
(1) A reference instrument, in relation to employees who are covered by an enterprise agreement, is:
(a) any relevant general instrument; or
(b) if there is no relevant general instrument—any designated award;
for one or more of the employees.
(2) A relevant general instrument, for an employee who is covered by an enterprise agreement, is an award‑based transitional instrument:
(a) that regulates, or would but for an enterprise agreement or another industrial instrument having come into operation regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the enterprise agreement; and
(b) that applied, or would but for an enterprise agreement or another industrial instrument having come into operation have applied, to the employee’s employer immediately before the day on which the application for approval of the agreement was made under section 185 of the FW Act.
6 Enterprise agreement to be tested as at test time
(1) In deciding whether an enterprise agreement passes, or does not pass, the no‑disadvantage test, FWA must consider it as in existence at the test time.
(2) The test time is the time when the application for approval of the agreement was made under section 185 of the FW Act.
7 Designated awards—before application for FWA approval
(1) FWA may, on application by an employer, determine that an award is a designated award for an employee or class of employees of the employer.
(2) FWA may make a determination under this item only if it is satisfied that:
(a) the employee or employees are or may be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:
(i) are usually regulated by an award; or
(ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and
(b) unless there is a designated award for the employee or employees, there would be no reference instrument relating to the employee or employees; and
(c) there is an award that satisfies the requirements specified in subitem (3).
(3) An award or awards determined by FWA under this item:
(a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed or to be performed by the employee or employees; and
(b) must, in the opinion of FWA, be an award or awards that would be appropriate for the purpose referred to in paragraph 8(3)(b) if an application were made for approval of an enterprise agreement under section 185 of the FW Act; and
(c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).
(4) An award determined under this item in relation to an employee or employees is taken to be the designated award determined by FWA under item 8 in relation to the employee or employees if, later, an application is made for approval of an enterprise agreement under section 185 of the FW Act, in relation to the employee or the employees.
(5) Despite subitem (4), FWA may determine under item 8 that another award is a designated award in relation to the employee, or in relation to some or all of the employees, if:
(a) FWA becomes aware of information that was not available to it at the time of the determination under subitem (1); and
(b) FWA is satisfied that, had that information been available to it at that time, FWA would have determined under subitem (1) the other award to be the designated award.
(6) FWA may determine different awards under subitem (1) in relation to different employees.
(7) In this item, a reference to an employee or employees of an employer includes a reference to a person or persons who may become an employee or employees of the employer.
(8) A determination made under this item is not a legislative instrument.
8 Designated awards—after application for FWA approval
(1) This item applies to an enterprise agreement if there is no relevant general instrument in relation to an employee who is, or a class of employees who are, covered by the agreement.
(2) FWA must determine that an award is a designated award for the employee or employees referred to in subitem (1), if it is satisfied that:
(a) on the date on which the application for approval of the enterprise agreement was made under section 185 of the FW Act, the employee or employees are or would be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:
(i) are usually regulated by an award; or
(ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and
(b) there is an award that satisfies the requirements specified in subitem (3).
(3) An award or awards determined by FWA under this item:
(a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed by the employee or employees under the enterprise agreement concerned; and
(b) must, in the opinion of FWA, be appropriate for the purpose of deciding whether an enterprise agreement passes the no‑disadvantage test; and
(c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).
(4) FWA may determine different awards under subitem (2) in relation to different employees.
(5) A determination made under this item is not a legislative instrument.
9 Effect of State awards etc.
For the purposes of paragraphs 7(2)(a) and 8(2)(a), an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by an employee are usually regulated by an award is taken to include an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee:
(a) were, immediately before the reform commencement, usually regulated by a State award (within the meaning of the WR Act); or
(b) would, but for an industrial instrument or a State employment agreement (within the meaning of the WR Act) having come into operation, usually have been so regulated immediately before the reform commencement.
10 Matters taken into account when testing agreement etc.
(1) In deciding whether an enterprise agreement passes, or does not pass, the no‑disadvantage test, FWA:
(a) must have regard to the work obligations of the employee or employees under the enterprise agreement; and
(b) may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:
(i) the employer;
(ii) the employee, or some or all of the employees, who are covered by the enterprise agreement;
(iii) a bargaining representative in relation to the agreement.
(2) In deciding whether to determine that an award is a designated award in relation to an employee or employees of an employer, FWA may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:
(a) the employer;
(b) the employee or employees;
(c) if the determination would be made under item 8—a bargaining representative in relation to the agreement.
Part 3—Other requirements and modifications applying to making and varying enterprise agreements during the bridging period
Division 1—Requirements relating to approval
11 Approval of agreement by FWA—interaction with the National Employment Standards
Paragraph 186(2)(c) of the FW Act (which deals with terms that contravene section 55 of that Act) does not apply in relation to:
(a) an enterprise agreement made during the bridging period; or
(b) a variation of an enterprise agreement, if the variation is made during the bridging period.
Note: Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and enterprise agreements etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of an enterprise agreement has no effect to the extent that it contravenes section 55.
12 Approval of agreement by FWA—term about settling disputes
Subparagraph 186(6)(a)(ii) of the FW Act (which deals with a requirement for an enterprise agreement to have a term about settling disputes in relation to the National Employment Standards) applies in relation to:
(a) an enterprise agreement made during the bridging period; or
(b) a variation of an enterprise agreement, if the variation is made during the bridging period;
as if the words “as those provisions apply after the end of the bridging period” were added after “National Employment Standards”.
Note: For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.
13 Approval of agreement by FWA—requirements relating to particular kinds of employees
(1) Subsection 187(4) of the FW Act (which deals with requirements relating to particular kinds of employees) does not apply in relation to:
(a) an enterprise agreement made during the bridging period; or
(b) a variation of an enterprise agreement, if the variation is made during the bridging period;
except in so far as that subsection requires FWA to be satisfied as referred to in section 200 of the FW Act.
(2) Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the agreement or variation as if:
(a) references in that section to a modern award were references to an award, a State reference transitional award or common rule, or a notional agreement preserving State awards; and
(b) references in that section to outworker terms were references to terms that are (or that would be, if the terms were in an award) outworker terms as defined in section 564 of the WR Act.
Division 2—Base rate of pay
14 Base rate of pay under enterprise agreements
The FW Act applies during the bridging period as if section 206 (which deals with base rate of pay under enterprise agreements) were omitted.
Division 3—No extensions of time
15 No extension of time to apply for approval of agreement made in final 14 days of bridging period
Paragraph 185(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of an enterprise agreement) does not apply in relation to an enterprise agreement made during the period of 14 days ending at the end of the bridging period.
Note: If an application for approval of an enterprise agreement referred to in this item is not made to FWA within 14 days of it being made:
(a) FWA cannot approve the enterprise agreement; but
(b) another enterprise agreement may be made in accordance with Part 2‑4 of the FW Act.
16 No extension of time to apply for approval of variation of agreement made in final 14 days of bridging period
Paragraph 210(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of a variation of an enterprise agreement) does not apply in relation to a variation of an enterprise agreement, if that variation was made during the period of 14 days ending at the end of the bridging period.
Note: If an application for approval of a variation referred to in this item is not made to FWA within 14 days of it being made:
(a) FWA cannot approve the variation; but
(b) another variation may be made in accordance with Part 2‑4 of the FW Act.
Division 4—State and Territory laws dealing with long service leave
17 Enterprise agreement made during the bridging period prevails over State and Territory laws dealing with long service leave
Despite subsection 29(2) of the FW Act, an enterprise agreement made during the bridging period prevails over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave.
Note: A term of such an enterprise agreement will still apply subject to a law of a State or Territory so far as that law is otherwise covered by paragraph 29(2)(a) or (b) of the FW Act.
Part 4—Transitional provisions to apply the better off overall test after end of bridging period if award modernisation not yet completed
18 Application of better off overall test to making of enterprise agreements that cover unmodernised award covered employees
(1) This item applies in relation to an enterprise agreement made after the end of the bridging period if one or more of the employees covered by the agreement is an unmodernised award covered employee.
Non‑greenfields agreements
(2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:
(a) the FWC is satisfied as referred to in subsection (1) of that section in relation to the agreement; and
(b) the FWC is satisfied, as at the test time, that each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.
Greenfields agreements
(3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:
(a) the FWC is satisfied as referred to in subsection (3) of that section in relation to the agreement; and
(b) the FWC is satisfied, as at the test time, that each prospective unmodernised award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.
FWC may assume employee better off overall in certain circumstances
(4) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.
State reference transitional awards or common rules: transitional APCSs not relevant
(5) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.
Note: State reference transitional awards or common rules contain terms dealing with wages.
19 Application of better off overall test to variation of enterprise agreements that cover unmodernised award covered employees
(1) This item applies in relation to a variation of an enterprise agreement if:
(a) the variation is made after the end of the bridging period; and
(b) one or more of the employees who are covered by the agreement is an unmodernised award covered employee.
(2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.
Modification of the better off overall test
(3) An enterprise agreement as proposed to be varied passes the better off overall test if the FWC is satisfied, as at the test time, that:
(a) each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and
(b) each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.
FWC may assume employee better off overall in certain circumstances
(4) For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.
FWC must disregard individual flexibility arrangement
(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.
State reference transitional awards or common rules: transitional APCSs not relevant
(6) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.
Note: State reference transitional awards or common rules contain terms dealing with wages.
20 Definitions
In this Part:
prospective unmodernised award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement:
(a) would be covered by the agreement; and
(b) would be covered by an award‑based transitional instrument (the relevant award‑based transitional instrument) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would perform under the agreement; and
(iii) covers the employer.
test time:
(a) for the purposes of item 18—means the time the application for approval of the agreement by the FWC was made under section 185 of the FW Act; and
(b) for the purposes of item 19—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act.
unmodernised award covered employee, for an enterprise agreement, means an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by an award‑based transitional instrument (the relevant award‑based transitional instrument) that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her employer.
Part 4A—Transitional provisions to apply the better off overall test to enterprise agreements that cover Division 2B State award covered employees
20A Application of better off overall test to making of enterprise agreements that cover Division 2B State award covered employees
(1) This item applies in relation to an enterprise agreement made on or after the Division 2B referral commencement, if one or more of the employees covered by the agreement is a Division 2B State award covered employee.
Non‑greenfields agreements
(2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:
(a) the FWC is satisfied as referred to in subsection (1) of that section, and paragraph (2)(b) of item 18 of this Schedule, in relation to the agreement (to the extent that those provisions are applicable); and
(b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.
Note: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees.
Greenfields agreements
(3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:
(a) the FWC is satisfied as referred to in subsection (3) of that section and paragraph (3)(b) of item 18 of this Schedule in relation to the agreement (to the extent that those provisions are applicable); and
(b) the FWC is satisfied, as at the test time, that each prospective Division 2B State award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.
Note: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to prospective Division 2B State award covered employees.
FWC may assume employee better off overall in certain circumstances
(4) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.
20B Application of better off overall test to variation of enterprise agreements that cover Division 2B State award covered employees
(1) This item applies in relation to a variation of an enterprise agreement if:
(a) the variation is made on or after the Division 2B referral commencement; and
(b) one or more of the employees covered by the agreement is a Division 2B State award covered employee.
(2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.
Modification of the better off overall test
(3) An enterprise agreement as proposed to be varied passes the better off overall test only if:
(a) the FWC is satisfied, as at the test time, as mentioned in subitem 19(3) of this Schedule in relation to the agreement as proposed to be varied (to the extent that subitem 19(3) is applicable); and
(b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.
Note: Item 19 of this Schedule deals with testing enterprise agreements as proposed to be varied against other instruments (such as modern awards). A variation to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees.
FWC may assume employee better off overall in certain circumstances
(4) For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.
FWC must disregard individual flexibility arrangement
(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by a Division 2B State award covered employee and his or her employer under the flexibility term in the agreement.
20C Definitions
In this Part:
Division 2B State award covered employee, for an enterprise agreement, means an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a Division 2B State award (the relevant Division 2B State award) that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her employer.
prospective Division 2B State award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement:
(a) would be covered by the agreement; and
(b) would be covered by a Division 2B State award (the relevant Division 2B State award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would perform under the agreement; and
(iii) covers the employer.
test time:
(a) for the purposes of item 20A—means the time the application for approval of the enterprise agreement by the FWC was made under section 185 of the FW Act; and
(b) for the purposes of item 20B—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act.
Part 5—Transitional provisions relating to workplace determinations made under the FW Act
21 Application made during bridging period for special low‑paid workplace determination—general requirement relating to minimum safety net
Subsection 262(3) of the FW Act (which deals with a general requirement relating to the minimum safety net) applies in relation to an application for a special low‑paid workplace determination made during the bridging period as if the words “modern awards together with the National Employment Standards” were omitted and the words “awards (including State reference transitional awards and common rules) together with the Australian Fair Pay and Conditions Standard” were substituted.
22 Special low‑paid workplace determination—employer must not previously have been covered by agreement‑based transitional instrument
(1) Subsection 263(3) of the FW Act (which deals with additional requirements for making a special low‑paid workplace determination) applies in relation to a workplace determination, whether made during or after the bridging period, as if the reference in that subsection to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.
(2) However, subitem (1) does not apply in relation to a workplace determination if:
(a) the collective agreement‑based transitional instrument has ceased to operate; and
(b) the FWC considers that it is appropriate in the circumstances to make the workplace determination.
(3) In making a decision for the purposes of paragraph (2)(b) of this item, the FWC must take into account the objects set out in section 241 of the FW Act.
23 Core terms of workplace determinations—assessment of determination made during bridging period against the no disadvantage test
Subsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to a workplace determination made during the bridging period as if the words “better off overall test under section 193” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.
24 Core terms of workplace determinations—assessment of determination made after bridging period that covers unmodernised award covered employees against the better off overall test
(1) This item applies in relation to a workplace determination made after the end of the bridging period if one or more of the employees who will be covered by the determination is an unmodernised award covered employee (within the meaning of Part 4).
(2) Subsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to the workplace determination as if the words “under section 193” were omitted and the words “under item 18 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.
25 Core terms of workplace determinations—safety net requirements
(1) This item applies in relation to a workplace determination made during the bridging period.
(2) Subsection 272(5) of the FW Act (which deals with terms relating to safety net requirements) does not apply in relation to the workplace determination, except in so far as that subsection prevents a workplace determination from including a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement because of the operation of section 200 of that Act (which deals with requirements relating to outworkers).
Note: Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and workplace determinations etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of a workplace determination has no effect to the extent that it contravenes section 55.
(3) Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the workplace determination as if:
(a) references in that section to a modern award were references to an award or a State reference transitional award or common rule; and
(b) references in that section to outworker terms were references to outworker terms as defined in section 564 of the WR Act.
26 Mandatory terms of workplace determinations—term about settling disputes
(1) This item applies in relation to a workplace determination made during the bridging period.
(2) Paragraph 273(2)(b) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes in relation to the National Employment Standards) applies in relation to the workplace determination as if the words “as the National Employment Standards apply after the end of the bridging period” were added after “National Employment Standards”.
(3) Subsection 273(3) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes) applies in relation to the workplace determination as if the reference to paragraph 186(6)(a) of the FW Act were a reference to that paragraph in its application to an enterprise agreement made during the bridging period (see item 12).
Note: For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.
Part 6—Interaction with Australian Fair Pay and Conditions Standard during bridging period
27 Interaction with Australian Fair Pay and Conditions Standard during bridging period
Continued application of Australian Fair Pay and Conditions Standard
(1) The Australian Fair Pay and Conditions Standard, in its application during the bridging period under item 2 of Schedule 4 and item 5 of Schedule 9 prevails over an enterprise agreement or a workplace determination that applies to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee.
Disputes about Australian Fair Pay and Conditions Standard to be resolved using the model dispute resolution process
(2) A dispute about:
(a) whether the Australian Fair Pay and Conditions Standard provides a more favourable outcome for an employee in a particular respect than an enterprise agreement or workplace determination that applies to that employee; or
(b) what the outcome is for an employee in a particular respect under the Australian Fair Pay and Conditions Standard, where an enterprise agreement or a workplace determination applies to that employee;
is to be resolved using the model dispute resolution process referred to in Part 13 of the WR Act.
(3) For the purposes of subitem (2), Divisions 2 and 3 of Part 13 of the WR Act apply as if a reference in those Divisions to the Commission or the Industrial Registrar were a reference to FWA.
(4) The fact that the model dispute resolution process applies in relation to the dispute does not affect any right of a party to the dispute to take court action to resolve it.
(5) To avoid doubt, subitems (2) and (3) apply despite:
(a) subsection 694(2) of the WR Act (which deals with when the model dispute resolution process applies); and
(b) subsection 595(1) of the FW Act (which deals with when FWA may deal with a dispute).
Continued application of regulations
(6) Despite the WR Act repeal, regulations made for the purposes of subsection 172(4) of the WR Act continue to apply during the bridging period as if a reference in those regulations to a workplace agreement were a reference to an enterprise agreement and a workplace determination.
Australian Fair Pay and Conditions Standard cannot be excluded
(7) A term of an enterprise agreement or a workplace determination has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard or any part of it.
Meaning of workplace determination
(8) In this item:
workplace determination means a workplace determination made under the FW Act.
Part 7—Transitional provision about the operation of the better off overall test if a transitional pay equity order applies
28 Operation of better off overall test if a transitional pay equity order applies to employer
(1) This item applies to an enterprise agreement, or a variation of an enterprise agreement, if:
(a) an application for approval of the agreement or variation has been made under the FW Act; and
(b) the FWC must decide whether the agreement, or the agreement as proposed to be varied, passes the better off overall test; and
(c) an employer covered by the agreement, or the agreement as proposed to be varied, is an employer to which a transitional pay equity order applies; and
(d) an employee covered by the agreement, or the agreement as proposed to be varied, is an affected employee of the employer referred to in paragraph (c).
(2) For the purposes of determining whether the affected employee would be better off overall if the agreement, or the agreement as proposed to be varied, applied to the employee than if the relevant modern award applied to the employee, the base rate of pay payable under the relevant modern award to the employee is taken to be increased so that it is equal to the amount payable to the employee under the transitional pay equity order.
Note: For the meanings of transitional pay equity order and affected employee, see item 2 of Schedule 2.
Part 8—Transitional provisions relating to termination and sunsetting of enterprise agreements made during the bridging period
29 Terminating under the FW Act enterprise agreements made during the bridging period
Subsection 615A(3) of the FW Act does not apply in relation to an enterprise agreement made during the bridging period.
30 Automatic sunsetting of all remaining enterprise agreements made during the bridging period
Automatic sunsetting
(1) An enterprise agreement made during the bridging period ceases to operate at the end of the grace period for the agreement if the agreement has not already ceased to operate before that time.
(2) The grace period for an enterprise agreement made during the bridging period is:
(a) subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or
(b) if the default period is extended for the agreement on one or more occasions under subitem (6) or paragraph (10)(e)—the default period as so extended.
Employer to give notice to employees
(3) An employer covered by an enterprise agreement made during the bridging period must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the agreement and employed by the employer at the end of that period written notice advising the employee:
(a) that the employee is covered by an enterprise agreement made during the bridging period; and
(b) that the agreement will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the agreement; and
(c) of the day on which that Part commences.
Note: For compliance with this obligation, see item 4C of Schedule 16.
Application to FWC for extension of default period
(4) Any of the following may apply to the FWC, before the end of the grace period for an enterprise agreement made during the bridging period, for the FWC to extend the default period for the agreement for a period of no more than 4 years:
(a) an employer covered by the agreement;
(b) an employee covered by the agreement;
(c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement.
(5) An application under subitem (4) must be accompanied by:
(a) a copy of the agreement; and
(b) any declarations that are required by the procedural rules of the FWC to accompany the application.
Extension of default period
(6) If an application is made under subitem (4), the FWC must extend the default period for the enterprise agreement made during the bridging period for a period of no more than 4 years if the FWC is satisfied that:
(a) subitem (7) or (8) applies and it is otherwise appropriate in the circumstances to do so; or
(b) it is reasonable in the circumstances to do so.
(7) This subitem applies if:
(a) the application is made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the enterprise agreement made during the bridging period; and
(b) bargaining for the proposed enterprise agreement is occurring.
(8) This subitem applies if it is likely that, as at the time the application is made, the award covered employees for the agreement under subitem (9), viewed as a group, would be better off overall if the agreement applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.
(9) For the purposes of subitem (8), the award covered employees for an enterprise agreement made during the bridging period are the employees who:
(a) are covered by the agreement; and
(b) at the time an application is made under subitem (4) in relation to the agreement, are covered by one or more modern awards (the relevant modern awards) that:
(i) are in operation; and
(ii) cover the employees in relation to the work that the employees are to perform under the agreement; and
(c) are employed at that time by an employer who is covered by the agreement and by one or more of the relevant modern awards.
Publication of decisions etc.
(9A) The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:
(a) a decision under subitem (6);
(b) any written reasons that the FWC gives in relation to such a decision;
(c) if the decision is to extend the default period for the relevant enterprise agreement—the agreement.
The FWC must do so as soon as practicable after making the decision.
(9B) Paragraph (9A)(b) applies subject to any order made under section 594 of the FW Act.
Pending applications
(a) an application is made under subitem (4) in relation to an enterprise agreement made during the bridging period; and
(b) the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the agreement;
then:
(c) the FWC must make the decision on the application after the critical time; and
(d) the decision on the application is taken to have been made at the critical time; and
(e) if the FWC’s decision on the application is to refuse to extend the default period for the agreement under subitem (6)—the FWC must extend the default period until the end of:
(i) subject to subparagraph (ii), the day the refusal decision is made; or
(ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.
Effect of sunsetting
(11) If an enterprise agreement made during the bridging period ceases to operate in accordance with subitem (1), that does not affect:
(a) any right or liability that a person acquired, accrued or incurred before the agreement ceased to operate; or
(b) any investigation, legal proceeding or remedy in respect of any such right or liability.
(12) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the agreement had not ceased to operate.
(13) Subitems (11) and (12) have effect subject to a contrary intention in this Act or in the FW Act.
Schedule 8—Workplace agreements and workplace determinations made under the WR Act
Part 1—Preliminary
1 Meanings of employer and employee
In this Schedule, employee means a national system employee, and employer means a national system employer.
Part 2—Transitional provisions relating to workplace agreements
Division 1—Transitional provisions relating to collective agreements made before the WR Act repeal day
2 Division applies to collective agreements made before WR Act repeal day
This Division applies to a collective agreement made before the WR Act repeal day.
Note: Schedule 3 (which deals with transitional instruments) also contains rules that apply to such agreements.
3 General rule—continued application of lodgment provisions, no‑disadvantage test and prohibited content rules, etc.
The following provisions of Part 8 of the WR Act continue to apply in relation to the collective agreement on and after the WR Act repeal day:
(a) subsections 337(8), (9), (10) and (11) (which deal with non‑compliance with access and information requirements);
(b) section 341 (which deals with lodging unapproved agreements);
(c) Division 5 of Part 8 (which deals with lodgment);
(d) Division 5A of Part 8 (which deals with the no‑disadvantage test);
(e) subsections 347(1) and (3) (which deal with when a workplace agreement comes into operation);
(f) section 347A (which deals with the operation of workplace agreements);
(g) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);
(h) subsection 401(1) and section 412A.
Note 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content for collective agreements made before the WR Act repeal day, subject to the modifications set out in this Division. The rules about variation and termination of such collective agreements, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).
Note 2: The rules requiring a collective agreement to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).
4 Modification—unlodged collective agreements must be lodged within 14 days
(1) Despite item 3, if the collective agreement is an unlodged collective agreement:
(a) the Workplace Authority Director must not consider whether the agreement passes the no‑disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 3, unless:
(i) the agreement is lodged before the end of the period (the cut‑off period) of 14 days referred to in subsection 342(1) or (2) of that Act; and
(ii) for a union collective agreement—the agreement was approved before the WR Act repeal day; and
(b) if the agreement is not lodged before the end of the cut‑off period, it does not come into operation; and
(c) subsection 342(3) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 3, does not apply to the lodgment of the agreement.
Note: The general effect of this provision is that unlodged collective agreements (other than union collective agreements) must be lodged within 14 days of being made in order to come into operation. Unlodged union collective agreements must have been approved before the WR Act repeal day and be lodged within 14 days of that approval in order to come into operation. However, late lodgment will not give rise to a civil remedy.
(2) If the collective agreement is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the agreement cannot come into operation because it was lodged after the end of the cut‑off period, to the following:
(a) the employer to which the agreement would have applied if it had come into operation;
(b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations that would have been covered by the agreement if it had come into operation.
5 Modification—limits on variation of a collective agreement that operates from approval for the purpose of passing the no‑disadvantage test
(1) Despite item 3, if the collective agreement is a workplace agreement that operates from approval, the rules in this item also apply.
Note: The general effect of this item is that a collective agreement that operates from approval can only be varied for the purpose of passing the no‑disadvantage test if a variation for that purpose is lodged within a specified period.
(2) If, as at the WR Act repeal day:
(a) a notice under section 346M of the WR Act about whether the agreement passes the no‑disadvantage test has not been given; or
(b) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no‑disadvantage test has been given but a variation of the agreement, for the purposes of passing that test, has not been made; or
(c) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no‑disadvantage test has been given and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;
then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 3, has effect in relation to the collective agreement subject to subitems (3) and (5).
(3) Section 346N of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:
(a) the period of 37 days beginning on whichever of the following days is later:
(i) the WR Act repeal day;
(ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement; or
(b) if the period is extended under subitem (4)—the period as extended.
(4) The Workplace Authority Director may extend the period referred to in paragraph (3)(b) in relation to a particular agreement in circumstances prescribed by the regulations.
(5) Section 346Q of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).
Division 2—Transitional provisions relating to variations of collective agreements made before the WR Act repeal day
6 Division applies to variations of collective agreements made before WR Act repeal day
This Division applies to a variation of a collective agreement under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.
7 General rule—continued application of lodgment provisions and no‑disadvantage test to ordinary variations
The following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day:
(a) Division 5A of Part 8 (which deals with the no‑disadvantage test);
(b) subsections 370(8), (9), (10) and (11) (which deal with non‑compliance with access and information requirements);
(c) section 374 (which deals with lodgment of unapproved variations);
(d) Subdivision C of Division 8 of Part 8 (which deals with lodgment);
(e) Subdivision D of Division 8 of Part 8 (which deals with when a variation comes into operation);
(f) subsection 401(1) and section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules about lodgment and the no‑disadvantage test for variations under Division 8 made before the WR repeal day, subject to the modifications set out in this Division.
8 Modification—unlodged variations must be lodged within 14 days
(1) Despite item 7, if the variation is an unlodged variation:
(a) the Workplace Authority Director must not consider whether the varied agreement passes the no‑disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 7, unless:
(i) the variation is lodged before the end of the period (the cut‑off period) of 14 days referred to in subsection 375(1) of that Act; and
(ii) for a variation of a union collective agreement or a union greenfields agreement—the variation was approved before the WR Act repeal day; and
(b) subsection 375(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 7, does not apply to the variation.
Note: The general effect of this provision is that unlodged variations of collective agreements must be lodged within 14 days of being approved in order to come into operation. Unlodged variations of union collective agreements and union greenfields agreements must also have been approved before the WR Act repeal day. However, late lodgment will not give rise to a civil remedy.
(2) If the variation is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the variation cannot come into operation because it was lodged after the end of the cut‑off period, to the following:
(a) the employer to which the agreement applies;
(b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations covered by the agreement.
9 Modification—limits on varying variations for the purpose of passing the no‑disadvantage test
(1) Despite item 7, if, as at the WR Act repeal day:
(a) a notice under section 346M of the WR Act about whether the agreement as varied passes the no‑disadvantage test has not been given in relation to the variation; or
(b) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no‑disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or
(c) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no‑disadvantage test has been given in relation to the variation and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;
then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4).
(2) Section 346N of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:
(a) the period of 37 days beginning on whichever of the following days is later:
(i) the WR Act repeal day;
(ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement as varied; or
(b) if the period is extended under subitem (3)—the period as extended.
(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.
(4) Section 346Q of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no‑disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).
Division 3—Transitional provisions relating to pre‑WR Act repeal day terminations of collective agreements
10 Termination by approval general rule—continued application of lodgment provisions
(1) This item applies to a termination of a collective agreement, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:
(a) subsection 381(2) (which deals with when a workplace agreement is terminated);
(b) subsections 384(4), (5) and (6) (which deal with non‑compliance with information requirements);
(c) section 387 (which deals with lodgment of unapproved terminations);
(d) Subdivision C of Division 9 of Part 8 (which deals with lodgment);
(e) section 398 (which deals with the effect of non‑compliance);
(f) subsection 401(1) and section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace agreements approved before the WR Act repeal day, subject to the modifications set out in item 11. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
11 Modification—unlodged terminations must be lodged within 14 days
(1) Despite item 10, if a termination to which that item applies is an unlodged termination:
(a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut‑off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 10; and
(b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 10, does not apply to the termination.
Note: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.
(2) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut‑off period, to the following:
(a) the employer to which the agreement applies;
(b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations covered by the agreement.
12 Unilateral termination of collective agreement in manner provided for in agreement general rule—continued application of lodgment provisions
(1) This item applies to a termination of a collective agreement if a declaration to terminate the agreement is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the agreement) before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:
(a) subsection 381(2) (which deals with when a workplace agreement is terminated);
(b) section 396 (which deals with receipts for lodgment of declarations);
(c) section 397 (which deals with giving notice after lodging notice of termination);
(d) section 398 (which deals with the effect of non‑compliance);
(e) section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to unilateral terminations of workplace agreements, if a declaration to terminate the agreement has been lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
13 Termination by the Commission—Commission may continue to deal with applications made before the WR Act repeal day
(1) This item applies to a collective agreement in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the agreement on and after the WR Act repeal day:
(a) subsection 381(2) (which deals with when a collective agreement is terminated);
(b) subsections 397A(1) and (3) (which deal with when the Commission may terminate a collective agreement);
(c) section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace agreements by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
Division 4—Transitional provisions relating to ITEAs made before the WR Act repeal day
14 Continued application of Part 8 to ITEAs made before the WR Act repeal day
(1) This item applies to an ITEA made before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:
(a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no‑disadvantage test);
(b) subsection 347(1) (which deals with when a workplace agreement comes into operation);
(c) section 347A (which deals with the operation of workplace agreements);
(d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);
(e) subsection 401(1) and section 412A.
Note 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content in relation to ITEAs made before the WR Act repeal day, subject to the modification set out in item 15. The rules about making ITEAs after that day are contained in Division 7 of this Part. The rules about variation and termination of ITEAs after that day, and some other rules, are contained in Schedule 3 (which deals with transitional instruments).
Note 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).
15 Modification—limits on variation of an ITEA that operates from approval for the purpose of passing the no‑disadvantage test
(1) Despite item 14, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.
Note: The general effect of this item is that an ITEA that operates from approval can only be varied for the purpose of passing the no‑disadvantage test if a variation for that purpose is lodged within a specified period.
(2) If, as at the WR Act repeal day:
(a) a notice under section 346M of the WR Act about whether the ITEA passes the no‑disadvantage test has not been given; or
(b) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no‑disadvantage test has been given but a variation of the ITEA, for the purposes of passing that test, has not been made; or
(c) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no‑disadvantage test has been given and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;
then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 14, has effect in relation to the collective agreement subject to subitems (3) and (5).
(3) Section 346N of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:
(a) the period of 37 days beginning on whichever of the following days is later:
(i) the WR Act repeal day;
(ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or
(b) if the period is extended under subitem (4)—the period as extended.
(4) The Workplace Authority Director may extend the period referred to in paragraph (3)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.
(5) Section 346Q of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).
Division 5—Transitional provisions relating to variations of ITEAs made before the WR Act repeal day
16 General rule—continued application of lodgment provisions and no‑disadvantage test to ordinary variations
(1) This item applies to a variation of an ITEA under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day:
(a) Division 5A of Part 8 (which deals with the no‑disadvantage test);
(b) subsections 370(8), (9), (10) and (11) (which deal with non‑compliance with access and information requirements);
(c) section 374 (which deals with lodgment of unapproved variations);
(d) Subdivision C of Division 8 of Part 8 (which deals with lodgment);
(e) Subdivision D of Division 8 of Part 8 (which deal with when a variation comes into operation);
(f) subsection 401(1) and section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules about lodgment and the no‑disadvantage test for variations made before the WR Act repeal day of ITEAs, subject to the modification specified in item 17.
17 Modification—limits on varying variations for the purpose of passing the no‑disadvantage test
(1) Despite item 16, if, as at the WR Act repeal day:
(a) a notice under section 346M of the WR Act about whether the ITEA as varied passes the no‑disadvantage test has not been given in relation to the variation; or
(b) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no‑disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or
(c) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no‑disadvantage test has been given in relation to the variation and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;
then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4).
(2) Section 346N of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N before the end of:
(a) the period of 37 days beginning on whichever of the following days is later:
(i) the WR Act repeal day;
(ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the variation; or
(b) if the period is extended under subitem (3)—the period as extended.
(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.
(4) Section 346Q of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).
Division 6—Transitional provisions relating to pre‑WR Act repeal day terminations of ITEAs
18 Termination by approval—continued application of lodgment provisions
(1) This item applies to a termination of an ITEA, if the termination is approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act by that time.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:
(a) subsection 381(2) (which deals with when a workplace agreement is terminated);
(b) subsections 384(4), (5) and (6) (which deal with non‑compliance with information requirements);
(c) section 387 (which deals with lodgment of unapproved terminations);
(d) Subdivision C of Division 9 of Part 8 (which deals with lodgment);
(e) section 398 (which deals with the effect of non‑compliance);
(f) subsection 401(1) and section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs approved before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
19 Unilateral termination of ITEA in manner provided for in agreement—continued application of lodgment provisions
(1) This item applies to a termination of an ITEA if a declaration to terminate the ITEA is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the ITEA) before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:
(a) subsection 381(2) (which deals with when a workplace agreement is terminated);
(b) section 396 (which deals with receipts for lodgment of declarations);
(c) section 397 (which deals with giving notice after lodging notice of termination);
(d) section 398 (which deals with effect of non‑compliance).
(e) section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs, if a declaration to terminate is lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
20 Continued application of lodgment provisions where termination by written notice is given before the WR Act repeal day and lodged within 120 days
(1) This item applies to an ITEA, if notice to terminate the ITEA is given in accordance with subsection 393(4) of the WR Act (which deals with unilateral termination by giving written notice) before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply on and after the WR Act repeal day in relation to the termination of the ITEA:
(a) subsection 381(2) (which deals with when an ITEA is terminated);
(b) sections 393, 394, 395, 396, 397, 397A, 398 and 399A (which deal with matters relating to lodgment of terminations, etc.);
(c) section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs by written notice given before the WR Act repeal day, subject to the modifications set out in subitems (3) to (6). Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
Modification—declaration to terminate must be lodged within 120 days of WR Act repeal day
(3) A declaration may only be lodged, in relation to the ITEA under subsection 393(2) of the WR Act, as that subsection continues to apply because of subitem (2), before the end of the period (the cut‑off period) of 120 days beginning on the WR Act repeal day.
(4) Section 396 of the WR Act, as that section continues to apply because of subitem (2), does not apply in relation to the ITEA if the declaration is not lodged before the end of the cut‑off period.
(5) Despite subsection 381(2) and section 398 of the WR Act, as those provisions continue to apply because of subitem (2), the termination of the ITEA does not take effect if the declaration is not lodged before the end of the cut‑off period.
(6) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because the declaration was lodged after the end of the cut‑off period, to the following:
(a) the employer to which the agreement applies;
(b) the employee to whom the agreement applies.
Division 7—Transitional provisions relating to making ITEAs during the bridging period
21 General rule—continued application of Part 8 to making of ITEAs
(1) Despite the repeal of Part 8 of the WR Act, an ITEA may, during the bridging period, be made under Division 2 of that Part as if that Part had not been repealed.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:
(a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no‑disadvantage test), other than sections 346ZJ and 346ZK (which deal with dismissing an employee if an agreement does not pass that test);
(b) subsections 347(1) and (3) (which deal with when a workplace agreement comes into operation);
(c) section 347A (which deals with the operation of workplace agreements);
(d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);
(e) subsections 400(3) and (5), subsection 401(1) and section 412A.
Note 1: The general effect of this provision is to permit ITEAs to be made during the bridging period and to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content, subject to the modifications set out in this Division. The rules about variation and termination of ITEAs on and after the WR Act repeal day, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).
Note 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).
(3) The provisions referred to in subitem (2) do not apply to an ITEA lodged after the end of the bridging period.
(4) If the ITEA is lodged after the end of the bridging period, the Workplace Authority Director must give a written notice, stating that the ITEA cannot come into operation because the ITEA was lodged after the end of the bridging period, to the following:
(a) the employer to which the ITEA would have applied if it had come into operation;
(b) the employee to whom the ITEA would have applied if it had come into operation.
22 Modification—enterprise agreements and workplace determinations are taken to be instruments
(1) This item applies to an ITEA made during the bridging period as referred to in subitem 21(1).
(2) For the purposes of the application to the ITEA of section 346E of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations are taken to be specified in subsection 346E(3) (in addition to the other instruments so specified).
(3) For the purposes of the application to the ITEA of section 346ZB of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in subsection 346ZB(5) (in addition to the other instruments so specified).
23 Modification—limits on variation of an ITEA that operates from approval for the purpose of passing the no‑disadvantage test
(1) Despite item 21, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.
(2) Section 346N of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:
(a) the period of 30 days beginning on the seventh day after the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or
(b) if the period is extended under subitem (3)—the period as extended
(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.
(4) Section 346Q of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (2)(a) or (b).
24 Modification—subsection 400(5)
(1) This item applies to an ITEA made during the bridging period as referred to in subitem 21(1).
(2) For the purposes of the application to the ITEA of subsection 400(5) of the WR Act, as that subsection continues to apply because of item 21, the circumstance referred to in subsection 400(6) of that Act is taken to include a reference to the circumstance referred to in subitem 25(2).
25 Effect of section 342 of the FW Act during the bridging period
(1) Despite section 342 of the FW Act, a prospective employer does not contravene subsection 340(1) of that Act if, during the bridging period, the person refuses to employ a person merely because the person requires another person to make an ITEA as a condition of engagement, other than in the circumstance referred to in subitem (2).
(2) The circumstance referred to in subitem (1) is that:
(a) the first person mentioned in subitem (1) is a new employer; and
(b) the new employer requires another person to make an ITEA; and
(c) the other person would, if employed by the new employer, be a transferring employee; and
(d) the requirement to make the ITEA is a condition of the other person becoming employed by the new employer.
Division 8—Applying the no‑disadvantage test where there is a transmission or transfer of business
26 Applying the no‑disadvantage test where there is a transmission or a transfer of business
(1) This item applies if the Workplace Authority Director is required, because of the application of this Schedule to a workplace agreement, to decide, on or after the WR Act repeal day, whether the workplace agreement passes the no‑disadvantage test.
(2) Division 7A of Part 11 of the WR Act continues to apply, in relation to the workplace agreement, as if that Division had not been repealed, with the following modifications:
(a) references to a workplace agreement binding an employer or an employee are taken to include references to a workplace agreement that is a transitional instrument covering an employer or employee;
(b) references to sections 583 and 585 of the WR Act (other than in section 601D) are taken to include references to section 313 of the FW Act;
(c) enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in the definition of instrument in subsection 601D(5) (in addition to the other instruments so specified);
(d) the reference in subparagraph 601G(1)(b)(i) to the instrument described in paragraph 601D(2)(a) is taken to include a reference to the instrument described in paragraph 27(2)(a) of this Schedule;
(e) the reference in subparagraph 601G(1)(b)(ii) to section 598A or clause 27A of Schedule 9 is taken to include a reference to item 9 of Schedule 11;
(f) the reference in paragraph 601H(1)(b) to the time of transmission is taken to include a reference to the time when the new employer first employs a transferring employee;
(g) paragraph 601H(2)(d) does not apply if the workplace agreement applies to the new employer because of the operation of section 313 of the FW Act.
27 Employment arrangements if there is a transfer of business and a workplace agreement ceases to operate because it does not pass the no‑disadvantage test
(1) This item applies if:
(a) on a particular day (the cessation day), a workplace agreement (the original agreement) ceases to operate under section 346W or 346ZA of the WR Act (as those provisions continue to apply because of the operation of this Schedule) because the original agreement does not pass the no‑disadvantage test; and
(b) during the period beginning when the original agreement was lodged and ending on the cessation day, the original agreement started to cover a new employer and a transferring employee or transferring employees because of the operation of section 313 of the FW Act.
(2) Despite subsection 346ZB(2) of the WR Act (as that provision continues to apply because of the operation of this Schedule), the new employer and the transferring employee or transferring employees who were covered by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be covered by:
(a) the instrument:
(i) that, but for the original agreement having come into operation, would have covered the old employer and the transferring employee or transferring employees immediately before the termination of the employment of the transferring employee or transferring employees with the old employer; and
(ii) that was capable of covering the new employer after the time the transferring employee or transferring employees became employed by the new employer under Schedule 11; or
(b) if there is no instrument of a kind referred to in paragraph (a) in relation to the old employer and one or more of the transferring employees—the designated award (within the meaning of Division 5A of Part 8 of the WR Act) in relation to that employee or those employees.
(3) If, but for the original agreement having come into operation, a redundancy provision would, immediately before the termination of the employment of a transferring employee or transferring employees with the old employer, have applied to the old employer in relation to a transferring employee or transferring employees to who the original agreement applied because of a preservation item (within the meaning of item 9 of Schedule 11) relating to the agreement, the redundancy provision is taken:
(a) to apply to the new employer under item 9 of Schedule 11, on and from the cessation day, in relation to the transferring employee or transferring employees; and
(b) to continue to so apply to the employer, in relation to the transferring employee or transferring employees, until the earliest of the following:
(i) the end of the period of 24 months beginning on the first day on which the old employer became covered, under the preservation item, by the redundancy provision;
(ii) the time when the transferring employee ceases to be employed by the new employer;
(iii) the time when an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee or transferring employees and the new employer.
(4) If the original agreement is a workplace agreement as varied under Division 8 of Part 8 of the WR Act, the workplace agreement as in force before the variation was lodged is, despite section 346ZE of that Act (as that section continues to apply because of the operation of this Schedule), capable of being an instrument described in paragraph (2)(a).
(5) In this item:
award includes a State reference transitional award.
instrument means:
(a) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred before the WR Act repeal day—any of the following:
(i) a workplace agreement;
(ii) an award;
(iii) a pre‑reform certified agreement;
(iv) a preserved State agreement;
(v) a notional agreement preserving State awards; and
(b) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred on or after the WR Act repeal day—any of the following:
(i) an instrument referred to in subparagraph (a)(i), (ii), (iii), (iv) or (v) that is a transitional instrument;
(ii) an enterprise agreement;
(iii) a workplace determination made under the FW Act.
redundancy provision has the meaning given by subitem 38(7) of Schedule 3.
Division 9—Miscellaneous
28 References to variations under Division 8
To avoid doubt, a reference in this Part to a variation under Division 8 of Part 8 of the WR Act does not include a reference to a variation made for the purposes of passing the no‑disadvantage test.
28A Variations to pass no‑disadvantage test after WR Act repeal day
Despite any other provision of Division 5A of Part 8 of the WR Act, as that Division continues to apply because of this Schedule in relation to:
(a) a workplace agreement; or
(b) a variation of such an agreement under Division 8 of that Part;
only one variation for the purposes of passing the no‑disadvantage test of the agreement or variation may be lodged with the Workplace Authority Director on or after the WR Act repeal day.
29 Documents taken to be workplace agreements, etc.
To avoid doubt, sections 324A, 368A and 381A of the WR Act continue to have effect for the purposes of a provision of the WR Act that continues to apply because of this Act.
Part 3—Transitional provisions relating to workplace determinations made under the WR Act
30 Continued application of WR Act prohibited content provisions
(1) This item applies to a workplace determination made under the WR Act before the WR Act repeal day.
(2) Despite the repeal of section 506 of the WR Act, Subdivision B of Division 7 of Part 8 of that Act (which deals with prohibited content), other than section 358 (which deals with prohibited content being void), continues to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed.
Note 1: The general effect of this provision is to preserve the Part 8 rules about prohibited content for workplace determinations made before the WR Act repeal day. The rules about variation and termination of such workplace determinations, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).
Note 2: The rules about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).
31 Termination by approval general rule—continued application of lodgment provisions
(1) This item applies to a termination of a workplace determination, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.
Note: Under subsection 506(3) of the WR Act, a workplace determination can only be terminated under Subdivision B of Division 9 of Part 8 of that Act after the determination has passed its nominal expiry date.
(2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the termination on and after the WR Act repeal day, as if that section had not been repealed:
(a) subsection 381(2) (which deals with when a workplace determination is terminated);
(b) subsections 384(4), (5) and (6) (which deal with non‑compliance with information requirements);
(c) section 387 (which deals with lodgment of unapproved terminations);
(d) Subdivision C of Division 9 of Part 8 (which deals with lodgment);
(e) section 398 (which deals with the effect of non‑compliance);
(f) subsection 401(1) and section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace determinations approved before the WR Act repeal day, subject to the modification set out in item 32. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
32 Modification—unlodged terminations must be lodged within 14 days
(1) Despite item 31, if a termination to which that item applies is an unlodged termination:
(a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut‑off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 31; and
(b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 31, does not apply to the termination.
Note: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.
(2) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut‑off period, to the following:
(a) the employer to which the workplace determination applies;
(b) the employees to which the workplace determination applies.
(3) In this item:
unlodged termination, in relation to a workplace determination, means a termination of a workplace determination approved in accordance with section 386 of the WR Act, but not lodged with the Workplace Authority Director under section 389 of that Act as at the WR Act repeal day.
33 Termination by the Commission—Commission may continue to deal with applications made before the WR Act repeal day
(1) This item applies to a workplace determination in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.
(2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed:
(a) subsection 381(2) (which deals with when a workplace determination is terminated);
(b) subsections 397A(1) and (3) (which deal with when the Commission may terminate a workplace determination).
Note: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace determinations by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
34 Documents taken to be workplace determinations, etc.
To avoid doubt, section 381A of the WR Act continues to apply for the purposes of a provision of that Act that continues to apply because of this Part.
Schedule 9—Minimum wages
Part 1—Preliminary
1 Meanings of employee and employer
In this Schedule, employee means a national system employee and employer means a national system employer.
Part 2—Special provisions relating to FWA’s first annual wage review
2 Period to which first annual wage review relates
FWA’s first annual wage review is to be conducted and completed in the period:
(a) starting on the FW (safety net provisions) commencement day; and
(b) ending at the end of the next 30 June;
even if that period is not a full financial year.
3 Exercise of powers in advance of first annual wage review period
FWA may, before the start of the period referred to in item 2, exercise powers for the purpose of obtaining information to be taken into account in its first annual wage review. Powers that may be exercised include:
(a) inviting persons or bodies to make written submissions to FWA for consideration in the review; and
(b) undertaking or commissioning research for the purposes of the review.
4 First national minimum wage order does not have to set full range of special national minimum wages
(1) In its first annual wage review, FWA does not have to set a full range of special national minimum wages covering all the classes of employees referred to in paragraph 294(1)(b) of the FW Act.
(2) However, FWA must set a special national minimum wage for a class or subclass of those employees in its first annual wage review if the transitional national minimum wage order sets a special national minimum wage order for those employees.
Note: The transitional national minimum wage order is taken to have been made on the FW (safety net provisions) commencement day: see item 12.
(3) If FWA does not set a full range of special national minimum wages in its first annual wage review, the President of FWA must establish a process for the setting of the remaining special national minimum wages in FWA’s second annual wage review.
(4) FWA may advise persons or bodies about that process in any way FWA considers appropriate.
(5) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (4).
Part 3—Continued application of WR Act provisions about minimum wages
Division 1—General provisions
5 Continuation of Australian Fair Pay and Conditions Standard wages provisions
(1) Division 2 (other than as provided in subitem (2)) of Part 7 of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part. That Division as it continues to apply is the continued AFPCS wages provisions.
Note 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Schedule 4 provides for the continued application of the rest of the Standard during the bridging period. The effect of this Division is not limited just to the bridging period.
Note 2: Schedule 3 provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.
(2) The continued application of Division 2 of Part 7 of the WR Act has effect subject to the following paragraphs:
(a) subsections 182(1) and (2), and Subdivisions H, I, L and M, cease to apply when there are no longer any employees covered by transitional APCSs (see also item 11);
(b) subsections 182(3) and (4), section 185 and Subdivision G cease to apply at the end of the bridging period (see also item 12;
(c) Subdivision D does not continue to apply at all;
(d) Subdivisions E, F, K and N cease to apply after the AFPC has ceased to exist (see item 7 of Schedule 18).
(3) Without limiting subitem (1) (but subject to subitem (2)), each of the following, as it was under Division 2 of Part 7 of the WR Act immediately before the WR Act repeal day, continues to exist, as a transitional minimum wage instrument, in accordance with this Part on and after that day:
(a) an APCS, which continues as a transitional APCS;
(b) the rate of the standard FMW, which continues as the transitional standard FMW;
(c) a special FMW, which continues as a transitional special FMW;
(d) the rate of the default casual loading, which continues as the transitional default casual loading.
Note: APCS is short for Australian Pay and Classification Scale. FMW is short for Federal Minimum Wage.
(4) Despite item 6 of Schedule 2, the following provisions of Part 21 of the WR Act do not apply in relation to the continued AFPCS wages provisions:
(a) subparagraph 861(1)(d)(iii);
(b) section 865.
Note: Paragraph (a) has a flow‑through effect to the reference in subparagraph 885(1)(j) of the WR Act to section 861.
5A References to workplace agreements include references to enterprise agreements
(1) The provisions of the WR Act that continue to apply because of item 5 have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.
(2) Subitem (1) has effect unless the context otherwise requires and subject to the regulations.
6 The employees who are covered by transitional minimum wage instruments
(1) Transitional minimum wage instruments cover employees as provided in the following paragraphs:
(a) a transitional APCS covers an employee if, under sections 204 and 205 of the continued AFPCS wages provisions, the APCS covers the employment of the employee;
(b) the transitional standard FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is the standard FMW;
(c) a transitional special FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is that special FMW;
(d) the transitional default casual loading covers an employee who is described in subsection 185(1) of the continued AFPCS wages provisions.
(2) However, a transitional APCS does not cover an employee (or an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).
Note 1: Item 35 of Schedule 3 deals with the application of section 329 of the FW Act to transitional APCSs.
Note 2: Divisions 2 and 3 of this Part deal with when transitional minimum wage instruments cease to cover employees.
7 Transitional minimum wage instruments can only be varied or terminated in limited circumstances
(1) Despite anything in the continued AFPCS wages provisions, a transitional minimum wage instrument cannot be varied or terminated (or otherwise brought to an end) except as referred to in one of the following subitems.
(2) The AFPC can exercise its wage‑setting powers to vary a transitional minimum wage instrument as necessary depending on the outcome of the AFPC’s final wage review under the WR Act. Those exercises of wage‑setting powers take effect at the time determined by the AFPC (which may be a time after the AFPC has ceased to exist).
Note: Schedule 18 provides for when the AFPC ceases to exist.
(3) A transitional APCS can be varied in an annual wage review under the FW Act as provided for in item 10.
(4) A transitional APCS can be varied or terminated under:
(a) item 3 of Schedule 5 (which deals with variation and termination of transitional APCSs to take account of the Part 10A award modernisation process); or
(b) item 9 of Schedule 6 (which deals with variation and termination of transitional APCSs to take account of the enterprise instrument modernisation process).
8 Effect of termination
If a transitional minimum wage instrument terminates, it ceases to cover (and can never again cover) any employees.
9 No loss of accrued rights or liabilities when transitional minimum wage instrument terminates or ceases to cover an employee
(1) If a transitional minimum wage instrument terminates, or ceases to cover a person, that does not affect:
(a) any right or liability that a person acquired, accrued or incurred before the transitional minimum wage instrument terminated or ceased to cover the person; or
(b) any investigation, legal proceeding or remedy in respect of any such right or liability.
(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional minimum wage instrument had not terminated or ceased to cover the person.
Division 2—Special provisions about transitional APCSs
10 Variation of transitional APCS in annual wage reviews under the FW Act
(1) In an annual wage review, the FWC may make a determination varying a transitional APCS.
(2) For that purpose, Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to a transitional APCS in the same way as it applies to a modern award.
11 Transitional APCS ceases to cover an employee if a modern award starts to cover the employee
A transitional APCS ceases to cover an employee when a modern award that covers the employee comes into operation.
Division 3—Special provisions about the FMW, special FMWs and the default casual loading
12 Cessation of coverage of transitional standard FMW etc.
(1) On the FW (safety net provisions) commencement day, the transitional standard FMW, any transitional special FMWs and the transitional default casual loading cease to cover any employees. Subsections 182(3) and (4), and section 185, of the continued AFPCS wages provisions also cease to cover any employees.
(2) On the FW (safety net provisions) commencement day, FWA is taken to have made a national minimum wage order (the transitional national minimum wage order) under Part 2‑6 of the FW Act:
(a) that:
(i) sets the national minimum wage at the rate that was the transitional standard FMW immediately before that day; and
(ii) requires employers to pay employees to whom the national minimum wage applies (see subsection 294(3) of the FW Act) a base rate of pay that at least equals the national minimum wage; and
(b) if, immediately before that day, there was a transitional special FMW for a class of employees—that:
(i) sets a special national minimum wage for that class of employees that is the same as the transitional special FMW immediately before that day; and
(ii) requires employers to pay employees to whom that special national minimum wage applies (see subsection 294(4) of the FW Act) a base rate of pay that at least equals that special national minimum wage; and
(c) that:
(i) sets the casual loading for award/agreement free employees at the rate that was the transitional default casual loading immediately before that day; and
(ii) requires employers to pay, to award/agreement free employees who are casual employees, a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employees’ base rates of pay).
Note: The requirement in paragraph 294(1)(b) of the FW Act that a national minimum wage order must set special national minimum wages for all award/agreement free employees in the classes referred to in that paragraph does not apply to the transitional national minimum wage order.
(3) The hours for which a rate set in the transitional national minimum wage order is payable are the same as the hours for which the transitional standard FMW, transitional special FMW or transitional default casual loading (as the case requires) would have been payable under the continued AFPCS wages provisions.
Part 4—Universal application of minimum wages to employees: transitional instruments
13 Base rate of pay under agreement‑based transitional instrument must not be less than the modern award rate or the national minimum wage order rate etc.
If employee is covered by a modern award that is in operation
(1) If, on or after the FW (safety net provisions) commencement day:
(a) an agreement‑based transitional instrument applies to an employee; and
(b) a modern award that is in operation covers the employee;
the base rate of pay payable to the employee under the transitional instrument (the instrument rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee.
(2) If the instrument rate is less than the award rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the award rate.
If employee is not covered by a modern award that is in operation
(3) If, on or after the FW (safety net provisions) commencement day:
(a) an agreement‑based transitional instrument applies to an employee; and
(b) the employee is not covered by a modern award that is in operation; and
(c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;
the base rate of pay payable to the employee under the transitional instrument (the instrument rate) must not be less than the employee’s order rate.
(4) If the instrument rate is less than the employee’s order rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the employee’s order rate.
Note: The AFPCS interaction rules may affect the base rate of pay payable to an employee (see item 22 of Schedule 3).
14 FWC may make determinations to phase‑in the effect of rate increases resulting from item 13 etc.
(1) On application by an employer to whom a transitional instrument applies, the FWC may make a determination the effect of which is to phase‑in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of:
(a) item 13; or
(b) subitem 22(2) of Schedule 3.
Note: Under subitem 22(2) of Schedule 3, AFPCS interaction rules that provide for instruments to prevail over the Australian Fair Pay and Conditions Standard stop applying when the bridging period ends. That may result in an employee becoming entitled to a higher rate of pay under a transitional APCS.
(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise.
(3) Item 13, and subitem 22(2) of Schedule 3, have effect in relation to an employer subject to any determinations the FWC makes under this item.
15 Enterprise agreement base rate of pay not to be less than transitional minimum wage instrument rate
(1) If:
(a) a transitional minimum wage instrument covers an employee; and
(b) an enterprise agreement applies to the employee;
the base rate of pay payable to the employee under the enterprise agreement (the agreement rate) must not be less than the base rate of pay that is payable to the employee under the transitional minimum wage instrument (the instrument rate).
(2) If the agreement rate is less than the instrument rate, the enterprise agreement has effect in relation to the employee as if the agreement rate were equal to the instrument rate.
Note: If a transitional instrument applies to an employee who is covered by a transitional minimum wage instrument, then (subject to the continued application of the AFPCS interaction rules) the employee must be paid at least the rate required by the continued AFPCS wages provisions.
Part 5—Provisions relating to Division 2B State instruments
Division 1—Universal application of minimum wages to employees: Division 2B State reference employees
16 Base rate of pay under Division 2B State award must not be less than national minimum wage order rate etc.
(1) If, on or after the Division 2B referral commencement:
(a) a Division 2B State award applies to a Division 2B State reference employee; and
(b) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;
the base rate of pay payable to the employee under the Division 2B State award (the award rate) must not be less than the employee’s order rate.
(2) If the award rate is less than the employee’s order rate, the Division 2B State award has effect in relation to the employee as if the award rate were equal to the employee’s order rate.
17 Base rate of pay under Division 2B State employment agreement must not be less than Division 2B State award rate or modern award rate, or the national minimum wage order rate etc.
If employee is covered by a Division 2B State award or modern award that is in operation
(1) If, on or after the Division 2B referral commencement:
(a) a Division 2B State employment agreement applies to a Division 2B State reference employee; and
(b) a Division 2B State award or a modern award that is in operation covers the employee;
the base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the Division 2B State award or the modern award (the award rate) if the Division 2B State award or the modern award applied to the employee.
(2) If the agreement rate is less than the award rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.
If employee is not covered by a Division 2B State award or modern award that is in operation
(3) If, on or after the Division 2B referral commencement:
(a) a Division 2B State employment agreement applies to a Division 2B State reference employee; and
(b) the employee is not covered by a Division 2B State award or a modern award that is in operation; and
(c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;
the base rate of pay payable to the employee under the Division 2B State employment agreement (the agreement rate) must not be less than the employee’s order rate.
(4) If the agreement rate is less than the employee’s order rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.
18 FWC may make determinations to phase‑in the effect of rate increases resulting from item 16 or 17 etc.
(1) On application by an employer to whom a Division 2B State instrument applies, the FWC may make a determination the effect of which is to phase‑in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of item 16 or 17.
(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise.
(3) Items 16 and 17 have effect in relation to an employer subject to any determinations the FWC makes under this item.
19 Award/agreement free Division 2B State reference employee not to be paid less than State minimum amount
(1) This item applies in relation to an employee and a period if:
(a) the employee is a Division 2B State reference employee; and
(b) the transitional national minimum wage order, or another national minimum wage order, is in operation throughout the period; and
(c) the employee is an award/agreement free employee throughout the period, and no Division 2B State instrument applies to the employee at any time in the period; and
(d) the amount that is payable to the employee in relation to the period under the national minimum wage order is less than the amount (the State minimum amount) that would be payable to the employee in relation to the period under the State minimum wages instruments (see subitem (4)).
(2) The national minimum wage order has effect, in relation to the employee and the period, as if it instead required the employer to pay the employee the State minimum amount.
(3) In working out the State minimum amount, any increases of rates (whether because of indexation or otherwise) that would have taken effect after the Division 2B State referral commencement under State minimum wages instruments are to be disregarded.
(4) The State minimum wages instruments, in relation to the employee, are orders, decisions or rulings (however described), as in force immediately before the Division 2B referral commencement:
(a) that were made by a State industrial body under a State industrial law of the Division 2B referring State; and
(b) that provide for employees to be paid a minimum wage or a minimum rate of remuneration, or that affect the entitlement of such employees to be paid a minimum wage or a minimum rate of remuneration.
(5) This item has effect subject to the regulations, which may:
(a) provide for how amounts referred to in paragraph (1)(d) are to be worked out (for example, in relation to casual employees); or
(b) provide for how a national minimum wage order has effect because of subitem (2); or
(c) provide that certain orders, decisions or rulings (however described) made by a State industrial body are, or are not, State minimum wages instruments as defined in subitem (4).
Division 2—Other matters
20 Variation of Division 2B State awards in annual wage reviews under the FW Act
(1) In an annual wage review, the FWC may make a determination varying terms of a Division 2B State award relating to wages.
(2) For that purpose, Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to terms of a Division 2B State award relating to wages in the same way as it applies to a modern award.
Schedule 10—Equal remuneration
Part 1—Preliminary
1 Meaning of employee
In this Schedule, employee means a national system employee.
Part 2—Equal remuneration orders under the FW Act
2 FWA must take into account AFPC’s final wage review
(1) This item applies in relation to a decision whether to make an equal remuneration order under Part 2‑7 of the FW Act during the period:
(a) starting on the WR Act repeal day; and
(b) ending on the day FWA completes its first annual wage review.
(2) In deciding whether to make the equal remuneration order, FWA must take into account the outcome of the AFPC’s final wage review under the WR Act.
3 Inconsistency with certain instruments and orders
(1) A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that:
(a) is made under Part 2‑7 of the FW Act; and
(b) applies to the employee.
(2) For the purposes of subitem (1), the instruments and orders are as follows:
(a) a transitional instrument;
(b) an order of the Commission made under the WR Act;
(c) a transitional APCS;
(d) a Division 2B State instrument.
Note: A term of a modern award, an enterprise agreement or an FWA order also has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that is made under Part 2‑7 of the FW Act and applies to the employee (see section 306 of the FW Act).
Part 3—Equal remuneration orders under the WR Act
4 Continued effect of equal remuneration orders
(1) An order (a WR Act equal remuneration order) that was:
(a) made under Division 3 of Part 12 of the WR Act (as in force from time to time); and
(b) in force immediately before the WR Act repeal day;
continues to have effect on and after the WR Act repeal day.
(2) A WR Act equal remuneration order may be varied or revoked by the FWC under subsections 603(1) and (2) of the FW Act as if it were an order made under Part 2‑7 of the FW Act.
5 Inconsistency with certain instruments and orders
(1) A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an order that:
(a) was made under Division 3 of Part 12 of the WR Act (as in force from time to time); and
(b) was in force immediately before the WR Act repeal day; and
(c) applies to the employee.
(2) For the purposes of subitem (1), the instruments and orders are as follows:
(a) a modern award;
(b) an enterprise agreement;
(c) an FWC order;
(d) a transitional instrument that is an award or a State reference transitional award or common rule;
(e) a transitional instrument that is a workplace agreement;
(f)
