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Act No. 55 of 2009 as amended, taking into account amendments up to Statute Law Revision Act 2011
An Act to amend laws, and deal with transitional matters, in connection with the Fair Work Act 2009, and for other purposes
Administered by: Education, Employment and Workplace Relations
Registered 29 Mar 2011
Start Date 22 Mar 2011
End Date 04 Dec 2012
Table of contents.

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Act No. 55 of 2009 as amended

This compilation was prepared on 29 March 2011
taking into account amendments up to Act No. 5 of 2011

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  


Contents

1............ Short title [see Note 1]........................................................................ 1

2............ Commencement................................................................................... 1

3............ Schedule(s)......................................................................................... 3

4............ Regulations......................................................................................... 3

Schedule 1—Repeals                                                                                                            4

Workplace Relations Act 1996                                                                                 4

Schedule 2—Overarching Schedule about transitional matters                5

Part 1—Interpretation of the transitional Schedules                                     5

Part 2—Regulations about transitional matters                                              14

Part 3—Conduct before WR Act repeal day etc.                                         17

Schedule 3—Continued existence of awards, workplace agreements and certain other WR Act instruments                                                                                                 20

Part 1—Preliminary                                                                                                      20

Part 2—Continued existence of WR Act instruments as transitional instruments             21

Part 3—Variation and termination of transitional instruments              31

Part 4—Transitional instruments and the Australian Fair Pay and Conditions Standard               41

Part 5—Transitional instruments and the FW Act                                       42

Division 1—Interaction between transitional instruments and the National Employment Standards            42

Division 2—Interaction between transitional instruments and FW Act modern awards, enterprise agreements and workplace determinations                                                                 44

Division 3—Other general provisions about how the FW Act applies in relation to transitional instruments 49

Part 6—Preservation of redundancy provisions in agreements etc.     52

Part 7—Victorian employment agreements                                                     57

Part 8—Transitional pay equity order taken to have been made by FWA—Division 2B State reference transitional awards                                                                                     58

Schedule 3A—Treatment of State awards and State employment agreements of Division 2B referring States                                                                                                              60

Part 1—Preliminary                                                                                                      60

Part 2—Division 2B State instruments                                                              61

Part 3—Variation and termination of Division 2B State instruments 76

Part 4—Transition of employees from Division 2B State awards to FW Act modern awards   82

Division 1—FWA required to consider varying modern awards etc.                82

Division 1A—Transitional pay equity order taken to have been made by FWA—Division 2B State awards               84

Division 2—Avoiding reductions in take‑home pay                                           86

Part 5—Division 2B State instruments and the FW Act                          90

Division 1—Interaction between Division 2B State instruments and the National Employment Standards 90

Division 2—Interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations                                                                 92

Division 3—Other general provisions about how the FW Act applies in relation to Division 2B State instruments      96

Part 6—Ongoing operation of State laws for transitional purposes    99

Schedule 4—National Employment Standards                                                105

Part 1—Preliminary                                                                                                    105

Part 2—Continued application of WR Act minimum entitlements provisions (other than wages) during bridging period                                                                                           106

Part 3—Operation of the National Employment Standards                  108

Division 1—Operation in relation to employees other than Division 2B State reference employees               108

Division 2—Operation in relation to Division 2B State reference employees 112

Schedule 5—Modern awards (other than modern enterprise awards and State reference public sector modern awards)                                                                                    117

Part 1—Preliminary                                                                                                    117

Part 2—The WR Act award modernisation process                                  118

Part 3—Avoiding reductions in take‑home pay                                          124

Schedule 6—Modern enterprise awards                                                              128

Part 1—Preliminary                                                                                                    128

Part 2—The enterprise instrument modernisation process                      129

Division 1—Enterprise instruments                                                                      129

Division 2—The enterprise instrument modernisation process                       131

Division 3—Avoiding reductions in take‑home pay                                         138

Division 4—Application of the FW Act                                                               140

Part 3—Amendments                                                                                                142

Fair Work Act 2009                                                                                                 142

Schedule 6A—State reference public sector modern awards                 150

Part 1—Preliminary                                                                                                    150

Part 2—The State reference public sector transitional award modernisation process       151

Division 1—State reference public sector transitional awards                        151

Division 2—The State reference public sector transitional award modernisation process 152

Division 3—Avoiding reductions in take‑home pay                                         158

Division 4—Application of the FW Act                                                               161

Schedule 7—Enterprise agreements and workplace determinations made under the FW Act 162

Part 1—Preliminary                                                                                                    162

Part 2—Transitional provisions relating to the application of the no‑disadvantage test to enterprise agreements made and varied during bridging period             163

Division 1—Enterprise agreements and variations made during bridging period must pass no‑disadvantage test       163

Division 2—The no‑disadvantage test                                                                 164

Part 3—Other requirements and modifications applying to making and varying enterprise agreements during the bridging period                                                                   172

Division 1—Requirements relating to approval                                                 172

Division 2—Base rate of pay                                                                                173

Division 3—No extensions of time                                                                       173

Division 4—State and Territory laws dealing with long service leave            174

Part 4—Transitional provisions to apply the better off overall test after end of bridging period if award modernisation not yet completed                                                     175

Part 4A—Transitional provisions to apply the better off overall test to enterprise agreements that cover Division 2B State award covered employees                             179

Part 5—Transitional provisions relating to workplace determinations made under the FW Act                183

Part 6—Interaction with Australian Fair Pay and Conditions Standard during bridging period               186

Part 7—Transitional provision about the operation of the better off overall test if a transitional pay equity order applies                                                                                                188

Schedule 8—Workplace agreements and workplace determinations made under the WR Act               189

Part 1—Preliminary                                                                                                    189

Part 2—Transitional provisions relating to workplace agreements     190

Division 1—Transitional provisions relating to collective agreements made before the WR Act repeal day 190

Division 2—Transitional provisions relating to variations of collective agreements made before the WR Act repeal day                                                                                                             193

Division 3—Transitional provisions relating to pre‑WR Act repeal day terminations of collective agreements            196

Division 4—Transitional provisions relating to ITEAs made before the WR Act repeal day            198

Division 5—Transitional provisions relating to variations of ITEAs made before the WR Act repeal day    200

Division 6—Transitional provisions relating to pre‑WR Act repeal day terminations of ITEAs       202

Division 7—Transitional provisions relating to making ITEAs during the bridging period 204

Division 8—Applying the no‑disadvantage test where there is a transmission or transfer of business            207

Division 9—Miscellaneous                                                                                     211

Part 3—Transitional provisions relating to workplace determinations made under the WR Act               212

Schedule 9—Minimum wages                                                                                     215

Part 1—Preliminary                                                                                                    215

Part 2—Special provisions relating to FWA’s first annual wage review 216

Part 3—Continued application of WR Act provisions about minimum wages    218

Division 1—General provisions                                                                             218

Division 2—Special provisions about transitional APCSs                                221

Division 3—Special provisions about the FMW, special FMWs and the default casual loading      221

Part 4—Universal application of minimum wages to employees: transitional instruments            224

Part 5—Provisions relating to Division 2B State instruments              227

Division 1—Universal application of minimum wages to employees: Division 2B State reference employees            227

Division 2—Other matters                                                                                      230

Schedule 10—Equal remuneration                                                                         231

Part 1—Preliminary                                                                                                    231

Part 2—Equal remuneration orders under the FW Act                            232

Part 3—Equal remuneration orders under the WR Act                           233

Schedule 11—Transfer of business                                                                         234

Part 1—Preliminary                                                                                                    234

Part 2—Transmissions of business occurring before WR Act repeal day               235

Part 3—Transfers of business occurring on or after WR Act repeal day                241

Division 1—Transfers of business: transitional instruments                            241

Division 2—Transfer of preserved redundancy provisions during bridging period              242

Division 3—Transfer of entitlements under the AFPCS during bridging period 246

Division 4—Transfers of business: Division 2B State instruments                 247

Schedule 12—General protections                                                                           249

Schedule 12A—Unfair dismissal                                                                               251

Schedule 13—Bargaining and industrial action                                              254

Part 1—Preliminary                                                                                                    254

Part 2—Bargaining                                                                                                     255

Part 3—Industrial action                                                                                         257

Part 4—Protected action ballots                                                                          261

Part 5—Effect of conduct engaged in while bargaining for WR Act collective agreement or collective State employment agreement                                                              265

Part 6—Payments relating to periods of industrial action                      267

Schedule 14—Right of entry                                                                                       268

Schedule 15—Stand down                                                                                            271

Schedule 16—Compliance                                                                                            272

Schedule 17—Amendments relating to the Fair Work Divisions of the Federal Court and the Federal Magistrates Court                                                                                294

Part 1—Amendments to the Federal Court of Australia Act 1976   294

Federal Court of Australia Act 1976                                                                   294

Part 2—Amendments to the Federal Magistrates Act 1999                 298

Federal Magistrates Act 1999                                                                              298

Part 3—Other amendments                                                                                    302

Administrative Decisions (Judicial Review) Act 1977                                     302

Part 4—Application and transitional provisions                                          303

Part 5—Jurisdiction of courts                                                                               305

Schedule 18—Institutions                                                                                              308

Part 1—Initial appointment of FWA Members                                           308

Part 2—WR Act bodies and WR Act offices                                              311

Part 3—Transitional role for Fair Work Ombudsman and Inspectors 316

Part 4—Miscellaneous                                                                                              319

Fair Work Act 2009                                                                                                 323

Schedule 19—Dealing with disputes                                                                       324

Schedule 20—WR Act transitional awards etc.                                               325

Schedule 21—Clothing Trades Award 1999                                                     329

Schedule 22—Registered organisations                                                                330

Part 1—Main amendments                                                                                     330

Workplace Relations Act 1996                                                                             330

Part 2—State and federal organisations                                                          343

Workplace Relations Act 1996                                                                             343

Part 3—Representation orders                                                                              355

Workplace Relations Act 1996                                                                             355

Part 4—References to Schedules to the Workplace Relations Act   361

Fair Work Act 2009                                                                                                 361

Workplace Relations Act 1996                                                                             361

Part 5—References to the Workplace Relations Act etc.                       370

Workplace Relations Act 1996                                                                             370

Part 6—References to the Commission etc.                                                  378

Workplace Relations Act 1996                                                                             378

Part 7—References to the Registrar etc.                                                         392

Fair Work Act 2009                                                                                                 392

Workplace Relations Act 1996                                                                             392

Part 8—References to awards and collective agreements                      409

Fair Work Act 2009                                                                                                 409

Workplace Relations Act 1996                                                                             409

Part 9—Transitional provisions etc.                                                                   414

Schedule 23—Other amendments of the FW Act                                          418

Fair Work Act 2009                                                                                                 418

Notes                                                                                                                                           425


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 [see Note 1]

                   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 1Repeals

  

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 2Overarching Schedule about transitional matters

Part 1Interpretation 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.

FW Act: see item 3 of this Schedule.

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 2Regulations 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)       Despite subsection 12(2) of the Legislative Instruments Act 2003 and subject to subitem (3), regulations may be expressed to take effect from a date before the regulations are registered under that Act.

(3)       If:

                     (a)  regulations are expressed to take effect from a date (the registration date) before the regulations are registered under the Legislative Instruments 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 3Conduct 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  FWA 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 FWA:

                              (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 FWA; 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 FWA; 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 FWA.

(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 FWA, 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 FWA, or by FWA only.


 

Schedule 3Continued existence of awards, workplace agreements and certain other WR Act instruments

Part 1Preliminary

1  Meanings of employee and employer

In this Schedule, employee and employer have their ordinary meanings.


 

Part 2Continued 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 FWA.

(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 FWA.

(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 FWA; and

                     (c)  a reference in the clauses to a Registrar were instead a reference to the General Manager of FWA; and

                     (d)  a reference in the clauses to the Rules of the Commission were instead a reference to the procedural rules of FWA.

(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 3Variation 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, FWA 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 FWA 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 FWA.

Note:       Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act.

(2)       FWA 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 FWA 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 FWA; 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)       FWA 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 FWA continuing to deal with a matter that it was dealing with before the end of the bridging period.

(5)       In an annual wage review, FWA 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 FWA

(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.

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 FWA.

(3)       The employer or employee may apply to FWA 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 FWA considers it fair to extend that period—within such further period as FWA allows.

(4)       If an application for FWA to approve the termination agreement is made under subitem (3), FWA must approve the termination of the instrument if:

                     (a)  FWA is satisfied that the requirements of subitem (1) have been complied with; and

                     (b)  FWA 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 FWA 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 FWA 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 FWA’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 FWA 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 FWA for approval of the termination of the instrument;

                     (c)  the notice must state that, if FWA approves the termination, the transitional instrument will terminate on the 90th day after the day on which FWA 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)       FWA must approve the termination if FWA 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 FWA approves the termination, the transitional instrument terminates on the 90th day after the day on which FWA makes the approval decision.

20  Sunsetting rules for various 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.

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 4Transitional 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 FWA 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 5Transitional 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 FWA in accordance with item 26, FWA 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 FWA 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, FWA 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 6Preservation 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 7Victorian 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 8Transitional 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 3ATreatment of State awards and State employment agreements of Division 2B referring States

Part 1Preliminary

1  Meanings of employer and employee

In this Schedule, employer and employee have their ordinary meanings.


 

Part 2Division 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 FWA.

(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)  FWA may settle such a dispute if the State industrial body:

                              (i)  ceases to exist; or

                             (ii)  declines to settle the dispute.

(3)       FWA 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 transitional 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 FWA.

(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 FWA.

(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 3Variation 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, FWA 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 FWA 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 FWA

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.

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 FWA.

(3)       The employer or employee may apply to FWA 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 FWA considers it fair to extend that period—within such further period as FWA allows.

(4)       If an application for FWA to approve the termination agreement is made under subitem (3), FWA must approve the termination of the Division 2B agreement if:

                     (a)  FWA is satisfied that the requirements of subitem (1) have been complied with; and

                     (b)  FWA 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 FWA 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 FWA 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 FWA’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 FWA 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 FWA for approval of the termination of the agreement;

                     (c)  the notice must state that, if FWA approves the termination, the agreement will terminate on the 90th day after the day on which FWA makes the approval decision;

                     (d)  the notice must comply with any other requirements of the regulations.

(4)       FWA must approve the termination if FWA 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 FWA approves the termination, the Division 2B agreement terminates on the 90th day after the day on which FWA makes the approval decision.

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 4Transition 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 FWA 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, FWA 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 FWA considers appropriate to remedy the situation.

Outworkers

(2)       If FWA 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, FWA 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 FWA considers appropriate to remedy the situation.

General provisions

(3)       FWA 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 FWA 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, FWA 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)       FWA 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)  FWA considers that the reduction in take‑home pay is minor or insignificant; or

                     (b)  FWA is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.

(2)       FWA 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 5Division 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 FWA in accordance with item 40, FWA 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 FWA 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, FWA 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 6Ongoing 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 4National Employment Standards

Part 1Preliminary

1  Meanings of employee and employer

In this Schedule, employee and employer have their ordinary meanings.


 

Part 2Continued 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 3Operation 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 5Modern awards (other than modern enterprise awards and State reference public sector modern awards)

Part 1Preliminary

1  Meanings of employee and employer

In this Schedule, employee means a national system employee and employer means a national system employer.


 

Part 2The 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)       FWA 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 FWA considers are completely replaced by the modern award:

                              (i)  award‑based transitional instruments;

                             (ii)  transitional APCSs; and

                     (b)  if FWA 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, FWA must (subject to subitem (3)) terminate any remaining modernisable instruments.

(3)       However, FWA 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)       FWA may establish a process for making decisions under this item to terminate or vary one or more modernisable instruments.

(5)       FWA may advise persons or bodies about that process in any way FWA considers appropriate.

(6)       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 (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 FWA 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, FWA 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 FWA to fix such references.

(2)       FWA 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, FWA 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 FWA is required to conduct under the FW Act.

(2)       In the review, FWA 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 FWA from reviewing 2 or more modern awards at the same time.

(3)       FWA may make a determination varying any of the modern awards in any way that FWA 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 FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.

(5)       FWA may advise persons or bodies about the review in any way FWA considers appropriate.

(6)       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 (5).

7  Review of transitional arrangements included in modern awards

(1)       If:

                     (a)  a modern award includes terms (review terms) under which FWA 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;

FWA 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 3Avoiding 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 FWA 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, FWA 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 FWA considers appropriate to remedy the situation.

Outworkers

(2)       If FWA 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, FWA 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 FWA considers appropriate to remedy the situation.

General provisions

(3)       FWA 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 FWA 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, FWA 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)       FWA 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)  FWA considers that the modernisation‑related reduction in take‑home pay is minor or insignificant; or

                     (b)  FWA is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.

(2)       FWA 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 6Modern enterprise awards

Part 1Preliminary

1  Meanings of employee and employer

In this Schedule, employee means a national system employee and employer means a national system employer.


 

Part 2The 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, FWA 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, FWA 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 FWA 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 FWA

(1)       A person covered by an enterprise instrument may apply to FWA for FWA 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 FWA to terminate the enterprise instrument is made under subitem (1), FWA 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), FWA 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 FWA 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 FWA making a modern enterprise award under this Division.

(2)       However, in applying the modern awards objective and the minimum wages objective, 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.

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 FWA makes a modern enterprise award that covers persons who operate in that industry, FWA 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 FWA makes a modern enterprise award to replace an enterprise preserved collective State agreement, the agreement terminates when the modern award comes into operation.

(2)       FWA 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 FWA 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, FWA 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, FWA must terminate any remaining modernisable instruments.

10  Notification of the cut‑off for the enterprise instrument modernisation process

(1)       FWA 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)       FWA 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 FWA) has effect as if subsection (2) of that section included a reference to FWA’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 FWA 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, FWA 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 FWA considers appropriate to remedy the situation.

(2)       FWA 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 FWA 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, FWA 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)       FWA must not make a take‑home pay order in relation to an employee or class of employees if:

                     (a)  FWA considers that the modernisation‑related reduction in take‑home pay is minor or insignificant; or

                     (b)  FWA is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.

(2)       FWA 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 3Amendments

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 7Additional 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 6AState reference public sector modern awards

Part 1Preliminary

1  Meanings of employer and employee

In this Schedule, employer and employee have their ordinary meanings.


 

Part 2The 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 FWA 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)       FWA must consider the application, and must make a State reference public sector modern award covering the proposed parties if FWA 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 FWA or the Commission to terminate the current 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)       FWA or the Commission must not terminate the current award unless FWA 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, FWA 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 FWA 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 FWA.

Note:       Schedule 18 provides for when the Commission ceases to exist.

6  Further obligation of FWA 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, FWA 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 FWA 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, FWA 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, FWA 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)       FWA 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 FWA 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)       FWA 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 FWA) has effect as if subsection (2) of that section included a reference to FWA’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 FWA 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, FWA 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 FWA considers appropriate to remedy the situation.

(2)       FWA 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 FWA 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, FWA 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)       FWA must not make a take‑home pay order in relation to an employee or class of employees if:

                     (a)  FWA considers that the modernisation‑related reduction in take‑home pay is minor or insignificant; or

                     (b)  FWA is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.

(2)       FWA 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 7Enterprise agreements and workplace determinations made under the FW Act

Part 1Preliminary

1  Meanings of employer and employee

In this Schedule, employee means a national system employee, and employer means a national system employer.


 

Part 2Transitional 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 3Other 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 4Transitional 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)  FWA is satisfied as referred to in subsection (1) of that section in relation to the agreement; and

                     (b)  FWA 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)  FWA is satisfied as referred to in subsection (3) of that section in relation to the agreement; and

                     (b)  FWA 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.

FWA 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, FWA 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 FWA 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 FWA 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.

FWA 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, FWA 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.

FWA 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, FWA 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 FWA 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 FWA 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 4ATransitional 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)  FWA 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)  FWA 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)  FWA 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)  FWA 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.

FWA 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, FWA 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 FWA 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)  FWA 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)  FWA 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.

FWA 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, FWA 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.

FWA 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, FWA 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 FWA 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 FWA was made under section 210 of that Act.


 

Part 5Transitional 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)  FWA 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, FWA 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 6Interaction 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 7Transitional 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)  FWA 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.


 

Schedule 8Workplace agreements and workplace determinations made under the WR Act

Part 1Preliminary

1  Meanings of employer and employee

In this Schedule, employee means a national system employee, and employer means a national system employer.


 

Part 2Transitional 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 3Transitional 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 9Minimum wages

Part 1Preliminary

1  Meanings of employee and employer

In this Schedule, employee means a national system employee and employer means a national system employer.


 

Part 2Special 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 3Continued 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, FWA 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 4Universal 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  FWA 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, FWA 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)       FWA 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 FWA 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 5Provisions 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  FWA 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, FWA 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)       FWA 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 FWA 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, FWA 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 10Equal remuneration

Part 1Preliminary

1  Meaning of employee

In this Schedule, employee means a national system employee.


 

Part 2Equal 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 3Equal 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 FWA 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 FWA 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)  an order of the Commission made under the WR Act.


 

Schedule 11Transfer of business

Part 1Preliminary

1  Meanings of employee and employer

In this Schedule, employee and employer have their ordinary meanings.


 

Part 2Transmissions of business occurring before WR Act repeal day

2  General rule—continued application of WR Act

(1)       This Part applies if:

                     (a)  at a time (the time of transmission), a person (the new employer) became the successor, transmittee or assignee of the whole, or a part, of a business of another person (the old employer); and

                     (b)  the time of transmission was before the WR Act repeal day.

(2)       The following provisions of Part 11 of the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day:

                     (a)  Divisions 1 and 2 (which deal with introductory matters);

                     (b)  Division 3 (which deals with the transmission of ITEAs) (other than subsection 583(2) and section 584);

                     (c)  Division 4 (which deals with the transmission of collective agreements) (other than subsections 585(2), (3) and (5) and subsections 588(1) and (2));

                     (d)  Division 5 (which deals with the transmission of awards) (other than subsections 595(2), (3), (5) and (6));

                     (e)  Division 6 (which deals with the transmission of APCSs) (other than subsection 598(2));

                      (f)  Division 6A (which deals with the transmission of preserved redundancy provisions) (other than subsection 598A(3));

                     (g)  Division 7 (which deals with entitlements under the Australian Fair Pay and Conditions Standard);

                     (h)  Division 8 (which deals with notice requirements and enforcement) (other than section 605).

(2A)     For the purpose of the continued application, by subitem (2), of Division 5 of Part 11 of the WR Act:

                     (a)  a reference in those provisions to an award is taken to include a reference to a State reference transitional award; and

                     (b)  despite item 6 of Schedule 2, paragraph 885(1)(e) of that Act does not continue to apply.

Note:       Paragraph 885(1)(e) would otherwise have disapplied Division 5 of Part 11 of the WR Act.

(3)       The following provisions of Schedule 9 to the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day:

                     (a)  Parts 1 and 2 (which deal with introductory matters);

                     (b)  Part 2A (which deals with the transmission of AWAs) (other than subclauses 6B(2) and (3) and clause 6C);

                     (c)  Part 3 (which deals with the transmission of pre‑reform AWAs) (other than subclause 7(2) and clause 9);

                     (d)  Part 4 (which deals with the transmission of pre‑reform certified agreements) (other than subclauses 10(4), (5), (6) and (8) and clause 12);

                     (e)  Part 5 (which deals with the transmission of State transitional instruments) (other than subclauses 19(2), (3) and (5) and clause 21);

                      (f)  Part 5A (which deals with the transmission of preserved redundancy provisions) (other than subclause 27A(3));

                     (g)  Part 6 (which deals with notice requirements and enforcement) (other than clause 31).

3  Period for which transmitted transitional instrument etc. continues to cover or apply to new employer

Transitional instrument covers new employer

(1)       If the new employer is covered by a transitional instrument in relation to a transferring employee because of a provision of Part 11 of the WR Act or Schedule 9 to that Act, the new employer remains covered by the transitional instrument, by force of this subitem, until whichever of the following first occurs:

                     (a)  the instrument is terminated;

                     (b)  the transmission period ends;

                     (c)  the instrument otherwise ceases to cover the new employer in relation to the transferring employee.

(2)       However, paragraph (1)(b) does not apply in relation to a pre‑reform certified agreement if:

                     (a)  the pre‑reform certified agreement is a Division 3 pre‑reform certified agreement; and

                     (b)  the old employer was not an employer within the meaning of subsection 6(1) of the WR Act immediately before the time of transmission; and

                     (c)  the new employer was an employer within the meaning of subsection 6(1) of the WR Act at the time of transmission; and

                     (d)  the transmission of business occurs as part of the process of the employer in relation to the business being transferred becoming an employer within the meaning of subsection 6(1) of the WR Act.

Transitional APCS covers new employer

(3)       If a transferring employee’s employment with the new employer is covered by a transitional APCS because of Division 6 of Part 11 of the WR Act, the transferring employee’s employment with the new employer remains covered by that APCS until whichever of the following first occurs:

                     (a)  the transitional APCS is terminated;

                     (b)  the transitional APCS otherwise ceases to cover the transferring employee.

Preserved redundancy provisions apply to new employer

(4)       If a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act, the redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following:

                     (a)  the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating;

                     (b)  the time when the transferring employee ceases to be employed by the new employer;

                     (c)  the time when an enterprise agreement, workplace determination or ITEA starts to apply to the employee.

4  Effect of industry‑specific redundancy scheme in modern award in relation to preserved redundancy provisions

If:

                     (a)  a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act; and

                     (b)  an industry‑specific redundancy scheme in a modern award applies to the transferring employee; and

                     (c)  the redundancy provision is detrimental to the transferring employee, in any respect, when compared to the scheme in the modern award;

then, despite subsection 598A(2) of the WR Act or subclause 27A(2) of Schedule 9 to that Act (as the case requires), the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the transferring employee.

5  Modification—applications to Commission in relation to transmission of certain transitional instruments

Certain provisions have effect subject to orders of the Commission

(1)       Subsection 585(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is a collective agreement) have effect subject to any order of the Commission under section 590 of the WR Act (as that section continues to apply because of subitem 2(2) of this Schedule).

(2)       Subsection 595(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is an award or a State reference transitional award) have effect subject to any order of the Commission (other than an order that would have the effect of extending the transmission period).

(3)       Subclauses 10(1), (2) and (3) of Schedule 9 to the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) and subitems 3(1) and (2) of this Schedule (to the extent that they apply in relation to a transitional instrument that is a pre‑reform certified agreement) have effect subject to any order of the Commission under clause 14 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule).

(4)       Subclause 19(1) of Schedule 9 to the WR Act (as it continues to apply because of subitem 2(3) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is a State transitional instrument) have effect subject to any order of the Commission under clause 23 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule).

Time within which application to Commission may be made

(5)       The following provisions of the WR Act (as they continue to apply because of item 2 of this Schedule) are modified by omitting “before, at or after the transfer time” and substituting “not later than 90 days after the WR Act repeal day”:

                     (a)  section 591 (which deals with collective agreements);

                     (b)  clause 15 of Schedule 9 (which deals with pre‑reform certified agreements);

                     (c)  clause 24 of Schedule 9 (which deals with State transitional instruments).

(6)       An application for an order under subitem (2) may be made not later than 90 days after the WR Act repeal day.

6  Modification—civil remedy provisions

Modifications of Part 11 of the WR Act

(1)       The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) are modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:

                     (a)  subsection 599(4);

                     (b)  subsections 602(2) and (4);

                     (c)  subsection 603A(2).

(2)       Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) is modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:

                     (a)  subsections 603(1), (2) and (3);

                     (b)  subsection 603B(1).

Modifications of Schedule 9 to the WR Act

(3)       The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) are modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:

                     (a)  subclauses 28(2) and (3A) of Schedule 9;

                     (b)  subclause 29A(2) of Schedule 9.

(4)       Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) is modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:

                     (a)  subclauses 29(1), (2) and (3) of Schedule 9;

                     (b)  subclause 29B(1) of Schedule 9.


 

Part 3Transfers of business occurring on or after WR Act repeal day

Division 1—Transfers of business: transitional instruments

6A  Application of this Division

This Division applies in relation to a transfer of business and transferable instruments that are transitional instruments.

Note:       Transfers of business affecting Division 2B State instruments are dealt with in Division 4 of this Part.

7  Application of FW Act in relation to transferring employees covered by transitional instrument

(1)       This item applies if:

                     (a)  there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and

                     (b)  the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the WR Act repeal day.

(2)       This item applies regardless of whether:

                     (a)  the termination of a transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or

                     (b)  the employment of a transferring employee by the new employer occurs before, on or after the WR Act repeal day.

(3)       Part 2‑8 of the FW Act (as modified by item 8 of this Schedule) applies in relation to the transfer of business.

8  Modification—application of FW Act in relation to transitional instruments

(1)       Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:

                   ; (d)  a transitional instrument (other than a workplace agreement or a workplace determination that has not yet come into operation and other than a State reference common rule).

(2)       Except as provided in subitems (3) to (5), Part 2‑8 of the FW Act applies in relation to the transfer of business 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, other than a State reference common rule.

(3)       Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) of the FW Act.

(4)       Paragraph (2)(b) does not apply in relation to the reference to a modern award in subsection 312(2) of the FW Act.

(5)       The following provisions of Part 2‑8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument:

                     (a)  subsection 315(3);

                     (b)  paragraphs 318(1)(b) and (2)(c);

                     (c)  paragraphs 319(1)(c) and (2)(c).

(6)       Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual agreement‑based transitional instrument)” were inserted after the words “a transferable instrument”.

Division 2—Transfer of preserved redundancy provisions during bridging period

9  Transfer of preserved redundancy provisions

(1)       This item applies if:

                     (a)  there is a transfer of business from an employer (the old employer) to another employer (the new employer) as described in subsection 311(1) of the FW Act; and

                     (b)  the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs during the bridging period; and

                     (c)  immediately before the termination of an employee’s employment with the old employer, a redundancy provision applied to the old employer and the employee because of a preservation item or a previous application of this item; and

                     (d)  the employee is a transferring employee in relation to the transfer of business.

(2)       This item applies regardless of whether:

                     (a)  the termination of the transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or

                     (b)  the employment of the transferring employee by the new employer occurs before, on or after the WR Act repeal day.

(3)       The redundancy provision applies to the new employer and the transferring employee after the time the transferring employee becomes employed by the new employer.

(4)       Subject to subitem (5), the redundancy provision prevails over any other redundancy provision included in any other instrument that would otherwise have effect, to the extent of any inconsistency (even if the provisions in that other instrument might be more beneficial to the transferring employee).

(5)       However, if:

                     (a)  an industry‑specific redundancy scheme in a modern award applies to the transferring employee; and

                     (b)  the redundancy provision is detrimental to the transferring 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 transferring employee.

(6)       The redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following:

                     (a)  the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating;

                     (b)  the time when the transferring employee ceases to be employed by the new employer;

                     (c)  the time when an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee.

(7)       In this item:

instrument has the meaning given by subitem 38(7) of Schedule 3.

preservation item means any of the following:

                     (a)  item 38 of Schedule 3;

                     (b)  item 40 of Schedule 3;

                     (c)  a provision of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act (as those provisions continue to apply because of item 2 of this Schedule).

redundancy provision has the meaning given by subitem 38(7) of Schedule 3.

10  Notification of transfer of preserved redundancy provisions

(1)       This item applies if one or more redundancy provisions apply to the new employer and a transferring employee under item 9 of this Schedule.

(2)       Within 28 days after the time the transferring employee becomes employed by the new employer, the new employer must take reasonable steps to give the transferring employee a written notice that complies with subitem (3).

Note:       This is a civil remedy provision: see subitem 11(3) of Schedule 16.

(3)       The notice must:

                     (a)  identify the redundancy provision or the redundancy provisions; and

                     (b)  state that the provision or provisions apply to the new employer and the transferring employee; and

                     (c)  specify the date on which the period of 24 months, being the period that applies in relation to the provision or provisions under paragraph 9(6)(a) of this Schedule, ends; and

                     (d)  state that the provision or provisions will continue to apply to the new employer and the transferring employee until that date, or an earlier date in accordance with subitem 9(6) of this Schedule.

(4)       Subitem (2) does not apply if an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee within 14 days after the time the transferring employee becomes employed by the new employer.

11  Lodging copy of notice about preserved redundancy provisions with FWA

(1)       If the new employer gives a notice under subitem 10(2) of this Schedule to a transferring employee, the new employer must lodge a copy of the notice with FWA within the period specified in subitem (2). The copy must be lodged in accordance with subitem (3).

Note:       This is a civil remedy provision: see subitem 11(4) of Schedule 16.

(2)       The notice must be lodged within 14 days after the day specified in paragraph (a) or (b) (as the case requires):

                     (a)  if the new employer gives a notice to a transferring employee in respect of a redundancy provision that was included in an ITEA, a pre‑reform AWA or a preserved individual State agreement—the day on which that notice is given; or

                     (b)  if the new employer gives one or more notices to one or more transferring employees in respect of a redundancy provision that was included in a collective agreement, a pre‑reform certified agreement or a preserved collective State agreement—the earliest day on which a notice was given.

(3)       A notice is lodged with FWA in accordance with this item only if it is actually received by FWA.

Note:       This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) does not apply to lodgment of a notice.

12  FWA must issue receipt for lodgment

(1)       If a notice is lodged under item 11 of this Schedule, FWA must issue a receipt for the lodgment.

(2)       The receipt must state that the notice was lodged under item 11 of this Schedule on a particular day.

(3)       FWA must give a copy of the receipt to the person who lodged the notice under item 11 of this Schedule.

Division 3—Transfer of entitlements under the AFPCS during bridging period

13  Transfer of entitlements under the AFPCS

(1)       This item applies if:

                     (a)  there is a transfer of business from an employer (the old employer) to another employer (the new employer) as described in subsection 311(1) of the FW Act; and

                     (b)  the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs during the bridging period.

(2)       This item applies regardless of whether:

                     (a)  the termination of a transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or

                     (b)  the employment of a transferring employee by the new employer occurs before, on or after the WR Act repeal day.

(3)       Despite the repeal of Division 7 of Part 11 of the WR Act (which deals with an employee’s entitlements under the Australian Fair Pay and Conditions Standard), that Division applies in relation to the transfer of business as if:

                     (a)  a reference in the following provisions to at the time of transmission were a reference to at the time the transferring employee becomes employed by the new employer:

                              (i)  subsection 599(1);

                             (ii)  subsection 600(2);

                            (iii)  subsection 601(2); and

                     (b)  a reference in the following provisions to before the time of transmission were a reference to before the termination of the transferring employee’s employment with the old employer:

                              (i)  subparagraph 599(1)(a)(ii);

                             (ii)  paragraphs 599(3)(a) and (b) and (4)(b);

                            (iii)  subparagraphs 600(2)(a)(i) and (iii);

                            (iv)  subparagraphs 601(2)(a)(i) and (iii); and

                     (c)  a reference in subparagraph 599(4)(a)(ii) to at the time of transmission were a reference to at the time of termination of the transferring employee’s employment with the old employer; and

                     (d)  a reference in subsection 599(4) to after the time of transmission were a reference to after the time of termination of the transferring employee’s employment with the old employer; and

                     (e)  a reference in subsections 600(1) and 601(1) to before the time of transmission were a reference to before the time the transferring employee becomes employed by the new employer; and

                      (f)  the reference to section 605 in the note to subsection 599(4) were a reference to subitem 11(5) of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Division 4—Transfers of business: Division 2B State instruments

14  Application of this Division

This Division applies in relation to a transfer of business and transferable instruments that are Division 2B State instruments.

Note:       Transfers of business affecting transitional instruments are dealt with in Division 1 of this Part.

15  Application of FW Act in relation to transferring employees covered by Division 2B State instrument

(1)       This item applies if:

                     (a)  there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and

                     (b)  the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the Division 2B referral commencement.

(2)       Part 2‑8 of the FW Act (as modified by item 16 of this Schedule) applies in relation to the transfer of business.

16  Modification—application of FW Act in relation to Division 2B State instruments

(1)       Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:

                   ; (d)  a Division 2B State instrument.

(2)       Except as provided in subitems (3) to (5), Part 2‑8 of the FW Act applies in relation to the transfer of business 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.

(3)       Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) or 319(1)(c) of the FW Act.

(4)       Paragraph (2)(b) does not apply in relation to the reference to a modern award in subsection 312(2) or paragraph 319(1)(c) of the FW Act.

(5)       The following provisions of Part 2‑8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement:

                     (a)  subsection 315(3);

                     (b)  paragraphs 318(1)(b) and (2)(c);

                     (c)  paragraph 319(2)(c).

(6)       Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual Division 2B State employment agreement)” were inserted after the words “a transferable instrument”.

(7)       If a transferable instrument that is a Division 2B State award starts to cover the new employer in relation to the transfer of business as mentioned in paragraph 313(1)(a) of the FW Act, FWA cannot make an order under paragraph 319(1)(c) of the FW Act.


 

Schedule 12General protections

  

1  Meanings of employee and employer

In this Schedule, employee and employer have their ordinary meanings.

2  Application in relation to Australian Fair Pay and Conditions Standard

For the purposes of the operation of Part 3‑1 of the FW Act in relation to the bridging period, a reference in that Part to the National Employment Standards is taken to include a reference to the Australian Fair Pay and Conditions Standard.

Note:       References in Part 3‑1 of the FW Act to the National Employment Standards are found in paragraph 344(a) and subparagraph 354(1)(a)(i) of that Act.

3  Application in relation to award‑based transitional instruments and agreement‑based transitional instrument

(1)       Part 3‑1 of the FW Act has effect as if:

                     (a)  a reference in that Part to an enterprise agreement included a reference to an agreement‑based transitional instrument; and

                     (b)  a reference in that Part to a modern award included a reference to an award‑based transitional instrument.

Note:       References in Part 3‑1 of the FW Act:

(a)    to an enterprise agreement are found in paragraphs 341(2)(e) and (g), paragraph 344(b), subsection 353(3) and subparagraphs 354(1)(a)(iii) and (b)(ii) of that Act; and

(b)    to a modern award are found in paragraphs 341(2)(g) and 344(b) of Part 3‑1 of that Act.

(2)       Without limiting subitem (1), paragraph 344(b) of the FW Act has effect in relation to the bridging period as if a term referred to in that paragraph were a term of an agreement‑based transitional instrument or an award‑based transitional instrument that dealt with:

                     (a)  averaging of hours of work; or

                     (b)  cashing out paid annual leave; or

                     (c)  taking paid annual leave; or

                     (d)  cashing out paid personal/carer’s leave; or

                     (e)  the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave; or

                      (f)  the substitution of a day or part‑day for a day or part‑day that would otherwise be a public holiday; or

                     (g)  the period of notice an employee must give in order to terminate his or her employment; or

                     (h)  paid loadings for school‑based apprentices and trainees in lieu of paid annual leave, paid annual leave or paid absence on public holidays.

Note:       This means, for example, that an employer is prohibited from exerting undue influence or undue pressure on an employee to have the employee agree to a cashing out of annual leave arrangement under a term of a pre‑reform certified agreement.

4  Application in relation to Division 2B State instruments

Part 3‑1 of the FW Act has effect as if:

                     (a)  a reference in that Part to an enterprise agreement included a reference to a Division 2B State employment agreement; and

                     (b)  a reference in that Part to a modern award included a reference to a Division 2B State award.

Note:       References in Part 3‑1 of the FW Act:

(a)    to an enterprise agreement are found in paragraphs 341(2)(e) and (g), paragraph 344(b), subsection 353(3) and subparagraphs 354(1)(a)(iii) and (b)(ii) of that Act; and

(b)    to a modern award are found in paragraphs 341(2)(g) and 344(b) of that Act.


 

Schedule 12A—Unfair dismissal

  

1  Meanings of employee and employer

In this Schedule, employee and employer have their ordinary meanings.

2  Meaning of small business employer, for unfair dismissal purposes, prior to 1 January 2011

(1)       For the purposes of the application of Part 3‑2 of the FW Act in relation to the dismissal of a person before 1 January 2011, a national system employer is a small business employer if, and only if, the employer’s number of full‑time equivalent employees, worked out under this item, is less than 15 at the earlier of the following times (the notice or dismissal time):

                     (a)  the time when the person is given notice of the dismissal;

                     (b)  immediately before the dismissal.

(2)       The employer’s number of full‑time equivalent employees at the notice or dismissal time is worked out as follows:

Method statement

Step 1.   For each person who was an employee of the employer at any time during the period of 4 weeks immediately preceding the day on which the notice or dismissal time occurs, work out the number of ordinary hours (including parts of hours) of the person as the employer’s employee during the period.

                   Note:             Subitem (3) sets out what are a person’s ordinary hours.

Step 2.   If, during the period, the person took leave to which subitem (4) applies, work out the number of hours of leave to which that subitem applies that the person took during the period.

Step 3.   Add together all of the numbers of ordinary hours worked out under step 1, and subtract all of the number of hours of leave worked out under step 2.

Step 4.   Divide by 152 the number worked out under step 3. The result is the employer’s number of full‑time equivalent employees at the notice or dismissal time.

                   Note:             The number 152 is based on the maximum number of hours that a full‑time employee would work in 4 weeks (being 38 hours per week) excluding reasonable additional hours.

(3)       For the purposes of step 1 of the method statement in subitem (2), the ordinary hours of work of a person as the employer’s employee are:

                     (a)  to the extent that a modern award, enterprise agreement or workplace determination applied to the person, and the person was not a casual employee—the ordinary hours of work specified or provided for in that award, agreement or determination; or

                     (b)  to the extent that a transitional instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 33 of Schedule 3; or

                   (ba)  to the extent that a Division 2B State instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 48 of Schedule 3A; or

                     (c)  to the extent that:

                              (i)  a State industrial instrument applied to the person as a non‑national system employee; and

                             (ii)  the instrument specified, or provided for the determination of, the person’s ordinary hours of work; and

                            (iii)  the person was not a casual employee;

                            the ordinary hours of work as specified in, or determined in accordance with, that instrument; or

                     (d)  to the extent that no such award, agreement, determination or instrument applied to the person, and the person was not a casual employee:

                              (i)  if the person was a national system employee—the person’s ordinary hours of work under section 20 of the FW Act; or

                             (ii)  if the person was a non‑national system employee—what would have been the person’s ordinary hours of work under that section if the person had been a national system employee; or

                     (e)  to the extent that the person was a casual employee—the lesser of:

                              (i)  152 hours; and

                             (ii)  the number of hours actually worked by the person.

(4)       This subitem applies to leave, whether paid or unpaid, that the person took if:

                     (a)  the person was entitled to the leave in connection with:

                              (i)  the birth of a child of the person or the person’s spouse or de facto partner; or

                             (ii)  the placement of a child with the person for adoption; and

                     (b)  the duration of the period of leave has been at least 4 weeks;

            whether or not the person took any other kind of paid leave while taking that leave.

(5)       For the purposes of this item, a national system employer and the employer’s associated entities are taken to be one entity.

(6)       This item has effect despite section 23 of the FW Act.


 

Schedule 13Bargaining and industrial action

Part 1Preliminary

1  Meanings of employee and employer

In this Schedule, employee means a national system employee and employer means a national system employer.


 

Part 2Bargaining

2  Employee covered by individual agreement‑based transitional instrument or individual Division 2B State employment agreement is taken not to be an employee who will be, or who is, covered by enterprise agreement in certain circumstances

(1)       This item applies to an employee at a particular time if, at that time, an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement covers the employee.

(2)       The employee is only taken, for the purposes of the FW Act, to be at that time an employee who is or will be covered by an enterprise agreement or a proposed enterprise agreement, if one of the following applies:

                     (a)  the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has passed;

                     (b)  a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has been made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.

Note:       The main effect of this subitem is that an employee who is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement will not be able to do any of the following until the nominal expiry date of the instrument passes or a conditional termination of the instrument is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A:

(a)    be represented in bargaining for an enterprise agreement;

(b)    vote on the agreement;

(c)    be in a group of employees covered by a protected action ballot order in relation to the agreement;

(d)    have the agreement apply to the employee.

(3)       Despite subitem (2), an employer must give a notice of employee representational rights to an employee under section 173 of the FW Act, if the employer would have been required to give such a notice but for subitem (2). However, the notice must explain that a person can only become the employee’s bargaining representative for the agreement when one of the following occurs:

                     (a)  the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement passes;

                     (b)  a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.

3  Application for bargaining order where certain collective agreement‑based transitional instruments or collective Division 2B State employment agreements have not passed nominal expiry date

Despite subsection 229(3) of the FW Act, if one or more of the following instruments apply to an employee, or employees, who will be covered by a proposed enterprise agreement:

                     (a)  any of the following transitional instruments:

                              (i)  a collective agreement;

                             (ii)  a workplace determination;

                            (iii)  a preserved collective State agreement;

                            (iv)  a pre‑reform certified agreement;

                             (v)  a section 170MX award;

                     (b)  a collective Division 2B State employment agreement;

an application for a bargaining order may only be made under subsection 229(1) of that Act:

                      (f)  not more than 90 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be); or

                     (g)  after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) of that Act that employees approve the agreement, but before the agreement is so approved.


 

Part 3Industrial action

4  Industrial action must not be taken before the nominal expiry date of agreement‑based transitional instrument or Division 2B State employment agreement

(1)       The following provisions of the FW Act:

                     (a)  section 417 (which prohibits industrial action before the nominal expiry date of enterprise agreements etc.);

                     (b)  item 14 of the table in subsection 539(2) of the FW Act (which deals with civil remedies);

apply, on and after the WR Act repeal day, in relation to an agreement‑based transitional instrument or a Division 2B State employment agreement, in a corresponding way to the way that those provisions apply in relation to an enterprise agreement.

(2)       Subitem (1) does not apply to an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement if the employee and employer covered by the instrument or agreement have made a conditional termination in relation to the instrument or agreement under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.

Note:       The effect of this provision is that an employee who is covered by an agreement‑based transitional instrument or a Division 2B State employment agreement may not organise or engage in industrial action until after the nominal expiry date of the instrument or agreement has passed. However, this does not apply to an individual agreement‑based transitional instrument, or an individual Division 2B State employment agreement, in relation to which a conditional termination has been made.

(3)       For the purposes of subitem (1), the reference in subsection 417(1) of the FW Act to the day on which an enterprise agreement was approved by FWA is taken to be a reference to the day on which the agreement‑based transitional instrument or the Division 2B State employment agreement became such an instrument or agreement.

5  Applications on foot under sections 496 and 497 of the WR Act

(1)       Despite the repeal of sections 496 and 497 of the WR Act, if:

                     (a)  before the WR Act repeal day, an application was made to the Commission or the Court under either of those sections; and

                     (b)  the application had not been finally dealt with as at the WR Act repeal day;

the Commission or the Court, as the case requires, must consider the application on or after that day as if the WR Act had not been repealed.

(2)       To avoid doubt, if the Commission or the Court does not make an order, or grant an injunction, under section 496 or 497 of the WR Act, as those sections continue to apply because of subitem (1), the decision not to make the order or grant the injunction does not affect whether or not the industrial action concerned is protected industrial action under the FW Act.

6  Continuation of section 496 and 497 orders and injunctions

Despite the repeal of sections 496 and 497 of the WR Act:

                     (a)  an order made, or an injunction granted, under either of those provisions that was in operation immediately before the WR Act repeal day continues to have effect on and after that day; and

                     (b)  a person who, immediately before the WR Act repeal day, was required to comply with the order or injunction must not breach the order or injunction on or after the WR repeal day.

Note:       For the continuation of orders or injunctions to prevent or stop industrial action that were made by State industrial bodies or courts of Division 2B referring States, see item 61 of Schedule 3A.

7  Civil remedy provisions of FW Act apply to section 496 orders

Subsections 421(1), (3) and (4) and item 15 of the table in subsection 539(2) of the FW Act have effect, on and after the WR Act repeal day, as if:

                     (a)  references in those provisions to an order under section 418 included references to an order under subsection 496(1) of the WR Act as referred to in item 5 or 6 of this Schedule; and

                     (b)  references in those provisions to an order under section 419 included references to an order under subsection 496(2) of the WR Act as referred to in item 5 or 6 of this Schedule; and

                     (c)  references in those provisions to an order under section 420 included references to an order under subsection 496(6) of the WR Act as referred to in item 5 or 6 of this Schedule.

8  Effect of orders terminating bargaining periods upon industrial action related workplace determinations

(1)       This item applies if one of the following is in force in relation to a proposed collective agreement under the WR Act immediately before the WR Act repeal day:

                     (a)  an order terminating a bargaining period under subsection 430(1) of the WR Act that was made on the ground, or on grounds including the ground, that the Commission was satisfied as mentioned in subsection 430(3) of that Act;

                     (b)  a declaration by the Minister under section 498 of the WR Act (which deals with industrial action endangering life, etc.).

(2)       Divisions 3 and 5 of Part 2‑5 of the FW Act have effect, on and after the WR Act repeal day, in relation to the making of an industrial action related workplace determination, as if:

                     (a)  references to a termination of industrial action instrument included references to the order or declaration referred to in subitem (1); and

                     (b)  references to a proposed enterprise agreement included references to the proposed collective agreement; and

                     (c)  references to the bargaining representatives for a proposed enterprise agreement included references to the persons who were, immediately before the WR Act repeal day, negotiating parties for the proposed collective agreement; and

                     (d)  references to an employer or employee that would have been covered by a proposed enterprise agreement included references to an employer or employee, as the case requires, that would have been bound by the proposed collective agreement; and

                     (e)  the reference in paragraph 275(g) to bargaining representatives complying with the good faith bargaining requirements included a reference to the negotiating parties genuinely trying to reach agreement in relation to the proposed collective agreement.

Note:       The effect of this provision is that FWA may make an industrial action related workplace determination under the FW Act based on conduct, orders and declarations in relation to negotiations for a proposed collective agreement under the WR Act.

9  Commission must not deal further with applications, appeals or reviews relating to bargaining periods

If:

                     (a)  before the WR Act repeal day, an application was made under Division 2 of Part 9 of the WR Act for the suspension or termination of a bargaining period; and

                     (b)  the application had not been finally dealt with as at the WR Act repeal day;

the Commission must not, on or after that day, deal with or continue to deal with the application, or any appeal or review relating to the application.

10  Effect of suspension or termination orders on or after the WR Act repeal day

An order under Division 2 of Part 9 of the WR Act suspending or terminating a bargaining period is of no effect on or after the WR Act repeal day, other than as referred to in item 8.

11  Notices of industrial action of no effect on or after WR Act repeal day

A notice of intention to take industrial action given under section 441 of the WR Act before the WR Act repeal day is of no effect on or after that day.


 

Part 4Protected action ballots

12  Commission must not deal further with application, appeal or review relating to ballot order

The Commission must not, on or after the WR Act repeal day, deal with or continue to deal with any application, appeal or review relating to a ballot order.

13  Ballot orders and authorisations have no effect on or after WR Act repeal day

(1)       A ballot order under subsection 451(1) of the WR Act, or a ballot or authorisation under such an order, has no effect on or after the WR Act repeal day.

Note:       This means that no protected action ballots can be conducted or continued on or after the WR Act repeal day, and any nomination in a ballot order of a person as an authorised ballot agent, or as an authorised independent adviser, will also have no effect.

(2)       This item has effect subject to items 14A and 15.

14  Continuation of sections 476, 477 and 479 of the WR Act for protected action ballots completed before WR Act repeal day

            The following provisions of Part 9 of the WR Act continue to apply in relation to a ballot completed before the WR Act repeal day as if that Part had not been repealed:

                     (a)  section 476;

                     (b)  subsections 477(1) to (6);

                     (c)  section 479.

Note:       A person must not contravene subsection 477(1) or (4) of the WR Act as those sections continue to apply because of this item (see item 14 of Schedule 16).

14A  FWA may order that industrial action is taken to be authorised by a protected action ballot

(1)       A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.

(2)       The application must be made within 28 days after the WR Act repeal day.

(3)       FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:

                     (a)  on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and

                     (b)  all such industrial action organised or engaged in by the person was:

                              (i)  authorised by a protected action ballot under section 478 of the WR Act; and

                             (ii)  protected action within the meaning of the WR Act; and

                     (c)  the person did not first organise or engage in such industrial action on or after the WR Act repeal day; and

                     (d)  no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and

                     (e)  the proposed enterprise agreement will cover those employees; and

                      (f)  the person is genuinely trying to reach agreement in relation to the proposed enterprise agreement; and

                     (g)  it is reasonable in all the circumstances to make the order.

(4)       Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:

                     (a)  will be covered by the proposed enterprise agreement; and

                     (b)  were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.

(5)       For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.

15  Continuing liability for cost of protected action ballot

Sections 482 and 483 of the WR Act continue to apply on and after the WR Act repeal day in relation to a ballot ordered under Division 4 of Part 9 of the WR Act.

16  Record‑keeping requirements relating to protected action ballot conducted under WR Act

An authorised ballot agent in relation to a protected action ballot conducted before the WR Act repeal day must keep the following for a period of one year after the day on which the ballot closed:

                     (a)  the roll of voters;

                     (b)  all the ballot papers, envelopes and other documents and records relevant to the ballot.

17  Restriction on when protected action ballot orders may be made—certain agreement‑based transitional instruments and collective Division 2B State employment agreements that cover employees who will be covered by proposed enterprise agreement

(1)       This item applies if one or more of the following instruments cover the employees who will be covered by a proposed enterprise agreement:

                     (a)  any of the following transitional instruments:

                              (i)  a collective agreement;

                             (ii)  a workplace determination;

                            (iii)  a preserved collective State agreement;

                            (iv)  a pre‑reform certified agreement;

                             (v)  a section 170MX award;

                     (b)  a collective Division 2B State employment agreement.

(2)       An application for a protected action ballot order must not be made under subsection 437(1) of the FW Act earlier than 30 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be).

(3)       To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.


 

Part 5Effect of conduct engaged in while bargaining for WR Act collective agreement or collective State employment agreement

18  FWA may take into account conduct engaged in by bargaining representatives while bargaining for collective agreement

(1)       This item applies if:

                     (a)  before the WR Act repeal day, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective agreement; and

                     (b)  immediately before that day, the collective agreement had not been made; and

                     (c)  the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective agreement, had it been made; and

                     (d)  the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective agreement, had it come into operation.

(1A)     This item applies if:

                     (a)  before the Division 2B referral commencement, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective State employment agreement; and

                     (b)  immediately before that day, the collective State employment agreement had not been made, or had been made but had not been lodged (however described) under a State industrial law of a Division 2B referring State; and

                     (c)  the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective State employment agreement, had it come into operation; and

                     (d)  the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective State employment agreement, had it come into operation.

(2)       If this item applies because of subitem (1) or (1A), FWA may take into account the conduct referred to in that subitem:

                     (a)  in deciding whether it is reasonable in all the circumstances to make a bargaining order or a scope order in relation to the proposed enterprise agreement; and

                     (b)  in deciding which terms to include in a workplace determination that relates to the proposed enterprise agreement; and

                     (c)  in deciding under Part 3‑3 of the FW Act (which deals with industrial action) whether a bargaining representative is genuinely trying to reach an agreement in relation to the proposed enterprise agreement; and

                     (d)  in deciding under subsection 423(2) or (3) of that Act whether protected industrial action that relates to the proposed enterprise agreement is causing, or threatening to cause, significant economic harm to a person.


 

Part 6Payments relating to periods of industrial action

19  Payments relating to pre‑commencement periods of industrial action etc.

(1)       If industrial action (whether or not protected action) is engaged in before the commencement of Part 3‑3 of the FW Act then:

                     (a)  Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action; and

                     (b)  Part 3‑1 and Division 9 of Part 3‑3 of the FW Act do not apply in relation to the industrial action.

(2)       If:

                     (a)  industrial action (whether or not protected action) is engaged in during a shift or other period of work that is taken to be a day because of subsection 507(3) of the WR Act; and

                     (b)  Part 3‑3 of the FW Act commences during that shift or other period;

then:

                     (c)  Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action until the end of that shift or other period; and

                     (d)  Part 3‑1 and Division 9 of Part 3‑3 of the FW Act do not apply in relation to the industrial action engaged in during that shift or period.

20  Application of Division 9 of Part 3‑3 of the FW Act

Division 9 of Part 3‑3 of the FW Act applies as if:

                     (a)  the reference in paragraph 470(4)(c), subsection 471(2) and paragraph 474(2)(c) of that Act to a modern award included a reference to an award‑based transitional instrument and a Division 2B State award; and

                     (b)  the reference in those provisions to an enterprise agreement included a reference to an agreement‑based transitional instrument and a Division 2B State agreement.


 

Schedule 14Right of entry

  

1  Entry permits

A permit that is in force immediately before the WR Act repeal day under Part 15 of the WR Act, or that comes into force on or after that day under that Part, has effect:

                     (a)  as if it were an entry permit in force under the FW Act; and

                     (b)  subject to terms and conditions (including expiry date) like those to which it was subject under the WR Act.

2  Entry notices and exemption certificates

(1)       An entry notice properly given:

                     (a)  before the WR Act repeal day; and

                     (b)  for an entry that has not occurred before that day;

has effect after the repeal as if it were properly given under the FW Act.

(2)       An exemption certificate properly issued by a Registrar:

                     (a)  before the WR Act repeal; and

                     (b)  for an entry that has not occurred before the repeal;

has effect after the repeal as if it were properly issued by FWA.

3  Contravention of Acts etc.

The reference in subsections 481(1) and 483A(1) of the FW Act to a suspected contravention of this Act or a term of a fair work instrument is taken to include a reference to a suspected contravention of any of the following:

                     (a)  the WR Act, as in force from time to time;

                     (b)  a WR Act instrument;

                     (c)  a transitional instrument;

                     (d)  a Division 2B State instrument.

4  Notice to produce documents

A notice given under subsection 748(5) of the WR Act to produce, or allow access to, records on a day, or days, on or after the WR Act repeal day has effect, on and after the WR Act repeal day, as if it were given under subsection 483(1) of the FW Act.

6  Suspending or revoking entry permits

The FW Act applies as if:

                     (a)  the reference in paragraph 510(1)(a) of that Act to the permit holder being found, in proceedings under this Act, to have contravened subsection 503(1) included a reference to the permit holder being found, in proceedings under the WR Act, as in force from time to time, to have contravened section 768 of the WR Act; and

                     (b)  the reference in paragraph 510(1)(d) of the FW Act to “this Act” (being the FW Act) included a reference to the WR Act as in force from time to time and the reference in that paragraph to “this Part” (being Part 3‑4 of the FW Act) included a reference to Part 15 of the WR Act; and

                     (c)  the reference in paragraph 510(4)(a) of the FW Act to FWA not having previously taken action under subsection (1) against the permit holder included a reference to the Registrar not having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time; and

                     (d)  the references in paragraphs 510(4)(b) and (c) of the FW Act to FWA having taken action under subsection (1) against the permit holder included a reference to the Registrar having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time.

7  Continued application of WR Act

(1)       An instrument that, because of this Schedule, has effect under the FW Act continues, in addition to that effect, to have effect under the WR Act for the purposes of item 11 of Schedule 2.

(2)       Any suspension or revocation of, or imposition of conditions on, an entry permit under the WR Act (as it continues to apply because of item 11 of Schedule 2) is also taken to have been done under the FW Act.

(3)       Despite item 11 of Schedule 2, disputes about the operation of Part 15 of the WR Act that could, because of that item, have been dealt with under section 772 of that Act, may be dealt with only by FWA under section 505 of the FW Act.

(4)       For the purposes of subitem (3), section 505 of the FW Act applies:

                     (a)  as if the reference in subsection (1) of that section to “this Part” (being Part 3‑4 of the FW Act) were a reference to Part 15 of the WR Act; and

                     (b)  in a similar way to the way in which it applies for the purposes of the FW Act.


 

Schedule 15Stand down

  

1  Meanings of employee and employer

In this Schedule, employee means a national system employee and employer means a national system employer.

2  Application of FW Act—stand down under transitional instruments

Subsection 524(2) of the FW Act (which deals with circumstances allowing stand down) applies in relation to a transitional instrument as if a reference to an enterprise agreement included a reference to a transitional instrument.

3  Transitional instruments providing for authorisation by third party

Despite item 4 of Schedule 3, subsection 691A(5) of the WR Act does not continue to apply in relation to WR Act instruments that become transitional instruments.

Note:       This means that a provision of a transitional instrument that is a provision of the kind described in subparagraph 691A(1)(c)(ii) of the WR Act (being a provision requiring an employer to apply to a third party for authorisation to stand down employees in certain circumstances) has effect on and after the WR Act repeal day.

4  Application of FW Act—stand down under Division 2B State instruments

Subsection 524(2) of the FW Act (which deals with circumstances allowing stand down) applies in relation to a Division 2B State instrument as if a reference to an enterprise agreement included a reference to a Division 2B State instrument.


 

Schedule 16Compliance

  

1  Meanings of employee and employer

In this Schedule, employee and employer have their ordinary meanings.

2  Compliance with transitional instruments

Award‑based transitional instruments

(1)       A person must not contravene a term of an award‑based transitional instrument that applies to the person.

Note 1:    This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

Note 2:    An injunction may not be granted in relation to a contravention of an award‑based transitional instrument (see item 17).

Agreement‑based transitional instruments

(2)       A person must not contravene a term of an agreement‑based transitional instrument that applies to the person.

Note 1:    This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

Note 2:    An injunction may not be granted in relation to a contravention of an agreement‑based transitional instrument (see item 17).

3  Compliance with obligations relating to conditional terminations of individual agreement‑based transitional instruments

(1)       An employer must not contravene subitem 18(6) of Schedule 3.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(2)       A bargaining representative who applies to FWA for approval of an enterprise agreement must not contravene subitem 18(7) of Schedule 3.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

4  Compliance with obligation to notify employees about preserved redundancy provisions

An employer must not contravene subitem 39(3) of Schedule 3.

Note:       This item is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

4A  Compliance with Division 2B State instruments

Division 2B State awards

(1)       A person must not contravene a term of a Division 2B State award that applies to the person.

Note 1:    This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

Note 2:    An injunction may not be granted in relation to a contravention of a Division 2B State award (see item 17).

Division 2B State employment agreements

(2)       A person must not contravene a term of a Division 2B State employment agreement that applies to the person.

Note 1:    This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

Note 2:    An injunction may not be granted in relation to a contravention of a Division 2B State employment agreement instrument (see item 17).

4B  Compliance with obligations relating to conditional terminations of individual Division 2B State employment agreements

(1)       An employer must not contravene subitem 25(6) of Schedule 3A.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(2)       A bargaining representative who applies to FWA for approval of an enterprise agreement must not contravene subitem 25(7) of Schedule 3A.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

5  Compliance with transitional APCSs, the transitional FMW and transitional special FMWs

A person must not contravene section 182 or 185 of the WR Act as that section continues to apply under item 5 of Schedule 9.

Note 1:    This item is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

Note 2:    An injunction may not be granted in relation to a contravention of section 182 or 185 of the WR Act (see item 17).

6  Compliance with minimum entitlements

Minimum entitlements

(1)       A person must not contravene any of the following provisions:

                     (a)  Divisions 3, 4, 5, and 6 of Part 7 of the WR Act as they continue to apply under item 2 of Schedule 4;

                     (b)  Divisions 1 and 2 of Part 12 of the WR Act as they continue to apply under item 3 of Schedule 4;

                     (c)  section 661 of the WR Act as it continues to apply under item 4 of Schedule 4.

Note 1:    This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

Note 2:    An injunction may not be granted in relation to a contravention of section 661 of the WR Act (see item 17).

Extended operation of parental leave

(2)       A person must not contravene Division 6 of Part 12 of the WR Act as it continues to apply under item 3 of Schedule 4.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

7  Compliance with take‑home pay orders

A person must not contravene a term of a take‑home pay order that applies to the person.

Note:       This item is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

7A  Compliance with transitional pay equity orders and orders to continue effect of terms relating to long service leave

(1)       A person must not contravene a term of a transitional pay equity order that applies to the person.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(2)       A person must not contravene an order under item 30 of Schedule 3A that continues the effect of terms of a Division 2B State award relating to long service leave.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

8  Compliance with continued provisions relating to workplace agreements

(1)       A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule 8:

                     (a)  subsection 335(3);

                     (b)  subsection 337(8) or (9);

                     (c)  subsection 339(1);

                     (d)  subsection 342(1);

                     (e)  subsection 346(1);

                      (f)  subsection 346A(1);

                     (g)  subsection 346ZH(1);

                     (h)  subsection 362(1);

                      (i)  subsection 364(1);

                      (j)  subsection 370(8) or (9);

                     (k)  subsection 372(1);

                      (l)  subsection 375(1);

                    (m)  subsection 379(1);

                     (n)  subsection 385(1);

                     (o)  subsection 388(1);

                     (p)  subsection 391(1);

                     (q)  subsection 394(5);

                      (r)  subsection 397(1);

                      (s)  subsection 601H(2).

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(2)       A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule 8:

                     (a)  subsection 341(1);

                     (b)  subsection 343(1);

                     (c)  subsection 357(1);

                     (d)  subsection 365(1);

                     (e)  subsection 366(1);

                      (f)  subsection 374(1);

                     (g)  subsection 376(1);

                     (h)  subsection 387(1).

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(3)       A person must not contravene subsection 334(2) of the WR Act as that subsection continues to apply because of Schedule 8.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(4)       A person must not contravene subsection 365(1), 366(1), 400(3), 400(5) or 401(1) of the WR Act as those subsections continue to apply because of Schedule 8.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

9  Compliance with continued provisions relating to workplace agreements

(1)       This item applies to the following provisions of the WR Act as the provisions continue to apply because of Schedule 8:

                     (a)  subsection 341(1);

                     (b)  subsection 374(1);

                     (c)  subsection 387(1);

                     (d)  subsection 400(5);

                     (e)  subsection 401(1).

(2)       Subdivision C of Division 11 of Part 8 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to a contravention of the provision.

10  Compliance with WR Act equal remuneration orders

A person must not contravene a term of a WR Act equal remuneration order as it continues to apply because of item 4 of Schedule 10.

Note:       This item is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

11  Transfer of business—compliance with notice requirements

(1)       A person must not contravene subsection 599(4) of the WR Act as it continues to apply because of subitem 2(2) of Schedule 11.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(2)       A person must not contravene any of the following provisions of the WR Act as they continue to apply because of subitem 2(2) or (3) of Schedule 11:

                     (a)  subsections 602(2) and (4);

                     (b)  subsections 603(1), (2) and (3);

                     (c)  subsection 603A(2);

                     (d)  subsection 603B(1);

                     (e)  subclauses 28(2) and (3A) of Schedule 9;

                      (f)  subclauses 29(1), (2) and (3) of Schedule 9;

                     (g)  subclause 29A(2) of Schedule 9;

                     (h)  subclause 29B(1) of Schedule 9.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(3)       A person must not contravene subitem 10(2) of Schedule 11.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(4)       A person must not contravene subitem 11(1) of Schedule 11.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(5)       A person must not contravene subsection 599(4) of the WR Act as applied by item 13 of Schedule 11.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

12  Non‑disclosure obligation—information acquired under FW Act that identifies an employee as an employee to whom an individual agreement‑based transitional instrument applies

(1)       A person who:

                     (a)  is the protected action ballot agent for a protected action ballot (other than the Australian Electoral Commission); or

                     (b)  is the independent advisor for a protected action ballot; or

                     (c)  acquires information from, or on behalf of, a person referred to in paragraph (a) or (b) in the course of performing functions or exercising powers for the purposes of the ballot;

must not disclose to any other person information about an employee if the information will identify whether or not the employee is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(2)       Subitem (1) does not apply if:

                     (a)  the disclosure is made in the course of performing functions or exercising powers for the purposes of the protected action ballot; or

                     (b)  the disclosure is required or authorised by or under a law; or

                     (c)  the employee has consented, in writing, to the disclosure.

Note 1:    Personal information given to FWA, the Australian Electoral Commission or another protected action ballot agent under Division 8 of Part 3‑3 of the FW Act may be regulated under the Privacy Act 1988.

Note 2:    The President of FWA may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by FWA or a member of the staff of FWA, in the course of performing functions or exercising powers as FWA (see section 655 of the FW Act).

(3)       In this item:

protected action ballot has the same meaning as in the FW Act.

13  Non‑disclosure obligation—protected ballot information acquired under the WR Act

(1)       A person who acquires protected ballot information in the course of performing functions or exercising powers under this Act, the WR Act or the FW Act must not disclose that information to any other person if the information will identify:

                     (a)  whether a person is a member of an employee organisation; or

                     (b)  a person as:

                              (i)  an applicant who was represented by an applicant’s agent; or

                             (ii)  a relevant employee who was one of the prescribed number of employees supporting an application for a ballot order (as required by subsection 451(4) of the WR Act); or

                            (iii)  a person whose name appears on the roll of voters for a protected action ballot; or

                            (iv)  a person who is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

(2)       Subitem (1) does not apply if:

                     (a)  the disclosure is made for the purposes of performing functions or exercising powers under this Act, the WR Act (as it continues to apply under this Act) or the FW Act; or

                     (b)  the disclosure is required or authorised by or under a law; or

                     (c)  the person referred to in paragraph (1)(a) or (b) has consented, in writing, to the disclosure.

Note 1:    If the protected ballot information is personal information, it may be regulated under the Privacy Act 1988.

Note 2:    The President of FWA may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by FWA or a member of the staff of FWA, in the course of performing functions or exercising powers as FWA (see section 655 of the FW Act).

(3)       In this item:

protected action ballot has the same meaning as in the WR Act.

protected ballot information means information acquired in connection with a protected action ballot.

14  Compliance with continued provisions relating to protected action ballots

A person must not contravene subsection 477(1) or (4) of the WR Act as those subsections continue to apply because of item 14 of Schedule 13.

Note:       This item is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

15  Continuing Schedule 6 instruments

(1)       A person must not contravene a term of a continuing Schedule 6 instrument that applies to the person.

Note 1:    This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

Note 2:    An injunction may not be granted in relation to a contravention of a continuing Schedule 6 instrument (see item 17).

(2)       A transitional employer must not contravene subclause 72J(2) or 72K(1), (2) or (3) of continued Schedule 6.

Note:       This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

16  Application of FW Act to civil remedy provisions under this Act

(1)       Part 4‑1 of the FW Act applies as if:

                     (a)  items 2 to 8 and 10 to 15 of this Schedule were provisions of the FW Act; and

                     (b)  the table in subsection 539(2) included the table below (with the references in column 1 of the table below to be read as references to provisions of this Schedule (being Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009)); and

                     (c)  a reference to a fair work instrument in that Part included a reference to a transitional instrument, a Division 2B State instrument, a transitional minimum wage instrument or a continuing Schedule 6 instrument; and

                     (d)  the reference in subsection 540(3) to items 4, 7 and 14 in the table in subsection 539(2) included a reference to items 40 and 44C in the table below; and

                   (da)  the reference in subsections 540(3) and (4) to a term in an enterprise agreement that would be an outworker term if it were included in a modern award included:

                              (i)  a reference to a term in a collective agreement‑based transitional instrument that would be an outworker term if it were included in an award‑based transitional instrument; and

                             (ii)  a reference to a term in a collective Division 2B State employment agreement that would be an outworker term if it were included in a Division 2B State award; and

                     (e)  subsection 541(3) included references to items 2, 5, 7, 10, and 15 of this Schedule; and

                      (f)  subsection 557(2) included references to items 2 to 8 and 10 to 15 of this Schedule.

 

Standing, jurisdiction and maximum penalties

Item

Column 1
Civil remedy provision

Column 2
Persons

Column 3
Courts

Column 4
Maximum penalty

38

2(1) (other than in relation to a contravention or proposed contravention of an outworker term)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

39

2(1) (in relation to a contravention or proposed contravention of an outworker term)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

40

2(2) (in relation to a contravention or proposed contravention of a collective agreement‑based transitional instrument other than a contravention or proposed contravention of a term that would be an outworker term if it were included in an award‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation to which the collective agreement‑based transitional instrument concerned applies;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

40A

2(2) (in relation to a contravention or proposed contravention of a term in a collective agreement‑based transitional instrument that would be an outworker term if it were included in an award‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

41

2(2) (in relation to a contravention of an individual agreement‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

42

3(1)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

30 penalty units

43

3(2)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

30 penalty units

44

4

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

44A

4A(1) (other than in relation to a contravention or proposed contravention of an outworker term)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

44B

4A(1) (in relation to a contravention or proposed contravention of an outworker term)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

44C

4A(2) (in relation to a contravention or proposed contravention of a collective Division 2B State employment agreement other than a contravention or proposed contravention of a term that would be an outworker term if it were included in a Division 2B State award)

(a) an employee;

(b) an employer;

(c) an employee organisation to which the collective Division 2B State employment agreement concerned applies;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

44D

4A(2) (in relation to a contravention or proposed contravention of a term in a collective Division 2B State employment agreement that would be an outworker term if it were included in a Division 2B State award)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

44E

4A(2) (in relation to a contravention of an individual Division 2B State employment agreement)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

44F

4B(1)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

30 penalty units

44G

4B(2)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

30 penalty units

45

5

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

46

6(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

47

6(2)

(a) an employee;

(b) a registered employee association;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

48

7

(a) an employee;

(b) an outworker;

(c) an employee organisation;

(d) an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the take‑home pay order relates;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

48A

7A(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

48B

7A(2)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

49

8(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(d) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

30 penalty units

50

8(2)

(a) an employee;

(b) an employee organisation;

(c) an inspector;

(d) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

51

8(3)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector;

(e) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

30 penalty units

52

8(4)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector;

(e) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

53

10

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

54

11(1)

(a) a transferring employee;

(b) the new employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

55

11(2), (3) and (4)

(a) a transferring employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

56

11(5)

(a) a transferring employee;

(b) the new employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

57

12(1)

(a) an employee;

(b) an employer;

(c) an applicant for the protected action ballot order;

(d) the protected action ballot agent;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

30 penalty units

58

13(1)

(a) an employee;

(b) an employer;

(c) an applicant for the ballot order to which the protected ballot information relates;

(d) the authorised ballot agent in relation to the ballot to which the protected ballot information relates;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

30 penalty units

59

14

(a) an employee;

(b) an employer;

(c) an applicant for the ballot order;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

30 penalty units

60

15(1) (other than in relation to a contravention of an outworker term in a continuing Schedule 6 instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

61

15(1) (in relation to a contravention of an outworker term in a continuing Schedule 6 instrument)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

62

15(2)

(a) a transferring transitional employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

Outworkers

(2)       For the purposes of table items 38, 39, 40, 40A, 44A, 44B, 44C, 44D, 48, 60 and 61 in subitem (1), and the operation of subsections 540(3) and (4) of the FW Act in relation to those table items:

                     (a)  outworker has the meaning given by the FW Act; and

                     (b)  outworker term has the meaning that would be given by section 140 of the FW Act if:

                              (i)  references in the section to a modern award were references to an award‑based transitional instrument, a Division 2B State award or a continuing Schedule 6 instrument; and

                             (ii)  paragraph 140(3)(b) of that Act did not refer to subsection 142(1); and

                            (iii)  paragraph 140(3)(c) of that Act did not refer to subsection 142(2).

(3)       Section 570 of the FW Act applies in relation to proceedings that relate to any of items 2 to 8 or 10 to 15 of this Schedule as if the reference to this Act (being the FW Act) were a reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

(4)       Section 571 of the FW Act applies as if the reference to a pecuniary penalty imposed under this Act (being the FW Act) were a reference to a pecuniary penalty imposed in relation to any of items 2 to 8 or 10 to 15 of this Schedule.

17  No injunctions in relation to certain contraventions

The Federal Court and the Federal Magistrates Court may not make an order under Division 2 of Part 4‑1 of the FW Act granting an injunction, or an interim injunction, to prevent, stop or remedy the effects of a contravention of:

                     (a)  a transitional instrument; or

                    (aa)  a Division 2B State instrument; or

                     (b)  a continuing Schedule 6 instrument; or

                     (c)  section 182 or 185 of the WR Act as that section continues to apply under item 5 of Schedule 9; or

                     (d)  section 661 of the WR Act, as it continues to apply under item 4 of Schedule 4.

18  Application of safety net contractual entitlements

To avoid doubt, the following have no effect before the FW (safety net provisions) commencement day:

                     (a)  sections 541, 542 and 543 of the FW Act;

                     (b)  section 706 of the FW Act as it operates because of paragraph 706(1)(b) that Act.

Note:       Inspectors may exercise powers for the other compliance purposes set out in subsection 706(1) of the FW Act before the FW (safety net provisions) commencement day.

19   Regulations dealing with civil penalties

(1)       The regulations may provide for civil penalties for contravention of this Act or of the WR Act as the WR Act continues to apply because of this Act.

(2)       The penalties for contravention must not be more than:

                     (a)  20 penalty units for an individual; and

                     (b)  100 penalty units for a body corporate.


 

Schedule 17Amendments relating to the Fair Work Divisions of the Federal Court and the Federal Magistrates Court

Part 1Amendments to the Federal Court of Australia Act 1976

Federal Court of Australia Act 1976

1  Section 4

Insert:

Division means the General Division or the Fair Work Division of the Court.

2  Section 4 (definition of Full Court)

After “Full Court” (second occurring), insert “in a Division of the Court”.

3  After section 6

Insert:

6A  Assignment of Judges to Divisions

                   The Governor‑General may:

                     (a)  assign a Judge (other than the Chief Justice) to one of the Divisions either:

                              (i)  in the commission of appointment of the Judge; or

                             (ii)  at a later time, with the consent of the Judge; and

                     (b)  vary any such assignment, with the consent of the Judge.

Note:          A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).

4  Section 7

Before “Whenever”, insert “(1)”.

5  At the end of section 7

Add:

             (2)  For the purposes of this Act, a person who is performing duties and exercising powers under subsection (1) is taken not to be assigned to either Division of the Court.

Note:          A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).

6  After section 12

Insert:

13  General and Fair Work Divisions of the Court

             (1)  For the purpose of the organisation and conduct of the business of the Court, the Court comprises 2 Divisions:

                     (a)  the General Division; and

                     (b)  the Fair Work Division.

             (2)  Every proceeding in the Court must be instituted, heard and determined in a Division.

Fair Work Division

             (3)  The following jurisdiction of the Court is to be exercised in the Fair Work Division:

                     (a)  jurisdiction that is required by any other Act to be exercised in the Fair Work Division;

                     (b)  jurisdiction that is incidental to such jurisdiction.

Note:          Under section 562 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Court in relation to matters arising under that Act.

General Division

             (4)  The following jurisdiction of the Court is to be exercised in the General Division:

                     (a)  jurisdiction that is not required by any other Act to be exercised in the Fair Work Division;

                     (b)  jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).

Jurisdiction that is required to be exercised in both Divisions

             (5)  If the Court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Justice may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.

7  After subsection 15(1)

Insert:

Exercise of powers of General and Fair Work Divisions of the Court

          (1A)  A Judge who is assigned to a Division of the Court must exercise, or participate in exercising, the powers of the Court only in that Division, except as set out in subsection (1B).

          (1B)  The Chief Justice may arrange for a Judge who is assigned to a particular Division of the Court to exercise, or participate in exercising, the powers of the Court in the other Division if the Chief Justice considers that circumstances make it desirable to do so.

          (1C)  To avoid doubt, a Judge who is not assigned to either Division of the Court may exercise, or participate in exercising, the powers of the Court in either Division.

          (1D)  Subsection (1A) does not affect the validity of any exercise of powers by the Court otherwise than in accordance with that subsection.

Note 1:    The following heading to subsection 15(1) is inserted “Responsibility of Chief Justice”.

Note 2:    The following heading to subsection 15(2) is inserted “Judges who are also Judges of the Supreme Court of the ACT and the Northern Territory”.

8  At the end of Division 1 of Part IIA

Add:

18BA  Arrangements with agencies or organisations

             (1)  The Chief Justice may arrange with the chief executive officer (however described) of:

                     (a)  an agency of the Commonwealth, a State or a Territory; or

                     (b)  another organisation;

for an employee or employees of the agency or organisation to:

                     (c)  receive, on behalf of the Court, documents to be lodged with or filed in the Court; or

                     (d)  perform, on behalf of the Court, other non‑judicial functions of the Court.

             (2)  If an arrangement under subsection (1) is in force in relation to the performance by an employee of an agency or organisation of a function on behalf of the Court, the employee may perform that function despite any other provision of this Act or any other law of the Commonwealth.

             (3)  A function performed on behalf of the Court in accordance with an arrangement under subsection (1) has effect as if the function had been performed by the Court.

             (4)  Copies of an arrangement under subsection (1) are to be made available for inspection by members of the public.

9  Subsection 43(1)

After “subsection (1A)”, insert “and section 570 of the Fair Work Act 2009”.


 

Part 2Amendments to the Federal Magistrates Act 1999

Federal Magistrates Act 1999

10  Section 4

After:

•      Jurisdiction is conferred on the Federal Magistrates Court by other laws of the Commonwealth.

Insert:

•      Jurisdiction is to be exercised in the General Division or the Fair Work Division of the Federal Magistrates Court.

11  Section 5

Insert:

Division means the General Division or the Fair Work Division of the Federal Magistrates Court.

12  After section 10

Insert:

10A  General and Fair Work Divisions of the Federal Magistrates Court

             (1)  For the purpose of the organisation and conduct of the business of the Federal Magistrates Court, the Federal Magistrates Court comprises 2 Divisions:

                     (a)  the General Division; and

                     (b)  the Fair Work Division.

             (2)  Every proceeding in the Federal Magistrates Court must be instituted, heard and determined in a Division.

Fair Work Division

             (3)  The following jurisdiction of the Federal Magistrates Court is to be exercised in the Fair Work Division:

                     (a)  jurisdiction that is required by any other Act to be exercised in the Fair Work Division;

                     (b)  jurisdiction that is incidental to such jurisdiction.

Note:          Under section 566 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Federal Magistrates Court in relation to matters arising under that Act.

General Division

             (4)  The following jurisdiction of the Federal Magistrates Court is to be exercised in the General Division:

                     (a)  jurisdiction that is not required by any other Act to be exercised in the Fair Work Division;

                     (b)  jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).

Jurisdiction that is required to be exercised in both Divisions

             (5)  If the Court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Federal Magistrate may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.

13  After subsection 12(3)

Insert:

Exercise of powers of General and Fair Work Divisions of the Federal Magistrates Court

          (3A)  A Federal Magistrate who is assigned to a Division of the Federal Magistrates Court must exercise, or participate in exercising, the powers of the Federal Magistrates Court only in that Division, except as set out in subsection (3B).

          (3B)  The Chief Federal Magistrate may arrange for a Federal Magistrate who is assigned to a particular Division of the Federal Magistrates Court to exercise, or participate in exercising, the powers of the Federal Magistrates Court in the other Division if the Chief Federal Magistrate considers that circumstances make it desirable to do so.

          (3C)  To avoid doubt, a Federal Magistrate who is not assigned to either Division of the Federal Magistrates Court may exercise, or participate in exercising, the powers of the Federal Magistrates Court in either Division.

          (3D)  Subsection (3A) does not affect the validity of any exercise of powers by the Federal Magistrates Court otherwise than in accordance with that subsection.

Note 1:    The following heading to subsection 12(1) is inserted “Responsibility of Chief Federal Magistrate”.

Note 2:    The following heading to subsection 12(4) is inserted “Assignment of Federal Magistrates to locations or registries”.

Note 3:    The following heading to subsection 12(7) is inserted “Functions and powers of the Chief Federal Magistrate”.

14  Subsection 79(1)

After “proceedings”, insert “or proceedings in relation to a matter arising under the Fair Work Act 2009”.

15  Subsection 79(1) (at the end of the note)

Add “See section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act.”.

16  After clause 1 of Schedule 1

Insert:

1A  Assignment of Federal Magistrates to Divisions

                   The Governor‑General may:

                     (a)  assign a Federal Magistrate (other than the Chief Federal Magistrate) to one of the Divisions either:

                              (i)  in the commission of appointment of the Federal Magistrate; or

                             (ii)  at a later time, with the consent of the Federal Magistrate; and

                     (b)  vary any such assignment, with the consent of the Federal Magistrate.

Note:          A Federal Magistrate (including the Chief Federal Magistrate) who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C)).

17  At the end of clause 10 of Schedule 1

Add:

             (3)  For the purposes of this Act, a person who is acting as Chief Federal Magistrate under subclause (1) is taken not to be assigned to either Division of the Federal Magistrates Court.

Note:          A Federal Magistrate who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C)).


 

Part 3Other amendments

Administrative Decisions (Judicial Review) Act 1977

18  Paragraph (a) of Schedule 1

Omit “Conciliation and Arbitration Act 1904,”, substitute “Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009,”.


 

Part 4Application and transitional provisions

19  Application of Part 1

(1)       The amendments made by Part 1 of this Schedule (other than item 8) apply:

                     (a)  in relation to proceedings commenced after that Part commences; and

                     (b)  in relation to proceedings that are pending in the Federal Court immediately before that Part commences, as if the reference in subsection 13(2) of the Federal Court of Australia Act 1976 (as inserted by item 6 of this Schedule) to “be instituted, heard and determined” were a reference to “, after item 6 of Schedule 17 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 commences, be heard and determined”.

(2)       A person who is a Judge (other than the Chief Justice) of the Federal Court immediately before Part 1 of this Schedule commences, is taken, for all purposes, not to have been assigned under section 6A of the Federal Court of Australia Act 1976 (as inserted by item 3 of this Schedule) to either Division of the Federal Court.

Note:       A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C) of the Federal Court of Australia Act 1976, as inserted by item 7 of this Schedule).

20  Application of Part 2

(1)       The amendments made by Part 2 of this Schedule apply:

                     (a)  in relation to proceedings commenced after the Part commences; and

                     (b)  in relation to proceedings that are pending in the Federal Magistrates Court immediately before that Part commences, as if the reference in subsection 10A(2) of the Federal Magistrates Act 1999 (as inserted by item 12 of this Schedule) to “be instituted, heard and determined” were a reference to “, after item 12 of Schedule 17 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 commences, be heard and determined”.

(2)       A person who is a Federal Magistrate (other than the Chief Federal Magistrate) of the Federal Magistrates Court immediately before Part 2 of this Schedule commences, is taken, for all purposes, not to have been assigned under clause 1A of Schedule 1 to the Federal Magistrates Act 1999 (as inserted by item 16 of this Schedule) to either Division of the Federal Magistrates Court.

Note:       A Federal Magistrate (including the Chief Federal Magistrate) who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C) of the Federal Magistrates Act 1999, as inserted by item 13 of this Schedule).


 

Part 5Jurisdiction of courts

21  Conferring jurisdiction on the Federal Court

Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under:

                     (a)  this Act; or

                     (b)  the WR Act as it continues to apply because of this Act.

22  Exercising jurisdiction in the Fair Work Division of the Federal Court

The jurisdiction conferred on the Federal Court under item 21 is to be exercised in the Fair Work Division of the Federal Court if:

                     (a)  an application is made to the Federal Court under this Act or the WR Act as it continues to apply because of this Act; or

                     (b)  a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act or the WR Act as it continues to apply because of this Act; or

                     (c)  a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or

                     (d)  an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or

                     (e)  a prosecution is instituted in the Federal Court under this Act or the WR Act as it continues to apply because of this Act; or

                      (f)  an appeal is instituted in the Federal Court from a judgment of the Federal Magistrates Court or a court of a State or Territory in a matter arising under this Act or the WR Act as it continues to apply because of this Act; or

                     (g)  proceedings in relation to a matter arising under this Act, or the WR Act as it continues to apply because of this Act, are transferred to the Federal Court from the Federal Magistrates Court; or

                     (h)  the Federal Magistrates Court or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act or the WR Act as it continues to apply because of this Act; or

                      (i)  the President refers, under section 608 of the FW Act, a question of law to the Federal Court in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or

                      (j)  the High Court remits a matter arising under this Act or the WR Act as it continues to apply because of this Act to the Federal Court.

23  No limitation on Federal Court’s powers

To avoid doubt, nothing in this Act limits the Federal Court’s powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976.

24  Appeals from eligible State or Territory courts

(1)       An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act or the WR Act as it continues to apply because of this Act.

(2)       It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subitem (1).

(3)       No appeal lies from a decision referred to in subitem (1), except as provided for by this item.

25  Conferring jurisdiction on the Federal Magistrates Court

Jurisdiction is conferred on the Federal Magistrates Court in relation to any civil matter arising under:

                     (a)  this Act; or

                     (b)  the WR Act as it continues to apply because of this Act.

26  Exercising jurisdiction in the Fair Work Division of the Federal Magistrates Court

Jurisdiction conferred on the Federal Magistrates Court under item 25 is to be exercised in the Fair Work Division of the Federal Magistrates Court if:

                     (a)  an application is made to the Federal Magistrates Court under this Act or the WR Act as it continues to apply because of this Act; or

                     (b)  an injunction is sought under section 15 of the Federal Magistrates Act 1999 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or

                     (c)  a declaration is sought under section 16 of the Federal Magistrates Act 1999 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or

                     (d)  proceedings in relation to a matter arising under this Act, or the WR Act as it continues to apply because of this Act, are transferred to the Federal Magistrates Court from the Federal Court; or

                     (e)  the High Court remits a matter arising under this Act or the WR Act as it continues to apply because of this Act to the Federal Magistrates Court.

27  No limitation on Federal Magistrates Court’s powers

To avoid doubt, nothing in this Act limits the Federal Magistrates Court’s powers under section 14, 15 or 16 of the Federal Magistrates Act 1999.


 

Schedule 18Institutions

Part 1Initial appointment of FWA Members

1  Appointments to Fair Work Australia

(1)       An appointment that is:

                     (a)  to an office of the Commission mentioned in a table item below; and

                     (b)  in force immediately before the commencement time for the table item;

is taken, after that time, to be an appointment, under section 626 of the FW Act, to the office of FWA mentioned in the table item.

Note:       The person continues to be appointed to the Commission (see subitem (3)).

 

Appointments to FWA

 

Item

Column 1

Office of the Commission

Column 2

Office of FWA

Column 3

Commencement time

1

President of the Commission

President of FWA

The day proclaimed for the purposes of item 2 of the table in subsection 2(1) of the FW Act.

2

Vice President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

3

Senior Deputy President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

4

Deputy President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

5

Commissioner of the Commission

Commissioner of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

(2)       Subitem (1) does not apply to a member of the Commission who:

                     (a)  was appointed as a member of a prescribed State industrial authority (within the meaning of the WR Act) before being appointed as a member of the Commission; and

                     (b)  still holds that appointment as a member of the prescribed State industrial authority.

Dual appointments

(3)       Despite any provision of the WR Act or the FW Act, a person who is taken to have been appointed as an FWA Member under this item continues also to hold office under the WR Act.

Note:       The terms and conditions of a person who is taken to have been appointed as an FWA Member are the terms and conditions that attach to his or her appointment under the WR Act (see item 2 of this Schedule).

2  Terms and conditions

(1)       A person who is taken to have been appointed as an FWA Member under item 1 of this Schedule:

                     (a)  holds office under the FW Act on the same terms and conditions as attach, or attached, to his or her appointment under the WR Act (including under subsections 63(2) and (3) of that Act); and

                     (b)  is entitled to the same designation as he or she is, or was, entitled to in relation to his or her appointment under the WR Act (including the designation the person has, or had, because of subsection 80(2) of the Industrial Relations (Consequential Provisions) Act 1988).

(2)       To avoid doubt, subitem (1):

                     (a)  has effect despite subsections 633(1) and 644(1) of the FW Act; and

                     (b)  continues the application of the Judges’ Pensions Act 1968 in relation to a person taken to have been appointed under item 1 of this Schedule and to whom that Act applied as a member of the Commission.

(3)       For the purposes of determining the remuneration of a person who is taken to have been appointed as an FWA Member under item 1 of this Schedule:

                     (a)  sections 635 and 637 of the FW Act do not apply; and

                     (b)  sections 79 and 81 of the WR Act apply, and continue to apply on and after the WR Act repeal day, in relation to the person’s appointment as both an FWA Member and a member of the Commission.

3  Protection of members of the Commission and FWA

Section 609 of the FW Act has effect, in relation to any time at which the President is the only FWA Member, as if the words “After consulting the other FWA Members,” were omitted from subsection (1) of that section.

4  Seniority of FWA Members

The seniority of persons taken to be appointed as Deputy Presidents of FWA under item 1 of this Schedule is, for the purposes of section 619 of the FW Act, to be determined in accordance with the precedence assigned to them as members of the Commission under section 65 of the WR Act.

5  Procedural rules

Despite the requirement in subsection 609(1) of the FW Act, the President may make rules under that subsection before the WR Act repeal day without consulting other FWA Members.

6  Directions by President

(1)       The President of the Commission may give directions to a person who is taken to be appointed as an FWA Member under item 1 of this Schedule as to the manner in which the person is to perform his or her functions as a member of the Commission.

(2)       The direction must not relate to a decision by the Commission.

(3)       A person to whom a direction is given must comply with the direction.

(4)       If a direction is in writing, the direction is not a legislative instrument.


 

Part 2WR Act bodies and WR Act offices

7  Continuation and cessation

(1)       Despite the WR Act repeal, a body (the WR Act body) or office (the WR Act office) set out in an item in the following table continues in existence until the cessation time set out in the item.

 

WR Act bodies and WR Act offices—continuation and cessation

Item

Column 1

WR Act bodies

Column 2

WR Act offices

Column 3

Cessation time

1

Australian Industrial Relations Commission

Members of the Australian Industrial Relations Commission

31 December 2009

2

Australian Industrial Registry

Industrial Registrar and Deputy Registrars

31 December 2009

3

Australian Fair Pay Commission and AFPC Secretariat

AFPC Chair, AFPC Commissioners and Director of the AFPC Secretariat

31 July 2009

4

Workplace Authority

Workplace Authority Director

31 January 2010

 

Note:       FWA will begin to take over the work of WR Act bodies and WR Act offices before their cessation times: see item 12 of Schedule 2.

(2)       To avoid doubt, an appointment to a WR Act body or a WR Act office in effect immediately before the WR Act repeal continues in force on and after the WR Act repeal day:

                     (a)  according to its terms; but

                     (b)  subject to this Act.

Note:       As an example of the effect of this Act, at the cessation time for a WR Act body or a WR Act office, related appointments will cease.

(3)       Despite subitem (1), the Minister may, by writing, determine that a WR body or a WR Act office ceases to exist at a time that is different from the cessation time set out for the body or office in the table.

(4)       A determination under subitem (3):

                     (a)  has effect accordingly; and

                     (b)  is not a legislative instrument.

8  Transfer of assets and liabilities

(1)       The person referred to in column 1 of an item of the following table must arrange for the transfer, on the WR Act repeal day, of assets and liabilities of the body referred to in column 2 of the item of the following table to the body referred to in column 3 of the item of the following table.

 

Transfer of assets and liabilities

 

Item

Column 1

Office‑holder who enters arrangement with FWA

Column 2

Body whose assets and liabilities are transferred

Column 3

Body to which assets and liabilities are transferred

1

Director of the AFPC Secretariat

AFPC Secretariat

FWA

2

Industrial Registrar

Australian Industrial Registry

FWA

3

Workplace Authority Director

Workplace Authority

Office of the Fair Work Ombudsman

4

Workplace Ombudsman

Office of the Workplace Ombudsman

Office of the Fair Work Ombudsman

(2)       Despite subitem (1), the Minister may, before the WR Act repeal day, determine one or more of the following by writing:

                     (a)  that some or all assets and liabilities of the body (as specified in the determination) are to be transferred to a different body (as specified in the determination) from the one referred to in column 3 of the table;

                     (b)  that some or all assets and liabilities of the body (as specified in the determination) are to be transferred on a different day (as specified in the determination) from the one referred to in subitem (1);

                     (c)  that some or all assets and liabilities of the body (as specified in the determination) are to be transferred in accordance with regulations made, or to be made, for the purposes of this paragraph.

(3)       A determination under subitem (2):

                     (a)  has effect accordingly; and

                     (b)  is not a legislative instrument.

(4)       In this item, a reference to an asset of a body includes a reference to a record or any other information that is in the custody of, or under the control of, the body.

9  Information acquired under WR Act

Section 655 of the FW Act has effect as if information acquired, before the WR Act repeal day, by a WR Act body or a person holding a WR Act office in the course of performing functions or exercising powers as such a body or in such an office were information acquired by FWA in the course of performing functions or exercising powers as FWA.

Note:       Item 16 makes provision for information acquired by a member of the Office of the Workplace Ombudsman to be treated, for the purposes of section 718 of the FW Act, as if it were acquired by the Fair Work Ombudsman.

10  Staffing arrangements

(1)       The General Manager of FWA may enter into an arrangement with the person referred to in column 1 of an item of the following table for FWA to provide assistance to the body referred to in column 2 of the item for the purpose of performing functions on and after the WR Act repeal day.

 

Arrangements between FWA and body

 

Item

Column 1

Office‑holder who enters arrangement with FWA

Column 2

Body to which assistance is provided

1

Industrial Registrar

Australian Industrial Registry

2

Workplace Authority Director

Workplace Authority

3

Director of the AFPC Secretariat

AFPC Secretariat

 

(2)       The Fair Work Ombudsman may enter into an arrangement with the Workplace Authority Director to provide assistance to the Workplace Authority Director for the purpose of performing functions on and after the WR Act repeal day.

11  Transfer of functions to FWA at cessation time

(1)       After the cessation time for a WR Act body or a WR Act office, the powers, functions and duties of the body or office are to be exercised and performed by FWA.

Note:       For WR Act body, WR Act office and cessation time, see subitem 7(1).

(2)       For the purposes of subitem (1), a law of the Commonwealth that relates to the body or office is, for the purposes of its application after the cessation time, to be read:

                     (a)  as if a reference to the body or office were a reference to FWA, as necessary; and

                     (b)  with any other necessary modifications.

(3)       Despite subitem (1), the Minister may, by writing, determine that a power, function or duty of a WR Act body or a WR Act office is to be exercised or performed, after the cessation time for the body or office, by a body or person other than FWA.

(4)       A determination under subitem (3):

                     (a)  has effect accordingly; and

                     (b)  is not a legislative instrument.

(5)       If FWA, or another body or person, deals after the cessation time for a WR Act body or a WR Act office with a matter that was being dealt with by the WR Act body or a person holding the WR Act office, FWA or the other body or person, as the case requires, must take into account everything done by, or in relation to, the WR Act body or a person holding the WR Act office, in relation to the matter.

11A  Workplace inspectors to become Fair Work Inspectors

(1)       An appointment of a person as a workplace inspector that is in force under section 167 of the WR Act immediately before the WR Act repeal day has effect, for the remainder of the term of the appointment, as if it were an appointment of the person as a Fair Work Inspector under section 700 of the FW Act.

(2)       An identity card issued under section 168 of the WR Act to a person covered by subitem (1) has effect, for the remainder of the person’s term of appointment, as if it were an identity card issued under section 702 of the FW Act.

(3)       Subitem (2) does not apply if the person is issued with an identity card under section 702 of the FW Act.

Part 3Transitional role for Fair Work Ombudsman and Inspectors

12  No continued application for Parts 5A and 6 of WR Act

(1)       Parts 5A and 6 of the WR Act (which deal with the Workplace Ombudsman and workplace inspectors) have no application after the WR Act repeal.

(2)       To avoid doubt, subitem (1) applies in relation to:

                     (a)  conduct that occurred before the WR Act repeal day; and

                     (b)  a provision of the WR Act that continues to apply because of this Act.

(3)       Subitem (2) does not limit subitem (1).

13  Conduct before WR Act repeal

Applications to be made or continued by Fair Work Inspectors

(1)       For the purposes of the application of the WR Act in relation to conduct that occurred before the WR Act repeal day (including the application of the WR Act because of subitem 11(2) of Schedule 2), an application that could have been made or continued by a workplace inspector (disregarding item 12 of this Schedule) may be made or continued, on and after the WR Act repeal day, by a Fair Work Inspector.

Application of Part 5‑2 of FW Act

(2)       Part 5‑2 of the FW Act applies in relation to conduct that occurred before the WR Act repeal day as if:

                     (a)  a reference in that Part to a fair work instrument were a reference to a WR Act instrument or a transitional award that is not a WR Act instrument; and

                     (b)  a reference (other than a reference in a note to a section or subsection, or a reference in section 716) in that Part to a civil remedy provision were a reference to a civil remedy provision or a civil penalty provision within the meaning of the WR Act, as in force from time to time; and

                     (c)  a reference in that Part to “this Act” (being the FW Act) were a reference to the WR Act, as in force from time to time before the WR Act repeal day; and

                     (d)  the reference in paragraph 706(1)(c) to the regulations were a reference to regulations, as in force from time to time, under the WR Act, as in force from time to time before the WR Act repeal day; and

                     (e)  section 716 were omitted.

14  Conduct after WR Act repeal—application of Part 5‑2 of FW Act

Part 5‑2 of the FW Act applies in relation to conduct that occurs on or after the WR Act repeal day as if:

                     (a)  a reference in that Part to a fair work instrument included a reference to a transitional instrument, a transitional minimum wage instrument or a continuing Schedule 6 instrument; and

                     (b)  a reference in that Part to “this Act” (being the FW Act) included a reference to the WR Act as it continues to apply because of this Act; and

                     (c)  a reference in that Part to “this Act” (being the FW Act) included a reference to this Act (being the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); and

                     (d)  the reference in paragraph 706(1)(c) to the regulations included a reference to:

                              (i)  any regulations under the WR Act as they continue to apply because of this Act; or

                             (ii)  regulations under this Act; and

                     (e)  the following were included in paragraphs 706(2)(a) to (f);

                              (i)  a term of a transitional instrument;

                             (ii)  a term of a continuing Schedule 6 instrument;

                            (iii)  subsection 182(1) or (2) of the WR Act, as it continues to apply under item 5 of Schedule 9 (which deals with continuation of Australian Fair Pay and Conditions Standard wages provisions);

                            (iv)  a term of a take‑home pay order;

                             (v)  a term of a WR Act equal remuneration order as it continues to apply because of item 4 of Schedule 10.

14A  Conduct after Division 2B referral commencement—application of Part 5‑2 of FW Act

(1)       Part 5‑2 of the FW Act applies in relation to conduct that occurs on or after the Division 2B referral commencement as if:

                     (a)  a reference in that Part to a fair work instrument were a reference to a Division 2B State instrument; and

                     (b)  paragraphs 706(2)(a) to (f) included a reference to a term of a Division 2B State instrument.

(2)       This item has effect in addition to item 14.

15  Directions of Workplace Ombudsman

A direction, given by the Workplace Ombudsman to a workplace inspector under subsection 167(7) of the WR Act, that is in force immediately before the WR Act repeal day is taken, on and after that day, to have been given by the Fair Work Ombudsman to a Fair Work Inspector under section 704 or 705 (as the case requires) of the FW Act.

16  Disclosure of information acquired by workplace inspectors

Section 718 of the FW Act has effect as if information acquired, before the WR Act repeal day, by a member of the Office of the Workplace Ombudsman in the course of performing functions or exercising powers as such a member were information acquired by the Fair Work Ombudsman in the course of performing functions or exercising powers as the Fair Work Ombudsman.

Note:       The effect of this item is to allow the Fair Work Ombudsman to disclose, under section 718 of the FW Act, information acquired by a member of the Office of the Workplace Ombudsman.


 

Part 4Miscellaneous

17  FWA annual report—operations of FWA

If Part 5‑1 of the FW Act commences before 1 July 2009:

                     (a)  the annual report on the operations of FWA prepared for the 2009‑2010 financial year under section 652 of the FW Act must include a report on the operations of FWA during the period:

                              (i)  beginning on the day Part 5‑1 of the FW Act commences; and

                             (ii)  ending on 30 June 2009; and

                     (b)  that section does not apply in relation to the 2008‑2009 financial year.

18  Annual report—operations of the Office of the Fair Work Ombudsman

If Part 5‑2 of the FW Act commences before 1 July 2009:

                     (a)  the annual report on the operations of the Office of the Fair Work Ombudsman prepared for the 2009‑2010 financial year under section 686 of the FW Act must include a report on the operations of the Office during the period:

                              (i)  beginning on the day Part 5‑2 of the FW Act commences; and

                             (ii)  ending on 30 June 2009; and

                     (b)  that section does not apply in relation to the 2008‑2009 financial year.

19  Annual report—operations of the Office of the Workplace Ombudsman

(1)       The Fair Work Ombudsman (instead of the Workplace Ombudsman) must prepare the annual report on the operations of the Office of the Workplace Ombudsman under section 166S of the WR Act for the 2008‑2009 financial year.

(2)       Subitem (1) applies whether or not section 166S of the WR Act is repealed before the end of that year.

20  Report about developments in making agreements

Section 844 of the WR Act continues to apply, on and after the WR Act repeal day, but only in relation to the period:

                     (a)  beginning on 1 January 2007; and

                     (b)  ending on the day the office of the Workplace Authority Director, and the Workplace Authority, cease to exist.

20A  Report about unfair dismissal

(1)       The General Manager of FWA must prepare a written report about the first 3 years operation of the unfair dismissal system.

(2)       The report must deal with the experiences employers, and in particular small and medium‑sized enterprise employers, and employees have had with the unfair dismissal system.

(3)       To prepare the report, the General Manager of FWA may do the following:

                     (a)  seek public submissions;

                     (b)  conduct surveys of employers, employees and any other persons affected by, or who have had experience with, the unfair dismissal system;

                     (c)  hold public hearings;

                     (d)  gather information in any other way he or she thinks fit.

(4)       Where possible, the report should include:

                     (a)  the number of unfair dismissal applications made; and

                     (b)  the number of persons who were employed by each applicant’s employer; and

                     (c)  the number of applicants who were employed by a small business employer; and

                     (d)  the number of applicants employed by small business employers whose dismissals were not consistent with the Small Business Fair Dismissal Code; and

                     (e)  the number of applicants found to have been unfairly dismissed, and of those applicants:

                              (i)  the number whose reinstatement was ordered by FWA; and

                             (ii)  the number awarded compensation by FWA, and the amounts of that compensation; and

                            (iii)  the number dismissed by a small business employer; and

                      (f)  the number of unfair dismissal applications that were made after the period of 14 days specified in paragraph 394(2)(a) of the FW Act and the number of those applications that were allowed by FWA under subsection 394(3) of the FW Act; and

                     (g)  the number of unfair dismissal applications discontinued, and the stages at which those applications were discontinued; and

                     (h)  the amounts of compensation paid, or the other remedies provided, when unfair dismissal applications were settled.

(5)       The General Manager of FWA must give the Minister the report as soon as practicable and, in any event, within 6 months after the end of the period mentioned in subitem (1).

(6)       The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(7)       Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to the report as if it were a periodic report within the meaning of that definition in subsection 34C(1) of that Act.

(8)       In this item:

applicant means a person who has made an unfair dismissal application.

unfair dismissal system means Part 3‑2 of the FW Act.

20B  Transferred employees

Existing agreements to continue

(1)       This item applies if:

                     (a)  an APS employee is moved, under paragraph 72(1)(a) of the Public Service Act 1999, from an old Agency to a new Agency; and

                     (b)  the employee’s employment in the old Agency was subject to:

                              (i)  a collective agreement; or

                             (ii)  an AWA or pre‑reform AWA (and therefore also a collective agreement which had no effect while the AWA or pre‑reform AWA operated in relation to the employee).

(2)       The collective agreement, AWA or pre‑reform AWA, as the case requires, has effect after the move in relation to the employee’s employment as if it had been made with the Agency Head of the new Agency on behalf of the Commonwealth.

Agency Head to determine which agreement applies to new employee

(3)       If:

                     (a)  a new employee is employed in a new Agency; and

                     (b)  more than one collective agreement‑based transitional instrument applies to the employment of employees in that Agency;

the Agency Head may determine that any one of those instruments applies to the employment of the new employee.

Regulations

(4)       The regulations may provide for other matters of a transitional nature in relation to the transfer of employees from an old Agency to a new Agency.

Definitions

(5)       In this item:

Agency Head has the same meaning as in the Public Service Act 1999.

new Agency means:

                     (a)  Fair Work Australia; or

                     (b)  the Office of the Fair Work Ombudsman.

new employee, in a new Agency, means an employee who was not moved to the new Agency from an old Agency as mentioned in paragraph (1)(a).

old Agency means:

                     (a)  the Australian Industrial Registry; or

                     (b)  the AFPC Secretariat; or

                     (c)  the Workplace Authority; or

                     (d)  the Office of the Workplace Ombudsman.

Fair Work Act 2009

21  Section 574A

Repeal the section.

21A  Paragraph 575(2)(d)

Omit “4”, substitute “3”.

21B  Paragraph 622(2)(a)

Omit “3”, substitute “2”.

21C  Before section 630

Insert:

629A  Status of the President

                   The President has the same status as a Judge of the Federal Court.

21D  Subparagraph 654(2)(a)(i)

Omit “that is made under this Act”.

21E  Subparagraph 654(2)(a)(ii)

Omit “that is made or given to FWA under this Act”, substitute “given or made to FWA”.

21F  Paragraph 654(2)(b)

Omit “made under this Act and is”.

21G  After section 796

Insert:

796A  Regulations conferring functions

                   The regulations may confer functions on the following:

                     (a)  FWA;

                     (b)  the General Manager.

22  Schedule 1 to the Act

Repeal the Schedule.

Schedule 19Dealing with disputes

  

1  Continued application of WR Act

(1)       The WR Act continues to apply on and after the WR Act repeal day for the purposes of dealing with the following:

                     (a)  disputes in relation to a matter arising under a transitional instrument (including a WR Act instrument that becomes a transitional instrument);

                     (b)  disputes in relation to the Australian Fair Pay and Conditions Standard in Part 7 of the WR Act, including as it continues to apply because of Schedule 4 (other than disputes in relation to Division 2 of Part 7 of that Act);

                     (c)  disputes in relation to Division 1, 2 or 6 of Part 12 of the WR Act, including as it continues to apply because of Schedule 4.

(2)       The WR Act applies in relation to a dispute mentioned in any of paragraphs (1)(a) to (c) in the way that it applied, before the WR Act repeal day, in relation to a like dispute.

2  Disputes to be dealt with by FWA

(1)       Anything that could, or would, have been done by, or in relation to, the Commission or the Industrial Registrar because of item 1 may only be done by, or in relation to, FWA.

(2)       For the purposes of subitem (1), the WR Act is to be read:

                     (a)  as if a reference to the Commission or the Industrial Registrar were a reference to FWA, as necessary; and

                     (b)  with any other necessary modifications.

(3)       This item does not apply in relation to a dispute if:

                     (a)  an application has been made to the Commission in relation to the dispute before the WR Act repeal day; and

                     (b)  the Commission is dealing with or has dealt with the dispute.

(4)       Subitem (1) applies despite subsection 595(1) of the FW Act.

Note:       That subsection allows FWA to deal with a dispute only if FWA is expressly authorised to do so under the FW Act.


 

Schedule 20WR Act transitional awards etc.

  

1  Schedule 6 to the WR Act

(1)       Schedule 6 to the WR Act (continued Schedule 6) continues to apply on and after the WR Act repeal day in accordance with this Schedule.

(2)       Except for instrument content rules and instrument interaction rules, nothing in this Schedule or continued Schedule 6 applies to State reference transitional awards or common rules.

Note:       State reference transitional awards or common rules are continued in existence by Schedule 3 as transitional instruments.

(3)       Without limiting subitem (1) (but subject to subitem (2)), transitional awards that were in operation under Schedule 6 to the WR Act immediately before the WR Act repeal day continue in operation as continuing Schedule 6 instruments on and after the repeal day in accordance with continued Schedule 6.

Note 1:    In addition to provisions of this Schedule, Part 3 of Schedule 2 may also affect continuing Schedule 6 instruments.

Note 2:    Compliance with continuing Schedule 6 instruments is dealt with in Schedule 16.

2  General modifications of references to the Australian Industrial Relations Commission etc.

(1)       Continued Schedule 6 applies as if:

                     (a)  a reference in that Schedule to the Australian Industrial Relations Commission (or the Commission) were a reference to FWA; and

                     (b)  without limiting paragraph (a)—a reference in that Schedule to a member of the Commission (or a Commissioner) were a reference to an FWA member; and

                     (c)  a reference in that Schedule to the President were a reference to the President of FWA; and

                     (d)  a reference in that Schedule to a Presidential Member were a reference to the President, or a Deputy President, of FWA; and

                     (e)  a reference in that Schedule to a Full Bench were a reference to a Full Bench of FWA; and

                      (f)  a reference in that Schedule to a Registrar or the Industrial Registrar were a reference to the General Manager of FWA; and

                     (g)  from the time when FWA completes its first annual wage review:

                              (i)  a reference in that Schedule to the AFPC were a reference to FWA; and

                             (ii)  without limiting subparagraph (i)—a reference in that Schedule to wage‑setting decisions of the AFPC were a reference to determinations made by FWA in annual wage reviews; and

                     (h)  a reference in that Schedule to the Rules of the Commission were a reference to the procedural rules of FWA; and

                      (i)  a reference to “this Act” (being the WR Act) in any of the following provisions of that Schedule were a reference to “this Act” as defined in section 12 of the FW Act:

                              (i)  subclause 14(2);

                             (ii)  paragraph 44(2)(a);

                            (iii)  clause 70;

                            (iv)  clause 108.

(2)       Subitem (1) has effect unless the context otherwise requires and subject to the regulations.

Note:       For example, paragraph (1)(a) does not apply if the reference is to something that the Australian Industrial Relations Commission did before the WR Act repeal day (or before the reform commencement).

3  Modifications relating to how FWA is to perform functions under continued Schedule 6

(1)       Section 578 of the FW Act applies to the performance of FWA’s functions under continued Schedule 6 as if the reference in paragraph 578(a) to “the objects of this Act, and any objects of the part of the Act” were a reference to the objects of continued Schedule 6.

(2)       Sections 589 to 597 of the FW Act do not apply to the performance of FWA’s functions under this Schedule.

4  Modifications relating to transmission of business

Continued Schedule 6 applies as if:

                     (a)  the reference to clause 72M in:

                              (i)  the note to subclause 72J(2); and

                             (ii)  note 1 to subclauses 72K(1), (2) and (3);

                            were a reference to item 15 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and

                     (b)  clause 72M were omitted; and

                     (c)  Division 5 of Part 6A were omitted.

5  Modifications relating to general protections

(1)       Continued Schedule 6 applies as if the reference in clause 19 to Part 16 were a reference to Part 3‑1 of the FW Act.

(2)       Continued Schedule 6 applies as if clause 107A were omitted.

6  Modifications relating to meaning of industrial action

Clause 3 of continued Schedule 6 has effect as if:

                     (a)  note 2 to subclause 3(1) were worded as follows: “In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.”; and

                     (b)  the words in brackets at the end of subclause 3(3) were omitted; and

                     (c)  subclause 3(4), and note 1 to subclause 3(1), were omitted.

7  Modifications relating to secret ballots

(1)       The new ballots compliance provisions (see subitem (2)) apply in relation to a secret ballot ordered by FWA under continued Schedule 6 as if:

                     (a)  the order were a protected action ballot order; and

                     (b)  the ballot were a protected action ballot.

(2)       The new ballots compliance provisions are:

                     (a)  Subdivision E of Division 8 of Part 3‑3 of the FW Act; and

                     (b)  Part 4‑1 of the FW Act; and

                     (c)  Division 9 of Part 5‑1 of the FW Act.

8  Modifications relating to right of entry

(1)       Continued Schedule 6 applies as if clause 105 were omitted.

(2)       Part 3‑4 of the FW Act applies in relation to a continuing Schedule 6 instrument as if:

                     (a)  a reference in that Part to a fair work instrument were a reference to a continuing Schedule 6 instrument; and

                     (b)  Division 3 of Part 3‑4 were omitted.

9  Modifications relating to employee records etc.

Continued Schedule 6 applies as if the reference in clause 107C to section 836 of the WR Act were a reference to sections 535 and 536 of the FW Act.

10  Modifications relating to compliance

Continued Schedule 6 applies as if clauses 106 and 107 were omitted.

Note 1:    For the obligation to comply with continuing Schedule 6 instruments, see item 15 of Schedule 16.

Note 2:    For the role of Fair Work Ombudsman and Inspectors in relation to continuing Schedule 6 instruments, see item 14 of Schedule 18.

11  Regulations may deal with other matters

The regulations may deal with other matters relating to how the FW Act applies in relation to continuing Schedule 6 instruments.


 

Schedule 21Clothing Trades Award 1999

  

1  Status of the Clothing Trades Award 1999

(1)       The Clothing Trades Award 1999, to the extent that it contains terms relating to outworkers, is taken always to have been made in accordance with Part VI of the Workplace Relations Act 1996. Any variation of those terms is taken always to have been made in accordance with that Part.

(2)       Without limiting subitem (1), those terms (as varied from time to time) are taken always to have been terms about allowable award matters of the kind described in paragraph 513(1)(o) of the Workplace Relations Act 1996.


 

Schedule 22Registered organisations

Part 1Main amendments

Workplace Relations Act 1996

1  Title

Omit “workplace relations”, substitute “registered organisations”.

2  Part 1 (heading)

Repeal the heading, substitute:

Chapter 1Preliminary

  

3  Section 1

Omit “Workplace Relations Act 1996”, substitute “Fair Work (Registered Organisations) Act 2009”.

Note:       This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901).

4  Schedule 1 (heading)

Repeal the heading (including the note).

5  Chapter 1 of Schedule 1 (heading)

Repeal the heading.

6  Section 1 of Schedule 1

Repeal the section.

7  After section 5A of Schedule 1

Insert:

5B  Schedule 1 has effect

                   Schedule 1 has effect.

Note:          Schedule 1 is about transitionally recognised associations.

8  Section 6 of Schedule 1

Insert:

applies:

                     (a)  in relation to a modern award, has the same meaning as in section 47 of the Fair Work Act; and

                     (b)  in relation to an enterprise agreement, has the same meaning as in section 52 of the Fair Work Act.

9  Section 6 of Schedule 1 (definition of award)

Repeal the definition.

10  Section 6 of Schedule 1 (definition of collective agreement)

Repeal the definition.

11  Section 6 of Schedule 1 (definition of Commission)

Repeal the definition.

11A  Section 6 of Schedule 1 (definition of constitutional trade or commerce)

Repeal the definition.

12  Section 6 of Schedule 1

Insert:

covers:

                     (a)  in relation to a modern award, has the same meaning as in section 48 of the Fair Work Act; and

                     (b)  in relation to an enterprise agreement, has the same meaning as in section 53 of the Fair Work Act.

13  Section 6 of Schedule 1 (definition of Deputy Industrial Registrar)

Repeal the definition.

14  Section 6 of Schedule 1

Insert:

Deputy President means a Deputy President of FWA.

14A  Section 6 of Schedule 1 (definition of designated Commonwealth authority)

Repeal the definition.

14B  Section 6 of Schedule 1 (definition of employee)

Repeal the definition, substitute:

employee has its ordinary meaning, and includes a person who is usually such an employee, but does not include a person on a vocational placement.

14C  Section 6 of Schedule 1 (definition of employer)

Repeal the definition, substitute:

employer has its ordinary meaning, and includes:

                     (a)  a person who is usually such an employer; and

                     (b)  an unincorporated club.

15  Section 6 of Schedule 1

Insert:

enterprise agreement has the same meaning as in the Fair Work Act.

16  Section 6 of Schedule 1

Insert:

Fair Work Act means the Fair Work Act 2009 and includes regulations made under that Act.

16A  Section 6 of Schedule 1 (paragraphs (a) and (b) of the definition of federal system employee)

Repeal the paragraphs, substitute:

                     (a)  a national system employee within the meaning of section 13 of the Fair Work Act; or

16B  Section 6 of Schedule 1 (paragraph (c) of the definition of federal system employee)

Omit “either or both of the ways mentioned in paragraphs (a) and (b)”, substitute “the way mentioned in paragraph (a)”.

16C  Section 6 of Schedule 1 (definition of federal system employer)

Repeal the definition, substitute:

federal system employer means a national system employer within the meaning of section 14 of the Fair Work Act.

16D  Section 6 of Schedule 1 (definition of flight crew officer)

Repeal the definition.

17  Section 6 of Schedule 1

Insert:

FWA means the body established by section 575 of the Fair Work Act.

18  Section 6 of Schedule 1

Insert:

FWA Member has the same meaning as in the Fair Work Act, but does not include a Minimum Wage Panel Member (within the meaning of that Act).

19  Section 6 of Schedule 1

Insert:

General Manager means the General Manager of FWA.

20  Section 6 of Schedule 1 (definition of industrial action)

Repeal the definition, substitute:

industrial action has the same meaning as in the Fair Work Act.

21  Section 6 of Schedule 1 (definition of Industrial Registrar)

Repeal the definition.

22  Section 6 of Schedule 1 (definition of Industrial Registry)

Repeal the definition.

22A  Section 6 of Schedule 1 (definition of maritime employee)

Repeal the definition.

23  Section 6 of Schedule 1

Insert:

modern award has the same meaning as in the Fair Work Act.

24  Section 6 of Schedule 1 (definition of prescribed)

Repeal the definition, substitute:

prescribed includes prescribed by procedural rules of FWA made under section 609 of the Fair Work Act.

25  Section 6 of Schedule 1 (definition of Presidential member)

Repeal the definition.

26  Section 6 of Schedule 1

Insert:

protected industrial action has the same meaning as in the Fair Work Act.

27  Section 6 of Schedule 1 (definition of Registrar)

Repeal the definition.

28  Section 6 of Schedule 1 (definition of registry)

Repeal the definition.

29  Section 6 of Schedule 1 (definition of Registry official)

Repeal the definition.

30  Section 6 of Schedule 1 (definition of State award)

Repeal the definition, substitute:

State award means an award, order, decision or determination of a State industrial authority.

31  Section 6 of Schedule 1

Insert:

this Act includes regulations made under this Act.

32  Section 6 of Schedule 1 (definition of this Schedule)

Repeal the definition.

32A  Section 6 of Schedule 1 (definition of waterside worker)

Repeal the definition.

33  Section 6 of Schedule 1 (definition of workplace inspector)

Repeal the definition.

34  Section 6 of Schedule 1 (definition of Workplace Relations Act)

Repeal the definition.

35  Section 6A of Schedule 1

Repeal the section.

36  Section 7 of Schedule 1

Repeal the section.

37  Section 14 of Schedule 1

Repeal the section.

37A  Subparagraph 18C(3)(c)(i) of Schedule 1

Omit “either or both of the ways mentioned in paragraphs (a) and (b)”, substitute “the way mentioned in paragraph (a)”.

37B  Paragraph 18D(1)(a) of Schedule 1

Omit “paragraphs (a) to (g) of the definition of federal system employer in section 6”, substitute “paragraphs (a) to (f) of the definition of national system employer in section 14 of the Fair Work Act”.

37C  Paragraph 18D(3)(a) of Schedule 1

Omit “federal system employer in section 6”, substitute “national system employer in section 14 of the Fair Work Act”.

37D  Paragraph 18D(3A)(a) of Schedule 1

Omit “paragraph (b) or (c)”, substitute “paragraph (c)”.

37E  After section 26 of Schedule 1

Insert:

26A  Validation of registration

                   If:

                     (a)  an association was purportedly registered as an organisation under this Act before the commencement of this section; and

                     (b)  the association’s purported registration would, but for this section, have been invalid merely because, at any time, the association’s rules did not have the effect of terminating the membership of, or precluding from membership, persons who were persons of a particular kind or kinds;

that registration is taken, for all purposes, to be valid and to have always been valid.

38  Paragraphs 28(1)(b) and (c) of Schedule 1

After “industrial action”, insert “(other than protected industrial action)”.

39  Subparagraph 73(2)(c)(ii) of Schedule 1

Repeal the subparagraph, substitute:

                             (ii)  breaches of modern awards or enterprise agreements; or

                            (iii)  breaches of orders made under this Act, the Fair Work Act or other Commonwealth laws; and

40  Paragraph 94(1)(c) of Schedule 1

Repeal the paragraph, substitute:

                     (c)  the application is made before the period of 5 years after the amalgamation occurred has elapsed.

40A  After section 171 of Schedule 1

Insert:

171A  Cessation of membership if member is not an employee etc.

             (1)  If a person is a member of an organisation and the person is not, or is no longer:

                     (a)  if the organisation is an association of employers—a person of a kind mentioned in paragraph 18A(3)(a), (b), (c) or (d); or

                     (b)  if the organisation is an association of employees—a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or

                     (c)  if the organisation is an enterprise association—a person of a kind mentioned in paragraph 18C(3)(a), (b), (c) or (d);

the person’s membership of the organisation immediately ceases.

             (2)  Subsection (1) has effect despite anything in the rules of the organisation.

40B  Paragraph 230(2)(b) of Schedule 1

After “under”, insert “section 171A, or under”.

41  Subparagraph 337A(b)(ii) of Schedule 1

Repeal the subparagraph, substitute:

                             (ii)  an FWA Member or a member of the staff of FWA;

42  Subparagraph 337A(b)(v) of Schedule 1

Repeal the subparagraph, substitute:

                             (v)  a member of the staff of the Office of the Fair Work Ombudsman (within the meaning of the Fair Work Act); and

43  Section 337E of Schedule 1

Repeal the section.

44  Subsection 337K(5) of Schedule 1

Repeal the subsection, substitute:

             (5)  If an FWA Member ceases to be an FWA Member:

                     (a)  after an order under this Act has been made by FWA constituted by the FWA Member; but

                     (b)  before the order has been reduced to writing or before it has been signed by the FWA Member;

the General Manager must reduce the order to writing, sign it and seal it with the seal of FWA, and the order has effect as if it had been signed by the FWA Member.

45  Section 338 of Schedule 1

Repeal the section, substitute:

338  Conferring jurisdiction on the Federal Court

                   Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.

46  After section 339 of Schedule 1

Insert:

339A  Exercising jurisdiction in the Fair Work Division of the Federal Court

                   The jurisdiction conferred on the Federal Court under this Act is to be exercised in the Fair Work Division of the Federal Court if:

                     (a)  an application is made to the Federal Court under this Act; or

                     (b)  a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or

                     (c)  a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

                     (d)  an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

                     (e)  a prosecution is instituted in the Federal Court under this Act; or

                      (f)  the High Court remits a matter arising under this Act to the Federal Court.

47  At the end of section 340 of Schedule 1

Add:

             (5)  This section applies in addition to, and does not affect the operation of, section 339A.

48  At the end of section 341 of Schedule 1

Add:

             (3)  This section applies in addition to, and does not affect the operation of, section 339A.

49  After section 343 of Schedule 1

Insert:

343A  Delegation by General Manager to staff

             (1)  The General Manager may, in writing, delegate to a member of the staff of FWA all or any of the General Manager’s functions or powers under this Act.

             (2)  Despite subsection (1), the General Manager’s functions or powers under the following provisions cannot be delegated:

                     (a)  subsection 13(2);

                     (b)  any provision of Chapter 2, 3 or 5 (other than subsection 159(1) or (2) or section 161);

                     (c)  subsection 183(4);

                     (d)  section 197;

                     (e)  any provision of Part 3 or 4 of Chapter 7 (other than section 202);

                      (f)  any provision of Division 1, 2, 3 or 4 of Part 3 of Chapter 8;

                     (g)  subsection 278(2);

                     (h)  section 310;

                      (i)  section 334;

                      (j)  subsection 336(2);

                     (k)  subsection 337K(4).

             (3)  Despite subsection (1), the General Manager’s functions or powers under the following provisions can only be delegated to a member of the staff of FWA who is an SES employee or an acting SES employee, or who is in a class of employees prescribed by the regulations:

                     (a)  subsection 159(1) or (2);

                     (b)  section 161;

                     (c)  section 180;

                     (d)  any provision of Part 2 of Chapter 7 (other than subsection 183(4) or section 197);

                     (e)  any provision of Part 2 of Chapter 8;

                      (f)  any provision of Division 5 or 6 of Part 3 of Chapter 8;

                     (g)  section 272;

                     (h)  any provision of Chapter 11 (other than section 334 or subsection 336(2) or 337K(4)).

Note:          The expressions SES employee and acting SES employee are defined in section 17AA of the Acts Interpretation Act 1901.

             (4)  In exercising powers or functions under a delegation, the delegate must comply with any directions of the General Manager.

50  After section 351 of Schedule 1

Insert:

351A  Minister’s entitlement to intervene

             (1)  The Minister may intervene on behalf of the Commonwealth in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if the Minister believes it is in the public interest to do so.

             (2)  If the Minister intervenes, the Minister is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings.

             (3)  A court may make an order as to costs against the Commonwealth if:

                     (a)  the Minister intervenes under subsection (1); or

                     (b)  the Minister institutes an appeal from a judgment as referred to in subsection (2).

50A  After section 353 of Schedule 1

Insert:

353A  Representation in proceedings in the Fair Work Division of the Federal Court and Federal Magistrates Court

             (1)  This section applies in relation to a proceeding in the Fair Work Division of the Federal Court, or of the Federal Magistrates Court, other than:

                     (a)  a proceeding in relation to an appeal under section 565 of the Fair Work Act; or

                     (b)  a proceeding in relation to an offence against a law of the Commonwealth.

             (2)  Subject to subsection (4), a party to the proceeding that is an organisation may be represented by:

                     (a)  a member, officer or employee of the organisation; or

                     (b)  a member, officer or employee of a peak council to which the organisation is affiliated.

             (3)  Subject to subsection (4), a party to the proceeding that is not an organisation may be represented by:

                     (a)  a member, officer or employee of an organisation of which the party is a member; or

                     (b)  a member, officer or employee of a peak council to which an organisation of which the party is a member is affiliated.

             (4)  If the proceeding is a proceeding in relation to a question of law referred to the Federal Court under section 608 of the Fair Work Act, a party to the proceeding may only be represented as permitted by subsection (2) or (3) if the Court grants leave.

             (5)  In this section:

party includes an intervener.

51  Subsection 359(2) of Schedule 1 (note)

Repeal the note, substitute:

Note:          Regulations made under the Fair Work Act may also be relevant to the operation of this Act. For example, regulations about FWA’s practice and procedure may be made for the purposes of section 610 of the Fair Work Act.

52  Schedule 10

Renumber as Schedule 1.

53  Schedule 10 (note to heading)

Omit “section 9”, substitute “section 5B”.


 

Part 2State and federal organisations

Workplace Relations Act 1996

54  Before section 6 of Schedule 1

Insert:

5C  Schedule 2 has effect

                   Schedule 2 has effect.

Note:          Schedule 2 is about recognised State‑registered associations.

55  Section 6 of Schedule 1

Insert:

federal counterpart has the meaning given by section 9A.

56  Section 6 of Schedule 1

Insert:

recognised State‑registered association means a State‑registered association that is recognised under Schedule 2.

57  Section 6 of Schedule 1

Insert:

transitionally recognised association means a State‑registered association that is recognised under Schedule 1.

58  Section 6 of Schedule 1 (definition of transitionally registered association)

Repeal the definition.

58A  After section 9 of Schedule 1

Insert:

9A  Meaning of federal counterpart

             (1)  For the purposes of this Act, a federal counterpart for a particular association of employers or employees registered under a State or Territory industrial law is an organisation prescribed by the regulations to be a federal counterpart of that association.

             (2)  For the purposes of this Act, if subsection (1) does not apply in relation to a particular association of employers or employees registered under a State or Territory industrial law, a federal counterpart for the association is:

                     (a)  an organisation that has a branch (including a division of such a branch or a constituent part of such a branch) in that State or Territory that has or purports to have:

                              (i)  substantially the same eligibility rules as the association; and

                             (ii)  a history of integrated operation with the association; or

                     (b)  if paragraph (a) does not apply—an organisation of which the association has purported to function as a branch (including a division of a branch or a constituent part of a branch).

59  At the end of section 19 of Schedule 1

Add:

             (5)  FWA must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.

60  Subsection 138A(1) of Schedule 1

Omit “registered” (first occurring), substitute “recognised”.

61  Subsection 138A(1) of Schedule 1

Omit “registered” (last occurring), substitute “recognised”.

62  After Subdivision B of Division 4 of Part 2 of Chapter 5 of Schedule 1

Insert:

Subdivision BABranches of organisations

154A  Branch autonomy

                   The rules of an organisation may provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State workplace relations system.

154B  Branch funds

             (1)  The rules of an organisation may provide for a fund of the branch that is to be managed and controlled under rules of the branch, and may make provision in relation to the fund in accordance with subsection (2).

             (2)  The branch fund may consist of:

                     (a)  real or personal property of which the branch of the organisation, by the rules or by any established practice not inconsistent with the rules, has, or in the absence of a limited term lease, bailment or arrangement, would have, the right of custody, control or management; and

                     (b)  the amounts of entrance fees, subscriptions, fines, fees or levies received by a branch, less so much of the amounts as is payable by the branch to the organisation; and

                     (c)  interest, rents, dividends or other income derived from the investment or use of the fund; and

                     (d)  a superannuation or long service leave or other fund operated or controlled by the branch for the benefit of its officers or employees; and

                     (e)  a sick pay fund, accident pay fund, funeral fund, tool benefit fund or similar fund operated or controlled by the branch for the benefit of its members; and

                      (f)  property acquired wholly or mainly by expenditure of the money of the fund or derived from other assets of the fund; and

                     (g)  the proceeds of a disposal of parts of the fund.

62A  Subsection 158(1) of Schedule 1

Repeal the subsection, substitute:

             (1)  A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

                     (a)  in the case of a change in the name of the organisation—FWA consents to the change under this section; or

                     (b)  in the case of an alteration of the eligibility rules of the organisation:

                              (i)  FWA consents to the alteration under this section; or

                             (ii)  the General Manager consents to the alteration under section 158A.

63A  After section 158 of Schedule 1

Insert:

158A  Alteration of eligibility rules of organisation by General Manager

             (1)  The General Manager must, on application by an organisation in accordance with subsection (2), consent to an alteration of the eligibility rules of the organisation to extend them to apply to persons within the eligibility rules of an association of employers or employees that is registered under a State or Territory industrial law, if the General Manager is satisfied:

                     (a)  that the alteration has been made under the rules of the organisation; and

                     (b)  that the organisation is a federal counterpart of the association; and

                     (c)  that the alteration will not extend the eligibility rules of the organisation beyond those of the association; and

                     (d)  that the alteration will not apply outside the limits of the State or Territory for which the association is registered; and

                     (e)  as to such other matters (if any) as are prescribed by the regulations.

Note:          If the General Manager consents to the alteration, FWA may make orders that reflect State representation orders (see section 137F).

             (2)  The application must not be made before 1 January 2011, or such later day as the Minister declares in writing.

             (3)  A declaration made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.

             (4)  If the General Manager consents, under subsection (1), to an alteration, the alteration takes effect on:

                     (a)  if a day is specified in the consent—that day; or

                     (b)  in any other case—the day of the consent.

64  Schedule 10 (heading)

Omit “registered”, substitute “recognised”.

65  Subclause 1(1) of Schedule 10 (definition of transitionally registered association)

Repeal the definition.

66  Subclause 2(1) of Schedule 10

Omit “registration”, substitute “recognition”.

Note:       The heading to clause 2 of Schedule 10 is altered by omitting “registration” and substituting “recognition”.

67  Subclause 2(6) of Schedule 10

Omit “registered” (last occurring), substitute “recognised”.

68  Clause 3 of Schedule 10

Before “The”, insert “(1)”.

69  Clause 3 of Schedule 10

Omit “registered” (wherever occurring), substitute “recognised”.

Note:       The heading to clause 3 of Schedule 10 is altered by omitting “registered” and substituting “recognised”.

70  At the end of clause 3 of Schedule 10

Add:

             (2)  To avoid doubt, this section does not confer on a transitionally recognised association:

                     (a)  a legal identity that it would not otherwise have; or

                     (b)  a right to represent its members’ industrial interests outside the State in relation to which it is a State‑registered association.

71  Subclause 4(1) of Schedule 10

Omit “registered”, substitute “recognised”.

Note:       The heading to clause 4 of Schedule 10 is altered by omitting “registered” and substituting “recognised”.

72  Subclause 5(1) of Schedule 10

Omit “registration”, substitute “recognition”.

Note:       The heading to clause 5 of Schedule 10 is altered by omitting “registration” and substituting “recognition”.

73  Subclause 5(1) of Schedule 10

Omit “registered”, substitute “recognised”.

74  Paragraphs 5(1)(b) and (c) of Schedule 10

After “industrial action”, insert “(other than protected industrial action)”.

75  Subclause 5(3) of Schedule 10

Omit “registration”, substitute “recognition”.

76  Subclause 5(5) of Schedule 10

Omit “registration”, substitute “recognition”.

77  Subclause 5(5) of Schedule 10

Omit “registered”, substitute “recognised”.

78  Subclause 5(6) of Schedule 10

Omit “registration”, substitute “recognition”.

79  Subclause 5(6) of Schedule 10

Omit “registered”, substitute “recognised”.

79A  Clause 6 of Schedule 10

Before “The”, insert “(1)”.

80  Clause 6 of Schedule 10

Omit “registration”, substitute “recognition”.

Note:       The heading to clause 6 of Schedule 10 is altered by omitting “registration” and substituting “recognition”.

81  Clause 6 of Schedule 10

Omit “registered”, substitute “recognised”.

82  Subparagraphs 6(c)(i) and (ii) of Schedule 10

Repeal the subparagraphs, substitute:

                              (i)  unless subparagraph (ii) or (iii) applies—the fifth anniversary of the earliest day on which an organisation can make an application in accordance with subsection 158A(2); or

                             (ii)  if FWA grants the association an extension under subclause (2) of this clause and subparagraph (iii) does not apply—the sixth anniversary of that day; or

                            (iii)  if FWA grants the association a further extension under subclause (3) of this clause—the seventh anniversary of that day.

82A  At the end of clause 6 of Schedule 10

Add:

             (2)  FWA may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(c)(ii) if FWA is satisfied that the association has made progress towards:

                     (a)  becoming an organisation; or

                     (b)  rationalising its internal affairs with those of its federal counterpart.

             (3)  FWA may, on application by a transitionally recognised association, grant the association a further extension for the purposes of subparagraph (1)(c)(iii) if FWA is satisfied that:

                     (a)  the association has made further progress towards:

                              (i)  becoming an organisation; or

                             (ii)  rationalising its internal affairs with those of its federal counterpart; and

                     (b)  there are extenuating circumstances justifying the further extension.

83  Clause 7 of Schedule 10

Omit “registered”, substitute “recognised”.

84  At the end of the Act

Add:

Schedule 2Recognised State‑registered associations