FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 11 Transfer of business

FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 11

Transfer of business

1 Meanings of employee and employer

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

Part 2 -- Transmissions of business occurring before WR Act repeal day

2 General rule--continued application of WR Act

(1) This Part applies if:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Transitional instrument covers new employer

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

(a) the instrument is terminated;

(b) the transmission period ends;

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

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

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

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

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

Transitional APCS covers new employer

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

(a) the transitional APCS is terminated;

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

Preserved redundancy provisions apply to new employer

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

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

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

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

If:

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

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

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

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

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

Certain provisions have effect subject to orders of the Commission

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

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

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

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

Time within which application to Commission may be made

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

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

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

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

6 Modification--civil remedy provisions

Modifications of Part 11 of the WR Act

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

(a) subsection 599(4);

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

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

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

(b) subsection 603B(1).

Modifications of Schedule 9 to the WR Act

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

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

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

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

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

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

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

Division 1--Transfers of business: transitional instruments

6A Application of this Division

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

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

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

(1) This item applies if:

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

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

(2) This item applies regardless of whether:

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

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

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

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

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

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

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

(a) a reference to an enterprise agreement included a reference to an agreement - based transitional instrument; and

(b) a reference to a modern award included a reference to an award - based transitional instrument, other than a State reference common rule.

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

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

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

(a) subsection 315(3);

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

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

Division 2--Transfer of preserved redundancy provisions during bridging period

9 Transfer of preserved redundancy provisions

(1) This item applies if:

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

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

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

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

(2) This item applies regardless of whether:

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

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

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

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

(5) However, if:

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

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

then the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the transferring employee.

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

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

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

(7) In this item:

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

preservation item means any of the following:

(a) item 38 of Schedule 3;

(b) item 40 of Schedule 3;

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

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

10 Notification of transfer of preserved redundancy provisions

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

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

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

(3) The notice must:

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

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

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

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

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

11 Lodging copy of notice about preserved redundancy provisions with FWA

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

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

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

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

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

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

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

12 FWA must issue receipt for lodgment

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

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

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

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

13 Transfer of entitlements under the AFPCS

(1) This item applies if:

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

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

(2) This item applies regardless of whether:

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

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

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

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

(i) subsection 599(1);

(ii) subsection 600(2);

(iii) subsection 601(2); and

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

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

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

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

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

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

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

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

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

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

14 Application of this Division

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

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

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

(1) This item applies if:

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

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

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

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

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

; (d) a Division 2B State instrument.

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

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

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

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

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

(a) subsection 315(3);

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

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

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

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FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 11 Transfer of business