FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2009

i Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. ,

2009

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Regulations ......................................................................................... 2

Schedule 1--Repeals

Workplace Relations Act 1996

Schedule 2--Overarching Schedule about transitional matters

Part 1--Interpretation of the transitional Schedules

Part 2--Regulations about transitional matters

Part 3--Conduct before WR Act repeal day etc.

Schedule 3--Continued existence of awards, workplace

agreements and certain other WR Act

instruments

Part 1--Preliminary

Part 2--Continued existence of WR Act instruments as

transitional instruments

Part 3--Variation and termination of transitional instruments

Part 4--Transitional instruments and the Australian Fair Pay

and Conditions Standard

Part 5--Transitional instruments and the FW Act

Div ision 1--Interaction between transitional instruments and the

National Emp loy ment Standards

Div ision 2--Interaction between transitional instruments and FW Act

modern awards, enterprise agreements and workplace

determinations

Div ision 3--Other general provisions about how the FW Act applies

in relation to transitional instruments

Part 6--Preservation of redundancy provisions in agreements

etc.

Schedule 4--National Employme nt Standards

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

Part 1--Preliminary

Part 2--Continued application of WR Act minimum

entitlements provisions (other than wages) during

bridging period

Part 3--Operation of the National Employment Standards

Schedule 5--Modern awards (other than enterprise awards)

Part 1--Preliminary

Part 2--The WR Act award modernisation process

Part 3--Avoiding reductions in take-home pay

Schedule 6--Modern enterprise awards

Part 1--Preliminary

Part 2--The enterprise instrument modernisation process

Div ision 1--Enterprise instruments

Div ision 2--The enterprise instrument modernisation process

Div ision 3--Avoiding reductions in take-ho me pay

Div ision 4--Application of the FW Act

Part 3--Amendments

Fair Work Act 2009

Schedule 7--Ente rprise agreements and workplace

determinations made under the FW Act

Part 1--Preliminary

Part 2--Transitional provisions relating to the application of

the no-disadvantage test to enterprise agreements

made and varied during bridging period

Div ision 1--Enterprise agreements and variations made during

bridging period must pass no-disadvantage test

Div ision 2--The no-d isadvantage test

Part 3--Other requirements and modifications applying to

making and varying enterprise agreements during the

bridging period

iii Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. ,

2009

Div ision 1--Requirements relating to approval

Div ision 2--Base rate of pay

Div ision 3--No extensions of time

Div ision 4--State and Territory laws dealing with long service leave

Part 4--Transitional provisions to apply the better off overall

test after end of bridging period if award

modernisation not yet completed

Part 5--Transitional provisions relating to workplace

determinations made under the FW Act

Part 6--Interaction with Australian Fair Pay and Conditions

Standard during bridging period

101

Schedule 8--Workplace agreements and workplace

determinations made under the WR Act

103

Part 1--Preliminary

103

Part 2--Transitional provisions relating to workplace

agreements

104

Div ision 1--Transitional provisions relating to collective agreements

made before the WR Act repeal day

104

Div ision 2--Transitional provisions relating to variations of collective

agreements made before the WR Act repeal day

107

Div ision 3--Transitional provisions relating to pre-W R Act repeal day

terminations of collective agreements

109

Div ision 4--Transitional provisions relating to ITEAs made before

the WR Act repeal day

111

Div ision 5--Transitional provisions relating to variations of ITEAs

made before the WR Act repeal day

113

Div ision 6--Transitional provisions relating to pre-W R Act repeal day

terminations of ITEAs

115

Div ision 7--Transitional provisions relating to making ITEAs during

the bridging period

117

Div ision 8--Applying the no-disadvantage test where there is a

transmission or transfer of business

120

Div ision 9--Miscellaneous

123

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

Part 3--Transitional provisions relating to workplace

determinations made under the WR Act

125

Schedule 9--Minimum wages

128

Part 1--Preliminary

128

Part 2--Special provisions relating to FWA's first annual wage

review

129

Part 3--Continued application of WR Act provisions about

minimum wages

131

Div ision 1--General provisions

131

Div ision 2--Special provisions about transitional APCSs

133

Div ision 3--Special provisions about the FMW, special FMWs and

the default casual loading

134

Part 4--Universal application of minimum wages to

employees

136

Schedule 10--Equal re muneration

139

Part 1--Preliminary

139

Part 2--Equal remuneration orders under the FW Act

140

Part 3--Equal remuneration orders under the WR Act

141

Schedule 11--Transfer of business

142

Part 1--Preliminary

142

Part 2--Transmissions of business occurring before WR Act

repeal day

143

Part 3--Transfers of business occurring on or after WR Act

repeal day

149

Div ision 1--General

149

Div ision 2--Transfer of preserved redundancy provisions during

bridging period

150

Div ision 3--Transfer of entitlements under the AFPCS during

bridging period

153

Schedule 12--General protections

156

v Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. ,

2009

Schedule 13--Bargaining and industrial action

158

Part 1--Preliminary

158

Part 2--Bargaining

159

Part 3--Industrial action

161

Part 4--Protected action ballots

165

Part 5--Effect of conduct engaged in while bargaining for WR

Act collective agreement

167

Part 6--Payments relating to periods of industrial action

168

Schedule 14--Right of entry

169

Schedule 15--Stand down

172

Schedule 16--Compliance

173

Schedule 17--Amendme nts relating to the Fair Work Divisions

of the Federal Court and the Federal Magistrates

Court

188

Part 1--Amendments to the Federal Court of Australia Act

1976

188

Federal Court of Australia Act 1976

188

Part 2--Amendments to the Federal Magistrates Act 1999

192

Federal Magistrates Act 1999

192

Part 3--Other amendments

196

Administrative Decisions (Judicial Review) Act 1977

196

Part 4--Application and transitional provisions

197

Part 5--Jurisdiction of courts

199

Schedule 18--Institutions

202

Part 1--Initial appointment of FWA Members

202

Part 2--WR Act bodies and WR Act offices

205

Part 3--Transitional role for Fair Work Ombudsman and

Inspectors

209

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

Part 4--Miscellaneous

212

Fair Work Act 2009

213

Schedule 19--Dealing with disputes

214

Schedule 20--WR Act transitional awards etc.

215

Schedule 21--Clothing Trades Award 1999

217

Schedule 22--Registered organisations

218

Part 1--Main amendments

218

Workplace Relations Act 1996

218

Part 2--State and federal organisations

227

Workplace Relations Act 1996

227

Part 3--Representation orders

237

Workplace Relations Act 1996

237

Part 4--References to Schedules to the Workplace Relations

Act

242

Fair Work Act 2009

242

Workplace Relations Act 1996

242

Part 5--References to the Workplace Relations Act etc.

251

Workplace Relations Act 1996

251

Part 6--References to the Commission etc.

259

Workplace Relations Act 1996

259

Part 7--References to the Registrar etc.

273

Fair Work Act 2009

273

Workplace Relations Act 1996

273

Part 8--References to awards and collective agreements

289

Fair Work Act 2009

289

Workplace Relations Act 1996

289

Part 9--Transitional provisions etc.

293

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

A Bill for an Act to amend laws, and deal with

transitional matters, in connection with the Fair

Work Act 2009, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Fair Work (Transitional Provisions

and Consequential Amendments) Act 2009.

2 Commence ment

(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.

2 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

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.

2. Schedules 1 to

The day on which Part 2-4 of the Fair Work

Act 2009 commences.

3. Schedule 6,

Parts 1 and 2

At the same time as the provision(s) covered

by table item 2.

4. Schedule 6,

Part 3

Immediately after the commencement of

Part 2-3 of the Fair Work Act 2009.

5. Schedules 7 to

At the same time as the provision(s) covered

by table item 2.

6. Schedule 22,

items 1 to 90

At the same time as the provision(s) covered

by table item 2.

7. Schedule 22,

item 91

Immediately after the commencement of the

provisions covered by table item 8.

8. Schedule 22,

items 92 to 627

At the same time as the provision(s) covered

by table item 2.

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:

Overarching Schedule about transitional matters Schedule 2

Interpretation of the transitional Schedules Part 1

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

Schedule 2

Overarching Schedule about

transitional matters

Part 1

Interpretation of the transitional Schedules

1 What are the transitional Schedules?

The transitional Schedules are the following (including any regulations

made for the purposes of any of the following):

(a) this Schedule; and

(b) Schedules 2 to 22, other than:

(i) Part 3 of Schedule 6; and

(ii) Parts 1, 2 and 3 of Schedule 17; and

(iii) items 21 and 22 of Schedule 18; and

(iv) Parts 1 to 8 of Schedule 22.

2 The dictionary

In the transitional Schedules:

AFPCS interaction rules: see subitem 22(4) of Schedule 3.

agreement-based transitional instrument: see subitem 2(5) of

Schedule 3.

applies, in relation to a transitional instrument: see subitem 3(2) of

Schedule 3.

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.

conditional termination, in relation to an individual agreement-based

transitional instrument: see subitem 18(1) of Schedule 3.

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:

Schedule 2 Overarching Schedule about transitional matters

Part 1 Interpretation of the transitional Schedules

6 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

(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.

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.

instrument content rules: see subitem 4(2) of Schedule 3.

instrument interaction rules: see subitem 5(2) of Schedule 3.

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

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:

Overarching Schedule about transitional matters Schedule 2

Interpretation of the transitional Schedules Part 1

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

(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.

modify includes make additions, omissions and substitutions.

Part 10A award modernisation process: see subitem 2(1) of

Schedule 5.

part of a single enterprise: see subitem 3(4) of Schedule 6.

single enterprise: see item 3 of Schedule 6.

take-home pay: see subitem 8(2) of Schedule 5 and subitem 11(2) of

Schedule 6.

take-home pay order: see subitems 9(1) and (2) of Schedule 5 and

subitem 12(1) of Schedule 6.

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 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.

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).

Schedule 2 Overarching Schedule about transitional matters

Part 1 Interpretation of the transitional Schedules

8 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

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

Overarching Schedule about transitional matters Schedule 2

Interpretation of the transitional Schedules Part 1

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

(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

Schedule 2 Overarching Schedule about transitional matters

Part 1 Interpretation of the transitional Schedules

10 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

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.

Overarching Schedule about transitional matters Schedule 2

Regulations about transitional matters Part 2

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

Part 2

Regulations about transitional matters

7 General power for regulations to deal with transitional

matters

(1)

The regulations may make provisions of a transitional, application or

saving nature in relation to any of the following:

(a) the transition from the regime provided for by the old 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.

(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.

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

Schedule 2 Overarching Schedule about transitional matters

Part 2 Regulations about transitional matters

12 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

(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

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;

Overarching Schedule about transitional matters Schedule 2

Regulations about transitional matters Part 2

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

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.

Schedule 2 Overarching Schedule about transitional matters

Part 3 Conduct before WR Act repeal day etc.

14 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

Part 3

Conduct before WR Act repeal day etc.

11 Conduct before repeal

WR Act continues to apply

(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.

(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).

(3)

Subitems (1) and (2) apply 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 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

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 Human Rights and Equal

Overarching Schedule about transitional matters Schedule 2

Conduct before WR Act repeal day etc. Part 3

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

Opportunity 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.

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

item11;

(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.

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Continued existence of WR Act instru ments as transitional instruments Part 2

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

Part 2

Continued existence of WR Act instruments

as transitional instruments

2 WR Act instruments that continue in existence as

transitional instruments

(1)

Each WR Act instrument (see subitem (2)) that becomes a transitional

instrument (see subitems (3) and (4)) 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;

(b) a notional agreement preserving State awards;

(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.

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 2 Continued existence of WR Act instruments as transitional ins truments

18 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

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 Schedule 6 to the WR Act (which deals with

transitional awards etc.), see Schedule 20.

(3)

The following WR Act instruments become transitional instruments on

the WR Act repeal day:

(a) each WR Act instrument 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;

immediately before the WR Act repeal day, could come into

operation after that day because of an instrument interaction

rule.

(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.

(5)

Transitional instruments are classified as follows:

(a) awards, and notional agreements preserving State awards, are

award-based transitional instruments;

(b) all other kinds of transitional instruments are

agreement-based transitional instruments;

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;

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Continued existence of WR Act instru ments as transitional instruments Part 2

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

(iv) pre-reform AWAs.

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;

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).

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 2 Continued existence of WR Act instruments as transitional instruments

20 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

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;

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:

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Continued existence of WR Act instru ments as transitional instruments Part 2

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

(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.

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

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 2 Continued existence of WR Act instruments as transitional instruments

22 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

(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;

(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);

(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).

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Variation and termination of transitional instruments Part 3

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

Part 3

Variation and termination of transitional

instruments

9 Transitional instruments can only be varied or terminated

in limited circumstances

(1)

A transitional instrument cannot be varied except under:

(a) a provision of this Part or the regulations; or

(b) item 26 (which deals with resolving difficulties with the

interaction between transitional instruments and the National

Employment Standards); or

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

(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:

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 3 Variation and termination of transitional instru ments

24 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

(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

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 HREOC

(1)

This item applies if a transitional instrument is referred to FWA under

section 46PW of the Human Rights and Equal Opportunity 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:

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Variation and termination of transitional instruments Part 3

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

(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.

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.

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 3 Variation and termination of transitional ins tru ments

26 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

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;

(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.

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Variation and termination of transitional instruments Part 3

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

(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.

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 3 Variation and termination of transitional instru ments

28 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

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;

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

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Variation and termination of transitional instruments Part 3

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

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.

(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:

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 3 Variation and termination of transitional instru ments

30 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

(a) 27 March 2011;

(b) when it has been replaced by a State employment agreement.

(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:

(d) when it has been replaced by a State employment agreement.

(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.

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Transitional instru ments and the Australian Fair Pay and Conditions Standard Part 4

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

Part 4

Transitional instruments and the Australian

Fair Pay and Conditions Standard

22 Same AFPCS interaction rules continue to apply

(1)

Subject to this item, the same AFPCS interaction rules that applied in

relation to WR Act instruments of a particular kind immediately before

the WR Act repeal day continue to apply in relation to instruments of

that kind that become transitional instruments.

Note 1: Schedule 4 provides for the continued application of the Australian Fair Pay and

Conditions Standard (other than minimum wages provisions) during the bridging

period.

Note 2: Schedule 9 provides for the continued application of the minimum wages provisions of

the Australian Fair Pay and Conditions Standard on and after the WR Act repeal day.

(2)

AFPCS interaction rules of the kind referred to in paragraph (4)(b) do

not continue to apply after the end of the bridging period.

Note:

This may result in an employee becoming entitled to a rate of pay under a transitional

APCS that is higher than was required to be paid to the employee under a transitional

instrument during the bridging period. If that occurs, the employer may apply to 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.

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 5 Transitional instruments and the FW Act

32 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

Part 5

Transitional instruments and the FW Act

Division 1

Interaction between transitional instruments

and the National Employment Standards

23 The no detriment rule

(1)

To the extent that a term of a transitional instrument is detrimental to an

employee, in any respect, when compared to an entitlement of the

employee under the National Employment Standards, the term of the

transitional instrument is of no effect.

Note 1: A term of a transitional instrument that provides an entitlement that is at least as

beneficial to an employee as a corresponding entitlement of the employee under the

National Employment Standards will continue to have effect.

Note 2: Division 3 (which contains other general provisions about how the FW Act applies in

relation to transitional instruments) is also relevant to how the National Employment

Standards apply in relation to employees to whom transitional instruments apply.

Note 3: References to the National Employment Standards include a reference to the extended

parental leave provisions and the extended notice of termination provisions (see

sections 746 and 761 of the FW Act).

(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

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);

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Transitional instru ments and the FW Act Part 5

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

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).

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

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 5 Transitional instruments and the FW Act

34 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

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;

(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).

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Transitional instru ments and the FW Act Part 5

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

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 (see subsection 143(8) 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

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 5 Transitional instruments and the FW Act

36 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

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.

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

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Transitional instru ments and the FW Act Part 5

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

(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);

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

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 5 Transitional instruments and the FW Act

38 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

(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

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

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Transitional instru ments and the FW Act Part 5

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

(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.

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 6 Preservation of redundancy provisions in agreements etc.

40 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

Part 6

Preservation of redundancy provisions in

agreements etc.

38 Preservation of redundancy provisions when

agreement-based transitional instrument terminates

When this item applies

(1)

This item applies if a termination of an agreement-based transitional

instrument (the terminated instrument) takes effect during the bridging

period in either of the following circumstances:

(a) the instrument is a preserved collective State agreement or a

pre-reform certified agreement that is terminated by FWA as

provided for by item 16 because of an application made by an

employer covered by the agreement;

(b) the instrument is an individual agreement-based transitional

instrument that terminates under item 19 because FWA

approves a termination of the instrument by an employer

covered by the instrument.

Continuation of redundancy provisions

(2)

Any redundancy provision that was in the terminated instrument

continues to apply to any person to whom the terminated instrument

applied immediately before the termination took effect, as if the

terminated instrument had continued operating.

Note:

For how long the redundancy provision continues to apply, see subitem (6).

(3)

A redundancy provision that continues to apply to a person under

subitem (2) is taken, for the purpose of this Act, to be a transitional

instrument of the same kind as the terminated instrument. However, this

does not apply for the purpose of:

(a) the provisions of Parts 2, 3, 4 and 5 of this Schedule, other

than subitem 20(2) and item 23; or

(b) any other provisions prescribed by the regulations.

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Preservation of redundancy provisions in agreements etc. Part 6

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

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);

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

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 6 Preservation of redundancy provisions in agreements etc.

42 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

(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;

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

Continued existence of awards, wo rkp lace agreements and certain other WR Act

instruments Schedule 3

Preservation of redundancy provisions in agreements etc. Part 6

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

(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

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;

Schedule 3 Continued existence of awards, workplace ag reements and certain other

WR Act instruments

Part 6 Preservation of redundancy provisions in agreements etc.

44 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

(b) section 399A of the pre-transition Act (within the meaning of

Schedule 7A 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

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).

Schedule 4 National Emp loy ment Standards

Part 2 Continued application of WR Act min imu m entitlements provisions (other than

wages) during bridging period

46 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

Part 2

Continued application of WR Act minimum

entitlements provisions (other than wages)

during bridging period

2 Continued application of the Australian Fair Pay and

Conditions Standard leave and work hours provisions

Divisions 3, 4, 5 and 6 of Part 7 of the WR Act continue to apply during

the bridging period.

Note 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Part 3

of Schedule 9 to this Act provides for the continued application of Division 2 of Part 7

(which deals with wages).

Note 2: Part 4 of Schedule 3 to this Act provides for the continued application of the rules about

the interaction between transitional instruments and the Australian Fair Pay and

Conditions Standard.

3 Continued application of entitlements to meal breaks,

public holidays and parental leave

Divisions 1, 2 (other than sections 615 to 618) and 6 of Part 12 of the

WR Act continue to apply during the bridging period.

4 Continued application of notice of termination provisions

The following provisions of the WR Act continue to apply in relation to

terminations of employment that occur during the bridging period, or

notice of which is given during the bridging period:

(a) section 661;

(b) the following other provisions, as they relate to section 661:

(i) subsections 637(3), (4) and (5);

(ii) section 638;

(iii) section 640;

(iv) section 642;

(v) section 662.

National Emp loy ment Standards Schedule 4

Operation of the National Emp loy ment Standards Part 3

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

Part 3

Operation of the National Employment

Standards

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

Schedule 4 National Emp loy ment Standards

Part 3 Operation of the National Emp loyment Standards

48 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

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;

National Emp loy ment Standards Schedule 4

Operation of the National Emp loy ment Standards Part 3

Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No. , 2009

(b) the time at which the leave is taken;

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

Schedule 4 National Emp loy ment Standards

Part 3 Operation of the National Emp loyment Standards

50 Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 No.

, 2009

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.

Commonwealth of Australia Bills

FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2009