Commonwealth Numbered Acts Commonwealth Numbered ActsNote: See section 8
In this Schedule:
"fairness test" means the test set out in section 346M of the pre-transition Act.
"pre-transition Act" means this Act as in force immediately before the commencement of this Schedule.
"pre-transition collective agreement" means a collective agreement made before the commencement of this Schedule that:
(a) was lodged with the Workplace Authority Director before that commencement; or
(b) is lodged, in accordance with section 344 of the pre‑transition Act, within 14 days after that commencement;
but does not include a collective agreement made after that commencement.
(1) Subject to this Schedule, the following provisions of the pre‑transition Act continue to apply in relation to a pre‑transition collective agreement, despite the repeals and amendments made by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 :
(a) paragraph 150B(1)(f);
(b) subsection 164A(7);
(c) Division 5A of Part 8;
(ca) subsections 347(1) and (2);
(d) paragraphs 347(4)(ba) and (bb);
(e) subsections 347(8A) and (9A);
(f) section 354;
(g) section 355;
(h) paragraph 367(2)(aa);
(i) paragraphs 407(2)(jb) to (jd);
(j) sections 416 to 418;
(k) subsection 506(5);
(l) any other provision relating to the operation of the provisions mentioned in the preceding paragraphs.
(2) Regulations made under the pre‑transition Act, to the extent that they relate to the provisions mentioned in subclause (1), continue to apply in relation to a pre‑transition collective agreement.
(3) To the extent that provisions of the pre‑transition Act, and the regulations made under the pre‑transition Act, continue to apply in relation to a pre‑transition collective agreement, the corresponding provisions of this Act do not apply to the agreement.
(4) The provisions of this Act (other than the corresponding provisions referred to in subclause (3)) apply in relation to a pre‑transition collective agreement as if references in those provisions to the no‑disadvantage test were references to the fairness test.
3 Application of this Schedule to variations of pre‑transition collective agreements
Clause 2 of this Schedule does not apply in relation to a variation of a pre‑transition collective agreement unless the variation:
(a) was lodged with the Workplace Authority Director before the commencement of this Schedule; or
(b) is made before that commencement and is lodged, in accordance with section 377 of the pre‑transition Act, within 14 days after that commencement.
15A Effect of repeal of section 399
(1) To avoid doubt, if, immediately before the commencement of this item, an industrial instrument had no effect because of the operation of section 399 of the pre‑transition Act, the repeal of that section by this Act:
(a) does not cause the instrument to have effect after that commencement; and
(b) does not cause any protected award condition to cease to have effect.
(2) In this item:
industrial instrument means an instrument mentioned in subsection 399(3) of the pre‑transition Act, and includes any of the following (except to the extent that they contain protected award conditions):
(a) a common rule within the meaning of clause 89 of Schedule 6;
(b) a transitional Victorian reference award within the meaning of Part 7 of that Schedule;
(c) a transitional award within the meaning of that Schedule, to the extent that subclause 102(1) of that Schedule applies to it.
pre‑transition Act means the Workplace Relations Act 1996 as in force immediately before the commencement of this item.
protected award condition has the meaning it had for the purposes of section 354 of the pre‑transition Act.
Part 3 -- Other amendments of the Workplace Relations Act 1996
16 Subsection 4(1) (definition of Australian workplace agreement or AWA )
Repeal the definition.
17 Subsection 4(1) (definition of AWA )
Repeal the definition.
18 Subsection 4(1) (paragraph (a) of the definition of bargaining agent )
Repeal the paragraph, substitute:
(a) in relation to an ITEA--a person who has been duly appointed as a bargaining agent in relation to the ITEA in accordance with section 334; or
19 Subsection 4(1)
Insert:
"individual transitional employment agreement or ITEA" has the meaning given by section 326.
ITEA: see individual transitional employment agreement.
20 Subsection 4(1) (definition of workplace agreement )
Repeal the definition, substitute:
"workplace agreement" means:
(a) an ITEA; or
(b) a collective agreement;
and includes a document that the Court has ordered under section 412A is to have effect as a workplace agreement.
Note 1: Section 324 affects the meaning of workplace agreement .
Note 2: Under section 324A, some other documents are taken to be workplace agreements for certain limited purposes.
Note 3: An order by the Court under paragraph 412A(1)(a) enables a document to which section 324A applies to have effect as a workplace agreement.
21 Section 8
Repeal the section, substitute:
8 Schedules 1, 6, 7, 7A, 7B, 8, and 9 have effect
Schedules 1, 6, 7, 7A, 7B, 8 and 9 have effect.
Note 1: Schedule 1 is about registration and accountability of organisations.
Note 2: Schedule 6 is about transitional arrangements for parties bound by federal awards.
Note 3: Schedule 7 is about transitional arrangements for existing pre‑reform certified agreements.
Note 4: Schedule 7A is about transitional arrangements for existing AWAs.
Note 5: Schedule 7B is about transitional arrangements for existing collective agreements.
Note 6: Schedule 8 is about transitional treatment of State employment agreements and State awards.
Note 7: Schedule 9 is about transitional instruments and transmission of business.
22 Paragraph 150B(1)(f)
Omit "fairness test", substitute "no‑disadvantage test".
23 Subsection 164A(7)
Repeal the subsection, substitute:
(7) Despite subsections (1), (2) and (5), a workplace agreement official is not authorised by any of those subsections to disclose to the Minister information relating to a decision under Division 5A of Part 8 whether a particular workplace agreement passes the no‑disadvantage test.
24 Paragraph 165(1)(c)
Omit "AWA", substitute "ITEA".
Note 1: The heading to section 165 is altered by omitting " AWAs " and substituting " ITEAs ".
Note 2: The heading to section 166 is altered by omitting " AWAs " and substituting " workplace agreements ".
25 Subsection 185(3) (cell at table item 1, column headed "In this situation ...")
Repeal the cell, substitute:
|
if: (a) subsection 182(1) applies to the employment of the employee; and (b) the employee's employment has never been subject to a workplace agreement; |
26 Subsection 185(3) (cell at table item 2, column headed "In this situation ...")
Repeal the cell, substitute:
|
if: (a) subsection 182(1) applies to the employment of the employee; and (b) the employee's employment has been, but is no longer, subject to a workplace agreement; |
27 After section 324
Insert:
324A Documents taken to be workplace agreements etc.
If a document:
(a) is represented (expressly or by implication) to be a workplace agreement, or a type of workplace agreement mentioned in section 326, 327, 328, 329, 330 or 331; and
(b) could not come into operation under this Act as a workplace agreement, or as a workplace agreement of that type, even if it were to pass the no‑disadvantage test;
the document is taken to be a workplace agreement, or a workplace agreement of that type, for the purposes of:
(c) Divisions 3 and 4, Division 5 (other than section 342), Divisions 8, 9 and 10 and Division 11 (other than sections 409 to 412A); and
(d) any other provision of this Act, to the extent that the provision relates to the operation of any of the provisions mentioned in paragraph (c).
Note: The Court can order under section 412A that a document is to have effect as a workplace agreement for the purposes of the entire Act.
28 Section 327
After "will", insert ", or would but for the operation of an ITEA that has passed its nominal expiry date,".
29 Paragraph 333(a)
Repeal the paragraph, substitute:
(a) for an ITEA--the time when the ITEA is approved in accordance with section 340;
30 Subsection 334(1)
Omit "AWA", substitute "ITEA".
Note: The heading to section 334 is altered by omitting " AWAs " and substituting " ITEAs ".
31 Paragraph 336(a)
Repeal the paragraph, substitute:
(a) in the case of an ITEA--the person whose employment will be subject to the ITEA; or
32 Paragraph 336(b)
After "will", insert ", or would but for the operation of an ITEA that has passed its nominal expiry date,".
33 Paragraph 337(4)(b)
Omit "AWA", substitute "ITEA".
34 Paragraph 337(4)(ca)
Repeal the paragraph.
35 Subsection 337(6)
Repeal the subsection, substitute:
(6) For the purposes of this section, if the workplace agreement incorporates terms from another workplace agreement or an award, the eligible employees have ready access to the workplace agreement only if they have ready access to that other workplace agreement or award in writing.
36 Subsection 340(1)
Omit "AWA" (wherever occurring), substitute "ITEA".
37 Paragraph 340(2)(a)
After "will", insert ", or would but for the operation of an ITEA that has passed its nominal expiry date,".
38 Subsection 342(1)
Omit "AWA", substitute "ITEA".
39 Paragraph 344(1)(b)
Repeal the paragraph, substitute:
(b) the workplace agreement:
(i) in the case of an ITEA--meets the signature requirements of subsection 340(1); or
(ii) in the case of a collective agreement--meets the signature requirements of regulations made for the purposes of paragraph 418(e); and
(c) a copy of the signed agreement is annexed to the declaration.
40 Paragraph 345(2)(b)
Omit "AWA", substitute "ITEA".
41 Subsection 346A(1)
Omit "AWA" (wherever occurring), substitute "ITEA".
Note: The heading to section 346A is altered by omitting " AWA " and substituting " ITEA ".
42 Subsections 347(2) and (2A)
Repeal the subsections.
43 Paragraphs 347(4)(b), (ba) and (bb)
Repeal the paragraphs, substitute:
(b) in the case of an ITEA--it is replaced by another ITEA; or
(ba) in the case of an agreement to which paragraph (1)(a) applies--the Workplace Authority Director decides under section 346D that the agreement does not pass the no‑disadvantage test and the employer who is bound by the agreement does not take the action referred to in subsection 346W(2) within the relevant period (as defined in subsection 346W(7)) in relation to the agreement; or
(bb) the Workplace Authority Director decides under section 346Z that the agreement as varied does not pass the no‑disadvantage test; or
44 Subsections 347(7A), (8A) and (9A)
Repeal the subsections.
45 Subsection 348(2)
Omit "AWA", substitute "ITEA".
46 Paragraphs 360(2)(b) and 367(1)(a)
Omit "AWA", substitute "ITEA".
47 Paragraph 367(1)(b)
After "will", insert ", or would but for the operation of an ITEA that has passed its nominal expiry date,".
48 Paragraph 367(2)(aa)
Repeal the paragraph, substitute:
(aa) section 346N or 346W (which deal with agreements that do not pass the no‑disadvantage test); or
49 Paragraph 368(a)
Omit "AWA", substitute "ITEA".
50 At the end of Subdivision A of Division 8 of Part 8
Add:
368A Documents taken to be variations of workplace agreements etc.
If a document:
(a) is represented (expressly or by implication) to be a variation of a workplace agreement, or of a type of workplace agreement mentioned in section 326, 327, 328, 329, 330 or 331; and
(b) could not come into operation under this Act as a variation of a workplace agreement, or as a variation of a workplace agreement of that type, even if the agreement as varied were to pass the no‑disadvantage test;
the document is taken to be a variation of a workplace agreement, or of a workplace agreement of that type, for the purposes of:
(c) Division 3, Subdivisions B and C of this Division (other than section 375), Division 10 and Division 11 (other than sections 409 to 412A); and
(d) any other provision of this Act, to the extent that the provision relates to the operation of any of the provisions mentioned in paragraph (c).
Note: The Court can order under section 412A that a document is to have effect as a variation for the purposes of the entire Act.
51 Paragraph 369(a)
Omit "AWA", substitute "ITEA".
52 Subparagraph 369(b)(ii)
After "will", insert ", or would but for the operation of an ITEA that has passed its nominal expiry date,".
53 Paragraph 370(4)(b)
Omit "AWA", substitute "ITEA".
54 Subsection 370(6)
Repeal the subsection, substitute:
(6) For the purposes of this section, if, because of the variation, the agreement as varied would incorporate terms from another workplace agreement or an award, the eligible employees have ready access to the variation only if they have ready access to that other workplace agreement or award in writing.
55 Subsection 373(1)
Omit "AWA", substitute "ITEA".
56 Subparagraph 373(2)(a)(ii)
After "will", insert ", or would but for the operation of an ITEA that has passed its nominal expiry date,".
57 Paragraph 377(1)(b)
Repeal the paragraph, substitute:
(b) the workplace agreement:
(i) in the case of a variation of an ITEA--meets the signature requirements of subsection 373(1); or
(ii) in the case of a variation of a collective agreement--meets the signature requirements of regulations made for the purposes of paragraph 418(ea); and
(c) a copy of the signed variation is annexed to the declaration.
58 Paragraph 378(2)(b)
Omit "AWA", substitute "ITEA".
59 At the end of section 380
Add:
Note: Section 346R sets out when variations of workplace agreements under Division 5A come into operation.
60 At the end of subsection 381(1)
Add:
; or (c) by the Commission (see Subdivision DA).
61 Paragraph 381(2)(c)
Omit "a declaration", substitute "in the case of an ITEA--a declaration".
62 At the end of subsection 381(2)
Add:
; or (d) in the case of a collective agreement--an order by the Commission under section 397A takes effect.
63 At the end of Subdivision A of Division 9 of Part 8
Add:
381A Documents taken to be terminations of workplace agreements etc.
If a document:
(a) is represented (expressly or by implication) to be a termination of a workplace agreement, or of a type of workplace agreement mentioned in section 326, 327, 328, 329, 330 or 331; and
(b) could not come into operation under this Act as a termination of a workplace agreement, or as a termination of a workplace agreement of that type;
the document is taken to be a termination of a workplace agreement, or of a workplace agreement of that type, for the purposes of:
(c) Division 3, Subdivisions B and C of this Division (other than section 388), Division 10 and Division 11 (other than sections 409 to 412A); and
(d) any other provision of this Act, to the extent that the provision relates to the operation of any of the provisions mentioned in paragraph (c).
Note: The Court can order under section 412A that a document is to have effect as a termination for the purposes of the entire Act.
64 Paragraphs 382(a), 383(a) and 384(3)(b)
Omit "AWA", substitute "ITEA".
65 Subsection 386(1)
Omit "AWA" (wherever occurring), substitute "ITEA".
66 Paragraph 389(1)(b)
Repeal the paragraph, substitute:
(b) if the workplace agreement is an ITEA:
(i) the termination agreement meets the signature requirements of subsection 386(1); and
(ii) a copy of the signed termination agreement is annexed to the declaration.
67 Paragraphs 390(2)(b) and 392(2)(ba) and (c)
Omit "AWA", substitute "ITEA".
68 Subsection 394(1)
Omit "a workplace agreement", substitute "an ITEA".
69 Subsections 394(1) and 394(2)
Omit "the workplace agreement", substitute "the ITEA".
70 Subsections 394(4) and (5)
Omit "a workplace agreement", substitute "an ITEA".
71 Subsection 394(8)
Repeal the subsection (including the note).
72 Subsection 395(1)
Repeal the subsection (including the note), substitute:
(1) A person lodges a declaration to terminate a workplace agreement under section 392 with the Workplace Authority Director if:
(a) the person gives it to the Workplace Authority Director; and
(b) it meets the form requirements mentioned in subsection (3).
(1A) A person lodges a declaration to terminate an ITEA under section 393 with the Workplace Authority Director if:
(a) the person gives it to the Workplace Authority Director; and
(b) it meets the form requirements mentioned in subsection (3); and
(c) if the employer in relation to the ITEA, or a bargaining agent at the request of the employer in relation to the ITEA, lodges the declaration to terminate the ITEA--the declaration states whether the parties to the ITEA will, under section 399A, continue to be bound by one or more redundancy provisions included in the ITEA.
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
73 Subsection 395(2)
Omit "agreement" (wherever occurring), substitute "ITEA".
74 Subsection 395(3)
After "paragraph (1)(b)", insert "or (1A)(b)".
75 Subsection 395(4)
After "subsection (1)", insert "or (1A)".
76 Subsection 396(1A)
Omit "a workplace agreement, or a bargaining agent at the request of the employer in relation to a workplace agreement, lodged a declaration under subsection 395(1) to terminate the agreement", substitute "an ITEA, or a bargaining agent at the request of the employer in relation to an ITEA, lodged a declaration under subsection 395(1A) to terminate the ITEA".
77 Paragraph 396(1A)(a)
Omit "workplace agreement" (wherever occurring), substitute "ITEA".
78 Paragraph 396(2)(c)
Omit "AWA", substitute "ITEA".
79 Subsection 399A(1)
Omit "a workplace agreement", substitute "an ITEA".
80 Subsection 399A(1)
Omit "the agreement" (wherever occurring), substitute "the ITEA".
81 Subsection 399A(2)
Omit "workplace agreement" (wherever occurring), substitute "ITEA".
82 Subsection 399A(2A)
Omit "a workplace agreement", substitute "an ITEA".
83 Paragraph 399A(3)(a)
Omit "workplace agreement", substitute "ITEA".
84 Subsections 400(3), (5) and (6)
Omit "AWA", substitute "ITEA".
85 Paragraphs 400(6A)(b) and (d) and 405(1)(e)
Omit "AWA", substitute "ITEA".
86 At the end of section 406
Add "or Division 7A of Part 11".
87 Paragraph 407(2)(jb)
Omit "346ZE(1)", substitute "346ZH(1)".
88 Paragraph 407(2)(jba)
Repeal the paragraph.
89 Paragraph 407(2)(jc)
Omit "346ZF(1)", substitute "346ZJ(1)".
90 Paragraph 407(2)(jd)
Repeal the paragraph.
91 At the end of subsection 407(2)
Add:
; (zl) for subsection 601H(2)--30 penalty units.
92 After section 412
Insert:
412A Court may give effect to purported workplace agreements etc.
(1) The Court may order that:
(a) a document to which section 324A applies that was lodged with the Workplace Authority Director is to have effect as a workplace agreement for the purposes of this Act; or
(b) a document to which section 368A applies that was lodged with the Workplace Authority Director is to have effect as a variation of a workplace agreement for the purposes of this Act; or
(c) a document to which section 381A applies that was lodged with the Workplace Authority Director is to have effect as a termination of a workplace agreement for the purposes of this Act.
(2) However, the Court must not make an order under this section unless it is satisfied that the order would not reduce any employee's overall terms and conditions of employment.
(3) In deciding for the purposes of subsection (2) whether an order will disadvantage an employee, the Court is to take into account any reference instruments (within the meaning of Division 5A) that relate to the employee.
(4) An order under this section:
(a) is taken to have had effect from a date specified in the order that is earlier than the date of the order; or
(b) has effect from a date specified in the order that is later than the date of the order; or
(c) otherwise--has effect from the date of the order.
(5) The date specified in the order must not be earlier than the date of lodgment of the document to which section 324A, 368A or 381A applies.
93 Subsections 415(1) and (2)
Omit "AWAs", substitute "ITEAs".
Note: The heading to section 415 is altered by omitting " AWAs " and substituting " ITEAs ".
94 Paragraph 416(1)(a)
Omit "346S(2), 377(2), 389(2) or 395(1)", substitute "346X(2), 377(2), 389(2) or 395(1) or (1A)".
95 Paragraph 416(1)(d)
Omit "346J(1) or (2), 346P(1) or (2), 346U(2)", substitute "346M(1) or (2), 346U(1) or (2), 346Z(2)".
96 Paragraph 416(1)(g)
Omit "346K or 346L", substitute "346G or 346H".
97 Paragraph 417(1)(a)
Omit "346S(2), 377(2), 389(2) or 395(1)", substitute "346X(2), 377(2), 389(2) or 395(1) or (1A)".
98 Paragraph 417(1)(g)
Omit "346P(3)(a)", substitute "346M(2)(b), 346U(2)(b)".
99 Paragraph 417(1)(k)
Omit "346J(1) or (2), 346P(1) or (2), 346U(2)", substitute "346M(1) or (2), 346U(1) or (2), 346Z(2)".
100 Paragraph 418(d)
Omit "AWAs", substitute "ITEAs".
101 After paragraph 418(e)
Insert:
(ea) the signing of variations of workplace agreements by persons bound by those agreements, or representatives of those persons;
102 Section 450 (definition of relevant employee )
Omit "AWA", substitute "ITEA".
103 Subparagraphs 467(1)(a)(iii) and (b)(ii)
After "will", insert ", or would but for the operation of an ITEA that has passed its nominal expiry date,".
104 Subsection 467(2)
Omit "AWA", substitute "ITEA".
105 Paragraph 485(1)(d)
Omit "AWA", substitute "ITEA".
106 Subsections 495(1) and (2)
Omit "AWA" (wherever occurring), substitute "ITEA".
Note: The heading to section 495 is altered by omitting " AWA " and substituting " ITEA ".
107 Subsection 506(4)
Omit "sections", substitute "subsection".
108 Subsection 506(4)
Omit "is lodged", substitute "comes into operation".
109 Subsection 506(5)
Repeal the subsection (including the note).
110 Subsection 513(1) (note 3)
Repeal the note.
111 Paragraph 578(2)(a)
Omit "AWAs", substitute "ITEAs".
112 Section 579 (paragraph (a) of the definition of instrument )
Repeal the paragraph, substitute:
(a) an ITEA; or
113 Division 3 of Part 11 (heading)
Repeal the heading, substitute:
Division 3 -- Transmission of ITEA
114 Paragraph 583(1)(a)
Omit "AWA", substitute "ITEA that was in operation".
115 Paragraph 583(1)(b)
Omit "AWA", substitute "ITEA".
116 Subsection 583(1)
Omit "AWA" (last occurring), substitute "ITEA".
Note 1: The heading to section 583 is altered by omitting " AWA " and substituting " ITEA ".
Note 2: The heading to subsection 583(1) is altered by omitting " AWA " and substituting " ITEA in operation ".
117 After subsection 583(1)
Insert:
Transferring employee considered an existing employee for the purposes of eligibility to make an ITEA
(1A) For the purposes of applying section 326 to a transferring employee in relation to a new employer:
(a) treat the employee as being in an employment relationship with the employer; and
(b) assume that subparagraphs 326(2)(b)(i) and (ia) do not apply to the employee.
118 Subsection 583(2)
Omit "AWA" (wherever occurring), substitute "ITEA".
119 Section 584
Repeal the section, substitute:
584 Termination of transmitted ITEA
The ITEA cannot be terminated under subsection 392(2) or 393(2) during the transmission period (even if the ITEA has passed its nominal expiry date).
120 Paragraph 585(1)(a)
After "collective agreement", insert "that was in operation".
Note: The heading to subsection 585(1) is altered by inserting " in operation " after " collective agreement ".
121 Paragraph 585(3)(a)
Repeal the paragraph.
122 Subsection 587(2)
Repeal the subsection (including the note).
123 Subsection 588(2)
Omit "or 393(2)".
Note: The heading to subsection 588(2) is altered by omitting " subsections 392(2) and 393(2) " and substituting " subsection 392(2) ".
124 Subsection 588(3)
Repeal the subsection (including the note).
125 Paragraph 595(3)(a)
Repeal the paragraph.
126 Subsection 596(2) (note 2)
Omit "AWAs and".
127 Subsection 597(2)
Repeal the subsection (including the note).
128 After Division 7 of Part 11
Insert:
Division 7A -- Application of no‑disadvantage test
601A No decision under section 346D at time of transmission
(1) This section applies if a workplace agreement that is in operation becomes binding upon a new employer and a transferring employee or transferring employees, because of the operation of section 583 or 585, before the Workplace Authority Director has decided whether the agreement passes the no‑disadvantage test under section 346D.
(2) Subject to subsection (4), for the purposes of deciding under section 346D whether the workplace agreement passes the no‑disadvantage test, references to the employer in the following provisions:
(a) section 346D;
(b) the definitions of relevant collective instrument and relevant general instrument in section 346E;
(c) section 346J;
are taken to be references to the old employer.
(3) If:
(a) the Workplace Authority Director has been notified that the workplace agreement is binding on the new employer and the transferring employee or transferring employees; and
(b) the Workplace Authority Director is required to give a notice under section 346M, 346U or 346Z to the employer in relation to the workplace agreement;
the Workplace Authority Director must give the notice to both the old employer and the new employer.
(4) If the Workplace Authority Director decides under section 346D that the workplace agreement does not pass the no‑disadvantage test:
(a) references in section 346W to the employer bound by the workplace agreement are taken to be references to the new employer; and
(b) to avoid doubt, if the new employer subsequently lodges a variation of the workplace agreement under section 346W then, for the purposes of deciding under section 346Z whether the workplace agreement as varied passes the no‑disadvantage test, references to the employer in the following provisions:
(i) section 346D;
(ii) the definitions of relevant collective instrument and relevant general instrument in section 346E;
(iii) section 346J;
are taken to be references to the old employer.
Note 1: The employment arrangements that have effect in relation to the new employer and the transferring employee or transferring employees are as set out in section 601D.
Note 2: The compensation payable to the transferring employees under section 346ZG by both the old employer and the new employer is as specified in subsections 346ZG(2), (3) and 601G(1).
601B No decision on a varied agreement under section 346Z at time of transmission
(1) This section applies if a workplace agreement as varied becomes binding upon a new employer and a transferring employee or transferring employees, because of the operation of section 583 or 585, before the Workplace Authority Director has decided whether the agreement as varied passes the no‑disadvantage test under section 346Z.
(2) For the purposes of deciding under section 346Z whether the workplace agreement as varied passes the no‑disadvantage test, references to the employer in the following provisions:
(a) section 346D;
(b) the definitions of relevant collective instrument and relevant general instrument in section 346E;
(c) section 346J;
are taken to be references to the old employer.
(3) If:
(a) the Workplace Authority Director has been notified that the workplace agreement is binding upon the new employer and a transferring employee or transferring employees; and
(b) the Workplace Authority Director is required to give a notice under section 346Z to the employer in relation to the workplace agreement;
the Workplace Authority Director must give the notice to both the old employer and the new employer.
601C Employees still employed by old employer
To avoid doubt, if a workplace agreement becomes binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585, Division 5A of Part 8 has effect, to the extent that the workplace agreement continues to bind:
(a) the old employer; and
(b) an employee or employees who are not transferring employees;
according to its terms.
(1) This section applies if:
(a) 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; and
(b) during the period beginning when the original agreement was lodged and ending on the cessation day, the original agreement became binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585 in relation to a business being transferred; and
(c) the cessation day occurs during the transmission period in relation to the business being transferred.
Note: If the cessation day occurs after the transmission period ends, the rules in Divisions 3, 4, 5 and 6 of this Part will have effect according to their terms.
(2) Despite subsection 346ZB(2), the new employer and the transferring employee or transferring 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:
(i) that, but for the original agreement having come into operation, would have bound the old employer and the transferring employee or transferring employees immediately before the time of transmission; and
(ii) that was capable of binding the new employer after the time of transmission under this Part, Schedule 6 or Schedule 9; or
(b) if there is no instrument of a kind referred to in paragraph (a) in relation to the old employer and one or more of the transferring employees--the designated award (within the meaning of Division 5A of Part 8) in relation to that employee or those employees.
(3) If, but for the original agreement having come into operation, the old employer would have been bound, immediately before the time of transmission, under a designated provision relating to the agreement, by a redundancy provision in relation to a transferring employee or transferring employees whose employment was subject to the original agreement, the new employer is taken:
(a) to be bound under section 598A or clause 27A of Schedule 9, as the case requires, on and from the cessation day, by the redundancy provision in relation to the transferring employee or transferring employees; 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 old employer became bound, under the designated provision, by the redundancy provision;
(ii) the time when the employee ceases to be employed by the new employer;
(iii) the time when another workplace agreement comes into operation in relation to the transferring employee or the transferring employees and the new employer.
(4) If the original agreement is a workplace agreement as varied under Division 8 of Part 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).
(5) In this section:
"designated provision" has the same meaning as in section 346ZD.
"instrument" means any of the following:
(a) a workplace agreement;
(b) an award;
(c) a pre‑reform certified agreement (within the meaning of Schedule 7);
(d) a transitional Victorian reference award (within the meaning of Part 7 of Schedule 6);
(e) 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;
(f) a preserved State agreement (within the meaning of Schedule 8);
(g) a notional agreement preserving State awards (within the meaning of Schedule 8).
"redundancy provision " has the same meaning as in section 346ZD.
601E Effect of section 601D in relation to instruments
If, because of the operation of section 601D, a new employer and a transferring employee or transferring employees are taken to be bound by an instrument, the instrument is taken, despite any other provision of this Act, to have effect in relation to the new employer and the transferring employee or employees throughout the period:
(a) beginning on the cessation day; and
(b) ending at the end of the transmission period in relation to the business being transferred;
as if the new employer and the transferring employee or transferring employees had become bound by the instrument under Division 3, 4, 5 or 6 of this Part or Schedule 6 or Schedule 9, as the case requires.
601F Regulations may make provision for operation 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 the employees because of the operation of section 601D.
601G Compensation in respect of no‑disadvantage test period
(1) If, because of the operation of section 583 or 585, a workplace agreement to which section 346ZG applies bound an old employer and a new employer in relation to the employment of a transferring employee during the no‑disadvantage test period for that agreement, section 346ZG applies with the following modifications:
(a) the transferring employee is entitled to be paid compensation by the old employer in respect of the period or periods during which the employee was employed by the old employer, worked out in accordance with the assumptions set out in subsection 346ZG(3); and
(b) the transferring employee is entitled to be paid compensation by the new employer in respect of the period or periods during which the employee was employed by the new employer, worked out in accordance with the assumptions set out in subsection 346ZG(3), subject to the following modifications:
(i) subparagraph 346ZG(3)(a)(i) is taken to refer to the instrument described in paragraph 601D(2)(a); and
(ii) a reference in paragraph 346ZG(3)(b) to a designated provision is taken to be a reference to section 598A or clause 27A of Schedule 9, as the case requires.
(2) In this section:
"no-disadvantage test period" has the same meaning as in section 346ZG.
601H Notice requirements in relation to transmission of business
(1) This section applies if:
(a) a new employer is bound by a workplace agreement (the transmitted workplace agreement ) in relation to a transferring employee because of section 583 or 585; and
(b) as at the time of transmission, the Workplace Authority Director has not yet decided whether the transmitted workplace agreement passes the no‑disadvantage test under section 346D or 346Z.
(2) The old employer must take reasonable steps to give a written notice to the Workplace Authority Director that:
(a) identifies the transmitted workplace agreement; and
(b) states whether or not the old employer remains bound by the transmitted workplace agreement in relation to the employment of any employees; and
(c) specifies the date on which the transmission period in relation to the business being transferred ends; and
(d) specifies the name and address of the new employer.
(3) Subsection (2) is a civil remedy provision.
Note: See Division 11 of Part 8 for provisions on enforcement.
129 Subparagraph 602(1)(a)(i)
Omit "AWA", substitute "ITEA".
130 Subsection 602(6)
Repeal the subsection, substitute:
(6) Subsection (2) does not apply if:
(a) the transmitted instrument is an award and the new employer and the transferring employee become bound by a collective agreement at the time of transmission or within 14 days after the time of transmission; or
(b) the transmitted instrument is an ITEA and the new employer and the transferring employee become bound by an ITEA within 14 days after the time of transmission.
131 Paragraphs 603(1)(a) and 603B(2)(a)
Omit "AWA", substitute "ITEA".
132 Subsection 605(5) (table item 1)
Omit "AWA", substitute "ITEA".
133 Paragraph 659(2)(g)
Omit "AWA", substitute "ITEA".
134 Subsection 691A(6) (at the end of the definition of industrial instrument )
Add:
; (l) an AWA (within the meaning of Schedule 7A).
135 Section 717 (subparagraph (a)(i) of the definition of applicable provision )
Repeal the subparagraph, substitute:
(i) an ITEA;
136 Section 717 (paragraph (aa) of the definition of applicable provision )
Repeal the paragraph, substitute:
(aa) section 346ZG (no‑disadvantage test compensation); and
137 Subsection 718(1) (table item 1)
Repeal the item, substitute:
|
1 |
a term of an ITEA |
(a) an employer that is bound by the ITEA; (b) an employee who is bound by the ITEA; (c) an organisation of employees that represents an employee who is bound by the ITEA (subject to subsection (5)); (d) an inspector |
138 Subsection 718(1) (table item 5A)
Repeal the item, substitute:
|
5A |
section 346ZG (no‑disadvantage test compensation) |
(a) an employee to whom section 346ZG applies; (b) an organisation of employees (subject to subsection (6)); (c) an inspector |
139 Subsection 718(1) (note 2)
Repeal the note.
140 Subsection 718(5)
Omit "AWA" (wherever occurring), substitute "ITEA".
141 Paragraph 718(6)(ba)
Omit "346ZD", substitute "346ZG".
142 Subsections 719(5), (6) and (7)
Omit "AWA" (wherever occurring), substitute "ITEA".
143 Section 720
Omit "AWA", substitute "ITEA".
144 Subsection 721(1)
Omit "AWA" (wherever occurring), substitute "ITEA".
Note: The heading to section 721 is altered by omitting " AWA " and substituting " ITEA ".
145 Paragraph 747(1)(b)
Omit "AWA", substitute "ITEA".
146 Subsection 747(2)
Omit "AWA", substitute "ITEA".
Note: The heading to subsection 747(2) is altered by omitting " AWA " and substituting " ITEA ".
147 Subsection 748(12) (subparagraph (b)(iii) of the definition of record relevant to the suspected breach )
Omit "AWA", substitute "ITEA".
148 Subsection 757(4) (paragraph (b) of the definition of employment record )
Omit "AWA", substitute "ITEA".
149 Paragraph 885(1)(f)
Omit "AWA" (wherever occurring), substitute "ITEA".
150 Paragraph 885(1)(g)
Repeal the paragraph.
151 Subsection 890(2)
Omit "AWA", substitute "ITEA".
152 Subsection 890(3)
Repeal the subsection (including the note).
153 Paragraph 893(d)
Omit "AWA", substitute "ITEA".
154 Clause 6 of Schedule 1 (definition of AWA )
Repeal the definition.
155 Subclause 2(1) of Schedule 6
Insert:
"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 within the meaning of Schedule 7A and to a pre‑transition collective agreement within the meaning of Schedule 7B.
156 Subclause 2(1) of Schedule 6
Insert:
"pre-transition Act" means this Act as in force immediately before the commencement of Schedule 7A.
157 Subclause 2(1) of Schedule 6
Insert:
"workplace agreement" includes an AWA within the meaning of Schedule 7A.
158 Paragraph 89(1)(a) of Schedule 6
Repeal the paragraph, substitute:
(a) sections 349, 865 and 897; and
159 At the end of subclause 89(1) of Schedule 6
Add:
; and (c) section 349 of the pre‑transition Act as it applies because of clause 2 of Schedule 7A; and
(d) section 354 of the pre‑transition Act as it applies because of clause 2 of Schedule 7A and clause 2 of Schedule 7B.
160 Paragraph 89(3)(a) of Schedule 6
Omit "a workplace agreement", substitute "an AWA (within the meaning of Schedule 7A) or a pre‑transition collective agreement (within the meaning of Schedule 7B)".
161 Paragraph 89(3)(b) of Schedule 6
Omit "workplace".
162 Subclause 89(3) of Schedule 6
Omit "this Act (which deals with the fairness test) has effect in relation to that workplace agreement", substitute "the pre‑transition Act (which deals with the fairness test) has effect in relation to that agreement".
163 Paragraph 89(3)(d) of Schedule 6
After "subsection 346Y(5)", insert "of the pre‑transition Act".
164 Paragraph 95(1)(a) of Schedule 6
Repeal the paragraph, substitute:
(a) sections 349, 865 and 897; and
165 At the end of subclause 95(1) of Schedule 6
Add:
; and (c) section 349 of the pre‑transition Act as it applies because of clause 2 of Schedule 7A; and
(d) section 354 of the pre‑transition Act as it applies because of clause 2 of Schedule 7A and clause 2 of Schedule 7B.
166 Paragraph 95(2)(a) of Schedule 6
Omit "a workplace agreement", substitute "an AWA (within the meaning of Schedule 7A) or a pre‑transition collective agreement (within the meaning of Schedule 7B)".
167 Paragraph 95(2)(b) of Schedule 6
Omit "workplace".
168 Subclause 95(2) of Schedule 6
Omit "this Act (which deals with the fairness test) has effect in relation to that workplace agreement", substitute "the pre‑transition Act (which deals with the fairness test) has effect in relation to that agreement".
169 Paragraph 95(2)(d) of Schedule 6
After "346YA(5)", insert "of the pre‑transition Act".
170 Paragraph 102(1)(a) of Schedule 6
Repeal the paragraph, substitute:
(a) sections 349, 865 and 897; and
171 At the end of subclause 102(1) of Schedule 6
Add:
; and (c) section 349 of the pre‑transition Act as it applies because of clause 2 of Schedule 7A; and
(d) section 354 of the pre‑transition Act as it applies because of clause 2 of Schedule 7A and clause 2 of Schedule 7B.
172 Paragraph 102(2)(a) of Schedule 6
Omit "a workplace agreement", substitute "an AWA (within the meaning of Schedule 7A) or a pre‑transition collective agreement (within the meaning of Schedule 7B)".
173 Paragraph 102(2)(b) of Schedule 6
Omit "workplace".
174 Subclause 102(2) of Schedule 6
Omit "this Act (which deals with the fairness test) has effect in relation to that workplace agreement", substitute "the pre‑transition Act (which deals with the fairness test) has effect in relation to that agreement".
175 Paragraph 102(2)(d) of Schedule 6
After "346YA(5)", insert "of the pre‑transition Act".
176 Clause 1 of Schedule 7
Insert:
"AWA" has the same meaning as in Schedule 7A.
177 Clause 1 of Schedule 7
Insert:
"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.
178 Clause 1 of Schedule 7
Insert:
"pre-transition Act" means this Act as in force immediately before the commencement of Schedule 7A.
179 Clause 1 of Schedule 7
Insert:
"pre-transition collective agreement" has the same meaning as in Schedule 7B.
180 Clause 1 of Schedule 7
Insert:
"pre-transition workplace agreement" means:
(a) an AWA; or
(b) a pre‑transition collective agreement.
181 Clause 1 of Schedule 7
Insert:
"workplace agreement" includes an AWA.
182 Subclause 3(2) of Schedule 7
After "an AWA", insert "or an ITEA".
183 Paragraph 3(5A)(a) of Schedule 7
Omit "a collective agreement", substitute "a pre‑transition collective agreement".
184 Subclause 3(5A) (note) of Schedule 7
After "346Z", insert "of the pre‑transition Act".
185 Clause 7 of Schedule 7
Repeal the clause.
186 Clause 9 of Schedule 7
Omit "workplace agreement" (first occurring), substitute "pre‑transition workplace agreement".
187 Clause 9 of Schedule 7
Omit "this Act", substitute "the pre‑transition Act".
188 Clause 9 of Schedule 7
After "workplace agreement" (last occurring), insert "for the purposes of that Act".
189 Subclause 18(1) of Schedule 7
After "an AWA", insert "or an ITEA".
190 Subclause 18(5) (note) of Schedule 7
After "346Z", insert "of the pre‑transition Act".
191 Clause 20 of Schedule 7
Omit "an AWA", substitute "an ITEA".
191A After paragraph 20(a) of Schedule 7
Insert:
(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);
192 Clause 21 of Schedule 7
Omit "workplace agreement" (first occurring), substitute "pre‑transition workplace agreement".
193 Clause 21 of Schedule 7
Omit "this Act", substitute "the pre‑transition Act".
194 Clause 21 of Schedule 7
After "workplace agreement" (last occurring), insert "for the purposes of that Act".
195 Subclause 25(1) of Schedule 7
After "an AWA", insert "or an ITEA".
196 Paragraph 25(4)(a) of Schedule 7
Omit "a collective agreement", substitute "a pre‑transition collective agreement".
197 Subclause 25(4) of Schedule 7 (note 1)
After "346Z", insert "of the pre‑transition Act".
198 Subclause 25(4) of Schedule 7 (note 2)
After "AWA" (wherever occurring), insert "or ITEA".
199 Clause 26 of Schedule 7
Repeal the clause.
200 Paragraph 27(2)(a) of Schedule 7
Omit "a workplace agreement", substitute "a pre‑transition workplace agreement".
201 Subclause 27(2) of Schedule 7 (note)
After "346Z", insert "of the pre‑transition Act".
202 Paragraph 28(5)(a) of Schedule 7
Omit "a workplace agreement", substitute "a pre‑transition workplace agreement".
203 Subclause 28(5) of Schedule 7 (note)
After "346Z", insert "of the pre‑transition Act".
204 At the end of clause 28 of Schedule 7
Add:
(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.
205 Subclause 32(1) of Schedule 7
Omit "an AWA", substitute "a pre‑reform AWA".
206 Subclause 32(2) of Schedule 7
Omit "AWA", substitute "pre‑reform AWA".
207 Subclause 1(1) of Schedule 8
Insert:
"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 within the meaning of Schedule 7A and to a pre‑transition collective agreement within the meaning of Schedule 7B.
208 Subclause 1(1) of Schedule 8
Insert:
"pre-transition Act" means this Act as in force immediately before the commencement of Schedule 7A.
209 Subclause 1(1) of Schedule 8
Insert:
"pre-transition workplace agreement" means:
(a) an AWA within the meaning of Schedule 7A; or
(b) a pre‑transition collective agreement within the meaning of Schedule 7B.
210 Subclause 1(1) of Schedule 8
Insert:
"workplace agreement" includes an AWA within the meaning of Schedule 7A.
210A After subclause 15G(1) of Schedule 8
Insert:
(1A) If, after the commencement of this subclause, a preserved individual State agreement ceases to operate in relation to an employee because of subclause (1):
(a) any preserved collective State agreement binding the employer; or
(b) if there is no such preserved collective State agreement--any notional agreement preserving State awards that would have been taken to come into operation in relation to the employer and employee on the reform commencement but for the preserved individual State agreement;
has effect in relation to the employer and employee.
(1B) If, after the commencement of this subclause, a preserved collective State agreement ceases to operate in relation to an employee because of subclause (1), any notional agreement preserving State awards that would have been taken to come into operation in relation to the employer and employee on the reform commencement but for the preserved collective State agreement has effect in relation to the employer and employee.
(1C) However, subsection (1A) or (1B) ceases to apply if an award or a workplace agreement comes into operation in relation to the employer and employee.
211 Paragraph 15G(4)(a) of Schedule 8
Omit "a workplace agreement", substitute "a pre‑transition workplace agreement".
212 Subclause 15G(4) of Schedule 8 (note)
After "346Z", insert "of the pre‑transition Act".
213 At the end of clause 15G of Schedule 8
Add:
(5) Despite subclause (3), a preserved collective State agreement that has ceased operating because of subclause (2) can operate again if:
(a) the preserved collective State 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.
214 Subclause 20(3) of Schedule 8
Omit "AWA", substitute "ITEA".
215 After subclause 20(3) of Schedule 8
Insert:
(3A) Subclause (3) does not apply, and the pre‑transition Act continues to apply, to any enforcement process begun before the commencement of this subclause in relation to a preserved individual State agreement.
216 Subclause 20(4) of Schedule 8
Omit "AWA", substitute "ITEA".
217 At the end of clause 20 of Schedule 8
Add:
(5) Subclause (4) does not apply, and the pre‑transition Act continues to apply, to any actions taken by a workplace inspector that were begun before the commencement of this subclause in the performance of functions or exercise of powers in relation to a preserved individual State agreement.
218 Subclause 21(3) of Schedule 8
Omit "an AWA" (wherever occurring), substitute "a pre‑reform AWA".
219 Paragraph 25A(1)(b) of Schedule 8
Omit "a workplace agreement", substitute "a pre‑transition workplace agreement".
220 Subclauses 25A(2) and (3) of Schedule 8
Omit "workplace agreement" (wherever occurring), substitute "pre‑transition workplace agreement".
221 Paragraph 25B(1)(a) of Schedule 8
Omit "a workplace agreement", substitute "a pre‑transition workplace agreement".
222 Paragraphs 25B(1)(b) and (c) of Schedule 8
Omit "workplace agreement", substitute "pre‑transition workplace agreement".
223 Subclause 25B(1) of Schedule 8
Omit "this Act (which deals with the fairness test) has effect in relation to that workplace agreement", substitute "the pre‑transition Act (which deals with the fairness test) has effect in relation to that pre‑transition workplace agreement".
224 Paragraph 25B(1)(f) of Schedule 8
Omit "workplace agreement", substitute "pre‑transition workplace agreement".
225 Subclause 25B(2) of Schedule 8
After "346YA(2)(b)", insert "of the pre‑transition Act".
226 Subclause 25B(2) of Schedule 8
Omit "this Act", substitute "the pre‑transition Act".
227 Paragraph 25B(2)(a) of Schedule 8
Omit "an AWA--", substitute "an AWA within the meaning of Schedule 7A--such".
228 Paragraph 25B(2)(b) of Schedule 8
Omit "collective agreement--", substitute "pre‑transition collective agreement within the meaning of Schedule 7B--such".
228A Subclause 26(1) of Schedule 8
Omit "workplace agreement" (first occurring), substitute "pre‑transition workplace agreement".
228B Subclause 26(1) of Schedule 8
After "section 355", insert "of the pre‑transition Act".
228C At the end of subclause 26(1) of Schedule 8
Add "for the purposes of that Act".
228D Subclause 26(2) of Schedule 8
After "subsection 355(6)", insert "of the pre‑transition Act".
228E Subclause 26(2) of Schedule 8
Omit "workplace agreement", substitute "pre‑transition workplace agreement".
229 Paragraph 28(b) of Schedule 8
Omit "AWA", substitute "ITEA".
230 Subclause 38A(2) of Schedule 8
After "a workplace agreement", insert "or a pre‑transition workplace agreement".
231 Subclause 38A(5) of Schedule 8
Omit "a workplace agreement", substitute "a pre‑transition workplace agreement".
232 Subclause 38A(5) of Schedule 8 (note)
After "346Z", insert "of the pre‑transition Act".
233 At the end of clause 38A of Schedule 8
Add:
(6) Despite subclause (4), a notional agreement that has ceased operating because of subclause (2) can operate again if:
(a) the notional agreement ceased to operate because it was replaced by a workplace agreement or a pre‑transition workplace agreement; and
(b) the workplace agreement or pre‑transition workplace agreement ceased to operate after the commencement of this subclause.
234 Paragraph 52(1)(a) of Schedule 8
Omit "a workplace agreement", substitute "a pre‑transition workplace agreement".
235 Subclauses 52(2) and (2A) of Schedule 8
Omit "workplace agreement" (wherever occurring), substitute "pre‑transition workplace agreement".
236 Paragraphs 52AAA(1)(a), (b) and (c) of Schedule 8
Omit "workplace agreement", substitute "pre‑transition workplace agreement".
237 Subclause 52AAA(1) of Schedule 8
Omit "this Act (which deals with the fairness test) has effect in relation to that workplace agreement", substitute "the pre‑transition Act (which deals with the fairness test) has effect in relation to that pre‑transition workplace agreement".
237A Subclause 52A(1) of Schedule 8
Omit "workplace agreement" (first occurring), substitute "pre‑transition workplace agreement".
237B Subclause 52A(1) of Schedule 8
After "section 355", insert "of the pre‑transition Act".
237C At the end of subclause 52A(1) of Schedule 8
Add "for the purposes of that Act".
237D Subclause 52A(2) of Schedule 8
After "subsection 355(6)", insert "of the pre‑transition Act".
237E Subclause 52A(2) of Schedule 8
Omit "workplace agreement", substitute "pre‑transition workplace agreement".
238 Subclause 2(2) of Schedule 9
Omit "Parts 3", substitute "Parts 2A".
239 Before paragraph 2(2)(a) of Schedule 9
Insert:
(aa) Part 2A deals with the transmission of AWAs;
240 Subclauses 2(5) and (6) of Schedule 9
Repeal the subclauses.
241 Clause 3 of Schedule 9
Insert:
"AWA" has the same meaning as in Schedule 7A.
242 Clause 3 of Schedule 9
Insert:
"pre-transition Act" means this Act as in force immediately before the commencement of Schedule 7A.
243 Clause 3 of Schedule 9 (definition of transitional industrial instrument )
Repeal the definition.
244 Clause 3 of Schedule 9 (definition of transitional instrument )
After paragraph (b), insert:
(ba) an AWA; or
245 Clause 3 of Schedule 9
Insert:
"workplace agreement" includes an AWA.
246 After Part 2 of Schedule 9
Insert:
Part 2A -- Transmission of AWAs
New employer bound by AWA
(1) If:
(a) immediately before the time of transmission:
(i) the old employer; and
(ii) an employee;
were bound by an AWA; and
(b) the employee is a transferring employee in relation to the AWA;
the new employer is bound by the AWA by force of this section.
Note: The new employer must notify the transferring employee and lodge a copy of the notice with the Workplace Authority Director (see clauses 28 and 29).
Period for which new employer remains bound
(2) The new employer remains bound by the AWA, by force of this section, until whichever of the following first occurs:
(a) the AWA is terminated (see Division 9 of Part 8 of the pre‑transition Act as modified by clause 6C of this Schedule);
(b) the AWA ceases to be in operation because it is replaced by an ITEA between the new employer and the transferring employee (see clause 6 of Schedule 7A);
(c) the transferring employee ceases to be a transferring employee in relation to the AWA;
(d) the transmission period ends.
Old employer's rights and obligations that arose before time of transmission not affected
(3) This section does not affect the rights and obligations of the old employer that arose before the time of transmission.
6C Termination of transmitted AWA
The AWA cannot be terminated under subsection 392(2) or 393(2) of the pre‑transition Act during the transmission period (even if the AWA has passed its nominal expiry date).
For the purposes of applying section 326 to a transferring employee in relation to a new employer:
(a) treat the employee as being in an employment relationship with the employer; and
(b) assume that subparagraphs 326(2)(b)(i) and (ia) do not apply to the employee.
247 Paragraph 7(2)(b) of Schedule 9
Omit "AWA" (last occurring), substitute "an AWA or an ITEA".
248 Clause 8 of Schedule 9
Repeal the clause.
249 Paragraph 10(6)(a) of Schedule 9
Repeal the paragraph.
250 Subclauses 11(5) and (6) of Schedule 9
Repeal the subclauses.
251 Subclauses 20(4) and (5) of Schedule 9
Repeal the subclauses.
252 Before subparagraph 28(1)(a)(i) of Schedule 9
Insert:
(ia) clause 6B (AWA); or
253 Paragraph 28(4)(a) of Schedule 9
After "a pre‑reform AWA", insert "or an AWA".
254 Paragraph 28(4)(a) of Schedule 9
After "an AWA", insert "or an ITEA".
255 Paragraph 28(4)(b) of Schedule 9
After "a pre‑reform AWA", insert "or an AWA".
256 Paragraph 28(4)(b) of Schedule 9
After "an AWA", insert ", an ITEA".
257 Paragraph 29(1)(a) of Schedule 9
After "pre‑reform AWA", insert "or an AWA".
258 Subclause 31(4) of Schedule 9 (before item 1 of the table)
Insert:
|
1A |
AWA |
(a) the transferring employee; or (b) an organisation of employees that is entitled, under its eligibility rules, to represent the industrial interests of the transferring employee and has been requested by the transferring employee to apply for the order on the transferring employee's behalf; or (c) a workplace inspector |
259 Parts 8 and 9 of Schedule 9
Repeal the Parts.
Part 4 -- Amendments of other Acts
Airports (Transitional) Act 1996
260 Paragraph 59(4)(d)
Repeal the paragraph, substitute:
(d) an individual transitional employment agreement (as defined by section 4 of the Workplace Relations Act 1996 ); or
(da) an AWA (as defined by clause 1 of Schedule 7A to the Workplace Relations Act 1996 ); or
261 Section 4 (paragraph (b) of the definition of industrial instrument )
Omit "workplace agreement", substitute "collective agreement".
262 Section 4 (after paragraph (b) of the definition of industrial instrument )
Insert:
(ba) an AWA within the meaning of Schedule 7A to the Workplace Relations Act 1996 ;
Australian Federal Police Act 1979
263 Subsection 27(4) (at the end of the definition of industrial instrument )
Add:
; (f) an AWA.
Building and Construction Industry Improvement Act 2005
264 Subsection 4(1) (definition of AWA )
Omit "section 4 of", substitute "Schedule 7A to".
265 Subsection 4(1) (at the end of the definition of workplace agreement )
Add ", and includes an AWA".
Coal Mining Industry (Long Service Leave Funding) Act 1992
266 Subsection 4(1) (after subparagraph (d)(i) of the definition of relevant industrial instrument )
Insert:
(ia) an AWA within the meaning of Schedule 7A to that Act; and
Commonwealth Serum Laboratories Act 1961
267 Subsection 27(5) (at the end of the definition of industrial instrument )
Add:
; (f) an AWA.
268 Subsection 29(3) (at the end of the definition of industrial instrument )
Add:
; (f) an AWA.
Health Insurance Commission (Reform and Separation of Functions) Act 1997
269 Subsection 26(2) (at the end of the definition of industrial instrument )
Add:
; (f) an AWA.
270 Subsection 33(2) (at the end of the definition of industrial instrument )
Add:
; (f) an AWA.
Income Tax Assessment Act 1997
271 Subsection 290‑80(2) (note)
Before "Australian Workplace Agreement", insert "individual transitional employment agreement,".
Income Tax (Transitional Provisions) Act 1997
272 Paragraph 82‑10(1)(a)
Omit "or a workplace agreement within the meaning of the Workplace Relations Act 1996 ", substitute ", a collective agreement within the meaning of the Workplace Relations Act 1996 or an AWA within the meaning of Schedule 7A to that Act".
Long Service Leave (Commonwealth Employees) Act 1976
273 At the end of subsection 15(1)
Add:
; and (d) does not affect the operation of an AWA within the meaning of Schedule 7A to the Workplace Relations Act 1996 in relation to long service leave for maritime employees included in a prescribed class of maritime employees.
Parliamentary Service Act 1999
274 Section 7
Insert:
"AWA" has the meaning given by Schedule 7A to the Workplace Relations Act 1996 .
275 Subsections 23(5) and 24(1)
After "certified agreement", insert ", AWA".
276 Section 7
Insert:
"AWA" has the meaning given by Schedule 7A to the Workplace Relations Act 1996 .
277 Subsections 23(5) and 24(1)
After "certified agreement", insert ", AWA".
278 Paragraph 72(3)(a)
After "certified agreement", insert ", AWA".
279 Subparagraph 72(4)(a)(iii)
After "certified agreement", insert ", AWA".
Skilling Australia's Workforce Act 2005
280 Subsection 3(1) (definition of Australian workplace agreement )
Repeal the definition, substitute:
"Australian workplace agreement" means an AWA within the meaning of Schedule 7A to the Workplace Relations Act 1996 .
281 Paragraph 12(1)(b)
Omit "by offering Australian workplace agreements to staff, except where the Workplace Relations Act 1996 does not apply, in which case other individual agreements should be offered".
282 Paragraph 12(1)(g)
After "workplace agreements,", insert "AWAs,".
283 Subsection 12(3)
After "workplace agreements", insert ", AWAs".
Superannuation Guarantee (Administration) Act 1992
284 Section 12A (definition of AWA )
Omit "section 4 of", substitute "Schedule 7A to".
285 Section 12A
Insert:
"ITEA" has the meaning given by section 4 of the Workplace Relations Act 1996.
286 At the end of subsection 32C(6)
Add:
; or (f) an ITEA.
287 Subsection 9A(2) (after paragraph (d) of the definition of industrial instrument )
Insert:
(da) an AWA;
Tradesmen's Rights Regulation Act 1946
288 Section 6 (paragraph (a) of the definition of industrial agreement )
After "workplace agreement,", insert "AWA,".
1 After paragraph 3(g)
Insert:
(ga) establishing a process for making modern awards; and
2 Subsection 4(1)
Insert:
"award modernisation process" means a process of award modernisation carried out by the Commission in accordance with an award modernisation request.
3 Subsection 4(1)
Insert:
"award modernisation request" has the meaning given by subsection 576C(1).
4 Subsection 4(1)
Insert:
"modern award" means an award made by the Commission under section 576G.
5 Subsection 4(1) (definition of proceeding )
Repeal the definition, substitute:
"proceeding" includes a proceeding relating to an award modernisation process.
6 Subsection 527(5)
Repeal the subsection.
7 Subsection 529(3) (note 1)
Repeal the note.
8 Subsection 529(3) (note 2)
Omit "Note 2", substitute "Note".
9 After Part 10
Insert:
Part 10A -- Award modernisation
(1) The object of this Part is to provide for the Commission to make modern awards in accordance with an award modernisation request.
(2) Modern awards:
(a) must be simple to understand and easy to apply, and must reduce the regulatory burden on business; and
(b) together with any legislated employment standards, must provide a fair minimum safety net of enforceable terms and conditions of employment for employees; and
(c) must be economically sustainable, and promote flexible modern work practices and the efficient and productive performance of work; and
(d) must be in a form that is appropriate for a fair and productive workplace relations system that promotes collective enterprise bargaining but does not provide for statutory individual employment agreements; and
(e) must result in a certain, stable and sustainable modern award system for Australia.
Division 2 -- Award modernisation process
576B Commission's award modernisation function
(1) It is a function of the Commission to carry out one or more award modernisation processes.
(2) In performing its functions under this Part, the Commission must have regard to the following factors:
(a) promoting the creation of jobs, high levels of productivity, low inflation, high levels of employment and labour force participation, national and international competitiveness, the development of skills and a fair labour market;
(b) protecting the position in the labour market of young people, employees with a disability and employees to whom training arrangements apply;
(c) the needs of the low‑paid;
(d) the desirability of reducing the number of awards operating in the workplace relations system;
(e) the need to help prevent and eliminate discrimination on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin, and to promote the principle of equal remuneration for work of equal value;
(f) the need to assist employees to balance their work and family responsibilities effectively, and to improve retention and participation of employees in the workforce;
(g) the safety, health and welfare of employees;
(h) relevant rates of pay in Australian Pay and Classification Scales and transitional awards;
(i) minimum wage decisions of the Australian Fair Pay Commission;
(j) the representation rights, under this Act or the Registration and Accountability of Organisations Schedule, of organisations and transitionally registered associations.
(3) In this section:
"transitional award" has the same meaning as in Schedule 6.
"transitionally registered association" has the same meaning as in Schedule 10.
576C Award modernisation request
(1) An award modernisation process must be carried out in accordance with a written request (an award modernisation request ) made to the President by the Minister.
(2) An award modernisation request must specify:
(a) the award modernisation process that is to be carried out; and
(b) the time by which the award modernisation process must be completed, which must not be later than 2 years after the making of the request; and
(c) any other matter relating to the award modernisation process that the Minister considers appropriate.
(3) Without limiting subsection (2), an award modernisation request may also do any of the following:
(a) require the Commission to prepare progress reports on specified matters relating to the award modernisation process and make them available as required by the request;
(b) specify matters (in addition to those referred to in subsection 576J(1) and sections 576K and 576M) about which terms may be included in modern awards;
(c) require the Commission to include in a modern award terms about particular matters, being matters about which terms may be included in a modern award;
(d) give directions about how, or whether, the Commission is to deal with particular matters about which terms may be included in a modern award.
(4) The Minister may, by written instrument, vary or revoke an award modernisation request.
(5) If the Minister makes an instrument varying an award modernisation request, the instrument may also specify a later time for the completion of the award modernisation process requested. The later time:
(a) may be more than 2 years after the making of the award modernisation request; but
(b) must not be more than 2 years after the making of the instrument varying the award modernisation request.
(6) Neither of the following is a legislative instrument:
(a) an award modernisation request;
(b) an instrument made under subsection (4).
576D Award modernisation request to be published
(1) As soon as practicable after receiving an award modernisation request, or an instrument varying or revoking an award modernisation request, the President must give a copy of the request or instrument to a Registrar.
(2) As soon as practicable after a Registrar receives a copy of a request or an instrument under subsection (1), the Registrar must publish the request or instrument as follows:
(a) if requirements relating to publication are prescribed by the regulations--in accordance with those requirements;
(b) if no such requirements are prescribed--in such manner as the Registrar thinks appropriate.
576E Procedure for carrying out award modernisation process
(1) As soon as practicable after receiving an award modernisation request, the President must establish one or more Full Benches to carry out the award modernisation process requested.
(2) For the purpose of enabling the award modernisation process to be carried out, the President may, at any time while the award modernisation process is being carried out:
(a) give each Full Bench established under subsection (1) directions for carrying out the award modernisation process; and
(b) allocate specified tasks in relation to the award modernisation process to any member of the Commission, and give directions about how those tasks are to be carried out.
(3) For the purpose of carrying out the award modernisation process and subject to any directions given by the President under subsection (2), the procedure of a Full Bench is within the absolute discretion of the Full Bench.
(4) Without limiting subsection (3), a Full Bench may inform itself in any way it thinks appropriate, including by:
(a) undertaking or commissioning research; or
(b) consulting with any other person, body or organisation in any manner it considers appropriate.
(5) To avoid doubt, subsection (4) does not limit the powers of a Full Bench under other provisions of this Act.
Note: For example, Division 4 of Part 3 confers powers on the Commission that may be applicable in the context of award modernisation.
576F Completion of award modernisation process
The Commission must complete an award modernisation process by the time allowed by the award modernisation request relating to the award modernisation process.
Note: The time by which an award modernisation process must be completed may be varied under subsection 576C(5).
576G Full Bench must make modern awards
(1) A Full Bench must make one or more modern awards to give effect to the outcome of an award modernisation process.
Note 1: A modern award must comply with Divisions 3, 4 and 5.
Note 2: Section 576Y deals with the commencement of a modern award.
(2) A modern award must be consistent with the award modernisation request to which the modern award relates.
(3) The Commission must not make a modern award other than under subsection (1).
(4) A modern award is not a legislative instrument.
576H Commission may vary modern awards
The Commission may make an order varying a modern award if the variation is consistent with the award modernisation request to which the modern award relates.
Division 3 -- Terms of modern awards
Subdivision A -- Terms that may be included in modern awards
576J Matters that may be dealt with by modern awards
General
(1) A modern award may include terms about any of the following matters:
(a) minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and:
(i) skill‑based classifications and career structures; and
(ii) incentive‑based payments, piece rates and bonuses;
Note: Employee with a disability and junior employee are defined in subsection (3).
(b) type of employment, such as full‑time employment, casual employment, regular part‑time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;
(c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;
(d) overtime rates;
(e) penalty rates, including for any of the following:
(i) employees working unsocial, irregular or unpredictable hours;
(ii) employees working on weekends or public holidays;
(iii) shift workers;
(f) annualised wage or salary arrangements that:
(i) have regard to the patterns of work in an occupation, industry or enterprise; and
(ii) provide an alternative to the separate payment of wages, or salaries, and other monetary entitlements; and
(iii) include appropriate safeguards to ensure that individual employees are not disadvantaged;
(g) allowances, including for any of the following:
(i) expenses incurred in the course of employment;
(ii) responsibilities or skills that are not taken into account in rates of pay;
(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;
(h) leave, leave loadings and arrangements for taking leave;
(i) superannuation;
(j) procedures for consultation, representation and dispute settlement.
Other matters
(2) A modern award may also include terms about any other matter specified in the award modernisation request to which the modern award relates.
Definitions
(3) In this section:
"employee with a disability" means an employee who is qualified for a disability support pension as set out in section 94 or 95 of the Social Security Act 1991 , or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.
Note: This definition includes employees under the Supported Wage System endorsed by the Commission in the Full Bench decision dated 10 October 1994 (print L5723).
"junior employee" means an employee who is under the age of 21.
576K Terms providing for outworkers
(1) In this section:
"outworker" means:
(a) 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; or
(b) an individual who is a party to a contract for services, and who, for the purposes of the contract, performs work:
(i) in the textile, clothing or footwear industry; and
(ii) at private residential premises or at other premises that are not business or commercial premises of the other party to the contract or (if there are 2 or more other parties to the contract) of any of the other parties to the contract.
(2) A modern award may include either or both of the following:
(a) terms relating to the conditions under which an employer may employ employees who are outworkers (including terms relating to the pay or conditions of the outworkers);
(b) terms relating to the conditions under which an eligible entity (within the meaning of Division 4) may arrange for work to be carried out for the entity (either directly or indirectly) by outworkers (including terms relating to the pay or conditions of the outworkers).
Note: In paragraph (2)(a), employee and employer have the meanings given by subsections 5(1) and 6(1).
576L Terms may only provide a fair minimum safety net
A modern award may include terms about the matters referred to in subsection 576J(1) or (2) or section 576K only to the extent that the terms provide a fair minimum safety net.
576M Incidental and machinery terms
(1) A modern award may include terms that are:
(a) incidental to a term that is required or permitted to be in the modern award; and
(b) essential for the purpose of making a particular term operate in a practical way.
(2) A modern award may include machinery provisions including, but not limited to, provisions about the following:
(a) commencement;
(b) definitions;
(c) titles;
(d) arrangement;
(e) employers, employees and organisations;
(f) duration of the modern award.
576N Terms must be in accordance with award modernisation request
(1) A modern award must include a term about a matter referred to in subsection 576J(1) or (2) or section 576K or 576M if the award modernisation request to which the modern award relates requires the modern award to include a term about that matter.
(2) A term of a modern award about a matter referred to in subsection 576J(1) or (2) or section 576K or 576M must be consistent with any directions in relation to the matter specified in the award modernisation request to which the modern award relates.
Subdivision B -- Terms that must not be included in modern awards
576P Terms not permitted by Subdivision A
A modern award must not include terms other than those permitted or required by Subdivision A.
576Q Terms that breach freedom of association provisions
A modern award must not include a term that requires or permits, or has the effect of requiring or permitting, any conduct that would contravene Part 16 (Freedom of association).
576R Terms about right of entry
A modern award must not include a term that requires or authorises an officer or employee of an organisation to do any of the following:
(a) enter premises:
(i) occupied by an employer that is bound by the modern award; or
(ii) in which work to which the modern award applies is being carried on;
(b) inspect or view any work, material, machinery, appliance, article, document or other thing on such premises;
(c) interview an employee on such premises.
576S Terms that are discriminatory
(1) A modern award must not include terms that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) A modern award does not discriminate against an employee for the purposes of subsection (1) merely because:
(a) it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or
(b) it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:
(i) on the basis of those teachings or beliefs; and
(ii) in good faith.
(3) A modern award does not discriminate against an employee for the purposes of subsection (1) merely because it includes terms providing for minimum wages for:
(a) all junior employees, or a class of junior employees; or
(b) all employees with a disability, or a class of employees with a disability; or
(c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.
(4) In this section:
"employee with a disability" has the same meaning as in section 576J.
"junior employee" has the same meaning as in section 576J.
576T Terms that contain State‑based differences
(1) A modern award must not include terms and conditions of employment that:
(a) are determined by reference to State or Territory boundaries; or
(b) do not have effect in each State and Territory.
(2) Despite subsection (1), a modern award may include terms and conditions of employment of the kind referred to in subsection (1) for a period of up to 5 years starting on the day on which the modern award commences.
(3) If, at the end of the period of 5 years starting on the day on which a modern award commences, the modern award includes terms and conditions of employment of the kind referred to in subsection (1), those terms and conditions of employment cease to have effect at the end of that period.
Division 4 -- Who is bound by modern awards
In this Division:
"eligible entity" means any of the following entities, other than in the entity's capacity as an employer:
(a) a constitutional corporation;
(b) the Commonwealth;
(c) a Commonwealth authority;
(d) a body corporate incorporated in a Territory;
(e) a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, in connection with the activity carried on in the Territory.
Note: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of the Acts Interpretation Act 1901 .
"enterprise award" means an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).
"outworker term" means a term of a modern award that is:
(a) about a matter referred to in section 576K; or
(b) incidental to such a matter, and included in the modern award as permitted by subsection 576M(1); or
(c) a machinery provision in respect of such a matter, and included in the modern award as permitted by subsection 576M(2).
576V Who is bound by a modern award
Modern award binds employers, employees etc. that it is expressed to bind
(1) A modern award binds, in accordance with its terms, the employers, employees, organisations and eligible entities that it is expressed to bind.
Modern award must be expressed to bind specified employers and employees
(2) A modern award must be expressed to bind the following:
(a) specified employers;
(b) specified employees of employers bound by the modern award, in respect of work that is expressed to be regulated by the modern award.
Modern award must be expressed not to bind employers bound by enterprise awards
(3) A modern award must be expressed not to bind an employer who is bound by an enterprise award in respect of an employee to whom the enterprise award applies.
Modern award may be expressed to bind organisations
(4) A modern award may be expressed to bind one or more specified organisations in respect of all or specified employees or employers who are bound by the modern award.
Modern award may be expressed to bind eligible entities or employers in relation to outworker terms
(5) In addition to the employers, employees and organisations that a modern award is expressed to bind, the modern award may be expressed to bind, but only in relation to outworker terms included in the modern award, an eligible entity or an employer that operates in an industry:
(a) to which the modern award relates; or
(b) in respect of which the outworker terms are applicable.
Modern award must be in accordance with award modernisation request
(6) The power of the Commission under subsections (2), (3), (4) and (5) must be exercised in accordance with the award modernisation request to which the modern award relates.
Specification of employers, employees etc. by name or class
(7) For the purposes of subsections (2), (3), (4) and (5):
(a) employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name; and
(d) eligible entities may be specified by name or by inclusion in a specified class or specified classes.
(8) Without limiting the way in which a class may be described for the purposes of subsection (7), the class may be described by reference to a particular industry or particular kinds of work.
Division 5 -- Technical matters
576W Formal requirements of modern awards and variation orders
(1) A modern award or an order varying a modern award must:
(a) be in writing; and
(b) be signed by:
(i) if the President is a member of the Full Bench making the modern award or order--the President; or
(ii) if the President is not a member of the Full Bench making the modern award or order--the member of the Full Bench who has seniority under section 65; and
(c) state the day on which it is signed.
(2) A modern award must:
(a) have a unique title; and
(b) have a table of contents; and
(c) be expressed in plain English and be easy to understand in structure and content; and
(d) not include terms that are obsolete.
576X When is a modern award or variation order made
A modern award or an order varying a modern award is made on the day on which the modern award or order is signed under paragraph 576W(1)(b).
576Y Commencement of modern awards and variation orders
(1) A modern award or an order varying a modern award must be expressed to commence on:
(a) if the modern award or order is made before the start‑up day--the start‑up day; or
(b) in any other case--a day that is not earlier than the day on which the modern award or order is made.
Note: Start‑up day is defined in subsection (3).
(2) A modern award, or an order varying a modern award, that has not yet commenced must include a statement to this effect.
(3) For the purposes of this section, the start‑up day is:
(a) unless paragraph (b) applies, 1 January 2010; or
(b) if a later date is prescribed by the regulations--that later date.
576Z Modern awards and variation orders must be published
(1) As soon as practicable after the Commission makes a modern award or an order varying a modern award, the Commission must give to a Registrar:
(a) a copy of the modern award or order; and
(b) written reasons for the modern award or order; and
(c) a statement specifying the employers, employees, organisations and eligible entities bound by the modern award or order.
(2) As soon as practicable after a Registrar receives a copy of a modern award or an order varying a modern award under subsection (1), the Registrar must:
(a) give notice to the employers, employees, organisations and eligible entities specified in the statement referred to paragraph (1)(c) of the making of the modern award or order; and
(b) ensure that a copy of the modern award or order, and the written reasons for the modern award or order, are available for inspection at each registry; and
(c) ensure that the modern award or order, and the written reasons for the modern award or order, are published.
(3) The Registrar must give the notice required by paragraph (2)(a):
(a) in accordance with any requirements prescribed by the regulations; or
(b) if no such requirements are prescribed--in such manner as the Registrar thinks appropriate.
(4) In this section:
"eligible entity" has the same meaning as in section 576U.
576ZA Modern awards and variation orders are final
(1) A modern award or an order varying a modern award:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus or injunction in any court on any account.
(2) A modern award or an order varying a modern award is not invalid because it was made by the Commission constituted otherwise than as provided by this Act.
576ZB Expressions used in modern awards and variation orders
Unless the contrary intention appears in a modern award or an order varying a modern award, an expression used in the modern award or order has the same meaning as it has in an Act because of the Acts Interpretation Act 1901 or as it has in this Act.
9A After paragraph 2(2)(s) of Schedule 2
Insert:
(sa) subsection 576K(1), definition of outworker ;
9B At the end of subclause 3(2) of Schedule 2
Add:
; (j) subsection 576K(1), definition of outworker .
10 Subclause 22(6) of Schedule 6
Repeal the subclause.
11 Subclause 45(3) of Schedule 8
Repeal the subclause.
12 Subclause 46(3) of Schedule 8 (note)
Repeal the note.
Part 2 -- Repeal of award rationalisation and award simplification provisions
13 Subsection 4(1) (definition of award )
Repeal the definition, substitute:
"award" means a pre-reform award.
14 Subsection 4(1) (definition of award rationalisation process )
Repeal the definition.
15 Subsection 4(1) (definition of award rationalisation request )
Repeal the definition.
16 Subsection 4(1) (definition of award simplification process )
Repeal the definition.
17 Paragraph 510(b)
Repeal the paragraph.
18 Subsection 524(1)
Omit "or (3)".
19 Subsection 524(2)
Omit "a pre‑reform award", substitute "an award".
20 Subsection 524(3)
Repeal the subsection.
21 Subsection 527(1)
Repeal the subsection (not including the note), substitute:
(1) A term, or more than one term, of an award is a preserved award term if:
(a) the term or terms are about a matter referred to in subsection (2); and
(b) the term or terms were in effect immediately before the reform commencement.
22 Subsection 527(2)
Omit "subsection (1)", substitute "paragraph (1)(a)".
23 Section 528
Repeal the section.
24 Subsection 531(2)
Omit "528,".
25 Paragraph 532(2)(a)
Omit ", 528".
26 Division 4 of Part 10
Repeal the Division.
27 Paragraphs 552(1)(a) and (b)
Repeal the paragraphs.
28 Subsection 552(1) (note)
Repeal the note.
29 Subsection 552(3)
Repeal the subsection, substitute:
(3) The Commission must not vary a facilitative provision within the meaning of section 521 except on a ground set out in section 554.
30 Subparagraph 553(4)(b)(iii)
Repeal the subparagraph.
31 Section 555
Repeal the section.
32 Before subsection 556(1)
Insert:
(1A) The Commission must not make an order revoking an award except in accordance with this section.
33 Subsection 557(1) (notes 1 and 2)
Repeal the notes, substitute:
Note 1: Item 4 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005 provides for the employers, employees and organisations bound by awards.
34 Subsection 557(1) (note 3)
Omit "Note 3", substitute "Note 2".
35 Subsection 561(1)
Omit "(1)" (first occurring).
Note: The heading to section 561 is altered by omitting " additional matters " and substituting " when application may be made ".
36 Subsection 561(2)
Repeal the subsection.
37 Section 565
Repeal the section.
38 Section 573
Omit "a provision referred to in section 555", substitute "section 556".
39 Paragraph 50(1)(a) of Schedule 8
Repeal the paragraph, substitute:
(a) the award is varied under section 558 or 559; and
40 Subclause 50(7) of Schedule 8
Repeal the subclause.
Schedule 3 -- Functions of the Australian Fair Pay Commission
1 Subsection 4(1) (definition of new APCS )
Omit "subsection 214(1)", substitute "section 178".
2 Subsection 22(1) (paragraphs (b), (c) and (d) of the note)
Repeal the paragraphs, substitute:
(b) adjusting special FMWs for employees with a disability;
(c) adjusting basic periodic rates of pay and basic piece rates of pay payable to employees or employees of particular classifications.
3 Section 176 (notes 1 and 2)
Repeal the notes, substitute:
Note: Any additional considerations or limitations on the exercise of the AFPC's powers are set out in the various sections of this Division (including section 222).
4 Section 177
Repeal the section.
5 Section 178 (definition of default casual loading percentage )
Omit "subsection 186(1)", substitute "section 186".
6 Section 178 (definition of new APCS )
Repeal the definition, substitute:
"new APCS" means an APCS determined under subsection 214(1) of this Act before the repeal of that subsection by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .
7 Section 178 (definition of special FMW )
Repeal the definition, substitute:
"special FMW" means a special FMW determined under section 197 of this Act before the repeal of that section by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .
8 Paragraphs 182(4)(b) and (c)
Repeal the paragraphs, substitute:
(b) there is a special FMW for the employee;
9 Section 186
Repeal the section, substitute:
186 Default casual loading percentage
The default casual loading percentage is 20%.
10 Sections 187 and 188
Repeal the sections.
11 Subparagraphs 190(1)(a)(iii) and (iv)
Repeal the subparagraphs, substitute:
(iii) adjusting a new APCS; and
12 Subsection 190(4)
Repeal the subsection, substitute:
(4) This section does not limit the AFPC's power to adjust APCSs made for the purpose of section 220 before the repeal of that section by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .
13 Subparagraphs 191(1)(a)(iii) and (iv)
Repeal the subparagraphs, substitute:
(iii) adjusting a new APCS; and
14 Subsection 191(4)
Repeal the subsection, substitute:
(4) This section does not limit the AFPC's power to adjust APCSs made for the purpose of section 220 before the repeal of that section by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .
15 Paragraphs 192(1)(b), (c) and (d)
Repeal the paragraphs, substitute:
(b) adjusting a new APCS.
16 Subsection 193(1)
Omit "Subject to subsection (3), when exercising its power to make an APCS, or", substitute "When exercising its power".
17 Subsection 193(1) (note 1)
Omit ", or to any new APCS that replaces the preserved APCS".
18 Subsection 193(3)
Repeal the subsection.
19 Subsection 194(2)
Repeal the subsection.
20 Subsection 194(4)
Repeal the subsection.
21 Subsection 195(1)
Omit "$12.75", substitute "$13.74".
22 Paragraph 196(2)(a)
Repeal the paragraph, substitute:
(a) section 176; and
23 Sections 197 and 198
Repeal the sections.
24 Paragraph 200(2)(a)
Repeal the paragraph, substitute:
(a) section 176; and
25 Subsection 200(3)
Repeal the subsection.
26 Subsection 201(1)
Omit "(1)".
27 Subsection 201(2)
Repeal the subsection.
28 Subsection 202(4)
Omit all the words before paragraph (a), substitute:
(4) The AFPC must not adjust an APCS so that it includes provisions that:
29 Subsection 203(4)
Omit all the words after "to adjust", substitute "an APCS".
30 Paragraph 205(2)(b)
Omit "an APCS made in accordance with Subdivision M", substitute "a new APCS determined in accordance with Subdivision M of Division 2 of Part 7 of this Act before the repeal of that Subdivision by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 ".
31 Section 206
Repeal the section.
32 Subsection 207(3)
Repeal the subsection.
33 Subdivision J of Division 2 of Part 7
Repeal the Subdivision.
34 Subdivision K of Division 2 of Part 7 (heading)
Repeal the heading, substitute:
35 Section 215
Omit "revocation or".
36 Paragraph 216(2)(a)
Repeal the paragraph, substitute:
(a) section 176; and
37 Section 217
Repeal the section.
38 Subdivision M of Division 2 of Part 7
Repeal the Subdivision, substitute:
Subdivision M -- Special provisions relating to APCSs for employees with a disability
219A Coverage of special APCSs for employees with a disability
(1) This section applies in relation to an APCS (the special APCS ) that was determined in accordance with section 220 of this Act before the repeal of that section by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 .
(2) The special APCS is taken not to cover the employment of a particular employee if:
(a) there is another APCS that covers the employment of the employee (disregarding the effect that paragraph 205(2)(b) would otherwise have because of the special APCS); and
(b) that other APCS determines a basic periodic rate of pay specifically for a particular class of employees with a disability; and
(c) the employee's employment is covered by that other APCS because the employee is a member of that class; and
(d) that class is the same as, or is a subclass of, the employees whose employment would otherwise be covered by the special APCS.
(3) Without limiting the power of the AFPC to adjust APCSs under section 216, the AFPC may adjust the special APCS under that section.
39 Subsection 222(1)
Omit "sections 176 and 177", substitute "section 176".
40 Subsection 222(2)
Repeal the subsection, substitute:
(2) For the purposes of the Acts referred to in paragraph (1)(c), and of paragraph (1)(e), the AFPC does not discriminate against an employee or employees by (in accordance with this Division):
(a) adjusting rate provisions in an APCS that determine a basic periodic rate of pay for:
(i) all junior employees, or a class of junior employees; or
(ii) all employees with a disability, or a class of employees with a disability; or
(iii) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply; or
(b) adjusting a special FMW for all employees with a disability, or a class of employees with a disability.
41 After paragraph 861(1)(c)
Insert:
(ca) Division 2 of Part 7 has effect as if the definition of APCS in section 178 were modified by omitting "or a new APCS"; and
42 Subparagraph 861(1)(d)(i)
Omit "J,".
43 Subparagraph 861(1)(d)(ii)
Omit "206, 207, 216 and 217", substitute "207 and 216".
44 At the end of subparagraph 861(1)(d)(iv)
Add "and".
45 Subparagraph 861(1)(d)(v)
Repeal the subparagraph.
46 Paragraph 864(1)(b)
Repeal the paragraph, substitute:
(b) is of a rate provision (within the meaning of Division 2 of Part 7).
47 Paragraph 864(2)(a)
Repeal the paragraph, substitute:
(a) section 176; and
48 Subsection 864(4)
Repeal the subsection.
49 Subsection 865(1)
Omit "set or".
50 Paragraphs 865(1)(a) and (b)
Omit "setting or".
51 Subsection 865(2)
Omit "sets or".
52 Paragraphs 865(2)(a) and (b)
Omit "setting or".
53 Wage reviews in progress before commencement time--previous wage‑setting powers of the AFPC
(1) This item applies to a wage review that is being conducted by AFPC under Division 2 of Part 2 of the Workplace Relations Act 1996 before the commencement time if:
(a) the wage review relates to whether the AFPC should exercise a previous wage‑setting power of the AFPC; and
(b) the wage review is not completed before the commencement time.
(2) The AFPC is not to continue to conduct the wage review after the commencement time, to the extent that the wage review relates to the exercise of the previous wage‑setting power of the AFPC.
(3) In this item:
commencement time means the time when this Schedule commences.
previous wage‑setting power of the AFPC means a power that:
(a) was a wage‑setting power of the AFPC under Division 2 of Part 7 of the Workplace Relations Act 1996 , as in force immediately before the commencement time; and
(b) is not a wage‑setting power of the AFPC under Division 2 of Part 7 of the Workplace Relations Act 1996 , as amended by this Schedule.
Schedule 4 -- Repeal of provisions for Workplace Relations Fact Sheet
1 Division 3A of Part 5
Repeal the Division.
Schedule 5 -- Transitional arrangements for existing pre‑reform Federal agreements etc.
1 After clause 2 of Schedule 7
Insert:
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.
2 After subclause 4(1) of Schedule 7
Insert:
(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.
3 Subclause 4(2) of Schedule 7
Omit "Subclause (1)", substitute "This clause".
4 Subclause 4(3) of Schedule 7
Omit "subclause (1)", substitute "this clause".
5 Subclause 28(1) of Schedule 7
Repeal the subclause, substitute:
(1) An old IR agreement ceases to be in operation if it is terminated under clause 29A.
6 At the end of Part 6 of Schedule 7
Add:
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.
Schedule 5A -- Transitional treatment of State employment agreements
1 After clause 16 of Schedule 8
Insert:
16A Commission may extend or vary preserved collective State agreements
(1) The Commission may, on application by any person bound by a preserved collective State 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 relevant State award in relation to the employees; 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) The employees bound by the agreement are taken, for the purposes of paragraph (2)(a), genuinely to agree to the extension or variation if:
(a) the employer gives all of the employees bound by the agreement at the time of making the extension or variation a reasonable opportunity genuinely to decide whether they agree to the extension or variation; and
(b) either:
(i) if the decision is made by a vote--a majority of those employees who cast a valid vote; or
(ii) otherwise--a majority of those employees;
genuinely decide that they agree to the extension or variation.
(5) To avoid doubt, the terms and conditions of employment under a relevant State 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.
(6) 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.
"relevant State award" , in relation to an employee, means:
(a) if, immediately before the reform commencement, the employee was bound by, or a party to, the original collective agreement to which the preserved collective State agreement referred to in subsection (1) relates, under the terms of that agreement or a State or Territory industrial law as in force at that time--the State award that would have bound the employee at that time but for that agreement; or
(b) otherwise--the State award that would have bound, or but for the application of a State employment agreement would have bound, the employee at that time if the employee had been employed by the employer at that time.
2 After clause 21E of Schedule 8
Insert:
3 After subclause 22(1) of Schedule 8
Insert:
(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 preserved collective State agreement under clause 16A.
Note: The heading to clause 22 of Schedule 8 is altered by adding at the end " etc. ".
4 Subclause 22(2) of Schedule 8
Omit "Subclause (1)", substitute "This clause".
5 Subclause 22(3) of Schedule 8
Omit "subclause (1)", substitute "this clause".
Schedule 6 -- Notional agreements preserving State awards
1 Subclause 38A(1) of Schedule 8
Repeal the subclause, substitute:
(1) A notional agreement preserving State awards ceases to be in operation at the end of:
(a) unless paragraph (b) applies, 31 December 2009; or
(b) if a later date is prescribed by the regulations--that later date.
2 Paragraph 19(2)(b) of Schedule 9
Omit all the words after "operation", substitute "under subclause 38A(1) of Schedule 8;".