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

53A   At the end of Schedule 3

Add:

Part 8 - Transitional pay equity order taken to have been made by FWA - Division 2B State reference transitional awards

43 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 modern award applies to the employer on or after the Division 2B referral commencement; and

(b) the employer is prescribed by the regulations for the purposes of this paragraph, or is included in a class of employers prescribed by the regulations for the purposes of this paragraph; and

(c) immediately before the Division 2B referral commencement, a transitional award (the relevant transitional award ) applied to the employer.

Note: Transitional award has the same meaning as in Schedule 6 to the WR Act. Schedule 6 is continued in operation by Schedule 20 to this Act.

(3) An employer must not be prescribed by regulations for the purposes of paragraph (2)(b) unless:

(a) an order, decision or determination of a State industrial body (the source pay equity order ) would have applied to the employer if the relevant transitional award had not applied to the employer; and

(b) the source pay equity order satisfies subitem (4).

(4) A source pay equity order satisfies this subitem if it:

(a) was made before 15 September 2009; and

(b) 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

(c) was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and

(d) is prescribed by the regulations for the purposes of this paragraph.

(5) 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 if the source pay equity order had applied to the employer in respect of the period.

(6) An employee of an employer to which this item applies is an affected employee of the employer if the employee performs work of a kind, at a classification level (however described), in relation to which the source pay equity order determines a base rate of pay.

(7) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.

(8) 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).

(9) 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 (8)(a).