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
56 At the end of Part 3 of Schedule 4
Add:
Division 2 - Operation in relation to Division 2B State reference employees
15 Application of this Division
This Division applies in relation to Division 2B State reference employees.
16 Non-accruing entitlements: counting service before the Division 2B referral commencement
General rule
(1) An employee's service with an employer before the Division 2B referral commencement counts as service of the employee with the employer for the purpose of determining the employee's entitlements under the National Employment Standards, other than entitlements to:
(a) paid annual leave; and
(b) paid personal/carer's leave.
Note 1: 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).
Note 2: Interaction between the National Employment Standards and Division 2B State instruments is dealt with in Division 1 of Part 5 of Schedule 3A to this Act.
No double entitlement
(2) 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 (1) 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 National Employment Standards.
(3) To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.
Limitation on application of general rule to redundancy pay
(4) Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee's employment by the employer immediately before the Division 2B referral commencement did not provide for an entitlement to redundancy pay.
(5) If, had an employee's employment been terminated for redundancy (however described) before the Division 2B referral commencement, a State industrial body could have made an order giving the employee an entitlement to redundancy pay (however described):
(a) the terms and conditions of the employee's employment referred to in subitem (4) are taken to have provided for an entitlement to redundancy pay; and
(b) paragraph 121(1)(b) of the FW Act does not apply in relation to the employee during the period of 12 months starting on the Division 2B referral commencement.
Note: Because of paragraph (b), the employee may therefore be entitled to redundancy pay under section 119 of the FW Act if the employee's employment is terminated during the 12 month period starting on the Division 2B referral commencement, even if the employer is a small business employer.
17 Accruing entitlements: leave accrued immediately before the Division 2B referral commencement
(1) This item applies if an employee had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of paid annual leave or paid personal/carer's leave, whether the leave accrued under a State industrial law, the source award or source agreement for a Division 2B State instrument, or otherwise.
(2) The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing-out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.
18 Leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or a State industrial law
(1) If:
(a) an employee was, immediately before the Division 2B referral commencement, taking a period of a type of leave under:
(i) Division 6 of Part 7 of the WR Act; or
(ii) a State industrial law; and
(b) there is an equivalent type of leave under the National Employment Standards;
the employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period.
Note: For example, if an employee was taking parental leave under Division 6 of Part 7 of the WR Act immediately before the Division 2B referral commencement, the employee is entitled to continue on unpaid parental leave under the National Employment Standards.
(2) If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave:
(a) the amount of leave the employee is taking or will take;
(b) the time at which the leave is taken;
(c) the arrangements for taking the leave.
Note: If the employee's spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.
(3) If, before the Division 2B referral commencement:
(a) an employee has 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 type of leave referred to in subitem (1); and
(b) an equivalent step is required under the National Employment Standards;
the employee is taken to have taken the step under the National Employment Standards.
Note: For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.
(4) If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave.
Note: For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.
(5) The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or under a State industrial law of a Division 2B referring State.
19 Notice of termination
(1) Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement.
(2) However, that Subdivision does not apply to a termination if notice of the termination was given before the Division 2B referral commencement.
20 Redundancy pay
Subdivision B of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement, even if notice of the termination was given before that day.
21 Fair Work Information Statement
The obligation in section 125 of the National Employment Standards for an employer to give an employee the Fair Work Information Statement only applies to an employee who starts employment with the employer on or after the Division 2B referral commencement.
22 Regulations
The regulations may make provision in relation to how the National Employment Standards apply to, or are affected by, things done or matters occurring before the Division 2B referral commencement.