Commonwealth Numbered Acts Commonwealth Numbered Acts1 Section 326
Repeal the section, substitute:
326 Individual transitional employment agreements
(1) An employer may make an agreement (an individual transitional employment agreement or ITEA ) in writing with a person whose employment will be subject to the agreement.
(2) The agreement is not an ITEA unless:
(a) as at 1 December 2007 the employer employed at least one person whose employment with that employer was regulated by an agreement of a kind specified in subsection (3); and
(b) the person whose employment is to be subject to the ITEA:
(i) did not commence that employment more than 14 days before the day on which the ITEA was made, and had not previously been employed by the employer; or
(ia) did not commence that employment more than 14 days before the day on which the ITEA was made, and had previously been employed by the employer (not being employment that had ceased for the reason that, or for reasons that included the reason that, the employer would re‑employ the person under an ITEA); or
(ii) is in an employment relationship with the employer and that employment relationship is regulated by an ITEA or an agreement of a kind specified in subsection (3).
Note: Subsection 583(1A) affects the operation of paragraph (2)(b) in the case of a transmission of business.
(3) The kinds of agreements for the purposes of paragraph (2)(a) and subparagraph (2)(b)(ii) are the following:
(a) an AWA within the meaning of Schedule 7A;
(b) a pre‑reform AWA;
(c) a preserved individual State agreement within the meaning of Schedule 8;
(d) an employment agreement within the meaning of section 887.
(4) The fact that a period of work performed by a casual employee has ended does not of itself bring an end to the employee's employment relationship with the employer for the purposes of subparagraph (2)(b)(ii).
(5) An ITEA may be made before the commencement of the employment.
2 Division 5A of Part 8
Repeal the Division, substitute:
Division 5A -- The no‑disadvantage test
(1) In this Division:
"designated award" , for 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 346H, and includes an award taken to be so designated in relation to the employee or employees under section 346G (unless a different award has been designated in relation to the employee or employees under section 346H).
"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);
(f) a preserved State agreement.
"reference instrument" has the meaning given by subsection 346E(1).
"relevant collective instrument" has the meaning given by subsection 346E(2).
"relevant general instrument" has the meaning given by subsection 346E(4).
(2) Unless the contrary intention appears, this Division (other than sections 346K and 346L and Subdivision D) applies to a workplace agreement as varied under Division 8 in a corresponding way to the way in which it applies to a workplace agreement.
346C 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 yet to operate, 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 a person whose employment may at a future time be subject to the workplace agreement.
Subdivision B -- The no‑disadvantage test
346D When does an agreement pass the no‑disadvantage test?
(1) An ITEA passes the no‑disadvantage test if the Workplace Authority Director is satisfied that the ITEA does not result, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employee whose employment is subject to the agreement under any reference instrument relating to the employee.
(2) A collective agreement passes the no‑disadvantage test if the Workplace Authority Director is satisfied that the agreement does not result, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees whose employment is subject to the agreement under any reference instrument relating to one or more of the employees.
(2A) For the purposes of subsection (1) or (2):
(a) a law of a State or Territory that:
(i) relates to long service leave; and
(ii) immediately before the agreement was lodged, applied to an employee referred to in that subsection, or would have applied to such an employee if he or she had been employed by the employer at that time;
is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and
(b) if, apart from this subsection, the only reference instrument relating to the employee is a designated award for the employee--the designated award is to be disregarded to the extent (if any) that it provides for long service leave.
(3) An employee collective agreement or a union collective agreement is taken to pass the no‑disadvantage test if:
(a) it does not meet the requirements of subsection (2); but
(b) the Workplace Authority Director is satisfied that, because of exceptional circumstances, approval of the agreement would not be contrary to the public interest.
(4) An example of a case where the Workplace Authority Director may be satisfied that the requirements in paragraph (3)(b) are met is where making the 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.
(5) If the Workplace Authority Director decides under subsection (3) that an agreement is taken to pass the no‑disadvantage test, the Workplace Authority Director must publish his or her reasons for the decision on the Workplace Authority's website.
(6) An ITEA is taken to pass the no‑disadvantage test if there is no reference instrument in relation to the employee whose employment is subject to the agreement.
(7) A collective agreement is taken to pass the no‑disadvantage test if there is no reference instrument in relation to any of the employees whose employment is subject to the agreement.
(8) To avoid doubt, if there is a reference instrument in relation to one or more, but not all, of the employees whose employment is subject to a collective agreement:
(a) in a case where the agreement passes the no‑disadvantage test under subsection (2)--it passes the test in relation to all employees whose employment is subject to the agreement; or
(b) in a case where the agreement does not pass the no‑disadvantage test under subsection (2)--it does not pass the test in relation to any employees whose employment is subject to the agreement.
Note 1: In addition to the no‑disadvantage test, the Australian Fair Pay and Conditions Standard prevails over a workplace agreement to the extent to which the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee or employees--see section 172.
Note 2: This section applies to a workplace agreement as varied under Division 8 in a corresponding way to the way in which it applies to a workplace agreement--see subsection 346B(2).
Note 3: See subsection 346J(1) for how the Workplace Authority Director makes decisions under this section.
346E Reference instruments etc.
(1) A reference instrument is:
(a) in relation to an employee whose employment is subject to an ITEA:
(i) any relevant collective instrument; or
(ii) any relevant collective instrument and any relevant general instrument, to the extent that the instruments operate concurrently; or
(iii) if there is no relevant collective instrument--any relevant general instrument; or
(iv) if there is no relevant collective instrument or relevant general instrument--any designated award;
for the employee; or
(b) in relation to employees whose employment is subject to a collective agreement:
(i) any relevant general instrument; or
(ii) if there is no relevant general instrument--any designated award;
for one or more of the employees.
(2) A relevant collective instrument , for an employee whose employment is subject to a workplace agreement, is an instrument of a kind specified in subsection (3):
(a) that regulates, or would but for an ITEA, pre‑reform AWA or AWA (within the meaning of Schedule 7A) having come into operation 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, or would but for an ITEA, pre‑reform AWA or AWA (within the meaning of Schedule 7A) having come into operation have been binding, on the employee's employer immediately before the day on which the workplace agreement was lodged.
(3) The kinds of instruments for the purposes of subsection (2) are any of the following:
(a) a collective agreement;
(b) a pre‑reform certified agreement (within the meaning of Schedule 7);
(c) an old IR agreement (within the meaning of Schedule 7);
(d) a preserved collective State agreement (within the meaning of Schedule 8);
(e) a workplace determination;
(f) a section 170MX award (within the meaning of Schedule 7).
(4) A relevant general instrument , for an employee whose employment is subject to a workplace agreement, is an instrument of a kind specified in subsection (5):
(a) that regulates, or would but for a workplace agreement or another industrial instrument having come into operation 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, or would but for a workplace agreement or another industrial instrument having come into operation have been binding, on the employee's employer immediately before the day on which the workplace agreement was lodged.
(5) The kinds of instruments for the purposes of subsection (4) are any of the following:
(a) an award;
(b) a common rule in operation under Schedule 6;
(c) a transitional Victorian reference award (within the meaning of Part 7 of Schedule 6);
(d) a transitional award (within the meaning of Schedule 6), other than a Victorian reference award (within the meaning of that Schedule), to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria;
(e) a notional agreement preserving State awards (within the meaning of Schedule 8).
346F Agreements to be tested as at lodgment date
(1) In deciding whether a workplace agreement passes, or does not pass, the no‑disadvantage test, the Workplace Authority Director must consider it as in existence or operation (as the case may be) immediately after lodgment.
(2) In deciding whether a workplace agreement as varied passes, or does not pass, the no‑disadvantage test, the Workplace Authority Director must consider it as in existence or operation (as the case may be) immediately after the variation was lodged.
(3) If a variation to a workplace agreement is lodged before the Workplace Authority Director has decided whether the agreement passes the no‑disadvantage test under section 346D:
(a) the Workplace Authority Director must consider the workplace agreement and the workplace agreement as varied as part of the same process; and
(b) 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.
(4) For the purposes of applying subsection 346D(1) or (2), assume that the employment relationship of the employee or employees referred to in either of those subsections was in existence immediately before the day on which the ITEA or collective agreement was lodged.
346G 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 for an employee or class of employees of the employer.
(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 having come into operation, usually be regulated by an award; and
(b) unless there is a designated award for the employee or employees, there would be no reference instrument relating to the employee or employees; and
(c) there is an award that satisfies the requirements specified in subsection (4).
(4) 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 having come into operation, 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 purpose referred to in paragraph 346H(3)(b) if a workplace agreement or a variation of a workplace agreement were lodged; and
(c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).
(5) 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 346H 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.
(6) Despite subsection (5), the Workplace Authority Director may determine under section 346H that another award is a designated award in relation to the employee, or in relation to some or all of the employees, if:
(a) the Workplace Authority Director becomes aware of information that was not available to the Workplace Authority Director at the time of the determination under subsection (1); and
(b) the Workplace Authority Director is satisfied that, had that information been available to the Workplace Authority Director at that time, the Workplace Authority Director would have determined under subsection (1) the other award to be the designated award.
(7) The Workplace Authority Director may determine different awards under subsection (1) in relation to different employees.
(8) 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.
(9) A determination made under this section is not a legislative instrument.
346H 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 ITEA--there is no relevant collective instrument or no relevant general instrument in relation to the employee whose employment is subject to the ITEA; or
(b) in the case of a collective agreement--there is no relevant general instrument in relation to an employee or class of employees whose employment is subject to the collective agreement; or
(c) a variation of the workplace agreement is lodged and:
(i) if the workplace agreement is an ITEA--there is no relevant collective instrument or no relevant general instrument in relation to the employee whose employment is subject to the ITEA as varied; or
(ii) if the workplace agreement is a collective agreement--there is no relevant general instrument in relation to an employee or class of employees whose employment is subject to the collective agreement as varied.
(2) The Workplace Authority Director must determine that an award is a designated award for the employee or employees referred to in subsection (1), if the Workplace Authority Director is satisfied that:
(a) on the date of lodgment of the agreement or variation (as the case requires), the employee or employees are or would 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 having come into operation, usually be regulated by an award; and
(b) 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 having come into operation, 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 purpose of deciding whether a workplace agreement, or a workplace agreement as varied, passes the no‑disadvantage test; and
(c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the 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.
346HA Effect of State awards etc.
For the purposes of paragraphs 346G(2)(a) and 346H(2)(a), 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 would, but for an industrial instrument or a State employment agreement having come into operation, usually have been so regulated immediately before the reform commencement; or
(b) are usually regulated by any of the following instruments:
(i) a transitional Victorian reference award (within the meaning of Part 7 of Schedule 6);
(ii) a common rule in operation under Schedule 6;
(iii) a transitional award (within the meaning of Schedule 6) other than a Victorian reference award (within the meaning of that Schedule), to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria;
or would, but for a workplace agreement or an industrial instrument having come into operation, usually be so regulated.
346J Matters taken into account when testing agreement etc.
(1) In deciding under section 346D, 346Q or 346Z whether a workplace agreement, or a workplace agreement as varied, passes, or does not pass, the no‑disadvantage test, the Workplace Authority Director:
(a) must have regard to the work obligations of the employee or employees under the workplace agreement; and
(b) may inform himself or herself in any way he or she considers appropriate including (but not limited to) contacting any of the following:
(i) the employer;
(ii) the employee, or some or all of the employees, whose employment is subject to the workplace agreement;
(iii) a bargaining agent in relation to the agreement;
(iv) in the case of a union collective agreement or a union greenfields agreement--the organisation or organisations bound by the agreement.
(2) In deciding whether to determine that an award is a designated award in relation to an employee or employees of an employer, the Workplace Authority Director may inform himself or herself in any way he or she considers appropriate including (but not limited to) contacting any of the following:
(a) the employer;
(b) the employee or employees;
(c) if the determination would be made under section 346H--a bargaining agent in relation to the agreement;
(d) if the determination would be made under section 346H in relation to a union collective agreement or a union greenfields agreement--the organisation or organisations bound by the agreement.
Subdivision C -- Agreements that operate from approval, and variations of agreements
346K Application of this Subdivision
(1) This Subdivision applies to a workplace agreement that is:
(a) an ITEA to which subparagraph 326(2)(b)(ii) applies; or
(b) an employee collective agreement; or
(c) a union collective agreement; or
(d) a multiple‑business agreement that would be an employee collective agreement or a union collective agreement but for subsection 331(1).
(2) This Subdivision also applies to any variation of a workplace agreement under Division 8.
346L Applying the no‑disadvantage test
(1) If a workplace agreement to which this Subdivision applies is lodged with the Workplace Authority Director under Division 5, the Workplace Authority Director must decide under section 346D whether the agreement passes the no‑disadvantage test.
(2) If a variation of a workplace agreement under Division 8 is lodged with the Workplace Authority Director under that Division, the Workplace Authority Director must decide under section 346D whether the agreement as varied passes the no‑disadvantage test.
346M Workplace Authority Director must notify of decision
(1) If the Workplace Authority Director decides under section 346D that the agreement passes the no‑disadvantage test, then:
(a) the Workplace Authority Director must notify the following of the decision:
(i) the employer in relation to the agreement;
(ii) if the agreement is an ITEA--the employee whose employment is subject to the ITEA;
(iii) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1)--the organisation or organisations bound by the agreement; and
(b) the notice must also state that the agreement comes into operation on the seventh day after the date of issue specified in the notice.
(2) If the Workplace Authority Director decides under section 346D that the agreement does not pass the no‑disadvantage test, then:
(a) the Workplace Authority Director must notify the following of the decision:
(i) the employer in relation to the agreement;
(ii) if the agreement is an ITEA--the employee whose employment is subject to the ITEA;
(iii) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1)--the organisation or organisations bound by the agreement; and
(b) the notice must also:
(i) state that the agreement has not come into operation because it does not pass the no‑disadvantage test; and
(ii) contain advice as to how the agreement could be varied to pass the no‑disadvantage test.
(3) If subsection 346F(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.
(4) A notice under this section:
(a) must be in writing; and
(b) must specify the date of issue of the notice.
Note: Section 346ZH requires the employer to inform the employees concerned of the contents of the notice in relation to a collective agreement.
346N Agreement does not pass no‑disadvantage test
(1) If the Workplace Authority Director decides under section 346D that the agreement does not pass the no‑disadvantage test, the employer who is bound by the agreement may lodge a variation of the agreement with the Workplace Authority Director.
(2) For the purposes of subsection (1), Division 8 does not apply to the variation of an agreement, except for sections 367, 368, 368A, 372, 373 and 374, paragraph 377(1)(b) and section 380A.
346P Lodging of variation documents with the Workplace Authority Director
(1) An employer lodges a variation with the Workplace Authority Director under section 346N if:
(a) the employer lodges a declaration under subsection (2); and
(b) a copy of the variation 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).
(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.
346Q Workplace Authority Director must test varied agreement
(1) If an employer lodges a variation of a workplace agreement under section 346N, the Workplace Authority Director must decide under this section whether the workplace agreement as varied passes the no‑disadvantage test set out in section 346D.
(2) If the Workplace Authority Director decides under subsection (1) that a workplace agreement as varied passes the no‑disadvantage test, or that it does not pass the no‑disadvantage 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 ITEA--the employee whose employment is subject to the ITEA;
(c) if the agreement is a union collective agreement, or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1)--the organisation or organisations bound by the agreement.
(3) The notice 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 no‑disadvantage test--that the agreement as varied will come into operation on the seventh day after the date of issue specified in the notice; and
(c) if the workplace agreement as varied does not pass the no‑disadvantage test--that the agreement has not come into operation because it does not pass the no‑disadvantage test.
Note 1: Section 346ZH requires the employer to inform the employees concerned of the contents of the notice under this section in relation to a collective agreement.
Note 2: See subsection 346J(1) for how the Workplace Authority Director makes decisions under this section.
346R Operation of section 346N variations
If:
(a) an employer lodges a variation of a workplace agreement under section 346N; and
(b) the Workplace Authority Director decides under subsection 346Q(1) that the agreement as varied passes the no‑disadvantage test set out in section 346D;
the agreement as varied comes into operation on the seventh day after the date of issue specified in the notice under section 346Q that advises the agreement as varied passes the no‑disadvantage test.
Subdivision D -- Agreements that operate from lodgment
346S Application of this Subdivision
This Subdivision applies to a workplace agreement that is:
(a) an ITEA to which subparagraph 326(2)(b)(i) or (ia) applies; or
(b) a union greenfields agreement; or
(c) an employer greenfields agreement; or
(d) a multiple‑business agreement that would be a union greenfields agreement or an employer greenfields agreement but for subsection 331(1).
Note: Subdivision C, and not this Subdivision, will apply to a variation of any of these workplace agreements under Division 8.
346T Applying the no‑disadvantage test
If a workplace agreement to which this Subdivision applies is lodged with the Workplace Authority Director under Division 5, the Workplace Authority Director must decide under section 346D whether the agreement passes the no‑disadvantage test.
346U Workplace Authority Director must notify of decision
(1) If the Workplace Authority Director decides under section 346D that the agreement passes the no‑disadvantage test the Workplace Authority Director must notify the following of the decision:
(a) the employer in relation to the agreement;
(b) if the agreement is an ITEA--the employee whose employment is subject to the ITEA;
(c) if the agreement is a union greenfields agreement or a multiple‑business agreement that would be a union greenfields agreement but for subsection 331(1)--the organisation or organisations bound by the agreement.
(2) If the Workplace Authority Director decides under section 346D that the agreement does not pass the no‑disadvantage test, then:
(a) the Workplace Authority Director must notify the following of the decision:
(i) the employer in relation to the agreement;
(ii) if the agreement is an ITEA--the employee whose employment is subject to the ITEA;
(iii) if the agreement is a union greenfields agreement or a multiple‑business agreement that would be a union greenfields agreement but for subsection 331(1)--the organisation or organisations bound by the agreement; and
(b) the notice must also contain advice as to how the agreement could be varied to pass the no‑disadvantage test.
(3) If subsection 346F(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.
(4) A notice under this section:
(a) must be in writing; and
(b) must specify the date of issue of the notice.
Note: Section 346ZH requires the employer to inform the employees concerned of the contents of the notice in relation to a collective agreement.
346V Agreement does not pass no‑disadvantage test--agreement not in operation
If:
(a) the Workplace Authority Director decides under section 346D that the agreement does not pass the no‑disadvantage test; and
(b) the 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 agreement are, on and from the seventh day after the date of issue specified in the notice under section 346U in relation to the agreement, entitled to any compensation payable to the employee or employees under section 346ZG.
346W Agreement does not pass no‑disadvantage test--agreement in operation
(1) This section applies if:
(a) the Workplace Authority Director decides under section 346D that the agreement does not pass the no‑disadvantage test; and
(b) the agreement is in operation immediately before the date of the decision.
(2) The employer who is bound by the agreement may:
(a) lodge a variation of the agreement with the Workplace Authority Director; or
(b) in the case of an employer greenfields agreement--lodge a variation of the agreement by giving to the Workplace Authority Director a written undertaking in relation to the agreement.
(3) If the employer does not take the action referred to in subsection (2) within the relevant period in relation to the 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 agreement are, after the end of the relevant period in relation to the agreement, entitled to any compensation payable to the employee or employees under section 346ZG.
(4) Despite subsection (3), if:
(a) because of subsection 346F(3), the Workplace Authority Director considered, and made a separate decision in respect of, both the workplace agreement and the workplace agreement as varied; and
(b) the agreement did not pass the no‑disadvantage test, but the agreement as varied passed the no‑disadvantage test;
the agreement as varied continues in operation, and the employee or employees whose employment was at any time subject to the agreement, whether before or after the variation was lodged, are, after the end of the relevant period in relation to the agreement, entitled to any compensation payable to the employee or employees under section 346ZG.
(5) For the purposes of paragraph (2)(a), Division 8 does not apply to the variation of an agreement, except for sections 367, 368, 368A, 372, 373 and 374, paragraph 377(1)(b) and section 380A.
(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 employer greenfields agreement.
(7) In this section:
"relevant period" , in relation to a workplace agreement, means:
(a) the period of 30 days beginning on the seventh day after the date of issue specified in the notice under section 346U 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.
346X 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 346W 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.
346Y Operation of section 346W variations
(1) A variation of an agreement under paragraph 346W(2)(a) comes into operation when the variation is lodged with the Workplace Authority Director under that subsection in accordance with section 346X.
(2) A variation of an employer greenfields agreement by way of an undertaking under paragraph 346W(2)(b) comes into operation when the undertaking is given to the Workplace Authority Director under that paragraph in accordance with section 346X.
(3) For the purposes of this Act, an undertaking given by an employer to the Workplace Authority Director under paragraph 346W(2)(b) in relation to an employer greenfields agreement is taken to be a variation of the agreement lodged by the employer under section 346W.
346Z Workplace Authority Director must test varied agreement
(1) If an employer lodges a variation of a workplace agreement under section 346W, the Workplace Authority Director must decide under this section whether the workplace agreement as varied passes the no‑disadvantage test set out in section 346D.
Note: See subsection 346J(1) for how the Workplace Authority Director makes decisions under this section.
(2) If the Workplace Authority Director decides under subsection (1) that a workplace agreement as varied passes the no‑disadvantage test, or that it does not pass the no‑disadvantage 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 ITEA--the employee whose employment is subject to the ITEA;
(c) if the agreement is a union greenfields agreement, or a multiple‑business agreement that would be a union greenfields agreement but for subsection 331(1)--the organisation or organisations bound by the agreement.
(3) The notice 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 no‑disadvantage 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 seventh day after the date of issue specified in the notice, entitled to any compensation payable to the employee or employees under section 346ZG; and
(c) if the workplace agreement as varied does not pass the no‑disadvantage test:
(i) that, if the workplace agreement was in operation immediately before the seventh day after the date of issue specified in the notice--the agreement ceases to operate on that day; and
(ii) that the employee or employees whose employment was at any time subject to the workplace agreement are, on and from that day, entitled to any compensation payable to the employee or employees under section 346ZG.
Note: Section 346ZH requires the employer to inform the employees concerned of the contents of the notice under this section in relation to a collective agreement.
346ZA Effect of decision on no‑disadvantage test
(1) If the Workplace Authority Director decides under subsection 346Z(1) that a workplace agreement as varied passes, or does not pass, the no‑disadvantage test:
(a) if the workplace agreement passes the no‑disadvantage test--it continues in operation; and
(b) if the workplace agreement does not pass the no‑disadvantage test--it ceases to operate on and from the seventh day after the date of issue specified in the notice under section 346Z in respect of the workplace agreement; and
(c) the employee or employees whose employment is, or was at any time, subject to the agreement are, on and from that day, entitled to any compensation payable to the employee or employees under section 346ZG.
Note: Even though the workplace agreement has been varied so that it passes the no‑disadvantage test, compensation may be payable in respect of the period when the agreement did not pass the no‑disadvantage test.
(2) Paragraphs (1)(a) and (b) do not apply if the workplace agreement is not in operation in relation to any employee immediately before the date of the decision.
(1) This section applies if, on a particular day (the cessation day ), a workplace agreement (the original agreement ) ceases to operate under section 346W or 346ZA because the original agreement does not pass the no‑disadvantage 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.
Note 1: 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.
Note 2: See section 601D for the employment arrangements that would apply in a transmission of business context.
(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 346ZE, 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.
(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 common rule continued in operation under Schedule 6;
(g) a transitional Victorian reference award (within the meaning of Part 7 of Schedule 6);
(h) a transitional award (within the meaning of Schedule 6) other than a Victorian reference award (within the meaning of that Schedule) to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria;
(i) a section 170MX award (within the meaning of Schedule 7);
(j) an old IR agreement (within the meaning of Schedule 7);
(k) a preserved State agreement (within the meaning of Schedule 8);
(l) a notional agreement preserving State awards (within the meaning of Schedule 8).
346ZC Effect of section 346ZB in relation to instruments
If, because of the operation of section 346ZB, 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: The following provisions operate in a similar way for other instruments:
(a) subclause 3(5A) of Schedule 7 (pre‑reform certified agreements);
(b) subclause 25(4) of Schedule 7 (section 170MX awards);
(c) subclause 28(5) of Schedule 7 (old IR agreements).
Note 2: 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.
346ZD 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 346W or 346ZA because the original agreement does not pass the no‑disadvantage test.
(2) If, immediately before the day on which the original agreement was lodged, the employer was bound, under a designated provision relating to the agreement, 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 24 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" , in relation to a workplace agreement, means any of the following:
(a) section 399A;
(b) clause 6A of Schedule 7;
(c) clause 20A of Schedule 7;
(d) clause 21A of Schedule 8;
(e) clause 21D of Schedule 8;
that, after the agreement is terminated, continues the effect of a redundancy provision that was included in the agreement.
"redundancy 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;
(d) clause 21A of Schedule 8;
(e) clause 21D of Schedule 8.
346ZE Operation of workplace agreements
A workplace agreement that has ceased to operate because it does not pass the no‑disadvantage test can never operate again.
Note: This rule is subject to subsection 346ZB(3), which deals with the situation where a workplace agreement as varied under Division 8 does not pass the no‑disadvantage test.
346ZF 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 employees because of the operation of section 346ZB.
Subdivision E -- Entitlement to compensation
346ZG Employee is entitled to compensation in respect of no‑disadvantage 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 to which Subdivision D applies that was binding on the employee's employer did not pass the no‑disadvantage test.
Note 1: Sections 346V, 346W and 346ZA 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 no‑disadvantage test is varied so that it subsequently passes the no‑disadvantage test--see section 346ZA.
(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 no‑disadvantage 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 no‑disadvantage test period, worked out in accordance with the assumptions set out in subsection (3).
(3) 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 no‑disadvantage 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; and
(b) the employer was bound, under a designated provision relating to the agreement, by a 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.
(4) 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 346V in respect of the workplace agreement--the period of 14 days beginning on the seventh day after the date of issue specified in the notice under section 346U in relation to the workplace agreement;
(b) if the employee is entitled to compensation because of the operation of section 346W in respect of the workplace agreement--the period of 14 days beginning at the end of the relevant period (within the meaning of section 346W) in relation to the workplace agreement;
(c) if the employee is entitled to compensation because of the operation of section 346ZA in respect of the workplace agreement--the period of 14 days beginning on the seventh day after the date of issue specified in the notice under section 346Z 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.
(5) In this section:
"designated provision" has the same meaning as in section 346ZD.
"instrument" has the same meaning as in section 346ZB.
"no-disadvantage 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 operation because of the operation of subsection 346W(4) or section 346ZA--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 346W or, if the workplace agreement had been varied before that day in such a way as to pass the no‑disadvantage test, on that earlier day.
"redundancy provision" has the same meaning as in section 346ZD.
Subdivision F -- Civil remedy provisions
346ZH Employer must notify employees
(1) An employer that has received a notice under section 346M, 346Q, 346U or 346Z 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.
346ZJ Employer not to dismiss etc. employee because agreement does not pass the no‑disadvantage 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 no‑disadvantage test.
(2) Subsection (1) is a civil remedy provision.
Note 1: An employee may still be entitled to compensation under section 346ZG if his or her workplace agreement does not pass the no‑disadvantage test.
Note 2: A contravention of subsection (1) 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 no‑disadvantage test, unless the employer proves otherwise.
Note: Division 3 of Part 14 contains other provisions relevant to civil remedies.
346ZK Other remedies for the contravention of section 346ZJ
(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 346ZJ(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 346ZG if his or her workplace agreement does not pass the no‑disadvantage 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) 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 in subsection (3) may provide that a person is prescribed only in relation to circumstances specified in the regulation.
3 Subsection 347(1)
Repeal the subsection, substitute:
(1) A workplace agreement comes into operation at whichever of the following times is applicable:
(a) for an ITEA to which subparagraph 326(2)(b)(i) or (ia) applies, a union greenfields agreement, an employer greenfields agreement or a multiple‑business agreement that would be such an agreement but for subsection 331(1)--the day the agreement is lodged;
(b) for an ITEA to which subparagraph 326(2)(b)(ii) applies, an employee collective agreement, a union collective agreement or a multiple‑business agreement that would be such an agreement but for subsection 331(1)--the seventh day after the date of issue specified in the notice under subsection 346M(1) or 346Q(2) in relation to the agreement.
4 After section 347
Insert:
347A Whether certain non‑compliance affects the operation of a workplace agreement
(1) Despite section 347, a workplace agreement does not come into operation unless the requirements in Division 2 and section 340 have been met in relation to the agreement.
(2) However, failure to comply with any or all of the following in relation to a workplace agreement:
(a) the requirements in Division 3;
(b) the requirements in Division 4 (apart from section 340);
(c) the requirements in section 342;
does not prevent the agreement coming into operation.
Note: Under Division 11, penalties apply to a person who contravenes a civil remedy provision in Division 3 or 4 or section 342.
4A Section 349
Before "An award", insert "(1)".
4B At the end of section 349
Add:
(2) Despite subsection (1), if:
(a) a person's employment is subject to a workplace agreement; and
(b) but for the workplace agreement, an award would have effect in relation to the person's employment;
the terms of the award have effect to the extent that they are about outworker conditions, despite any terms of the workplace agreement that provide, in a particular respect, a less favourable outcome for that person.
(3) In this section:
"outworker" means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.
"outworker conditions" means conditions (other than pay) for outworkers, but only to the extent necessary to ensure that their overall conditions of employment are fair and reasonable in comparison with the conditions of employment specified in a relevant award or awards for employees who perform the same kind of work at an employer's business or commercial premises.
5 Before paragraph 352(1)(a)
Insert:
(aa) in the case of an ITEA:
(i) if a date is specified in the agreement as its nominal expiry date, and that date is no later than 31 December 2009--that specified date; or
(ii) otherwise--31 December 2009; or
(ab) in the case of an employee collective agreement or a union collective agreement that is taken to pass the no‑disadvantage test under subsection 346D(3):
(i) if a date is specified in the agreement as its nominal expiry date, and that date is no later than the second anniversary of the seventh day after the date of issue specified in the notice under subsection 346M(1)--that specified date; or
(ii) otherwise--the second anniversary of the seventh day after the date of issue specified in the notice under subsection 346M(1); or
6 At the end of subsection 352(1)
Add:
Note: Subsection 346D(3) is about workplace agreements that are taken to pass the no‑disadvantage test because of exceptional circumstances.
7 Before paragraph 352(2)(a)
Insert:
(aa) in the case of an ITEA--the earlier of the following dates:
(i) the date specified in the agreement as varied as its nominal expiry date;
(ii) 31 December 2009; or
(ab) in the case of an employee collective agreement or a union collective agreement that is taken to pass the no‑disadvantage test under subsection 346D(3)--the earlier of the following dates:
(i) the date specified in the agreement as varied as its nominal expiry date;
(ii) the second anniversary of the seventh day after the date of issue specified in the notice under subsection 346M(1); or
8 Sections 354 and 355
Repeal the sections.
9 Subsections 380(1) and (2)
Repeal the subsections, substitute:
(1) A variation to a workplace agreement under this Division comes into operation on the seventh day after the date of issue specified in the notice under subsection 346M(1) in relation to the agreement as varied.
10 At the end of Subdivision D of Division 8
Add:
380A Whether certain non‑compliance affects the operation of a variation
(1) A variation to a workplace agreement does not come into operation unless the requirements in Subdivision A and section 373 have been met in relation to the variation.
(2) However, failure to comply with any or all of the following in relation to a variation to a workplace agreement:
(a) the requirements in Division 3;
(b) the requirements in Subdivision B of this Division (apart from section 373);
(c) the requirements in section 375;
does not prevent the variation coming into operation.
Note: Under Division 11, penalties apply to a person who contravenes a civil remedy provision in Division 3, Subdivision B of this Division or section 375.
11 Section 393
Repeal the section, substitute:
393 Unilateral termination of ITEA with 90 days written notice
(1) This section applies whether or not an ITEA provides for a manner of terminating the agreement after its nominal expiry date.
(2) Any of the following persons may terminate the ITEA by lodging a declaration in accordance with section 395:
(a) the employer in relation to the ITEA;
(b) the employee whose employment is subject to the ITEA;
(c) a bargaining agent at the request of the employer or the employee.
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(3) However, this may be done only if the nominal expiry date of the ITEA has passed.
(4) At least 90 days before the lodgment, and after the nominal expiry date of the ITEA has passed, the person intending to lodge the declaration must take reasonable steps to ensure that:
(a) written notice of the termination is given to:
(i) if the employer, or a bargaining agent at the employer's request, is intending to lodge the declaration--the employee; or
(ii) if the employee, or a bargaining agent at the employee's request, is intending to lodge the declaration--the employer; and
(b) if the person giving the notice is the employer in relation to the ITEA, or is a bargaining agent doing so at the request of the employer--a written copy of the undertakings (if any) made by the employer under section 394 is given to the employee.
(5) The notice must:
(a) state that the ITEA is to be terminated; and
(b) specify the day on which the person proposes to lodge the notice; and
(c) be in the form (if any) that the Workplace Authority Director requires by notice published in the Gazette ; and
(d) contain the information (if any) that the Workplace Authority Director requires by notice published in the Gazette ; and
(e) if the person giving the notice is the employer in relation to the ITEA, or is a bargaining agent doing so at the request of the employer--state whether the parties to the ITEA will, under section 399A, continue to be bound by one or more redundancy provisions included in the ITEA; and
(f) if the parties to the ITEA will continue to be so bound--include an annexed copy of the provision or the provisions.
(6) A person contravenes this subsection if:
(a) the person lodges a declaration to terminate an ITEA under subsection (2); and
(b) the person failed to comply with subsection (4) or (5).
Note: See Division 11 for provisions on enforcement.
(7) Subsection (6) is a civil remedy provision.
12 After Subdivision D of Division 9 of Part 8
Insert:
Subdivision DA -- Termination by the Commission
397A Termination by the Commission
(1) The Commission may, by order, terminate a collective agreement that has passed its nominal expiry date on application under subsection (2) if it is satisfied that it would not be contrary to the public interest to terminate the agreement.
(2) Any of the following persons may apply for an order under subsection (1):
(a) the employer;
(b) a majority of the employees whose employment is subject to the agreement;
(c) an organisation of employees that is bound by the agreement.
(3) In deciding whether it would be contrary to the public interest to terminate the agreement, the Commission must have regard to all circumstances of the case, including:
(a) the views of each party bound by the agreement (including the employees) about whether it should be terminated; and
(b) the circumstances of each such party, including the likely effect on each such party of the termination of the agreement.
13 Section 398
Repeal the section, substitute:
398 Whether a termination takes effect if certain non‑compliance occurs
(1) Failure to comply with the requirements in Division 3 in relation to a termination does not prevent the termination taking effect.
(2) Failure to comply with any or all of the following:
(a) the requirements in Subdivision B (apart from sections 382 and 386);
(b) the requirements in section 388;
does not prevent a termination of a kind mentioned in paragraph 381(1)(a) taking effect.
(3) However, a termination of that kind does not take effect unless the requirements in sections 382 and 386 have been met in relation to the termination.
(4) Failure to comply with any or all of the requirements in subsections 392(4) and (5) and 393(4) and (5) does not prevent a termination of a kind mentioned in paragraph 381(1)(b) taking effect.
14 Section 399
Repeal the section.
Part 2 -- Transitional matters
15 After Schedule 7
Insert:
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