FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 2 Overarching Schedule about transitional matters
FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 2
Overarching Schedule about transitional mattersPart 1 -- Interpretation of the transitional Schedules
1 What are the transitional Schedules?
The transitional Schedules are the following (including any regulations made for the purposes of any of the following):
(a) this Schedule; and
(b) Schedules 2 to 22, other than:
(i) Part 3 of Schedule 6; and
(ii) Parts 1, 2 and 3 of Schedule 17; and
(iii) items 21 to 22 of Schedule 18; and
(iv) Parts 1 to 8 of Schedule 22.
2 The dictionary
In the transitional Schedules:
affected employee of an employer: see subitem 43(6) of Schedule 3 and subitem 30A(4) of Schedule 3A.
AFPCS interaction rules : see subitem 22(4) of Schedule 3.
agreement - based transitional instrument : see subitem 2(5) of Schedule 3.
applies :
(a) in relation to a transitional instrument: see subitem 3(2) of Schedule 3; and
(b) in relation to a Division 2B State award: see item 4 of Schedule 3A; and
(c) in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A.
award - based transitional instrument : see subitem 2(5) of Schedule 3.
bridging period means the period:
(a) starting on the WR Act repeal day; and
(b) ending immediately before the FW (safety net provisions) commencement day.
collective agreement - based transitional instrument : see subitem 2(5) of Schedule 3.
collective Division 2B State employment agreement : see subitem 5(5) of Schedule 3A.
collective State employment agreement : see subitem 2(6) of Schedule 3A.
common rule means a common rule within the meaning of clauses 82 to 87 of Schedule 6 to the WR Act (including those clauses as they continue to apply because of item 8A of Schedule 3).
conditional termination :
(a) in relation to an individual agreement - based transitional instrument: see subitem 18(1) of Schedule 3; and
(b) in relation to an individual Division 2B State employment agreement: see subitem 25(1) of Schedule 3A.
continued AFPCS wages provisions : see subitem 5(1) of Schedule 9.
continued Schedule 6 : see subitem 1(1) of Schedule 20.
continuing Schedule 6 instruments : see subitem 1(2) of Schedule 20.
covers :
(a) in relation to a transitional instrument: see subitem 3(1) of Schedule 3; and
(b) in relation to a transitional minimum wage instrument: see item 6 of Schedule 9; and
(c) in relation to a Division 2B State award: see item 4 of Schedule 3A; and
(d) in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A.
Division 2A referring State : see subitem 2A(7) of Schedule 3.
Division 2A State reference employee : see subitem 2A(3A) of Schedule 3.
Division 2A State reference employer : see subitem 2A(4A) of Schedule 3.
Division 2A State reference transitional award : see subitem 2A(1A) of Schedule 3.
Division 2B enterprise award : see subitem 2(4) of Schedule 6.
Division 2B referral commencement : see subitem 2(4A) of Schedule 3.
Division 2B referring State : see subitem 2A(7) of Schedule 3.
Division 2B State award : see item 3 of Schedule 3A.
Division 2B State employment agreement : see item 5 of Schedule 3A.
Division 2B State instrument : see item 2 of Schedule 3A.
Division 2B State reference employee : see subitem 2A(3A) of Schedule 3.
Division 2B State reference employer : see subitem 2A(4A) of Schedule 3.
Division 2B State reference outworker entity : see subitem 4(3) of Schedule 3A.
Division 2B State reference transitional award : see subitem 2A(1A) of Schedule 3.
enterprise award - based instrument : see subitem 2(2) of Schedule 6 .
enterprise instrument : see subitem 2(1) of Schedule 6 .
enterprise instrument modernisation process : see subitem 4(1) of Schedule 6 .
enterprise preserved collective State agreement : see subitem 2(3) of Schedule 6.
Fair Work Australia or FWA means the body referred to in section 575 of the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012 .
FWA : see Fair Work Australia .
FW Act : see item 3 of this Schedule.
FWA member has the same meaning as in the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012 .
FW (safety net provisions) commencement da y means the day on which Parts 2 - 2, 2 - 3 and 2 - 6 of the FW Act commence.
individual agreement - based transitional instrument : see subitem 2(5) of Schedule 3.
individual Division 2B State employment agreement : see subitem 5(6) of Schedule 3A.
individual State employment agreement : see subitem 2(7) of Schedule 3A.
instrument content rules :
(a) in Schedule 3: see subitem 4(2) of Schedule 3; and
(b) in Schedule 3A: see subitem 10(2) of Schedule 3A.
instrument interaction rules :
(a) in Schedule 3: see subitem 5(2) of Schedule 3; and
(b) in Schedule 3A: see subitem 11(2) of Schedule 3A.
lodged :
(a) in relation to a workplace agreement--means lodged with the Workplace Authority Director under section 344 of the WR Act; and
(b) in relation to a variation of a workplace agreement--means lodged with the Workplace Authority Director under section 346N or 377 of the WR Act, as the case may be; and
(c) in relation to a termination of a workplace agreement--means lodged with the Workplace Authority Director under section 389 of the WR Act.
made :
(a) in relation to a workplace agreement--has the meaning given by section 333 of the WR Act; and
(b) in relation to a variation of a workplace agreement--has the meaning given by section 368 of the WR Act.
modern enterprise award : see subitem 4(2) of Schedule 6.
modern enterprise awards objective : see subitem 6(2) of Schedule 6.
modernisation - related reduction in take - home pay :
(a) in relation to the Part 10A award modernisation process--see subitems 8(3) and (4) of Schedule 5; and
(b) in relation to the enterprise instrument modernisation process--see subitem 11(3) of Schedule 6; and
(c) in relation to the State reference public sector transitional award modernisation process--has the meaning given by subitem 13(3) of Schedule 6A.
modify includes make additions, omissions and substitutions.
nominal expiry date , in relation to a Division 2B State employment agreement: see item 27 of Schedule 3A.
outworker interaction rules : see subitem 12(2) of Schedule 3A.
Part 10A award modernisation process : see subitem 2(1) of Schedule 5.
part of a single enterprise : see subitem 3(4) of Schedule 6.
referring State : see subitem 2A(7) of Schedule 3.
single enterprise : see item 3 of Schedule 6.
source agreement , in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A.
source award , in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A.
source State :
(a) in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A; and
(b) in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A.
State and Territory interaction rules : see subitem 5A(2) of Schedule 3.
State award : see item 2 of Schedule 3A.
State employment agreement : see item 2 of Schedule 3A.
State industrial body means a commission performing or exercising functions under a State industrial law, and includes a member of such a commission and a registrar or deputy registrar of such a commission.
State industrial law means a law of a State that is a State or Territory industrial law as defined in section 26 of the FW Act.
State minimum wages instruments : see item 19 of Schedule 9.
State reference common rule : see subitem 2A(2) of Schedule 3.
State reference employee : see subitem 2A(3) of Schedule 3.
State reference employer : see subitem 2A(4) of Schedule 3.
State reference public sector employee : see subitem 2(2) of Schedule 6A.
State reference public sector employer : see subitem 2(3) of Schedule 6A.
State reference public sector modern award : see subitem 3(2) of Schedule 6A.
State reference public sector modern awards objective : see subitem 7(2) of Schedule 6A.
State reference public sector transitional award : see subitem 2(1) of Schedule 6A.
State reference public sector transitional award modernisation process : see subitem 3(1) of Schedule 6A.
State reference transitional award : see subitem 2A(1) of Schedule 3.
State reference transitional award or common rule means a State reference transitional award or a State reference common rule.
take - home pay : see subitem 31(2) of Schedule 3A, subitem 8(2) of Schedule 5, subitem 11(2) of Schedule 6 and subitem 13(2) of Schedule 6A.
take - home pay order : see subitems 32(1) and (2) of Schedule 3A, subitems 9(1) and (2) of Schedule 5, subitem 12(1) of Schedule 6 and subitem 14(1) of Schedule 6A.
this Act includes the regulations.
transitional APCS : see subitem 5(3) of Schedule 9.
transitional default casual loading : see subitem 5(3) of Schedule 9.
transitional instrument : see subitems 2(3) and (4) of Schedule 3.
transitional minimum wage instrument : see subitem 5(3) of Schedule 9.
transitional national minimum wage order : see subitem 12(2) of Schedule 9.
transitional pay equity order : see subitem 43(1) of Schedule 3 and subitem 30A(1) of Schedule 3A.
transitional Schedules : see item 1 of this Schedule.
transitional special FMW : see subitem 5(3) of Schedule 9.
transitional standard FMW : see subitem 5(3) of Schedule 9.
unlodged collective agreement means a collective agreement that, as at the WR Act repeal day, has not been lodged.
unlodged termination , in relation to a workplace agreement, means a termination of a workplace agreement approved in accordance with section 386 of the WR Act, but not lodged as at the WR Act repeal day.
unlodged variation , in relation to a workplace agreement, means a variation of the workplace agreement under Division 8 of Part 8 of the WR Act approved in accordance with section 373 of the WR Act, but not lodged as at the WR Act repeal day.
Victorian employment agreement : see item 41 of Schedule 3.
workplace agreement that operates from approval means a workplace agreement to which Subdivision C of Division 5A of Part 8 of the WR Act applies (see subsection 346K(1) of that Act).
WR Act : see item 3 of this Schedule.
WR Act instrument : see subitem 2(2) of Schedule 3.
WR Act repeal means the commencement of Schedule 1.
WR Act repeal day means the day on which the WR Act repeal commences.
3 Meaning of WR Act and FW Act
Meaning of WR Act
(1) WR Act means the Workplace Relations Act 1996 and, unless the contrary intention appears, means that Act as in force immediately before the WR Act repeal day.
(2) Unless a contrary intention appears, a reference to the WR Act, or to a provision or provisions of the WR Act, includes a reference to regulations made for the purposes of the WR Act, or for the purposes of the provision or provisions of the WR Act.
(3) If an item of the transitional Schedules provides for the WR Act, or a provision or provisions of the WR Act, to continue to apply on and after the WR Act repeal day (or during the bridging period), the WR Act, or the provision or provisions, continue to so apply despite the WR Act repeal.
Meaning of FW Act
(4) FW Act means the Fair Work Act 2009 .
(5) Unless a contrary intention appears, a reference to the FW Act, or to a provision or provisions of the FW Act, includes a reference to regulations made for the purposes of the FW Act, or for the purposes of the provision or provisions of the FW Act.
4 Expressions defined in the WR Act or the FW Act
(1) Unless a contrary intention appears:
(a) expressions used in a transitional Schedule that were defined in the WR Act (other than Schedule 1 to that Act) have the same meanings in that transitional Schedule as they had in that Act; and
(b) expressions used in a transitional Schedule that are defined in the FW Act have the same meanings in that transitional Schedule as they have in that Act.
(2) If:
(a) a provision of a transitional Schedule uses an expression defined in both the WR Act and the FW Act; and
(b) it is clear from the context of the provision which of those meanings is intended to apply in that provision;
the expression has that meaning.
(3) The regulations may define, or clarify the meaning of, an expression used in a transitional Schedule.
(4) This item does not apply to expressions defined in item 2.
5 Provisions that apply repealed provisions of the WR Act
(1) If a provision of a transitional Schedule provides for provisions (the applied WR Act provisions ) of the WR Act to apply on and after the WR Act repeal day, any other provisions of the WR Act, and any regulations or other instruments made under that Act, that are necessary for the effectual operation of the applied WR Act provisions also apply on and after that day.
(2) This item has effect:
(a) subject to a contrary intention in a provision of a transitional Schedule; and
(b) subject to the regulations.
6 Effect of Part 21 of the WR Act to be taken into account
(1) To avoid doubt, in interpreting provisions of the transitional Schedules, the effect on the WR Act of Part 21 of that Act (which deals with matters referred by Victoria) before the WR Act repeal day is to be taken into account.
Note: For example, a reference in Schedule 3 to a workplace agreement includes a reference to a workplace agreement made under Part 8 of the WR Act, as that Part had effect because of Part 21.
(2) If a provision of the transitional Schedules provides for the application or continued application of provisions of the WR Act on and after the WR Act repeal day, those provisions also have the effect they would have if Part 21 of that Act were still in force.
Note: For example, item 2 of Schedule 4 provides for the continued application during the bridging period of Divisions 3, 4, 5 and 6 of Part 7 of the WR Act. The continued application of those Divisions also includes the extended effect those Divisions would have if Part 21 were still in force.
(3) This item has effect:
(a) subject to a contrary intention; and
(b) subject to the regulations.
Part 2 -- Regulations about transitional matters
7 General power for regulations to deal with transitional matters
(1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following:
(a) the transition from the regime provided for by the WR Act (and any Acts that amended that Act) to the regime provided for by the FW Act;
(b) the amendments and repeals made by the Schedules to this Act;
(c) the transition from the regime provided for by State industrial laws of Division 2B referring States to the regime provided for by this Act and the FW Act, including:
(i) the transition from State awards and State employment agreements to Division 2B State instruments; and
(ii) the transition from Division 2B State instruments to modern awards and enterprise agreements;
(d) the amendments and repeals made by the Fair Work Amendment (State Referrals and Other Measures Act) 2009 .
(2) Without limiting subitem (1), regulations made for the purpose of that subitem may do any of the following:
(a) modify provisions of the FW Act, or provide for the application (with or without modifications) of provisions of the FW Act to matters to which they would otherwise not apply;
(b) provide for the application (with or without modifications) of provisions of the WR Act on and after the WR Act repeal day;
(c) provide for the application (with or without modifications), as laws of the Commonwealth, of provisions of State industrial laws of Division 2B referring States on and after the Division 2B referral commencement.
8 Regulations relating to matters dealt with in the transitional Schedules
(1) The regulations may modify provisions of the transitional Schedules.
(2) If a provision of a transitional Schedule provides for repealed provisions of the WR Act to apply on and after the WR Act repeal day, the regulations may:
(a) modify the provisions; or
(b) make other provision relating to the application of the provisions.
(3) If a provision of a transitional Schedule provides for provisions of the FW Act to apply in relation to matters to which they would otherwise not apply, the regulations may:
(a) modify the provisions; or
(b) make other provision relating to the application of the provisions.
(4) The regulations may make other provision in relation to the matters dealt with in the transitional Schedules.
(5) The transitional Schedules have effect subject to regulations made for any of the purposes of this item.
9 Limitation on power to make regulations
(1) The regulations must not:
(a) modify provisions of Part 3 - 4 of the FW Act (which deals with right of entry); or
(b) modify provisions of the transitional Schedules that deal with right of entry.
(2) The regulations must not confer compliance powers on an inspector that are additional to the compliance powers under Part 5 - 2 of the FW Act.
(3) This item has effect despite items 7 and 8.
10 Other general provisions about regulations
(1) This item applies to regulations made for the purpose of any of the provisions of the transitional Schedules (including this Part).
(2) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to the regulations.
(3) If:
(a) regulations are expressed to commence from a date (the registration date ) before the regulations are registered under the Legislation Act 2003 ; and
(b) a person engaged in conduct before the registration date; and
(c) but for the retrospective effect of the regulations, the conduct would not have contravened a provision of:
(i) the WR Act (as it continues to apply because of this Act); or
(ii) this Act; or
(iii) the FW Act;
then a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of any of those Acts.
(4) The provisions of the transitional Schedules (including this Part) that provide for regulations to deal with matters do not limit each other.
Part 3 -- Conduct before WR Act repeal day etc.
11 Conduct before repeal--WR Act continues to apply
Conduct before repeal
(1) The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day.
Note: For continuation and cessation of WR Act bodies and offices on and after the WR Act repeal day, see item 7 of Schedule 18.
Processes begun before repeal to vary or terminate WR Act instruments
(1A) If:
(a) a process to vary or terminate a WR Act instrument is begun under the WR Act before the WR Act repeal day; and
(b) the WR Act instrument becomes a transitional instrument because of the operation of Part 2 of Schedule 3;
the WR Act continues to apply, on and after the WR Act repeal day, for the purposes of completing the process.
Orders made before repeal
(2) To avoid doubt, the WR Act continues to apply, on and after the WR Act repeal day, in relation to orders made under that Act, including as it continues to apply under subitem (1).
Item subject to this Act
(3) This item applies subject to this Act.
Note: For the purposes of transition from the WR Act to the FW Act, other provisions of this Act:
(a) modify or exclude the operation of the WR Act as it continues to apply under subitem (1); and
(b) provide for the continued operation of the WR Act (including in modified form) in relation to conduct that occurs on or after the WR Act repeal day.
12 FWC to take over some processes
(1) On and after the WR Act repeal day:
(a) an application, other than an interim application, that could have been made to any of the following because of item 11 may be made only to the FWC:
(i) the Commission;
(ii) the President;
(iii) a member of the Commission;
(iv) a Registrar; and
(b) an appeal to the Commission that could have been instituted because of item 11 may be instituted only as an appeal to the FWC; and
(c) a process (however described), other than an interim process, that could have been initiated by the Commission on its own motion because of item 11 may be initiated only by the FWC; and
(d) a matter that could have been referred to the Commission under section 46PW of the Australian Human Rights Commission Act 1986 because of item 11 is to be referred only to the FWC.
(2) For the purposes of subitem (1), a law of the Commonwealth that relates to an application, appeal, process or matter referred to in that subitem is to be read:
(a) as if a reference to a WR Act body or WR Act office were a reference to the FWC, as necessary; and
(b) with any other necessary modifications.
Note: For WR Act body and WR Act office : see subitem 7(1) of Schedule 18.
(3) Subitems (1) and (2) apply subject to this Act.
(4) In this item:
interim application means an application that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.
interim process means a process (however described) that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.
13 Regulations--conduct before repeal
The regulations may do one or more of the following:
(a) modify the operation of the WR Act as it applies under item 11;
(aa) provide that subitem 11(1A) does not apply in relation to specified processes;
(b) provide for any other matter that,
because of item 11, could have been dealt with by a WR Act body or a
person holding a WR Act office to be dealt with by the FWC, or by the FWC
only.