WORKPLACE RELATIONS ACT 1996 - SCHEDULE 7
This legislation has been repealed.
WORKPLACE RELATIONS ACT 1996 - SCHEDULE 7
Note: See section 8.
In this Schedule:
"AWA" has the same meaning as in Schedule 7A.
Division 3 pre-reform certified agreement means a pre-reform certified agreement that was made under Division 3 of Part VIB of this Act before the reform commencement.
"exceptional matters order" has the same meaning as in the pre-reform Act.
"excluded employer" has the same meaning as in Schedule 6.
"fairness test" means the test set out in section 346M of the pre-transition Act.
Note: The fairness test continues to apply to an AWA and to a pre‑transition collective agreement.
"old IR agreement" means an agreement certified or approved under any of the following provisions of this Act:
(a) section 115, as in force immediately before the commencement of the Schedule to the Industrial Relations Legislation Amendment Act 1992 ;
(b) Division 3A of Part VI, as in force immediately before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993 ;
(c) Division 2 of Part VIB, as in force immediately before the commencement of item 19 of Schedule 8 to the Workplace Relations and Other Legislation Amendment Act 1996 ;
(d) Division 3 of Part VIB, as in force immediately before the commencement of item 1 of Schedule 9 to the Workplace Relations and Other Legislation Amendment Act 1996 .
"pre-reform Act means this Act " as in force just before the reform commencement.
"pre-reform AWA" means an AWA (within the meaning of the pre-reform Act) that:
(a) was made before the reform commencement; and
(b) was approved under Part VID of this Act (whether before the reform commencement, or after the reform commencement because of Part 8 of this Schedule).
"pre-reform certified agreement" means an agreement that:
(a) was made under Division 2 or 3 of Part VIB of this Act before the reform commencement; and
(b) was certified under Division 4 of Part VIB of this Act (whether before the reform commencement, or after the reform commencement because of Part 8 of this Schedule).
"pre-transition Act" means this Act as in force immediately before the commencement of Schedule 7A.
"pre-transition collective agreement" has the same meaning as in Schedule 7B.
"pre-transition workplace agreement" means:
(a) an AWA; or
(b) a pre‑transition collective agreement.
section 170MX award means an award under subsection 170MX(3) of the pre-reform Act.
"transitional award" has the same meaning as in Schedule 6.
"transitional period" means the period of 5 years beginning on the reform commencement.
"workplace agreement" includes an AWA.
Part 2 -- Pre‑reform certified agreements
2 Continuing operation of pre‑reform certified agreements--under old provisions
(1) Subject to this Schedule, the following provisions of the pre‑reform Act continue to apply in relation to a pre‑reform certified agreement, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 :
(a) sections 170LA and 170LB;
(b) subsections 170LC(1) and (5);
(c) sections 170LD and 170LE;
(d) subsection 170LV(2);
(e) section 170LW;
(f) subsections 170LX(1) and (4);
(g) sections 170LY and 170LZ;
(h) section 170M;
(i) paragraph 170MD(6)(a);
(j) paragraphs 170MD(7)(a), (b) and (e);
(k) sections 170MDA, 170MG, 170MH and 170MHA;
(l) paragraph 170ND(a);
(m) section 170NE;
(n) subsections 170NF(1), (2) and (3);
(o) section 170NG;
(p) Division 10A of Part VIB;
(q) sections 298Y and 298Z;
(r) any other provision relating to the operation of the provisions mentioned in the preceding paragraphs.
(2) Regulations made under the pre‑reform Act, to the extent that they relate to the provisions mentioned in subclause (1), continue to apply in relation to a pre‑reform certified agreement.
Note: Clause 5 of this Schedule, section 16 and Schedule 8 may also affect the terms and conditions of employment of an employee in relation to whom a pre‑reform certified agreement is in operation.
2A Commission may extend or vary pre‑reform certified agreements
(1) The Commission may, on application by any person bound by a pre‑reform certified agreement, by order:
(a) extend the nominal expiry date of the agreement; or
(b) vary the terms of the agreement.
(2) However, before making the order, the Commission must be satisfied that:
(a) all parties bound by the agreement genuinely agree to the extension or variation; and
(b) none of the parties have, after the introduction day:
(i) organised or engaged in, or threatened to organise or engage in, industrial action in relation to another party to the agreement; or
(ii) applied for a protected action ballot under section 451 in relation to proposed industrial action; and
(c) in the case of a variation--the agreement as varied would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees bound by the agreement under:
(i) any transitional award that would regulate any term or condition of employment of the employees if the employer had been an excluded employer immediately before the reform commencement; and
(ii) any law of the Commonwealth, or of a State or Territory, that the Commission considers relevant.
(3) If the Commission extends the nominal expiry date of the agreement, the extended date cannot be more than 3 years after the date on which the order is made.
(4) If the agreement was made under section 170LJ or 170LK of the pre‑reform Act, the employees bound by the agreement are taken, for the purposes of paragraph (2)(a), to agree to the extension or variation if a valid majority of the employees bound by the agreement at the time of making the extension or variation agree to it.
(5) Section 170LE of the pre‑reform Act applies to deciding whether a valid majority of the employees agree to the extension or variation as if references in that section to making an agreement were references to making the extension or variation.
(6) To avoid doubt, the terms and conditions of employment under a transitional award may, for the purposes of paragraph (2)(c), include terms and conditions that did not apply on the reform commencement, or that have been varied since the reform commencement.
(7) The provisions of the pre‑reform Act apply, in relation to an extension or variation to which this clause applies, to the same extent that they apply, because of clause 2, in relation to a variation under paragraph 170MD(6)(a) of the pre‑reform Act.
(8) In this clause:
"introduction day" means the day on which the Bill that became the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 was introduced into the House of Representatives.
3 Rules replacing subsection s 170LX(2) and (3)
(1) A pre‑reform certified agreement ceases to be in operation in relation to an employee if a collective agreement or workplace determination comes into operation in relation to that employee.
(2) A pre‑reform certified agreement has no effect in relation to an employee while an AWA or an ITEA operates in relation to the employee.
(3) A pre‑reform certified agreement:
(a) ceases to be in operation if it is terminated under section 170LV, 170MG, 170MH or 170MHA of the pre‑reform Act; and
(b) does not operate if subsection 170LY(2) of the pre‑reform Act applies.
(4) If a pre‑reform certified agreement has ceased operating under paragraph (3)(a), it can never operate again.
Note: However, a redundancy provision that was included in a pre‑reform certified agreement that has ceased operating might be preserved for a period of up to 24 months (see clause 6A).
(5) If a pre‑reform certified agreement has ceased operating in relation to an employee because of subclause (1), the agreement can never operate again in relation to that employee.
(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 pre‑transition 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 of the pre‑transition Act.
(6) A pre‑reform certified agreement may be set aside under subsection 113(2A) of the pre‑reform Act.
4 Rules replacing section 170NC--coercion of persons to terminate certified agreements etc.
(1) A person must not:
(a) take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to terminate or approve the termination of a pre‑reform certified agreement.
(1A) A person must not:
(a) take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to the extension of the nominal expiry date of, or the variation of, a pre‑reform certified agreement under clause 2A.
(2) This clause does not apply to protected action (within the meaning of this Act as in force after the reform commencement).
(3) The following provisions in Division 10 of Part VIB of the pre‑reform Act apply in relation to a contravention of this clause:
(a) paragraph 170ND(e);
(b) section 170NE;
(c) subsection 170NF(7);
(d) section 170NG.
5 Interaction of agreement with other instruments
(1) While a pre‑reform certified agreement is in operation, it prevails, to the extent of any inconsistency, over:
(a) a preserved State agreement; or
(b) a notional agreement preserving State awards.
(2) While a pre‑reform certified agreement is in operation, it prevails over an award to the extent of any inconsistency (subject to section 170LY of the pre‑reform Act, as it applies because of clause 2).
6 Continuing operation of pre‑reform certified agreements--under new provisions
Subject to this Schedule, the following provisions of this Act apply in relation to a pre‑reform certified agreement as if it were a collective agreement:
(a) Part 6;
(b) section 494;
(c) subsection 451(2);
(d) Part 14;
(e) Part 15.
6A Preservation of redundancy provisions in certain circumstances
(1) This clause applies if a pre‑reform certified agreement is terminated, on application by the employer in relation to the agreement, by the Commission in accordance with subsection 170MH(3) of the pre‑reform Act.
Note: Subsection 170MH(3) of the pre‑reform Act continues to apply because of paragraph 2(1)(k) of this Schedule.
(2) Any party who was bound by the pre‑reform certified agreement immediately before it ceased operating continues to be bound, immediately after that time, by any redundancy provision that was included in the pre‑reform certified agreement as if the pre‑reform certified agreement had continued operating.
(2A) Parts 6 and 14 of this Act apply to a redundancy provision referred to in subclause (2) as if the provision was a pre‑reform certified agreement in operation.
(3) Subject to subclause (4), a redundancy provision referred to in subclause (2) prevails over any other redundancy provision included in any other instrument that would otherwise have effect.
(4) A party continues to be bound by a redundancy provision referred to in subclause (2), in relation to an employee who is bound by the redundancy provision, until the earliest of the following:
(a) the end of the period of 24 months from the time that the pre‑reform certified agreement ceased operating;
(b) the time when the employee ceases to be employed by the employer;
(c) the time when a workplace agreement comes into operation in relation to the employee and the employer.
(5) In this clause:
"instrument" means either of the following:
(a) a preserved State agreement;
(b) a notional agreement preserving State awards;
(c) an award;
(d) a transitional award (within the meaning of Schedule 6).
"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.
6B Notification of preservation of redundancy provisions
(1) This clause applies if the parties to a pre‑reform certified agreement will, under clause 6A, continue to be bound by one or more redundancy provisions included in the agreement.
(2) The Commission must issue a copy of the order terminating the agreement to:
(a) the employer who will be bound by the redundancy provision or the redundancy provisions; and
(b) any organisation of employees that will be bound by the redundancy provision or the redundancy provisions.
(3) The order must:
(a) identify the redundancy provision or the redundancy provisions; and
(b) state that the parties to the agreement will be bound by the provision or provisions; and
(c) specify the date that is 24 months after the time that the order terminating the agreement takes effect; and
(d) state that the parties will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 6A(4).
6C Employer must notify employees of preserved redundancy provisions
(1) An employer that has, under clause 6B, received a copy of an order terminating a pre‑reform certified agreement must take reasonable steps to ensure that all employees who are bound by the agreement immediately before the agreement ceases operating are, within 21 days of the employer receiving a copy of the order, given a copy of the order.
(2) Subclause (1) is a civil remedy provision for the purpose of this clause.
Note: Division 3 of Part 14 contains other provisions relevant to civil remedies.
(3) The Court may order a person who has contravened the civil remedy provision to pay a pecuniary penalty.
Note: Division 3 of Part 14 contains other provisions relevant to civil remedies.
(4) The penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in other cases.
(5) An application for an order under subclause (3) in relation to a pre‑reform certified agreement may be made by the following persons:
(a) an employee who is bound by the agreement immediately before the agreement ceases operating;
(b) an organisation of employees that is bound by the agreement immediately before the agreement ceases operating;
(c) an organisation of employees that is entitled, under its eligibility rules, to represent the industrial interests of an employee referred to in paragraph (a) and has been requested by the employee to apply for the order on the employee's behalf;
(d) a workplace inspector.
8 Anti‑AWA terms taken to be prohibited content
(1) Sections 358, 359, 360, 361, 362, 363 and 364 of this Act apply in relation to an anti‑AWA term in a pre‑reform certified agreement as if:
(a) the term was prohibited content; and
(b) the agreement was a workplace agreement.
(2) In this clause:
"anti-AWA term" means a term of a pre-reform certified agreement that prevents the employer bound by the agreement from making a pre-reform AWA or an AWA with an employee bound by the agreement.
9 Calling up contents of pre‑reform certified agreement in workplace agreement
A pre‑transition workplace agreement may incorporate by reference terms from a pre‑reform certified agreement under section 355 of the pre‑transition Act as if the pre‑reform certified agreement were a workplace agreement for the purposes of that Act.
10 Application of Division to certain Division 3 pre‑reform certified agreements
(1) This Division applies to a Division 3 pre‑reform certified agreement as if the agreement had been made under section 170LJ of the pre‑reform Act, if the employer in relation to the agreement:
(a) is an employer (within the meaning of subsection 6(1)) at the reform commencement; or
(b) becomes such an employer during the transitional period.
(2) This Division does not apply in relation to a Division 3 pre‑reform certified agreement while Division 2 of this Part applies to the agreement.
Division 2 -- Special rules for Division 3 pre‑reform certified agreements with excluded employers
(1) This Division applies to a Division 3 pre‑reform certified agreement if the employer in relation to the agreement is an excluded employer at the reform commencement.
(2) This Division applies to the agreement while the employer remains an excluded employer during the transitional period.
12 Cessation of Division 3 pre‑reform certified agreements
(1) The agreement ceases to be in operation:
(a) at the end of the transitional period; or
(b) when both of these conditions are satisfied (before the end of the transitional period):
(i) the agreement has passed its nominal expiry date;
(ii) it has been replaced by a State employment agreement.
(2) To avoid doubt, this clause does not affect any rights accrued or liabilities incurred under the agreement before it ceases to be in operation.
(3) To avoid doubt, if the employer in relation to the agreement becomes an employer (within the meaning of subsection 6(1)) at a time before the end of the transitional period, subclause (1) does not apply after that time.
Note: On and after that time, Division 1 of this Part applies to the agreement.
(4) Once the agreement has ceased operating, it can never operate again.
13 Continuing operation of pre‑reform certified agreements--under old provisions
(1) Subject to this Schedule, the following provisions of the pre‑reform Act continue to apply in relation to the agreement, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 :
(a) sections 170LA and 170LB;
(b) subsections 170LC(1) and (5);
(c) sections 170LD and 170LE;
(d) subsection 170LV(2);
(e) section 170LW;
(f) subsections 170LX(1) and (4);
(g) paragraph 170LY(1)(b);
(h) subsections 170LY(2) and (3);
(i) section 170LZ;
(j) section 170MA;
(k) paragraph 170MD(6)(a);
(l) paragraphs 170MD(7)(a), (b) and (e);
(m) sections 170MDA;
(n) sections 170MG, 170MH and 170MHA;
(o) paragraph 170ND(a);
(p) section 170NE;
(q) subsections 170NF(1), (2) and (3);
(r) section 170NG;
(s) Division 10A of Part VIB;
(t) sections 298Y and 298Z;
(u) any other provision relating to the operation of the provisions mentioned in the preceding paragraphs.
(2) Regulations made under the pre‑reform Act, to the extent that they relate to the provisions mentioned in subclause (1), continue to apply in relation to the agreement.
14 Rules replacing subsection s 170LX(2) and (3)
(1) The agreement:
(a) ceases to be in operation if it is terminated under section 170LV, 170MG, 170MH or 170MHA of the pre‑reform Act; and
(b) does not operate if subsection 170LY(2) of the pre‑reform Act applies.
(2) If the agreement has ceased operating under paragraph (1)(a), it can never operate again.
(3) The agreement may also be set aside under subsection 113(2A) of the pre‑reform Act.
15 Interaction of agreement with awards
While the agreement is in operation, it prevails over an award to the extent of any inconsistency (subject to section 170LY of the pre‑reform Act, as it applies because of clause 13).
16 Continuing operation of pre‑reform certified agreements--under new provisions
Subject to this Schedule, the following provisions of this Act apply in relation to the agreement as if it were a collective agreement:
(a) Part 6;
(b) section 494;
(c) subsection 451(2);
(d) Part 14;
(e) Part 15.
17 Continuing operation of pre‑reform AWAs--under old provisions
(1) Subject to this Schedule, the following provisions of the pre‑reform Act continue to apply in relation to a pre‑reform AWA, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 :
(a) section 170VG;
(b) subsections 170VH(1) and (2);
(c) section 170VM;
(d) subsections 170VN(1) and (2);
(e) subsections 170VO(5) and (6);
(f) subsections 170VPA(4) and (5);
(g) sections 170VPD, 170VPK, 170VQ, 170VR, 170VV and 170VZ;
(h) Division 8A of Part VID;
(i) Division 9 of Part VID (except sections 170WHC and 170WHD);
(j) any other provision relating to the operation of the provisions mentioned in the preceding paragraphs.
(2) Regulations made under the pre‑reform Act, to the extent that they relate to the provisions mentioned in subclause (1), continue to apply in relation to a pre‑reform AWA.
Note: Clause 19 of this Schedule, section 16 and Schedule 8 may also affect the terms and conditions of employment of an employee in relation to whom a pre‑reform AWA is in operation.
18 Rules replacing section 170VJ--period of operation of AWA
(1) A pre‑reform AWA ceases to be in operation in relation to an employee if an AWA or an ITEA comes into operation in relation to the employee.
(2) A pre‑reform AWA ceases to be in operation when a termination under section 170VM of the pre‑reform Act takes effect.
(3) If a pre‑reform AWA has ceased operating under subclause (2), it can never operate again.
Note: However, a redundancy provision that was included in a pre‑reform AWA that has ceased operating might be preserved for a period of up to 24 months (see clause 20A).
(4) If a pre‑reform AWA has ceased operating in relation to an employee because of subclause (1), the agreement can never operate again in relation to that employee.
(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 of the pre‑transition Act.
19 Interaction of pre‑reform AWAs with other instruments
The following have no effect in relation to an employee while a pre‑reform AWA operates in relation to the employee:
(a) a collective agreement;
(b) a workplace determination;
(c) a preserved State agreement;
(d) to the extent of any inconsistency, a notional agreement preserving State awards;
(e) an award.
20 Continuing operation of pre‑reform AWAs--under new provisions
Subject to this Schedule, the following provisions of this Act apply in relation to a pre‑reform AWA as if it were an ITEA:
(a) Part 6;
(aa) section 327;
(ab) paragraph 336(b);
(ac) paragraph 340(2)(a);
(ad) paragraph 367(1)(b);
(ae) subparagraph 369(b)(ii);
(af) subparagraph 373(2)(a)(ii);
(ag) subparagraph 467(1)(a)(iii);
(ah) subparagraph 467(1)(b)(ii);
(b) section 495;
(c) subsection 451(2);
(d) Part 14;
(e) Part 15.
20A Preservation of redundancy provisions in certain circumstances
(1) This clause applies if a pre‑reform AWA is terminated, on application by the employer in relation to the AWA, by the Commission in accordance with subsection 170VM(3) of the pre‑reform Act.
Note: Subsection 170VM(3) of the pre‑reform Act continues to apply because of paragraph 17(1)(c) of this Schedule.
(2) The employer and the employee in relation to the pre‑reform AWA continue to be bound, immediately after the pre‑reform AWA ceases operating, by any redundancy provision that was included in the pre‑reform AWA as if the pre‑reform AWA had continued operating.
(2A) Parts 6 and 14 of this Act apply to a redundancy provision referred to in subclause (2) as if the provision was a pre‑reform AWA in operation.
(3) Subject to subclause (4), a redundancy provision referred to in subclause (2) prevails over any other redundancy provision included in any other instrument that would otherwise have effect.
(4) The employer continues to be bound by a redundancy provision referred to in subclause (2), in relation to the employee, until the earliest of the following:
(a) the end of the period of 24 months from the time that the pre‑reform AWA ceases operating;
(b) the time when the employee ceases to be employed by the employer;
(c) the time when a workplace agreement comes into operation in relation to the employee and the employer.
(5) In this clause:
"instrument" means any of the following:
(a) a collective agreement;
(b) a pre‑reform certified agreement;
(c) a notional agreement preserving State awards;
(d) an award.
"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.
20B Notification of preservation of redundancy provisions
(1) This clause applies if the employer and the employee in relation to a pre‑reform AWA will, under clause 20A, continue to be bound by one or more redundancy provisions included in the pre‑reform AWA.
(2) The determination issued by the Commission under subsection 170VM(4) of the pre‑reform Act must:
(a) identify the redundancy provision or the redundancy provisions; and
(b) state that the employer and the employee in relation to the pre‑reform AWA will be bound by the provision or provisions; and
(c) specify the date that is 24 months after the time that the determination terminating the pre‑reform AWA takes effect; and
(d) state that the employer and the employee will remain bound by the provision or provisions until that date, or an earlier date in accordance with subclause 20A(4).
21 Calling up contents of pre‑reform AWA in workplace agreement
A pre‑transition workplace agreement may incorporate by reference terms from a pre‑reform AWA under section 355 of the pre‑transition Act as if the pre‑reform AWA were a workplace agreement for the purposes of that Act.
Part 4 -- Awards under subsection 170MX(3) of the pre‑reform Act
Division 1 -- Continuing operation of section 170MX awards
This Division applies to a section 170MX award if:
(a) the employer in relation to the section 170MX award:
(i) is an employer (within the meaning of subsection 6(1)) at the reform commencement; or
(ii) becomes such an employer during the transitional period; and
(b) the section 170MX award:
(i) was in force just before the reform commencement; or
(ii) was made after the reform commencement because of Part 8 of this Schedule.
23 Continuing operation of section 170MX awards--under old provisions
(1) Subject to this Schedule, provisions of the pre‑reform Act (including regulations made under that Act) relating to section 170MX of the pre‑reform Act continue to apply in relation to a section 170MX award to which this Division applies, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 .
(2) Subclause (1) does not apply in relation to the following provisions of the pre‑reform Act:
(a) section 170MN;
(b) subsections 170MZ(4) and (5);
(c) paragraph 170MZ(6)(b);
(d) subsections 170MZ(7) and (8).
24 Continuing operation of section 170MX awards--under new provisions
Subject to this Schedule, the following provisions of this Act apply in relation to a section 170MX award to which this Division applies as if it were a workplace determination:
(a) Part 6;
(b) section 494;
(c) subsection 451(2);
(d) Part 14;
(e) Part 15.
25 Interaction of section 170MX awards with other instruments
(1) A section 170MX award to which this Division applies has no effect in relation to an employee while an AWA or an ITEA operates in relation to that employee.
(2) A section 170MX award to which this Division applies ceases to be in operation in relation to an employee when one of the following comes into operation in relation to the employee:
(a) a collective agreement;
(b) a workplace determination.
(3) The following have no effect in relation to an employee to the extent to which they are inconsistent with a section 170MX award to which this Division applies that operates in relation to the employee:
(a) an award;
(b) a preserved State agreement;
(c) a notional agreement preserving State awards.
(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 pre‑transition 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 of the pre‑transition Act.
Note 2: Under subclause (1), a section 170MX award has no effect in relation to an employee while an AWA or ITEA operates in relation to the employee, but once the AWA or ITEA has for any reason ceased to operate, the section 170MX award is capable of operating again.
Division 2 -- Special rules for section 170MX awards that bind excluded employers
(1) This Division applies to a section 170MX award if:
(a) the employer in relation to the section 170MX award is an excluded employer at the reform commencement; and
(b) the section 170MX award:
(i) was in force just before the reform commencement; or
(ii) was made after the reform commencement because of Part 8 of this Schedule.
(2) This Division applies to the section 170MX award while the employer remains an excluded employer during the transitional period.
26B Cessation of section 170MX award
(1) A section 170MX award to which this Division applies ceases to be in operation:
(a) at the end of the transitional period; or
(b) when it has been replaced by a State employment agreement.
(2) To avoid doubt, this clause does not affect any rights accrued or liabilities incurred under a section 170MX award to which this Division applies before it ceases to be in operation.
(3) To avoid doubt, if the employer in relation to a section 170MX award to which this Division applies becomes an employer (within the meaning of subsection 6(1)) at a time before the end of the transitional period, subclause (1) does not apply after that time.
Note: On and after that time, Division 1 of this Part applies to the section 170MX award.
(4) Once a section 170MX award to which this Division applies has ceased operating, it can never operate again.
26C Continuing operation of section 170MX awards--under old provisions
(1) Subject to this Schedule, provisions of the pre‑reform Act (including regulations made under that Act) relating to section 170MX of the pre‑reform Act continue to apply in relation to a section 170MX award to which this Division applies, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 .
(2) Subclause (1) does not apply in relation to the following provisions of the pre‑reform Act:
(a) section 170MN;
(b) subsections 170MZ(4) and (5);
(c) paragraph 170MZ(6)(b);
(d) subsections 170MZ(7) and (8).
26D Continuing operation of section 170MX awards--under new provisions
Subject to this Schedule, the following provisions of this Act apply in relation to a section 170MX award to which this Division applies as if it were a workplace determination:
(a) Part 6;
(b) section 494;
(c) subsection 451(2);
(d) Part 14;
(e) Part 15.
26E Interaction of section 170MX awards with other instruments
While a section 170MX award to which this Division applies is in operation, it prevails over a transitional award to the extent of any inconsistency.
Part 5 -- Exceptional matters orders
(1) An exceptional matters order ceases to be in force in relation to an employee at the earlier of the following times:
(a) 2 years after it was made;
(b) when a workplace agreement or workplace determination comes into operation in relation to that employee.
(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 pre‑transition 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 of the pre‑transition Act.
28 Operation of old IR agreement
(1) An old IR agreement ceases to be in operation if it is terminated under clause 29A.
(2) An old IR agreement has no effect in relation to an employee if a workplace agreement or workplace determination comes into operation in relation to the employee.
(3) If an old IR agreement has ceased operating because of subclause (1), the agreement can never operate again.
(4) If an old IR agreement has ceased operating in relation to an employee because of subclause (2), the agreement can never operate again in relation to that employee.
(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 pre‑transition 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 of the pre‑transition Act.
(6) 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 an AWA or an ITEA; and
(b) the AWA or ITEA ceased to operate after the commencement of Schedule 7A.
29 Old IR agreement cannot be varied after the reform commencement
An old IR agreement cannot be varied after the reform commencement.
29A Termination of old IR agreements
(1) A party to an old IR agreement may apply to the Commission for the agreement to be terminated.
(2) The Commission may, by order, terminate the agreement if the Commission is satisfied that all of the parties to the agreement agree to the termination.
Part 7 -- Relationships between pre‑reform agreements etc. and Australian Fair Pay and Conditions Standard
30 Relationships between pre‑reform agreements etc. and Australian Fair Pay and Conditions Standard
(1) The Australian Fair Pay and Conditions Standard does not apply to an employee in relation to a matter if the employee's employment is subject to any of the following instruments that deals with that matter in relation to the employee:
(a) a pre‑reform certified agreement;
(b) a pre‑reform AWA;
(c) a section 170MX award.
(2) In this clause:
"matter" means a matter referred to in subsection 171(2).
Note: This means that if a pre‑reform certified agreement, a pre‑reform AWA or a section 170MX award deals with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will not apply to the employee in respect of that matter.
However, if a pre‑reform certified agreement, a pre‑reform AWA or a section 170MX award does not deal with basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave or parental leave and related entitlements in respect of an employee, the Australian Fair Pay and Conditions Standard will apply to the employee in respect of that matter.
Part 7A -- Relationship between pre‑reform agreements etc. and public holiday entitlement
30A Relationship between pre‑reform agreements etc. and public holiday entitlement
Division 2 of Part 12 (public holidays) does not apply to an employee if the employee's employment is subject to any of the following instruments:
(a) a pre‑reform certified agreement;
(b) a pre‑reform AWA;
(c) a section 170MX award.
Part 8 -- Applications for certification etc. before reform commencement
31 Certifications under pre‑reform Act after the reform commencement
(1) This clause applies if an application for certification was made under section 170LM or 170LS of the pre‑reform Act before the reform commencement.
(2) The pre‑reform Act continues to apply, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 , in relation to the application and certification.
32 Approvals of pre‑reform AWAs under pre‑reform Act after the reform commencement
(1) This clause applies if a pre‑reform AWA was filed under section 170VN of the pre‑reform Act before the reform commencement.
(2) The pre‑reform Act continues to apply, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 , in relation to the filing and approval of the pre‑reform AWA.
32A Approvals of section 170MX awards under pre‑reform Act after the reform commencement
(1) This clause applies if the Commission has started to exercise arbitration powers in accordance with subsection 170MX(3) of the pre‑reform Act before the reform commencement to make an award under that subsection.
(2) The pre‑reform Act continues to apply, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 , in relation to the making of the award.
Part 9 -- Matters relating to Victoria
In this Part:
"employee" has the same meaning as in Division 1 of Part 21 of this Act.
"employer" has the same meaning as in Division 1 of Part 21 of this Act.
"employment" has the same meaning as in Division 1 of Part 21 of this Act.
"this Schedule" does not include this Part.
"Victorian reference AWA" means an AWA (within the meaning of the pre-reform Act) made under this Act in its operation in accordance with repealed section 495.
"Victorian reference certified agreement" means an agreement that was made under Division 2 or 3 of Part VIB of this Act, in that Division's operation in accordance with repealed Division 2 of Part XV, before the reform commencement.
Victorian reference Division 3 pre-reform certified agreement means a pre-reform certified agreement that was made under Division 3 of Part VIB of this Act, in its operation in accordance with repealed Division 2 of Part XV, before the reform commencement.
Victorian reference section 170MX award means a section 170MX award that:
(a) was made before the reform commencement under this Act in its operation in accordance with repealed Division 2 of Part XV; or
(b) was made after the reform commencement because of clause 32A of this Schedule (as that clause applies because of clause 38A of this Schedule).
34 Part only has effect if supported by reference etc.
Any of the following:
(a) a clause of this Part;
(b) a clause of this Schedule, to the extent to which it relates to a Victorian reference certified agreement;
(c) a clause of this Schedule, to the extent to which it relates to a Victorian reference AWA;
(d) a clause of this Schedule, to the extent to which it relates to a Victorian reference section 170MX award;
has effect only for so long, and in so far, as the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to the Parliament of the Commonwealth a matter or matters that result in the Parliament of the Commonwealth having sufficient legislative power for the clause so to have effect.
35 Continuing operation of pre‑reform certified agreements--under old provisions
Clause 2 has effect, in relation to a Victorian reference certified agreement, as if each reference in a paragraph of subclause 2(1) to a provision of the pre‑reform Act were read as a reference to the provision as it had effect because of repealed Division 2 of Part XV.
Note: Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference certified agreement is in operation.
36 Victorian reference Division 3 pre‑reform certified agreements
(1) Clause 10 and Division 2 of Part 2 of this Schedule do not apply to a Victorian reference Division 3 pre‑reform certified agreement.
(2) Division 1 of Part 2 of this Schedule applies to a Victorian reference Division 3 pre‑reform certified agreement as if the agreement had been made under section 170LJ of the pre‑reform Act in that section's operation in accordance with repealed Division 2 of Part XV.
Note: Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference Division 3 pre‑reform certified agreement is in operation.
37 Continuing operation of pre‑reform AWAs--under old provisions
Clause 17 has effect, in relation to a Victorian reference AWA, as if each reference in a paragraph of subclause 17(1) to a provision of the pre‑reform Act were read as a reference to the provision as it had effect because of repealed section 495.
Note: Section 898 may also affect the terms and conditions of employment of an employee in relation to whom a Victorian reference AWA is in operation.
38 Continuing operation of section 170MX awards--under old provisions
Clause 23 has effect, in relation to a Victorian reference section 170MX award, as if the reference in subclause 23(1) to section 170MX of the pre‑reform Act were read as a reference to that section as it had effect because of repealed Division 2 of Part XV.
38A Approvals of section 170MX awards under pre‑reform Act after the reform commencement
Clause 32A has effect, in relation to the making of a section 170MX award under this Act in its operation in accordance with repealed Division 2 of Part XV, as if the reference in subclause 32A(1) to subsection 170MX(3) of the pre‑reform Act were read as a reference to that subsection as it had effect because of repealed Division 2 of Part XV.
39 Relationship between Victorian employment agreements and designated old IR agreements
(1) A designated old IR agreement prevails to the extent of any inconsistency with an employment agreement.
(2) In this clause:
"designated old IR agreement" means an old IR agreement covered by paragraph (d) of the definition of old IR agreement in clause 1.
"employment agreement" has the same meaning as in Division 12 of Part 21 of this Act.