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FAIR WORK ACT 2009 - SECT 320

Variation of transferable instruments

Application of this section

             (1)  This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part.

Power to vary transferable instrument

             (2)  The FWC may vary the transferable instrument:

                     (a)  to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or

                     (b)  to remove an ambiguity or uncertainty about how a term of the instrument operates if:

                              (i)  the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and

                             (ii)  the FWC is satisfied that the variation will remove the ambiguity or uncertainty; or

                     (c)  to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer's enterprise.

Who may apply for a variation

             (3)  The FWC may make the variation only on application by:

                     (a)  a person who is, or is likely to be, covered by the transferable instrument; or

                     (b)  if the application is to vary a named employer award--an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.

Matters that the FWC must take into account

             (4)  In deciding whether to make the variation, the FWC must take into account the following:

                     (a)  the views of:

                              (i)  the new employer or a person who is likely to be the new employer; and

                             (ii)  the employees who would be affected by the transferable instrument as varied;

                     (b)  whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;

                     (c)  if the transferable instrument is an enterprise agreement--the nominal expiry date of the agreement;

                     (d)  whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer's workplace;

                     (e)  whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation;

                      (f)  the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;

                     (g)  the public interest.

Restriction on when variation may come into operation

             (5)  A variation of a transferable instrument under subsection (2) must not come into operation before the later of the following:

                     (a)  the time when the transferable instrument starts to cover the new employer;

                     (b)  the day on which the variation is made.



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