Commonwealth Numbered Acts Commonwealth Numbered Acts1 After Division 5 of Part 8
Insert:
Division 5A -- The fairness test
(1) In this Division:
"business being transferred" has the same meaning as in Part 11.
"designated award" , in relation to an employee or employees whose employment is or may be subject to a workplace agreement, means an award determined by the Workplace Authority Director under section 346L, and includes an award taken to be so designated in relation to the employee or employees under section 346K (unless a different award has been designated in relation to the employee or employees under section 346L).
"enterprise award" means an award that regulates a term or condition of employment of an employee or employees by an employer in a single business specified in the award.
"industrial instrument" means any of the following:
(a) a pre‑reform AWA;
(b) a pre‑reform certified agreement (within the meaning of Schedule 7);
(c) a workplace determination;
(d) a section 170MX award (within the meaning of Schedule 7);
(e) an old IR agreement (within the meaning of Schedule 7).
"new employer" has the same meaning as in Part 11.
"old employer" has the same meaning as in Part 11.
"protected award conditions" has the same meaning as in subsection 354(4), subject to subsection (2) of this section.
"reference award" , in relation to an employee whose employment is subject to a workplace agreement, means:
(a) a relevant award in relation to the employee; or
(b) if there is no relevant award in relation to the employee--a designated award in relation to the employee.
"relevant award" , in relation to an employee whose employment is subject to a workplace agreement, means an award:
(a) that regulates, or would but for a workplace agreement or another industrial instrument regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the workplace agreement; and
(b) that was binding on the employee's employer immediately before the day on which the workplace agreement was lodged.
"salary" means gross basic salary and does not include the following:
(a) incentive‑based payments and bonuses;
(b) loadings (other than casual loadings);
(c) monetary allowances;
(d) penalty rates;
(e) employer superannuation contributions;
(f) any other separately identifiable entitlements that are similar to those mentioned in paragraphs (a) to (d).
Note: Section 346G contains provisions relating to this definition.
"time of transmission" , in relation to a business being transferred, has the same meaning as in Part 11.
"transferring employee" has the same meaning as in Part 11.
"transmission period" , in relation to a business being transferred, has the same meaning as in Part 11.
(2) For the purposes of the definition of protected award conditions in subsection (1), the definition of protected allowable award matters in subsection 354(4) has effect as if it did not include the matter referred to in paragraph (i) of the latter definition.
Note: Paragraph (i) relates to outworker conditions. These conditions cannot be excluded or modified by a workplace agreement to provide a less favourable outcome for an employee in a particular respect--see subsection 354(3).
(3) Unless the contrary intention appears, this Division applies to a workplace agreement as varied in a corresponding way to the way in which it applies to a workplace agreement.
346C When protected award conditions apply to an employee
(1) For the purposes of this Division, protected award conditions apply to an employee whose employment is subject to a workplace agreement:
(a) if, but for that workplace agreement, a previous workplace agreement or another industrial instrument, the protected award conditions would have effect in relation to the employment of the employee under a relevant award in relation to the employee; or
(b) in a case where there is no relevant award in relation to the employee--if, assuming that the employee's employer was bound by a designated award in relation to the employee, the protected award conditions would have effect in relation to the employment of the employee but for the workplace agreement, a previous workplace agreement or another industrial instrument.
(2) Protected award conditions that apply to an employee because of the operation of paragraph (1)(b) are not taken, for the purposes of paragraph 354(1)(b), to be protected award conditions that would have effect in relation to the employment of the employee.
(1) For the purposes of a provision mentioned in subsection (2), an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by an employee are usually regulated by an award is taken to include an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee:
(a) were, immediately before the reform commencement, usually regulated by a State award; or
(b) would, but for an industrial instrument or a State employment agreement, usually have been regulated by a State award immediately before the reform commencement.
(2) The provisions are as follows:
(a) subparagraph 346E(1)(b)(ii);
(b) subparagraph 346E(2)(b)(ii);
(c) subparagraph 346F(1)(b)(ii);
(d) subparagraph 346F(2)(b)(ii);
(e) paragraph 346K(2)(a);
(f) a provision referred to in paragraph (a), (b), (c) or (d), as referred to in section 346L.
346D Application of Division to workplace agreements
(1) The obligations imposed on the Workplace Authority Director by this Division in relation to a workplace agreement apply irrespective of whether the workplace agreement is in operation or has ceased to operate.
(2) For the purposes of applying this Division to a workplace agreement that has ceased to operate:
(a) a reference to an employee whose employment is subject to the workplace agreement is taken to include a reference to an employee whose employment was at any time subject to the workplace agreement; and
(b) a reference to a person or organisation who is bound by the workplace agreement is taken to include a reference to a person or organisation who was at any time bound by the workplace agreement.
(3) For the purposes of applying this Division to a workplace agreement, a reference to an employee whose employment is subject to the workplace agreement is, so far as the context permits, taken to include a reference to an employee whose employment may at a future time be subject to the workplace agreement.
346DA Transmission of business--where no decision under section 346M at time of transmission
(1) This section applies if:
(a) the Workplace Authority Director is required to decide under section 346M whether a workplace agreement passes the fairness test; and
(b) before the Workplace Authority Director makes the decision, the workplace agreement becomes binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585.
(2) Subject to subsection (4), for the purposes of deciding under section 346M whether the workplace agreement passes the fairness test, references to the employer in section 346M and in the definition of relevant award are taken to be references to the old employer.
(3) If:
(a) the Workplace Authority Director has been notified that the workplace agreement is binding on the new employer and the transferring employee or transferring employees; and
(b) the Workplace Authority Director is required to give a notice under section 346J, 346P or 346U to the employer in relation to the workplace agreement;
the Workplace Authority Director must give the notice to both the old employer and the new employer.
(4) If the Workplace Authority Director decides under section 346M that the workplace agreement does not pass the fairness test:
(a) references in section 346R to the employer bound by the workplace agreement are taken to be references to the new employer; and
(b) to avoid doubt, if the new employer subsequently lodges a variation of the workplace agreement under section 346R then, for the purposes of deciding under section 346U whether the workplace agreement as varied passes the fairness test, references in section 346M to the employer are taken to be references to the old employer.
Note 1: The employment arrangements that have effect in relation to the new employer and the transferring employee or transferring employees are as set out in section 346YA.
Note 2: The compensation payable to the transferring employees under section 346ZD by both the old employer and the new employer is as specified in subsections 346ZD(2), (2A) and (2B).
(1) This section applies if:
(a) the Workplace Authority Director is required to decide under section 346U whether a workplace agreement as varied passes the fairness test; and
(b) before the Workplace Authority Director makes the decision, the workplace agreement becomes binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585.
(2) For the purposes of deciding under section 346U whether the workplace agreement as varied passes the fairness test, references in section 346M to the employer are taken to be references to the old employer.
(3) If:
(a) the Workplace Authority Director has been notified that the workplace agreement is binding upon the new employer and a transferring employee or transferring employees; and
(b) the Workplace Authority Director is required to give a notice under section 346U to the employer in relation to the workplace agreement;
the Workplace Authority Director must give the notice to both the old employer and the new employer.
346DC Transmission of business--employees still employed by old employer
To avoid doubt, if a workplace agreement becomes binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585, this Division has effect, to the extent that the workplace agreement continues to bind the old employer, and an employee or employees who are not transferring employees, according to its terms.
Subdivision B -- Workplace agreements to which the fairness test applies
346E Workplace Authority Director must apply the fairness test to certain workplace agreements
(1) The Workplace Authority Director must decide under section 346M whether an AWA passes the fairness test if:
(a) the AWA is lodged on or after 7 May 2007; and
(b) on the date of lodgment:
(i) the employer bound by the AWA is bound by an award in respect of the terms and conditions of the kind of work performed or to be performed by the employee; or
(ii) the employee whose employment is subject to the AWA is employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee are usually regulated by an award, or would, but for a workplace agreement or another industrial instrument, usually be regulated by an award; and
(c) on the date of lodgment:
(i) in the case of a full‑time employee, other than a full‑time employee who is paid a piece rate of pay--the annual rate of salary payable to the employee under the AWA is less than $75,000; or
(ii) in the case of a full‑time employee who is paid a piece rate of pay--the annual full‑time salary payable to the employee under the AWA, worked out in accordance with section 346G, is less than $75,000; or
(iii) in the case of an employee not covered by subparagraph (i) or (ii)--the annual full‑time equivalent amount of salary payable to the employee under the AWA, worked out in accordance with section 346G, is less than $75,000; and
(d) the AWA excludes or modifies one or more protected award conditions that apply to the employee under a reference award in relation to the employee.
Note: Paragraph (d) will not be satisfied if there is no reference award in relation to the employee.
(2) The Workplace Authority Director must decide under section 346M whether a collective agreement passes the fairness test if:
(a) the collective agreement is lodged on or after 7 May 2007; and
(b) on the date of lodgment:
(i) the employer bound by the collective agreement is bound by an award in respect of the terms and conditions of the kind of work performed or to be performed by the one or more of the employees; or
(ii) one or more of the employees whose employment is subject to the collective agreement is employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employees are usually regulated by an award, or would, but for a workplace agreement or another industrial instrument, usually be regulated by an award; and
(c) the collective agreement excludes or modifies one or more protected award conditions that apply to one or more of those employees under a reference award in relation to the employee or employees.
Note: Paragraph (c) will not be satisfied if there is no reference award in relation to the employee.
(1) The Workplace Authority Director must decide under section 346M whether an AWA as varied under Division 8 passes the fairness test if:
(a) the variation of the AWA is lodged on or after 7 May 2007; and
(b) on the date of lodgment of the variation:
(i) the employer bound by the AWA as varied is bound by an award in respect of the terms and conditions of the kind of work performed or to be performed by the employee; or
(ii) the employee whose employment is subject to the AWA as varied is employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee are usually regulated by an award, or would, but for a workplace agreement or another industrial instrument, usually be regulated by an award; and
(c) on the date of lodgment of the variation:
(i) in the case of a full‑time employee, other than a full‑time employee who is paid a piece rate of pay--the annual rate of salary payable to the employee under the AWA as varied is less than $75,000; or
(ii) in the case of a full‑time employee who is paid a piece rate of pay--the annual full‑time salary payable to the employee under the AWA as varied, worked out in accordance with section 346G, is less than $75,000; or
(iii) in the case of an employee not covered by subparagraph (i) or (ii)--the annual full‑time equivalent amount of salary payable to the employee under the AWA as varied, worked out in accordance with section 346G, is less than $75,000; and
(d) the variation excludes or modifies one or more protected award conditions that apply to the employee under a reference award in relation to the employee.
Note: Paragraph (d) will not be satisfied if there is no reference award in relation to the employee.
(2) The Workplace Authority Director must decide under section 346M whether a collective agreement as varied under Division 8 passes the fairness test if:
(a) the variation of the collective agreement is lodged on or after 7 May 2007; and
(b) on the date of lodgment of the variation:
(i) the employer bound by the collective agreement as varied is bound by an award in respect of the terms and conditions of the kind of work performed or to be performed by the one or more of the employees; or
(ii) one or more of the employees whose employment is subject to the collective agreement as varied is employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employees are usually regulated by an award, or would, but for a workplace agreement or another industrial instrument, usually be regulated by an award; and
(c) the variation excludes or modifies one or more protected award conditions that apply to one or more of those employees under a reference award in relation to the employee or employees.
Note: Paragraph (c) will not be satisfied if there is no reference award in relation to the employee.
346G Provisions about annual rate of salary
(1) The amount mentioned in paragraph 346E(1)(c) or 346F(1)(c) may be increased by the regulations or in the manner prescribed by the regulations.
(2) If an employee is paid a periodic rate of pay, the annual full‑time equivalent amount of salary payable to the employee for the purpose of subparagraph 346E(1)(c)(iii) or 346F(1)(c)(iii) is the salary the employee would earn if the employee were employed on a full‑time basis and paid at the employee's periodic rate of pay.
(3) For the purposes of subsection (2), the salary the employee would earn is to be calculated for the 12 month period beginning on the date on which the AWA is lodged.
(4) If an employee is paid a piece rate of pay and the employee is a full‑time employee, the annual full‑time salary payable to the employee for the purpose of subparagraph 346E(1)(c)(ii) or 346F(1)(c)(ii) is the salary that the employer reasonably estimates the employee would earn.
(5) If an employee is paid a piece rate of pay and the employee is not a full‑time employee, the annual full‑time equivalent amount of salary payable to the employee for the purpose of subparagraph 346E(1)(c)(iii) or 346F(1)(c)(iii) is the salary that the employer reasonably estimates the employee would earn if the employee were employed on a full‑time basis.
(6) The regulations may prescribe one or more methods (whether described, in relation to classes of employees paid piece rates of pay, by the kind of work performed by such employees, or otherwise) by which an employer may reasonably estimate the salary the employee would earn for the purposes of subsections (4) and (5).
(7) For the purpose of subsections (4) and (5), the salary the employee would earn is to be estimated for the 12 month period beginning on the date on which the AWA is lodged.
(8) The regulations may prescribe a different definition of salary for the purposes of paragraph 346E(1)(c) or 346F(1)(c) in relation to employees paid piece rates of pay.
346H Protected award conditions and designated awards--deemed exclusion or modification
(1) For the purposes of paragraphs 346E(1)(d) and 346F(1)(d), an AWA is taken to exclude or modify one or more protected award conditions that apply to an employee under a designated award in relation to the employee if the condition or conditions:
(a) do not have effect in relation to the employee under the AWA; or
(b) have a different effect in relation to the employee than they would have under the designated award.
(2) For the purposes of paragraphs 346E(2)(c) and 346F(2)(c), a collective agreement is taken to exclude or modify one or more protected award conditions that apply to an employee or employees under a designated award in relation to the employee or employees if the condition or conditions:
(a) do not have effect in relation to the employee or employees under the collective agreement; or
(b) have a different effect in relation to the employee or employees than they would have under the designated award.
(1) If the Workplace Authority Director is required to decide under section 346M whether a workplace agreement passes the fairness test, the Workplace Authority Director must give a written notice to that effect to:
(a) the employer in relation to the workplace agreement; and
(b) if the workplace agreement is an AWA--the employee whose employment is subject to the AWA; and
(c) if the agreement is a union collective agreement or a union greenfields agreement--the organisation or organisations bound by the agreement.
(2) If the Workplace Authority Director is not required to decide under section 346M whether a workplace agreement passes the fairness test, the Workplace Authority Director must give a written notice to that effect to the persons referred to in paragraphs (1)(a), (b) and (c).
(3) A notice under this section is not required to be given at the same time as the copy of the receipt is given under section 345 in respect of the declaration for the workplace agreement concerned.
Note: Section 346ZE requires the employer to inform the employees concerned of the contents of a notice under this section in relation to a collective agreement.
346K Designated awards--before a workplace agreement or variation is lodged
(1) The Workplace Authority Director may, on application by an employer, determine that an award is a designated award in relation to an employee or employees of the employer.
Note: For specification by class, see section 46 of the Acts Interpretation Act 1901 .
(2) The Workplace Authority Director may make a determination under this section only if the Workplace Authority Director is satisfied that:
(a) the employee or employees are or may be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:
(i) are usually regulated by an award; or
(ii) would, but for a workplace agreement or another industrial instrument, usually be regulated by an award; and
(b) there is no relevant award in relation to the employee or employees; and
(c) there is an award that satisfies the requirements specified in subsection (3).
(3) An award or awards determined by the Workplace Authority Director under this section:
(a) must be an award or awards regulating, or that would, but for a workplace agreement or another industrial instrument, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed or to be performed by the employee or employees; and
(b) must, in the opinion of the Workplace Authority Director, be an award or awards that would be appropriate for the purposes referred to in subsection 346L(2) if a workplace agreement or a variation of a workplace agreement were lodged; and
(c) must not be an enterprise award.
(4) An award determined under this section in relation to an employee or employees is taken to be the designated award determined by the Workplace Authority Director under section 346L in relation to the employee or employees if the employer later lodges a workplace agreement, or a variation of a workplace agreement, in relation to the employee or the employees.
(5) Despite subsection (4), the Workplace Authority Director may determine under section 346L that another award is a designated award in relation to the employee, or in relation to some or all of the employees, if the Workplace Authority Director is satisfied that it is necessary in all the circumstances to do so.
(6) The Workplace Authority Director may determine different awards under subsection (2) in relation to different employees.
(7) In this section, a reference to an employee or employees of an employer includes a reference to a person or persons who may become an employee or employees of the employer.
(8) A determination made under this section is not a legislative instrument.
346L Designated awards--after a workplace agreement or variation is lodged
(1) This section applies to a workplace agreement if:
(a) in the case of an AWA:
(i) the AWA satisfies the requirements set out in paragraphs 346E(1)(a), (b) and (c); and
(ii) there is no relevant award in relation to the employee whose employment is subject to the AWA; or
(b) in the case of a collective agreement:
(i) the collective agreement satisfies the requirements set out in paragraphs 346E(2)(a) and (b); and
(ii) there is no relevant award in relation to one or more employees whose employment is subject to the collective agreement; or
(c) a variation of the workplace agreement was lodged on or after 7 May 2007, and:
(i) if the workplace agreement is an AWA--the AWA as varied satisfies the requirements set out in paragraphs 346F(1)(b) and (c) and subparagraph (a)(ii) of this subsection; or
(ii) if the workplace agreement is a collective agreement--the collective agreement as varied satisfies the requirements set out in paragraph 346F(2)(b) and subparagraph (b)(ii) of this subsection.
(2) The Workplace Authority Director must determine that an award is a designated award in relation to the employee or employees whose employment is subject to the agreement:
(a) to ascertain whether or not the Workplace Authority Director is required to decide under section 346M whether the workplace agreement, or the workplace agreement as varied, passes the fairness test; and
(b) if the Workplace Authority Director is so required, for the purpose of deciding whether the workplace agreement, or the workplace agreement as varied, passes the fairness test;
unless the Workplace Authority Director is satisfied that there is no award that satisfies the requirements specified in subsection (3).
Note: For specification by class, see section 46 of the Acts Interpretation Act 1901 .
(3) An award or awards determined by the Workplace Authority Director under this section:
(a) must be an award or awards regulating, or that would, but for a workplace agreement or another industrial instrument, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed by the employee or employees under the workplace agreement concerned; and
(b) must, in the opinion of the Workplace Authority Director, be appropriate for the purposes referred to in subsection (2); and
(c) must not be an enterprise award.
(4) The Workplace Authority Director may determine different awards under subsection (2) in relation to different employees.
(5) A determination made under this section is not a legislative instrument.
Subdivision C -- The fairness test
346M When does an agreement pass the fairness test?
(1) A workplace agreement passes the fairness test if:
(a) in the case of an AWA--the Workplace Authority Director is satisfied that the AWA provides fair compensation to the employee whose employment is subject to the AWA in lieu of the exclusion or modification of protected award conditions that apply to the employee; or
(b) in the case of a collective agreement--the Workplace Authority Director is satisfied that, on balance, the collective agreement provides fair compensation, in its overall effect on the employees whose employment is subject to the collective agreement, in lieu of the exclusion or modification of protected award conditions that apply to some or all of those employees.
Note: This section applies to a workplace agreement as varied in a corresponding way to the way in which it applies to a workplace agreement--see subsection 346B(3).
(2) In considering whether a workplace agreement provides fair compensation to an employee, or in its overall effect on employees, the Workplace Authority Director must first have regard to:
(a) the monetary and non‑monetary compensation that the employee or employees will receive under the workplace agreement, in lieu of the protected award conditions that apply to the employee or employees under a reference award in relation to the employee or employees; and
(b) the work obligations of the employee or employees under the workplace agreement.
(3) In considering whether a workplace agreement provides fair compensation to an employee or in its overall effect on employees, the Workplace Authority Director may also have regard to the personal circumstances of the employee or employees, including in particular the family responsibilities of the employee or employees.
(4) In exceptional circumstances, and if the Workplace Authority Director is satisfied that it is not contrary to the public interest to do so, the Workplace Authority Director may, in addition to the matters specified in subsections (2) and (3), also have regard to the industry, location or economic circumstances of the employer and the employment circumstances of the employee or employees when considering whether a workplace agreement provides fair compensation to an employee or in its overall effect on employees.
(5) An example of a case where the Workplace Authority Director may be satisfied that it is not contrary to the public interest to have regard to the industry, location or economic circumstances of the employer is where the workplace agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, the employer's business.
(6) In deciding whether a workplace agreement passes, or does not pass, the fairness test, the Workplace Authority Director may inform himself or herself in any way he or she considers appropriate including (but not limited to) contacting the employer and the employee, or some or all of the employees, whose employment is subject to the workplace agreement.
(7) In this section:
"non-monetary compensation" , in relation to an employee, means compensation (other than an entitlement to a payment of money):
(a) for which there is a money value equivalent or to which a money value can reasonably be assigned; and
(b) that confers a benefit or advantage on the employee which is of significant value to the employee.
346N Agreements to be tested as at lodgment date
(1) In deciding whether a workplace agreement passes, or does not pass, the fairness test, the Workplace Authority Director must consider the agreement as in force immediately after lodgment.
(2) In deciding whether a workplace agreement as varied passes, or does not pass, the fairness test, the Workplace Authority Director must consider the agreement as in force immediately after the variation was lodged.
(3) If:
(a) the Workplace Authority Director is required by section 346E to decide under section 346M whether a workplace agreement passes the fairness test; and
(b) before the Workplace Authority Director decides whether the workplace agreement passes the fairness test, the Workplace Authority Director is required by section 346F to decide under section 346M whether the workplace agreement as varied passes the fairness test;
then:
(c) the Workplace Authority Director must consider the workplace agreement and the workplace agreement as varied as part of the same process; and
(d) to avoid doubt, the Workplace Authority Director must consider, and make a separate decision in respect of, both the workplace agreement and the workplace agreement as varied.
346P Workplace Authority Director must notify of decision
(1) If the Workplace Authority Director decides under section 346M that a workplace agreement passes the fairness test, the Workplace Authority Director must notify the following of the decision:
(a) the employer in relation to the workplace agreement;
(b) if the workplace agreement is an AWA--the employee whose employment is subject to the AWA;
(c) if the agreement is a union collective agreement or a union greenfields agreement--the organisation or organisations bound by the agreement.
(2) If the Workplace Authority Director decides under section 346M that a workplace agreement does not pass the fairness test, the Workplace Authority Director must notify the persons referred to in paragraphs (1)(a), (b) and (c) of the decision.
(3) If the Workplace Authority Director decides under section 346M that a workplace agreement does not pass the fairness test, the notice must also:
(a) in the case of a workplace agreement that is in operation on the date of issue specified in the notice--contain advice as to how the agreement could be varied to pass the fairness test (including by way of an undertaking); and
(b) in any case--state that compensation may be payable by the employer to the employee or employees under section 346ZD.
(4) If subsection 346N(3) requires the Workplace Authority Director to consider, and make a separate decision in respect of, both a workplace agreement and the workplace agreement as varied, the notice under this section must deal with both agreements.
(5) A notice under this section:
(a) must be in writing; and
(b) must specify the date of issue of the notice.
Note: Section 346ZE requires the employer to inform the employees concerned of the contents of a notice under this section in relation to a collective agreement.
Subdivision D -- Consequences if a workplace agreement does not pass the fairness test
346Q Agreement does not pass fairness test--agreement not in operation
If:
(a) the Workplace Authority Director decides under section 346M that a workplace agreement does not pass the fairness test; and
(b) the workplace agreement is not in operation in relation to any employee immediately before the date of the decision;
the employee or employees whose employment was at any time subject to the workplace agreement are, on and from the date of issue specified in the notice under section 346P in relation to the workplace agreement, entitled to any compensation payable to the employee or employees under section 346ZD.
346R Agreement does not pass fairness test--agreement in operation
(1) This section applies if:
(a) the Workplace Authority Director decides under section 346M that a workplace agreement does not pass the fairness test; and
(b) the workplace agreement is in operation immediately before the date of the decision.
(2) The employer who is bound by the workplace agreement may:
(a) in the case of an AWA--lodge a variation of the AWA with the Workplace Authority Director; or
(b) in the case of an AWA or a collective agreement--lodge a variation of the workplace agreement by giving to the Workplace Authority Director a written undertaking in relation to the AWA or collective agreement.
(3) If the employer does not take the action referred to in subsection (2) within the relevant period in relation to the workplace agreement, then at the end of that period:
(a) the workplace agreement ceases to operate; and
(b) the employee or employees whose employment was at any time subject to the workplace agreement are, after the end of the relevant period in relation to the workplace agreement, entitled to any compensation payable to the employee or employees under section 346ZD.
(4) Despite subsection (3), if:
(a) because of subsection 346N(3), the Workplace Authority Director considered, and made a separate decision in respect of, both a workplace agreement and the workplace agreement as varied; and
(b) the workplace agreement did not pass the fairness test, but the workplace agreement as varied passed the fairness test;
the workplace agreement as varied continues in operation, and the employee or employees whose employment was at any time subject to the workplace agreement, whether before or after the variation was lodged are, after the end of the relevant period in relation to the workplace agreement, entitled to any compensation payable to the employee or employees under section 346ZD.
(5) For the purposes of paragraph (2)(a), Division 8 does not apply to the variation of an AWA, except for the following provisions:
(a) subsection 373(1);
(b) section 374.
(6) For the purposes of paragraph (2)(b), Division 8 does not apply to an undertaking given to the Workplace Authority Director in relation to an AWA or a collective agreement.
(7) In this section:
"relevant period" , in relation to a workplace agreement, means:
(a) the period of 14 days beginning on the date of issue specified in the notice under section 346P in relation to the workplace agreement; or
(b) if a longer period is prescribed by the regulations for the purposes of this paragraph--that period; or
(c) if the period referred to in paragraph (a) or (b) is extended under subsection (8) in relation to the workplace agreement--the period as extended.
(8) The Workplace Authority Director may extend the period referred to in paragraph (7)(a) or (b), as the case requires, in relation to a particular workplace agreement in circumstances prescribed by the regulations.
346S Lodging of variation documents with the Workplace Authority Director
(1) An employer lodges a variation with, or gives an undertaking to, the Workplace Authority Director under section 346R if:
(a) the employer lodges a declaration under subsection (2); and
(b) a copy of the variation or undertaking is annexed to the declaration.
(2) An employer lodges a declaration with the Workplace Authority Director if:
(a) the employer gives it to the Workplace Authority Director; and
(b) it meets the form requirements mentioned in subsection (3).
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(3) The Workplace Authority Director may, by notice published in the Gazette , set out requirements for the form of a declaration for the purposes of paragraph (2)(b). The requirements may be different for variations and undertakings.
(4) A declaration is given to the Workplace Authority Director for the purposes of subsection (2) only if the declaration is actually received by the Workplace Authority Director.
Note: This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) and section 160 of the Evidence Act 1995 do not apply to lodgment of a declaration.
346T Operation of section 346R variations
(1) A variation of an AWA under paragraph 346R(2)(a) comes into operation when the variation is lodged with the Workplace Authority Director under that paragraph in accordance with section 346S.
(2) A variation of an AWA or a collective agreement by way of an undertaking under paragraph 346R(2)(b) comes into operation when the undertaking is given to the Workplace Authority Director under that paragraph in accordance with section 346S.
(3) For the purposes of this Act, an undertaking given by an employer to the Workplace Authority Director in relation to an AWA or a collective agreement is taken to be a variation of the AWA or collective agreement, as the case may be, lodged by the employer under section 346R.
346U Workplace Authority Director must test varied agreement
(1) If an employer lodges a variation of a workplace agreement under section 346R, the Workplace Authority Director must decide under this section whether the workplace agreement as varied passes the fairness test set out in section 346M.
(2) If the Workplace Authority Director decides under subsection (1) that a workplace agreement as varied passes the fairness test, the Workplace Authority Director must notify the following of the decision:
(a) the employer in relation to the workplace agreement;
(b) if the workplace agreement is an AWA--the employee whose employment is subject to the AWA;
(c) if the agreement is a union collective agreement or a union greenfields agreement--the organisation or organisations bound by the agreement.
(3) If the Workplace Authority Director decides under subsection (1) that a workplace agreement as varied does not pass the fairness test, the Workplace Authority Director must notify the persons referred to in paragraphs (2)(a), (b) and (c) of the decision.
(4) A notice under this section must be in writing and must specify:
(a) the date of issue of the notice; and
(b) if the workplace agreement as varied passes the fairness test:
(i) that the workplace agreement continues in operation; and
(ii) that the workplace agreement was varied by way of a variation or a written undertaking, as the case may be; and
(iii) that the employee or employees whose employment is, or was at any time, subject to the workplace agreement are, on and from the date of issue of the notice, entitled to any compensation payable to the employee or employees under section 346ZD; and
(c) if the workplace agreement as varied does not pass the fairness test:
(i) that, if the workplace agreement was in operation immediately before the date of issue of the notice--the agreement ceases to operate on the date of issue of the notice; and
(ii) that the employee or employees whose employment was at any time subject to the workplace agreement are, on and from the date of issue of the notice, entitled to any compensation payable to the employee or employees under section 346ZD.
Note: Section 346ZE requires the employer to inform the employees concerned of the contents of a notice under this section in relation to a collective agreement.
(5) In deciding under this section whether a workplace agreement passes, or does not pass, the fairness test, the Workplace Authority Director may inform himself or herself in any way he or she considers appropriate including (but not limited to) contacting the employer and the employee, or some or all of the employees, whose employment is subject to the workplace agreement.
346V Effect if varied agreement does not pass fairness test--agreement not in operation
If:
(a) the Workplace Authority Director decides under subsection 346U(1) that a workplace agreement as varied does not pass the fairness test; and
(b) the workplace agreement is not in operation in relation to any employee immediately before the date of the decision;
the employee or employees whose employment was at any time subject to the workplace agreement are, on and from the date of issue specified in the notice under section 346U in relation to the workplace agreement, entitled to any compensation payable to the employee or employees under section 346ZD.
346W Effect if varied agreement does not pass fairness test--agreement in operation
If the Workplace Authority Director decides under subsection 346U(1) that a workplace agreement as varied does not pass the fairness test:
(a) the workplace agreement ceases to operate on the date of issue specified in the notice under that section in respect of the workplace agreement; and
(b) the employee or employees whose employment was at any time subject to the workplace agreement are, on and from the date of issue specified in the notice under section 346U in relation to the workplace agreement, entitled to any compensation payable to the employee or employees under section 346ZD.
346X Effect if varied agreement passes fairness test--agreement in operation
If the Workplace Authority Director decides under subsection 346U(1) that a workplace agreement as varied passes the fairness test:
(a) the workplace agreement continues in operation; and
(b) the employee or employees whose employment is, or was at any time, subject to the workplace agreement are, on and from the date of issue specified in the notice under section 346U in relation to the workplace agreement, entitled to any compensation payable to the employee or employees under section 346ZD.
Note: Even though the workplace agreement has been varied so that it passes the fairness test, compensation may be payable in respect of the period when the agreement did not pass the fairness test.
(1) This section applies if, on a particular day (the cessation day ), a workplace agreement (the original agreement ) ceases to operate under section 346R or 346W because the original agreement does not pass the fairness test.
(2) The employer and the employee or employees who were bound by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be bound by:
(a) the instrument or instruments that, but for the original agreement having come into operation, would have bound the employer and the employee or employees on and from the cessation day; or
(b) if there is no instrument of a kind referred to in paragraph (a) in relation to the employer and one or more of the employees--the designated award in relation to that employee or those employees, to the extent that the designated award contains protected award conditions.
Note: A workplace agreement binds all persons whose employment is, at any time when the agreement is in operation, subject to the agreement (see paragraph 351(b)). A collective agreement may therefore bind an employer in relation to existing and future employees.
(3) If the original agreement is a workplace agreement as varied under Division 8, the workplace agreement as in force before the variation was lodged is, despite section 346ZB, capable of being an instrument described in paragraph (2)(a).
(4) An instrument that has ceased to operate in relation to an employee or employees is capable of being an instrument described in paragraph (2)(a) only if the reason it ceased to operate was because the original agreement came into operation in relation to the employee or employees.
(4A) Despite subsection (2), if the original agreement is a workplace agreement that, after lodgment, becomes binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585, this section does not have the effect of binding the new employer and the transferring employee or transferring employees to an instrument or to a designated award.
Note: The employment arrangements that have effect in relation to the new employer and the transferring employee or transferring employees are as set out in section 346YA.
(5) In this section:
"instrument" means any of the following:
(a) a workplace agreement;
(b) an award;
(c) a workplace determination;
(d) an employment agreement (within the meaning of section 887);
(e) a pre‑reform certified agreement (within the meaning of Schedule 7);
(f) a pre‑reform AWA;
(g) a section 170MX award (within the meaning of Schedule 7);
(h) an exceptional matters order (within the meaning of Schedule 7);
(i) an old IR agreement (within the meaning of Schedule 7).
Note: Preserved State agreements and notional agreements preserving State awards are dealt with in Schedule 8.
(1) This section applies if:
(a) on a particular day (the cessation day ), a workplace agreement (the original agreement ) ceases to operate under section 346R or 346W because the original agreement does not pass the fairness test; and
(b) during the period beginning when the original agreement was lodged and ending on the cessation day, the original agreement became binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585 in relation to a business being transferred; and
(c) the cessation day occurs during the transmission period in relation to the business being transferred.
Note: If the cessation day occurs after the transmission period ends, the rules in Part 11 will have effect according to their terms.
(2) The new employer and the transferring employee or transferring employees who were bound by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be bound by:
(a) the instrument:
(i) that, but for the original agreement having come into operation, would have bound the old employer and the transferring employee or transferring employees immediately before the time of transmission; and
(ii) that was capable of binding the new employer after the time of transmission under Part 11, Schedule 6 or Schedule 9; 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 in relation to that employee or those employees, to the extent that the designated award contains protected award conditions.
(3) If, but for the original agreement having come into operation, the old employer would have been bound, immediately before the time of transmission, under a designated provision by a redundancy provision in relation to a transferring employee or transferring employees whose employment was subject to the original agreement, the new employer is taken:
(a) to be bound under section 598A or clause 27A of Schedule 9, as the case requires, on and from the cessation day, by the redundancy provision in relation to the transferring employee or transferring employees; and
(b) to continue to be so bound until the earliest of the following:
(i) the end of the period of 12 months beginning on the first day on which the old employer became bound under a designated provision by the redundancy provision;
(ii) the time when the employee ceases to be employed by the new employer;
(iii) the time when another workplace agreement comes into operation in relation to the transferring employee or the transferring employees and the new employer.
(4) If the original agreement is a workplace agreement as varied under Division 8, the workplace agreement as in force before the variation was lodged is, despite section 346ZB, capable of being an instrument described in paragraph (2)(a).
(5) In this section:
"designated provision" has the same meaning as in section 346ZA.
"instrument" means any of the following:
(a) a workplace agreement;
(b) an award;
(c) a pre‑reform certified agreement (within the meaning of Schedule 7);
(d) a pre‑reform AWA.
Note: Preserved State agreements and notional agreements preserving State awards are dealt with in Schedule 8.
346Z Effect of sections 346Y and 346YA in relation to instruments
(1) If, because of the operation of section 346Y, an employer and an employee or employees, as the case requires, are taken to be bound by an instrument, the instrument is taken, despite any other provision of this Act, to operate again, or to have effect again, as the case requires, in relation to the employer and the employee or employees, on and from the cessation day.
Note 1: Subsections 347(7A), (8A) and (9A) modify the rule that an AWA or a collective agreement that has ceased to operate can never operate again.
Note 2: The following provisions operate in a similar way for other instruments:
(a) subsection 506(5) (workplace determinations);
(b) subsection 890(3) (employment agreements within the meaning of section 887);
(c) subclause 3(5A) of Schedule 7 (pre‑reform certified agreements);
(d) subclause 18(5) of Schedule 7 (pre‑reform AWAs);
(e) subclause 25(4) of Schedule 7 (section 170MX awards);
(f) subclause 27(2) of Schedule 7 (exceptional matters orders);
(g) subclause 28(5) of Schedule 7 (old IR agreements).
Note 3: An award has no effect in relation to an employee while a workplace agreement operates in relation to the employee (see section 349), but once the workplace agreement has ceased to operate, the award is capable of operating again.
(2) If, because of the operation of section 346YA, a new employer and a transferring employee or transferring employees are taken to be bound by an instrument, the instrument is taken, despite any other provision of this Act, to have effect in relation to the new employer and the transferring employee or employees throughout the period:
(a) beginning on the cessation day; and
(b) ending at the end of the transmission period in relation to the business being transferred;
as if the new employer and the transferring employee or transferring employees had become bound by the instrument under Part 11, Schedule 6 or Schedule 9, as the case requires.
346ZA Redundancy provisions and section 394 undertakings
(1) This section applies if, on a particular day (the cessation day ), a workplace agreement (the original agreement ) ceases to operate under section 346R or 346W because the original agreement does not pass the fairness test.
(2) If, immediately before the day on which the original agreement was lodged, the employer was bound under a designated provision by a redundancy provision in relation to an employee whose employment was subject to the original agreement, the employer is taken:
(a) to be bound under the designated provision by the redundancy provision in relation to the employee on and from the cessation day; and
(b) to continue to be so bound until the earliest of the following:
(i) the end of the period of 12 months beginning on the first day on which the employer became bound under the designated provision by the redundancy provision;
(ii) the time when the employee ceases to be employed by the employer;
(iii) the time when another workplace agreement comes into operation in relation to the employee and the employer.
(3) If, immediately before the day on which the original agreement was lodged, the employer was bound by an undertaking under subsection 394(1) in relation to an employee whose employment was subject to the original agreement, the employer is taken:
(a) to be bound under section 394 by the undertaking in relation to the employee on and from the cessation day; and
(b) to continue to be so bound until the earlier of the following:
(i) the time when the employee ceases to be employed by the employer;
(ii) the time when another workplace agreement comes into operation in relation to the employee and the employer.
(4) In this section:
"designated provision" means a redundancy provision within the meaning of any of the following:
(a) section 399A;
(b) clause 6A of Schedule 7;
(c) clause 20A of Schedule 7.
346ZB Operation of workplace agreements
A workplace agreement that has ceased to operate because it does not pass the fairness test can never operate again.
Note: This rule is subject to subsection 346Y(3), which deals with the situation where a workplace agreement as varied under Division 8 does not pass the fairness test.
346ZC Regulations may make provision for operation of provisions of revived instruments
The regulations may make provision for and in relation to the operation of instruments that are taken to bind an employer and the employees because of the operation of section 346Y or 346YA.
Subdivision E -- Entitlement to compensation
346ZD Employee is entitled to compensation in respect of fairness test period
(1) This section applies to an employee who is entitled to compensation under this section on and from a particular day because a workplace agreement binding on the employee's employer did not pass the fairness test.
Note 1: Sections 346Q, 346R, 346V, 346W and 346X specify the day on which an employee's entitlement to compensation takes effect.
Note 2: An employee may be able to recover compensation even where a workplace agreement that initially does not pass the fairness test is varied so that it subsequently passes the fairness test--see section 346X.
(2) If the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b), the employer must pay to the employee the amount of the shortfall:
(a) the total value of the entitlements to which the employee was entitled, under the workplace agreement, and under any other applicable law, agreement or arrangement that operated in conjunction with the workplace agreement, in respect of one or more periods of employment during the fairness test period for the workplace agreement;
(b) the total value of the entitlements to which the employee would have been entitled, in respect of one or more periods of employment of the employee during the fairness test period, worked out in accordance with the assumptions set out in subsection (2A).
(2A) For the purposes of working out the total value of the entitlements to which the employee would have been entitled, in respect of one or more periods of employment of the employee during the fairness test period, it is to be assumed that, during that period or those periods of employment:
(a) the employee's employment was subject to:
(i) the instrument or instruments that, but for the workplace agreement, would have bound the employer in relation to that period or those periods of employment of the employee; or
(ii) if there is no such instrument--the designated award in relation to the employee, to the extent that it contains protected award conditions; and
(b) the employer was bound, under a designated provision, by any redundancy provision that, but for the workplace agreement having come into operation, would have bound the employer in relation to the employee; and
(c) the employer was bound under section 394 by any undertaking that, but for the workplace agreement having come into operation, would have bound the employer in relation to the employee; and
(d) the employee's employment was subject to any other applicable law, agreement or arrangement that would have operated in conjunction with the instrument or instruments referred to in subparagraph (a)(i), or the designated award referred to in subparagraph (a)(ii), as the case requires.
(2B) If, because of the operation of section 583 or 585, the workplace agreement bound an old employer and a new employer in relation to the employment of a transferring employee during the fairness test period:
(a) the transferring employee is entitled to be paid compensation by the old employer in respect of the period or periods during which the employee was employed by the old employer, worked out in accordance with the assumptions set out in subsection (2A); and
(b) the transferring employee is entitled to be paid compensation by the new employer in respect of the period or periods during which the employee was employed by the new employer, worked out in accordance with the assumptions set out in subsection (2A), subject to the following modifications:
(i) subparagraph (2A)(a)(i) is taken to refer to the instrument described in paragraph 346YA(2)(a); and
(ii) a reference in paragraph (2A)(b) to a designated provision is taken to be a reference to section 598A or clause 27A of Schedule 9, as the case requires.
(3) An employer breaches this section if the employer does not pay to the employee the amount of the shortfall calculated under subsection (2) within whichever of the following periods is applicable:
(a) if the employee is entitled to compensation because of the operation of section 346Q in respect of the workplace agreement--the period of 14 days beginning on the date of issue specified in the notice under section 346P in relation to the workplace agreement;
(b) if the employee is entitled to compensation because of the operation of section 346R in respect of the workplace agreement--the period of 14 days beginning at the end of the relevant period (within the meaning of section 346R) in relation to the workplace agreement;
(c) if the employee is entitled to compensation because of the operation of section 346V, 346W or 346X in respect of the workplace agreement--the period of 14 days beginning on the date of issue specified in the notice under section 346U in relation to the workplace agreement.
Note: Compliance with this section is dealt with in Part 14--this section is an applicable provision within the meaning of section 717.
(4) In this section:
"designated provision" has the same meaning as in section 346ZA.
"fairness test period" , in relation to a workplace agreement, means:
(a) the period:
(i) beginning on the day on which the workplace agreement was lodged; and
(ii) ending on the day on which the workplace agreement ceased to operate (whether because of the operation of this Division or otherwise); or
(b) if the workplace agreement is continued in effect because of the operation of subsection 346R(4) or section 346X--the period:
(i) beginning on the day on which the workplace agreement was lodged; and
(ii) ending on the day on which the variation of the workplace agreement was lodged under section 346R or, if the workplace agreement had been varied before that day in such a way as to pass the fairness test, on that earlier day.
"instrument" has the same meaning as in section 346Y.
Subdivision F -- Civil remedy provisions
346ZE Employer must notify employees
(1) An employer that has received a notice under section 346J, 346P or 346U in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment is subject to the agreement when the employer receives the notice are given a copy of the notice as soon as practicable.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
346ZEA Notice requirements in relation to transmission of business
(1) This section applies if:
(a) a new employer is bound by a workplace agreement (the transmitted workplace agreement ) in relation to a transferring employee because of section 583 or 585; and
(b) before the time of transmission in relation to the business being transferred, the Workplace Authority Director gave notice to the old employer under section 346J that the Workplace Authority Director must decide under section 346M or 346U whether the transmitted workplace agreement passes the fairness test; and
(c) as at the time of transmission, the Workplace Authority Director has not yet decided whether the transmitted workplace agreement passes the fairness test under whichever of those sections is applicable.
(2) The old employer must take reasonable steps to give a written notice to the Workplace Authority Director that:
(a) identifies the transmitted workplace agreement; and
(b) states whether or not the old employer remains bound by the transmitted workplace agreement in relation to the employment of any employees; and
(c) specifies the date on which the transmission period in relation to the business being transferred ends; and
(d) specifies the name and address of the new employer.
(3) Subsection (2) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
346ZF Employer not to dismiss etc. employee because agreement does not pass the fairness test
(1) An employer must not:
(a) dismiss an employee; or
(b) threaten to dismiss an employee;
if the sole or dominant reason for the employer dismissing, or threatening to dismiss, the employee is that a workplace agreement does not, or may not, pass the fairness test.
(2) Subsection (1) is a civil remedy provision.
Note 1: An employee may still be entitled to compensation under section 346ZD if his or her workplace agreement does not pass the fairness test.
Note 2: A breach of this provision is enforceable by a workplace inspector--see Division 11 for provisions on enforcement.
(3) In proceedings alleging a contravention of subsection (1) it is presumed that the employer's sole or dominant reason was that the workplace agreement did not, or may not, pass the fairness test, unless the employer proves otherwise.
Note: Division 3 of Part 14 contains other provisions relevant to civil remedies.
346ZG Other remedies for the contravention of section 346ZF
(1) The Court, on application by an eligible person, may make one or more of the following orders in relation to an employer who has contravened subsection 346ZF(1):
(a) an order requiring the employer to pay a specified amount to the employee as compensation for damage suffered by the employee as a result of the contravention;
(b) any other order that the Court considers appropriate.
Note: The employee may still be entitled to compensation under section 346ZD if his or her workplace agreement does not pass the fairness test.
(2) The orders that may be made under paragraph (1)(b) include:
(a) injunctions; and
(b) any other orders that the Court considers necessary to stop the conduct or remedy its effects.
(3) In this section:
"eligible person" means any of the following:
(a) a workplace inspector;
(b) an employee affected by the contravention;
(c) an organisation of employees that:
(i) has been requested in writing, by the employee concerned, to apply on the employee's behalf; and
(ii) has a member employed by the employee's employer; and
(iii) is entitled, under its eligibility rules, to represent the industrial interests of the employee in relation to work carried on by the employee for the employer;
(d) a person prescribed by the regulations for the purposes of this paragraph.
(4) A regulation prescribing persons for the purposes of paragraph (d) of the definition of eligible person may provide that a person is prescribed only in relation to circumstances specified in the regulation.
346ZH Employer not to require employee to agree to exclude or modify a protected award condition
(1) An employer must not, in relation to a workplace agreement:
(a) take, or threaten to take, any action; or
(b) refrain, or threaten to refrain, from taking any action;
with intent to coerce an existing employee to agree, or not to agree, to excluding or modifying a protected award condition.
(2) Subsection (1) does not apply to protected action (within the meaning of section 435).
(3) Subsection (1) is a civil remedy provision.
Note: A breach of this provision is enforceable by a workplace inspector--see Division 11 for provisions on enforcement.
Part 2 -- Consequential amendments
2 After paragraph 337(4)(c)
Insert:
(ca) information about the circumstances in which the Workplace Authority Director is required to decide whether the agreement passes the fairness test set out in section 346M; and
3 Subsection 344(5)
After "this Part", insert "(other than Division 5A)".
4 After paragraph 347(4)(b)
Insert:
(ba) the Workplace Authority Director decides under section 346M that the agreement does not pass the fairness test and the employer who is bound by the agreement does not take the action referred to in subsection 346R(2) within the relevant period (as defined in subsection 346R(7)) in relation to the agreement; or
(bb) the Workplace Authority Director decides under section 346U that the agreement as varied does not pass the fairness test; or
5 After subsection 347(7)
Insert:
(7A) Despite subsection (7), an AWA that has ceased to operate can operate again if:
(a) the AWA ceased to operate because it was replaced by another AWA (the replacement AWA ); and
(b) the replacement AWA later ceased to operate because it did not pass the fairness test.
Note: See sections 346Y, 346YA and 346Z.
6 After subsection 347(8)
Insert:
(8A) Despite subsection (8), a collective agreement that has ceased to operate can operate again if:
(a) the collective agreement ceased to operate because it was replaced after its nominal expiry date by another collective agreement (the replacement collective agreement ); and
(b) the replacement collective agreement later ceased to operate because it did not pass the fairness test.
Note: See sections 346Y, 346YA and 346Z.
7 After subsection 347(9)
Insert:
(9A) Despite subsection (9), a multiple‑business agreement that has ceased to operate in relation to a single business (or part of a single business) can operate again if:
(a) the multiple‑business agreement ceased to operate because it was replaced by another collective agreement (the replacement collective agreement ) in accordance with subsection (6); and
(b) the replacement collective agreement later ceased to operate because it did not pass the fairness test.
Note: See sections 346Y, 346YA and 346Z.
8 At the end of subsection 354(2)
Add:
Note: A workplace agreement that excludes or modifies certain protected award conditions is subject to Division 5A (which relates to the fairness test).
9 After paragraph 367(2)(a)
Insert:
(aa) section 346R (which deals with agreements that do not pass the fairness test); or
10 Subsection 377(5)
After "this Part", insert "(other than Division 5A)".
11 At the end of section 394
Add:
(8) Despite subsection (7), undertakings that have ceased to operate can operate again under this section if:
(a) the undertakings ceased to operate because they were replaced by a workplace agreement (the replacement workplace agreement ); and
(b) the replacement workplace agreement later ceased to operate because it did not pass the fairness test.
Note: See section 346ZA.
12 At the end subsection 400(6)
Add ", other than in the circumstance described in subsection (6A)".
13 After subsection 400(6)
Insert:
(6A) The circumstance referred to in subsection (6) is that:
(a) the first person mentioned in subsection (6) is a new employer; and
(b) the new employer requires another person to make an AWA; and
(c) the other person would, if employed by the new employer, be a transferring employee; and
(d) the requirement to make the AWA is a condition of the other person becoming employed in the business being transferred.
14 At the end of section 400
Add:
(8) In this section:
"business being transferred" has the same meanings as in section 579, clause 72C of Schedule 6 and subclause 4(2) of Schedule 9.
"new employer" has the same meanings as in section 579 and subclause 4(1) of Schedule 9, and includes a new transitional employer within the meaning of clause 72C of Schedule 6.
"transferring employee" has the same meanings as in section 579 and clause 3 of Schedule 9, and includes a transferring transitional employee within the meaning of clause 72C of Schedule 6.
15 After paragraph 407(2)(ja)
Insert:
(jb) for subsection 346ZE(1)--30 penalty units;
(jba) for subsection 346ZEA(2)--30 penalty units;
(jc) for subsection 346ZF(1)--60 penalty units;
(jd) for subsection 346ZH(1)--60 penalty units;
16 Paragraph 416(1)(a)
After "344(2),", insert "346S(2),".
17 Paragraph 416(1)(d)
After "subsection", insert "346J(1) or (2), 346P(1) or (2), 346U(2) or".
18 At the end of subsection 416(1)
Add:
; (g) a determination that an award is a designated award made by the Workplace Authority Director under section 346K or 346L.
19 Paragraph 417(1)(a)
After "344(2),", insert "346S(2),".
20 Paragraph 417(1)(g)
After "paragraph", insert "346P(3)(a) or".
21 Paragraph 417(1)(k)
After "subsection", insert "346J(1) or (2), 346P(1) or (2), 346U(2) or".
22 At the end of section 506
Add:
(5) To avoid doubt, a workplace determination that has ceased to operate because of subsection (4) can operate again if:
(a) the workplace determination ceased to operate because it was replaced by a collective agreement (the replacement collective agreement ); and
(b) the replacement collective agreement later ceased to operate because it did not pass the fairness test.
Note: See sections 346Y and 346Z.
23 Section 717 (after paragraph (a) of the definition of applicable provision )
Insert:
(aa) section 346ZD (fairness test compensation); and
24 Subsection 718(1) (after item 5 of the table)
Insert:
|
5A |
section 346ZD (fairness test compensation) |
(a) an employee to whom section 346ZD applies; (b) an organisation of employees (subject to subsection (6)); (c) an inspector |
25 Subsection 718(2)
After "4,", insert "5A,".
26 After paragraph 718(6)(b)
Insert:
(ba) section 346ZD; or
27 At the end of section 890
Add:
(3) To avoid doubt, an employment agreement that has ceased to be in force because of subsection (2) can come into force again if:
(a) the employment agreement ceased to be in force because it was replaced by a workplace agreement (the replacement workplace agreement ); and
(b) the replacement workplace agreement later ceased to operate because it did not pass the fairness test.
Note: See sections 346Y and 346Z.
28 At the end of clause 89 of Schedule 6
Add:
(3) If:
(a) a workplace agreement binds an employer and employees; and
(b) immediately before the day on which the workplace agreement was lodged, a common rule had the effect of regulating employers in respect of the employment of their employees;
then, Division 5A of Part 8 of this Act (which deals with the fairness test) has effect in relation to that workplace agreement as if:
(c) a reference in that Division to a relevant award included a reference to a common rule that has effect, or continues to have effect, because of this Subdivision; and
(d) the definition of instrument in subsection 346Y(5) included a reference to a common rule that has effect, or continues to have effect, because of this Subdivision.
29 Clause 95 of Schedule 6
Before "A", insert "(1)".
30 At the end of clause 95 of Schedule 6
Add:
(2) If:
(a) a workplace agreement binds an employer and an employee or employees; and
(b) immediately before the day on which the workplace agreement was lodged, the employer and employee or employees were bound by a transitional Victorian reference award in respect of the employee's or employees' employment;
then, Division 5A of Part 8 of this Act (which deals with the fairness test) has effect in relation to that workplace agreement as if:
(c) a reference in that Division to a relevant award included a reference to a transitional Victorian reference award; and
(d) the definition of instrument in subsections 346Y(5) and 346YA(5) included a reference to a transitional Victorian reference award.
31 Clause 102 of Schedule 6
Before "A", insert "(1)".
32 At the end of clause 102 of Schedule 6
Add:
(2) If:
(a) a workplace agreement binds an employer and employees; and
(b) immediately before the day on which the workplace agreement was lodged, a transitional award (other than a Victorian reference award) regulated the employer, being an excluded employer, in respect of the employment of employees in Victoria;
then, Division 5A of Part 8 of this Act (which deals with the fairness test) has effect in relation to that workplace agreement as if:
(c) a reference in that Division to a relevant award included a reference to a transitional award (other than a Victorian reference award) to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria; and
(d) the definition of instrument in subsections 346Y(5) and 346YA(5) included a reference to a transitional award (other than a Victorian reference award) to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria.
33 After subclause 3(5) of Schedule 7
Insert:
(5A) Despite subclause (5), a pre‑reform certified agreement that has ceased to operate because of subclause (1) can operate again if:
(a) the pre‑reform certified agreement ceased to operate because it was replaced by a collective agreement (the replacement collective agreement ); and
(b) the replacement collective agreement later ceased to operate because it did not pass the fairness test.
Note: See sections 346Y, 346YA and 346Z.
34 At the end of clause 18 of Schedule 7
Add:
(5) Despite subclause (4), a pre‑reform AWA that has ceased to operate because of subclause (1) can operate again if:
(a) the pre‑reform AWA ceased to operate because it was replaced by an AWA (the replacement AWA ); and
(b) the replacement AWA later ceased to operate because it did not pass the fairness test.
Note: See sections 346Y, 346YA and 346Z.
35 At the end of clause 25 of Schedule 7
Add:
(4) To avoid doubt, a section 170MX award that has ceased to operate because of subclause (2) can operate again if:
(a) the section 170MX award ceased to operate because it was replaced by a collective agreement (the replacement collective agreement ); and
(b) the replacement collective agreement later ceased to operate because it did not pass the fairness test.
Note 1: See sections 346Y and 346Z.
Note 2: Under subclause (1), a section 170MX award has no effect in relation to an employee while an AWA operates in relation to the employee, but once the AWA has for any reason ceased to operate, the section 170MX award is capable of operating again.
36 Clause 27 of Schedule 7
Before "An", insert "(1)".
37 At the end of clause 27 of Schedule 7
Add:
(2) To avoid doubt, an exceptional matters order that has ceased to be in force because of subclause (2) can come into force again if:
(a) the exceptional matters order ceased to be in force because it was replaced by a workplace agreement (the replacement workplace agreement ); and
(b) the replacement workplace agreement later ceased to operate because it did not pass the fairness test.
Note: See sections 346Y and 346Z.
38 At the end of clause 28 of Schedule 7
Add:
(5) Despite subclause (4), an old IR agreement that has ceased to operate because of subclause (2) can operate again if:
(a) the old IR agreement ceased to operate because it was replaced by a workplace agreement (the replacement workplace agreement ); and
(b) the replacement workplace agreement later ceased to operate because it did not pass the fairness test.
Note: See sections 346Y and 346Z.
39 At the end of clause 15G of Schedule 8
Add:
(4) Despite subclause (3), a preserved State agreement that has ceased operating because of subclause (2) can operate again if:
(a) the preserved State agreement ceased to operate because it was replaced by a workplace agreement (the replacement workplace agreement ); and
(b) the replacement workplace agreement later ceased to operate because it did not pass the fairness test.
Note: See sections 346Y, 346YA and 346Z.
40 At the end of clause 38A of Schedule 8
Add:
(5) Despite subclause (4), a notional agreement that has ceased operating because of subclause (2) can operate again if:
(a) the notional agreement ceased to operate because it was replaced by a workplace agreement (the replacement workplace agreement ); and
(b) the replacement workplace agreement later ceased to operate because it did not pass the fairness test.
Note: See sections 346Y, 346YA and 346Z.
41 At the end of Division 6A of Part 2 of Schedule 8
Add:
25B Application of fairness test where employment was subject to preserved State agreement
(1) If:
(a) a workplace agreement binds an employer and an employee or employees; and
(b) immediately before the day on which the workplace agreement was lodged, the employer and employee or employees were bound by a preserved State agreement in respect of the employee's or employees' employment; and
(c) the workplace agreement contains protected preserved conditions because of paragraph 25A(2)(a) of this Schedule;
then, Division 5A of Part 8 of this Act (which deals with the fairness test) has effect in relation to that workplace agreement as if:
(d) a reference in that Division to protected award conditions were a reference to protected preserved conditions; and
(e) a reference in that Division to a relevant award or a reference award were a reference to a relevant preserved State agreement; and
(f) paragraph 346C(1)(a) were substituted with the following paragraph:
"(a) if the protected preserved conditions are taken to be included in the workplace agreement because of paragraph 25A(2)(a) of Schedule 8."; and
(g) paragraph 346C(1)(b) and subsection 346C(2) were omitted; and
(h) paragraphs 346E(1)(b) and (2)(b) and 346F(1)(b) and (2)(b) were omitted; and
(i) sections 346H, 346K and 346L were omitted; and
(j) paragraphs 346Y(2)(b) and 346YA(2)(b) were substituted with the following paragraph:
"(b) if there is no instrument of a kind referred to in paragraph (a) in relation to the employer and one or more of the employees--protected preserved conditions that were taken to be contained in the original agreement as if those conditions were never excluded or modified by the agreement."; and
(k) the definition of instrument in subsections 346Y(5) and 346YA(5) included a reference to a preserved State agreement; and
(l) the definition of designated provision in subsection 346ZA(4) included a reference to clauses 21A and 21D of Schedule 8; and
(m) subparagraph 346ZD(2A)(a)(ii) were substituted with the following subparagraph:
"(ii) if there is no such instrument--protected preserved conditions in relation to the employee.".
(2) For the purpose of paragraphs 346Y(2)(b) and 346YA(2)(b) (as substituted by paragraph (1)(j) of this clause), Parts 6 and 14 of this Act apply to protected preserved conditions as if the conditions were:
(a) if the workplace agreement was an AWA--an AWA in operation; or
(b) if the workplace agreement was a collective agreement--a collective agreement in operation.
(3) In this clause:
"protected preserved condition" has the same meaning as in subclause 25A(4), subject to subclause (4) of this clause.
"relevant preserved State agreement" , in relation to an employee whose employment is subject to a workplace agreement, means a preserved State agreement that was binding on the employee's employer immediately before the day on which the workplace agreement was lodged.
(4) For the purposes of the definition of protected preserved conditions in subclause (3), the definition of protected allowable award matters in subclause 25A(4) has effect as if it did not include the matter referred to in paragraph (i) of the latter definition.
Note: Paragraph (i) relates to outworker conditions. These conditions cannot be excluded or modified by a workplace agreement to provide a less favourable outcome for an employee in a particular respect--see subclause 25A(3).
42 At the end of Division 6 of Part 3 of Schedule 8
Add:
(1) If:
(a) a workplace agreement binds an employer and an employee or employees; and
(b) immediately before the day on which the workplace agreement was lodged, the employer and employee or employees were bound by a notional agreement preserving State awards in respect of the employee's or employees' employment; and
(c) the workplace agreement contains protected notional conditions because of paragraph 52(2)(a) of this Schedule;
then, Division 5A of Part 8 of this Act (which deals with the fairness test) has effect in relation to that workplace agreement as if:
(d) a reference in that Division to protected award conditions were a reference to protected notional conditions; and
(e) a reference in that Division to a relevant award or a reference award were a reference to a relevant notional agreement preserving State awards; and
(f) paragraph 346C(1)(b) and subsection 346C(2) were omitted; and
(g) paragraphs 346E(1)(b) and (2)(b) and 346F(1)(b) and (2)(b) were omitted; and
(h) sections 346H, 346K and 346L were omitted; and
(i) paragraphs 346Y(2)(b) and 346YA(2)(b) were omitted; and
(j) the definition of instrument in subsections 346Y(5) and 346YA(5) included a reference to a notional agreement preserving State awards; and
(k) subparagraph 346ZD(2A)(a)(ii) were omitted.
(2) In this clause:
"protected notional conditions" has the same meaning as in subclause 52(3), subject to subclause (3) of this clause.
"relevant notional agreement preserving State awards" , in relation to an employee whose employment is subject to a workplace agreement, means a notional agreement preserving State awards that was binding on the employee's employer immediately before the day on which the workplace agreement was lodged.
(3) For the purposes of the definition of protected notional conditions in subclause (2), the definition of protected allowable award matters in subclause 52(3) has effect as if it did not include the matter referred to in paragraph (h) of the definition.
Note: Paragraph (h) relates to outworker conditions. These conditions cannot be excluded or modified by a workplace agreement to provide a less favourable outcome for an employee in a particular respect--see subclause 52(2A).