Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 768BG

Consolidation order

  (1)   The FWC may make an order (a consolidation order ) that a copied State instrument for a transferring employee ( employee A ) also is, or will be, a copied State instrument for one or more non - transferring employees who perform, or are likely to perform, the transferring work.

Non - transferring employees

  (2)   A non - transferring employee of a new employer is a national system employee of the new employer who is not a transferring employee.

Who may apply for order

  (3)   The FWC may make a consolidation order under subsection   (1):

  (a)   on its own initiative; or

  (b)   on application by any of the following:

  (i)   a non - transferring employee who performs, or is likely to perform, the transferring work;

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

  (iii)   an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph   (i);

  (iv)   if the application relates to an enterprise agreement--an employee organisation that is, or is likely to be, covered by the agreement.

Matters that the FWC must take into account

  (4)   In deciding whether to make a consolidation order under subsection   (1), the FWC must take into account the following:

  (a)   the views of:

  (i)   the employees who would be affected by the order; and

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

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

  (c)   if the order relates to a copied State employment agreement or an enterprise agreement--the nominal expiry date of the agreement;

  (d)   whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer's workplace;

  (e)   whether the new employer would incur significant economic disadvantage if the order were not made;

  (f)   the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer;

  (g)   the public interest.

Restriction on when order may come into operation

  (5)   A consolidation order under subsection   (1) must not come into operation in relation to a particular non - transferring employee before the later of the following:

  (a)   the time when the non - transferring employee starts to perform the transferring work for the new employer;

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