Fair Work Amendment (State Referrals and Other Measures) Act 2009 (124 of 2009)
Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair Work Act 2009
Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
54 After Schedule 3
Insert:
Schedule 3A - Treatment of State awards and State employment agreements of Division 2B referring States
Part 1 - Preliminary
1 Meanings of employer and employee
In this Schedule, employer and employee have their ordinary meanings.
Part 2 - Division 2B State instruments
2 What are Division 2B State instruments?
(1) A Division 2B State instrument is a Division 2B State award (see item 3) or a Division 2B State employment agreement (see item 5).
(2) Subject to subitem (3), a State award is an instrument in relation to which the following conditions are satisfied:
(a) the instrument regulates terms and conditions of employment;
(b) the instrument was made under a State industrial law by a State industrial body;
(c) the instrument is referred to in that law as an award.
Note: This definition does not apply to a reference in a provision of this Act to a State award if the provision expressly refers to the meaning that was given by the WR Act.
(3) The regulations may provide that an instrument of a specified kind:
(a) is a State award ; or
(b) is not a State award .
(4) Subject to subitem (5), a State employment agreement is:
(a) an agreement in relation to which the following conditions are satisfied:
(i) the agreement is between an employer and one or more employees of the employer, or between an employer and an association of employees registered under a State industrial law;
(ii) the agreement determines terms and conditions of employment of one or more employees of the employer;
(iii) the agreement was made under a State industrial law; or
(b) a determination in relation to which the following conditions are satisfied:
(i) the determination determines terms and conditions of employment;
(ii) the determination was made under a State industrial law by a State industrial body;
(iii) the determination was made in a situation in which parties who were negotiating for the making of an agreement of a kind described in paragraph (a) had not been able to reach an agreement;
(iv) the purpose of the determination was to resolve the matters that were at issue in those negotiations.
Note: This definition does not apply to a reference in a provision of this Act to a State employment agreement if the provision expressly refers to the meaning that was given by the WR Act.
(5) The regulations may provide that an instrument of a specified kind:
(a) is a State employment agreement ; or
(b) is not a State employment agreement .
(6) A State employment agreement is a collective State employment agreement unless:
(a) it is an agreement of a kind that, under the relevant State industrial law, could only be entered into by a single employee and a single employer; or
(b) the agreement is of a kind prescribed by the regulations for the purpose of this paragraph.
(7) A State employment agreement referred to in paragraph (6)(a) or (b) is an individual State employment agreement .
3 Division 2B State awards
(1) If, immediately before the Division 2B referral commencement:
(a) a State award (the source award ) was in operation under a State industrial law of a Division 2B referring State (the source State ); and
(b) the source award covered (however described in the source award or a relevant law of the source State) employers and employees who become Division 2B State reference employers and Division 2B State reference employees on the Division 2B referral commencement (whether or not the source award also covered other persons);
a Division 2B State award is taken to come into operation immediately after the Division 2B referral commencement.
Note 1: A Division 2B State award is a notional federal instrument derived from the source award.
Note 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State awards:
(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);
(b) Schedule 11 (which deals with transfer of business).
(2) Subject to this Schedule, the Division 2B State award is taken to include the same terms as were in the source award immediately before the Division 2B referral commencement.
Note: For the meanings of Division 2B referral commencement , Division 2B referring State , Division 2B State reference employee and Division 2B State reference employer , see items 2 and 2A of Schedule 3.
(3) If the terms of the source award were affected by an order, decision or determination of a State industrial body or a court of the source State that was in operation immediately before the Division 2B referral commencement, the terms of the Division 2B State award are taken to be similarly affected by the terms of that order, decision or determination.
4 The employees, employers etc. who are covered by a Division 2B State award and to whom it applies
Meaning of covers
(1) A Division 2B State award covers the same employees, employers, outworker entities and any other persons that the source award covered (however described in the award or a relevant law of the source State) immediately before the Division 2B referral commencement.
Note: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State award potentially applies (see subitem (5)). The employees, employers etc. who are within this range will depend on the terms of the award, and on any relevant provisions of the law of the source State.
(2) The Division 2B State award also covers any employees who become employed by an employer on or after the Division 2B referral commencement, and who would have been covered by the source award if they had become so employed immediately before that commencement.
(3) However, the Division 2B State award does not cover :
(a) any employees, employers or outworker entities that are not Division 2B State reference employees, Division 2B State reference employers or Division 2B State reference outworker entities; or
(b) any employees, employers or outworker entities that are covered by an award-based transitional instrument.
A Division 2B State reference outworker entity is an entity that is an outworker entity only because of section 30Q of the FW Act.
(4) If:
(a) after the Division 2B referral commencement, a person (the employer ) starts to employ employees to do work of a kind that was regulated by the source award immediately before that commencement; and
(b) the employer did not employ employees to do that kind of work immediately before that commencement;
then the Division 2B State award also does not cover any of the following, in relation to that kind of work:
(c) the employer;
(d) employees of the employer;
(e) any other persons, in relation to the employer or employees of the employer.
Meaning of applies
(5) A Division 2B State award applies to the same employees, employers, outworker entities and any other persons that the Division 2B State award covers as would have been required by the law of the source State to comply with terms of the source award, or entitled under the law of the source State to enforce terms of the source award, if:
(a) the State had not been a referring State; and
(b) the law of the source State had continued to apply.
Note 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State award.
Note 2: The Division 2B State award does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or (4) or otherwise.
(6) However, a Division 2B State award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).
Note: Item 50 deals with the application of section 329 of the FW Act to Division 2B State awards.
Item has effect subject to other provisions
(7) This item has effect subject to:
(a) the instrument interaction rules (see item 11); and
(b) the termination of Division 2B State instruments as referred to in item 18; and
(c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and
(d) Schedule 11 (which deals with transfer of business).
References to laws of States
(8) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.
5 Division 2B State employment agreements
State employment agreements that were in operation immediately before the Division 2B referral commencement
(1) If, immediately before the Division 2B referral commencement:
(a) a State employment agreement (the source agreement ) was in operation under a State industrial law of a Division 2B referring State (the source State ); and
(b) the source agreement covered (however described in the source agreement or a relevant law of the source State) employers and employees who become Division 2B State referral employers and Division 2B State referral employees on the Division 2B referral commencement (whether or not the source agreement also covered other persons);
a Division 2B State employment agreement is taken to come into operation immediately after the Division 2B referral commencement.
Note 1: A Division 2B State employment agreement is a notional federal instrument derived from the source agreement.
Note 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:
(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);
(b) Schedule 11 (which deals with transfer of business).
Note 3: For the meanings of Division 2B referral commencement , Division 2B referring State , Division 2B State reference employee and Division 2B State reference employer , see items 2 and 2A of Schedule 3.
(2) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement immediately before the Division 2B referral commencement.
State employment agreements that come into operation on or after the Division 2B referral commencement
(3) If, on or after the Division 2B referral commencement:
(a) a State employment agreement (the source agreement ) comes into operation under a State industrial law of a Division 2B referring State (the source State ); and
(b) the source agreement covers (however described in the source agreement or a relevant law of the source State) employers and employees who are Division 2B State referral employers and Division 2B State referral employees when the source agreement comes into operation (whether or not the source agreement also covers other persons);
a Division 2B State employment agreement is taken to come into operation immediately after the source agreement comes into operation.
Note 1: A Division 2B State employment agreement is a notional federal instrument derived from the source agreement.
Note 2: There is limited scope for State employment agreements that cover Division 2B State referral employers and employees to come into operation on or after the Division 2B referral commencement: see Part 6 of this Schedule.
Note 3: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:
(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);
(b) Schedule 11 (which deals with transfer of business).
(4) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement when it came into operation.
Collective and individual Division 2B State employment agreements
(5) If the source agreement in relation to a Division 2B State employment agreement is a collective State employment agreement, the Division 2B State employment agreement is a collective Division 2B State employment agreement .
(6) If the source agreement in relation to a Division 2B State employment agreement is an individual State employment agreement, the Division 2B State employment agreement is an individual Division 2B State employment agreement .
6 The employees, employers etc. who are covered by a Division 2B State employment agreement and to whom it applies
Meaning of covers
(1) A Division 2B State employment agreement covers the same employees, employers and any other persons that the source agreement covered (however described in the agreement or a relevant law of the source State) immediately before the Division 2B State employment agreement came into operation.
Note: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State employment agreement potentially applies (see subitem (4)). The employees, employers etc. who are within this range will depend on the terms of the agreement, and on any relevant provisions of the law of the source State.
(2) The Division 2B State employment agreement also covers any employees who become employed by an employer on or after the time when the agreement came into operation, and who would have been covered by the source agreement if they had become so employed immediately before that time.
(3) However, the Division 2B State employment agreement does not cover :
(a) any employees or employers that are not Division 2B State reference employees or Division 2B State reference employers; or
(b) any employees or employers that are covered by an award-based transitional instrument.
Meaning of applies
(4) A Division 2B State employment agreement applies to the same employees, employers and any other persons that the Division 2B State employment agreement covers as would have been required by the law of the source State to comply with terms of the source agreement, or entitled under the law of the source State to enforce terms of the source agreement, if:
(a) the source State had not been a referring State; and
(b) the law of the source State had continued to apply.
Note 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State employment agreement.
Note 2: The Division 2B State employment agreement does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or otherwise.
Item has effect subject to other provisions
(5) This item has effect subject to:
(a) the instrument interaction rules (see item 11); and
(b) the termination of Division 2B State instruments as referred to in item 18; and
(c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and
(d) Schedule 11 (which deals with transfer of business).
References to laws of States
(6) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.
7 Terms about disputes relating to matters arising under Division 2B State awards
(1) If the source award for a Division 2B State award includes a term that provides for disputes relating to matters arising under the award to be settled by:
(a) a State industrial body; or
(b) a person who is independent of the employers, employees or organisations covered by the source award;
the Division 2B State award is taken not to include that term.
(2) Each Division 2B State award is taken to include the model term that is prescribed by the regulations for dealing with disputes relating to matters arising under Division 2B State awards.
Note: This subitem applies whether or not the source award included a term as mentioned in subitem (1).
(3) The model term does not apply to disputes about matters arising under the source award before the Division 2B referral commencement.
(4) The model term, as taken to be included in a Division 2B State award:
(a) cannot be varied; and
(b) cannot be removed from the award.
8 Terms about disputes relating to matters arising under Division 2B State employment agreements
(1) This item applies if the source agreement for a Division 2B State employment agreement includes a term that provides for disputes relating to matters arising under the agreement to be settled by:
(a) a State industrial body; or
(b) a person who is independent of the employers, employees or organisations covered by the source agreement.
(2) Item 13 of this Schedule does not apply in relation to the term.
Note: Item 13 would otherwise result in references in the term to a State industrial body having effect as if they were references to FWA.
(2A) However, if the term provides for disputes relating to matters arising under the source agreement to be settled by a State industrial body, then, despite anything in the source agreement or a law of the source State:
(a) the State industrial body may settle, or decline to settle, such a dispute; and
(b) FWA may settle such a dispute if the State industrial body:
(i) ceases to exist; or
(ii) declines to settle the dispute.
(3) FWA must, on application in accordance with subitem (4), vary the term in accordance with the application.
(4) For the purpose of subitem (3), an application must be made:
(a) by an employer to which the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employer, with the consent of:
(i) one or more employees to whom the agreement applies; or
(ii) an organisation that is entitled to represent the industrial interests of one or more such employees; or
(b) by an employee to whom the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employee, with the consent of:
(i) an employer to which the Division 2B State employment agreement applies; or
(ii) an organisation that is entitled to represent the industrial interests of such an employer.
9 Application to Division 2B State instruments of provisions of FW Act about dealing with disputes
(1) Subdivision B of Division 2 of Part 6-2 of the FW Act applies (including for the purpose of section 595 of the FW Act) as follows:
(a) the Subdivision applies in relation to the model term that is taken by item 7 to be included in a Division 2B State award in the same way as the Subdivision applies in relation to a term in a modern award that provides a procedure for dealing with disputes;
(b) the Subdivision applies in relation to a term to which item 8 applies that is included in a Division 2B State employment agreement in the same way as the Subdivision applies in relation to a term in an enterprise agreement that provides a procedure for dealing with disputes.
(2) The reference in subsections 739(5) and 740(4) of the FW Act to a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties, is taken to include a reference to a decision that is inconsistent with a Division 2B State instrument that applies to the parties.
10 Division 2B State instruments continue to be subject to the same instrument content rules
(1) The instrument content rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:
(a) the rules were provisions of a law of the Commonwealth; and
(b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and
(c) any other modifications of those rules prescribed by the regulations were made.
(2) Instrument content rules , in relation to a State, are provisions of a law of the State of any of the following kinds:
(a) provisions about what may, or must, be included in an instrument;
(b) provisions to the effect that a particular term of an instrument is of no effect (however described):
(i) either completely or to a limited extent; and
(ii) either permanently or for a limited period;
(c) provisions to the effect that a particular term is taken to be included in an instrument.
11 Division 2B State instruments continue to be subject to the same instrument interaction rules
(1) The instrument interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:
(a) the rules were provisions of a law of the Commonwealth; and
(b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B transitional State employment agreements; and
(c) any other modifications of those rules prescribed by the regulations were made.
(2) Instrument interaction rules , in relation to a State, are provisions of a law of the State, the effect of which is that:
(a) one instrument has priority over, or excludes, another instrument:
(i) either completely or to a particular extent; and
(ii) either permanently or for a particular period; or
(b) one instrument ceases to operate because of another instrument:
(i) either completely or to a particular extent; and
(ii) either permanently or for a particular period.
12 Division 2B State awards continue to be subject to the same outworker interaction rules
(1) The outworker interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State award, as if:
(a) the rules were provisions of a law of the Commonwealth; and
(b) any references in the rules to State awards (however described in the rules) were instead references to Division 2B State awards; and
(c) any other modifications of those rules prescribed by the regulations were made.
(2) Outworker interaction rules , in relation to a State, are provisions of a law of the State, the effect of which is that:
(a) a State award prevails over, or excludes, a law of the State relating to outworkers; or
(b) a State award has effect subject to a law of the State relating to outworkers.
13 References in Division 2B State instruments to State industrial bodies
(1) Subject to subitem (2), if a term of a Division 2B State instrument is expressed to confer a power or function on a State industrial body, that term has effect as if references in it to the body were instead references to FWA.
(2) If a term of a Division 2B State instrument is expressed to confer a power or function on the registrar, or a deputy registrar, of a State industrial body, that term has effect on and after the Division 2B referral commencement as if references in it to the registrar or a deputy registrar were instead references to the General Manager of FWA.
(3) This item has effect subject to:
(a) a contrary intention in this Act; and
(b) the regulations.
Note 1: A Division 2B State award will be taken not to include a term from the source award that provides for the settlement of disputes relating to matters arising under the award: see item 7.
Note 2: This item does not apply to a term of a Division 2B State employment agreement that provides for the settlement of disputes relating to matters arising under the agreement: see item 8.
14 Non-accruing entitlements: counting service under the source award or source agreement
General rule
(1) Subitem (2) applies for the purpose of determining the entitlements of a Division 2B State reference employee under a Division 2B State instrument (other than an entitlement to leave of a kind to which item 15 applies).
(2) Service of the employee with an employer before the Division 2B referral commencement that counted for the purpose of the application to the employee of the source award or source agreement also counts as service of the employee with the employer for the purpose of the application to the employee of the Division 2B State instrument.
No double entitlement
(3) If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (2) does not result in that period of service with the employer being counted again when calculating the employee's entitlements of that kind under the Division 2B State instrument.
(4) To avoid doubt, subitem (3) does not require an employee to serve any initial qualifying period of service for long service leave again.
Note: For how the kinds of matters covered by this item and items 15 and 16 are dealt with in relation to entitlements under the National Employment Standards, see Division 2 of Part 3 of Schedule 4.
15 Accruing entitlements: leave accrued immediately before the Division 2B referral commencement
(1) This item applies to leave of the following kinds:
(a) annual leave (however described) that accrues to an employee;
(b) personal leave or carer's leave (however described) that accrues to an employee.
(2) If a Division 2B referral employee to whom a Division 2B State instrument applies had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of leave to which this item applies (whether the leave accrued under the source award or source agreement, or under a State industrial law), the accrued leave is taken to have accrued under the Division 2B State instrument.
16 Leave that is being, or is to be, taken under the source award or source agreement
(1) If a Division 2B State reference employee was, immediately before the Division 2B referral commencement, taking a period of leave under the source award or source agreement, the employee is entitled to continue on that leave under the Division 2B State instrument for the remainder of the period.
(2) If a Division 2B State reference employee has, before the Division 2B referral commencement, taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a period of leave under the source award or source agreement, the employee is taken to have taken the step under the Division 2B State instrument.
(3) The regulations may deal with other matters relating to how a Division 2B State instrument applies to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken by a Division 2B State reference employee under the source award or source agreement.
17 No loss of accrued rights or liabilities when Division 2B State instrument terminates or ceases to apply
(1) If a Division 2B State instrument terminates, or ceases to apply in relation to a person, that does not affect:
(a) any right or liability that a person acquired, accrued or incurred before the instrument terminated or ceased to apply; or
(b) any investigation, legal proceeding or remedy in respect of any such right or liability.
(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the Division 2B State instrument had not terminated or ceased to apply.
(3) This item has effect subject to a contrary intention in this Act or in the FW Act.
Part 3 - Variation and termination of Division 2B State instruments
18 Division 2B State instruments can only be varied or terminated in limited circumstances
(1) A Division 2B State instrument cannot be varied except under:
(a) a provision of this Part or the regulations; or
(b) item 8 (which deals with terms about disputes relating to matters arising under Division 2B State employment agreements); or
(c) item 40 (which deals with resolving difficulties with the interaction between Division 2B State instruments and the National Employment Standards); or
(d) Part 6 of this Schedule (which deals with ongoing operation of State laws for transitional purposes); or
(e) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or
(f) item 20 of Schedule 9 (which deals with variation of Division 2B State awards in annual wage reviews); or
(g) Schedule 11 (which deals with transfer of business).
(2) A Division 2B State instrument cannot be terminated (or otherwise brought to an end) except under:
(a) a provision of this Part or the regulations; or
(b) Part 6 of this Schedule; or
(c) Division 2 of Part 2 of Schedule 6; or
(d) Schedule 11.
19 Variation to remove ambiguities etc.
(1) On application by a person covered by a Division 2B State instrument, FWA may make a determination varying the instrument:
(a) to remove an ambiguity or uncertainty in the instrument; or
(b) if the instrument is a Division 2B State employment agreement - to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or
(c) to remove terms that are inconsistent with Part 3-1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.
Note: For variation of a Division 2B State instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 40.
(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.
20 Variation on referral by Australian Human Rights Commission
(1) This item applies if a Division 2B State instrument is referred to FWA under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).
(2) If the instrument is a Division 2B State award, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.
(3) If the instrument is a Division 2B State employment agreement, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.
21 Division 2B State awards: automatic termination after 12 months
(1) A Division 2B State award terminates at the end of 12 months after the Division 2B referral commencement.
(2) A term of a Division 2B State award that provides for the award to terminate before the end of that 12 month period is of no effect.
(3) This item does not apply to a Division 2B enterprise award.
Note: Schedule 6 (modern enterprise awards) applies to Division 2B enterprise awards.
22 Collective Division 2B State employment agreements: termination by agreement
Subdivision C of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.
23 Collective Division 2B State employment agreements: termination by FWA
Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.
24 Individual Division 2B State employment agreements: termination by agreement
(1) The employee and employer covered by an individual Division 2B State employment agreement (the Division 2B agreement ) may make a written agreement (a termination agreement ) to terminate the Division 2B agreement in accordance with the following requirements:
(a) the termination agreement must be signed by the employee and the employer;
(b) if the employee is under 18, it must also be signed by a parent or guardian of the employee;
(c) the signatures must be witnessed.
(2) The termination has no effect unless it has been approved by FWA.
(3) The employer or employee may apply to FWA for approval of the termination agreement. The application must be made:
(a) within 14 days after the termination agreement was made; or
(b) if in all the circumstances FWA considers it fair to extend that period - within such further period as FWA allows.
(4) If an application for FWA to approve the termination agreement is made under subitem (3), FWA must approve the termination of the Division 2B agreement if:
(a) FWA is satisfied that the requirements of subitem (1) have been complied with; and
(b) FWA is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.
(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.
25 Individual Division 2B State employment agreements: termination conditional on enterprise agreement
(1) This item provides for the making of an instrument (a conditional termination ) that will have the effect of terminating an individual Division 2B State employment agreement (the Division 2B agreement ) if:
(a) an enterprise agreement (the proposed enterprise agreement ) is made that covers the employee and the employer; and
(b) the proposed enterprise agreement comes into operation.
(2) If the Division 2B agreement has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.
(3) If the Division 2B agreement has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.
(4) If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.
(5) Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.
(6) The employer must give the employee a copy of the conditional termination if:
(a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or
(b) the conditional termination is signed by the employer in the circumstances covered by subitem (3).
Note 1: For compliance with this obligation, see subitem 4B(1) of Schedule 16.
Note 2: Failure to comply with this obligation does not affect the operation of subitem (8).
(7) The conditional termination must accompany any application to FWA for approval of the proposed enterprise agreement under section 185 of the FW Act.
Note 1: For compliance with this obligation, see subitem 4B(2) of Schedule 16.
Note 2: Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by FWA of the proposed enterprise agreement.
(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the Division 2B agreement terminates when the proposed enterprise agreement comes into operation.
26 Individual Division 2B State employment agreements: unilateral termination with FWA's approval
(1) This item applies to an employer or employee:
(a) to whom an individual Division 2B State employment agreement (the Division 2B agreement ) that has passed its nominal expiry date applies; and
(b) who wants to terminate the Division 2B agreement.
(2) The employer or employee may:
(a) make a written declaration that identifies the Division 2B agreement and that states that the employer or employee wants to terminate the agreement; and
(b) apply to FWA for the approval of the termination.
(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:
(a) the notice must identify the Division 2B agreement;
(b) the notice must state that the employer or employee intends to apply to FWA for approval of the termination of the agreement;
(c) the notice must state that, if FWA approves the termination, the agreement will terminate on the 90th day after the day on which FWA makes the approval decision;
(d) the notice must comply with any other requirements of the regulations.
(4) FWA must approve the termination if FWA is satisfied that:
(a) the Division 2B agreement applies to the employer and the employee; and
(b) the requirements of subitems (2) and (3) have been complied with.
(5) If FWA approves the termination, the Division 2B agreement terminates on the 90th day after the day on which FWA makes the approval decision.
27 Meaning of nominal expiry date of Division 2B State employment agreement
The nominal expiry date of a Division 2B State employment agreement is:
(a) the day on which the source agreement would nominally have expired under the relevant State industrial law of the source State; or
(b) if that day falls after the end of a period of 3 years beginning on the Division 2B referral commencement - the last day of that 3 year period.
28 Effect of termination
If a Division 2B State instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.
Part 4 - Transition of employees from Division 2B State awards to FW Act modern awards
Division 1 - FWA required to consider varying modern awards etc.
29 FWA to consider varying modern awards to continue effect of terms of Division 2B State awards
(1) During the period of 12 months starting on the Division 2B referral commencement, FWA:
(a) must consider whether any modern awards should be varied to include terms in relation to which the following conditions are satisfied:
(i) the purpose of including the terms is to continue (in whole or in part) the effect of terms that are contained in a Division 2B State award, other than a Division 2B enterprise award;
(ii) the terms only relate to employees, employers or other persons covered by the Division 2B State award;
(iii) the terms deal with matters of a kind that are permitted by section 136 of the FW Act to be included in modern awards; and
(b) may make one or more determinations varying modern awards to include such terms.
(2) Terms may be included in a modern award in accordance with this item despite section 154 of the FW Act.
(3) Terms included in a modern award in accordance with this item:
(a) take effect at the end of 12 months after the Division 2B referral commencement; and
(b) cease to have effect:
(i) at the end of 5 years after the Division 2B referral commencement; or
(ii) if the terms are expressed to cease to have effect at an earlier time - at that earlier time.
30 FWA to consider making orders to continue effect of long service leave terms of Division 2B State awards
(1) During the period of 12 months starting on the Division 2B referral commencement, FWA:
(a) must consider whether any orders should be made in relation to which the following conditions are satisfied:
(i) the purpose of making the order is to continue (in whole or in part) the effect of terms relating to long service leave that are contained in a Division 2B State award, other than a Division 2B enterprise award;
(ii) the order only relates to employees, employers or other persons covered by the Division 2B State award; and
(b) may make one or more such orders.
(2) An order under subitem (1):
(a) takes effect at the end of 12 months after the Division 2B referral commencement; and
(b) ceases to have effect:
(i) at the end of 5 years after the Division 2B referral commencement; or
(ii) if the order is expressed to cease to have effect at an earlier time - at that earlier time.
(3) Paragraph 675(1)(a) of the FW Act has effect as if it also included a reference to an order under subitem (1).
(4) To the extent that a term of a Division 2B State award, or of an enterprise agreement, is detrimental to an employee, in any respect, when compared to an order under subitem (1), the term of the award or agreement is of no effect.
Note: A term of a Division 2B State award, or of an enterprise agreement, that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the order will continue to have effect.
(5) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State award or an enterprise agreement are, or are not, detrimental in any respect when compared to an order under subitem (1).
Division 1A - Transitional pay equity order taken to have been made by FWA - Division 2B State awards
30A FWA taken to have made a transitional pay equity order to continue the effect of State pay equity orders
(1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order ) under this item.
(2) The transitional pay equity order applies to an employer if:
(a) a Division 2B State award that applies to the employer terminates at a time (the termination time ) after the Division 2B referral commencement; and
(b) the base rate of pay payable immediately before the termination time to some or all of the employees to whom the Division 2B State award applied was determined in whole or part by, or in accordance with, an order, decision or determination (the source pay equity order ) of a State industrial body that:
(i) was made before 15 September 2009; and
(ii) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and
(iii) was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and
(c) immediately after the termination time, a modern award applies to the employer.
Note: After the Division 2B referral commencement, a source pay equity order may have effect either because of subitem 3(3) of this Schedule, or because the terms of the source pay equity order had been incorporated in the source award from which the Division 2B State award was derived.
(3) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid under the Division 2B State award in respect of that period, assuming that:
(a) the Division 2B State award had not terminated; and
(b) the base rate of pay had continued to be determined in whole or part by, or in accordance with, the source pay equity order in respect of that period.
(4) An employee of an employer to which this item applies is an affected employee of the employer if:
(a) all of the following conditions are satisfied:
(i) the employee was employed by the employer at the termination time;
(ii) the Division 2B State award applied to the employee at the termination time;
(iii) the employee's base rate of pay under the Division 2B State award was determined in whole or part by, or in accordance with, the source pay equity order at the termination time; or
(b) all of the following conditions are satisfied:
(i) the employee becomes employed by the employer after the termination time;
(ii) a Division 2B State award would have applied to the employee if he or she had been employed by the employer immediately before the termination time;
(iii) the employee's base rate of pay under the Division 2B State award would have been determined in whole or part by, or in accordance with, the source pay equity order at the termination time.
(5) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.
(6) A term of a modern award is of no effect to the extent that:
(a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and
(b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).
(7) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (6)(a).
Division 2 - Avoiding reductions in take-home pay
31 Termination of Division 2B State awards is not intended to result in reduction in take-home pay
(1) The termination of a Division 2B State award by item 21 is not intended to result in a reduction in the take-home pay of employees or outworkers.
(2) An employee's or outworker's take-home pay is the pay an employee or outworker actually receives:
(a) including wages and incentive-based payments, and additional amounts such as allowances and overtime; but
(b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.
Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.
(3) An employee suffers a reduction in take-home pay to which this item applies if, and only if:
(a) when a Division 2B State award terminates because of item 21, the employee becomes a person to whom a modern award applies; and
(b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the termination of the Division 2B State award; and
(c) the amount of the employee's take-home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the employee's take-home pay for those hours or that quantity of work immediately before the termination; and
(d) that reduction in the employee's take-home pay is attributable to the termination of the Division 2B State award.
(4) An outworker who is not an employee suffers a reduction in take-home pay to which this item applies if, and only if:
(a) when a Division 2B State award terminates because of item 21, the outworker becomes a person to whom outworker terms in a modern award relate; and
(b) the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the termination of the Division 2B State award; and
(c) the amount of the outworker's take-home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the outworker's take-home pay for those hours or that quantity of work immediately before the termination; and
(d) that reduction in the outworker's take-home pay is attributable to the termination of the Division 2B State award.
32 Orders remedying reductions in take-home pay
Employees
(1) If FWA is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a reduction in take-home pay to which item 31 applies, FWA may make any order (a take-home pay order ) requiring, or relating to, the payment of an amount or amounts to the employee or employees that FWA considers appropriate to remedy the situation.
Outworkers
(2) If FWA is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a reduction in take-home pay to which item 31 applies, FWA may make any order (a take-home pay order ) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that FWA considers appropriate to remedy the situation.
General provisions
(3) FWA may make a take-home pay order only on application by:
(a) an employee or outworker who has suffered a reduction in take-home pay to which item 31 applies; or
(b) an organisation that is entitled to represent the industrial interests of such an employee or outworker; or
(c) a person acting on behalf of a class of such employees or outworkers.
(4) If FWA is satisfied that an application for a take-home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, FWA may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.
33 Ensuring that take-home pay orders are confined to the circumstances for which they are needed
(1) FWA must not make a take-home pay order under item 32 in relation to an employee or class of employees, or an outworker or a class of outworkers, if:
(a) FWA considers that the reduction in take-home pay is minor or insignificant; or
(b) FWA is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.
(2) FWA must ensure that a take-home pay order is expressed so that:
(a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a reduction in take-home pay to which item 31 applies; and
(b) if the take-home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order.
34 Take-home pay order continues to have effect so long as modern award continues to cover the employee or employees
A take-home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.
35 Inconsistency with modern awards and enterprise agreements
A term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take-home pay order that applies to the employee or outworker.
36 Application of provisions of FW Act to take-home pay orders
The FW Act applies as if the following provisions of that Act included a reference to a take-home pay order:
(a) subsection 675(2);
(b) subsection 706(2).
Note: For compliance with take-home pay orders, see item 7 of Schedule 16 to this Act.
Part 5 - Division 2B State instruments and the FW Act
Division 1 - Interaction between Division 2B State instruments and the National Employment Standards
37 The no detriment rule
(1) To the extent that a term of a Division 2B State instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the instrument is of no effect.
Note 1: A term of a Division 2B State instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.
Note 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to Division 2B State instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom Division 2B State instruments apply.
Note 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).
(2) If there is a dispute about the application of this item which must be resolved by FWA in accordance with item 40, FWA may compare the entitlements which are in dispute:
(a) on a 'line-by-line' basis, comparing individual terms; or
(b) on a 'like-by-like' basis, comparing entitlements according to particular subject areas; or
(c) using any combination of the above approaches FWA sees fit.
(3) Subitem (1) does not affect a term of a Division 2B State instrument that is permitted by a provision of the National Employment Standards as it has effect under item 38.
(4) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.
38 Provisions of the NES that allow instruments to contain particular kinds of terms
(1) The following provisions of the National Employment Standards have effect, on and after the Division 2B referral commencement, as if a reference to a modern award or an enterprise agreement included a reference to a Division 2B State instrument:
(a) section 63 (which allows terms dealing with averaging of hours of work);
(b) section 93 (which allows terms dealing with cashing out and taking paid annual leave);
(c) section 101 (which allows terms dealing with cashing out paid personal/carer's leave);
(d) subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer's leave etc.);
(e) subsection 115(3) (which allows terms dealing with substitution of public holidays);
(f) section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment);
(g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);
(h) section 126 (which allows terms providing for school-based apprentices and trainees to be paid loadings in lieu).
(2) If:
(a) a Division 2B State instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but
(b) the terms do not include the requirements referred to in subsection (2) of that section;
the instrument is taken to include terms that include the requirements.
39 Shiftworker annual leave entitlement
Subsections 87(3) to (5) of the FW Act apply in relation to an employee to whom a Division 2B State instrument applies in the same way as they apply to an award/agreement free employee.
Note: If the employee qualifies for the shiftworker annual leave entitlement under those subsections, the employee will be entitled to 5 (rather than 4) weeks of paid annual leave.
40 Resolving difficulties about application of this Division
(1) On application by a person covered by a Division 2B State instrument, FWA may make a determination varying the instrument:
(a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or
(b) to make the instrument operate effectively with the National Employment Standards.
(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.
Division 2 - Interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations
41 Modern awards and Division 2B State employment agreements
Collective Division 2B State employment agreements
(1) If a collective Division 2B State employment agreement and a modern award both apply to an employee, or to an employer or other person in relation to the employee, the Division 2B State employment agreement prevails over the modern award, to the extent of any inconsistency.
Note: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).
Individual Division 2B State employment agreements
(2) While an individual Division 2B State employment agreement applies to an employee, or to an employer or other person in relation to an employee, a modern award does not apply to the employee, or to the employer or other person in relation to the employee.
Note 1: However, a modern award can continue to cover the employee while the individual Division 2B State employment agreement continues to apply.
Note 2: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).
42 Terms of modern awards about outworker conditions continue to apply
(1) This item applies if, at a particular time:
(a) a Division 2B State employment agreement applies to an employee; and
(b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the Division 2B State employment agreement, apply to the employee.
(2) Despite item 41 and despite any terms of the Division 2B State employment agreement that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:
(a) the employee;
(b) the employer;
(c) each employee organisation to which the modern award applies.
(3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.
43 Modern awards and Division 2B State awards
Employees and employers
(1) While a Division 2B State award that covers an employee, or an employer or other person in relation to the employee, is in operation, a modern award does not cover the employee, or the employer or other person in relation to the employee.
Note: When the Division 2B State award terminates, a modern award will start to cover the employee, or the employer or other person in relation to the employee.
Outworker entities
(2) While a Division 2B State award that contains outworker terms that cover an outworker entity is in operation, outworker terms in a modern award do not cover the outworker entity.
Note: When the Division 2B State award terminates, a modern award will start to cover the outworker entity.
(3) Outworker terms in a Division 2B State award are terms that would be outworker terms as defined in the FW Act if they were in a modern award.
44 FW Act enterprise agreements and workplace determinations, and Division 2B State employment agreements
Collective Division 2B State employment agreements
(1) If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective Division 2B State employment agreement ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.
Note 1: The fact that a collective Division 2B State employment agreement applies to employees does not prevent those employees and their employer from replacing that agreement at any time with an enterprise agreement, regardless of whether the collective Division 2B State employment agreement has passed its nominal expiry date.
Note 2: Industrial action must not be taken before the nominal expiry date of a collective Division 2B State employment agreement (see item 4 of Schedule 13).
Individual Division 2B State employment agreements
(2) While an individual Division 2B State employment agreement applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.
45 FW Act enterprise agreements and workplace determinations, and Division 2B State awards
If an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then:
(a) a Division 2B State award ceases to apply to the employee, and the employer or other person in relation to the employee; but
(b) the Division 2B State award can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.
Note: Subject to the other provisions of this Part, the Division 2B State award can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.
46 Designated outworker terms of Division 2B State award continue to apply
(1) This item applies if, at a particular time:
(a) an enterprise agreement or workplace determination (under the FW Act) applies to an employer; and
(b) a Division 2B State award covers the employer (whether the award covers the employer in the employer's capacity as an employer or an outworker entity); and
(c) the Division 2B State award includes one or more designated outworker terms.
(2) Despite item 45, the designated outworker terms of the Division 2B State award apply at that time to the following:
(a) the employer;
(b) each employee who is both:
(i) a person to whom the enterprise agreement or workplace determination applies; and
(ii) a person who is covered by the Division 2B State award;
(c) each employee organisation that is covered by the Division 2B State award.
(3) To avoid doubt:
(a) Division 2B State awards are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and
(b) designated outworker terms of a Division 2B State award can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and
(c) to the extent to which designated outworker terms of a Division 2B State award apply to an employer, an employee or an employee organisation because of subitem (2), the award applies to the employer, employee or organisation.
Division 3 - Other general provisions about how the FW Act applies in relation to Division 2B State instruments
47 Employee not award/agreement free if Division 2B State instrument applies
(1) An employee is not an award/agreement free employee for the purposes of the FW Act if a Division 2B State instrument applies to the employee.
(2) The regulations may make provision in relation to any of the following in relation to employees to whom Division 2B State instruments apply:
(a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);
(b) what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);
(c) whether such an employee is a pieceworker for the purposes of the FW Act.
48 Employee's ordinary hours of work
Item applies for purpose of determining employee's ordinary hours of work for the FW Act
(1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a Division 2B State instrument applies are to be determined in accordance with this item.
Ordinary hours as specified in Division 2B State instrument
(2) If a Division 2B State instrument that applies to the employee specifies, or provides for the determination of, the employee's ordinary hours of work, the employee's ordinary hours of work are as specified in, or determined in accordance with, that instrument.
If subitem (2) does not apply and there is agreement
(3) If subitem (2) does not apply, the employee's ordinary hours of work are the hours agreed by the employee and his or her employer as the employee's ordinary hours of work.
If subitem (2) does not apply and there is no agreement
(4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:
(a) if the employee is a full time employee - 38 hours; or
(b) if the employee is not a full-time employee - the lesser of:
(i) 38 hours; and
(ii) the employee's usual weekly hours of work.
If subitem (2) does not apply: agreed hours are less than usual weekly hours
(5) If:
(a) subitem (2) does not apply; and
(b) the employee is not a full-time employee; and
(c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee's usual weekly hours of work;
the ordinary hours of work of the employee in a week are the lesser of:
(d) 38 hours; and
(e) the employee's usual weekly hours of work.
Regulations may prescribe usual weekly hours
(6) For an employee who is not a full-time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee's usual weekly hours of work for the purposes of subitems (4) and (5).
49 Payment of wages
Division 2 of Part 2-9 of the FW Act (which deals with payment of wages) applies, on and after the Division 2B referral commencement, in relation to a Division 2B State instrument as if:
(a) a reference to an enterprise agreement included a reference to a Division 2B State employment agreement; and
(b) a reference to a modern award included a reference to a Division 2B State award.
50 Guarantee of annual earnings
Division 3 of Part 2-9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the Division 2B referral commencement, as if:
(a) a reference to an enterprise agreement included a reference to a Division 2B State employment agreement; and
(b) a reference to a modern award included a reference to a Division 2B State award.
51 Application of unfair dismissal provisions
Part 3-2 of the FW Act (which deals with unfair dismissal) applies, on and after the Division 2B referral commencement, as if:
(a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to a Division 2B State award; and
(b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to a Division 2B State employment agreement.
52 Regulations may deal with other matters
The regulations may deal with other matters relating to how the FW Act applies in relation to Division 2B State instruments.
Part 6 - Ongoing operation of State laws for transitional purposes
53 Definitions
(1) Subject to subitem (2), in this Part:
agreement appeal means an appeal to a State industrial body against a decision made by a State industrial body in an agreement proceeding.
agreement proceeding means a proceeding (other than an agreement appeal) before a State industrial body for the body to:
(a) approve a State employment agreement; or
(b) approve a variation or termination of a State employment agreement; or
(c) vary or terminate a State employment agreement.
approve , in relation to a State employment agreement or a variation or termination of a State employment agreement, means:
(a) approve or certify (however described) the agreement, or the variation or termination, under a State industrial law; and
(b) do any other things (for example, register the agreement) that are required to be done under that law after approval or certification in order for the agreement, or the variation or termination, to come into operation.
award appeal means an appeal to a State industrial body against a decision made by a State industrial body in an award proceeding.
award proceeding means a proceeding (other than an award appeal) before a State industrial body for the body to:
(a) make a State award; or
(b) vary or terminate a State award.
coverage terms of a source award or source agreement are terms setting out the employees, employers, outworker entities or other persons that are covered (however described) by the award or agreement.
terminate , in relation to a State employment agreement, means terminate or rescind (however described) the agreement under a State industrial law.
vary , in relation to a State employment agreement, means vary or amend (however described) the agreement under a State industrial law.
(2) The regulations may provide that a certain proceeding:
(a) is, or is not, an agreement appeal as defined in subitem (1); or
(b) is, or is not, an agreement proceeding as defined in subitem (1); or
(c) is, or is not, an award appeal as defined in subitem (1); or
(d) is, or is not, an award proceeding as defined in subitem (1).
54 Part does not affect variations or terminations related to a proposed transfer of business
Nothing in this Part affects the application of section 26 of the FW Act to a law of a Division 2B referring State so far as the law provides for the variation or termination of a State award or a State employment agreement because of a proposed transfer of business (however described).
55 Commencement or completion of award appeals
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an award appeal in relation to which the following conditions are satisfied:
(a) the decision appealed against was made before the Division 2B referral commencement in an award proceeding;
(b) the decision was:
(i) to vary, or not to vary, an award; or
(ii) to terminate, or not to terminate, an award.
Note: The following (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced or completed on or after the Division 2B referral commencement:
(a) award proceedings;
(b) award appeals, if the appeal is against a decision to make, or not make, an award.
(2) Subitem (1):
(a) does not apply to the commencement of an award appeal more than 21 days after the day on which the decision appealed against was made; and
(b) ceases to apply to an award appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.
56 Completion of agreement proceedings
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the completion of an agreement proceeding that had commenced before the Division 2B referral commencement.
Note: Agreement proceedings (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced on or after the Division 2B referral commencement.
(2) Subitem (1) ceases to apply to an agreement proceeding if the proceeding has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.
57 Agreement appeals
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an agreement appeal (whether the decision appealed against is or was made before, on or after the Division 2B referral commencement).
(2) Subitem (1):
(a) does not apply to the commencement of an agreement appeal more than 21 days after the day on which the decision appealed against was made; and
(b) ceases to apply to an agreement appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.
58 Decisions made in award appeals, agreement proceedings and agreement appeals
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law provides for when any of the following decisions (a State decision ) come into operation:
(a) a decision made in award appeal to which subitem 55(1) applies;
(b) a decision made in an agreement proceeding to which subitem 56(1) applies;
(c) a decision made in an agreement appeal to which subitem 57(1) applies.
Note: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.
(2) Subject to subitems (3) and (4), if a State decision affects the source award or source agreement for a Division 2B State instrument, the Division 2B State instrument is taken to be affected by the State decision in the same way, and from the same time, as the source award or source agreement is affected by the State decision.
(3) Subitem (2) does not apply to a State decision that affects the coverage terms of the source award or source agreement.
(4) Any resulting alteration of an entitlement under the Division 2B State instrument takes effect only from the later of the day on which the State decision is made and the day on which the decision comes into operation.
59 Agreements etc. that had not come into operation by the Division 2B referral commencement
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law provides:
(a) for when a State employment agreement comes into operation, if the State employment agreement was approved by a State industrial body before the Division 2B referral commencement, but the agreement had not yet come into operation by that commencement; or
(b) for when a variation or termination of a State employment agreement comes into operation, if the variation or termination was approved or made by a State industrial body before the Division 2B referral commencement, but the variation or termination had not yet come into operation by that commencement.
Note: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.
(2) Subject to subitem (3), if, at a time when a Division 2B State employment agreement is in operation, a variation or termination of the source agreement comes into operation as mentioned in subitem (1), the Division 2B State employment agreement is taken to have been varied in the same way, or to have been terminated, (as the case requires) immediately after that time.
(3) Subitem (2) does not apply to a variation that affects the coverage terms of the source agreement.
60 Proceedings relating to entitlements or obligations that arose before the Division 2B referral commencement etc.
(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to compliance with an entitlement or obligation:
(a) that arose before the Division 2B referral commencement under a State industrial law; and
(b) that relates to an act or omission which occurred before that commencement.
(2) Subitem (1) does not apply to entitlements or obligations relating to any of the following:
(a) the making, variation or termination of State awards or State employment agreements;
(b) bargaining or industrial action.
Note: Orders and injunctions of State industrial bodies relating to industrial action that are in operation immediately before the Division 2B referral commencement can continue to have effect, and be enforced, under State law after the Division 2B referral commencement: see item 61.
(3) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to a termination of employment that occurred before the Division 2B referral commencement.
(4) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law:
(a) relates to proceedings that commenced before the Division 2B referral commencement; and
(b) provides for the variation or setting aside of entitlements and obligations arising under a contract of employment, or another arrangement for employment, that a court or a State industrial body of the State finds is unfair.
61 Continuation of orders and injunctions of State industrial bodies or courts
Despite section 26 of the FW Act:
(a) an order made, or an injunction granted, by a State industrial body or a court of a Division 2B referring State to prevent or stop industrial action (however described) that was in operation immediately before the Division 2B referral commencement may continue to have effect under the law of the State on and after that day; and
(b) the order or injunction may continue to be enforced under the law of the State on or after that day.