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

74   At the end of Part 3 of Schedule 11

Add:

Division 4 - Transfers of business: Division 2B State instruments

14 Application of this Division

This Division applies in relation to a transfer of business and transferable instruments that are Division 2B State instruments.

Note: Transfers of business affecting transitional instruments are dealt with in Division 1 of this Part.

15 Application of FW Act in relation to transferring employees covered by Division 2B State instrument

(1) This item applies if:

(a) there is a transfer of business from an employer (the old employer ) to another employer (the new employer ), as described in subsection 311(1) of the FW Act; and

(b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the Division 2B referral commencement.

(2) Part 2-8 of the FW Act (as modified by item 16 of this Schedule) applies in relation to the transfer of business.

16 Modification - application of FW Act in relation to Division 2B State instruments

(1) Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:

; (d) a Division 2B State instrument.

(2) Except as provided in subitems (3) to (5), Part 2-8 of the FW Act applies in relation to the transfer of business 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.

(3) Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) or 319(1)(c) of the FW Act.

(4) Paragraph (2)(b) does not apply in relation to the reference to a modern award in subsection 312(2) or paragraph 319(1)(c) of the FW Act.

(5) The following provisions of Part 2-8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement:

(a) subsection 315(3);

(b) paragraphs 318(1)(b) and (2)(c);

(c) paragraph 319(2)(c).

(6) Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words "(other than an individual Division 2B State employment agreement)" were inserted after the words "a transferable instrument".

(7) If a transferable instrument that is a Division 2B State award starts to cover the new employer in relation to the transfer of business as mentioned in paragraph 313(1)(a) of the FW Act, FWA cannot make an order under paragraph 319(1)(c) of the FW Act.