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FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 (NO. 55, 2009) - SCHEDULE 3 Continued existence of awards, workplace agreements and certain other WR Act instruments

FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 (NO. 55, 2009) - SCHEDULE 3

Continued existence of awards, workplace agreements and certain other WR Act instruments

Part 1 -- Preliminary

1  Meanings of employee and employer

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


 

Part 2 -- Continued existence of WR Act instruments as transitional instruments

2  WR Act instruments that continue in existence as transitional instruments

(1)        Each WR Act instrument (see subitem (2)) that becomes a transitional instrument (see subitems (3) and (4)) continues in existence in accordance with this Schedule from when it becomes a transitional instrument, despite the WR Act repeal.

Note:       In addition to provisions of this Schedule, the following other provisions affect the continued existence of transitional instruments:

(a)    Part 2 of Schedule 5 (which deals with the WR Act award modernisation process);

(b)    Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);

(c)    Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act, including the making of ITEAs during the bridging period);

(d)    Schedule 11 (which deals with transfer of business);

(e)    Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

(2)        Each of the following instruments is a WR Act instrument :

                     (a)  an award;

                     (b)  a notional agreement preserving State awards;

                     (c)  a workplace agreement;

                     (d)  a workplace determination;

                     (e)  a preserved State agreement;

                      (f)  an AWA;

                     (g)  a pre‑reform certified agreement;

                     (h)  a pre‑reform AWA;

                      (i)  an old IR agreement;

                      (j)  a section 170MX award.

Note 1:    Workplace agreements are either collective agreements or ITEAs.

Note 2:    Preserved State agreements are either preserved collective State agreements or preserved individual State agreements.

Note 3:    For transitional provisions relating to Division 2 of Part 7 of the WR Act (which deals with wages), see Schedule 9.

Note 4:    For transitional provisions relating to Schedule 6 to the WR Act (which deals with transitional awards etc.), see Schedule 20.

(3)        The following WR Act instruments become transitional instruments on the WR Act repeal day:

                     (a)  each WR Act instrument that was in operation immediately before the WR Act repeal day;

                     (b)  each workplace agreement or workplace determination made before the WR Act repeal day but that had not yet come into operation by that day;

                     (c)  any other WR Act instrument that, although not in operation immediately before the WR Act repeal day, could come into operation after that day because of an instrument interaction rule.

(4)        If an ITEA is made during the bridging period under Division 7 of Part 2 of Schedule 8, the ITEA becomes a transitional instrument when it is made.

(5)        Transitional instruments are classified as follows:

                     (a)  awards, and notional agreements preserving State awards, are award‑based transitional instruments ;

                     (b)  all other kinds of transitional instruments are agreement‑based transitional instruments ;

                     (c)  agreement‑based transitional instruments of the following kinds are collective agreement‑based transitional instruments :

                              (i)  collective agreements;

                             (ii)  workplace determinations;

                            (iii)  preserved collective State agreements;

                            (iv)  pre‑reform certified agreements;

                             (v)  old IR agreements;

                            (vi)  section 170MX awards;

                     (d)  agreement‑based transitional instruments of the following kinds are individual agreement‑based transitional instruments :

                              (i)  ITEAs;

                             (ii)  preserved individual State agreements;

                            (iii)  AWAs;

                            (iv)  pre‑reform AWAs.

3  The employees, employers etc. who are covered by a transitional instrument and to whom it applies

(1)        A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation.

Note 1:    The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act.

Note 2:    Depending on the terms of a transitional instrument and any relevant provisions of the WR Act, the instrument's coverage may extend to people who become employees after the instrument becomes a transitional instrument.

(2)        A transitional instrument applies to the same employees, employers and any other persons the instrument covers as would, if the WR Act had continued in operation, have been:

                     (a)  required by the WR Act to comply with terms of the instrument; or

                     (b)  entitled under the WR Act to enforce terms of the instrument.

Note:       The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of a transitional instrument.

(3)        However, an award‑based transitional instrument does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).

Note:       Item 35 deals with the application of section 329 of the FW Act to award‑based transitional instruments.

(4)        This item has effect subject to:

                     (a)  the instrument interaction rules (see item 5); and

                     (b)  the variation or termination of transitional instruments as referred to in item 9;

                     (c)  Division 2 of Part 5 (which deals with interaction between transitional instruments and FW Act modern awards, workplace determinations and enterprise agreements); and

                     (d)  Schedule 11 (which deals with transfer of business); and

                     (e)  Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

4  Transitional instruments continue to be subject to the same instrument content rules

(1)        The same instrument content rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

Note:       Certain instrument content rules relating to the standing down of employees do not continue to apply in relation to WR Act instruments that become transitional instruments (see item 3 of Schedule 15).

(2)        Instrument content rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, of any of the following kinds:

                     (a)  provisions about what may, must or must not be included in an instrument;

                     (b)  provisions to the effect that a particular term of an instrument is of no effect (however described):

                              (i)  either completely or to a limited extent; and

                             (ii)  either permanently or for a limited period;

                     (c)  provisions to the effect that a particular term is taken to be included in an instrument.

Note:       Most of the instrument content rules were in the WR Act.

5  Transitional instruments continue to be subject to the same instrument interaction rules

(1)        The same instrument interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

(2)        Instrument interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

                     (a)  one instrument has priority over, or excludes, another instrument:

                              (i)  either completely or to a particular extent; and

                             (ii)  either permanently or for a particular period; or

                     (b)  one instrument ceases to operate because of another instrument:

                              (i)  either completely or to a particular extent; and

                             (ii)  either permanently or for a particular period.

Note:       Most of the instrument interaction rules were in the WR Act.

5A  Transitional instruments continue to be subject to the same State and Territory interaction rules

(1)        The same State and Territory interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

(2)        State and Territory interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

                     (a)  an instrument prevails over, or excludes, a law of a State or Territory; or

                     (b)  an instrument has effect subject to a law of a State or Territory.

Note:       Most of the State and Territory interaction rules were in the WR Act.

6  References in transitional instruments to the Australian Industrial Relations Commission etc.

(1)        If a provision of a transitional instrument confers a power or function on the Australian Industrial Relations Commission, that provision has effect on and after the WR Act repeal day as if references in it to the Commission were instead references to FWA.

(2)        If a provision of a transitional instrument confers a power or function on the Industrial Registrar or a Deputy Industrial Registrar, that provision has effect on and after the WR Act repeal day as if references in it to the Industrial Registrar or a Deputy Industrial Registrar were instead references to the General Manager of FWA.

(3)        This item has effect subject to:

                     (a)  a contrary intention in this Act; and

                     (b)  the regulations.

7  No loss of accrued rights or liabilities when transitional instrument terminates or ceases to apply

(1)        If a transitional instrument terminates, or ceases to apply in relation to a person, that does not affect:

                     (a)  any right or liability that a person acquired, accrued or incurred before the transitional instrument terminated or ceased to apply; or

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

(2)        Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional instrument had not terminated or ceased to apply.

(3)        This item has effect subject to a contrary intention in this Act or in the FW Act.

8  Certain transitional instruments displace certain Commonwealth laws

(1)        To the extent of any inconsistency, the following transitional instruments displace prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations:

                     (a)  a workplace agreement;

                     (b)  a pre‑reform certified agreement;

                     (c)  an AWA;

                     (d)  a pre‑reform AWA.

(2)        In subitem (1):

            Commonwealth law means an Act or any regulations or other instrument made under an Act.

            prescribed conditions means conditions that are identified by the regulations.

(3)        If, immediately before the WR Act repeal day, regulations made under section 350 of the WR Act, or that continued to apply under subclause 2(2) or 17(2) of Schedule 7 to the WR Act:

                     (a)  identified a condition as a prescribed condition in relation to an instrument referred to in paragraph (1)(a), (b), (c) or (d); or

                     (b)  prescribed an Act or any regulations or other instrument made under an Act as a Commonwealth law in relation to such an instrument;

those regulations continue to have effect on and after that day as if made for the purposes of this item.

(4)        Subitem (3) has effect subject to any regulations made for the purposes of subitem (1) or (2).


 

Part 3 -- Variation and termination of transitional instruments

9  Transitional instruments can only be varied or terminated in limited circumstances

(1)        A transitional instrument cannot be varied except under:

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

                     (b)  item 26 (which deals with resolving difficulties with the interaction between transitional instruments and the National Employment Standards); or

                     (c)  Part 2 of Schedule 5 (which deals with the WR Act award modernisation process); or

                     (d)  Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or

                     (e)  Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act); or

                      (f)  Schedule 11 (which deals with transfer of business); or

                     (g)  Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

(2)        A transitional instrument cannot be terminated (or otherwise brought to an end) except under:

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

                     (b)  Part 2 of Schedule 5; or

                     (c)  Division 2 of Part  2 of Schedule 6; or

                     (d)  Schedule 8; or

                     (e)  Schedule 11; or

                      (f)  Part 3 of Schedule 2.

Note:       The references in paragraphs (1)(a) and (2)(a) to a provision of this Part or the regulations includes a reference to a provision of the WR Act or the FW Act as it applies because of a provision of this Part.

10  All kinds of transitional instrument: variation to remove ambiguities etc.

(1)        On application by a person covered by a transitional instrument, FWA may make a determination varying the instrument:

                     (a)  to remove an ambiguity or uncertainty in the instrument; or

                     (b)  to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or

                     (c)  to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.

Note:       For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26.

(2)        A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.

11  All kinds of transitional instrument: variation on referral by HREOC

(1)        This item applies if a transitional instrument is referred to FWA under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 (which deals with discriminatory industrial instruments).

(2)        If the instrument is an award‑based transitional instrument, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.

(3)        If the transitional instrument is an agreement‑based transitional instrument, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.

12  Awards: continued application of WR Act provisions about variation and revocation

(1)        Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act continue to apply on and after the WR Act repeal day in relation to transitional instruments that are awards as if references to the Commission were instead references to FWA.

Note:       Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act.

(2)        FWA must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.

(3)        An award cannot be varied or revoked under Division 5 or 6 after the end of the bridging period, except as follows:

                     (a)  an award can be varied after the end of the bridging period under section 553 of the WR Act;

                     (b)  an award can be varied or revoked after the end of the bridging period as a result of FWA continuing to deal with a matter that it was dealing with before the end of the bridging period.

13  Pre‑reform certified agreements: continued application of WR Act provisions about variation

(1)        Subject to this item, clause 2A of Schedule 7 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are pre‑reform certified agreements as if references to the Commission were instead references to FWA.

Note:       This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

(2)        An application under clause 2A cannot be made after the end of the bridging period.

14  Preserved collective State agreements: continued application of WR Act provisions about variation

(1)        Subject to this item, clause 16A of Schedule 8 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are preserved State agreements as if references to the Commission were instead references to FWA.

Note:       This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

(2)        An application under clause 16A cannot be made after the end of the bridging period.

15  Collective agreement‑based transitional instruments: termination by agreement

Subdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.

16  Collective agreement‑based transitional instruments: termination by FWA

(1)        Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.

(2)        For the purpose of the application of Subdivision D to an old IR agreement, the agreement's nominal expiry date is taken to be the end of the period of the agreement.

17  Individual agreement‑based transitional instruments: termination by agreement

(1)        The employee and employer covered by an individual agreement‑based transitional instrument may make a written agreement (a termination agreement ) to terminate the agreement in accordance with the following requirements:

                     (a)  the termination agreement must be signed by the employee and the employer;

                     (b)  if the employee is under 18, it must also be signed by a parent or guardian of the employee;

                     (c)  the signatures must be witnessed.

(2)        The termination has no effect unless it has been approved by FWA.

(3)        The employer or employee may apply to FWA for approval of the termination agreement. The application must be made:

                     (a)  within 14 days after the termination agreement was made; or

                     (b)  if in all the circumstances FWA considers it fair to extend that period--within such further period as FWA allows.

(4)        If an application for FWA to approve the termination agreement is made under subitem (3), FWA must approve the termination of the instrument if:

                     (a)  FWA is satisfied that the requirements of subitem (1) have been complied with; and

                     (b)  FWA is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.

(5)        If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.

18  Individual agreement‑based transitional instruments: termination conditional on enterprise agreement

(1)        This item provides for the making of an instrument (a conditional termination ) that will have the effect of terminating an individual agreement‑based transitional instrument if:

                     (a)  an enterprise agreement (the proposed enterprise agreement ) is made that covers the employee and the employer; and

                     (b)  the proposed enterprise agreement comes into operation.

(2)        If the transitional instrument has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.

(3)        If the transitional instrument has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.

(4)        If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.

(5)        Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.

(6)        The employer must give the employee a copy of the conditional termination if:

                     (a)  the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or

                     (b)  the conditional termination is signed by the employer in the circumstances covered by subitem (3).

Note 1:    For compliance with this obligation, see subitem 3(1) of Schedule 16.

Note 2:    Failure to comply with this obligation does not affect the operation of subitem (8).

(7)        The conditional termination must accompany any application to FWA for approval of the proposed enterprise agreement under section 185 of the FW Act.

Note 1:    For compliance with this obligation, see subitem 3(2) of Schedule 16.

Note 2:    Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by FWA of the proposed enterprise agreement.

(8)        If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the transitional instrument terminates when the proposed enterprise agreement comes into operation.

19  Individual agreement‑based transitional instruments: unilateral termination with FWA's approval

(1)        This item applies to an employer or employee:

                     (a)  to whom an individual agreement‑based transitional instrument that has passed its nominal expiry date applies; and

                     (b)  who wants to terminate the transitional instrument.

(2)        The employer or employee may:

                     (a)  make a written declaration that identifies the transitional instrument and that states that the employer or employee wants to terminate the transitional instrument; and

                     (b)  apply to FWA for the approval of the termination.

(3)        The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:

                     (a)  the notice must identify the transitional instrument;

                     (b)  the notice must state that the employer or employee intends to apply to FWA for approval of the termination of the instrument;

                     (c)  the notice must state that, if FWA approves the termination, the transitional instrument will terminate on the 90th day after the day on which FWA makes the approval decision;

                     (d)  if the notice is given by the employer:

                              (i)  the notice must state whether, if the instrument terminates during the bridging period, one or more redundancy provisions in the instrument will continue to apply to the employee as provided for by item 38; and

                             (ii)  if one or more redundancy provisions in the instrument will so continue to apply to the employee--the notice must include or be accompanied by a copy of the provision or provisions;

                     (e)  the notice must comply with any other requirements of the regulations.

(4)        FWA must approve the termination if FWA is satisfied that:

                     (a)  the transitional instrument applies to the employer and the employee; and

                     (b)  the requirements of subitems (2) and (3) have been complied with.

(5)        If FWA approves the termination, the transitional instrument terminates on the 90th day after the day on which FWA makes the approval decision.

20  Sunsetting rules for various transitional instruments

Notional agreements preserving State awards

(1)        A notional agreement preserving State awards (other than a notional agreement that is an enterprise instrument) terminates:

                     (a)  on the 4th anniversary of the FW (safety net provisions) commencement day; or

                     (b)  if the regulations prescribe a later day--on that later day.

Division 3 pre‑reform certified agreements

(2)        If the employer in relation to a Division 3 pre‑reform certified agreement is not a national system employer, the agreement terminates on the earlier of the following:

                     (a)  27 March 2011;

                     (b)  when both of the following conditions are satisfied:

                              (i)  the agreement has passed its nominal expiry date;

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

(3)        However, if the employer becomes a national system employer before 27 March 2011, subitem (2) does not apply after that time.

Old IR agreements

(4)        If the employer in relation to an old IR agreement is not a national system employer, the agreement terminates on the earlier of the following:

                     (a)  27 March 2011;

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

(5)        However, if the employer becomes a national system employer before 27 March 2011, subitem (4) does not apply after that time.

Section 170MX awards

(6)        If:

                     (a)  the employer in relation to a section 170MX award is not a national system employer; and

                     (b)  the section 170MX award:

                              (i)  was in force just before 27 March 2006; or

                             (ii)  was made on or after that day because of Part 8 of Schedule 7 to the WR Act;

the award terminates on the earlier of the following:

                     (c)  27 March 2011;

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

(7)        However, if the employer becomes a national system employer before 27 March 2011, subitem (6) does not apply after that time.

21  Effect of termination

If a transitional instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.


 

Part 4 -- Transitional instruments and the Australian Fair Pay and Conditions Standard

22  Same AFPCS interaction rules continue to apply

(1)        Subject to this item, the same AFPCS interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

Note 1:    Schedule 4 provides for the continued application of the Australian Fair Pay and Conditions Standard (other than minimum wages provisions) during the bridging period.

Note 2:    Schedule 9 provides for the continued application of the minimum wages provisions of the Australian Fair Pay and Conditions Standard on and after the WR Act repeal day.

(2)        AFPCS interaction rules of the kind referred to in paragraph (4)(b) do not continue to apply after the end of the bridging period.

Note:       This may result in an employee becoming entitled to a rate of pay under a transitional APCS that is higher than was required to be paid to the employee under a transitional instrument during the bridging period. If that occurs, the employer may apply to FWA for a determination to phase‑in the effect of the increase (see item 14 of Schedule 9).

(3)        If, immediately before the end of the bridging period, an AFPCS interaction rule of the kind referred to in paragraph (4)(b) produced the result that an employee to whom a transitional instrument applied was not covered by the obligation in subsection 182(1) or (2) of the WR Act in relation to a transitional APCS, the employee becomes covered by that obligation in relation to that transitional APCS from the end of the bridging period.

(4)        AFPCS interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

                     (a)  the Australian Fair Pay and Conditions Standard prevails over an instrument (or an instrument is of no effect because of the Standard) either completely or to a particular extent; or

                     (b)  an instrument prevails over the Australian Fair Pay and Conditions Standard (or the Standard does not apply because of the instrument) either completely or to a particular extent.

Note:       Most of the AFPCS interaction rules were in the WR Act.


 

Part 5 -- Transitional instruments and the FW Act

Division 1--Interaction between transitional instruments and the National Employment Standards

23  The no detriment rule

(1)        To the extent that a term of a transitional instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the transitional instrument is of no effect.

Note 1:    A term of a transitional instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.

Note 2:    Division 3 (which contains other general provisions about how the FW Act applies in relation to transitional instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom transitional instruments apply.

Note 3:    References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).

(1A)     If there is a dispute about the application of this item which must be resolved by FWA in accordance with item 26, FWA may compare the entitlements which are in dispute:

                     (a)  on a 'line-by-line' basis, comparing individual terms; or

                     (b)  on a 'like-by-like' basis, comparing entitlements according to particular subject areas; or

                     (c)  using any combination of the above approaches FWA sees fit.

(2)        Subitem (1) does not affect a term of a transitional instrument that is permitted by a provision of the National Employment Standards as it has effect under item 24.

(3)        The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a transitional instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.

24  Provisions of the NES that allow instruments to contain particular kinds of terms

(1)        The following provisions of the National Employment Standards have effect, on and after the FW (safety net provisions) commencement day, as if a reference to a modern award or an enterprise agreement included a reference to a transitional instrument:

                     (a)  section 63 (which allows terms dealing with averaging of hours of work);

                     (b)  section 93 (which allows terms dealing with cashing out and taking paid annual leave);

                     (c)  section 101 (which allows terms dealing with cashing out paid personal/carer's leave);

                     (d)  subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer's leave etc.);

                     (e)  subsection 115(3) (which allows terms dealing with substitution of public holidays);

                      (f)  section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment);

                     (g)  subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);

                     (h)  section 126 (which allows terms providing for school‑based apprentices and trainees to be paid loadings in lieu).

(2)        If:

                     (a)  a transitional instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but

                     (b)  the terms do not include the requirements referred to in subsection (2) of that section;

the instrument is taken to include terms that include the requirements.

25  Shiftworker annual leave entitlement

(1)        If:

                     (a)  a transitional instrument applies to an employee; and

                     (b)  the employee is a shift worker as defined in section 228 of the WR Act;

the employee is taken to qualify for the shiftworker annual leave entitlement for the purposes of section 87 of the FW Act.

(2)        This item has effect subject to subsection 87(4) of the FW Act.

26  Resolving difficulties about application of this Division

(1)        On application by a person covered by a transitional instrument, FWA may make a determination varying the transitional instrument:

                     (a)  to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or

                     (b)  to make the instrument operate effectively with the National Employment Standards.

(2)        A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.

27  Division does not affect transitional instruments before NES commencement

This Division (including determinations under item 26) does not affect the operation of a transitional instrument at any time before the FW (safety net provisions) commencement day.

Division 2--Interaction between transitional instruments and FW Act modern awards, enterprise agreements and workplace determinations

28  Modern awards and agreement‑based transitional instruments

(1)        While an agreement‑based transitional instrument of any of the following kinds applies to an employee, or to an employer or other person in relation to the employee:

                     (a)  a workplace agreement;

                     (b)  a workplace determination;

                     (c)  a preserved State agreement;

                     (d)  an AWA;

                     (e)  a pre‑reform AWA;

a modern award does not apply to the employee, or to the employer or other person in relation to the employee.

Note 1:    However, a modern award can continue to cover the employee while the agreement‑based transitional instrument continues to apply.

Note 2:    This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate) .

(2)        If:

                     (a)  an agreement‑based transitional instrument of any of the following kinds:

                              (i)  a pre‑reform certified agreement;

                             (ii)  an old IR agreement;

                            (iii)  a section 170MX award; and

                     (b)  a modern award;

both apply to an employee, or to an employer or other person in relation to the employee, the agreement‑based transitional instrument prevails over the modern award, to the extent of any inconsistency.

Note:       This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate) .

28A  Terms of modern awards about outworker conditions continue to apply

(1)        This item applies if, at a particular time:

                     (a)  an agreement‑based transitional instrument applies to an employee; and

                     (b)  outworker terms (within the meaning of the FW Act) in a modern award would, but for the transitional instrument, apply to the employee.

(2)        Despite item 28 and despite any terms of the agreement‑based transitional instrument that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:

                     (a)  the employee;

                     (b)  the employer;

                     (c)  each employee organisation to which the modern award applies.

(3)        To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.

29  Modern awards and award‑based transitional instruments

Modern awards other than the miscellaneous modern award

(1)        If a modern award (other than the miscellaneous modern award) that covers an employee, or an employer or other person in relation to the employee, comes into operation, then an award‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.

Note:       A modern award cannot be expressed to cover an employee who is covered by a transitional instrument that is an enterprise instrument (see subsection 143(8) of the FW Act).

The miscellaneous modern award

(2)        While an award‑based transitional instrument that covers an employee, or an employer or other person in relation to the employee, is in operation, the miscellaneous modern award does not cover the employee, or the employer or other person in relation to the employee.

Outworker entities

(3)        If a modern award (other than the miscellaneous modern award) that contains outworker terms that cover an outworker entity comes into operation, then outworker terms in an award‑based transitional instrument cease to cover (and can never again cover) the outworker entity.

(4)        While outworker terms in an award‑based transitional instrument that is in operation cover an outworker entity, any outworker terms in the miscellaneous modern award do not cover the outworker entity.

(5)        Outworker terms in an award‑based transitional instrument are terms that would be outworker terms as defined in the FW Act if they were in a modern award.

30  FW Act enterprise agreements and workplace determinations, and agreement‑based transitional instruments

Individual agreement‑based transitional instruments

(1)        While an individual agreement‑based transitional instrument applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.

Collective agreement‑based transitional instruments

(2)        If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective agreement‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.

Note 1:    The fact that a collective agreement‑based transitional instrument applies to employees does not prevent those employees and their employer from replacing that transitional instrument at any time with an enterprise agreement, regardless of whether the transitional instrument has passed its nominal expiry date.

Note 2:    Industrial action must not be taken before the nominal expiry date of an agreement‑based transitional instrument, even if it is being replaced by an enterprise agreement (see item 4 of Schedule 13).

31  FW Act enterprise agreements and workplace determinations, and award‑based transitional instruments

If an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then:

                     (a)  an award‑based transitional instrument ceases to apply to the employee, and the employer or other person in relation to the employee; but

                     (b)  the award‑based transitional instrument can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.

Note:       Subject to the other provisions of this Part, the award‑based transitional instrument can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.

31A  Designated outworker terms of award‑based transitional instrument continue to apply

(1)        This item applies if, at a particular time:

                     (a)  an enterprise agreement or workplace determination (under the FW Act) applies to an employer; and

                     (b)  an award‑based transitional instrument covers the employer (whether the transitional instrument covers the employer in the employer's capacity as an employer or an outworker entity); and

                     (c)  the transitional instrument includes one or more designated outworker terms.

(2)        Despite item 31, the designated outworker terms of the award‑based transitional instrument apply at that time to the following:

                     (a)  the employer;

                     (b)  each employee who is both:

                              (i)  a person to whom the enterprise agreement or workplace determination applies; and

                             (ii)  a person who is covered by the transitional instrument;

                     (c)  each employee organisation that is covered by the transitional instrument.

(3)        To avoid doubt:

                     (a)  award‑based transitional instruments are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and

                     (b)  designated outworker terms of an award‑based transitional instrument can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and

                     (c)  to the extent to which designated outworker terms of an award‑based transitional instrument apply to an employer, an employee or an employee organisation because of subitem (2), the transitional instrument applies to the employer, employee or organisation.

Division 3--Other general provisions about how the FW Act applies in relation to transitional instruments

32  Employee not award/agreement free if transitional instrument applies

(1)        An employee is not an award/agreement free employee for the purposes of the FW Act if a transitional instrument applies to the employee.

(2)        The regulations may make provision in relation to any of the following in relation to employees to whom transitional instruments apply:

                     (a)  what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);

                     (b)  what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);

                     (c)  whether such an employee is a pieceworker for the purposes of the FW Act.

33  Employee's ordinary hours of work

Item applies for purpose of determining employee's ordinary hours of work for the FW Act

(1)        For the purposes of the FW Act, the ordinary hours of work of an employee to whom a transitional instrument applies are to be determined in accordance with this item.

Ordinary hours as specified in transitional instrument

(2)        If a transitional instrument that applies to the employee specifies, or provides for the determination of, the employee's ordinary hours of work, the employee's ordinary hours of work are as specified in, or determined in accordance with, that instrument.

If subitem (2) does not apply and there is agreement

(3)        If subitem (2) does not apply, the employee's ordinary hours of work are the hours agreed by the employee and his or her employer as the employee's ordinary hours of work.

If subitem (2) does not apply and there is no agreement

(4)        If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:

                     (a)  if the employee is a full time employee--38 hours; or

                     (b)  if the employee is not a full‑time employee--the lesser of:

                              (i)  38 hours; and

                             (ii)  the employee's usual weekly hours of work.

If subitem (2) does not apply: agreed hours are less than usual weekly hours

(5)        If:

                     (a)  subitem (2) does not apply; and

                     (b)  the employee is not a full‑time employee; and

                     (c)  there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee's usual weekly hours of work;

the ordinary hours of work of the employee in a week are the lesser of:

                     (d)  38 hours; and

                     (e)  the employee's usual weekly hours of work.

Regulations may prescribe usual weekly hours

(6)        For an employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee's usual weekly hours of work for the purposes of subitems (4) and (5).

34  Payment of wages

Division 2 of Part 2‑9 of the FW Act (which deals with payment of wages) applies, on and after the WR Act repeal day, in relation to a transitional instrument as if:

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

                     (b)  a reference to a modern award included a reference to an award‑based transitional instrument.

35  Guarantee of annual earnings

Division 3 of Part 2‑9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the FW (safety net provisions) commencement day, as if:

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

                     (b)  a reference to a modern award included a reference to an award‑based transitional instrument and a transitional APCS.

Note:       For provisions about transitional APCSs, see Schedule 9.

36  Application of unfair dismissal provisions

Part 3‑2 of the FW Act (which deals with unfair dismissal) applies, on and after the WR Act repeal day, as if:

                     (a)  the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to an award‑based transitional instrument; and

                     (b)  the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to an agreement‑based transitional instrument.

37  Regulations may deal with other matters

The regulations may deal with other matters relating to how the FW Act applies in relation to transitional instruments.


 

Part 6 -- Preservation of redundancy provisions in agreements etc.

38  Preservation of redundancy provisions when agreement‑based transitional instrument terminates

When this item applies

(1)        This item applies if a termination of an agreement‑based transitional instrument (the terminated instrument ) takes effect during the bridging period in either of the following circumstances:

                     (a)  the instrument is a preserved collective State agreement or a pre‑reform certified agreement that is terminated by FWA as provided for by item 16 because of an application made by an employer covered by the agreement;

                     (b)  the instrument is an individual agreement‑based transitional instrument that terminates under item 19 because FWA approves a termination of the instrument by an employer covered by the instrument.

Continuation of redundancy provisions

(2)        Any redundancy provision that was in the terminated instrument continues to apply to any person to whom the terminated instrument applied immediately before the termination took effect, as if the terminated instrument had continued operating.

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

(3)        A redundancy provision that continues to apply to a person under subitem (2) is taken, for the purpose of this Act, to be a transitional instrument of the same kind as the terminated instrument. However, this does not apply for the purpose of:

                     (a)  the provisions of Parts 2, 3, 4 and 5 of this Schedule, other than subitem 20(2) and item 23; or

                     (b)  any other provisions prescribed by the regulations.

Continued redundancy provisions generally prevail over other instruments

(4)        Subject to subitem (5), a redundancy provision that continues to apply to a person under subitem (2) prevails over any other redundancy provision included in any other instrument that would otherwise apply (even if the provisions in that other instrument might be more beneficial to the employee).

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

(5)        However, if:

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

                     (b)  a redundancy provision that continues to apply to an employee under subitem (2) is detrimental to the employee, in any respect, when compared to the scheme in the modern award;

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

Period for which redundancy provisions are continued

(6)        A redundancy provision continues under subitem (2) to apply to a person, in relation to an employee to whom the provision applies, until the earliest of the following:

                     (a)  the end of the period of 24 months from the time the termination took effect;

                     (b)  the time when the employee ceases to be employed by the employer (otherwise than in circumstances covered by the provision);

                     (c)  the time when an enterprise agreement, workplace determination or ITEA starts to apply to the employee.

Definitions

(7)        In this item:

instrument means:

                     (a)  an award‑based transitional instrument; or

                     (b)  a collective agreement; or

                     (c)  a collective preserved State agreement; or

                     (d)  a pre‑reform certified agreement; or

                     (e)  an old IR agreement.

redundancy provision means any of the following kinds of provisions:

                     (a)  a provision relating to redundancy pay in relation to a termination of employment;

                     (b)  a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;

                     (c)  a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;

where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.

39  Notification of preservation of redundancy provisions

When this item applies

(1)        This item applies if:

                     (a)  FWA makes a decision (a termination decision ) of either of the following kinds:

                              (i)  a decision to terminate a transitional instrument as referred to in paragraph 38(1)(a);

                             (ii)  a decision to approve a termination of a transitional instrument as referred to in paragraph 38(1)(b); and

                     (b)  when the termination takes effect, one or more redundancy provisions in the instrument will continue to apply to persons ( affected persons ) in accordance with item 38.

Notification requirements if the transitional instrument is a preserved collective State agreement or a pre‑reform certified agreement

(2)        If the transitional instrument is a preserved collective State agreement or a pre‑reform certified agreement:

                     (a)  the termination decision must:

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

                             (ii)  state that the provision or provisions will continue to apply to the affected persons; and

                            (iii)  specify the date that is 24 months after the time when the termination takes effect; and

                            (iv)  state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6); and

                     (b)  FWA must give a copy of the termination decision to each affected person that is:

                              (i)  an employer; or

                             (ii)  an employee organisation.

(3)        An employer that has, under subitem (2), received a copy of a termination decision must take reasonable steps to ensure that all employees to whom the instrument applied immediately before the termination takes effect are given a copy of the decision within 21 days of the employer receiving a copy of the decision.

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

Notification requirements if the transitional instrument is an individual agreement‑based transitional instrument

(4)        If the transitional instrument is an individual agreement‑based transitional instrument, the termination decision must:

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

                     (b)  state that the provision or provisions will continue to apply to the affected persons; and

                     (c)  specify the date that is 24 months after the time when the termination takes effect; and

                     (d)  state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6).

40  Redundancy provisions that were already preserved as at the WR Act repeal day

(1)        This item applies if, immediately before the WR Act repeal day, redundancy provisions that were in a WR Act instrument (the terminated instrument ) that was terminated before that day (the actual termination ) were continuing to bind persons under any of the following provisions:

                     (a)  section 399A of the WR Act;

                     (b)  section 399A of the pre‑transition Act (within the meaning of Schedule 7A to the WR Act);

                     (c)  clause 6A of Schedule 7 to the WR Act;

                     (d)  clause 20A of Schedule 7 to the WR Act;

                     (e)  clause 21A of Schedule 8 to the WR Act;

                      (f)  clause 21D of Schedule 8 to the WR Act.

(2)        Item 38 applies as if:

                     (a)  the redundancy provisions were a transitional instrument of the same kind as the terminated instrument; and

                     (b)  a termination of that transitional instrument took effect on the WR Act repeal day as referred to in subitem 38(1); and

                     (c)  the reference in paragraph 38(6)(a) to 24 months were instead a reference to the unexpired part of the period of 24 months that started on the actual termination.

(3)        Item 39 does not apply to the termination referred to in paragraph (2)(b).