Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 768AK

  (1)   If, immediately before the termination time of a transferring employee:

  (a)   a State employment agreement (the original State agreement ) was in operation under a State industrial law of the State; and

  (b)   the original State agreement covered (however described in the original State agreement or a relevant law of the State) the old State employer and the transferring employee (whether or not the original State agreement also covered other persons);

then a copied State employment agreement for the transferring employee is taken to come into operation immediately after the termination time.

Note 1:   Even though a copied State employment agreement comes into operation for the transferring employee, it will not be enforceable by the employee or another person (for example, the new employer) unless and until it applies to the employee or other person. In particular, it will not apply to the employee or new employer before the employee becomes employed by the new employer. For when the copied State employment agreement applies to a person, see section   768AM.

Note 2:   A copied State award for the transferring employee may also come into operation immediately after the termination time, see subsection   768AI(1). If it does, then the State's interaction rules that were in force immediately before the termination time apply for the purposes of working out the interaction between the copied State employment agreement and the copied State award (see item   11 of Schedule   3A to the Transitional Act as that item applies in a modified way because of section   768BY).

  (2)   The copied State employment agreement is taken to include the same terms as were in the original State agreement immediately before the termination time.

Note:   The State's instrument content rules that were in force immediately before the termination time apply to the copied State employment agreement (see item   10 of Schedule   3A to the Transitional Act as that item applies in a modified way because of section   768BY).

  (3)   If the terms of the original State employment agreement were affected by an order, a decision or a determination of a State industrial body or a court of the State that was in operation immediately before the termination time, the terms of the copied State employment agreement are taken to be similarly affected by the terms of that order, decision or determination.

  (4)   If the original State agreement is a collective State employment agreement, the copied State employment agreement is a copied State collective employment agreement .

  (5)   If the original State agreement is an individual State employment agreement, the copied State employment agreement is a copied State individual employment agreement .