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FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 7 Enterprise agreements and workplace determinations made under the FW Act

FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 7

Enterprise agreements and workplace determinations made under the FW Act

Part   1 -- Preliminary

1   Meanings of employer and employee

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

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

Division   1--Enterprise agreements and variations made during bridging period must pass no - disadvantage test

2   Approval of agreement or variation by FWA--passing the no - disadvantage test

(1)   Paragraph   186(2)(d) of the FW Act (including as that paragraph has effect under subsection   211(3) of that Act) and subsection   211(5) of that Act apply in relation to:

  (a)   an enterprise agreement made during the bridging period; and

  (b)   a variation of an enterprise agreement, if the variation was made during the bridging period;

as if the words "better off overall test" were omitted and the words "no - disadvantage test as set out in Division   2 of Part   2 of Schedule   7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 " were substituted.

(2)   Paragraph   189(1)(b) of the FW Act applies in relation to an enterprise agreement made during the bridging period as if the words "better off overall test" were omitted and the words "no - disadvantage test as set out in Division   2 of Part   2 of Schedule   7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 " were substituted.

Note:   This means that section   193 (which deals with passing the better off overall test) and subsections   211(4) and (5) (which deal with applying the better off overall test to agreements as proposed to be varied) of the FW Act will have no effect in relation to the approval by FWA of agreements and variations during the bridging period.

Division   2--The no - disadvantage test

3   Definitions

(1)   In this Division:

award includes a State reference transitional award or common rule.

designated award , for an employee or employees who are or may be covered by an enterprise agreement, means an award determined by the FWA under item   8, and includes an award taken to be so designated in relation to the employee or employees under item   7 (unless a different award has been designated in relation to the employee or employees under item   8).

industrial instrument means any of the following:

  (a)   an AWA;

  (b)   a workplace agreement;

  (c)   a pre - reform AWA;

  (d)   a pre - reform certified agreement;

  (e)   a workplace determination (within the meaning of the WR Act);

  (f)   a section   170MX award;

  (g)   an old IR agreement;

  (h)   a preserved State agreement.

reference instrument has the meaning given by subitem   5(1).

relevant general instrument has the meaning given by subitem   5(2).

Application of this Division to variations

(2)   Unless the contrary intention appears, this Division applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement.

(3)   For the purposes of subitem   (2):

  (a)   a reference in a provision of this Division to an employee who is covered by the agreement is taken to be a reference to an employee who is one of the affected employees for the variation of the agreement (within the meaning of the FW Act); and

  (b)   a reference in a provision of this Division to the employees who are covered by the agreement is taken to be a reference to the affected employees for the variation; and

  (c)   a reference in a provision of this Division to an application for approval of the agreement under section   185 of the FW Act is taken to be a reference to an application for approval of a variation of the agreement under section   210 of that Act.

Application of this Division to prospective employees

(4)   For the purposes of applying this Division to an enterprise agreement, a reference to an employee who is covered by the enterprise agreement is, so far as the context permits, taken to include a reference to a person who may at a future time be covered by the enterprise agreement.

4   When does an agreement pass the no - disadvantage test?

(1)   An enterprise agreement passes the no - disadvantage test if FWA is satisfied that the agreement does not, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the agreement under any reference instrument relating to one or more of the employees.

(2)   For the purposes of subitem   (1):

  (a)   a law of a State or Territory that:

  (i)   relates to long service leave; and

  (ii)   applied, immediately before the application was made for approval of the agreement under section   185 of the FW Act, to an employee referred to in that subitem, or would have applied to such an employee if he or she had been employed by the employer at that time;

    is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and

  (b)   if, apart from this subitem, the only reference instrument relating to the employee is a designated award for the employee--the designated award is to be disregarded to the extent (if any) that it provides for long service leave.

Note:   An enterprise agreement made during the bridging period will prevail over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave (see item   17).

(3)   An enterprise agreement or a variation of an enterprise agreement is taken to pass the no - disadvantage test if there is no reference instrument in relation to any of the employees who are covered by the agreement.

(4)   To avoid doubt, if there is a reference instrument in relation to one or more, but not all, of the employees referred to in subitem   (1):

  (a)   if the agreement passes the no - disadvantage test under subitem   (1)--it passes the test in relation to all employees who are covered by the agreement; or

  (b)   if the agreement does not pass the no - disadvantage test under subitem   (1)--it does not pass the test in relation to any employees who are covered by the agreement.

Note 1:   In addition to the no - disadvantage test, during the bridging period, the Australian Fair Pay and Conditions Standard prevails over an enterprise agreement to the extent to which the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee or employees--see subitem   27(1).

Note 2:   From the FW (safety net provisions) commencement day, a term of an enterprise agreement has no effect to the extent it excludes the National Employment Standards or any provision of the National Employment Standards (see sections   55 and 56 of the FW Act).

Note 3:   This item applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement--see subitems   3(2) and (3).

Note 4:   See item   10 for how FWA makes decisions under this item.

(5)   For the purposes of determining whether an enterprise agreement as proposed to be varied passes the no - disadvantage test, FWA must disregard any individual flexibility arrangement that has been agreed to by an affected employee and his or her employer under the flexibility term in the agreement.

5   Reference instruments etc.

(1)   A reference instrument , in relation to employees who are covered by an enterprise agreement, is:

  (a)   any relevant general instrument; or

  (b)   if there is no relevant general instrument--any designated award;

for one or more of the employees.

(2)   A relevant general instrument , for an employee who is covered by an enterprise agreement, is an award - based transitional instrument:

  (a)   that regulates, or would but for an enterprise agreement or another industrial instrument having come into operation regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the enterprise agreement; and

  (b)   that applied, or would but for an enterprise agreement or another industrial instrument having come into operation have applied, to the employee's employer immediately before the day on which the application for approval of the agreement was made under section   185 of the FW Act.

6   Enterprise agreement to be tested as at test time

(1)   In deciding whether an enterprise agreement passes, or does not pass, the no - disadvantage test, FWA must consider it as in existence at the test time.

(2)   The test time is the time when the application for approval of the agreement was made under section   185 of the FW Act.

7   Designated awards--before application for FWA approval

(1)   FWA may, on application by an employer, determine that an award is a designated award for an employee or class of employees of the employer.

(2)   FWA may make a determination under this item only if it is satisfied that:

  (a)   the employee or employees are or may be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:

  (i)   are usually regulated by an award; or

  (ii)   would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and

  (b)   unless there is a designated award for the employee or employees, there would be no reference instrument relating to the employee or employees; and

  (c)   there is an award that satisfies the requirements specified in subitem   (3).

(3)   An award or awards determined by FWA under this item:

  (a)   must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed or to be performed by the employee or employees; and

  (b)   must, in the opinion of FWA, be an award or awards that would be appropriate for the purpose referred to in paragraph   8(3)(b) if an application were made for approval of an enterprise agreement under section   185 of the FW Act; and

  (c)   must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).

(4)   An award determined under this item in relation to an employee or employees is taken to be the designated award determined by FWA under item   8 in relation to the employee or employees if, later, an application is made for approval of an enterprise agreement under section   185 of the FW Act, in relation to the employee or the employees.

(5)   Despite subitem   (4), FWA may determine under item   8 that another award is a designated award in relation to the employee, or in relation to some or all of the employees, if:

  (a)   FWA becomes aware of information that was not available to it at the time of the determination under subitem   (1); and

  (b)   FWA is satisfied that, had that information been available to it at that time, FWA would have determined under subitem   (1) the other award to be the designated award.

(6)   FWA may determine different awards under subitem   (1) in relation to different employees.

(7)   In this item, a reference to an employee or employees of an employer includes a reference to a person or persons who may become an employee or employees of the employer.

(8)   A determination made under this item is not a legislative instrument.

8   Designated awards--after application for FWA approval

(1)   This item applies to an enterprise agreement if there is no relevant general instrument in relation to an employee who is, or a class of employees who are, covered by the agreement.

(2)   FWA must determine that an award is a designated award for the employee or employees referred to in subitem   (1), if it is satisfied that:

  (a)   on the date on which the application for approval of the enterprise agreement was made under section   185 of the FW Act, the employee or employees are or would be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:

  (i)   are usually regulated by an award; or

  (ii)   would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and

  (b)   there is an award that satisfies the requirements specified in subitem   (3).

(3)   An award or awards determined by FWA under this item:

  (a)   must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed by the employee or employees under the enterprise agreement concerned; and

  (b)   must, in the opinion of FWA, be appropriate for the purpose of deciding whether an enterprise agreement passes the no - disadvantage test; and

  (c)   must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).

(4)   FWA may determine different awards under subitem   (2) in relation to different employees.

(5)   A determination made under this item is not a legislative instrument.

9   Effect of State awards etc.

For the purposes of paragraphs 7(2)(a) and 8(2)(a), an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by an employee are usually regulated by an award is taken to include an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee:

  (a)   were, immediately before the reform commencement, usually regulated by a State award (within the meaning of the WR Act); or

  (b)   would, but for an industrial instrument or a State employment agreement (within the meaning of the WR Act) having come into operation, usually have been so regulated immediately before the reform commencement.

10   Matters taken into account when testing agreement etc.

(1)   In deciding whether an enterprise agreement passes, or does not pass, the no - disadvantage test, FWA:

  (a)   must have regard to the work obligations of the employee or employees under the enterprise agreement; and

  (b)   may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:

  (i)   the employer;

  (ii)   the employee, or some or all of the employees, who are covered by the enterprise agreement;

  (iii)   a bargaining representative in relation to the agreement.

(2)   In deciding whether to determine that an award is a designated award in relation to an employee or employees of an employer, FWA may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:

  (a)   the employer;

  (b)   the employee or employees;

  (c)   if the determination would be made under item   8--a bargaining representative in relation to the agreement.

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

Division   1--Requirements relating to approval

11   Approval of agreement by FWA--interaction with the National Employment Standards

Paragraph   186(2)(c) of the FW Act (which deals with terms that contravene section   55 of that Act) does not apply in relation to:

  (a)   an enterprise agreement made during the bridging period; or

  (b)   a variation of an enterprise agreement, if the variation is made during the bridging period.

Note:   Section   55 of the FW Act (which deals with the interaction between the National Employment Standards and enterprise agreements etc.) will apply after the end of the bridging period. Section   56 of that Act provides that a term of an enterprise agreement has no effect to the extent that it contravenes section   55.

12   Approval of agreement by FWA--term about settling disputes

Subparagraph   186(6)(a)(ii) of the FW Act (which deals with a requirement for an enterprise agreement to have a term about settling disputes in relation to the National Employment Standards) applies in relation to:

  (a)   an enterprise agreement made during the bridging period; or

  (b)   a variation of an enterprise agreement, if the variation is made during the bridging period;

as if the words "as those provisions apply after the end of the bridging period" were added after "National Employment Standards".

Note:   For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item   27.

13   Approval of agreement by FWA--requirements relating to particular kinds of employees

(1)   Subsection   187(4) of the FW Act (which deals with requirements relating to particular kinds of employees) does not apply in relation to:

  (a)   an enterprise agreement made during the bridging period; or

  (b)   a variation of an enterprise agreement, if the variation is made during the bridging period;

except in so far as that subsection requires FWA to be satisfied as referred to in section   200 of the FW Act.

(2)   Section   200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the agreement or variation as if:

  (a)   references in that section to a modern award were references to an award, a State reference transitional award or common rule, or a notional agreement preserving State awards; and

  (b)   references in that section to outworker terms were references to terms that are (or that would be, if the terms were in an award) outworker terms as defined in section   564 of the WR Act.

Division   2--Base rate of pay

14   Base rate of pay under enterprise agreements

The FW Act applies during the bridging period as if section   206 (which deals with base rate of pay under enterprise agreements) were omitted.

Division   3--No extensions of time

15   No extension of time to apply for approval of agreement made in final 14 days of bridging period

Paragraph   185(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of an enterprise agreement) does not apply in relation to an enterprise agreement made during the period of 14 days ending at the end of the bridging period.

Note:   If an application for approval of an enterprise agreement referred to in this item is not made to FWA within 14 days of it being made:

(a)   FWA cannot approve the enterprise agreement; but

(b)   another enterprise agreement may be made in accordance with Part   2 - 4 of the FW Act.

16   No extension of time to apply for approval of variation of agreement made in final 14 days of bridging period

Paragraph   210(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of a variation of an enterprise agreement) does not apply in relation to a variation of an enterprise agreement, if that variation was made during the period of 14 days ending at the end of the bridging period.

Note:   If an application for approval of a variation referred to in this item is not made to FWA within 14 days of it being made:

(a)   FWA cannot approve the variation; but

(b)   another variation may be made in accordance with Part   2 - 4 of the FW Act.

Division   4--State and Territory laws dealing with long service leave

17   Enterprise agreement made during the bridging period prevails over State and Territory laws dealing with long service leave

Despite subsection   29(2) of the FW Act, an enterprise agreement made during the bridging period prevails over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave.

Note:   A term of such an enterprise agreement will still apply subject to a law of a State or Territory so far as that law is otherwise covered by paragraph   29(2)(a) or (b) of the FW Act.

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

18   Application of better off overall test to making of enterprise agreements that cover unmodernised award covered employees

(1)   This item applies in relation to an enterprise agreement made after the end of the bridging period if one or more of the employees covered by the agreement is an unmodernised award covered employee.

Non - greenfields agreements

(2)   Despite section   193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:

  (a)   the FWC is satisfied as referred to in subsection   (1) of that section in relation to the agreement; and

  (b)   the FWC is satisfied, as at the test time, that each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award - based transitional instrument and transitional APCS applied to the employee.

Greenfields agreements

(3)   Despite section   193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:

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

  (b)   the FWC is satisfied, as at the test time, that each prospective unmodernised award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant award - based transitional instrument and transitional APCS applied to the employee.

FWC may assume employee better off overall in certain circumstances

(4)   For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award - based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

State reference transitional awards or common rules: transitional APCSs not relevant

(5)   If the relevant award - based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.

Note:   State reference transitional awards or common rules contain terms dealing with wages.

19   Application of better off overall test to variation of enterprise agreements that cover unmodernised award covered employees

(1)   This item applies in relation to a variation of an enterprise agreement if:

  (a)   the variation is made after the end of the bridging period; and

  (b)   one or more of the employees who are covered by the agreement is an unmodernised award covered employee.

(2)   Despite subsections   211(4) and (5) of the FW Act, subitems   (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.

Modification of the better off overall test

(3)   An enterprise agreement as proposed to be varied passes the better off overall test if the FWC is satisfied, as at the test time, that:

  (a)   each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and

  (b)   each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award - based transitional instrument and transitional APCS applied to the employee.

FWC may assume employee better off overall in certain circumstances

(4)   For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award - based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

FWC must disregard individual flexibility arrangement

(5)   For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.

State reference transitional awards or common rules: transitional APCSs not relevant

(6)   If the relevant award - based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.

Note:   State reference transitional awards or common rules contain terms dealing with wages.

20   Definitions

In this Part:

prospective unmodernised award covered employee , for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement:

  (a)   would be covered by the agreement; and

  (b)   would be covered by an award - based transitional instrument (the relevant award - based transitional instrument ) that:

  (i)   is in operation; and

  (ii)   would cover the person in relation to the work that he or she would perform under the agreement; and

  (iii)   covers the employer.

test time :

  (a)   for the purposes of item   18--means the time the application for approval of the agreement by the FWC was made under section   185 of the FW Act; and

  (b)   for the purposes of item   19--means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section   210 of that Act.

unmodernised award covered employee , for an enterprise agreement, means an employee who:

  (a)   is covered by the agreement; and

  (b)   at the test time, is covered by an award - based transitional instrument (the relevant award - based transitional instrument ) that:

  (i)   is in operation; and

  (ii)   covers the employee in relation to the work that he or she is to perform under the agreement; and

  (iii)   covers his or her employer.

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

20A   Application of better off overall test to making of enterprise agreements that cover Division   2B State award covered employees

(1)   This item applies in relation to an enterprise agreement made on or after the Division   2B referral commencement, if one or more of the employees covered by the agreement is a Division   2B State award covered employee.

Non - greenfields agreements

(2)   Despite section   193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:

  (a)   the FWC is satisfied as referred to in subsection   (1) of that section, and paragraph   (2)(b) of item   18 of this Schedule, in relation to the agreement (to the extent that those provisions are applicable); and

  (b)   the FWC is satisfied, as at the test time, that each Division   2B State award covered employee, and each prospective Division   2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division   2B State award applied to the employee.

Note:   Section   193 of the FW Act and item   18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to Division   2B State award covered employees.

Greenfields agreements

(3)   Despite section   193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:

  (a)   the FWC is satisfied as referred to in subsection   (3) of that section and paragraph   (3)(b) of item   18 of this Schedule in relation to the agreement (to the extent that those provisions are applicable); and

  (b)   the FWC is satisfied, as at the test time, that each prospective Division   2B State award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division   2B State award applied to the employee.

Note:   Section   193 of the FW Act and item   18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to prospective Division   2B State award covered employees.

FWC may assume employee better off overall in certain circumstances

(4)   For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division   2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

20B   Application of better off overall test to variation of enterprise agreements that cover Division   2B State award covered employees

(1)   This item applies in relation to a variation of an enterprise agreement if:

  (a)   the variation is made on or after the Division   2B referral commencement; and

  (b)   one or more of the employees covered by the agreement is a Division   2B State award covered employee.

(2)   Despite subsections   211(4) and (5) of the FW Act, subitems   (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.

Modification of the better off overall test

(3)   An enterprise agreement as proposed to be varied passes the better off overall test only if:

  (a)   the FWC is satisfied, as at the test time, as mentioned in subitem   19(3) of this Schedule in relation to the agreement as proposed to be varied (to the extent that subitem   19(3) is applicable); and

  (b)   the FWC is satisfied, as at the test time, that each Division   2B State award covered employee, and each prospective Division   2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division   2B State award applied to the employee.

Note:   Item   19 of this Schedule deals with testing enterprise agreements as proposed to be varied against other instruments (such as modern awards). A variation to which this subitem applies will not be tested against one or more such other instruments in relation to Division   2B State award covered employees.

FWC may assume employee better off overall in certain circumstances

(4)   For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division   2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

FWC must disregard individual flexibility arrangement

(5)   For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by a Division   2B State award covered employee and his or her employer under the flexibility term in the agreement.

20C   Definitions

In this Part:

Division   2B State award covered employee , for an enterprise agreement, means an employee who:

  (a)   is covered by the agreement; and

  (b)   at the test time, is covered by a Division   2B State award (the relevant Division   2B State award ) that:

  (i)   is in operation; and

  (ii)   covers the employee in relation to the work that he or she is to perform under the agreement; and

  (iii)   covers his or her employer.

prospective Division   2B State award covered employee , for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement:

  (a)   would be covered by the agreement; and

  (b)   would be covered by a Division   2B State award (the relevant Division   2B State award ) that:

  (i)   is in operation; and

  (ii)   would cover the person in relation to the work that he or she would perform under the agreement; and

  (iii)   covers the employer.

test time :

  (a)   for the purposes of item   20A--means the time the application for approval of the enterprise agreement by the FWC was made under section   185 of the FW Act; and

  (b)   for the purposes of item   20B--means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section   210 of that Act.

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

21   Application made during bridging period for special low - paid workplace determination--general requirement relating to minimum safety net

Subsection   262(3) of the FW Act (which deals with a general requirement relating to the minimum safety net) applies in relation to an application for a special low - paid workplace determination made during the bridging period as if the words "modern awards together with the National Employment Standards" were omitted and the words "awards (including State reference transitional awards and common rules) together with the Australian Fair Pay and Conditions Standard" were substituted.

22   Special low - paid workplace determination--employer must not previously have been covered by agreement - based transitional instrument

(1)   Subsection   263(3) of the FW Act (which deals with additional requirements for making a special low - paid workplace determination) applies in relation to a workplace determination, whether made during or after the bridging period, as if the reference in that subsection to an enterprise agreement included a reference to a collective agreement - based transitional instrument.

(2)   However, subitem   (1) does not apply in relation to a workplace determination if:

  (a)   the collective agreement - based transitional instrument has ceased to operate; and

  (b)   the FWC considers that it is appropriate in the circumstances to make the workplace determination.

(3)   In making a decision for the purposes of paragraph   (2)(b) of this item, the FWC must take into account the objects set out in section   241 of the FW Act.

23   Core terms of workplace determinations--assessment of determination made during bridging period against the no disadvantage test

Subsection   272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to a workplace determination made during the bridging period as if the words "better off overall test under section   193" were omitted and the words "no - disadvantage test as set out in Division   2 of Part   2 of Schedule   7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 " were substituted.

24   Core terms of workplace determinations--assessment of determination made after bridging period that covers unmodernised award covered employees against the better off overall test

(1)   This item applies in relation to a workplace determination made after the end of the bridging period if one or more of the employees who will be covered by the determination is an unmodernised award covered employee (within the meaning of Part   4).

(2)   Subsection   272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to the workplace determination as if the words "under section   193" were omitted and the words "under item   18 of Schedule   7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 " were substituted.

25   Core terms of workplace determinations--safety net requirements

(1)   This item applies in relation to a workplace determination made during the bridging period.

(2)   Subsection   272(5) of the FW Act (which deals with terms relating to safety net requirements) does not apply in relation to the workplace determination, except in so far as that subsection prevents a workplace determination from including a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement because of the operation of section   200 of that Act (which deals with requirements relating to outworkers).

Note:   Section   55 of the FW Act (which deals with the interaction between the National Employment Standards and workplace determinations etc.) will apply after the end of the bridging period. Section   56 of that Act provides that a term of a workplace determination has no effect to the extent that it contravenes section   55.

(3)   Section   200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the workplace determination as if:

  (a)   references in that section to a modern award were references to an award or a State reference transitional award or common rule; and

  (b)   references in that section to outworker terms were references to outworker terms as defined in section   564 of the WR Act.

26   Mandatory terms of workplace determinations--term about settling disputes

(1)   This item applies in relation to a workplace determination made during the bridging period.

(2)   Paragraph   273(2)(b) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes in relation to the National Employment Standards) applies in relation to the workplace determination as if the words "as the National Employment Standards apply after the end of the bridging period" were added after "National Employment Standards".

(3)   Subsection   273(3) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes) applies in relation to the workplace determination as if the reference to paragraph   186(6)(a) of the FW Act were a reference to that paragraph in its application to an enterprise agreement made during the bridging period (see item   12).

Note:   For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item   27.

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

27   Interaction with Australian Fair Pay and Conditions Standard during bridging period

Continued application of Australian Fair Pay and Conditions Standard

(1)   The Australian Fair Pay and Conditions Standard, in its application during the bridging period under item   2 of Schedule   4 and item   5 of Schedule   9 prevails over an enterprise agreement or a workplace determination that applies to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee.

Disputes about Australian Fair Pay and Conditions Standard to be resolved using the model dispute resolution process

(2)   A dispute about:

  (a)   whether the Australian Fair Pay and Conditions Standard provides a more favourable outcome for an employee in a particular respect than an enterprise agreement or workplace determination that applies to that employee; or

  (b)   what the outcome is for an employee in a particular respect under the Australian Fair Pay and Conditions Standard, where an enterprise agreement or a workplace determination applies to that employee;

is to be resolved using the model dispute resolution process referred to in Part   13 of the WR Act.

(3)   For the purposes of subitem   (2), Divisions   2 and 3 of Part   13 of the WR Act apply as if a reference in those Divisions to the Commission or the Industrial Registrar were a reference to FWA.

(4)   The fact that the model dispute resolution process applies in relation to the dispute does not affect any right of a party to the dispute to take court action to resolve it.

(5)   To avoid doubt, subitems   (2) and (3) apply despite:

  (a)   subsection   694(2) of the WR Act (which deals with when the model dispute resolution process applies); and

  (b)   subsection   595(1) of the FW Act (which deals with when FWA may deal with a dispute).

Continued application of regulations

(6)   Despite the WR Act repeal, regulations made for the purposes of subsection   172(4) of the WR Act continue to apply during the bridging period as if a reference in those regulations to a workplace agreement were a reference to an enterprise agreement and a workplace determination.

Australian Fair Pay and Conditions Standard cannot be excluded

(7)   A term of an enterprise agreement or a workplace determination has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard or any part of it.

Meaning of workplace determination

(8)   In this item:

workplace determination means a workplace determination made under the FW Act.

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

28   Operation of better off overall test if a transitional pay equity order applies to employer

(1)   This item applies to an enterprise agreement, or a variation of an enterprise agreement, if:

  (a)   an application for approval of the agreement or variation has been made under the FW Act; and

  (b)   the FWC must decide whether the agreement, or the agreement as proposed to be varied, passes the better off overall test; and

  (c)   an employer covered by the agreement, or the agreement as proposed to be varied, is an employer to which a transitional pay equity order applies; and

  (d)   an employee covered by the agreement, or the agreement as proposed to be varied, is an affected employee of the employer referred to in paragraph   (c).

(2)   For the purposes of determining whether the affected employee would be better off overall if the agreement, or the agreement as proposed to be varied, applied to the employee than if the relevant modern award applied to the employee, the base rate of pay payable under the relevant modern award to the employee is taken to be increased so that it is equal to the amount payable to the employee under the transitional pay equity order.

Note:   For the meanings of transitional pay equity order and affected employee , see item   2 of Schedule   2.

Part   8--Transitional provisions relating to termination and sunsetting of enterprise agreements made during the bridging period

 

29   Terminating under the FW Act enterprise agreements made during the bridging period

Subsection   615A(3) of the FW Act does not apply in relation to an enterprise agreement made during the bridging period.

30   Automatic sunsetting of all remaining enterprise agreements made during the bridging period

Automatic sunsetting

(1)   An enterprise agreement made during the bridging period ceases to operate at the end of the grace period for the agreement if the agreement has not already ceased to operate before that time.

(2)   The grace period for an enterprise agreement made during the bridging period is:

  (a)   subject to paragraph   (b), the period of 12 months (the default period ) beginning on the day Part   13 of Schedule   1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or

  (b)   if the default period is extended for the agreement on one or more occasions under subitem   (6) or paragraph   (10)(e)--the default period as so extended.

Employer to give notice to employees

(3)   An employer covered by an enterprise agreement made during the bridging period must, before the end of 6 months beginning on the day Part   13 of Schedule   1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the agreement and employed by the employer at the end of that period written notice advising the employee:

  (a)   that the employee is covered by an enterprise agreement made during the bridging period; and

  (b)   that the agreement will terminate unless an application is made to the FWC under subitem   (4), before the end of the period of 12 months beginning on the day that Part   commences, for the FWC to extend the default period for the agreement; and

  (c)   of the day on which that Part   commences.

Note:   For compliance with this obligation, see item   4C of Schedule   16.

Application to FWC for extension of default period

(4)   Any of the following may apply to the FWC, before the end of the grace period for an enterprise agreement made during the bridging period, for the FWC to extend the default period for the agreement for a period of no more than 4 years:

  (a)   an employer covered by the agreement;

  (b)   an employee covered by the agreement;

  (c)   an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement.

(5)   An application under subitem   (4) must be accompanied by:

  (a)   a copy of the agreement; and

  (b)   any declarations that are required by the procedural rules of the FWC to accompany the application.

Extension of default period

(6)   If an application is made under subitem   (4), the FWC must extend the default period for the enterprise agreement made during the bridging period for a period of no more than 4 years if the FWC is satisfied that:

  (a)   subitem   (7) or (8) applies and it is otherwise appropriate in the circumstances to do so; or

  (b)   it is reasonable in the circumstances to do so.

(7)   This subitem applies if:

  (a)   the application is made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the enterprise agreement made during the bridging period; and

  (b)   bargaining for the proposed enterprise agreement is occurring.

(8)   This subitem applies if it is likely that, as at the time the application is made, the award covered employees for the agreement under subitem   (9), viewed as a group, would be better off overall if the agreement applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.

(9)   For the purposes of subitem   (8), the award covered employees for an enterprise agreement made during the bridging period are the employees who:

  (a)   are covered by the agreement; and

  (b)   at the time an application is made under subitem   (4) in relation to the agreement, are covered by one or more modern awards (the relevant modern awards ) that:

  (i)   are in operation; and

  (ii)   cover the employees in relation to the work that the employees are to perform under the agreement; and

  (c)   are employed at that time by an employer who is covered by the agreement and by one or more of the relevant modern awards.

Publication of decisions etc.

(9A)   The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:

  (a)   a decision under subitem   (6);

  (b)   any written reasons that the FWC gives in relation to such a decision;

  (c)   if the decision is to extend the default period for the relevant enterprise agreement--the agreement.

The FWC must do so as soon as practicable after making the decision.

(9B)   Paragraph   (9A)(b) applies subject to any order made under section   594 of the FW Act.

Pending applications

(10)   If:

  (a)   an application is made under subitem   (4) in relation to an enterprise agreement made during the bridging period; and

  (b)   the FWC has not made a decision on the application at a time (the critical time ) that is immediately before what would (apart from this subitem) be the end of the grace period for the agreement;

then:

  (c)   the FWC must make the decision on the application after the critical time; and

  (d)   the decision on the application is taken to have been made at the critical time; and

  (e)   if the FWC's decision on the application is to refuse to extend the default period for the agreement under subitem   (6)--the FWC must extend the default period until the end of:

  (i)   subject to subparagraph   (ii), the day the refusal decision is made; or

  (ii)   if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made--that later day.

Effect of sunsetting

(11)   If an enterprise agreement made during the bridging period ceases to operate in accordance with subitem   (1), that does not affect:

  (a)   any right or liability that a person acquired, accrued or incurred before the agreement ceased to operate; or

  (b)   any investigation, legal proceeding or remedy in respect of any such right or liability.

(12)   Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the agreement had not ceased to operate.

(13)   Subitems   (11) and (12) have effect subject to a contrary intention in this Act or in the FW Act.