FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 8 Workplace agreements and workplace determinations made under the WR Act
FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 8
Workplace agreements and workplace determinations made under the WR Act1 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 workplace agreements
2 Division applies to collective agreements made before WR Act repeal day
This Division applies to a collective agreement made before the WR Act repeal day.
Note: Schedule 3 (which deals with transitional instruments) also contains rules that apply to such agreements.
3 General rule--continued application of lodgment provisions, no - disadvantage test and prohibited content rules, etc.
The following provisions of Part 8 of the WR Act continue to apply in relation to the collective agreement on and after the WR Act repeal day:
(a) subsections 337(8), (9), (10) and (11) (which deal with non - compliance with access and information requirements);
(b) section 341 (which deals with lodging unapproved agreements);
(c) Division 5 of Part 8 (which deals with lodgment);
(d) Division 5A of Part 8 (which deals with the no - disadvantage test);
(e) subsections 347(1) and (3) (which deal with when a workplace agreement comes into operation);
(f) section 347A (which deals with the operation of workplace agreements);
(g) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);
(h) subsection 401(1) and section 412A.
Note 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the no - disadvantage test and prohibited content for collective agreements made before the WR Act repeal day, subject to the modifications set out in this Division. The rules about variation and termination of such collective agreements, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).
Note 2: The rules requiring a collective agreement to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).
4 Modification--unlodged collective agreements must be lodged within 14 days
(1) Despite item 3, if the collective agreement is an unlodged collective agreement:
(a) the Workplace Authority Director must not consider whether the agreement passes the no - disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 3, unless:
(i) the agreement is lodged before the end of the period (the cut - off period ) of 14 days referred to in subsection 342(1) or (2) of that Act; and
(ii) for a union collective agreement--the agreement was approved before the WR Act repeal day; and
(b) if the agreement is not lodged before the end of the cut - off period, it does not come into operation; and
(c) subsection 342(3) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 3, does not apply to the lodgment of the agreement.
Note: The general effect of this provision is that unlodged collective agreements (other than union collective agreements) must be lodged within 14 days of being made in order to come into operation. Unlodged union collective agreements must have been approved before the WR Act repeal day and be lodged within 14 days of that approval in order to come into operation. However, late lodgment will not give rise to a civil remedy.
(2) If the collective agreement is lodged after the end of the cut - off period, the Workplace Authority Director must give a written notice, stating that the agreement cannot come into operation because it was lodged after the end of the cut - off period, to the following:
(a) the employer to which the agreement would have applied if it had come into operation;
(b) if the agreement is a union collective agreement or a multiple - business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act--the organisation or organisations that would have been covered by the agreement if it had come into operation.
5 Modification--limits on variation of a collective agreement that operates from approval for the purpose of passing the no - disadvantage test
(1) Despite item 3, if the collective agreement is a workplace agreement that operates from approval, the rules in this item also apply.
Note: The general effect of this item is that a collective agreement that operates from approval can only be varied for the purpose of passing the no - disadvantage test if a variation for that purpose is lodged within a specified period.
(2) If, as at the WR Act repeal day:
(a) a notice under section 346M of the WR Act about whether the agreement passes the no - disadvantage test has not been given; or
(b) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no - disadvantage test has been given but a variation of the agreement, for the purposes of passing that test, has not been made; or
(c) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no - disadvantage test has been given and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;
then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 3, has effect in relation to the collective agreement subject to subitems (3) and (5).
(3) Section 346N of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no - disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:
(a) the period of 37 days beginning on whichever of the following days is later:
(i) the WR Act repeal day;
(ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement; or
(b) if the period is extended under subitem (4)--the period as extended.
(4) The Workplace Authority Director may extend the period referred to in paragraph (3)(b) in relation to a particular agreement in circumstances prescribed by the regulations.
(5) Section 346Q of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no - disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).
6 Division applies to variations of collective agreements made before WR Act repeal day
This Division applies to a variation of a collective agreement under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.
7 General rule--continued application of lodgment provisions and no - disadvantage test to ordinary variations
The following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day:
(a) Division 5A of Part 8 (which deals with the no - disadvantage test);
(b) subsections 370(8), (9), (10) and (11) (which deal with non - compliance with access and information requirements);
(c) section 374 (which deals with lodgment of unapproved variations);
(d) Subdivision C of Division 8 of Part 8 (which deals with lodgment);
(e) Subdivision D of Division 8 of Part 8 (which deals with when a variation comes into operation);
(f) subsection 401(1) and section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules about lodgment and the no - disadvantage test for variations under Division 8 made before the WR repeal day, subject to the modifications set out in this Division.
8 Modification--unlodged variations must be lodged within 14 days
(1) Despite item 7, if the variation is an unlodged variation:
(a) the Workplace Authority Director must not consider whether the varied agreement passes the no - disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 7, unless:
(i) the variation is lodged before the end of the period (the cut - off period ) of 14 days referred to in subsection 375(1) of that Act; and
(ii) for a variation of a union collective agreement or a union greenfields agreement--the variation was approved before the WR Act repeal day; and
(b) subsection 375(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 7, does not apply to the variation.
Note: The general effect of this provision is that unlodged variations of collective agreements must be lodged within 14 days of being approved in order to come into operation. Unlodged variations of union collective agreements and union greenfields agreements must also have been approved before the WR Act repeal day. However, late lodgment will not give rise to a civil remedy.
(2) If the variation is lodged after the end of the cut - off period, the Workplace Authority Director must give a written notice, stating that the variation cannot come into operation because it was lodged after the end of the cut - off period, to the following:
(a) the employer to which the agreement applies;
(b) if the agreement is a union collective agreement or a multiple - business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act--the organisation or organisations covered by the agreement.
9 Modification--limits on varying variations for the purpose of passing the no - disadvantage test
(1) Despite item 7, if, as at the WR Act repeal day:
(a) a notice under section 346M of the WR Act about whether the agreement as varied passes the no - disadvantage test has not been given in relation to the variation; or
(b) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no - disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or
(c) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no - disadvantage test has been given in relation to the variation and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;
then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4).
(2) Section 346N of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no - disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:
(a) the period of 37 days beginning on whichever of the following days is later:
(i) the WR Act repeal day;
(ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement as varied; or
(b) if the period is extended under subitem (3)--the period as extended.
(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.
(4) Section 346Q of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no - disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).
10 Termination by approval general rule--continued application of lodgment provisions
(1) This item applies to a termination of a collective agreement, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:
(a) subsection 381(2) (which deals with when a workplace agreement is terminated);
(b) subsections 384(4), (5) and (6) (which deal with non - compliance with information requirements);
(c) section 387 (which deals with lodgment of unapproved terminations);
(d) Subdivision C of Division 9 of Part 8 (which deals with lodgment);
(e) section 398 (which deals with the effect of non - compliance);
(f) subsection 401(1) and section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace agreements approved before the WR Act repeal day, subject to the modifications set out in item 11. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
11 Modification--unlodged terminations must be lodged within 14 days
(1) Despite item 10, if a termination to which that item applies is an unlodged termination:
(a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut - off period ) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 10; and
(b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 10, does not apply to the termination.
Note: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.
(2) If the termination is lodged after the end of the cut - off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut - off period, to the following:
(a) the employer to which the agreement applies;
(b) if the agreement is a union collective agreement or a multiple - business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act--the organisation or organisations covered by the agreement.
12 Unilateral termination of collective agreement in manner provided for in agreement general rule--continued application of lodgment provisions
(1) This item applies to a termination of a collective agreement if a declaration to terminate the agreement is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the agreement) before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:
(a) subsection 381(2) (which deals with when a workplace agreement is terminated);
(b) section 396 (which deals with receipts for lodgment of declarations);
(c) section 397 (which deals with giving notice after lodging notice of termination);
(d) section 398 (which deals with the effect of non - compliance);
(e) section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to unilateral terminations of workplace agreements, if a declaration to terminate the agreement has been lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
13 Termination by the Commission--Commission may continue to deal with applications made before the WR Act repeal day
(1) This item applies to a collective agreement in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the agreement on and after the WR Act repeal day:
(a) subsection 381(2) (which deals with when a collective agreement is terminated);
(b) subsections 397A(1) and (3) (which deal with when the Commission may terminate a collective agreement);
(c) section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace agreements by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
Division 4--Transitional provisions relating to ITEAs made before the WR Act repeal day
14 Continued application of Part 8 to ITEAs made before the WR Act repeal day
(1) This item applies to an ITEA made before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:
(a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no - disadvantage test);
(b) subsection 347(1) (which deals with when a workplace agreement comes into operation);
(c) section 347A (which deals with the operation of workplace agreements);
(d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);
(e) subsection 401(1) and section 412A.
Note 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the no - disadvantage test and prohibited content in relation to ITEAs made before the WR Act repeal day, subject to the modification set out in item 15. The rules about making ITEAs after that day are contained in Division 7 of this Part. The rules about variation and termination of ITEAs after that day, and some other rules, are contained in Schedule 3 (which deals with transitional instruments).
Note 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).
15 Modification--limits on variation of an ITEA that operates from approval for the purpose of passing the no - disadvantage test
(1) Despite item 14, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.
Note: The general effect of this item is that an ITEA that operates from approval can only be varied for the purpose of passing the no - disadvantage test if a variation for that purpose is lodged within a specified period.
(2) If, as at the WR Act repeal day:
(a) a notice under section 346M of the WR Act about whether the ITEA passes the no - disadvantage test has not been given; or
(b) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no - disadvantage test has been given but a variation of the ITEA, for the purposes of passing that test, has not been made; or
(c) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no - disadvantage test has been given and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;
then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 14, has effect in relation to the collective agreement subject to subitems (3) and (5).
(3) Section 346N of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no - disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:
(a) the period of 37 days beginning on whichever of the following days is later:
(i) the WR Act repeal day;
(ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or
(b) if the period is extended under subitem (4)--the period as extended.
(4) The Workplace Authority Director may extend the period referred to in paragraph (3)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.
(5) Section 346Q of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no - disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).
16 General rule--continued application of lodgment provisions and no - disadvantage test to ordinary variations
(1) This item applies to a variation of an ITEA under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day:
(a) Division 5A of Part 8 (which deals with the no - disadvantage test);
(b) subsections 370(8), (9), (10) and (11) (which deal with non - compliance with access and information requirements);
(c) section 374 (which deals with lodgment of unapproved variations);
(d) Subdivision C of Division 8 of Part 8 (which deals with lodgment);
(e) Subdivision D of Division 8 of Part 8 (which deal with when a variation comes into operation);
(f) subsection 401(1) and section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules about lodgment and the no - disadvantage test for variations made before the WR Act repeal day of ITEAs, subject to the modification specified in item 17.
17 Modification--limits on varying variations for the purpose of passing the no - disadvantage test
(1) Despite item 16, if, as at the WR Act repeal day:
(a) a notice under section 346M of the WR Act about whether the ITEA as varied passes the no - disadvantage test has not been given in relation to the variation; or
(b) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no - disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or
(c) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no - disadvantage test has been given in relation to the variation and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;
then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4).
(2) Section 346N of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no - disadvantage test set out in section 346D of that Act must be lodged under section 346N before the end of:
(a) the period of 37 days beginning on whichever of the following days is later:
(i) the WR Act repeal day;
(ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the variation; or
(b) if the period is extended under subitem (3)--the period as extended.
(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.
(4) Section 346Q of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no - disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).
Division 6--Transitional provisions relating to pre - WR Act repeal day terminations of ITEAs
18 Termination by approval--continued application of lodgment provisions
(1) This item applies to a termination of an ITEA, if the termination is approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act by that time.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:
(a) subsection 381(2) (which deals with when a workplace agreement is terminated);
(b) subsections 384(4), (5) and (6) (which deal with non - compliance with information requirements);
(c) section 387 (which deals with lodgment of unapproved terminations);
(d) Subdivision C of Division 9 of Part 8 (which deals with lodgment);
(e) section 398 (which deals with the effect of non - compliance);
(f) subsection 401(1) and section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs approved before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
19 Unilateral termination of ITEA in manner provided for in agreement--continued application of lodgment provisions
(1) This item applies to a termination of an ITEA if a declaration to terminate the ITEA is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the ITEA) before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:
(a) subsection 381(2) (which deals with when a workplace agreement is terminated);
(b) section 396 (which deals with receipts for lodgment of declarations);
(c) section 397 (which deals with giving notice after lodging notice of termination);
(d) section 398 (which deals with effect of non - compliance).
(e) section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs, if a declaration to terminate is lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
20 Continued application of lodgment provisions where termination by written notice is given before the WR Act repeal day and lodged within 120 days
(1) This item applies to an ITEA, if notice to terminate the ITEA is given in accordance with subsection 393(4) of the WR Act (which deals with unilateral termination by giving written notice) before the WR Act repeal day.
(2) The following provisions of Part 8 of the WR Act continue to apply on and after the WR Act repeal day in relation to the termination of the ITEA:
(a) subsection 381(2) (which deals with when an ITEA is terminated);
(b) sections 393, 394, 395, 396, 397, 397A, 398 and 399A (which deal with matters relating to lodgment of terminations, etc.);
(c) section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs by written notice given before the WR Act repeal day, subject to the modifications set out in subitems (3) to (6). Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
Modification--declaration to terminate must be lodged within 120 days of WR Act repeal day
(3) A declaration may only be lodged, in relation to the ITEA under subsection 393(2) of the WR Act, as that subsection continues to apply because of subitem (2), before the end of the period (the cut - off period ) of 120 days beginning on the WR Act repeal day.
(4) Section 396 of the WR Act, as that section continues to apply because of subitem (2), does not apply in relation to the ITEA if the declaration is not lodged before the end of the cut - off period.
(5) Despite subsection 381(2) and section 398 of the WR Act, as those provisions continue to apply because of subitem (2), the termination of the ITEA does not take effect if the declaration is not lodged before the end of the cut - off period.
(6) If the termination is lodged after the end of the cut - off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because the declaration was lodged after the end of the cut - off period, to the following:
(a) the employer to which the agreement applies;
(b) the employee to whom the agreement applies.
Division 7--Transitional provisions relating to making ITEAs during the bridging period
21 General rule--continued application of Part 8 to making of ITEAs
(1) Despite the repeal of Part 8 of the WR Act, an ITEA may, during the bridging period, be made under Division 2 of that Part as if that Part had not been repealed.
(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:
(a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no - disadvantage test), other than sections 346ZJ and 346ZK (which deal with dismissing an employee if an agreement does not pass that test);
(b) subsections 347(1) and (3) (which deal with when a workplace agreement comes into operation);
(c) section 347A (which deals with the operation of workplace agreements);
(d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);
(e) subsections 400(3) and (5), subsection 401(1) and section 412A.
Note 1: The general effect of this provision is to permit ITEAs to be made during the bridging period and to preserve the Part 8 rules about lodgment, the no - disadvantage test and prohibited content, subject to the modifications set out in this Division. The rules about variation and termination of ITEAs on and after the WR Act repeal day, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).
Note 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).
(3) The provisions referred to in subitem (2) do not apply to an ITEA lodged after the end of the bridging period.
(4) If the ITEA is lodged after the end of the bridging period, the Workplace Authority Director must give a written notice, stating that the ITEA cannot come into operation because the ITEA was lodged after the end of the bridging period, to the following:
(a) the employer to which the ITEA would have applied if it had come into operation;
(b) the employee to whom the ITEA would have applied if it had come into operation.
22 Modification--enterprise agreements and workplace determinations are taken to be instruments
(1) This item applies to an ITEA made during the bridging period as referred to in subitem 21(1).
(2) For the purposes of the application to the ITEA of section 346E of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations are taken to be specified in subsection 346E(3) (in addition to the other instruments so specified).
(3) For the purposes of the application to the ITEA of section 346ZB of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in subsection 346ZB(5) (in addition to the other instruments so specified).
23 Modification--limits on variation of an ITEA that operates from approval for the purpose of passing the no - disadvantage test
(1) Despite item 21, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.
(2) Section 346N of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no - disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:
(a) the period of 30 days beginning on the seventh day after the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or
(b) if the period is extended under subitem (3)--the period as extended
(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.
(4) Section 346Q of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no - disadvantage test unless the variation is lodged within the period referred to in paragraph (2)(a) or (b).
24 Modification--subsection 400(5)
(1) This item applies to an ITEA made during the bridging period as referred to in subitem 21(1).
(2) For the purposes of the application to the ITEA of subsection 400(5) of the WR Act, as that subsection continues to apply because of item 21, the circumstance referred to in subsection 400(6) of that Act is taken to include a reference to the circumstance referred to in subitem 25(2).
25 Effect of section 342 of the FW Act during the bridging period
(1) Despite section 342 of the FW Act, a prospective employer does not contravene subsection 340(1) of that Act if, during the bridging period, the person refuses to employ a person merely because the person requires another person to make an ITEA as a condition of engagement, other than in the circumstance referred to in subitem (2).
(2) The circumstance referred to in subitem (1) is that:
(a) the first person mentioned in subitem (1) is a new employer; and
(b) the new employer requires another person to make an ITEA; and
(c) the other person would, if employed by the new employer, be a transferring employee; and
(d) the requirement to make the ITEA is a condition of the other person becoming employed by the new employer.
26 Applying the no - disadvantage test where there is a transmission or a transfer of business
(1) This item applies if the Workplace Authority Director is required, because of the application of this Schedule to a workplace agreement, to decide, on or after the WR Act repeal day, whether the workplace agreement passes the no - disadvantage test.
(2) Division 7A of Part 11 of the WR Act continues to apply, in relation to the workplace agreement, as if that Division had not been repealed, with the following modifications:
(a) references to a workplace agreement binding an employer or an employee are taken to include references to a workplace agreement that is a transitional instrument covering an employer or employee;
(b) references to sections 583 and 585 of the WR Act (other than in section 601D) are taken to include references to section 313 of the FW Act;
(c) enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in the definition of instrument in subsection 601D(5) (in addition to the other instruments so specified);
(d) the reference in subparagraph 601G(1)(b)(i) to the instrument described in paragraph 601D(2)(a) is taken to include a reference to the instrument described in paragraph 27(2)(a) of this Schedule;
(e) the reference in subparagraph 601G(1)(b)(ii) to section 598A or clause 27A of Schedule 9 is taken to include a reference to item 9 of Schedule 11;
(f) the reference in paragraph 601H(1)(b) to the time of transmission is taken to include a reference to the time when the new employer first employs a transferring employee;
(g) paragraph 601H(2)(d) does not apply if the workplace agreement applies to the new employer because of the operation of section 313 of the FW Act.
27 Employment arrangements if there is a transfer of business and a workplace agreement ceases to operate because it does not pass the no - disadvantage test
(1) This item applies if:
(a) on a particular day (the cessation day ), a workplace agreement (the original agreement ) ceases to operate under section 346W or 346ZA of the WR Act (as those provisions continue to apply because of the operation of this Schedule) because the original agreement does not pass the no - disadvantage test; and
(b) during the period beginning when the original agreement was lodged and ending on the cessation day, the original agreement started to cover a new employer and a transferring employee or transferring employees because of the operation of section 313 of the FW Act.
(2) Despite subsection 346ZB(2) of the WR Act (as that provision continues to apply because of the operation of this Schedule), the new employer and the transferring employee or transferring employees who were covered by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be covered by:
(a) the instrument:
(i) that, but for the original agreement having come into operation, would have covered the old employer and the transferring employee or transferring employees immediately before the termination of the employment of the transferring employee or transferring employees with the old employer; and
(ii) that was capable of covering the new employer after the time the transferring employee or transferring employees became employed by the new employer under Schedule 11; or
(b) if there is no instrument of a kind referred to in paragraph (a) in relation to the old employer and one or more of the transferring employees--the designated award (within the meaning of Division 5A of Part 8 of the WR Act) in relation to that employee or those employees.
(3) If, but for the original agreement having come into operation, a redundancy provision would, immediately before the termination of the employment of a transferring employee or transferring employees with the old employer, have applied to the old employer in relation to a transferring employee or transferring employees to who the original agreement applied because of a preservation item (within the meaning of item 9 of Schedule 11) relating to the agreement, the redundancy provision is taken:
(a) to apply to the new employer under item 9 of Schedule 11, on and from the cessation day, in relation to the transferring employee or transferring employees; and
(b) to continue to so apply to the employer, in relation to the transferring employee or transferring employees, until the earliest of the following:
(i) the end of the period of 24 months beginning on the first day on which the old employer became covered, under the preservation item, by the redundancy provision;
(ii) the time when the transferring employee ceases to be employed by the new employer;
(iii) the time when an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee or transferring employees and the new employer.
(4) If the original agreement is a workplace agreement as varied under Division 8 of Part 8 of the WR Act, the workplace agreement as in force before the variation was lodged is, despite section 346ZE of that Act (as that section continues to apply because of the operation of this Schedule), capable of being an instrument described in paragraph (2)(a).
(5) In this item:
award includes a State reference transitional award.
instrument means:
(a) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred before the WR Act repeal day--any of the following:
(i) a workplace agreement;
(ii) an award;
(iii) a pre - reform certified agreement;
(iv) a preserved State agreement;
(v) a notional agreement preserving State awards; and
(b) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred on or after the WR Act repeal day--any of the following:
(i) an instrument referred to in subparagraph (a)(i), (ii), (iii), (iv) or (v) that is a transitional instrument;
(ii) an enterprise agreement;
(iii) a workplace determination made under the FW Act.
redundancy provision has the meaning given by subitem 38(7) of Schedule 3.
28 References to variations under Division 8
To avoid doubt, a reference in this Part to a variation under Division 8 of Part 8 of the WR Act does not include a reference to a variation made for the purposes of passing the no - disadvantage test.
28A Variations to pass no - disadvantage test after WR Act repeal day
Despite any other provision of Division 5A of Part 8 of the WR Act, as that Division continues to apply because of this Schedule in relation to:
(a) a workplace agreement; or
(b) a variation of such an agreement under Division 8 of that Part;
only one variation for the purposes of passing the no - disadvantage test of the agreement or variation may be lodged with the Workplace Authority Director on or after the WR Act repeal day.
29 Documents taken to be workplace agreements, etc.
To avoid doubt, sections 324A, 368A and 381A of the WR Act continue to have effect for the purposes of a provision of the WR Act that continues to apply because of this Act.
Part 3 -- Transitional provisions relating to workplace determinations made under the WR Act
30 Continued application of WR Act prohibited content provisions
(1) This item applies to a workplace determination made under the WR Act before the WR Act repeal day.
(2) Despite the repeal of section 506 of the WR Act, Subdivision B of Division 7 of Part 8 of that Act (which deals with prohibited content), other than section 358 (which deals with prohibited content being void), continues to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed.
Note 1: The general effect of this provision is to preserve the Part 8 rules about prohibited content for workplace determinations made before the WR Act repeal day. The rules about variation and termination of such workplace determinations, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).
Note 2: The rules about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).
31 Termination by approval general rule--continued application of lodgment provisions
(1) This item applies to a termination of a workplace determination, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.
Note: Under subsection 506(3) of the WR Act, a workplace determination can only be terminated under Subdivision B of Division 9 of Part 8 of that Act after the determination has passed its nominal expiry date.
(2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the termination on and after the WR Act repeal day, as if that section had not been repealed:
(a) subsection 381(2) (which deals with when a workplace determination is terminated);
(b) subsections 384(4), (5) and (6) (which deal with non - compliance with information requirements);
(c) section 387 (which deals with lodgment of unapproved terminations);
(d) Subdivision C of Division 9 of Part 8 (which deals with lodgment);
(e) section 398 (which deals with the effect of non - compliance);
(f) subsection 401(1) and section 412A.
Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace determinations approved before the WR Act repeal day, subject to the modification set out in item 32. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
32 Modification--unlodged terminations must be lodged within 14 days
(1) Despite item 31, if a termination to which that item applies is an unlodged termination:
(a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut - off period ) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 31; and
(b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 31, does not apply to the termination.
Note: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.
(2) If the termination is lodged after the end of the cut - off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut - off period, to the following:
(a) the employer to which the workplace determination applies;
(b) the employees to which the workplace determination applies.
(3) In this item:
unlodged termination , in relation to a workplace determination, means a termination of a workplace determination approved in accordance with section 386 of the WR Act, but not lodged with the Workplace Authority Director under section 389 of that Act as at the WR Act repeal day.
33 Termination by the Commission--Commission may continue to deal with applications made before the WR Act repeal day
(1) This item applies to a workplace determination in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.
(2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed:
(a) subsection 381(2) (which deals with when a workplace determination is terminated);
(b) subsections 397A(1) and (3) (which deal with when the Commission may terminate a workplace determination).
Note: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace determinations by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).
34 Documents taken to be workplace determinations, etc.
To avoid doubt, section 381A of the WR Act continues to apply for the
purposes of a provision of that Act that continues to apply because of this
Part.